Daniel Ellsberg, a RAND analyst who had helped write the Defense Department's secret history of the war, copied its seven thousand pages with colleague Anthony Russo and gave them to the press in 1971. The government's attempt at prior restraint failed within weeks in New York Times Co. v. United States, so it turned to the criminal law: Ellsberg and Russo were indicted under the Espionage Act — the first use of the 1917 statute against a leak to the American public — facing over a hundred years combined. Russo had already served forty-seven days in jail for refusing to testify against Ellsberg before a grand jury.

The trial ended in May 1973 when Judge Matthew Byrne dismissed all charges with prejudice, the misconduct having become unignorable: the White House "plumbers" had burglarized Ellsberg's psychiatrist's office, the CIA had prepared a psychological profile, wiretap records had vanished, and Byrne himself had been dangled the FBI directorship mid-trial. The dismissal left the central question unresolved — whether the Espionage Act may constitutionally be used against whistleblowers — a question that returned, with fewer happy endings, in the prosecutions of Manning, Kiriakou, Winner, and Hale a generation later.