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Federal Courts, Judge Gerhard Gesell, and the Security State

This following is a guest post by Ryan Reft, a historian of the modern United States focusing on domestic policy and law in the Manuscript Division at the Library of Congress. Ryan previously contributed two other posts to In Custodia Legis - Simon Sobeloff and Jewish Baltimore and Rights and Resistance: Civil Liberties during World War I Scholarly Panel.

Fifty years ago this past May, Judge Gerhard Gesell of the District Court for the District of Columbia stared down the Nixon administration with an assertion of judicial independence.

Gesell had only recently been appointed to the court in 1968, when controversy fell into his lap in the spring of 1969. Following the more famous unrest of 1968, in March of 1969, college students in the District once again unleashed protests on local university campuses. School administrators at Howard University and George Washington University demanded the U.S. Attorney enforce an order issued earlier by the court to end student demonstrations. Gesell concurred and requested that the government “present an appropriate order to me in chambers that day.”

Gerhard Gesell, 1940 [Photograph]. Harris & Ewing. Library of Congress Prints and Photographs Division. //www.loc.gov/pictures/item/2016877204/

Gerhard Gesell, 1940 [Photograph]. Harris & Ewing. Library of Congress Prints and Photographs Division. //www.loc.gov/pictures/item/2016877204/

Deputy Attorney General Kleindienst and Assistant Attorney General Ruckelhaus arrived around 5 p.m. with a “brief form of order finding the rioters in contempt and directing the injunction be implemented,” but the order lacked detail. Gesell asked simply, “how is this Order going to be enforced?” to which Kleindienst responded, “most respectfully, that is none of your business.” Gesell recorded this exchange in his unpublished memoir, “My Jealous Mistress,” found in the Gerhard Alden Gesell papers in the Manuscript Division at the Library of Congress.

Never one to suffer fools and with his suspicions piqued, Gesell answered, “You might be right, but if I don’t know I won’t sign the Order.” According to Gesell, Kleindienst turned “red in the face” and proceeded to huddle with Ruckelhaus. The latter then presented the government’s terms: if students didn’t immediately end their protest by midnight, they would be jailed. Police already surrounded the campus, U.S Marshals had been alerted, and the two government officials suggested the National Guard was preparing to be deployed. Having already observed similar unrest at Harvard and with press reports of “outsiders coming toward Howard to incite the situation,” Gesell feared a “stupid, unnecessary and … violent confrontation” that risked life and injury.

Sensing the judge’s dismay, “Kleindienst sought to justify his plan, larding his presentation with words about Reds, scum, etc.” In the end, the judge refused to budge, forcing the government to amend its order according to Gesell’s provisions, which included disbanding the National Guard contingent, pulling back the city’s police, broadcasting to the parents of students through radio alerts and flyers that it was in their children’s best interest to depart from the protest and return to their homes, and removing the hard deadline of midnight. U.S. Marshals for the District were then, in smaller numbers than the initial order requested, to quietly enter the campus and “arrest the ringleaders.” As noted by Gesell, his manuscript is the only account of this negotiation.

In moments of distress and controversy, such as events in the late 1960s, the judiciary’s independence has been sorely tested, and while the U.S. Supreme Court receives the lion’s share of attention, the lower courts also prove critical in resisting government overreach. Due to its location in the nation’s capital and its jurisdiction over federal agencies, the U.S. District Court for the District of Columbia is a uniquely historically significant court. Appointed to the court after working for the U.S. Securities and Exchange Commission and a long stint in private practice for the prestigious D.C. law firm Covington & Burling, Gesell proved himself one of the court’s staunchest advocates and a judicious arbiter of federal power, a facet of his juridical practice apparent in his papers.

While the Gerhard A. Gesell papers provide numerous opportunities to delve into specific controversies through their related case files, the judge’s unpublished manuscript and bench diaries, also found in the collection, offer a unique perspective into the U.S. District Court for the District of Columbia’s notable importance and the persistent struggle between national security and the tenets of a democratic republic.

Gesell presided over cases involving free speech, national security, executive power, and government scandal. Several of his rulings eventually reached the Supreme Court on appeal, such as the Pentagon Papers case, United States v. Washington Post Company, which is at the center of the 2017 film, The Post.

In regard to the Pentagon Papers, again, Gesell held firm. The judge had initially refused to enjoin the Post from publication in his verdicts, noting that “[r]ulings were oral and, of necessity, almost immediate.” Yet, the issue returned to him on appeal. Assistant Attorney General Robert Mardian, claiming national security, pressed for a hearing on the issue without the defendants present, which included Kay Graham and Chalmers Roberts. “When I expressed surprise he indicated his position had been cleared at the highest level,” writes Gesell, “I replied that as far as I was concerned the United States of America was not Russia and that I would dismiss the complaint unless his orders were rescinded.” After a phone call to the government, Mardian departed, leaving the controversial report in Gesell’s possession for review.

Within minutes, Gesell heard a knock at the door. “[T]hree large men in military uniform with whit[e] bands across their chests and side arms” appeared, demanding the papers. Again, the judge refused, even after the three men insisted that Gesell’s home was not adequately secure. “I was angry and told them to buzz off or stand around outside, that I had security because the papers would be hidden under a sofa pillow. They left. Clearly somebody was playing hard ball,” he reflected. The transcript of this proceeding is in Gesell’s papers; however, his manuscript makes clear his misgivings regarding the Nixon administration’s “effort to discredit the Court.” Controversy followed, but the judge never budged. The case eventually ascended to the Supreme Court, which sided with the nation’s free press and Gesell’s earlier rulings.

Gesell learned from such experiences and applied them later in other sensational cases. “It is easy to mislead judges and the Solicitor General in this murky intelligence area and this experience stiffened my resolve on a number of occasions when comparable considerations were pressed by the ReaganBush Administrations during the case of United States v. Oliver North,” he writes in his memoir. Notably, the collection includes a revealing diary from his time presiding over the infamous North trial.

Oliver North, 1989 [Drawing]. Aggie Whelan Kenny. Library of Congress Prints and Photographs Division. //www.loc.gov/pictures/item/2017645111/

Oliver North, 1989 [Drawing]. Aggie Whelan Kenny. Library of Congress Prints and Photographs Division. //www.loc.gov/pictures/item/2017645111/

Gesell’s archive offers so much more, including insights into the burgeoning carceral state and the politics of mid-century Washington, D.C., but anyone interested in the complexities of the security state needs to consult the judge’s papers. “It is strange that our willingness to embrace secret covert activity,” he writes in the aforementioned diary, “a course wholly inconsistent with our democratic principles results in our placing secrecy over truth where people in highest places have breached our trust and they are permitted to go on protected by a power of established immunity.”

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