The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (43 page)

1
.
     
John Dean,
Blind Ambition
(New York: Simon and Schuster, 1976), 377–78.

2
.
     
Bob Woodward and Scott Armstrong,
The Brethren: Inside the Supreme Court
(New York: Simon and Schuster, 1979), 234.

3
.
     
With more potential jurors dismissed for hardship than were in the pool to be further examined, the defense maintained on appeal—albeit in
vain—that the remaining jury pool was not representative of the community. See Mitchell appellate brief, 69.

4
.
     
In fact, juror No. 6 admitted after her selection to having written several letters—one of which went to the Ervin Committee—decrying the moral tone of the United States and offering “Watergate” as an example of what was wrong with the country. Judge Sirica found her to be an interested student of Watergate, but refused to dismiss her from the jury. See Ehrlichman appellate brief, 74.

5
.
     
Mitchell appellate brief, 116.

6
.
     
The combination of the first and last procedural rules would have allowed the government to remove a neutral juror and replace him with what the defendants’ felt was a decidedly pro-prosecution juror, so they did not exercise their final two challenges. See Mitchell appellate brief, 116–18.

7
.
     
Richard Ben-Veniste and George Frampton,
Stonewall: The Real Story of the Watergate Prosecution
(New York: Simon and Schuster, 1977), 327.

8
.
     
United States v. Haldeman
, 559 F.2d 31 (1976), MacKinnon dissenting.

CHAPTER NINE: THE AUTOMATIC RIGHT TO AN APPEAL

1
.
     
Kim Isaac Eisler,
A Justice for All: William J. Brennan and the Decisions that Transformed America
(New York: Simon and Schuster, 1982), 202–4.

2
.
     
David Bazelon,
Questioning Authority: Justice and Criminal Law
(New York: Alfred A. Knopf, 1988), 139.

3
.
     
The definitive article on the en banc procedure and the extreme rarity of its use was written by D.C. Circuit Court Judge Douglas Ginsburg, who went on to become that circuit’s chief judge. See Douglas H. Ginsburg and Donald Falk,
The Court En Banc: 1981–1990
, 59 G
EO
. W
ASH
. L. R
EV
. 1008 (1991). Interestingly, Ginsburg’s law school roommate was Ronald Carr.

4
.
     
The one case that was reversed,
United States v. Mardian
, 546 F.2d 973 (1976), seems perfectly understandable. Mardian’s lawyer fell ill less than two weeks into the trial, but Judge Sirica had demanded he continue to stand trial with the rest of the defendants. This was too much even for the liberal bloc, who reversed his conviction and remanded for a new trial.
But Mardian was small beer. A senior official at CRP, he was in on the cover-up from its outset but went home to California after only a month. The special prosecutor ultimately decided not to retry him at all.

5
.
     
The author believes this was the most critical effort by the defendants to assert their due process rights, not only because of the issues that were raised at the time, but because they clearly suspected there had been collusion between Judge Sirica and WSPF prosecutors. As such, the circumstances are worth close and careful examination.

6
.
     
George V. Higgins,
The Friends of Richard Nixon
(Boston: Little, Brown and Co., 1975), 255.

7
.
     
Mitchell v. Sirica
, MacKinnon dissent.

8
.
     
United States v. Liddy
, 509 F.2d 428 (D.C. Cir. 1974).

9
.
     
United States v. Hunt
, 514 F.2d 270 (D.C. Cir. 1974).

10
.
   
United States v. Barker
, 514 F.2d 508 (D.C. Cir. 1975).

11
.
   
United States v. McCord
, 509 F.2d 334 (D.C. Cir. 1974).

12
.
   
I again refer readers to the excellent law review article by Professor Anthony Gaughan, cited in Chapter 6, that details the series of due process violations in the burglary trial: “Watergate, Judge Sirica and the Rule of Law,” 42 McGeorge L. Rev. 343, 2010–2011.

13
.
   
United States v. Haldeman
, 559 F.2d 31 (D.C. Cir. 1976).

14
.
   
United States v. Haldeman
, cert. denied, 431 U.S. 933 (1977).

15
.
   
Vanity Fair
, January 1992,
http://www.bardachreports.com/articles/v_19920100.html
.

CHAPTER TEN: SO WHAT?

1
.
     
Hamann, Jack,
On American Soil, How Justice Became a Casualty of World War II
(Chapel Hill, NC: Algonquin Books of Chapel Hill, 2005).

2
.
     
The district court’s order that the special prosecutor’s report be made public can be read at
http://www.emptywheel.net/wp-content/uploads/2012/02/120208-Sullivan-Stevens-Order.pdf
.

3
.
     
John A. Farrell,
Tip O’Neill and the Democratic Century
(Boston: Little, Brown and Company, 2001), chapter 14, “Watergate.”

4
.
     
Taken from copy of NPR transcript contained in Jaworski’s confidential Watergate files at Archives II.

ANNOTATED BIBLIOGRAPHY

FOR SERIOUS STUDENTS OF WATERGATE

T
here are hundreds of books about Watergate, but nothing published to date can be called objective. The intensity of the scandal’s political nature prevents that—and new disclosures undermine previous analysis.

The full list of books that I own and consulted during the course of my research are listed on my website:
http://geoffshepard.com/bibliography.html
.

The following are the works that I found most helpful in filling out my own understanding of the Watergate scandal.

CHRONOLOGY OF PUBLIC DISCLOSURE

Watergate: Chronology of a Crisis.
Congressional Quarterly (1975). Beginning with the Ervin Committee’s formation, CQ issued a weekly
compilation of Watergate’s public developments, which continued through the cover-up verdicts. A true chronology, it is an ideal source for researching the unfolding of the scandal in real time. It thoroughly answers the question, “What did the public know and when did it know it?” The master index is an invaluable resource.

THE
REAL
HORROR STORY

Senate Select Committee to Study Government Operations with respect to Intelligence Activities.
Book II: The Growth of Domestic Intelligence, 1936 to 1976.
Government Printing Office (1976). One of the Watergate reform initiatives, the committee chaired by Senator Frank Church (D-Idaho), investigated governmental invasions of privacy stretching back four decades. If someone was labeled a “subversive”—whether a suspected German or Communist sympathizer, a civil rights agitator, or an opponent of the Vietnam War—his basic rights were shredded in the name of national security. The Church Committee’s report, written by Democrats trying desperately to down play their own misdeeds, demonstrates the hypocrisy behind the prosecution of Ehrlichman for the Plumbers’ break-in and of the Watergate prosecution as a whole. Here is a link to the electronic version:
http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf
.

My own analysis of the committee’s sworn testimony concerning FBI conduct in the Kennedy and Johnson administrations, as well as that testimony itself, is available at my website:
http://geoffshepard.com/churchcommittee.html
.

THE VICTORS

The victors and their progeny have had a field day writing self-congratulatory books. They also contain the most tantalizing admissions against interest, if read with a critical eye. (Arranged by date of publication).

Bernstein, Carl, and Bob Woodward.
All the President’s Men
. New
York: Simon and Schuster, 1974.

Supposedly, Robert Redford approached these authors with the idea for a movie and urged them to do a book first about their roles as reporters. Interestingly, there is no indication in their book of where “Deep Throat” might be employed.

Sussman, Barry.
The Great Cover-up: Nixon and the Scandal of Watergate: The First Complete Account from Break-in to Resignation
. New York: Thomas Y. Crowell Company, 1974.

Sussman was Woodward and Bernstein’s editor at the
Post
and played a huge role in the paper’s Watergate coverage, but he was written out of
All the President’s Men
. Fame can be fickle.

Bernstein, Carl, and Bob Woodward.
The Final Days
. New York: Simon and Schuster, 1976.

As became their habit, the authors tend to favor and protect their sources and punish those who decline to cooperate. As such, their rendition of the collapse of the Nixon presidency is rather biased and surprisingly uninformed.

Dean, John.
Blind Ambition.
New York: Simon and Schuster, 1976.

As the lead prosecution witness, Dean has been classified with the victors. In later depositions, Dean disowned much of this book’s narrative and swore that it was an invention of his ghostwriter, Taylor Branch.

Dash, Samuel.
Chief Counsel: Inside the Ervin Committee—The Untold Story of Watergate.
New York: Random House, 1976.

Contains a lot of behind-the-scenes material on how the committee investigations were conducted. In later interviews, Dash bragged about having orchestrated the hearings and supplying questions to individual senators. In essence, the hearings were scripted for their TV audience.

Mollenhoff, Clark R.
Game Plan for Disaster: An Ombudsman’s Report on the Nixon Years
. New York: Norton and Company, 1976.

Mollenhoff was ombudsman for ten months in the Nixon White House but left in frustration and became Nixon’s fiercest journalistic critic. This is his dance on Nixon’s grave.

All the President’s Men: The Movie
. Burbank, CA: Warner Bros., 1976.

Unlike the book, the movie strongly (and erroneously) indicates that “Deep Throat” was a member of Nixon’s White House staff.

Ben-Veniste, Richard, and George Frampton Jr.
Stonewall: The Real Story of the Watergate Prosecution.
New York: Simon and Schuster, 1977.

The authors were members of the Watergate Task Force, who prosecuted the cover-up trial.

Doyle, James.
Not above the Law: The Battles of Watergate Prosecutors Cox and Jaworski.
New York: William Morrow and Company, 1977.

Doyle was director of media relations for the special prosecutor. Not being a lawyer, he makes a number of interesting disclosures, especially regarding how they worked the media—and used the media to work Jaworski.

Jaworski, Leon.
The Right and the Power: The Prosecutions of Watergate.
New York: Reader’s Digest Press, 1977.

Jaworski replaced Cox as special prosecutor. One suspects the revealing memos in his confidential files were prepared in anticipation of writing this book.

Sirica, John J.
To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the Pardon.
New York: W. W. Norton and Company, 1979.

Judge Sirica presided over both the burglary and the cover-up trials. His early drafts are a part of his papers at the Library of Congress.

Ervin Jr., Sam.
The Whole Truth: The Watergate Conspiracy.
New York: Random House, 1980.

Ervin chaired the Senate Watergate Committee but was eighty-four when this book was published. One can question whether he did much of its actual drafting.

Mollenhoff, Clark R.
Investigative Reporting
. New York: Macmilllan Publishing Co., 1981.

One can get a more complete picture of the role that Mollenhoff played in Watergate by combining this book’s disclosures with those of his prior book. It also is instructive to compare his chapter on Nixon with the preceding one on Lyndon Johnson. One wonders just who was the bigger crook.

Eisler, Kim Isaac.
A Justice for All: William J. Brennan and the Decisions That Transformed America.
New York: Simon and Schuster, 1993.

A biased but interesting insider’s view of Brennan’s influence on Judge Bazelon and on the writing of the Supreme Court opinion in
United States v. Nixon
.

Brian Lapping Associates.
Watergate
. Volume One:
A Third-Rate Burglary
; Volume Two:
The Conspiracy Crumbles
; Volume Three:
The Fall of a President
.

Video series aired on the Discovery Channel and BBC (1994). Their interview of Dean’s lawyer, Charles Shaffer, reveals his brilliant tactics in preparing his client for the Ervin Committee hearings.

Merrill, William H.
Watergate Prosecutor
. East Lansing, MI: Michigan State University Press, 2008.