The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (22 page)

                
J
UDGE
S
IRICA
: There isn’t any evidence that is a fact. You will have to come up to the bench on that.

                
[At the bench]

                
J
UDGE
S
IRICA
: Now what is the basis for a statement like that? There isn’t anything in this case that they can look
forward, they have been sentenced. You talking about Mr. Dean? He has been sentenced. I sentenced Mr. Magruder.

                
Now what kind of argument—You can’t make that argument, Mr. Bress. You may do it on cross-examination, if I think it is proper.

                
M
R
. B
RESS
: I intend to back this up with—You want me to respond?

                
J
UDGE
S
IRICA
: Yes, I want to know what you have to justify that kind of statement in an opening statement.

                
M
R
. B
RESS
: Talking about weight of evidence, credibility.

                
J
UDGE
S
IRICA
: I am talking about—hoping for consideration, expecting consideration.

                
M
R
. B
RESS
: They hope.

                
M
R
. N
EAL
: You said expecting.

                
M
R
. B
RESS
: They hope, expect, what is the difference? I don’t say there is a deal, but I am saying that from my own experience as a prosecutor I know that when the matter comes up before the Parole Board, inquiries are made of the Government, the prosecution offers as to whether or not there has been or any factors that would warrant favorable consideration in granting parole. And I want to show, and this statement, they can criticize me on the closing argument if I fail to do it, but I have good reason to believe, Your honor, that these people are cooperating fully with the view that that will redound to their benefit by reason of favorable comments to come from the prosecutor’s office to the Parole Board.

                
Now, if I don’t establish that, they can criticize me.

                
J
UDGE
S
IRICA
: You can’t establish it by an opening statement. I won’t permit you to do it. At the proper time you will not ask that question in presence of the jury, you will first come to the bench out of the presence of the jury. I will not permit it now.

                
You will not do what—This was a matter in the Mitchell case in New York. Mr. Flemming walked into the courtroom
and said, Mr. Dean have you been sentenced yet; and so forth and so forth. That is not the situation. Mr. Dean has been sentenced.
⁴⁸

Dean was the government’s lead witness, and the lead prosecutor wasted no time in emphasizing Dean’s supposed incarceration. Here is the opening sequence, as recounted by Ben-Veniste and Frampton:
⁴⁹

                
M
R
. N
EAL
: You are Mr. John W. Dean?

                
M
R
. D
EAN
: Yes, I am.

                
M
R
. N
EAL
: Mr. Dean, what is your present employment status and residence?

                
M
R
. D
EAN
: Mr. Neal, I am presently serving a prison term at Fort Holabird, Maryland.

                
M
R
. N
EAL
: A prison term for what offense?

                
M
R
. D
EAN
: Conspiracy to obstruct justice.

                
M
R
. N
EAL
: In connection with what?

                
M
R
. D
EAN
: With my involvement in the Watergate cover-up.

                
M
R
. N
EAL
: What was your last position prior to being in a federal prison?

                
M
R
. D
EAN
: The last position I held was that of counsel to the President of the United States.

                
M
R
. N
EAL
: What was the President’s name?

                
M
R
. D
EAN
: Richard Nixon.

There was no mention of the witness protection program or a witness holding facility. There was no disclosure of his spending each day in WSPF offices working on his book. Just as Sirica and WSPF prosecutors had intended, Dean was on the witness stand testifying for the government, already harshly sentenced and apparently imprisoned for his part in this conspiracy, eager to talk about the involvement of his former colleagues. At the end of the three-month trial, on January 1, 1975, the jury convicted Ehrlichman, Haldeman, and Mitchell on all counts.

One week later, on January 8, 1975, apparently upon his own motion, Sirica reduced Dean’s and Magruder’s sentences to “time served.” After four months of technical confinement, Dean was a free man—no parole, no probation, no further restraint whatsoever. Magruder, who had been confined about six months, was likewise set completely free.

Let’s return to Sirica’s explanation of why he sentenced Dean to prison before his testimony had been given, breaking from normal government procedure and from what had been agreed upon when Dean pleaded guilty in the first place:

          
Dean had already made his plea bargain with the prosecutors.
As long as he appeared to testify fully and truthfully, I knew that what he said on the witness stand was not going to make any difference in the sentence I handed down.
So to prevent the suggestion that he was testifying in the hope that I would reduce his sentence, I decided to give Dean that sentence well before the trial [emphasis added].
⁵⁰

If we take Sirica at his word, Dean testified just as he was expected to do, so there was no reason for Sirica to reduce his sentence after he had so testified. The only reason to have imposed the harsh sentence on Dean before his cover-up trial testimony, as the judge himself seems to have admitted and as the special prosecutors confirmed in their own book—was to increase Dean’s credibility with the jurors.

Let us be clear about this: Dean and Magruder’s false sentencing was a deliberate act of fraud on the jury and on the American public. This deception, stemming from the need to secure convictions at any cost, was perpetrated by Sirica and concurred in by WSPF prosecutors.

A hanging judge, his head turned by the new attention of an adoring media, decided that he alone could fashion justice. In single-mindedly pursuing what he thought was justice, however, John Sirica acted as though he was above the law. In so doing, he undermined the foundation of the American justice system—the due process of law.

CHAPTER 7

EVENHANDED, NONPARTISAN PROSECUTORS

E
qual protection of the law implies even-handed prosecutions for criminal conduct. But highly partisan WSPF prosecutors targeted Nixon’s top aides, charged them with highly questionable “thought crimes,” and improperly hid exculpatory evidence from their defense counsel.

CONSTITUTIONAL WEAKNESSES OF SPECIAL PROSECUTORS

The phrase carved into the west pediment of the Supreme Court building, “
EQUAL JUSTICE UNDER LAW
,” nicely captures the constitutional expectation of equal protection: the even-handed application of the laws. This is particularly true with regard to criminal laws, where the Fifth and Sixth Amendments come into play and prosecutions are expected to be nonpartisan.

JACKSON’S ADMONITION

The prosecutor’s challenge—and dilemma—was best articulated by Attorney General Robert Jackson back in 1940 in his address to the second annual conference of United States attorneys in the Great Hall of the Department of Justice. Soon to be appointed by President Roosevelt to the Supreme Court, where he served with distinction until 1954, Jackson would also the lead the U.S. prosecution in the war crimes trials at Nuremberg following World War II.

Jackson began his speech by asserting that U.S. attorneys, as federal prosecutors, have more power over individual Americans’ lives, liberties, and reputations than any other officials in the country. It is a question of discretion, he added, since there are so many federal offenses that could be prosecuted. And it is that discretion that poses a U.S. attorney’s greatest challenge.

If prosecutors can pick their cases, Jackson pointed out, they can also pick their defendants. That discretion is the greatest danger for American citizens, because a determined prosecutor can always find some charge to bring against an individual or group that he has decided he doesn’t like. It matters not whether the prosecutorial dislike stems from being unpopular with those in power, from holding the wrong political views, or even from somehow being in the way of the prosecutor himself.

Jackson emphasized that the greatest threats come in times of fear, when various groups might hunger for the scalps of people with whose views they disagree. He singled out “subversive activities” as being especially dangerous to civil liberties, since there was no agreed-upon definition for such actions. Jackson even observed, “We must not forget that it was not so long ago that both the term ‘Republican’ and the term ‘Democrat’ were epithets with sinister meaning to denote persons of radical tendencies that were ‘subversive’ of the order of things then dominant.”

Jackson’s words still rang true three decades later. In all periods relevant to the Watergate prosecutions, Jackson’s speech was featured prominently in the introduction to the United States Attorneys’ Manual,
and it set the standard under which the laws of the United States were to be enforced by the Department of Justice.

But something changed in the years since Jackson’s admonition. A contemporary account by the lawyer, prosecutor, and novelist George Higgins describes the targeting of specific persons that characterized the Watergate prosecutions—which embodied everything that Jackson had warned against some three decades earlier.

          
The course of human events being what it is, the people who knew how to prosecute, in 1973, were people conditioned (directly or at second hand) by the Kennedy Justice methodology. Imperfectly articulated as it was, that methodology was developed on the premise that law enforcement should not be passive, but aggressive. The governing hypothesis was that there is an ineradicable difference between good guys and bad guys, apparent to, and actionable by, the good guys. Out of that came targeted law enforcement: upon identification as a bad guy, the suspect may resign himself to merciless investigation, reinvestigation, indictment and reindictment, trial and retrial, until at last the Government secures a verdict which ratifies the prosecutor’s assessment of the defendant as a bad guy.

                
Nevertheless, the targets—people—of the alternative process are selected on an ad hoc basis. It is terribly personal. It is not monitored by a disinterested custodian of the due process of law.

                
Cox . . . arranged the Special Prosecution Force on the aggressive model of law enforcement, which evolved from the development of the Organized Crime and Racketeering Section.

                
Mating the investigative and prosecutive functions, it adds to the territorial designation two further letters of marque and reprisal: designation of prospective suspects (no longer does the prosecutor decide whether to prosecute by
asking: “Can we prove he did it?”; he begins with the decision to prosecute at least half made, and reasons: “We know he did something, and as soon as we can prove it, we indict the bastard”).
¹

THE WSPF: DESIGNED FOR ABUSE

In my earlier book, I documented the case that the members of the Watergate Special Prosecution Force did not observe the minimum standards of due process,
²
but a summary of the problems inherent in the force is useful here.

The WSPF was an extra-legal expedient, imposed by the Democratic majority of the Senate Judiciary Committee as a condition for the confirmation of Elliot Richardson as attorney general. It was led by Democrats who had worked together in Robert Kennedy’s Department of Justice and staffed by Democrats selected for their predisposition to oppose President Nixon. It enjoyed all of the investigative and prosecutorial authority of the Department of Justice but operated with total and unreviewed independence. The only person to whom the WSPF could be said to answer was Edward Kennedy of the Senate Judiciary Committee.

Because of its total independence, the WSPF was unconstrained by the rules of conduct and independent levels of review to which prosecutors were ordinarily subject in the Department of Justice. The United States Attorneys’ Manual, for example, did not bind WSPF prosecutors. There were no internal departmental reviews by the appropriate assistant attorney general, the deputy attorney general, or the attorney general himself, and the independent review and concurrence of the office of the solicitor general was not required before filing or responding to circuit court appeals.