The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (9 page)

UPENDING CONVENTIONAL WISDOM REGARDING TWO KEY TAPES

Perhaps the most important of Dean’s revelations are his new conclusions about two key Watergate tapes that were discussed in chapter two, those of June 20 and June 23, 1972. These conversations occurred in the week immediately following the June 17 burglary arrests and have been cited again and again as “proof positive” of Nixon’s cover-up involvement.

The tape of June 20, 1972, contains the famous eighteen-and-a-half-minute gap in a conversation between Haldeman and Nixon, which caused such a furor when first disclosed. Haldeman’s own notes from the conversation contain the word “Watergate,” leading to the assumption that the break-in was the subject of the erased discussion. That’s a mistake, Dean maintains:

          
Haldeman’s note-taking procedures have been misunderstood; he did not make a record of or even cite the highlights of what was said at any given session but instead recorded only matters that called for further attention and follow up.
¹⁸

What was erased and who erased it? The answers to these questions, says Dean, “have virtually no historic significance whatsoever as they
provide no information about or insight into Watergate that cannot already be found in abundance elsewhere.”
¹⁹

Even more startling is Dean’s acknowledgment that the “smoking gun” tape of June 23, 1972, has been totally misunderstood from the outset:

          
When revealed by order of the U.S. Supreme Court in late July 1974, this became known as the “smoking gun” conversation, because it was viewed as hard evidence, demonstrating beyond question that Nixon’s final defense about the Watergate break-in in his April 30, 1973, speech, followed by his May 22nd statement, was bogus, which doomed the Nixon presidency. Ironically, this conversation has been mistakenly understood as an effort by Nixon and Haldeman to shut down the FBI’s entire Watergate investigation. This appears to be the case only when viewed out of context. In August 1974, when the conversation was revealed, and Nixon and his lawyers had to focus on this conversation, he had long forgotten what was actually involved; they assumed it had the same meaning as everyone else. In reality, it was only an effort by Haldeman to stop the FBI from investigating an anonymous campaign contribution from Mexico [by Democratic donors who wanted to keep their support confidential] that the Justice Department prosecutors had already agreed was outside the scope of the Watergate investigation. In approving this action, however, Nixon slightly expanded the request, saying that the FBI should also stay out of Howard Hunt’s CIA-related activities. In fact, this conversation did not put the lie to Nixon’s April 30 and May 22, 1973, statements, and had Nixon known that he might have survived its disclosure to fight another day. In short, the smoking gun was only firing blanks.
²⁰

Dean is correct. It was a misunderstanding by Nixon’s own lawyers that forced his resignation. I know that for a fact, because I was there when the lawyers reported their understanding of the substance of that tape.

To keep certain large campaign contributions by key Democrats from becoming public, the CRP converted those contributions into cash. Weeks later, this same cash ended up in the pockets of the Watergate burglars, even though the two events were not connected in any way. The White House effort to get the CIA to ask the FBI to not interview the two persons who had been conduits for the Democratic donors was motivated solely by the desire to keep their identities from becoming public.
²¹

The acknowledgment by Nixon’s principal accuser, forty years later, that the president’s forced resignation was the result of a mistake is stunning. The revelation leaves us searching for any serious presidential wrongdoing in Watergate. No less an opponent of Nixon than Ben Bradlee, the
Washington Post
’s executive editor at the time of the scandal, has admitted as much:

          
I mean the crime itself was really not a great deal. Had it not been for the Nixon resignation it would be really a blip in history. The Iran-Contra hearing was a much more significant violation of the democratic ethic than anything in Watergate.
²²

President Nixon’s alleged abuses of power seem trivial today, particularly in light of other presidential transgressions before and since. The Church Committee’s disclosures of governmental abuses of privacy stretching back to 1936, discussed in a subsequent chapter, show that the Nixon administration’s actions were hardly unique. And the epithet of “imperial presidency” that Nixon’s detractors attached to his administration seems laughable after the brazen executive overreach of the Obama administration.

FLAGRANT VIOLATIONS OF DUE PROCESS

From the perspective of the defendants, the greatest abuse in the Watergate prosecution was the systematic denial of their constitutionally guaranteed rights to due process of law. For these accused men, the hope of a fair trial evaporated as the government’s prosecution became a mockery of justice.

Should federal criminal charges be brought against you—never a good thing—the case would be styled
United States v. [Your Name Here]
. Against the awesome power and authority of the federal government, with its legions of lawyers, seemingly unlimited funds, and inherent credibility, all a defendant has is his own lawyer—and the Fifth and Sixth Amendments.

The Fifth Amendment provides, in pertinent part, “No person’s life, liberty or property shall be taken without due process of law.” The Sixth Amendment, addressing criminal prosecutions, provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.”

The right to a full and fair trial—derived from English common law and the product of countless procedural refinements—is at the very center of our judicial system. Indeed, the Supreme Court has described the right to a fair trial as “the most fundamental of all freedoms,” which “must be maintained at all costs.”
²³

Justice Robert Jackson made a telling point in 1953 when he observed:

          
Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
²⁴

Fundamental requirements designed to assure a fair trial have also been enshrined in applicable codes of professional conduct, for judges and lawyers alike.

For purposes of our review of the Watergate trials, the constitutional guarantees envision, at a minimum: (1) a public trial with the right to confront and cross-examine one’s accusers, (2) presided over by a fair and impartial trial judge, (3) with the government’s case presented by nonpartisan prosecutors, subject to uniformly applied rules of conduct, (4) whose verdict is rendered by an untainted and unbiased jury of one’s peers, followed by (5) the right to a fair and impartial appellate review. These are not esoteric concepts requiring careful scrutiny to understand or appreciate. They are fundamental rights that most Americans understand and take for granted. Let us examine each of them in more detail.

(1)
A public trial with the right to confront and cross-examine one’s accusers
. This is one of the very foundations of our concept of justice—assuring that we are not tried outside of public view or on charges brought by secret accusers. It also is an acknowledgment of the vital importance to be played by a free and vigorous press. This right assures the public that justice is being done and ensures that defendants are fully informed of the source and rationale of the accusations raised against them—and that a proper record is kept for an appeal.

The right to confront one’s accusers is absolute—and the ability to cross-examine them under oath has been characterized as the greatest engine of truth-finding in our adversarial system of justice.

          
In the Anglo-American adversary system, the parties to a dispute, or their advocates, square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and to present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict.

                
In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision.
²⁵

The Sixth Amendment’s express requirement that the defendant “be confronted with the witnesses against him” is the basis for excluding hearsay testimony, that is, testimony in which the witness repeats what another person, not testifying himself, has said. For example, to prove that the defendant was in town, Jack may not testify, “Jill told me that the defendant was in town.” The defendant’s lawyer cannot cross-examine Jill, who is not a witness under oath. If the prosecution wants to get Jill’s statement into evidence, it must put Jill herself on the stand. There are at least sixty-four exceptions to the rule banning hearsay testimony, one of which is for statements made by co-conspirators. As we will see later, prosecutors in important cases frequently include co-conspiracy charges so that they can take advantage of this exception to the hearsay rule.

(2)
Presided over by a fair and impartial trial judge
. The judge is not a participant in the trial, favoring one side or the other, and should have no personal stake in the trial’s outcome. The Code of Conduct for Federal Judges states, “A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.”
²⁶
An important part of maintaining his impartiality is the way a judge communicates with parties to the case before him. The code of conduct forbids “ex parte” meetings—that is, meetings with interested parties outside the presence of counsel for both sides: “A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law. [A] judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers.”
²⁷

The code admonishes judges not to become public figures: “A judge should not make public comment on the merits of a matter pending or impending in any court.”
²⁸

To protect judges from undue temptation, the District of Columbia Code of Professional Ethics states, “It is professional misconduct for a lawyer to . . . [k]nowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law.”
²⁹

(3)
With the government’s case presented by nonpartisan prosecutors, subject to uniformly applied rules of conduct
. At stake here is the even-handed enforcement of the laws and the avoidance of selective prosecution—in other words, “equal justice under law.” Prosecutors are not supposed to dust off laws which haven’t been enforced for decades or bring charges under entirely novel interpretations in order to “get” particular parties they don’t like.

(4)
Whose verdict is decided by an untainted and unbiased jury of one’s peers
. The right to a jury trial is also one of the hallmarks of our system of justice and specifically enshrined in the Sixth Amendment. Historically, a jury of one’s peers at common law was composed of the defendant’s neighbors, people who had known him all his life. This safeguard was seen as a protection from being unjustly accused by the king’s distant enforcers. Today, jurors are still expected to represent the community’s interest in resisting overzealous prosecutions, but they will be promptly excused if they actually know anyone involved in the trial. Their impartiality must not have been tainted by pretrial publicity, and they must be free of racial, political, and other prejudices against the defendant. They must learn the facts of the case from evidence presented in court and not from outside sources.

(5)
The right to a fair and impartial appellate review
. Every defendant convicted of a federal crime has an automatic and guaranteed right to an appeal, to a full and fair review of all aspects of his trial. These appeals are typically heard before a panel of three circuit court judges. An accurate record of all of the proceedings below is required to be kept for this purpose.