The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (10 page)

The right to due process of law is guaranteed to every defendant, no matter how hated or infamous he might be. In fact, the more despised a defendant is, the more critical it is that he be accorded his right to due process. Yet all five elements of the defendants’ right to due process were violated in the Watergate trials:

(1) The trials themselves were media circuses, like show trials of political prisoners in a banana republic. At least one of the principal accusers was not even present in court to be confronted or cross-examined.

(2) Chief Judge Sirica, who appointed himself to preside over both Watergate trials, acted as an arm of the prosecution, held a series of highly improper secret meetings with parties whose interests were adverse to the defendants, and defrauded the jury with his temporary sentencing of the government’s principal accusatory witnesses.

(3) The defendants faced an extraordinarily hostile and unaccountable prosecution. The Watergate Special Prosecution Force was staffed almost exclusively by partisan Democrats. It operated without oversight and was unconstrained by the rules and procedures applicable to all other prosecutions brought by the Department of Justice, including the rules and constraints imposed by the Manual for U.S. Attorneys. The WSPF wielded all the prosecutorial powers of the Department of Justice but in a totally independent and unreviewed manner.

(4) The District of Columbia voter pool from which the Watergate juries were drawn was hopelessly tainted by the ubiquitous and adverse pretrial publicity that accompanied the unfolding of the Watergate scandal and was intensely biased politically, consistently delivering 80 percent of its votes to the Democratic Party.

(5) The Court of Appeals for the D.C. Circuit, which heard all appeals from Judge Sirica’s two Watergate trials, was corrupted by a
secret ex parte meeting between its chief judge and the original special prosecutor.

PART II

COLLUSION

I
n his extraordinarily perceptive “Reflections” column in the June 10, 1974, issue of the
New Yorker
, the legal commentator Richard Harris mused about the unfairness of the Watergate prosecutions. The only way to punish corruption in the Nixon administration, he wrote,

          
was by bringing the Watergate criminals to justice. This is being done—to an extent. But to restore public confidence in our democratic system fully, it was also essential that the prosecutions be conducted fairly. That has not been done. In fact, many legal practices employed by the prosecutors to reestablish the primacy of the law in this nation appear at this stage to have perilously subverted it. In the end, history may conclude that the way in which those guilty of crimes in the Watergate affair were brought to justice did more lasting
damage to the highest purpose of American law than did the crimes themselves.

Harris went on to detail the legal abuses of the Watergate prosecutors:

          
The use of generally discredited and unenforced laws in order to “get” someone who has probably, or even certainly, broken other laws but cannot be successfully prosecuted for those crimes; the use of grand juries, which were originally set up to protect the innocent, as investigative aids to the prosecution rather than accusatory bodies; the use of plea bargaining, in which a prosecutor offers a defendant a lesser charge in exchange for either a guilty plea or information about crimes committed by others; the use of partial or total immunity from prosecution in exchange for information; the use of selective prosecution, in which one person is tried for a crime although others who are equally guilty of the same crime are ignored; the use of conspiracy charges when evidence of the crime that is believed to have been committed is flimsy; the use of perjury charges for the same purpose; the use of criminal sanctions that can be applied against ordinary citizens but not against government officials; and the unequal application of the law in general.

Finally, he talked about how public perceptions and expectations were the driving force behind these prosecutions:

          
Once a large majority finally became convinced that serious wrongs had indeed been intentionally committed by some of the nation’s highest officials, probably including the President, public demand for cleaning up the wreckage and punishing those who had caused it grew irresistibly. Pressed by this demand and persuaded that there was an urgent need to meet
it swiftly, the prosecutors—with an astonishing disregard for fairness—fell back on all the means that could reasonably be justified by the end, including use of some of the same legal practices that had been so freely and perniciously employed by the Nixon Administration and so roundly condemned by its critics.

But Harris’s concerns—expressed mid-way through 1974, after the cover-up indictments but before the actual trial—fell on deaf ears, and prosecutors proceeded to put on the greatest political show trial in American history.

As alarmed as Harris was in the summer of 1974 by the prosecutorial abuse he perceived, he was unaware of the secret collusion between judges and prosecutors, an abuse of due process that was far worse than he could have imagined.

CHAPTER 4

THE SECRET MEETINGS BETWEEN JUDGES AND WATERGATE PROSECUTORS

M
any of the due process questions explored in subsequent chapters involve issues and rulings whose significance will need to be reevaluated in light of the collusion between judges and prosecutors that I have uncovered after years of research and that are disclosed here for the first time. This collusion occurred in a series of secret meetings, the most important of which are outlined below.

COX’S SECRET MEETING WITH BAZELON

In the fall of 1973, the special prosecutor, Archibald Cox, met secretly with Chief Judge David Bazelon of the D.C. Circuit Court, a meeting that tainted all of that court’s subsequent decisions on Watergate criminal appeals.

While Cox had no experience as a prosecutor, he was an expert in the federal appellate process and knew how to anticipate votes on appeal.
He had clerked for Judge Learned Hand on the U.S. Court of Appeals for the Second Circuit in 1938 and, as solicitor general (January 1961–July 1965), had headed the office that determined whether and on what basis to argue the government’s position on appeals of any and all federal cases. As a result, Cox knew all about the political predilections of the judges on the D.C. Circuit.

The liberal bloc, which included Chief Judge Bazelon, controlled the court with a narrow five-to-four majority, but it could exercise that control only when the court sat en banc—that is, with all of its nine judges hearing a case. Ordinarily, however, a randomly selected three-judge panel heard each appeal to the circuit court, making liberal control on any particular case unpredictable.

As Cox saw it, Sirica’s overwhelming indulgence of the prosecution, his tendency to turn the Watergate prosecution into a one-man search for truth, and his penchant for playing up to the suddenly adoring media could well boomerang. The more he thought about it, the more concerned he became that the Watergate criminal cases, where convictions were a near certainty before Judge Sirica, stood in substantial peril of being reversed on appeal, especially since they would be heard before a circuit court known for its interest in preserving defendants’ rights.

A worried Cox finally took matters into his own hands, meeting personally with his friend Chief Judge Bazelon. Cox unburdened himself of his concerns about Sirica and then explained how he thought the problem could be finessed—an idea that had already worked on Nixon’s own lawyers. Professor Charles Alan Wright, the president’s outside counsel in the litigation over the White House tapes, had been euchred into requesting the court of appeals to take the unusual step of hearing the earlier tapes case en banc from the outset (no doubt convinced that the full court would ultimately hear the appeal in any event). The country’s leading authority on the federal courts, Professor Wright apparently was unaware that Democratic appointees still controlled the D.C. Circuit Court and that he stood a better chance of prevailing with a randomly selected three-judge panel. Whatever his reasons, Wright’s maneuver ultimately put Nixon’s fate in the hands of the court’s liberal majority.

It dawned on Cox that if Bazelon could convince his liberal colleagues to hear all of the other appeals from Sirica’s trial court en banc, Sirica’s decisions were more likely to be upheld. For his own part, Bazelon immediately grasped the significance of Cox’s recommendation and the benefits to be gained from adopting it. The important thing was not to get hung up over legal technicalities, but to be certain that the Nixon people got precisely what they had coming to them. These were extraordinary times and called for extraordinary measures.

The only way we know about this secret—and highly improper—meeting is that there was a third person in the room, Bazelon’s law clerk, Ronald Carr, who had just graduated from the University of Chicago Law School. Perhaps this was how things were done in Washington, but the lead prosecutor’s meeting with the chief appellate judge seemed wrong to him. He found himself unable even to look at the other two men as their discussion became more specific. He kept his head down and his mouth shut.
¹

We will see in a later chapter how Bazelon went about putting Cox’s suggestion into practice. For now it is enough to appreciate that a totally unethical discussion took place between the special prosecutor and the chief judge of the very court that would hear any appeals from cases brought by his office. Regardless of what they discussed, it was improper for such a meeting to take place at all. That Bazelon ultimately followed Cox’s recommendation only made the due process violations even worse.

JAWORSKI’S SECRET MEETINGS WITH SIRICA

Archibald Cox was fired as special prosecutor in the Saturday Night Massacre of October 20, 1973, and replaced by Leon Jaworski some three weeks later.

Cox’s firing must have changed attitudes considerably, since WSPF prosecutors proceeded to hold a series of private meetings with Sirica that culminated in the comprehensive cover-up indictment. We don’t know the full extent of those off-the-record, secret meetings, but what
we do know raises serious questions as to whether the defendants received the fair trial envisioned by the Fifth and Sixth Amendments.

Jaworski was well aware of the sensitivity of these meetings but also rather proud of what they accomplished. He appeared to allude to them, for example, in his first detailed interview after resigning as special prosecutor. Bob Woodward conducted that interview in Jaworski’s office in his Houston law firm on the afternoon of December 5, 1974. The second sentence of Woodward’s typed notes contains the cryptic notation, “Says there were a lot of one-on-one conversations that nobody knows about except him and the other party.”
²

The unidentified “other party” was clearly Judge Sirica. The only other possibility would have been Alexander Haig, but Jaworski’s meetings with Haig were well-known and well documented. Sirica is by far the better reference, since we now know of at least six such meetings, even if we don’t know the full content of their conversations. Regardless, Woodward does not seem to have picked up on the significance of Jaworski’s comment, at least not sufficiently to have followed up on it.

NOVEMBER 5, 1973

At the top of Jaworski’s hand-written “to do” list for his first day in office is the word “oath.” On the next line is the notation, “Courtesy call on Sirica.” Neither party mentions this first meeting in his book, but it must have been an interesting one—especially in light of what followed.

DECEMBER 14, 1973

At Sirica’s specific request, four top WSPF officials participated in a private, ex parte meeting with him and Judge Gerhard Gesell. In addition to Jaworski, the prosecutors present were Henry Ruth, deputy special prosecutor; Philip Lacovara, special counsel; and Richard Ben-Veniste, acting head of the Watergate Task Force. Because no record was kept, we do not know the extent of the meeting or the topics that were covered. None of the participants ever even mentioned this meeting in their three subsequent books.

Jaworski had assumed office just the month before, so the meeting is likely to have been a full-blown review of the ongoing and anticipated WSPF criminal investigations. It simply strains credulity to believe that there was no discussion of potential defendants or of the evidence that had been gathered against them. This conclusion is all the more likely in light of the presence of Ben-Veniste, the acting head of the Watergate Task Force. The omission of all four other task force heads suggests the meeting’s focus was on his group’s investigations.

One topic most likely to have been discussed was the significance and effect of the tape of March 21, 1973, especially because it had only been a matter of days since Sirica had turned the first set of subpoenaed White House tapes over to WSPF prosecutors. Indeed, the prosecutors had listened to the March 21, 1973, meeting only two days before this session with Sirica and Gesell. It thus seems clear that a primary purpose for the meeting was for Sirica to get the prosecutors’ reactions to those tape recordings—the ones he had just finished reviewing himself. It is unlikely that the prosecutors concealed their horror at hearing that particular conversation, which they dwell on rather extensively in their respective books.
³
Of course,
any
discussion of actual evidence to be introduced in the coming cover-up trial was clearly and strictly forbidden by the canons of professional and judicial ethics.