The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (33 page)

                   
So they, after they concluded all their questions and names and what have you, they went back and as just a flyer, Judge Sirica when he—in connection with the subpoena issue—hears part of the tapes and hears Chotiner’s name. He says to Silbert (Assistant United States Attorney conducting the Watergate investigation), I want these people subpoenaed and that’s Murray Chotiner and others. And Silbert says, well he’s been to the Grand Jury and this name has nothing to do with it. He (Sirica) has been calling about it ever since—subpoena. No sir. And he—we have no evidence against him. It’s become a matter of principle with us. We will not subpoena him. We have no reason to subpoena him. And Sirica wants us to subpoena him just I think for the hell of it.

                
Also troublesome is the existence of further ex parte contacts between Judge Sirica and the prosecutors, the details of which are unavailable to petitioners or to this court. Petitioners rely on newspaper accounts of at least two private meetings between Judge Sirica and the prosecutors. The opinion denying the motions for disqualification admits meetings with Special Prosecution Force personnel but asserts, “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.”

MacKinnon concludes this section with the observation:

          
These allegations suggest repeated ex parte contacts and affirmative investigative conduct by Judge Sirica. The facts developed at an evidentiary hearing may or may not support these allegations and their natural inference of bias in favor of the prosecution, but it is only fair, in order to satisfy not only the fact but the appearance of justice, that petitioners have an opportunity to explore these allegations at an evidentiary hearing.

Having explored the above issues, Judge MacKinnon concludes with the following observations.

          
In conclusion, I dissent from the majority’s summary disposition of this important en banc case without oral argument and without opinion. Moreover, I believe that petitioners have made a sufficient showing to require an evidentiary hearing concerning the number and nature of Judge Sirica’s ex parte contacts with the prosecutors. At the very least, Judge Sirica should recuse himself from ruling on the defendants’ motions for change of venue—an issue on which he has conveyed the appearance of prejudgment. Finally, I would strongly suggest that Judge Sirica refer to a disinterested panel the question whether the allegations of the affidavits charging judicial involvement in the prosecutorial process and prejudgment of material issues, which allegations cannot be contested, compel his disqualification. The Special Prosecutor and the American Civil Liberties Union concur in this latter suggestion.

But the majority’s action allowed Sirica to preside at the cover-up trial. One can only imagine how MacKinnon might have responded he had known of the other secret ex parte meetings with Sirica—with Edward Bennett Williams, with Clark Mollenhoff, with Sam Dash, and
the whole series of meetings with Leon Jaworski and his WSPF prosecutors.

THE APPEALS FROM THE BURGLARY CONVICTIONS

Each of the break-in defendants convicted in the first Watergate trial had exercised his automatic right of appeal to the D.C. Circuit. The basis for their individual appeals remains of interest even today.

Gordon Liddy’s appeal of his conviction on all counts was a frontal attack on Sirica’s conduct of that trial.
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Both Hunt
⁹
and the Cubans
¹⁰
had filed appeals seeking to withdraw the guilty pleas they had entered at the beginning of the trial, contending that they, like everyone else, had been duped by the people running the cover-up, who had improperly pressured them to enter guilty pleas in order to avoid further inquiry. McCord’s appeal combined both of these arguments and sought leniency in return for having written the letter that was credited with exposing the cover-up.
¹¹

Cox and his staff recognized that these appeals were not without merit, but it would not do for these defendants (the only ones convicted so far) to obtain reversals before those involved in the cover-up had even been indicted.

Fortunately for Cox, but not for the defendants, the court of appeals delayed any hearings on these appeals until June 14, 1974, a full eighteen months after the convictions. The court’s decisions, upholding each of the convictions, were not handed down until the fall, almost two full years after the burglary trial and in the midst of the cover-up trial.
¹²

THE APPEALS FROM THE COVER-UP CONVICTIONS

It could be argued that the cover-up defendants knew from the outset—at least once it was clear that their trial would be held before a District of Columbia jury and presided over by Sirica—that their convictions at trial were a foregone conclusion and that their only hope was an appeal claiming the essential elements of due process had not been observed in that trial.

The prosecution had gone into the cover-up trial believing it had a strong case on the facts, but the defendants had vigorously contested the prosecution’s interpretation of the evidence. The defendants’ case was well summarized in the WSPF’s appellate brief:

          
John Mitchell

                
In essence, Mitchell contended that he had not authorized Liddy’s intelligence-gathering plan, that he took no affirmative action in aid of the cover-up, and that he was made the “fall guy” by the White House.

                
He testified that he had rejected Liddy’s intelligence-gathering plans on three occasions and, therefore, believed that he had “turned off” the espionage operation. He also denied having received any fruits of Liddy’s operation. As to the cover-up, Mitchell denied suggesting to Mardian or anyone else that [Attorney General Richard] Kleindienst get the burglars out of jail; denied that CRP’s June 18 press release was intentionally misleading; denied that he ever suggested the destruction of documents; claimed that he disapproved using CRP money to pay bail for the burglars; denied having discussed use of the CIA either to raise funds or to hamper the FBI’s investigation; asserted that he rejected efforts to have him raise money for the Watergate burglars and had no knowledge of the details of payments to them; and swore that he had not advised Magruder to give false testimony to the grand jury and that he himself had not knowingly testified falsely. [WSPF reply brief, pp. 43–44, transcript citations omitted.]

                
H. R. Haldeman

                
The essence of Haldeman’s testimony was that he had no prior knowledge of the June 17 break-in or the CRP intelligence gathering process, that he had no intention of curtailing the FBI investigation or of silencing the burglars, and that he had no motive to engage in the criminal acts charged.

                
As to the question of advance knowledge, Haldeman insisted that he had not read Strachan’s report about CRP’s political espionage plans and denied having told Strachan to destroy any documents after the break-in. Concerning his tape recorded conversations with President Nixon on June 23, 1972 [the “smoking gun”] and March 21, 1973 [“cancer on the presidency”], Haldeman said that he had only reported information that he had received from others. His meeting with CIA representatives on June 23, he added, was not for the purpose of stifling the FBI’s Watergate investigation, but only to keep the FBI out of areas that might be politically embarrassing.

                
Regarding “hush money,” Haldeman admitted having known of payments to the break-in defendants and of Strachan’s delivery of the $350,000 fund to LaRue, but claimed that his understanding was that the money was for legal fees and living expenses. [pp. 45–46]

                
John Ehrlichman

                
Ehrlichman’s basic position was that, far from having conspired or endeavored to obstruct justice, he consistently had advocated full disclosure, but had been deceived by President Nixon, who thereby thwarted Ehrlichman’s efforts to get the facts out. He also denied prior knowledge of the Gemstone Plan, having ordered Hunt out of the country, having told Dean to “deep six” materials from Hunt’s safe, or having discussed with Dean using the CIA to pay the burglars. Although he—like Haldeman—admitted having contemporaneous knowledge of payments to the burglars, he claimed to have believed that the funds raised by Kalmbach were for legitimate attorneys’ fees. He further denied having suggested clemency for the burglars.

                
Finally, Ehrlichman denied that his connection with the Ellsberg break-in provided him with a motive to engage in the Watergate cover-up. Although he admitted having approved
a “covert operation” to secure Ellsberg’s psychiatric records from Dr. Fielding’s office on the condition that the venture not be traceable to the White House, Ehrlichman claimed that he had not contemplated the break-in which, he contended, was authorized and executed solely by his subordinates. [pp. 46–48]

The trial jury, however, had disagreed with the defendants down the line. Since they had been found guilty on all counts, any contested questions of fact were deemed to have been found in favor of the government. The only arguments available to the defendants on appeal were procedural ones: pretrial publicity prevented a fair trial, material evidence had been improperly admitted or turned away, a critical witness (the former president) was missing, and the judge did not give proper instructions to the jury on the law.

Since the appellate brief for each defendant was limited to 125 pages, the four appellants divided the task of arguing certain issues that applied to all of them. Thus, Haldeman’s brief made the lead arguments on prejudicial pretrial publicity, on challenges to the admission of the thirty-three White House tapes, and on Sirica’s jury instructions. Mitchell’s brief made the case that Sirica should not have presided over the trial and that his voir dire was inadequate. Ehrlichman’s brief took the lead on the issues of venue and on the prejudice resulting from the absence of Nixon’s testimony.

The defendants’ briefs were well argued. I have conveyed the basis for most of the procedural arguments advanced by the defendants on appeal in my earlier discussion of Sirica’s conduct of the cover-up trial and will not repeat them here. But the clash of the defendants’ points and authorities on these major issues with those of the WSPF reply brief—essentially adopted by in the appeals court’s opinion—reads like an exchange at the United Nations between competing factions—they aren’t communicating at all, just stating their opposing positions for the record. Besides, the court disregarded the defendants’ arguments as though they were unworthy of serious consideration.

Of course, each brief also advanced arguments unique to its particular defendant. Ehrlichman argued that he had been denied the ability to mount an effective defense because of restrictions on access to his own files, which had been retained by the White House upon his departure. Under procedures approved by the special prosecutor, he could review his files only in a small room on the first floor of the Old Executive Office Building, under the watchful eye of a Secret Service agent. He could not photocopy or even make notes. If he wanted to remember something, he had to go into an adjacent room and make notes from memory. His counsel was not allowed to accompany him and was forbidden entry into the White House compound. Ehrlichman (and others) could listen to tape recordings expected to be introduced at trial by WSPF prosecutors only during certain hours at WSPF offices. Even the transcripts prepared by the government were available for review only at WSPF offices, and they became available at all only shortly before trial was to begin. There was apparently no opportunity for any of the defendants to review tape recordings that had not been selected for introduction into evidence by the government.

Both Ehrlichman and Haldeman addressed their inability to call Nixon as a witness in the cover-up trial. When the trial began, the former president was hospitalized for phlebitis. He required surgery at the end of October and almost died from complications. Though he had been subpoenaed as a witness by the prosecution and the defense, his lengthy hospitalization made him unavailable to testify at the trial in Washington.

Ehrlichman claimed prejudice, asserting that Nixon would have testified that Ehrlichman had always been an advocate of full and prompt disclosure. This would have undermined the government’s contention that Ehrlichman’s motive for joining the conspiracy had been to prevent disclosure of the Plumbers’ break-in. Ehrlichman also claimed prejudice because he had been forced to mount his defense on the belief that Nixon would recover enough to appear as a witness or at least to be deposed in California, with his sworn testimony read to the jurors. When Sirica finally concluded that Nixon was not well enough to testify at all,
Ehrlichman had moved for a continuance until he had recovered. Sirica ruled that Nixon’s appearance was not critical to the defense, since the defendants could themselves testify as to what Nixon would have said. Ehrlichman countered that this violated his Fifth Amendment right not to testify, since he was being forced to take the stand in his own defense only because it had become clear that Nixon would not appear.

Haldeman claimed that without Nixon’s testimony, no proper foundation had been laid for the admission of the thirty-three White House tapes. There was no one to testify that Nixon had consented to be taped (a requirement for their legality) and no one to certify that a particular tape accurately reflected the conversation that had been recorded.