The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (31 page)

The minutes of the December 10, 1974, judicial council reflect that, in discussing when to schedule the en banc argument in the case of
United States v. Chapin
(the prosecution of one of Nixon’s aides for perjury, which had been tried before Gesell and not Sirica), Judge Leventhal questioned whether it was still necessary for the en banc court to consider all Watergate matters. The council decided that the Chapin appeal would be decided by a regular three-judge panel. Even after this notation, however, the court continued to hear those Watergate-related criminal appeals from Sirica sitting en banc through 1976—a total of twelve such appeals.

There were three cases involving the White House Watergate tapes. In the first Watergate-related appeal from Sirica (
Nixon v. Sirica
), the D.C. Circuit upheld the grand jury’s subpoena of the first nine tapes. The Ervin Committee’s subpoena for the White House tapes was argued before Judge Gesell (
Senate Select Committee v. Nixon
), who dismissed it. The committee’s appeal was then heard by the D.C. Circuit, sitting en banc, which upheld Gesell’s ruling on May 23, 1974, in an opinion written by Chief Judge Bazelon. The liberal bloc—J. Skelly Wright, Carl McGowan, Harold Leventhal, and Spottswood Robinson—all voted with Bazelon. Judges George MacKinnon and Malcolm Wilkey filed separate concurring opinions. Although Gesell heard at least three Watergate-related criminal matters, this was the only appeal from Gesell that was heard en banc by the D.C. Circuit
.
The third tapes case, involving the special prosecutor’s subpoena of sixty-four more tapes (
United States v. Nixon
), went directly to the Supreme Court, which always sits en banc.

These three cases, balancing the conflict between the judicial system’s need for evidence to prosecute criminal conduct and the president’s interest in protecting the confidentiality of Oval Office conversations in the name of executive privilege, clearly involved “a question of exceptional importance,” as specified in Rule 15 of the General Rules of the D.C. Circuit. It was entirely appropriate, therefore, that the court of appeals sit en banc for the two that came before it.

By contrast, the other Watergate-related appeals involved what WSPF prosecutors described as run-of-the-mill criminal prosecutions. There
were no questions of great constitutional moment, yet all twelve subsequent appeals from Judge Sirica’s actions, orders, and trials connected with Watergate were heard en banc on the court’s own initiative. Sirica was upheld in eleven of them, always with the same five judges voting as a liberal bloc.
⁴
Seven of the opinions were issued per curiam—that is, no single judge was identified as the author—an infrequent and heavily criticized practice in which no judge is willing to put his name to the opinion.

On the other hand, not one of the three subsequent Watergate-related appeals from actions, orders, and trials by Judge Gesell was heard in such an exceptional manner. Gesell was one of the most liberal of the district court judges in D.C. but also one of the most competent, and his reversal record did not compare to Sirica’s. The reason for the differing treatments was not to maximize public confidence in the circuit’s decisions—after the massively adverse pretrial publicity and Nixon’s resignation, the defendants were among the most loathed figures in America. It was to assure that there was no possibility of reversal on appeal as a result of Sirica’s bizarre actions in the trials below.

The en banc procedures were, in short, the direct result of the corruption of the judicial process in the D.C. Circuit that grew out of Cox’s secret meeting with Bazelon. That corruption taints every one of its decisions upholding Sirica’s questionable actions in the criminal trials below.

THE APPEALS

A closer examination of the appeals from Judge Sirica’s court to the D.C. Circuit shows how the Watergate defendants found themselves in a contest with their prosecutors that was rigged against them at every stage.

THE ATTEMPT TO REMOVE SIRICA AS TRIAL JUDGE

The defendants’ petition to remove John Sirica as the judge in the cover-up trial was the most important of the criminal matters heard on
appeal because it determined the trial’s venue, which was the central due-process issue. If the case remained Sirica’s, he would certainly keep it in D.C., ensuring that the defendants were tried before a District jury and that all appeals would go to the D.C. Circuit. If Sirica were replaced, the new judge might allow the trial to be moved to Baltimore or Richmond, giving the defendants a less biased judge and a less tainted and biased jury and sending appeals to the more conservative Fourth Circuit. But that’s not what happened.

On the very afternoon that the cover-up indictment was handed down by the grand jury—March 1, 1974—Chief Judge Sirica appointed himself to preside over that trial, as the defendants both feared and expected. Watergate was Sirica’s ticket to fame, and he was determined to occupy center stage.

Sirica was the defendant’s worst nightmare. This was the judge who had presided so aggressively over the break-in trial while repeatedly voicing his suspicions of a cover-up, who had provided prosecutors with a list of people he wanted brought before the grand jury, who had advocated the creation of a Senate investigative committee, and who had refused to avoid the public airing before that committee of accusations against the cover-up defendants prior to their trial. He had presided over a seventy-day evidentiary hearing on the White House tapes, which had so devastated the administration’s credibility. And lest anyone doubt Sirica’s starring role in the Watergate drama,
Time
magazine named him Man of the Year for 1973.

The defendants now faced a dilemma. They had to get out from under this judge to have any chance of getting a fair trial. But if they tried to have him removed and failed, Sirica’s hostility would be aggravated, and he would be all the more difficult to deal with at trial.

They decided to try to remove him, filing on April 10 a request that Sirica recuse himself because of his “unassailable personal bias in favor of the prosecution.” The defendants first asked that the question of Sirica’s removal be referred to the district court’s calendar committee, where the decision regarding a trial judge would be made independently by three other district court judges. Second, they requested an evidentiary
hearing to determine the nature and extent of Sirica’s ex parte meetings with prosecutors. The American Civil Liberties Union—rarely a supporter of Republican causes—filed an amicus curiae brief in support of the defendants’ motion for an evidentiary hearing.

The special prosecutor filed his brief in opposition to Sirica’s removal on April 26, calling the allegations against Sirica “scurrilous.” As expected, Sirica denied the motion on April 30. He would neither disqualify himself nor refer the question to the independent determination of the court’s calendar committee, and he would not tolerate an evidentiary panel to explore his ex parte contacts with prosecutors.

Sirica dismissed the allegation of personal bias for a single reason:

          
Every action, decision and comment of the court cited by defendants arose in the course of official judicial activity. Statements concerning the truth or falsity or completeness of testimony at the Liddy trial had their basis in the evidence adduced in court. They reflect, if anything, a judicial state of mind rather than a personal bias. An expressed belief that others might be involved, that a witness had not fully revealed facts known to him, that a defendant had not answered a question truthfully, that all pertinent facts had not been produced before the jury, that the Court had been right in asking questions and an expressed hope that other authorities might uncover all of the relevant facts, are matters that have their roots in the record then before the Court. Such is the case as well regarding encouragement that defendants, following conviction, cooperate with the grand jury and Senate Committee, acquainting the jury with testimony initially taken out of its presence, and the Court’s suggestion that certain persons be called before the grand jury as possible sources of additional information. If there be any indication of prejudice in such actions, and the Court perceives none, it is by no means personal as that term is used.

Sirica’s stunning assertion is that because every “action, decision and comment” that aroused suspicions of bias occurred in the regular course of court business, they do not affect the constitutional guarantee of a fair trial, which of necessity includes being tried before a fair and impartial judge. Sirica sets up a judicial Catch 22: As long as a judge is acting in his capacity as judge, then his judicial conduct cannot be questioned.

In his insouciance about his ex parte meetings with prosecutors, Sirica was relying on an exception to the rule against such meetings in the Code of Conduct for United States Judges: “A judge may . . . when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication.” Sirica’s view of this narrow exception for minor housekeeping matters was expansive, to say the least, and it begged the question that the requested evidentiary hearing would address: Did his ex parte communication with the prosecutors concern “substantive matters” or give an advantage to the prosecution? The judge simply asserted:

          
In regards to the Court’s meetings with Special Prosecution Force personnel, there are no relevant facts to be had. These proceedings included no discussion of evidence bearing on the guilt or innocence of any defendant in this case nor any discussion even remotely of the kind.

This breezy disavowal is similar to those of Clark Mollenhoff and Sam Dash with regard to their own ex parte meetings with Sirica. They may have met with the judge, but they were careful not to discuss any specific evidence in the case before him. Of course, this is not the standard set by the Code of Conduct for United States Judges. It does not say a judge may meet with anyone he chooses as long as he does not discuss specific evidence bearing on the guilt or innocence of defendants. It says there shall be no ex parte meetings.

Sirica also went out of his way to assert that he had acquired no information about the case from outside the courtroom itself: “The Court’s acquaintance with information perhaps pertinent to this case has in every instance flowed from court proceedings.
There has not been, nor is there alleged to have been, any extrajudicial source
” [emphasis added]. Regardless of the merits of Sirica’s legal arguments, this statement amounts to an admission that such events would be grounds for his removal if they had occurred. Sirica did not admit it at the time, but we now know of at least four such meetings in which he got information and advice from outside parties—namely, his secret ex parte meetings with Edward Bennett Williams, Clark Mollenhoff, Sam Dash, and Leon Jaworski.

CHANGE OF VENUE

It appeared to the defendants that Sirica had pre-judged the question of whether the trial should be removed from the District of Columbia. Sirica’s opinion summarized his comments that were the basis of the defendants’ concern:

          
The fourth category of allegations appearing in the affidavits also treats a single event: statements regarding fair trial made by the Court at the Circuit Judicial Conference in March of this year. Transcripts of the questions and answers, later televised, show that in response to the question, “Is there any doubt in your mind about these men’s [defendants at bar] abilities to get fair trials?” the Court stated, “I think they can get just as fair a trial in the District of Columbia as any federal court in the United States. I have no doubt about that. Thank you.” When the subject was raised again, the Court responded, “Well, in my opinion, any defendant, any person who happens to be a defendant in this jurisdiction, in my opinion can get just as fair a trial here as any jurisdiction in the country.”

In Sirica’s view, these statements were informal responses to questions at a lawyer’s conference that did not reflect his considered judicial opinion.
In the Alice-in-Wonderland world of the Watergate trials, the statement “I think they can get just as fair a trial in the District of Columbia as any federal court in the United States. I have no doubt about that,” did not indicate that the judge who said it had made up his mind on the issue.

APPEAL FROM SIRICA’S RULINGS ON RECUSAL AND VENUE

Five of the defendants filed a petition for a writ of mandamus with the D.C. Circuit on May 9, 1974, asking that court to remove Sirica from the cover-up trial. Their petition made three points:

          
1.
    
Sirica erred in holding that his alleged bias and prejudice were inconsequential because they “arose in the course of official judicial activity.” The defendants argued that the challenged activity “all occurred either in ex parte proceedings or in proceedings to which the present defendants were not parties.”

          
2.
    
Sirica failed to appreciate the disqualifying inconsistency between the judicial role he assigned himself and his role in developing the indictments to be tried in this case.

          
3.
    
In a situation that demanded every assurance of the most punctilious judicial neutrality, it was not enough for Sirica to consider only the minimal statutory prohibitions as he perceived them.