The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (19 page)

Among Nixon’s most dangerous enemies, Mollenhoff was unusual. He wasn’t a product of the Eastern Establishment with a lifelong antipathy to everything that Nixon represented. In fact, he had joined the administration in its early days, but the disappointment he suffered there may explain the zeal with which he turned on Nixon in the end.

Mollenhoff had managed to convince Nixon that if he was serious about running the cleanest administration in recent memory, he would be well advised to have an ombudsman on his White House staff, someone who could sniff out problems before they became scandals, who could speak truth to power—someone, that is, very much like Mollenhoff himself.

Nixon went for it, and Mollenhoff joined the White House staff in August 1969. He didn’t get all he wanted, however. He didn’t get an office in the West Wing, and he was not one of Nixon’s few direct reports. Instead, he was put in the Executive Office Building, given the title of deputy counsel, and told that he would be reporting to the president through Ehrlichman, then counsel to the president.

Mollenhoff devoted over a hundred pages at the beginning of his Watergate book to documenting his frustration at not seeing the president
whenever he thought it appropriate and at having to communicate through Haldeman and Ehrlichman, the infamous “Berlin Wall.” Mollenhoff complained that he saw the president on only five occasions during his ten-month stay. He was particularly chagrined by Haldeman’s and Ehrlichman’s use of the phrase “the President would like” when communicating orders to him. Unless Mollenhoff got his instructions from the president’s own lips, he frequently responded, he would not accept them at face value.

Finally, on May 29, 1970, Mollenhoff left in frustration, carrying with him a deep and abiding resentment of Haldeman and Ehrlichman—and of the president. He became chief of the Washington bureau of the
Des Moines Register
and resumed his nationally syndicated column, wielding new authority because of his experience as the president’s special counsel. With his insider’s knowledge of the White House, he was a respected player among Washington insiders.

It was Nixon’s great misfortune that one of his fiercest critics also enjoyed a close friendship with Judge Sirica going back to 1957.
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Mollenhoff maintained the friendship during his time in the administration, even inviting the good judge to dine with him in the inner sanctum of the Staff Mess, Sirica’s first meal at the White House.

Their relationship became critically important as the tides of Watergate began to engulf the president and his administration. Mollenhoff believed that Sirica was the only man who could frustrate the “complete cover-up of the Watergate affair and . . . the continuation and expansion of the corruptive doctrine of executive privilege,”
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and he was determined to exercise his influence to ensure that Sirica did not fail:

          
I hesitated to write or speak of my conviction that Judge Sirica would be a trustworthy and aggressive judge. This reluctance endured despite long conversations with him in the fall of 1972 in which we talked of the importance of honest government and I expressed a belief in the eventual triumph of right over wrong. We did not speak of the merits of the cases before him, but I was sure that he was lonely and
in need of assurance that if he did precisely what he believed to be right, at least one individual would remember it and record it in historic perspective.
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It is important to appreciate what Mollenhoff is saying here. He initiated a series of meetings with the very judge who had appointed himself to preside over the Watergate burglary trial (and later the cover-up trial). Mollenhoff’s goal, which he certainly accomplished, was to convince Sirica that he alone was in a position to thwart the cover-up and to uncover the truth, but only if he took aggressive action as the presiding judge.

But Mollenhoff also had a special message to deliver to his friend: Mollenhoff knew the Nixon White House from the inside and had strong opinions as to what must have happened. In addition, he had a unique inside story that he was eager to share. He had secured an interview with Maury Stans, Nixon’s former secretary of commerce who was chairman of CRP’s finance committee, and Dick Moore, special counsel to the president, who was working on Watergate matters. Unfortunately, that interview had been off the record, so Mollenhoff could not quote them directly.

The thrust of what Mollenhoff most likely shared with Sirica, however, can be derived from the chapter on Watergate from his 1981 textbook
Investigative Reporting
, where he wrote about confiding his views with Stan Greigg, the deputy chairman of the Democratic National Committee:

          
The understanding I had of the internal workings of the White House and the relationships of the various members of that staff was important in my early analysis of the Watergate matter. For example, I knew that Jeb Magruder, a former White House staffer who was deputy director of CREP, was likely to be Haldeman’s puppet. If CREP had financed the burglary, it was likely that it had the approval of Haldeman. I knew that Magruder, ambitious and eager to
please Haldeman, was clearing all but routine matters with Haldeman personally.

                
I told Greigg that it was my view that Haldeman controlled the reelection committee through Magruder, and that Magruder would not have initiated such a burglary on his own. . . .

                
The [White House] “game plan” was apparent to me. There would be the addition of some minor figures with White House connections indicted to give the impression of a forthright investigation, but even those indictments would be a part of an obstruction of justice unless they included Magruder, Haldeman, and Stans.

                
As a result of the Stans interview [on September 14, 1973, the day before the burglary indictments were handed down], I now knew that Richard Nixon was involved in planning and directing a cover-up that was being executed by John Dean in the White House.
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Since Mollenhoff was already peddling his insights to others, there is every reason to suppose that he shared the same views with Judge Sirica. This is the most harmful and indefensible sort of ex parte meeting with a sitting judge. Mollenhoff was clearly not there in a journalistic capacity; he was in no sense interviewing Sirica. No, he was seeking to influence his conduct and to even the score with Haldeman and Ehrlichman, the men who had cut off his access to Nixon three years before.

Sirica ate it up. Mollenhoff was telling him how important he was in the whole scheme of things—describing the role he was destined to play and promising to write columns lauding his heroism. He was also sharing his inside information and opinions, in secret, with the judge who would preside over the Watergate trials:

          
In reviewing the facts of those cases with Judge Sirica prior to writing my column, I sensed the same pride in honest, non-partisan action that I had felt throughout our association.
It made me more confident as I wrote: “If the seven men indicted in connection with the burglary of and bugging at Democratic headquarters in the Watergate complex expect to have an easy time because Judge Sirica is a lifelong Republican appointed in a Republican administration, they should give more study to Sirica’s background.”
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Mollenhoff’s meetings with Sirica were egregiously improper for a multitude of reasons:

          
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A man who had worked as a lawyer on the Nixon White House staff and who bore a personal grudge against people he believed ought to have been named as the principal Watergate defendants conducted a series of meetings with the judge who would preside over the Watergate break-in case.

          
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Even Mollenhoff admitted that his meetings with Sirica were not press interviews. His purpose was to speculate on who else might be involved and to encourage Sirica’s sense of his importance in history.

          
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The meetings were secret and no records were kept. That is why ex parte meetings are so suspect. No one can ever know for sure what was actually said, but we certainly know what was on the men’s minds at the time.

          
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Neither the defendants nor their counsel were aware of these meetings. They were thus denied the right to confront and cross-examine this witness about what had been said. They could not introduce contrary evidence or even seek to have Sirica removed as hopelessly compromised.

          
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The very action that Mollenhoff admits that he urged on Sirica—the search for truth—was hugely improper. Our system of justice requires that judges stay above the fray; that they preside and not investigate.

          
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It was likewise highly improper for Sirica to listen to Mollenhoff. It is axiomatic that judges cannot discuss cases before them with any outsider—except in open court, in the presence of opposing counsel, or in chambers, in the presence of a court reporter. Anything else prevents the maintenance of a complete and accurate record for challenge on appeal.

Sirica compounded the impropriety of his meetings with Mollenhoff by following his advice. The judge played the intrepid searcher for truth rather than the role that the law assigns to him: of impartial presider over an adversarial process. Mollenhoff gloated over the perversion of justice that he had encouraged:

          
With control of the Justice Department, the Nixon White House was confident that not even independent Judge Sirica could penetrate the stone wall of silence created by the prosecution’s theory that Gordon Liddy was the mastermind and that there was no criminal responsibility at a higher level. But Judge Sirica was to demonstrate that he was hardly an average judge in his aggressive search for the truth.
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Though Mollenhoff claimed credit for influencing Judge Sirica’s conduct of the Watergate cases, he nevertheless stated that he did not discuss the merits of the case then before the judge. But he didn’t have to. Those poor souls were caught red-handed in the Watergate burglary. Mollenhoff’s whole point was that these defendants could not have acted alone, that they had to have been directed by higher-ups—higher-ups whom Mollenhoff believed he could identify because they had run everything else in the Nixon White House. He had been there and he had seen how their system worked.

It would be difficult to imagine a more blatant violation of due process than this series of ex parte meetings. But secret meetings with Sirica were not Mollenhoff’s only inexcusable conduct. While Nixon’s
ombudsman, Mollenhoff had obtained and reviewed the tax returns of some twelve persons, including seven federal judges, acts that became public in 1977. When Mollenhoff’s boss at the
Des Moines Register
obtained the names of the aggrieved parties, he discovered that “they were people that Mollenhoff either had written about before or after his White House stint or else had had others in the [
Register
’s] bureau write about.”
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Mollenhoff was quietly fired for unethical conduct, but the reason was kept confidential until I uncovered it.

Ex Parte Meeting with Earl Silbert

As principal assistant U.S. attorney for the District of Columbia, Earl Silbert
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was an ideal and idealistic prosecutor. In pursuing the Watergate burglary, he directed a complex investigation, sought indictments in those cases he knew he could prove, laid out his strategy for his superiors in a timely and convincing fashion, explaining clearly how he might go after any higher-ups once the initial convictions had been obtained, and put on a most convincing case on the government’s behalf at trial.

Silbert and his associates are responsible for breaking the cover-up—and they did so in a thoroughly proper and professional manner. Later, however, they were treated shoddily by the special prosecutor—relieved of their responsibilities and gagged so they could not even respond to press inquiries—and by many in the media, but their hands are clean and their reputations are intact.

Silbert’s professional and ethical prosecution was not good enough for Sirica, however. He felt constrained being on the bench when he very much wanted to participate as a member of the prosecution team. One of the ways he tried to fulfill this desire was to seek a private, ex parte meeting with Silbert. We know about this meeting only because Sirica describes it in his own book. Here’s what he wrote:

          
I like Earl Silbert. I think he’s a good lawyer. I wanted to be helpful, to share with him some of my experiences which I felt might give him some guidance through what was obviously a tough situation.

                
A few days before the trial started, he was in my chambers discussing an administrative problem unconnected with the Watergate case. I said to him, “Earl, look, you’ve got a great opportunity in this case if you go right down the middle, let the chips fall where they may. Don’t let anybody put pressure on you.”

                
Before he left my office, I gave him a bound copy of the hearings conducted back in 1944 by a select committee of the House of Representatives into the activities of the Federal Communications Commission. I wanted the young prosecutor to know just how white-washers were engineered. And I wanted him to know that I had had direct experience with cover-ups while serving as chief counsel to that committee.
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