The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (30 page)

The prosecution’s imagined difficulties aside, the jury was drawn from a pool that was predominately Democratic and hugely anti-Nixon, people who had been subjected to a non-stop barrage of accusations and disclosures about the prominent defendants whose fate they would hold in their hands.

The chief concern in seating a fair jury is not whether a prospective juror is generally aware of the case at issue but whether that juror is confident that he can put his personal feelings aside and reach a verdict based on what is introduced into evidence at court. In practice, if a person wants to serve on the jury, the appropriate responses to any questioning are quite clear.

Under these circumstances, it is not difficult to see how Sirica could seat the jury he very much wanted, and he ignored the Watergate cover-up defendants’ concerns about a tainted and biased jury:

          
•
    
Change of venue
: Sirica rejected out of hand the idea of moving the trial. Doing so would have put another judge in charge of the trial, and any subsequent appeals would have gone to the Fourth Circuit, which was notably more conservative than the D.C. Circuit.

          
•
    
Continuance
: Sirica declined to postpone the start of the trial, asserting (to the delight of an admiring press) that the Constitution guaranteed a speedy trial and he was going to see to it that the defendants received one. He promised the defendants additional peremptory challenges instead. With great reluctance he eventually postponed the trial for one month at the express urging of the circuit court. President Ford announced his pardon of Nixon on September 9, in the midst of this brief continuance, so the flood of adverse publicity had not abated in the slightest when the trial began on October 4.

          
•
    
Careful voir dire
: Adopting procedures urged by WSPF prosecutors, Sirica deliberately omitted any close questioning of prospective jurors and allowed their mere assertion of lack of taint or bias to go unchallenged.

          
•
    
Additional peremptory challenges
: After promising additional peremptory challenges to the defendants in lieu of a continuance, Sirica awarded only one to each defendant and imposed procedural rules that effectively vitiated two of those five additional challenges.

The Watergate cover-up trial therefore proceeded before a jury that harbored all the political bias and prejudicial publicity taint that the defendants had feared from the outset. The problems with that jury were compounded by the nature of the charges against the defendants—“thought crimes” that turned predominately on questions of motive and intent—and the multiplicity of defendants, each presenting a different defense theory. The verdict in this complicated three-month trial would come down to whether the jury liked, trusted, and respected the defendants.

Juries are notoriously fickle, and trial lawyers will tell you that any jury trial is a roll of the dice. But these dice were loaded, and the verdict was a forgone conclusion.

You cannot really blame the jurors themselves for the disregard for due process in the cover-up trial. The partisanship of the prosecution, the vagueness of the charges, the complexity and length of the trial, the bias of the presiding judge, and the inherent hostility of the jury pool ensured that these defendants never had a chance.

Thanks to the teamwork of judge and prosecution, the jury was given only one view of the defendants, and the picture was as clear as Prud’hon’s painting. The credibility of the government’s witness was improperly enhanced, and exculpatory information was improperly withheld. From what the jurors had heard before the trial and were allowed to see during the trial, there was no question who the real criminals were. As the prosecutors intended, the jury considered each of the defendants in the order he was named in the indictment—and the three principal defendants were promptly convicted on all counts.

THE ISSUES ON APPEAL

Judge George MacKinnon of the D.C. Circuit began his dissent in
United States v. Haldeman
, the appeal from the cover-up convictions, “If ever in the history of our country there was a criminal case which by law had to be transferred to another place for trial because of prejudicial pretrial publicity alone, this is that case.”
⁸

It is not that the issues of bias and taint were not known and argued at the time—both before Sirica and the court of appeals. It is that the defendants’ concerns were dismissed out of hand, with virtually nothing being done to ameliorate their predicament. District and appellate judges deliberately turned a deaf ear to the hapless Republican defendants, in clear violation of the requirements of the Sixth Amendment.

CHAPTER 9

THE AUTOMATIC RIGHT TO AN APPEAL

C
riminal defendants in the federal court system have the right to appeal a guilty verdict from the district court to the appropriate court of appeals. Generally, questions of fact are presumed to have been resolved by the trial jury, so the only issues on appeal are questions of law and procedure. The defendants in the Watergate cover-up trial had plenty to complain about, but the court of appeals for the District of Columbia was deeply biased against them and their president. In addition, the appeals from the trial before Judge Sirica were frustrated by corruption at the next level.

NIXON’S 1968 CAMPAIGN AGAINST LIBERAL JUDGES

A major theme of Nixon’s 1968 presidential campaign was his criticism of liberal judges who were allowing criminals to go free, usually
on legal technicalities, a theme that resonated with many Americans in that time of unrest. Frustration with the growing lawlessness was often focused on Chief Justice Earl Warren, under whose leadership the Supreme Court had expanded procedural protections for criminal defendants. The Warren court became the symbol of judicial coddling of criminals.

But Nixon’s criticism of the federal courts implicitly included the court of appeals for the District of Columbia, led by Chief Judge David Bazelon, the Supreme Court’s primary feeder of federal criminal cases. The District of Columbia had no separate system of local courts, so serious criminal cases were tried in the federal district court, and appeal went to the D.C. Circuit. Bazelon and his liberal colleagues specialized in excusing criminal activity for reasons ranging from misconduct by police and prosecutors (improper search, improper interrogation techniques, coerced confessions, etc.), the unhappy background of the accused, and a vastly expanded definition of insanity that encompassed an increasing number of defendants.

The D.C. Circuit heard more criminal appeals than all other federal circuit courts combined. With its decidedly liberal bias (indeed, Dean had described it as “the most radical court in the land” in his February 28, 1973, meeting with President Nixon), the Bazelon court shaped aggressive new criminal case law, which Warren’s Supreme Court accepted and affirmed, imposing it on the entire country. A biographer of Justice William Brennan describes Bazelon’s enormous influence:

          
To conservative thinkers, Bazelon was one of the most dangerous men in America. . . .

                
Bazelon was never nominated to the U.S. Supreme Court, but his opinions often became the law of the land. Cynics claimed that it was his personal friendships with the justices that led to so many of his radical rulings being upheld by the Court. . . .

                
Bazelon was well connected to Washington’s power structures. . . . He often shared a box at the Washington Redskins
games with President Johnson and then–Redskins owner Edward Bennett Williams. Bazelon was not above ensuring the success of his opinions on appeal by befriending new justices on the Court, and that is exactly what happened with Bill Brennan. . . . He accepted Bazelon’s invitation to become a partner in several business deals. Eventually he found himself joining Bazelon for lunch at least twice a week. . . .
¹

In the twilight of his judicial career, Bazelon authored a book, with a forward by Justice Brennan, describing his prominent decisions and defending his court’s reversal of so many convictions.

          
Notions such as “guilty anyway” serve as rationalizations for refusing to admit the deprivations of constitutional rights that occur at trials. This failure to admit what we are doing does not, however, alter the fact. Appellate courts cannot correct errors in past trials to prevent their recurrence in future trials unless we reverse convictions. Incidential observations and nonbinding dicta are just not sufficient. When we allow a conviction to stand despite violations of the Constitution, we conceal a serious problem and nourish the mistaken euphoria that our justice system is alive and performing well. The cost of this concealment is paid in the loss of fairness to individual defendants and in the absence of guidance for police, lawyers, and judges in future cases.
²

Perhaps tellingly, nowhere in his book does Bazelon mention the series of appeals heard by his court on all of the Watergate cases.

Nixon came to office with a clever plan to reduce the influence of the D.C. Circuit in criminal law. His Home Rule initiative, passed by Congress in 1970, established courts for the District of Columbia that were independent of the federal system. Appeals from the newly established D.C. superior courts would go directly to the Supreme Court (as with appeals from state supreme courts), bypassing Bazelon’s court.
Nixon had not only cut the D.C. Circuit out of its precedent-setting position for the nation’s criminal justice system, he had been able to appoint his own set of judges for the District’s new criminal courts and had enacted anti-crime reforms that had undercut many of Bazelon’s earlier decisions. To top it all off, he got popular credit for having done so in the pursuit of home rule for the District’s residents. But Bazelon and his liberal brethren on the D.C. Circuit would not forget this slight.

When Archibald Cox was sworn in as special prosecutor in late May 1973, he had to quickly assemble a team of prosecutors to investigate and prosecute the Watergate scandal while dealing with two matters already pending. The first was the Ervin Committee hearings, which opened on May 17 and threatened to poison the jury pool for Cox’s later criminal prosecutions. The second was how to handle the appeals from the Watergate break-in trial, which challenged Judge Sirica’s conduct.

We have already seen in chapter four how Special Prosecutor Cox arranged a secret meeting with Chief Judge Bazelon to explain how the selection of judges could be manipulated for appeals from the cover-up trial. Let’s now see what Bazelon did in response.

BAZELON’S STACKING OF THE APPELLATE DECK

After Bazelon concluded his meeting with Cox in the fall of 1973, he never said anything further about the discussion to his clerk Ronald Carr, but Cox’s plan was put into force. The Saturday Night Massacre in October panicked the nation and instilled a sense of urgency in the courts. Cox’s plan for the D.C. Circuit to hear all Watergate appeals en banc did not seem so extraordinary after all. In fact, the Cox plan was a nice counterpart to Nixon’s court reform that had cut Bazelon’s D.C. Circuit out of ruling on criminal appeals. Charles Alan Wright’s request for an en banc hearing of the White House tapes case had already established the precedent. All Bazelon had to do was convince his liberal colleagues that they should follow the same procedure for any criminal appeals.
³
If handled adroitly, this approach might not seem so out of the ordinary, but its effect would be dispositive.

Once his liberal bloc was firmly in control of any given appeal, opposition from the remaining judges would be inconsequential. They might vigorously dissent, but they could not overturn. Bazelon was confident that he could convince his liberal colleagues to swallow any concerns about Sirica’s denial of defendants’ rights. After all, these weren’t the sort of downtrodden criminal defendants who deserved the court’s special protection; these were Nixon’s henchmen, evil men who should never have been allowed into government in the first place. If Bazelon could get his colleagues to see Sirica in a new light—as an activist judge, as one of
them—
then he could assure that these criminal convictions could withstand his court’s nominal review.

It is not clear from the D.C. Circuit’s own records precisely how Bazelon was able to implement Cox’s idea of stacking the appellate deck—the available court records are spotty at best—but it is clear that he was successful (see
Appendix Q
).

The records show that in October 1973, the court of appeals finally heard the appeals of the break-in defendants, who had been convicted over eight months before. Sirica had kept them in jail pending their appeals. There is a vote sheet dated October 23, 1973, from the clerk of court, Hugh Kline, to the judicial council—composed of all nine circuit judges—asking whether the motions filed in these appeals should be decided by the full court or by the motions division, as would have been the usual practice. The court records do not contain the final votes of the judges on whether the court should precede en banc, but the dockets show that these appeals were disposed of by the full nine-member court sitting en banc.

A non-agenda item for the March 12, 1974, meeting of the judicial council simply notes that the appeals from the convictions of these same break-in defendants would be heard before the full court on June 14, 1974. A memorandum from the clerk to the judicial council, dated April 4, 1974, confirms this without any further details. The dockets show that all matters during this period were considered by the court sitting en banc.