The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (12 page)

The hearing was beautifully orchestrated, everything coming off precisely as Jaworski and Sirica had discussed. Only the defendants were caught by surprise by the dramatic presentation of a sealed briefcase, containing the grand jury report designed for transmittal to the House of Representatives.

Documents recently coming to light detail how Jaworski slipped into Sirica’s chambers a half hour before the hearing for yet another private, off-the-record meeting to go over the judge’s and the prosecutor’s respective roles. They also met again after the hearing to discuss how smoothly things had gone and to be sure that nothing further needed to be done at that time. While neither of these ex parte meetings is mentioned in subsequent appellate briefs or in Jaworski’s or Sirica’s book (except for the briefest and almost misleading allusion by Jaworski),
⁵
we now know about the meetings because of a second secret memorandum that Jaworski wrote for his confidential files, recording the agenda on which they agreed (see
Appendix H
).

Jaworski’s memo must be read in full to be believed. Here is a portion, which confirms the worst fears of prosecutorial and judicial collusion:

          
On the morning of March 1, I met with Judge Sirica in chambers at 10:30am. We reviewed the agenda consisting of (1) presentation of indictments and sealed special report of the grand jury; (2) unsealing of the special report and reading by Judge Sirica, and the acceptance of the report and its resealing. I told Judge Sirica that I would ask the Court to specially assign the case in view of its length and protracted nature. . . .

                
After [the 11:00 a.m. hearing’s] opening, Judge Sirica looked at me, asked if I had anything to take up with the Court. I then rose, went to the lectern, and said, “May it please Your Honor, the grand jury has an indictment to return. It also has a sealed report to deliver to the Court.” The rest of the agenda was then followed including delivery of a briefcase of material, along with the special report to the Court—also a key to the briefcase. The Judge indicated that he would have an order on the special report on Monday (he told me he would transmit to the counsel for the House Judiciary Committee under rules that would not interfere with the trial of the accused). The Judge in open court asked if I had any further comments, and I stated: “Due to the length of the trial, conceivably three to four months, it is the Prosecution’s view that under Rule 3-3(c), this case should be specially assigned, and we so recommend.” This meant that Judge Sirica could assign the case to himself, which he did do by order later entered that day.

If such a documented agreement between the prosecutor and the judge—that Jaworski would move for special handling so that Sirica could appoint himself to preside over the trial—had become public, it would have been enough
on its own
to have Sirica removed from the case before the trial or to have any resulting convictions overturned on appeal.

MARCH 7, 1974

A second key indictment also occurred by the deadline imposed by Sirica’s birthday. Ehrlichman, among others, was indicted for his role in authorizing the Plumbers’ break-in at the offices of Dr. Lewis Fielding, psychiatrist to Daniel Ellsberg, who was responsible for leaking the Pentagon Papers to the
New York Times
and perhaps to the Soviet embassy. This indictment was brought by a separate grand jury, Watergate Grand Jury II, but was presented to Sirica as chief judge. The timing allowed him again to go outside of the normal procedures and specially to assign this case to Judge Gesell, who was the prosecutor’s own choice for that case. William Merrill, the WSPF prosecutor who headed the Plumbers Task Force, specifically wanted Gesell as trial judge, because he had already ruled that there was no national security defense to the charges they expected to bring against Ehrlichman. As Merrill later wrote, he had asked Jaworski to ask Sirica to assign the case to Gesell, and their secret request had been granted.
⁶
Had this advance arrangement between prosecutors and judges been known at the time, it too would have raised important questions about the abuse of due process in the Plumbers’ prosecution.

MARCH 19, 1974

Judge Sirica turned seventy and stepped down as chief judge of the District Court for the District of Columbia, as required. He had already assigned himself to the cover-up trial and Gesell to the Plumbers’ trial, assignments that the expiration of his term as chief judge did not change. He was replaced by George Hart, a decidedly less media-friendly and activist judge than Sirica had become.

CONCLUSIONS AND IMPLICATIONS

Documents uncovered to date confirm at least nine secret face-to-face meetings between Judge Sirica and Watergate prosecutors. There may have been many more such communications—in person or by
telephone. There are certainly more implied in Jaworski’s cryptic comment to Woodward, mentioned before: “Says there were a lot of one-on-one conversations that nobody knows about except him and the other party.”

It is unfortunate, indeed, that Woodward did not pick up on Jaworski’s observation and, as one might expect of a true investigative reporter, vigorously pursue its tantalizing trail. Perhaps he didn’t recognize the observation for what it was worth or perhaps he didn’t want to spoil an otherwise good interview.

In any event, there are still a few people around who were close to Jaworski or to Sirica, who participated in one or more of the ex parte meetings described above and who might know more specifics about their ongoing conversations. Perhaps they would be willing to share their knowledge of this wrongdoing, even at this late date.

In his 1981 book,
Crossroads
, Jaworski piously concluded, “From Watergate we learned what generations of Americans before us have known: our Constitution works. And during the ordeal it was interpreted again to reaffirm the truth that no one—absolutely no one—is above the law.”
⁷
And yet, Jaworski’s own actions made a mockery of the due process guarantees of our Bill of Rights, guarantees that apply to every American—absolutely every American—no matter how disgraced he may be in public opinion. Jaworski and the federal judges with whom he colluded placed themselves above the very laws they were sworn to uphold and enforce.

The extent of collusion between Judges Bazelon and Sirica and Special Prosecutors Cox and Jaworski is simply breathtaking. The judges and prosecutors together took the part of Nemesis in Prud’hon’s painting—eager for vengeance, with any concept of justice removed from the picture entirely.

Had any one of the incidents described above come to light at the time, it would have necessitated resignations, removals, and possibly disbarments. Emerging as they have some four decades later, they completely taint the Watergate verdicts and render them indefensible as a matter of law.

PART III

GETTING NIXON “AT ALL COST”

T
o fully appreciate the abuses of power that forced President Nixon to resign, it is helpful to separate the judicial and prosecutorial collusion aimed at getting the president out of office from the denials of due process that tainted the convictions of his senior aides in the Watergate trials, which are addressed in subsequent chapters.

CHAPTER 5

STAFFING THE NIXON IMPEACHMENT

W
hile internal WSPF documents show that from the very outset prosecutors dreamed of bringing Nixon into the criminal justice system, both Cox and Jaworski felt the proper venue for dealing with the president himself was the House of Representatives, in which the Constitution vests the power of impeachment. That said, Cox’s own files contain an analysis prepared by a fellow professor shortly after Cox’s appointment concluding that a sitting president can be indicted. This same issue was briefed within the Department of Justice by both the U.S. attorney’s office and the Office of Legal Counsel. In the month after Nixon had resigned but before he was pardoned, over a dozen individuals or groups of WSPF prosecutors submitted internal memos to Jaworski urging that the former president be indicted for his alleged Watergate crimes.

A BACKWARD LOOK AT NIXON’S RESIGNATION

With the perspective of forty years, let’s look again at how and why Nixon was forced to resign.

There is little question but that his resignation was triggered by his loss of all political support following the release on August 5, 1974, of the “smoking gun” tape of June 23, 1972—a tape, as we have seen, that everyone erroneously took as evidence of the president’s obstruction of justice.

Knowing as we now do that the “smoking gun” conversation provided no grounds for impeachment, we can examine the other alleged wrongdoings that might have made it necessary for Nixon to resign. After all, the House Judiciary Committee had voted to recommend three articles of impeachment to the full House at the end of July, some two weeks before the “smoking gun” tape’s public release. These articles were grounded in obstruction of justice, abuse of power, and failure to comply with a House subpoena. Let’s review them in reverse order and see how they hold up today.

SUBPOENAS FOR WHITE HOUSE TAPES

The Judiciary Committee charged that Nixon’s failure to comply with the House subpoena for the tapes was an unconstitutional act. Yet the president’s position that he was not obliged to comply with the congressional subpoena because of the constitutional separation of powers was not extraordinary. Presidents as far back as Thomas Jefferson had declined to provide Congress with internal documents of the executive branch, and these presidents had been consistently upheld by the courts. Indeed, both the House and the Senate had sued to obtain judicial enforcement of their subpoenas for the tapes, failing each time.

As a proposed accommodation, the White House had turned over to the Judiciary Committee on April 30, 1974, transcripts of some four dozen conversations, along with the offer that the chairman and ranking member could verify their correctness by listening to the tapes themselves.

The executive and legislative branches carry on this sort of tug of war almost every day. Most recently, the House has refused to turn over
to the Securities and Exchange Commission internal documents relating to an investigation of insider trading, and the Obama administration has declined many times to make documents available to House committee investigations. While the House does have the ultimate power of impeachment, that remedy is a “nuclear option” that is never used in practice. The Watergate scandal is the only occasion in history when the House Judiciary Committee has recommended impeachment of the president for refusing to comply with a congressional subpoena.

ABUSES OF POWER

Nixon’s alleged abuses of power, which seemed outrageous at the time, pale in comparison with both past and current practices.

Beginning the year after Nixon’s resignation, the Church Committee revealed a pattern of abuses in the name of national security stretching back to 1936.
¹
During that period (and without court authority), the CIA opened at least 130,000 first-class letters to or from American citizens, the FBI conducted an annual average of 125 surreptitious entries (“black bag jobs”) to plant bugs or to review personal files, and various military intelligence agencies routinely violated the privacy rights of American citizens. The Kennedy administration’s Ideological Organization Audit Program triggered IRS audits of hundreds of donors to conservative charities. Robert Kennedy approved more wiretaps on Martin Luther King than Nixon, trying to plug leaks, had on his National Security Council staff. The FBI kept its own “enemies list” of some thirty thousand “subversives” to be rounded up in the event of widespread domestic unrest.

During the Obama administration, there have been disclosures of warrantless collection of data by the National Security Agency, as well as specifically targeted drone killings, with at least one American citizen among the targets. The White House has misled the American public about the terrorist attack in Benghazi. The IRS has systematically harassed the president’s political opponents. The president has violated the legislative authority of Congress with regard to Obamacare and immigration law and has subverted the process of congressional
confirmation of presidential appointments. When it comes to presidential abuses of power, Obama makes Nixon look like an amateur.

OBSTRUCTION OF JUSTICE

The most important article of impeachment that Nixon faced was the one charging him with obstruction of justice. It was the first article to be voted on and was by far the most serious—then and now. What is so interesting in retrospect is that the House Judiciary Committee conducted virtually no investigation of its own, relying instead on the work of the WSPF. Relentlessly focused on removing Nixon from office, those prosecutors took the unprecedented step of secretly conveying to the House Judiciary Committee the results of their investigation—an investigation whose primary factual assertions turned out to be entirely wrong.

Here, I submit, is a tale of prosecutorial and judicial corruption that has never before been disclosed to the American public.

WHAT DID THE PROSECUTORS KNOW AND WHEN DID THEY KNOW IT?

The Watergate Special Prosecution Force was established principally to investigate and prosecute the crimes of Watergate. This mandate meant starting at the bottom with the known crimes and then, in typical prosecutorial fashion, working their way up in the Nixon White House. They might get to the president eventually, but no one expected them to start there. But something intervened in this process of nailing President Nixon’s aides. Suddenly, the big prosecutorial guns were no longer aimed just at them. As nearly as can be determined, this dramatic change of prosecutorial focus occurred in December 1973, just after the release of the first set of White House tapes.