The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (23 page)

In essence, WSPF prosecutors operated in the manner that Attorney General Jackson had deplored in his 1940 speech. They identified their chosen defendants and tailored the charges they would bring against them. Jack Farrell, an investigative reporter for the
Boston Globe
, summarized the investigative approach that animated the Watergate prosecution:

          
Cox and his zealous staff had gone to work with an obvious aim—to get Richard Nixon—and with an array of prosecutorial tactics that would become so familiar to Americans as a series of “independent” counsels, in collusion with Congress and the media, hounded presidents of both parties over the next twenty-five years. Like his successors, Cox did not limit his investigations to the crime at hand—the burglary and wiretapping of the Democratic headquarters. Instead, he chose a suspect first and then used a nigh-unlimited budget, his team of 150 investigators, lawyers and support personnel, and his broad subpoena power to find a crime. To generate public support for the process, Cox’s office deftly leaked to the press: over the summer [of 1973], the media reported that Cox’s team was examining Nixon campaign fund-raising; corporate favors; the President’s tax returns; and government financed improvements to Nixon’s homes in Florida and California.
³

MORRISON V. OLSON

Judge Laurence Silberman
⁴
of the D.C. Circuit detailed the risks inherent in an independent prosecution in his opinion in
Morrison v. Olson
(1988), holding that the independent prosecutor established by the 1978 Ethics in Government Act was an unconstitutional delegation of prosecutorial discretion:
⁵

          
That very independence from presidential and Justice Department supervision and guidance that Congress deliberately fashioned for independent counsel has troubling consequences for those who find themselves the target of the independent counsel’s attention. A person occupying this statutory office has, it seems to us, unique incentives to seek an indictment. Our concern is based on the self-evident proposition that the whole raison d’être of the independent counsel is not to administer the criminal law across a wide
population, but rather to focus on one individual or group of individuals targeted at the inception of the office. In effect, an entire self-sufficient government agency is created from scratch to investigate and perhaps prosecute a single individual. The need to justify even the expense of an office dedicated solely to one goal must generate a reluctance to decide against indictment or to conclude the investigation absent near certainty that no indictment is possible or that no further leads remain. And inevitably, the success of the office itself, in the public’s eyes, at least, must turn to some extent upon whether indictment and conviction are obtained. The independent counsel is thus “subject to formidable public—and perhaps self-imposed—pressure to indict in the one case he was appointed to pursue.”

At least the Ethics in Government Act, which formalized the position of independent prosecutor, was a statutory scheme enacted into law by both Houses of Congress. The Watergate Special Prosecution Force, by contrast, was merely an ad hoc political arrangement.

PARTISAN STAFFING OF THE SPECIAL PROSECUTOR’S OFFICE

Cox’s biggest challenges when appointed special prosecutor at the end of May 1973 were staffing the Watergate Special Prosecution Force and dealing with the threats to a fair trial posed by the Ervin Committee’s public hearings in the Senate. His unsuccessful efforts to deal with the latter are detailed in the next chapter. What we will cover here is the decidedly partisan nature of his office staffing. As I detailed in my earlier book:

          
Archibald Cox (Harvard, ’34; Harvard Law, ’37; clerk for Judge Learned Hand) was a Triple Crown Kennedy clan confidant: He had headed JFK’s issues analysis and speech-writing teams
during the 1960 campaign; he was second in command in RFK’s Department of Justice as solicitor general; and he had worked closely with Teddy Kennedy on numerous matters, particularly the campaigns to defeat Nixon’s Supreme Court nominees (including Haynsworth and Carswell, who were defeated, and Berger, Powell, and Rehnquist, who were confirmed). The most recent exchange of Cox-Kennedy correspondence—concerning the landmark Supreme Court abortion ruling
Roe v. Wade
—had occurred less than a month before Cox was named special prosecutor.

                
Cox’s first two appointments were his closest colleagues from the Harvard Law School: Philip Heymann (Yale, ’54; Harvard Law, ’60; clerk for Justice John Marshall Harlan), his former student, who had served with him in RFK’s solicitor general office; and James Vorenberg (Harvard ’49; Harvard Law, ’51; clerk to Justice Felix Frankfurter), who had headed RFK’s Office of Criminal Justice and written position papers for George McGovern’s 1972 presidential campaign. These two were instrumental in completing the staffing and establishing the direction of the fledgling special prosecutor’s office before they returned to Harvard in the fall of 1973. Vorenberg came back to Washington in August 1974 to help with the possible indictment of Richard Nixon following his resignation, and again in the fall of 1975 as primary author of the
Watergate Special Prosecution Force Report
.
⁶

It was Vorenberg who took the lead in staffing the office, and to do so quickly, without getting bogged down in Department of Justice hiring procedures, he sought out only friends or friends of friends. While this simplified matters considerably, it also assured that everyone who was hired held President Nixon and his administration in extremely low regard.

Vorenberg’s staffing, which is illustrated on the chart at
Appendix K
, fell into three categories:

Leadership
: Seven of the eight top WSPF attorneys had worked together in Robert Kennedy’s Department of Justice. They were competent lawyers, to be sure, but all ardent Democrats and adherents to its aggressive targeting-of-individuals approach to law enforcement.

Line prosecutors
: Many of the line prosecutors had worked for the U.S. attorney for the Southern District of New York, Robert Morganthau (a hold-over from the Kennedy-Johnson administrations, whose father had been Franklin Roosevelt’s treasury secretary), where they developed considerable experience in prosecuting organized crime. Indeed, they used many of the scorched-earth tactics designed for going after the mob in prosecuting Nixon administration officials.

Younger lawyers
: Most of the younger lawyers on the staff were recent graduates of elite Ivy League law schools and had opposed Nixon’s conduct of the Vietnam War.

This brand new, totally dedicated prosecutorial team really was Prud’hon’s Nemesis—dedicated political opponents of Nixon and his aides and determined to pursue them to the ends of the earth.

As the adjoining charts show, it wasn’t just WSPF prosecutors who came from the Kennedy-Johnson Department of Justice. Key figures on the staffs of both the Senate Ervin Committee and the House Judiciary impeachment inquiry did too. Perhaps not surprisingly, defense counsel for two of the major Watergate criminal figures (Charles Shaffer, who represented John Dean, and William Bittman, who represented Howard Hunt) also came out of this group.

Among Cox’s first official acts was the replacement of the career prosecutors from the U.S. attorney’s office, whose extensive investigative work had broken the Watergate cover-up, with his new team of partisan Democrats. A threshold question was what to do with Dean, who had been intimately involved in the Watergate scandal from its outset but was also the only man through whom they could reach their top targets—Mitchell, Haldeman, and Ehrlichman (along with President Nixon himself).

For his part, and to his credit, Cox had severe reservations about Dean:

          
Archie Cox was particularly firm in his personal determination that Dean be prosecuted no matter what. Dean became an
idée fixe
for Cox. True, as a witness Dean would cement otherwise weak cases against Haldeman and Ehrlichman. But Cox preferred, if forced to choose, to take the relatively sure shot at Dean rather than the long shot against Dean’s superiors. When the Saturday Night Massacre loomed close, it might have been propitious for Cox to make a deal with Dean and secure Dean’s testimony against President Nixon as another weapon to hold the President off. Even then, Cox’s determination did not waiver. With all the uncertainties of Watergate that swirled around him—the weakness of evidence against Nixon’s top aides without Dean’s testimony, the possibility of Presidential culpability, the problems of obtaining White House evidence and of dealing with “national security”—Cox saw Dean’s guilt as the one enduring constant. During a particularly difficult period Archie remarked to us, “If everything else goes down the drain the one thing I can cling to is Dean’s venality.”
⁷

But once Cox had been fired in the Saturday Night Massacre, the spirit of revenge crowded out any lingering concerns about Dean. He was allowed to plead guilty to a single felony count and supposedly sentenced to one to four years in prison, though he never spent a day there. When he finally got around to disclosing that he had destroyed evidence that Hunt said would exonerate him, there was no follow-up investigation and he was never prosecuted. When an internal comparison of Dean’s sworn testimony before the Ervin Committee about his meetings with President Nixon with the tapes of those meetings disclosed some nineteen material discrepancies (see
Appendix L
), there was never any thought of charging him with perjury or of sharing such analysis with Watergate defense counsel. Their actions were precisely the opposite: WSPF prosecutors (along with the media) consistently and
constantly praised Dean for the precision of his memory and the extent of his cooperation.

GRAND JURY ABUSE

Grand juries began in England under Henry II and were recognized in the Magna Carta, but they exist today only in the United States, enshrined in the Fifth Amendment. Their original purpose was to determine if a crime had been committed and to act as a brake on overzealous prosecutions. But by the 1970s grand juries had become nothing more than a prosecutorial tool.

Grand jurors are not screened for bias, they hear only the side of the story the prosecutor wants them to hear, there is no judicial supervision of their operation, and witnesses must appear before them without their counsel’s even being allowed into the room. Such procedures lend themselves to abuse by partisan prosecutors, but since all proceedings (except indictments) are kept sealed forever, there is almost no opportunity for abuses to surface.

Nonetheless, the weaknesses in the grand jury system are well known. A chief judge of New York State’s highest court famously observed that grand juries are so malleable that any prosecutor worth his salt could get a grand jury to “indict a ham sandwich.” A former federal district judge in Chicago once complained that “the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”
⁸

Watergate prosecutors made extensive use of grand juries, subpoenaing dozens of Nixon administration employees to appear before three grand juries devoted to their exclusive use. They of course did all the work, picked all the witnesses, prepared all the questions, and drafted all the indictments, as well as the special report known as the Road Map. It was a reign of terror unprecedented in the American justice system. Forty years later, in spite of my best efforts, those grand jury proceedings remain sealed.
⁹

SHAPING THE COVER-UP INDICTMENT

We have already seen how collusion between the WSPF prosecutors and Judge Sirica enabled him to appoint himself to preside over the subsequent trial and to implicate President Nixon. Let us now see how they shaped the indictments to assure convictions of their principal targets: Mitchell, Haldeman, and Ehrlichman.

“THOUGHT CRIMES”

Civil libertarians have long decried the use of “thought crimes” by aggressive prosecutors to pursue defendants they don’t like. Typically, federal crimes have specific elements, each of which must be proved before a case can be made. Usually this involves the introduction of hard evidence, such as a murder weapon, medical reports, injury photographs, etc. But thought crimes have no such precise definitions, and if there are any specific elements, they require the trial jury to determine what was in the mind of the defendant at the time the alleged crime was committed. The most familiar thought crime, and the one prosecutors turn to most, is conspiracy.

Under federal criminal law (18 U.S.C. § 371), a conspiracy is an agreement between two or more persons to commit a crime in the future. There are two theoretical grounds for the statute: first, the belief that concerted action by a group of persons poses a greater danger than the criminal designs of someone acting alone, and second, the parallel belief that society ought to be able to stop a crime before it is committed and still punish the persons who were intent on its accomplishment.

The elements of the crime of conspiracy are different from those of substantive criminal offenses mainly because the law is designed to punish intent alone. The three elements of conspiracy are an agreement, an overt act in furtherance of the conspiracy, and a specific state of mind.
¹⁰

While the agreement itself is the gravamen of the crime, there is almost never an explicit agreement, such as a formalized document or a bargained-for commitment. Most conspiracy convictions, therefore, are based on inferences from circumstantial evidence, including the conduct of the defendants. There need not be an actual meeting or a
uniform start date. The conspirators need not know each other or even know of each other’s existence. A conspiracy can be found to exist even where there is no express communication of agreement. All that is necessary is that the jury conclude that there was an agreement to commit a crime. Once that agreement has been found to exist, case law requires only slight additional evidence to link a particular defendant to that conspiracy. The law of conspiracy, then, can turn what a man can lawfully think about into a crime if that same thought becomes a part of an agreement with another person.