The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (17 page)

There was no public acknowledgment of the Frampton Supposition’s demise, however. It was as though WSPF prosecutors hoped that no one would remember their long-maintained theory of presidential involvement, which they had so forcefully conveyed to the grand jury, had made the basis for the Road Map and for naming Nixon as an unindicted co-conspirator, and had conveyed to the House Judiciary staff as the determining factor in Nixon’s impeachment. The Frampton Supposition, which had driven the prosecutors’ concerted effort to convince the government’s witnesses to change their recollections at the cover-up trial, vanished without a trace—until now.

CONCLUSIONS AND IMPLICATIONS

Much new information has come to light since Nixon’s resignation.

We now know that the smoking gun tape has been totally misunderstood, that it did not reveal any criminal interference with the FBI’s Watergate investigation, and that it should not have forced the president’s resignation.

We also now know that the moving force behind the House Judiciary Committee’s first article of impeachment, the WSPF prosecutor’s secret and adamant assurance that they had proof of Nixon’s own personal involvement in directing the final payoff to Howard Hunt, turned out to be unsupportable.

America lost a great president when Nixon was forced from office. The damage to our nation, wreaked by prosecutorial excess and judicial malfeasance, is now clear for all to see. Let us now turn our attention to how the same sort of judicial and prosecutorial improprieties denied Nixon’s senior aides their constitutional right to a fair trial through systematic violations of the due process of law.

PART IV

DENYING DUE PROCESS TO THE WATERGATE DEFENDANTS

W
e have already identified the essential elements of due process denied to Mitchell, Haldeman, and Ehrlichman during the cover-up trial. The next four chapters consider these elements in greater detail. Any one of these abuses, had it been known at the time, might well have been sufficient grounds for overturning the verdicts.

CHAPTER 6

A FAIR AND IMPARTIAL TRIAL JUDGE

T
he independence of the judiciary from the influence of the executive was codified in England by the Act of Settlement of 1701. The Founding Fathers made an independent judiciary part of the basic architecture of the government of the United States, establishing the judiciary in Article III of the Constitution as one of the three co-equal branches of government. One of the purposes of this independence is to assure that judges can preside over trials without being unduly influenced by prosecutors.

In the Watergate trials, however, Judge John Sirica effectively joined the prosecution, combining the roles of vengeance and justice in one man. This is the very definition of tyranny and a subversion of the Anglo-American adversarial tradition. The system—reassurances from Carl Bernstein and Leon Jaworski notwithstanding—did not work.

A JUDICIAL INQUISITION: SIRICA’S CONDUCT OF THE BREAK-IN TRIAL

Sirica’s conduct of the original Watergate break-in trial was controversial, largely indefensible, and roundly criticized at the time. Among his severest critics was the journalist and lawyer Renata Adler, a former staff member of the House Judiciary Committee’s impeachment inquiry:

          
A judge, after all, is not meant to be a hero. And judges, under the Constitution, are not meant to ascertain, least of all to prosecute or to coerce by sentencing, the “truth,” “for the American people,” or even for the jury. They are to preside fairly, under the adversary system, over cases presented to them by lawyers for the plaintiffs and the defendants before them. Anything else, whether it is posturing for the media, or coercing defendants with outrageous “provisional sentences”, or working on behalf of some party not before the court, undermines the system. Far from demonstrating that “no man is above the law,” it suggests that the judge himself is above it. We do not, under the Constitution, have a system wherein judges are inquisitors.
¹

Anglo-American criminal justice is based on the adversarial system, in which the judge does not investigate the facts himself but acts as an impartial referee between the prosecution and the defense. Each side makes its case to the jury, which determines questions of fact. In the inquisitorial system of the Continental legal tradition, the judge himself conducts the investigation of the facts. Sirica not only acted as an inquisitor by intruding himself into the investigation, as Adler charged; he went further and took the part of the prosecution.

Sirica refused to accept plea bargains that Hunt and the Cubans had reached with federal prosecutors, demanding that they plead guilty to each and every charge brought against them. His justification for that decision was that he was certain of their guilt—somehow having achieved
that certainty on the first day of trial before any evidence had been presented.

He cross-examined witnesses in front of the jury, urging them to provide a fuller story and to implicate others. He publicly criticized the prosecution for not aggressively pursuing other possible defendants. At the trial’s conclusion, he announced his frustration in not having uncovered the real story, the “truth” as he characterized it, and called for a Senate investigation. He even went so far as to demand that the prosecution bring before the grand jury a list of persons who he believed must know more about the scandal than had come out in his courtroom. His provisional sentences of up to thirty-five years for first-time burglary convictions remain a classic example of judicial excess.
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SIRICA’S OPEN-DOOR POLICY: PRIVATE MEETINGS WITH INTERESTED PARTIES

Sirica’s prejudicial conduct as trial judge was even worse than anyone knew at the time. He held a series of private meetings with outside parties with interests adverse to the defendants before him in the burglary trial and those who would come before him in the cover-up trial. It was as though anyone with an anti-Nixon interest in Watergate owed it to himself to drop by and discuss the matter with the judge. His door was always open to secret meetings with people on that side of the political battle. Four sets of such meetings have come to light since the break-in trial.

Ex Parte Meetings with Edward Bennett Williams

Edward Bennett Williams (1920–1988)
³
was born and raised in Hartford, Connecticut, in modest circumstances. He attended Holy Cross College on an academic scholarship but really came into his own at Georgetown University Law School, where he was an outstanding student. Upon graduating in 1944, he was hired into the eighteen-man law firm of Hogan & Hartson, he stayed four years before leaving to form his own trial firm, which survives today as Williams & Connolly.

Williams became known as the best and most aggressive criminal defense lawyer on the East Coast, if not in the country. Over the course of his forty-four-year career, he represented an amazing cross section of the prominent and the powerful of both parties. His clients included Teamsters presidents Dave Beck and Jimmy Hoffa, on corruption charges; Treasury Secretary John Connally, on Watergate-related bribery charges; Mafia kingpin Frank Costello, on racketeering charges; Bernard Goldfine, whose gift of a vicuna coat had cost Eisenhower’s chief of staff, Sherman Adams, his job; CIA Director Richard Helms, on charges of lying in congressional testimony; Senator Joe McCarthy, who was censured by the Senate; Congressman Adam Clayton Powell, the controversial and flamboyant New Yorker who was expelled from Congress; New York Yankees owner George Steinbrenner, on Watergate-related campaign finance charges; and Robert Vesco, who was indicted with John Mitchell and Maurice Stans on Watergate-related campaign finance charges.

This hugely successful attorney cast a long shadow in Democratic political circles, especially as a frequent advisor to President Johnson. At the same time, Williams was an owner of the Washington Redskins football team and entertained lavishly in his box at RFK Stadium. He was counsel to the
Washington Post
, whose cub reporters Woodward and Bernstein were writing Watergate-related stories on almost a daily basis. Perhaps as importantly, he was treasurer of Democratic National Committee, whose offices had been the target of the Watergate burglars.

Within three days of their arrest on June 17, 1972, Williams had filed a three-hundred-page civil suit on behalf of the DNC against CRP. His aggressive deposition schedule, which had all the characteristics of front-running the Watergate grand jury’s investigations, was halted by judicial order on September 21, 1972, just days after the Watergate burglars had been indicted, but not before severe damage had been inflicted on the Nixon White House. It’s no wonder that he was considered to be “White House Enemy Number One,” the title of the opening chapter in Robert Pack’s biography of Williams.
⁴

In short, it would have been difficult to identify a lawyer more closely identified with the opposition to the Nixon administration or more involved in efforts to bring about its demise.

Williams was also exceptionally close to Sirica. While he is mentioned only once in Sirica’s book (in connection with the incident we will explore below), Williams was Sirica’s career mentor and saved him from his unsuccessful solo practice. It seems that when Williams left Hogan & Hartson in 1949 to form his own criminal defense firm, he arranged for his former partners to hire Sirica as his replacement, a man some sixteen years his senior but a fellow graduate of Georgetown Law School. As Pack put it, Sirica never forgot who saved him and his legal career, which he had been tempted to give up entirely:

          
Instead, Sirica spent eight years at Hogan & Hartson, then was named a U.S. district judge in 1957. As a result of his close friendship with Williams (Williams and his wife were godparents of Sirica’s daughter), Sirica has disqualified himself from hearing any of Williams’s cases, except for routine motions.
⁵

Their friendship is of interest because of something that happened in the fall of 1972. There was a lull in Watergate reporting following the burglary indictments on September 15. While the government’s criminal investigations continued and the Watergate grand jury was still active, the
Post
’s stories were losing their immediacy and sense of urgency. Woodward and Bernstein then hit upon the idea of interviewing several of the Watergate grand jurors, but when they tried, one of them complained to the prosecutors. When Sirica was informed of their actions, he brought it to a halt by admonishing the two reporters. A number of books have covered this incident, but there is more here than is immediately apparent. Woodward and Bernstein undertook these interviews with the full concurrence of the
Post
’s management and, it appears, with the advance knowledge of the newspaper’s outside counsel—Edward Bennett Williams and his equally well-connected partner Joseph Califano.

In late November, Woodward talked someone in the clerk’s office at the U.S. courthouse into letting him review the list of grand jurors. He was allowed to look but not to take notes. Over the course of the morning, however, he managed to memorize and record all twenty-three names, as well as their contact information.

This list was discussed, dissected, and debated by the
Post
’s management team, who identified the most promising members. Over the first weekend in December, working independently, Woodward or Bernstein approached at least six of the jurors, supposedly without success. But on Monday morning, one of those who had been approached complained to Earl Silbert, an assistant U.S. attorney, who then informed Sirica.

None of the published accounts contains the specifics of how the meeting came about, but Williams was promptly dispatched to see his old friend Judge Sirica on the
Post
’s behalf. Another biographer, Evan Thomas, offers this description of Williams’s appeal to Sirica:

          
Fortunately, Williams and Sirica were old friends, fellow Catholics and criminal lawyers from the fifties. Williams was godfather to one of the judge’s children. Williams took the tack of agreeing with Sirica that reporters were irresponsible nuisances, but he argued that the grand jurors had not actually leaked anything, so there had been no breach of grand jury secrecy. He promised that the two young reporters would behave in the future. Sirica agreed to let them off with a verbal reprimand.
⁶

Perhaps that is how things really are handled in Washington. Prominent counsel, perhaps the Nixon administration’s most ardent opponent, meets privately with his old friend, the very judge who is about to rip that administration limb from limb, to smooth over this unfortunate incident. It is incidental that this same lawyer is lead counsel in a pending civil suit against the president’s re-election committee and seeking damages for its responsibility for the very break-in that is the subject of
the criminal trial then before this judge. Regardless, everything is finessed and there’s no harm done—at least to the one side.

Here is how Sirica described this incident and its resolution in his own book:

          
The newspaper had performed an invaluable public service in keeping the spotlight on the Watergate case, but now they had gone too far, interfering, I thought, with the administration of justice.

                
The newspaper’s attorney, Edward Bennett Williams, assured me that the
Post
management had admonished the eager young reporters and that no further incidents like this would occur. I settled on a stiff lecture in open court, reminding everyone present that to approach a grand juror and solicit information about a case being investigated was to ask for a citation for contempt. I praised the grand jurors for their refusal to co-operate and recessed the proceeding to let the message sink in. In their later book, about their reporting efforts, Woodward and Bernstein said that after the lecture, “they felt lousy . . . they had sailed around [the law] and exposed others to danger. They had chosen expediency over principle. . . .” I agree. Had they actually obtained information from that grand juror, they would have gone to jail.
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