The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (14 page)

In his response, dated January 8, Jaworski agreed that the proper path regarding Nixon was that of impeachment and not indictment (even if the facts were supportive) but disagreed that it was their responsibility to come to the immediate aid of the Judiciary Committee.

          
Archibald Cox, as well as you, has wisely concluded, it tentatively occurs to me, that the President should not be indicted nor should he be named as a co-conspirator, assuming that the proof warrants either of these courses. As to the naming of the President as a co-conspirator Cox was quoted as opposing it because it was “just a back-handed way of sticking the knife in.” If these are sound conclusions they remain sound whether the impeachment process falters or flourishes. In my present view, I can find no justification for violating our other responsibilities [to bring charges against Nixon’s aides] . . . simply because we find it unsupportable to indict the President or to name him as co-conspirator.

                
Let me add these further thoughts. There are numerous situations that justify naming as an unindicted co-conspirator, but the President does not belong in this category. The very fact that such an act would brand him indelibly without an opportunity to defend himself, rules out such a procedure, in my estimation.

One cannot help but be struck by how firmly Jaworski rejected Ruth’s suggestions about assisting the House Judiciary Committee and naming the president in their cover-up indictment. Replying on January 14, Ruth pointed out that he had argued that it might become crucial to name the president in the indictment
only
if the House’s impeachment process were to founder, perhaps as a result of some lack of cooperation from the White House and the special prosecutor. Besides, he emphasized, Cox had “always believed that cooperation with the impeachment process was proper.”

On January 21, Jaworski drafted a response to Ruth, properly characterizing the situation in which he found himself (see
Appendix J
):

          
I said before and emphasize again that the mere conclusion that the President is not indictable or should not be named as an unindicted co-conspirator furnishes no basis for our
pursuing still another course beset with restraints that should not be violated. I mean this: If it is not sound in law or policy to indict the President; if it is not sound in law or policy to name him as an unindicted co-conspirator—it cannot become so simply because the efforts of the House to impeach are frustrated. Differently stated, if the House bogs down in impeachment because of lack of evidence that cannot be properly and legally released to it or because of its own failures, the unindictable President does not, perforce these shortcomings, become indictable.

                
Although our mandate authorizes us to proceed against the President, it nowhere suggests that we are to do so regardless of fairness or just procedure. More specifically it does not authorize us to violate grand jury procedures, something I observed your memorandum avoids dealing with.

This direct and candid clarification from the special prosecutor to his deputy—firmly insisting that the president would not be indicted or named an unindicted co-conspirator and that grand jury information would not be shared with the House—is all the more instructive since he felt that he had to put it in into writing. One cannot help but wonder what caused Jaworski to change such a firmly stated position.

In later paragraphs of that same response, Jaworski’s description of the WSPF office undermines any claim that they were simply professional prosecutors going about their business without prejudice or political agenda:

          
Now let me address myself to the general tenor of your memorandum which reflects an attitude I discussed with you before—the subjective conviction that
the President must be reached at all cost
[emphasis added].

                
What is of some concern to me are the discussions, plans and understandings had and reached between staff members prior to any discussions with me. This results in convictions
already formed and frankly, under such circumstances, the meetings are of no help to me.

                
Perhaps I should not consider it such a lonely task, but inasmuch as I have the final responsibility, henceforward the discussions I seek will be with those I designate. The stubborn fact remains that we must be alert not to give support to the White House charges that have been leveled against the staff. Perhaps it is too late to get objective opinions from others so I will do the best I can in the making of decisions for which I—and not the staff—will be held responsible. It is a simple thing for you and others to discuss views and convictions you formed along the way because you do not have the ultimate responsibility.

These are exceptionally strong words of concern—WSPF prosecutors have lost all objectivity, they are out to get President Nixon “at all cost,” and are ironing out internal dissent prior to any meetings with Jaworski. There can be little doubt that the stampede that the special prosecutor denounces was occasioned by the enticing opportunities presented by the Frampton Supposition.

Curiously enough, Richard Ben-Veniste, the head of the Watergate Task Force, recalled Jaworski’s attitude at that time quite differently in the Watergate memoir he wrote with George Frampton:

          
From what little the Special Prosecutor said to us in December and early January about President Nixon it appeared to the task force that his central concern was to see President Nixon removed from office. In the first place, Jaworski had obviously concluded on the basis of the evidence that such a person should not in the national interest continue to lead the country. Moreover, Jaworski calculated that the President probably would not be able to cling to his office for long after the tapes were made public. In Jaworski’s mind, seeing Richard Nixon out of the White House was the most
important achievement he could render the country as Special Prosecutor.
⁷

The WSPF eventually pursued a course at odds with the more cautious approach Jaworski was insisting on in his January memoranda. The indictments in the cover-up case were handed down on March 1, 1974, but were kept sealed from the public at the recommendation of the prosecutors and upon the order of the judge to allow them (one suspects) to control the timing and context of their dramatic disclosure. The grand jury, at Jaworski’s urging, named the president as an unindicted co-conspirator, and WSPF prosecutors worked closely with Judiciary Committee staff, in secret, to share grand jury information and their own prosecutorial theories to assist in the committee’s investigations of President Nixon and in the writing of its impeachment report. It remains unclear how Sirica’s and Jaworski’s opposition to one or both of these approaches was overcome, but the “get Nixon at all cost” culture of Cox’s zealous army seems to have prevailed.

WSPF EX PARTE MEETINGS WITH JUDGE SIRICA

We have already discussed details that have come to light regarding the series of private meetings that WSPF prosecutors held with Sirica, at least those that we now know of. It appears they discussed the meaning and importance of the March 21st tape in their meeting with Judges Sirica and Gesell on December 14, 1973. Lacovara’s January 21st memorandum urged another such meeting to persuade Sirica with regard to the proposed grand jury report to the House, the discussion of which occurred when Jaworski met privately with Sirica on February 11. Doyle seems to describe other discussions between Jaworski and Sirica concerning Nixon’s being named in the indictment.

DRAFTING THE GRAND JURY’S ROAD MAP

One of the real public surprises at the March 1st hearing in Judge Sirica’s courtroom when the Watergate grand jury’s cover-up indictments were handed down was the dramatic presentation of a brown, government-issue
satchel containing a sealed envelope addressed to Sirica requesting that he transmit its contents to the House of Representatives. That report, known as the “Road Map” and ultimately transmitted as requested, has remained sealed to this day.

The Watergate Task Force was growing impatient with the House Judiciary Committee’s investigations and felt compelled to push them along. Ben-Veniste and Frampton write:

          
John Doar, the House Judiciary Committee’s chief counsel, had launched an exhaustive staff effort to gather and cross-index every fact, however insignificant, that related to the committee’s inquiry. In an ideal world and with infinite time this endeavor could have proved useful. Under the circumstances, however, it precluded immediate action to what was most urgently needed: an attempt to summarize the most
important
evidence against the President in a meaningful way, so that it could be readily understood and assessed by Congress and the public.

                
The Judiciary Committee’s plight convinced some of us that members of Congress from both sides of the aisle were going to have to have the significance of the evidence spelled out for them in neon letters before they would act. The Watergate Task Force believed that the grand jury should be told it could make a report to the Judiciary Committee that not only transmitted evidence but summarized and commented upon it. The summary, we thought, could articulate the “theory of the case” against the President. It could show how the tapes and other evidence fit together and demonstrate that the President had been trying to hold the cover-up together in March and April of 1973.
⁸

This is an excellent example of the arrogance displayed by members of the Watergate Task Force. They were supremely confident that they and they alone were in the best position to arbitrate what the House
Judiciary Committee should know and act upon. It also turns out, not insignificantly, that the members of the Watergate Task Force had absolutely no idea of the internal battles and considerations going on between Jaworski and Ruth at the staff level of the special prosecutor’s office.

Nor did the task force prosecutors know in 1974, or even when Ben-Veniste’s and Frampton’s book was published in 1977, that Doar, according to the chief counsel of the House Judiciary Committee, Jerry Zeifman, was intentionally slowing down the committee’s impeachment inquiry by occupying the vast majority of its staff with busy work in order to allow public pressure to continue to build against President Nixon and the Republican Party.
⁹
The prosecutors must have been disappointed in the extreme when the committee did not act immediately on their Road Map or leak any of its contents to the press.

It is not clear whether and to what extent anyone other than WSPF prosecutors and Sirica knew that the satchel also contained copies of White House tape recordings. Indeed, it appears that everyone had been assured that this would not happen, as Ben-Veniste and Frampton write:

          
Jaworski had already tried to calm White House fears that we were going to ship our Presidential documents and tapes to the Congress wholesale. In early January the Special Prosecutor gave an interview in which he stated that Presidential material gathered in the Watergate investigation would
not
be turned over by the prosecutor’s staff to the House Judiciary Committee. This would violate legal rules of grand-jury secrecy, Jaworski was quoted as saying, and would be contrary to the Court of Appeals tapes decision by which we obtained the tapes explicitly for grand jury use.
¹⁰

In addition, Jaworski’s recollection of his phone call with Haig the evening before the indictments were announced suggests another misunderstanding, whether deliberately intended or not:

          
On the evening of February 28, just as I was preparing to leave my office, General Haig called. Rumors were afloat, he said, about a possible indictment and a sealed report. “Is there anything you can properly disclose to me, Leon?” he asked.

                
“Nothing about the indictment or the report,” I said. “If the grand jury does make a report, you should expect Judge Sirica to accept it and act on it.”

                
“Let me ask you this,” he said. “Is there any indictment involving present White House aides? I’d need to make arrangements to meet the situation.”

                
“Don’t worry about those arrangements,” I said.

                
He seemed relieved. “You’re a great American, Leon.”
¹¹

Haig’s own memoir is silent about this phone call, but it is likely that he took Jaworski’s disclaimer as all-inclusive—indicating that no action was forthcoming with regard to President Nixon. And indeed, none seemed to be, since Nixon’s being named as an unindicted co-conspirator was kept secret when the indictment was announced.

Fooled into believing that Nixon was not implicated in the grand jury actions and that the grand jury report was little more than a rationale for the indictment of the seven Watergate cover-up defendants, the White House took the position that it did not object to its transmittal or even to its public disclosure.

But two of the cover-up defendants, Haldeman and Ehrlichman, did object to the proposed transmittal of the Road Map to the House. They pointed out that never in the history of the D.C. Circuit had a regular grand jury issued such a report—let alone while its investigation was still ongoing. They also asserted that the resulting publicity when this material was inevitably leaked would prejudice their defense.