Charles Colson’s Odd Guilty Plea: Was It Lawful?

Watergate ushered in, among other things, the echt Age of Mainstream Media.  In a demonstration of raw media power, the Washington Post brought down a President who had just received a massive re-election mandate. No one questioned the media’s power again until the Drudge Report systematically undermined its legitimacy by covering the media the way the media covered government.

I’ve often wondered how Watergate would have played out in a blogosphere world, a  thought that came back to me when I read this in the recent NY Times obituary for Charles Colson:

 Mr. Colson served seven months after pleading guilty to obstructing justice in the case of Daniel Ellsberg, a former National Security Council consultant who leaked the Pentagon Papers, a secret history of the Vietnam War, to The New York Times. In July 1971, a few weeks after the papers were published, Mr. Colson approved Mr. Hunt’s proposal to steal files from the office of Mr. Ellsberg’s psychiatrist. The aim was “to destroy his public image and credibility,” Mr. Hunt wrote.

“I went to prison, voluntarily,” Mr. Colson said in 2005. “I deserved it.”

But did he deserve it?  The theory of his plea was that he intended to gather (apparently true) information about Ellsberg and leak it at a time when Ellsberg faced criminal charges.  How is that obstruction of justice, exactly?  Well, the leak might have affected Ellsberg’s trial, perhaps tainting the jury pool, I suppose.  That’s how Time summarized the charges at the time, saying that Colson pleaded guilty “to obstruction of justice for devising a scheme to get and disseminate derogatory information about Pentagon Papers Defendant Daniel Ellsberg in 1971.”

To his credit, Jonathan Aitken flags exactly this issue in his book, Charles Colson:  A Life Redeemed.  He notes that this was the only crime that Colson felt he had committed and that Judge Gesell had to be persuaded to accept a plea based on such an unusual theory.  In any other atmosphere, Aitken notes, treating such a leak as felony obstruction of justice would have been “hotly debated.”

At the time, of course, the mainstream media had so primed the pump that the Watergate prosecutors and Judge Gesell seem to have had few qualms about accepting Colson’s plea, or about sentencing him to one to three years in jail on this unusual theory.

In an Age of Bloggers, though, with alternative fact-finders and opinion-shapers, I wonder if it would have gone down so easily.  Maybe this is the time and place to take another look at that theory.   I’m under the impression that leaks from police and prosecutors are pretty common (though not exactly condoned) in criminal investigations.  In the nearly forty years since Colson pleaded to this crime, has any federal investigator or prosecutor been charged with felony obstruction of justice for leaking true information about a defendant? If not, should we reconsider the fairness of the sentence and the plea that launched Charles Colson on the second — and more admirable — half of his career?