The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (6 page)

Working as an assistant U.S. attorney in the District of Columbia during the Prohibition, Sirica lost each of his first seventeen prosecutions. It has been suggested that this may have been intentional, since his father (with whom he lived) was secretly peddling liquor from his barber shop. With the repeal of Prohibition, Sirica returned to private practice, later recalling it as his “period of starvation.” His situation improved dramatically after he joined the Washington law firm of Hogan & Hartson at the behest of his career mentor, the prominent Democrat and trial lawyer Edward Bennett Williams.

President Eisenhower appointed Sirica to the federal District Court in 1957. Feisty and argumentative on the bench, Sirica earned the nickname “Maximum John” because of his harsh sentencing, and his lack of respect for defendants’ rights made him one of the most frequently reversed judges in the D.C. Circuit. By operation of seniority he became chief judge in 1971, a position he would have to relinquish on his seventieth birthday—less than three years away—on March 19, 1974.

Sirica became convinced that he alone could thwart the cover-up and bring Nixon and his top aides to justice—
his
justice and in
his
courtroom. He assumed for himself the combined roles of Prud’hon’s Vengeance and Divine Justice, rather than that of blindfolded Lady
Justice, impartially presiding over trials in which it was the jury’s job to weigh the evidence. The actions and initiatives of this arrogant jurist are the key to understanding how the defendants’ constitutional rights were so thoroughly disregarded throughout the scandal.

When President Truman appointed forty-year-old David Bazelon
²
to the court of appeals for the D.C. Circuit in 1949, he became the youngest judge ever to sit on that powerful bench. Bazelon had been an assistant U.S. attorney in Illinois and then an assistant attorney general at the Department of Justice at the very time that Congressman Nixon was ravaging Truman and his administration over the Alger Hiss scandal. Bazelon became chief judge of his court—like Sirica, merely by operation of seniority—in 1962.

Bazelon was a relentlessly liberal and highly influential judge on the second-most important court in the country. He was also the best friend of Justice William Brennan, who had replaced Earl Warren as the leader of the Supreme Court’s liberal bloc. The two judges socialized two or three times each week and invested together in real estate ventures. Aspiring liberal lawyers knew that the ideal career path began with a clerkship for Judge Bazelon, followed by a clerkship with Justice Brennan, culminating with a position on the Senate staff of Edward Kennedy.

Bazelon improperly conspired with Watergate prosecutors to stack the appellate panels to assure that Sirica’s bizarre judicial conduct did not result in any reversals on appeal.

Professor Archibald Cox,
³
the original special prosecutor, came from an exceptionally distinguished legal background. After graduating from Harvard College in 1934 and from Harvard Law School in 1937, he clerked for Judge Learned Hand of the Second Circuit and joined the Harvard Law School faculty shortly after World War II. A lifelong Democrat and a friend of John Kennedy since the 1950s, Cox traveled with the candidate and served as his speechwriter and advisor during the 1960 presidential campaign. Cox went on to serve as solicitor general at the Department of Justice under Robert Kennedy. After his return to Harvard, he acted as an informal advisor to Edward Kennedy as the
senator emerged from his Chappaquiddick scandal to lead the opposition to President Nixon’s first-term Supreme Court nominations.

Distinguished, erudite, and professorial, Cox was the ideal figure to preside over the legal assault on the Nixon presidency, though at sixty-one he was already losing his hearing and showing his age. After only six months as special prosecutor, he was fired in what is known as the “Saturday Night Massacre” of October 20, 1973. But six months was enough time for him to staff the WSPF with equally ardent liberal Democrats. Indeed, six of his seven top assistants had served with him in Robert Kennedy’s Department of Justice, and after Cox’s departure the Watergate prosecution continued along the lines he had established.

In targeting specific Nixon aides for investigation and prosecution, Cox allowed partisan politics to undermine equal protection of the laws. He also became so worried that Sirica’s judicial antics constituted reversible error that he secretly approached Judge Bazelon with a remedial plan.

Leon Jaworski was appointed as Cox’s successor as special prosecutor in November 1973. He had undertaken special assignments for the Kennedy Department of Justice but was really a Southern Democrat and a confidant of Lyndon Johnson. A graduate of Baylor Law School in Waco, Texas, Jaworski had served as a prosecutor at the Nuremberg trials following World War II. He later joined the firm that became Fulbright & Jaworski in Houston, which he led to national prominence, and served as president of the American Bar Association.

There are indications of considerable tension and mistrust between Jaworski and the attorneys recruited by his predecessor, who prided themselves as “Cox’s Army” and were intent on retaliating for their leader’s abrupt removal. Jaworski, it seemed, had a tiger by the tail. Unable to gain control over the intense partisanship of the special prosecutor’s office, he exercised only minimal influence—and certainly not leadership—over the investigations already well underway when he arrived. Jaworski’s one-year tenure included the successful litigation over access to the White House tape recordings, the indictment of the
president’s senior aides for the Watergate cover-up, and the resignation and subsequent pardon of Nixon.

When Jaworski resigned and returned to Texas in October 1974, shortly after the beginning of the cover-up trial, he took all of his confidential Watergate files with him, effectively preventing any scholarly access to them for almost four decades.
⁴
Those files, recently opened at my behest, reveal a series of secret meetings with Judge Sirica and raise troubling questions about how the subjects of the comprehensive indictment for the Watergate cover-up were selected. In hindsight, Jaworski’s indictments look like a preview of the prosecutorial abuse that has become a tradition in Texas, where the political weapon of a baseless but highly publicized indictment has been turned on three prominent Republicans—Senator Kay Bailey Hutchison, House Majority Leader Tom DeLay, and Governor Rick Perry.

John Dean,
⁵
the principal government witness in the cover-up trial, had become counsel to the president despite his thin experience as a lawyer, an undistinguished academic record, and a surprising number of false starts early in his career. For reasons that remain unclear, Dean repeatedly transferred (and at somewhat odd times) from one school to another; he did not graduate from the high school, college, or graduate school in which he had originally enrolled. Dean also had been summarily fired after only six months from his first and only job in private practice—at a boutique law firm specializing in broadcast licensing—for what was described as unethical conduct.

After this inauspicious beginning, however, Dean had enjoyed a meteoric rise as a young Washington lawyer, beginning with a post as a minority counsel for the House Judiciary Committee. In the new Nixon administration, Dean was appointed associate deputy attorney general for legislation at the Department of Justice and then named counsel to the president in June 1970. In the latter capacity he became involved in domestic intelligence issues and recruited Gordon Liddy to prepare a campaign intelligence plan for CRP.

In the course of his work with Liddy, Dean had attended two meetings in the attorney general’s office in which Liddy’s illegal campaign
proposals were described and discussed. When the Watergate burglars were caught, therefore, Dean found himself in serious risk of prosecution. He quickly became, in his own words, “chief desk officer” for the ensuing cover-up, coordinating efforts to thwart the FBI and grand jury investigations that followed. He instigated and oversaw payments of money to the burglary defendants and their lawyers, sat in on all FBI interviews of White House personnel, and coordinated the administration’s overall Watergate defense.

In addition to obstruction of justice, Dean committed a series of other distinctly criminal acts. He twice helped to rehearse Magruder for his perjured testimony before the grand jury, he obtained and improperly shared government investigatory information with the Watergate defense counsel, he destroyed evidence that had been removed from Howard Hunt’s White House safe, and he embezzled campaign funds stored in his office safe, supposedly to pay for his honeymoon.

When the cover-up collapsed, Dean was the first to approach prosecutors to seek immunity for testimony against his former colleagues—a course of action that worked out well for him. Dean’s testimony that he had undertaken these and other criminal acts at the direction and under the control of Nixon’s principal aides—Mitchell, Haldeman, and Ehrlichman—resulted in their convictions. Recently uncovered documents show, however, that Dean’s recollections changed over the course of his meetings with prosecutors and that clearly exculpatory information about what he had shared with prosecutors was kept from Watergate defense counsel.

Now a successful author and television commentator and inevitably introduced as the former counsel to the president, Dean is a convicted felon, having been sentenced to a prison term of one to four years and disbarred from the practice of law for his role in Watergate.

Let’s see how these key players fit into the overall Watergate picture.

WATERGATE: THE CONVENTIONAL VIEW

After more than four decades of repetition in the media, the view of Richard Nixon and his administration as uniquely wicked and corrupt
has hardened into unassailable orthodoxy, making it difficult to understand how a third-rate burglary, in which five culprits were caught red-handed, culminated in the only presidential resignation in American history and the imprisonment of twenty of his associates. This disastrous scandal has been the subject of dozens, if not hundreds, of books, but our understanding of Watergate has evolved considerably since Carl Bernstein and Bob Woodward launched the genre with
All the President’s Men
in 1974.

Sometimes the scandal seems like a kaleidoscope. What seemed like a settled image is suddenly changed into an entirely new picture by new information or events. Howard Hunt was excoriated for drafting false cables suggesting President Kennedy was complicit in the 1963 coup against Vietnam president Ngo Dinh Diem, but a 2009 book by John Prados documents this complicity.
⁶
The eighteen-and-a-half-minute gap was a cause célèbre when first disclosed but was recently dismissed by John Dean as “historically insignificant.”
⁷
Virtually all of the abuse of power allegations against the Nixon administration turn out to be little different from those of prior administrations stretching back to 1936.
⁸
The release of the “smoking gun” tape led directly to President Nixon’s resignation, but that conversation, misinterpreted by Nixon and his defense lawyers, is now understood to have had no connection to Watergate.
⁹

What follows is an overview of the conventional wisdom, which is the necessary background for the new and rather exciting developments in Watergate scholarship.

THE AMBIGUITIES OF “COVERT” AND “CONTAIN”

At the core of Watergate is the essential ambiguity of just two words,
covert
and
contain
. We will see how different meanings given to these words in conversations between White House colleagues led to dramatically different perceptions of what was authorized and intended.

First, “covert”: Is a covert operation necessarily an illegal one? Apparently not. The
Defense Dictionary of Military and Associated Terms
, published by the Department of Defense, defines a covert
operation as “an operation that is so planned and executed as to conceal the identity of or permit plausible denial by the sponsor.” Unless an exception is made by the president, only the CIA is authorized under U.S. law to carry out international covert operations. A covert operation is intended to have a desirable political effect but without anyone knowing who was behind it.

Following the publication in 1972 of the classified Pentagon Papers in the
New York Times
, a Special Investigations unit was formed within the White House to ferret out and prevent further leaks. Soon known as the Plumbers, it proposed a covert operation to find out if Daniel Ellsberg, the leaker of the Pentagon Papers, had informed his psychiatrist, Dr. Lewis Fielding, of his intentions regarding the fifty-four thousand other pages of classified materials to which he had access. Ehrlichman approved a covert operation (without further definition) before the Plumbers even knew that Cubans, who previously had worked with Hunt on the Bay of Pigs fiasco, would be retained to carry it out. Did that mean he was criminally responsible for their subsequent break-in at Fielding’s office, which was orchestrated by Howard Hunt and Gordon Liddy? According to the WSPF, keeping the Fielding break-in, which was undertaken for national security purposes, a secret was a primary motive of the Watergate cover-up.

As for “contain,” did the White House initiative to contain the political fallout from the Watergate burglary of the DNC offices countenance the multitude of criminal acts committed in the course of the cover-up?

Every day, lawyers defend people accused of criminal acts without themselves violating the law. Was it reasonable for Dean’s supervisors to assume that he was simply fulfilling that lawyerly function as he worked full-time on containing the Watergate problem to the CRP staff, who were seen as the only ones at risk?