The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (32 page)

The joint motion filed in support of their petition detailed the defendants’ concerns:

          
1.
    
Judge Sirica has been personally involved in the investigatory and prosecutorial process leading up to the indictment of defendants, as a result of which there has been a merging of the judicial and prosecutorial functions in this case;

          
2.
    
Judge Sirica possesses, consciously or unconsciously, a deep-seated and unshakable personal bias in favor of the prosecution;

          
3.
    
Judge Sirica has a substantial personal interest in the case since establishment of the alleged conspiracy would be viewed as a vindication of his conduct in the 1973 Watergate [burglary] trial;

          
4.
    
Judge Sirica has met privately with the prosecutors and has pre-viewed the evidence in this case.

In support of the last point, the defendants’ affidavit cited newspaper stories of June 19, 1973, and July 18, 1973, indicating that Sirica had met privately with prosecutors. These articles appeared when Cox was still the special prosecutor,
⁵
so it seems likely that defendants were unaware of any of Sirica’s ex parte meetings with Jaworski. But even if they had known what we know today, it would have been difficult for the defendants to state their case with greater specificity.

The special prosecutor filed his reply brief, defending Sirica, with the circuit court on May 20. Three of the four attorneys on the WSPF brief—Jaworski, Lacovara, and Ben-Veniste—had participated in at least one ex parte meeting with Sirica. Would they deny that any such meetings had occurred? Would they admit to one or more such meetings (we now know of at least six)? Would they assert that no one had discussed the evidence? In fact, they simply danced around that delicate issue, ignoring it entirely. They represented to the court of appeals that there were but two issues before it:

          
1.
    
Whether the affidavits before the respondent Judge which are based almost exclusively on judicial proceedings contain sufficient facts to show that respondent judge has a “personal bias or prejudice” in favor of the prosecution against the defendants as those terms are used in 28 U.S.C. 144.

          
2.
    
Whether, under the provisions of 28 U.S.C. 455, the district judge . . . abused his discretion in concluding that he was not so “connected with any party or his attorney as
to render it improper, in his opinion, to preside at the trial.”

Without responding to, or even mentioning, the defendants’ request for an evidentiary hearing that would reveal the extent of Sirica’s ex parte contacts with prosecutors, the reply brief simply asserted that the judge had not abused his discretion. It is arguable that this deliberate disregard of a specific request made by the appellant constituted a fraud upon the court, though it would have seemed trivial in comparison with the secret ex parte meetings, had they come to light. The prosecutors might well then have faced disbarment proceedings.

Reading the prosecution’s brief in light of what we now know about the nature and extent of the WSPF’s contacts with Sirica, one marvels at their gall. They argued, for example, that defendants need not fear Sirica’s hold over one prime prosecution witness, Jeb Magruder, since his sentencing was scheduled to occur before the trial would begin. We now know that John Dean was Sirica’s hostage as well. They also argued that Sirica’s assertion that the real Watergate culprits had not been identified by the conclusion of the burglary trial did not necessarily mean that he believed that
the present defendants
were the culprits to whom he was referring.

WSPF prosecutors did recognize, however, that the decision about who would preside at the trial could have been referred to the district court’s three-judge calendar committee, but they emphasized that such a referral was not necessary:

          
On April 26, 1974, the Special Prosecutor filed a memorandum in opposition to the motions and affidavits [when the motion was first filed before Judge Sirica]. We took the position that it might have been appropriate for the judge to refer the recusal motions to the Calendar Committee for deposition, but we argued that, whether the judge or the Calendar Committee passed on the motions, recusal was not legally required.

Despite raising serious doubts about whether they could get a fair trial before Judge Sirica or in the District of Columbia, the defendants’ appeal was summarily rejected by the liberal bloc of the D.C. Circuit without an opportunity for oral argument and in an unsigned order. George V. Higgins has summed up the situation nicely:

          
Judge Sirica’s definition of the bounds of his discretion would have comported nicely with Louis XIV’s view of himself as the French State. Having extracted what he thought to be the truth from James McCord, E. Howard Hunt, and others (by the imposition of long prison terms, or the threat thereof) in 1973, Judge Sirica was blandly reassuring when John Ehrlichman, H. R. Haldeman, John N. Mitchell and the rest protested, in 1974, that, really, he shouldn’t sit on the trial of their cases on charges of conspiring to effect the cover-up, because he had his mind made up. Sirica found himself to be without bias or prejudice, and six of the nine-judge Court of Appeals for the District of Columbia, preferring not to identify themselves, upheld him.
⁶

The liberal bloc—Bazelon, Wright, McGowan, Leventhal, and Robinson—issued a one-sentence, unsigned, per curiam order on June 7. With no oral argument, it was difficult for the media to evaluate the arguments raised by the defendants. With no signed opinion, no judge had to take the heat for the court’s abrupt action.

Judge MacKinnon, the only judge on the panel who was decidedly not a member of the liberal bloc, was clearly dismayed by the suddenness with which the order was issued and by the lack of a hearing. In a brief dissenting statement he observed that the defendants had raised substantial issues and he deplored the majority’s refusal even to answer the allegations.
⁷
One month later, on July 8, MacKinnon filed a full dissenting opinion raising both procedural and substantive objections to the majority’s disposition of the appeal.

MacKinnon expresses bewilderment as to why the court had handled the petition sitting en banc. His comment that the basis for handling the appeal in that way was “presumably” that the court deemed it “a question of exceptional importance” under the Federal Rules of Appellate Procedure suggests that he was somehow not involved in the decision to hear the case en banc. If the matter was of “exceptional importance,” he writes, then the court’s response was inappropriate:

          
Notwithstanding the recognized importance of this case, a majority of this court deprived petitioners of their right to oral argument, never provided the prior notice required by local Rule 116 and disposed of the matter by a mere one-sentence order denying the petitioner. Such disposition is improper where the case admittedly is of “exceptional importance.” These circumstances compel me to raise my single and obviously futile objection to the irresponsible and peremptory manner in which this petition was denied. I simply cannot agree that the majority’s handling of this petition was an appropriate method to administer justice in this most important of criminal cases.

MacKinnon goes on to detail the substantive issues raised by the defendants’ petition:

          
[The defendants] maintain that Judge Sirica must disqualify himself in this case in view of (a) his involvement in the prosecutorial investigation and his prior exposure to evidence, (b) his prejudgment of a material issue [venue], (c) his alleged personal interest in the outcome. . . . Petitioners also requested the district court (1) to grant them an evidentiary hearing to develop information concerning Judge Sirica’s private meetings with the prosecutors and his submission to the prosecution of a list of witnesses to be called before the grand jury, and (2) to refer the disqualification question to the Calendar
Committee of the district court as an appropriate disinterested panel.

Concerns over the first two items form the basis of MacKinnon’s substantive dissent. First, he addresses Sirica’s prosecutorial bias and previous exposure to the evidence, citing the assertions contained in the defendants’ briefs (all citations omitted):

          
1.
    
Judge Sirica repeatedly and consistently interrogated defendants and witnesses in the Watergate break-in trial “with the zeal of a prosecutor.” This interrogation was “an effort to investigate matters beyond the guilt or innocence of the defendants before him.”

          
2.
    
[During the Watergate break-in trial and afterwards,] Judge Sirica expressed the belief that criminal responsibility extended beyond the convicted defendants to higher officials in the Committee to Reelect the President and in the White House. * * * He has expressed the belief that higher officials were involved in the Watergate matter.

          
3.
    
[Judge Sirica commented] to defendant Liddy suggesting that he was low on the totem pole to be sentenced to thirty years while those who planned, organized and directed the operation walked the streets free.

          
4.
    
In an admitted effort to coerce testimony from the defendants in the Grand Jury and before the Senate investigating committee which would implicate higher officials, Judge Sirica imposed conditional maximum sentences.

          
5.
    
Judge Sirica took the extraordinary step of drawing up a list of six Administration officials whom he felt the prosecutors ought to put under oath in the Grand Jury room. Affiants lack specific knowledge of the names included in that list since Judge Sirica ordered it held under seal, but it is reasonable to assume that the names of one or more of the defendants in this case appear on
the list. (The transcript of this chambers conference has since been made available to counsel. Nine names were suggested for further grand jury inquiry. One defendant’s name appears on the list, as well as the names of three other persons who were charged and convicted in related cases.)

          
6.
    
According to newspaper reports dated June 19, 1973, and July 18, 1973, Judge Sirica met privately on at least two occasions with members of the Watergate Special Prosecution Force. The details of these and any other unreported private meetings have not been made public; affiants are therefore unable to state with particularity the number of such meetings which have taken place, or the dates, participants, purposes, or substance thereof.

Reviewing other troubling aspects of Sirica’s conduct of the break-in trial, MacKinnon continues:

          
At times Judge Sirica assumed an even more active role in the prosecutors’ investigation of this case. At a chambers conference on January 24, 1973, at which the prosecutors and three attorneys representing defendants in the break-in trial were present, Judge Sirica suggested to the prosecutors that they call nine named individuals before the grand jury. Although he disclaimed any accusatory intent, one of those individuals was indicted by the grand jury and is now a defendant in this case, and three others were subsequently charged and convicted in related cases. Judge Sirica’s alleged actions in repeatedly interrogating witnesses concerning the involvement of others, in using the sentencing process to coerce testimony implicating higher officials, and in suggesting further grand jury inquiry of named individuals including a defendant here, publicly demonstrated an accusatory frame
of mind that connected the present defendants to the crime with which they are now charged—obstructing the prosecution of the Watergate break-in.

Judge MacKinnon is at pains to point out that the standard of review on appeal must assume that the appellants’ allegations are true. The only question for the court was whether, assuming that these allegations were true, they would constitute a sufficient basis for the judge to be disqualified from presiding over the second trial.

MacKinnon’s second area of substantive concern is the extent of Sirica’s ex parte meetings with prosecutors, about which the defendants had sought permission to have an evidentiary hearing.

          
In view of their allegations, petitioners are entitled to develop the facts surrounding the ex parte meetings with the prosecutors. A judge, having assisted in the bringing of an indictment, may not consistent with due process of law preside at the trial of that indictment, and such judicial involvement in the prosecutorial process is sufficient to require disqualification under Section 144. The facts alleged by petitioners in this regard may already constitute the requisite “fair support” for a reasonable apprehension of disqualifying bias or prejudice. The denial of petitioners’ request for an evidentiary hearing deprived petitioners of the opportunity to demonstrate fully the degree to which the judicial and prosecutorial functions may have coalesced in this case into accusation. An evidentiary hearing concerning the number and nature of contacts between the prosecutors and the judge could be conducted without undue delay and would provide some assurance against reversal after trial on the grounds of bias or prejudice. [Citations omitted.]

                
The need for an evidentiary hearing is further highlighted by a conversation appearing in the Presidential
Tape Transcripts which were released subsequent to filing of the petitioners’ affidavits. [Citing an April 16, 1973, conversation, where Henry Petersen tells the President the following]: