In 1972, David Horowitz came into possession of some of America’s most sensitive defense secrets. As a leftist editor, his first impulse was to publish them. But Horowitz feared prosecution. A prominent lawyer coached him on how he could commit this treason and get away with it. That lawyer - according to Horowitz -- was Charles Nesson, a Harvard Law School professor and member of the Daniel Ellsberg defense team. Horowitz has repeated this story many times, first in his books Destructive Generation and Radical Son, and most recently in FrontPageMagazine.com (“Spy Stories: The Wen Ho Lee Coverup,” October 3, 2000). To our surprise, Prof. Nesson has suddenly decided to respond.
David Horowitz, in his piece titled “Spy Stories,” refers to a telephone conversation he supposedly had with me in 1972, asserting that I advised him to commit treason and destroy evidence. I have no recollection of any telephone conversation with Mr. Horowitz. I do not know Mr. Horowitz. I have never represented or advised either Ramparts magazine (sic). I do not counsel treason. I do not counsel destruction of evidence. I am an Evidence professor who teaches and has written on the necessity of preserving, not destroying evidence. I refer you to my casebook, Green & Nesson, Evidence, to my article, “Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action,” 13 Cardozo L. Rev. 793, 793 (1991), and to any students who have ever taken my class.
Charles Nesson, October 4, 2000
THIS IS WHAT we call a not-so-subtle evasion. No denial that you worked on the Ellsberg defense team for example. (And how would I know that you even did, if you had not responded to my call to the Ellsberg defense team?) "I do not recall" is not very helpful to you or to anyone else.
I wrote about our conversation in Destructive Generation, which was published in 1989, and then again in Radical Son, which was published in 1997. I discussed your advice to me on C-Span and on innumerable radio shows. It is difficult to believe that you did not hear the story or that no one ever brought it up to you. Yet you have never contacted my publisher or me in all the years since to complain. Why are you coming forward now with this kind of half-hearted file and shuffle? "I do not recall" indeed.
I am not a law student or a lawyer. I have never attended Harvard. I would never even have come across your name if it weren't for that call. Nor do I have any reason to single you out, since I don’t know you and know nothing about you except as a voice on the other end of that phone line. The only reason I even know your name is that you gave it to me when you came on the phone after I had contacted the Ellsberg defense team and asked for help. Perhaps you gave out this kind of advice so frequently and casually in those days, you cannot now place my call -- but I doubt even that.
I certainly didn't make this up. The conversation is vivid enough in my mind because the future not only of myself but of my wife and four children depended on the advice I sought and got from you. Moreover others were waiting for my report of what you said. My Ramparts co-editor Peter Collier remembers your name, the phone call, and the advice I reported, as clearly as I do. His freedom and his family's future was also on the line. I never claimed that you represented Ramparts. I called the Ellsberg defense team and you came on the phone. And you gave me the advice exactly as I described it in my book Radical Son. What appalls me about people like you is not only that you provided such counsel, but that you persist in lying about what you did thirty years after the fact. Alger Hiss went to the grave lying; maybe you will too. I'm sorry to be so blunt, but then your lack of candor (with malice) invites a direct response.
Let me add that this is the most shameful and humiliating thing I ever did. Thousands of New Leftists actively abetted or collaborated with America's enemies during the Sixties and Seventies and Eighties, and committed similar acts. But I am virtually the only one who has admitted what I did and told how it was done. That is the only reason I have subjected myself to the embarrassment of telling this story again.