The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (28 page)

The prosecution, however, chose not to share this information with defense counsel—at least not as it was detailed in the memorandum it had prepared for use in its own direct examination of one of its two star witnesses.

Did this lack of full disclosure constitute another breach of the Brady doctrine, or was the Magruder testimony memorandum protected attorney work product? It would have been interesting to watch members of the Watergate Special Prosecution Force defend this lack of disclosure before a fair and impartial judge.

A PARTING QUESTION

Prosecutorial abuse is hardly unheard of, but since Watergate there have been a number of instances committed by Democratic prosecutors out to even political scores with Republican office holders. Recent examples include the 2008 prosecution of Senator Ted Stevens of Alaska by the Department of Justice’s Public Integrity Unit; the indictments of Senator Kay Bailey Hutchison of Texas (1993), House Majority Leader Tom DeLay (2005), and Governor Rick Perry of Texas (2014) by the Travis County (Texas) district attorney; the scorched-earth prosecutions of New Orleans police officers following Hurricane Katrina by DOJ’s Civil Rights Division (2011); and the massive and secret “John Doe” investigation of Wisconsin Governor Scott Walker’s campaign by the Milwaukee County district attorney (2012).

In most of these instances, however, judges or appellate courts—perhaps helped along by vigorous media coverage—responded to the abuse by investigating and invalidating the improperly obtained verdicts.
³⁹

But the Watergate prosecution turned out differently. It featured a hanging judge reveling in his new-found celebrity and willing to bend every rule to assist the prosecution, and highly partisan prosecutors,
working in secret collusion with that judge, charging selected persons with thought crimes and withholding exculpatory evidence to secure their convictions. These were the conditions faced by the cover-up defendants. Could other elements of due process, including trial before a jury of their peers or their automatic right of appeal, provide any of the constitutional safeguards guaranteed by our Bill of Rights?

CHAPTER 8

AN UNTAINTED AND UNBIASED JURY

J
ury trials have provided an essential element of fairness in criminal prosecutions at least as far back as ancient Greece and Rome and have long been viewed as a check on over-zealous prosecutors. The right to a trial before a jury of one’s peers was confirmed by the Magna Carta (1215) and reconfirmed over five hundred years later by the Sixth Amendment to our Constitution, which requires “an impartial jury” in all criminal trials.

From the very outset of the Watergate scandal there were serious questions as to whether, after the massive adverse pretrial publicity, such a jury could be found within the District of Columbia—and with good reason.

THE D.C. JURY POOL

The boundaries of the original District of Columbia formed a perfect square, ten miles on each side and canted like a baseball diamond, with its corners pointed north, south, east, and west. It consisted primarily of low-lying tidal lands contributed by the contiguous states of Maryland and Virginia. Most of the portion donated by Virginia, that to the west of the Potomac River, was returned to the state just prior to the Civil War, forming what is now Arlington County and leaving the District with an area of just over sixty square miles. No point in the District is more than five miles from the state line of Maryland or Virginia and a different political jurisdiction and federal circuit.

In 1970, Washington’s population of 750,000 was just over 70 percent black and predominantly lower middle class. The city had been exceptionally hard hit by white flight and the riots that followed Martin Luther King’s assassination. One reason for the District’s low socioeconomic profile was that virtually all of the area’s desirable suburbs were located across state lines in Maryland (Potomac and Bethesda) or in Virginia (Arlington and Alexandria).

At the time of the Watergate trials, Washington was not yet the cosmopolitan city of today. Wags joked that it combined Northern charm and Southern efficiency. It was a one-industry town, the vast majority of its residents working for or in connection with the federal government. The dominant topic of conversation was politics, and the newspapers reflected this. Almost without exception, local news was relegated to a separate, inside section.

Because of the growth of the federal government that began under President Franklin Roosevelt and the long dominance of the Democratic Party in Congress, it was a totally Democratic town. The Congress, its professional staff, the civil service, the city’s law firms, think tanks, and news organizations—all had been dominated by Democrats since 1932.

The District typically delivered better than 80 percent Democratic majorities in presidential elections. Even in Nixon’s sweeping re-election victory of 1972—when he won the second-highest percentage of the vote in American history (61.2 percent)—the District had voted 78 percent
Democratic and, with Massachusetts, supplied Senator George McGovern’s only electoral votes. Simply put, no jurisdiction in the nation was more completely dominated by one political point of view than Washington, D.C.

Was it possible in such an environment to impanel a jury that could impartially try men who were as prominent and notorious Republicans as the defendants in the Watergate cover-up trial, particularly after two and a half years of massive adverse pretrial publicity and the resignation in disgrace of the president they had served?

This question involves two issues: jury taint and jury bias. Had the jury pool—the list of registered voters from which the jurors would be selected—been so thoroughly exposed to news about Watergate that they could not be expected to approach the question of the defendants’ guilt with an open mind? And was that jury pool so politically biased against the defendants that a jury taken from it could not be expected to render a fair verdict in a case with such political overtones?

THE TAINT OF PRETRIAL PUBLICITY

The likelihood of a tainted jury pool was among Special Prosecutor Cox’s primary concerns when he arrived in late May 1973. The Ervin Committee’s public hearings had begun on May 17 and soon dominated American television. They were initially carried live by all three national networks—ABC, CBS, and NBC—though they soon moved to rotating coverage. The hearings also were rebroadcast at night on local Public Broadcasting System affiliates and carried live by National Public Radio. In all, over three hundred hours of hearings were broadcast, and 85 percent of American households watched at least some portion of them. Even today, most Americans’ first-hand knowledge of Watergate stems from what they saw coming from the Senate caucus room on their television in 1973.

When the Ervin Committee declined Cox’s request to suspend its public hearings until their potential adverse effect on the defendants’ criminal rights could be sorted out, he submitted a thirteen-page
“Memorandum on Behalf of the Special Prosecutor on Application for Orders Conferring Immunity” to Sirica, asking that grants of immunity to potential prosecution witnesses be conditioned on their not testifying in public hearings. Cox summarized his concerns in the opening paragraph:

          
[T]he continued conduct of public and televised Senate hearings creates a very serious danger: (1) of impeding investigation of the Watergate affair and associated misconduct; (2) of widespread, pretrial publicity which might prevent bringing to justice those guilty of serious offenses in high government office.

The memorandum detailed why Cox believed that Sirica had not only the authority to condition the court’s grants of immunity to Dean and Magruder on their refraining from public testimony but the obligation to do so. Cox had his eye on the trials to come:

          
From the standpoint of the integrity of grand jury proceedings and the fairness of any subsequent trials, the most appropriate order would be one requiring the testimony be taken in executive session without subsequent publication. Bearing in mind the decision of the Select Committee to push forward with public hearings, the most appropriate condition would seem to be the exclusion, during the giving of compelled self-incriminatory testimony, of live or recorded radio, television, and other coverage not permitted at a criminal trial.

Cox specified the potential damage which he was seeking to avert (all case citations omitted):

          
In the absence of conditions restricting the publicity accorded statements compelled by this Court, it now appears likely that the testimony will be carried on nation-wide television, reaching into millions of homes. While it is impossible to judge at
this time the precise impact of this publicity on the conduct of the forthcoming cases, there is, at the least, a significant possibility that the Committee’s proceedings will imperil the government’s ability to empanel an unbiased jury for the trial of any offenses charged.
Cf
.
Delaney v. U.S.

                
The proposed testimony would raise difficulties, exceeding even the traditional problems associated with pretrial publicity, since what is expected is the dramatic, broadcast confession of these witnesses, implicating themselves and others in a variety of criminal acts. This compelled, incriminating testimony would, of course, be inadmissible at trial against the witnesses.
Cf
.
Miranda v. Arizona
. Its availability to prospective jurors prior to trial might make it impossible to provide a fair trial at all. See
Rideau v. Louisiana
. If the anticipated publicity is given to the testimony of these witnesses, “the risk that the jury [that may be called upon to try them and others] will not, or cannot, follow instructions [to disregard the extra-judicial confessions] is so great, and the consequences of failure so vital, that the practical and human limitations of the jury system cannot be ignored.”
Bruton v. U.S.

                
Granting of the protective relief we request is consonant with long established and well recognized principals of judicial power and responsibility to preserve the integrity of criminal trials. “Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.”
McNabb v. U.S.
,
Jenks v. U.S.
, Hill,
The Bill of Rights and the Supervisory Power
.

                
Speaking in the context of inflammatory pretrial publicity, the Supreme Court and the courts of appeals have emphasized the absolute necessity for the exercise of these supervisory powers. The Supreme Court has described the right to a fair trial as “the most fundamental of all freedoms”
which “must be maintained at all costs” (
Estes v. Texas
), and has directed the trial courts to take all necessary action to “protect their process from prejudicial outside interferences” which pretrial publicity may inject into criminal proceedings.
Sheppard v. Maxwell
. See also
ABA Standards Relating to Fair Trial and Free Press
.

                
The proposed public testimony of the witnesses Dean and Magruder on nationwide television would in all likelihood present a clear and present danger (1) to the ability of other persons whom they may implicate to obtain a fair trial, [and] (2) to the validity of any indictments which are handed up during the period.

                
While, ordinarily, techniques which “include continuance, change of venue, sequestration of jurors, sequestration of witnesses, voir dire of prospective jurors and cautionary instructions” may suffice to avoid the effects of pretrial publicity, “in many cases, particularly those of a highly sensational nature, the use of these traditional procedures has not proven sufficient to assure the defendant a fair trial.”
Report of the Judicial Conference Committee on the Operation of the Jury System on the “Free Press Fair Trial” Issue
.

Cox then issued what he assumed was the ultimate threat—failure to shut down the Ervin Committee’s public hearings, at least for the government’s principal accusatory witnesses, could result in the defendants’ getting away entirely: “The result of an unconditional grant of ‘use immunity’ in this matter, therefore, may well be the award of complete amnesty to these witnesses and all those who acted in concert with them.”

Cox made a forceful, cogent, and scholarly argument against open Senate hearings, but he was talking to the wrong people. To Judge Sirica and the senators on the Ervin Committee, the expected publicity wasn’t everything (as Vince Lombardi might have put it), it was the only thing.
Besides, Sirica was the one who had so dramatically called for creation of the Senate committee in the first place.

Brushing aside the serious concerns Cox had raised, Sirica ruled against him with no more concern about the effect on future prosecutions than the Senate committee had shown. Indeed, Senator Ervin later asserted that informing the American public was the more important goal, even if later prosecutions were precluded as a result.

The Ervin Committee hearings, of course, were only part of the media’s saturation coverage of Watergate from the original break-in arrests in June 1972 until the opening of the cover-up trial in October 1974. It would be difficult to point to another story that received such extensive coverage for so long. In addition to the Ervin hearings, the press covered the Watergate burglars’ arrests and trials, the collapse of the cover-up, the resignations of the president’s top advisors, the confirmation hearings for Elliot Richardson that led to the appointment of the Watergate special prosecutor, the fights over the White House tapes, the collapse of the Stennis compromise and the Saturday Night Massacre, the House Judiciary Committee’s impeachment inquiry, the indictments in the cover-up case, the release of selected tape transcripts, the Supreme Court’s decision ordering the release of sixty-four additional tapes, the “smoking gun” transcript and Nixon’s resignation, President Ford’s pardon, and the release of the final report of the Ervin Committee—all culminating in the opening of the Watergate cover-up trial on October 4, 1974.