The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (11 page)

It is not clear why Judge Gesell alone was invited to the December 14th meeting, but Sirica assigned to him all of the Watergate-related cases that Sirica did not take for himself. Indeed, Gesell was already involved in several Watergate-related matters. He had recently accepted Donald Segretti’s guilty plea, on October 1, for political sabotage of campaign opponents, Sirica had assigned him the related trial of Dwight Chapin, who had been indicted for perjury on November 29, and Gesell had accepted, on November 30, Egil Krogh’s guilty plea for his role in the Plumbers break-in of Daniel Ellsberg’s psychiatrist’s office.

With these six participants in attendance, the meeting of December 14 could not have been a brief or casual encounter. The only reason that
we now know anything about it, however, is a copy of a letter that Jaworski sent to Sirica on December 27. It is interesting that in the intervening forty years, no other copy has come to light. Jaworski’s letter predicts the timing and nature of forthcoming indictments, should the respective grand juries follow the recommendations of his five WSPF task forces (see
Appendix C
).

Two observations are in order. First, obtaining some idea of the anticipated indictments would be a perfectly legitimate concern for the chief judge responsible for management of the court’s docket and its grand juries. But this could not have been the sole basis for the meeting of these six men. If this were all that Sirica wanted to know, he could have had his law clerk convey such a request to WSPF officials.

Second, if Jaworski had wanted to protect Sirica from subsequent questions about the nature and extent of this highly unusual get-together, he could have supplied the requested information without specifically describing their ex parte meeting. Instead, his letter opened with the following sentence:

          
When Messrs. Ruth, Lacovara, Ben-Veniste and I met with you and Judge Gesell at your request on Friday, December 14, you suggested that it would be helpful if we could provide you with some sense of the caseload that we would be generating for the Court over the next several months.

We don’t know if Jaworski was protecting himself in the event their meeting became public or was somehow trying to alert Sirica to the idea that such meetings could not go unnoticed.

There also is a separate item of interest in Jaworski’s letter—his prediction that the comprehensive cover-up indictments would be handed down by the grand jury “by the end of January or the beginning of February.” This was information that Sirica very much welcomed, because grand jury action within this time frame—before Sirica’s seventieth birthday—would allow him to appoint himself to preside over that trial.

JANUARY 21, 1974

The next instance of prosecutorial coordination with Sirica originated within Jaworski’s own staff. WSPF prosecutors had concluded that it was vitally important to share information they had gathered concerning President Nixon, including grand jury materials, as soon as possible with the House Judiciary Committee’s Impeachment Inquiry. Their method for doing so—an interim grand jury report—is explored in a subsequent chapter. What matters now, however, is the proposal in Lacovara’s memo of another private meeting with Sirica, the purpose of which was to make sure that the judge fully appreciated that a grand jury presentment was in the works and that he would be prepared to order its sealed report to be forwarded to the House of Representatives in the manner that WSPF attorneys desired (see
Appendix D
). As Lacovara explained in his memo, “It would be most unfortunate, for example, for the grand jury to return a presentment without forewarning and then have the judge summarily refuse to receive it because of his lack of awareness of the basis for such a submission.”

The goal of this meeting, then, was to lobby Sirica in advance of the forthcoming grand jury report and to gain his concurrence on how it should be handled, but without tipping off the other side. This meeting was particularly important because the grand jury interim report would contain a copy of the March 21st tape, which the D.C. Circuit Court had ruled could be made available only to the grand jury for the purpose of determining whether a crime had been committed. There was simply no legal basis for transferring this tape to the House. In fact, in every instance where the Congress attempted to enforce its own subpoena for these tapes, both the district court and the court of appeals would uniformly rule that they were not subject to judicial enforcement because of the constitutional separation of powers.
⁴

Had the White House or any of the Watergate defendants learned of the intended grand jury interim report in advance—and particularly that it would include the March 21st tape—they could have been expected to challenge such a report as being beyond the grand jury’s authority. After all, no grand jury in the history of the D.C. Circuit had
ever issued such a report, let alone on an interim basis while it continued with its investigations.

Such a challenge would have addressed the grand jury’s authority to act in this manner in the first place, not what should be done with its report after it was issued. By keeping their initiative secret but obtaining Sirica’s advance concurrence on how it would be handled, WSPF prosecutors could obtain a significant procedural advantage over their White House adversaries.

Such a meeting, if it were to occur, would constitute outright collusion and, if it were to become known, would certainly have resulted in removal of both parties from the Watergate cases, as well as disciplinary action up to and including disbarment. This sort of communication between prosecutors and judges, including ex parte meetings and submission of undisclosed—and therefore uncontestable—memoranda, would raise serious questions about Sirica’s impartiality and about whether the Watergate defendants were being accorded the fundamentals of due process of law.

FEBRUARY 11, 1974

The meeting that Lacovera had recommended actually took place on February 11, 1974, even though it was Sirica who occasioned it. Sirica was a worried man. Jaworski’s prediction of cover-up indictments by the “end of January or the beginning of February” had proved inaccurate, and the end of his tenure as chief judge, on March 19, was but a few weeks away. So Sirica sought yet another ex parte meeting with Jaworski. Like their earlier meeting, this one was unmentioned in subsequent books by the parties involved. It was not even acknowledged in subsequent WSPF appellate briefs responding to allegations that such meetings may have occurred.

Here is what Jaworski’s memo of the following day said about this meeting (see
Appendix E
):

          
On Monday, February 11, I met with the Judge at which time several matters were covered as we sat alone in the jury room.
He again indicated that provided the indictments came down in time, he would take the Watergate Case, stating that he had been urged to do so by any number of judges from across the nation the most recent of them being those who were in attendance with him at a meeting in Atlanta. He expressed the opinion that these indictments should be returned as soon as possible. He also stated that henceforth all guilty pleas would be taken by him. We talked about the Vesco case and he merely expressed the thought that perhaps a sealed indictment would be of some help.

Again, a secret meeting of the special prosecutor with the trial judge would have been bad enough, but we now also know that the topics of their discussions were way out of bounds. As Jaworski’s memo makes clear, they were alone in the jury room. His wording also indicates that this was not the first time that the judge had informed him of his desire to appoint himself to the cover-up trial. Jaworski knew—because Sirica had told him so—that Sirica wanted to run this trial too. It is quite clear that Sirica was urging that the indictments be hurried along so that he could do so, a point mentioned twice in Jaworski’s memo.

It is a significant procedural advantage for the prosecution to know in advance which judge is to preside over the trial of the indictments they have under consideration and that he will hear all guilty pleas. They can garner their evidence, tailor their indictments, and consider any plea bargains aided by their knowledge of the peculiarities of that particular judge.

Sirica’s discussion of the Vesco case with Jaworski is troubling in and of itself. John Mitchell was about to go on trial in New York City for improperly helping Robert Vesco to resolve an SEC investigation in exchange for a two-hundred-thousand-dollar political donation. When Sirica pressed Jaworski to hurry the cover-up indictments, the prosecutor would have explained (as he detailed in his book) that he didn’t want these indictments to be announced until
after
the Vesco jury had been sequestered, lest Mitchell argue that the attendant publicity had poisoned
potential jurors’ minds for the Vesco case. Sirica’s apparent response was to suggest that the cover-up indictments could be brought in time for him to appoint himself to the trial but kept under seal so as not to influence the New York jurors. It is difficult to imagine a more egregious example of a judge’s secretly working with the prosecution toward a common goal.

Jaworski’s memorandum summarizes his discussion with Sirica of the prosecutors’ expected grand jury report about President Nixon:

          
The Judge commented upon the status of matters before the grand jury which led into further comments on the possibility of the grand jury considering some type of special report or presentment. He considered this a very touchy problem and cautioned as to what the public’s reaction would be to a grand jury stepping out with something that was beyond its normal bounds. He cautioned that the whole effort could be tainted by something irresponsibly being done by the grand jury. He stated that the public would rightfully conclude that the entire proceeding had not been judicious but simply one of wanting to hurt the President. He further said that it was not the function of the grand jury but that of the House Impeachment Committee to express itself on that point. He then told me that in the event that I observed anything along that line being considered by the grand jury that he thought it would be appropriate for him to meet with the grand jury
in camera
. I expressed the belief that it was appropriate for the grand jury to refer to having in its possession evidence that it believed to be material and relevant to the impeachment proceedings and to suggest to the Court that it be referred to the House Committee for that purpose. He countered by stating that he believed he should be informed of the discretion that he could exercise in matters of that kind and further requested that I have a memorandum prepared for him that covers this subject. I agreed to have this done.

This memo confirms that the ex parte discussion that Lacovara had urged in his February 21st memo did, in fact, occur. Yet it is more than a record of Sirica’s being informed of an anticipated grand jury report. It is also a record of Sirica’s reactions upon learning of the proposed report, along with details of the give and take that followed, as Jaworski sought to bring him to the prosecutors’ point of view. In short, Jaworski’s memo describes a prosecutor seeking advance concurrence on matters that are certain to come soon before that very judge for rulings—conduct that is indefensible as a matter of law. It is equally disturbing that Sirica’s initial reactions—that such a grand jury report was improper—were somehow overcome between this particular meeting and the time the grand jury report (later called the “Road Map”) was presented for his disposal.

We should jump ahead for a moment, since Sirica would later dismiss their discussion of the grand jury as but a minor allusion to a possible action. John Wilson, Haldeman’s criminal defense attorney, was so incensed at the surprise (and sealed) grand jury report that he submitted a formal letter to Sirica demanding to know if the judge had met with WSPF prosecutors in advance of the report’s submission (see
Appendix F
). This letter, which is to be found among Sirica’s papers in the Library of Congress, was never answered directly. Indeed, Jaworski’s memo reveals why any honest answer would have been difficult to write.

What Sirica did do, in his order approving of the grand jury transmittal, was simply to state, “The Special Prosecutor notified the Court shortly before delivery of the Report that the Grand Jury intended to take such action.” Readers can judge for themselves whether this was a full and fair description of the February 11th ex parte meeting that Leon Jaworski memorialized, whether Sirica’s allusion was intentionally misleading, or whether this could refer to a separate ex parte communication between them.

FEBRUARY 19, 1974

In response to a one-page memo from his deputy regarding the Vesco case in New York, Jaworski hand-wrote a response that included the
following sentence (emphasis in original): “We
know
that barring unforeseen circumstances the indictment will be in Wed or Thurs of next week & Judge S
expects that
” (see
Appendix G
).

This simple and forthright assertion of what Sirica expects is further evidence of the explicit agreement that had been reached between Sirica and Jaworski as to when the indictments would be handed down. As events unfolded, Jaworski was off by a single day.

MARCH 1, 1974

The comprehensive cover-up indictments were announced on a Friday in Sirica’s courtroom, apparently with the grand jurors actually present to lend additional credence and drama to the festivities. The WSPF prosecution force had met Judge Sirica’s birthday deadline with less than three weeks to spare. After announcing the indictment, Jaworski moved for special treatment of the cover-up case, so that Sirica, the chief judge, could assign someone out of the usual rotation to preside over it. Indeed, Sirica signed the order naming himself as trial judge later that same day.