The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (20 page)

It takes a fairly arrogant judge—as Sirica clearly was—not only to take a seasoned prosecutor aside condescendingly to let him know just how the case should be tried, but to brag about having done so in his memoir.

Despite Sirica’s assurance that his conversation with Silbert came about casually, it is clear from the context that he had prepared for the encounter. Sirica had been chief counsel in 1944 to the House Select Committee to Investigate the Federal Communications Commission but had resigned in protest when the committee decided to close the remainder of the hearings to the public—an action Sirica saw as a whitewash. Sirica thrust the records of those hearings into Silbert’s hands and urged him to study them. Indeed, earlier drafts of Sirica’s memoir in the Library of Congress make it clear that he viewed his experience of thirty years earlier as instructive for his pursuit of the truth in the break-in trial.

As with other ex parte meetings, we have only Sirica’s benign version of his meeting with Silbert, but it was seriously improper for the meeting to take place at all. Judges may not privately instruct prosecutors on how to put on cases before them. At the very least, it clearly demonstrates Sirica’s prosecutorial bias. If the defense had learned of this meeting, Sirica would have had to recuse himself from further involvement in the
break-in case. But the meeting was secret, there was no record of it, and no one knew about it.

I intend no criticism of Earl Silbert. By this time, he was no doubt used to Sirica’s prosecutorial bent. He would have shrugged this off and continued his prosecution precisely as he saw fit. The initiative for this illicit conversation was Sirica’s alone. It was the judge who denied the defendants their right to a fair trial by trying privately to instruct the prosecutor on how to try his case.

It does not excuse Sirica to point out that he merely instructed Silbert to “go right down the middle”—that is not the point. We have no idea of what was actually intended or said. Sirica arranged the meeting, and his giving
any
advice or instruction was per se improper.

Ex Parte Meeting with Samuel Dash

Sam Dash
³⁰
was a man with a mission. The Ervin Committee’s newly appointed chief counsel, he needed witnesses to fill the public hearings that were scheduled to begin on May 17, 1973.

The Georgetown law professor had built a distinguished legal career, graduating from Harvard Law School in 1950 and becoming district attorney of Philadelphia at the age of thirty, but now he faced a major challenge:

          
I turned my attention to the problem of how to begin developing some cracks in the wall of silence which the Watergate burglars had constructed and maintained. I had no doubt that our investigation was confronting a major cover-up conspiracy. It seemed obvious we would need the help of an insider—an informer to successfully expose this conspiracy. Some extraordinary tactic had to be employed to induce one or more of the burglars to start talking.
³¹

On March 23, Sirica would announce his sentences in the burglary trial, and Dash saw an opportunity for the judge to help him. “Other judges had used the sentencing power as a carrot-and-stick strategy to provide an incentive for a convicted defendant to turn informer,”
³²
and
Dash figured Sirica could do the same. In a political corruption case against Martin Sweig, Dash had actually opposed “provisional sentencing”—temporarily imposing a severe sentence with the offer to reduce it in exchange for the prisoner’s cooperation—before the Court of Appeals for the Second Circuit. “But I had lost,” he writes. “Although I still believed the practice was wrong, the Sweig case was a legal precedent that a trial judge could use the sentence as a pressure tactic on the defendant.”
³³

In the Sweig case, however, the trial judge was seeking to encourage the defendant’s cooperation with prosecutors. Dash now had in mind a whole new objective: to use the possibility of future sentence reduction to encourage the defendants’ cooperation with a political investigation by the Senate that had no legal connection with the prosecution of them in the U.S. district court. It is a crucial distinction—in law and in fact—that seems to have been missed by all commentators to date.

Dash was almost gleeful in explaining how he maneuvered himself into an ex parte meeting with Judge Sirica:

          
As chief counsel of the Senate committee, I had no standing in the criminal case before Judge Sirica. But I had a committee reason to meet with him prior to the sentencing date. Senator Ervin had earlier requested Sirica to let the committee inspect the grand jury minutes of the Watergate case. On further review of the law I had concluded that Sirica could not legally grant this request. Ervin concurred with my opinion and had asked me to withdraw his request. This could have been accomplished by letter, but it gave me the opportunity to talk to Judge Sirica in his chambers. Sirica and I had been friends for years as faculty colleagues at Georgetown University Law Center.
³⁴

In the privacy of the judge’s chambers–cum–Georgetown faculty club, Dash communicated the scheme to his friend with a wink and a nod:

          
When I met with Sirica I was careful to emphasize I was not recommending anything regarding his sentencing of the Watergate defendants, but I expressed the hope that one of them might give us information about the cover-up and I referred him to the Sweig case. Judge Sirica responded that he understood the committee was not making any request of him, as it had no right to do, and that he would study all the law and would sentence as he determined the interests of justice required.
³⁵

This meeting was a flagrant violation of legal and judicial ethics. The commentary to Canon 3 of the Code of Conduct for United States Judges addresses this situation directly:

          
Canon 3A(4). The restriction on ex parte communications concerning a proceeding includes communications from lawyers, law teachers, and others who are not participants in the proceeding.

If word of the meeting with Dash had gotten out, Sirica would have had to recuse himself from the sentencing. But no one found out for many years (Sirica omitted any mention of the meeting in his own book), and Sirica proceeded to adopt Dash’s idea as his own, imposing sentences of up to thirty-five years on the hapless first-time offenders.

The convicted defendants had every right to know what was being said about them to the judge who was about to sentence them. As with Sirica’s other ex parte meetings, no record was kept, so there was nothing to review on appeal. Apart from the justice or injustice of provisional sentencing, Dash’s scheme called for improper coordination between the judicial and legislative branches. No other court before or since has conditioned a criminal sentence on a defendant’s testimony before a congressional committee.

Sirica’s ex parte meetings with interested parties—Williams, Mollenhoff, Silbert, and Dash—remained a secret until Watergate was safely
consigned to the history books (and John Sirica enshrined in America’s judiciary pantheon). But the misconduct that was publicly known at the time (most recently detailed in Gaughan’s law review article cited in
Chapter 6
), standing alone, ought to have resulted in his removal from the case.

SIRICA’S EX PARTE MEETINGS WITH THE SPECIAL PROSECUTORS

Secret meetings with interested parties are bad enough, but Sirica repeatedly violated the defendants’ rights to due process through a series of meetings with the Watergate special prosecutors themselves. We have already detailed his meeting with Silbert, but we now know of at least eight other such secret meetings, including two with Archibald Cox, the original special prosecutor, and six with Leon Jaworski.

In their attempt to have Sirica removed as presiding judge in the cover-up trial, the defendants cited two newspaper accounts—dated June 19 and July 18, 1973—indicating that Sirica had met privately with prosecutors while Cox was still the special prosecutor. In the earlier article, the Associated Press had reported, “After Cox met with newsmen, he conferred privately for 15 minutes with U.S. District Court Judge John J. Sirica and Sirica, without further explanation, scheduled a hearing for today.” This was about the time that Dean’s scheduled testimony before the Ervin Committee was postponed because of the visit of the Soviet leader Leonid Brezhnev. It is possible, then, that Cox’s private visit dealt with his continuing concern that Dean’s public testimony would taint the jury pool in the District of Columbia. Since the defendants’ request for an evidentiary hearing to explore Sirica’s ex parte contacts was denied and no one ever divulged their subject matter, we will never know what was actually discussed.

Sirica’s subsequent series of secret meetings with Jaworski and senior members of his staff have already been discussed. During the tenures of both Cox and Jaworski, then, Sirica indulged a bad habit of meeting privately with government prosecutors. His fidelity to the norms of fair and balanced judicial conduct was hopelessly tainted.

SIRICA’S FALSE SENTENCING PLOY

Perhaps the clearest indication of Sirica’s prosecutorial bent was his attempt to influence the verdict in the cover-up trial by enhancing the credibility of the government’s principal witnesses, John Dean and Jeb Magruder, through manipulative sentencing. Sirica kept his ploy a secret for several years until he confessed it without shame in his book in 1979.

On August 16, 1973, Magruder pleaded guilty to a single felony count before Sirica. As is customary with government witnesses, his sentencing was postponed until the conclusion of the trial in which his testimony was needed by the government. This is done so that defendants testifying against their former colleagues don’t have a sudden change of heart after receiving a reduced sentence in anticipation of their cooperation.

Dean pleaded guilty to a single felony count before Sirica on October 19, 1973, and his sentencing was similarly postponed until after the cover-up trial. Indeed, Dean’s formal plea bargain specified:

          
The Government will join with you in urging that Mr. Dean’s sentencing be deferred until after the trial of others implicated by Mr. Dean’s testimony and that Mr. Dean be permitted to remain on bond or in recognizance pending sentence in order to facilitate his cooperation with the Government.
³⁶

John Mitchell and Maurice Stans were acquitted on April 28, 1974, in the Vesco case, in which Dean had been one of the principal government witnesses. Part of the prosecution’s problem, as
Congressional Quarterly
reported, was Dean’s lack of credibility:

          
The defense lawyers claimed . . . that prosecution witnesses were not telling the truth.

                
In interviews after the verdicts were announced, the jurors said that they had voted to acquit Mitchell and Stans because they could not believe the testimony of key government
witnesses. They used the words “incredible” or “unbelievable” when they talked about John W. Dean III [and other] major government witnesses.

                
“I don’t want to say Mr. Dean was lying, but he was often unbelievable,” said Sybil Kucharski, the 21-year-old forewoman of the jury.
³⁷

Shortly thereafter, on May 21, 1974, Sirica reversed course. Apparently on his own initiative, he went ahead and sentenced Magruder to a prison term of ten months to four years, ordering his surrender to custody on or before June 4. He likewise decided to move up Dean’s sentencing. Court records reflect a good deal of scurrying to finalize the pre-sentence report, particularly to obtain Dean’s financial statement, since the judge had become quite eager to impose sentence. All was completed by the end of July, and at the hearing on August 2 Sirica sentenced Dean to a prison term of one to four years—a harsh sentence from any perspective—with confinement to begin on September 3, 1974, just a week before the scheduled opening of the cover-up trial. Sirica made no public comment as he imposed the sentence. There was no lecturing of the defendant; there was no advice on how to reform himself. Sirica simply and succinctly announced Dean’s sentence and left the bench.

There was speculation at the time that the accelerated schedule and the harshness of the sentences were a reaction to the acquittals in the Vesco trial, which had been blamed on Dean’s lack of credibility. Dean confirmed these suspicions in his book when he recounted an exchange with James Neal, the lead prosecutor on the Watergate Task Force:

          
[Dean:] “I can’t figure it [his harsh sentence] out, Jim. I guess either Sirica just doesn’t like me or maybe he believes all that crap the White House put out about how I invented the cover-up and ran it single-handed.”

                
[Neal:] “No, I don’t think that’s it. He gave you a hefty sentence because he wants to make you a credible witness. I
tell you, I think Charlie’s [Shaffer, Dean’s lawyer] going to be in good shape when he files a motion to reduce. He’s just got to wait awhile.”
³⁸

The idea was that if Dean had already been given a harsh sentence, he would appear to have nothing to gain by pleasing the prosecution with his testimony in the upcoming cover-up trial, thus coming across to the jury as more credible than he seemed in the Vesco trial. Neal’s comment suggests he might even have known more about Sirica’s approach than he was willing to let on. No one ever dreamed that Sirica would be obtuse and arrogant enough to acknowledge his sentencing ploy, yet that is what he later did in his book: