The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (34 page)

Both Ehrlichman and Haldeman claimed that Sirica’s omission to give the standard “missing witness” instruction—and particularly to explain to the jury that the former president was too ill to appear—prejudiced them, since Nixon had been identified at the beginning of the trial as an expected witness, and the jury might take his absence as an indication that his testimony would have been harmful to their case.

Mitchell argued that he was unfairly forced to testify before the Ervin Committee, since his taking the Fifth Amendment would have prejudiced potential jurors in the Vesco case, where he was a “virtual defendant.” His case was stronger on this issue, since he had raised it at the time of his committee testimony, but to no avail.

Finally, Mitchell and Ehrlichman objected to the admission of prejudicial evidence. Mitchell argued that it was error to admit into evidence the recorded conversations of others discussing the certainty of his guilt as a result of his knowledge of the Liddy plan, because the prejudicial effect of this testimony far outweighed its probative value concerning the existence of a conspiracy. Ehrlichman argued that it was error to admit into evidence three days of testimony about the Plumbers break-in, supposedly as his motive for joining the cover-up, since he had already been convicted for that offense (although it remained on appeal) and it constituted a sort of double jeopardy. Like Mitchell, he maintained that the prejudicial effect of that testimony far outweighed its probative value as to his possible motive for joining the cover-up.

The prosecution, now led by Henry Ruth, the longtime deputy who had become special prosecutor upon Jaworski’s resignation, filed its 280-page reply brief on October 15, 1975. It denied that pretrial publicity had tainted the jury pool. Publicity had been largely factual, it was consistent with defendants’ admissions that there had been a cover-up (although each denied being a part of it), and defendants had countered much of it with their own testimony and public denials.

Sirica’s voir dire, the prosecution argued, had been properly conducted, and each of the jurors had asserted his belief that he could put aside any advance knowledge of the case and reach a verdict based only on what had been presented during the trial. Because there was no taint or bias in the jury, there was no reason to move the trial outside of the District of Columbia, to postpone the trial, or to grant the defendants more juror challenges.

There was no reason for Sirica to recuse himself, because he had denied any personal bias against the defendants and all his knowledge of Watergate had come from his own judicial involvement—so there was no external evidence before him.

Among the signers of the prosecution brief were both Peter Rient and Judith Denny, the authors of the memorandum of November 15, 1973, discussed in
Chapter 7
, which recorded the testimony of the original Watergate prosecutors that Dean had not accused Ehrlichman or Haldeman of any wrong-doing in his eight initial meetings with prosecutors in April 1973. The brief assured the court, “Recognizing its obligation under [citations omitted], the prosecution thoroughly reviewed all materials in its possession and voluntarily produced all documents and other materials even remotely relevant to the issues to be tried.”

With regard to the defendants’ assertion that Sirica should have recused himself, the prosecutors stated (footnotes and citations omitted):

          
As he was required to do, the trial judge reviewed the factual allegations in the recusal motions (assuming them to be true) and concluded that “[e]very action, decision and comment of the court cited by defendants arose in the course of official
judicial activity.” This conclusion—not controverted on appeal—is dispositive.

One can only wonder, in light of the series of ex parte meetings and communications between the WSPF prosecutors and Judge Sirica, whether they really believed Sirica’s assertion or carefully crafted this statement to avoid asserting to the court that they had not met privately with the judge.

THE CIRCUIT COURT’S DECISION

The appeal was argued before the circuit court sitting en banc on January 6, 1975—precisely one year after the defendants had been convicted in the cover-up trial. The oral argument was notable for the paucity of questions from the judges, who acted as though they couldn’t wait to get the defendants out of their courtroom.

Ten months later the court handed down its per curiam opinion adopting all the arguments submitted by the prosecution.
¹³
While the opinion itself was lengthy, it appears that the court was convinced by the WSPF’s assertion that the issues raised by defendants were “common and familiar.”

The opinion reads as though this were such a routine and run-of-the-mill case that it was hardly worth the court’s time. In most cases a single judge writes an opinion for a three-judge appellate court. Sometimes all of the judges sign a key opinion to emphasize its importance. In the Watergate cover-up appeal, none of the judges thought the opinion was worth signing. The implication in such cases is that it is a routine matter, of no precedential value, and deserves no further attention.

APPEAL TO THE SUPREME COURT

In a last attempt to obtain justice, Mitchell, Haldeman, and Ehrlichman, the three remaining defendants, appealed to the U.S. Supreme Court. If the prosecutorial and judicial collusion that had marred the case from its inception had been disclosed, the outcome probably would have
been different, but as it was the defendants failed to get the four votes necessary for a writ of certiorari and a place on the high court’s docket.

Even that vote was not without controversy. It appears that Chief Justice Warren Burger, a Nixon appointee, undertook a second effort to obtain the necessary fourth vote.
¹⁴
Nina Totenberg’s disclosure of Burger’s effort is described in a 1992 article in
Vanity Fair
:

          
Totenberg’s critics burst into a chorus of “Foul!” in 1977, when she reported an astonishingly insider item concerning the Court’s disposition toward an appeal from former Nixon top dogs and Watergate conspirators, H. R. Haldeman, John Ehrlichman and John Mitchell. Totenberg reported that the Court had voted 5-3 against reviewing the infamous case, and that all three dissenters were Nixon appointees. [The fourth Nixon appointee, Justice Rehnquist, had recused himself.] The report stunned many, because Court votes concerning appeals are held in secret. Moreover, the story claimed that Chief Justice Warren Burger, one of the Nixonians, had postponed announcing the outcome of the vote in hopes of persuading others on the Court to change their minds. Totenberg’s story embarrassed the Court and raised potential legal problems concerning the decision, not to mention a few eyebrows. The
New York Post
even ran a gossip item proclaiming that Justice Stewart, “said to be a close friend of Totenberg’s,” was the “most popular choice” as the story’s source and decried the charge as “sexist.”
¹⁵

It appears that the Supreme Court may have been as politicized by Watergate as was the D.C. court of appeals, although certainly not as corruptible.

The Supreme Court’s denial of certiorari was the end of the line for the defendants. The outrages against due process, we now know, had been plentiful and egregious, and their concerns were raised in timely and specific manners, but to no avail.

PART V

THE VIEW FROM HERE

I
think I have made a strong, well-documented case that President Nixon was forced to resign and his senior aides were convicted and imprisoned not only because of false charges but because of the collusion between judges and prosecutors who had convinced themselves that their desired ends justified any means. In the Watergate prosecution, the constitutional protections that are supposed to guarantee individual rights in highly politicized controversies were deliberately swept aside in the rush to judgment.

But all that was forty years ago. Nixon, Haldeman, Ehrlichman, and Mitchell are dead, as are Sirica, Bazelon, Cox, and Jaworski. The only surviving figure who played a central role in the scandal is John Dean. One might ask, then, “So what?” Is Watergate now of only academic interest, with no implications for law and politics today? Or are there lessons here to be learned, for the oppressors and the oppressed alike?

The Watergate prosecutions, I would argue, deserve careful study because of their lasting effects on the defendants, on our understanding of the scandal, on President Nixon and his legacy, and on the rest of us.

CHAPTER 10

SO WHAT?

JUSTICE FOR THE DEFENDANTS AND THEIR HEIRS

The Watergate defendants, particularly Mitchell, Haldeman, and Ehrlichman, were systematically and deliberately denied a fair trial. They faced a hanging judge whose numerous secret ex parte meetings with interested parties and prosecutors should appall anyone acquainted with the standards of judicial conduct and whose temporary sentencing ploy underscores his lack of objectivity. They were pursued by highly partisan prosecutors who favored their friends and punished their enemies. They were tried by jurors drawn from a hopelessly tainted and biased pool, a disadvantage the responsible judges refused to ameliorate. Finally, they had recourse only to a partisan appellate court that had been corrupted by an ex parte meeting between its chief judge and the special prosecutor.

The assault on due process in the Watergate cover-up prosecution is all the more troubling because the key factual contentions of the leading defendants, John Mitchell, H. R. Haldeman, and John Ehrlichman—
nicely summarized by the prosecution’s appellate brief quoted in chapter nine—now appear at least plausible enough to raise a reasonable doubt about their guilt.

It is possible that Mitchell, as he consistently contended, did not approve Liddy’s campaign intelligence plan at the March 30, 1972, meeting in Miami. Fred LaRue, who was there at the time and was also a government witness at the cover-up trial, concurred in this view. Further, revelations in John Dean’s recent book suggest that the idea of Mitchell’s alleged approval emerged quite late in the internal taped conversations among the White House staff, who thought that Magruder’s approval had inadvertently been triggered either by Colson’s phone call or by Strachan’s following through on Haldeman’s tickler system. If Mitchell didn’t approve Liddy’s plan—if Magruder just made this up to explain his own wrongdoing—then Mitchell did not have the alleged motive for his tangential involvement in the cover-up.

Haldeman, as he consistently contended, did not intend to limit the FBI investigation. We now know that the “smoking gun” tape, which appeared to suggest the opposite, has been misunderstood and that Haldeman was simply trying to protect the identities of prominent Democratic donors. As in Mitchell’s case, the alleged motive for his participation in the cover-up has evaporated.

Ehrlichman, as he consistently contended, turns out to have been an advocate of full disclosure almost from the outset, in spite of the risk that his involvement in the Plumbers break-in (which he felt could be defended on grounds of national security) would be disclosed.

The information that has recently come to light, had it been available to a neutral jury, could have raised sufficient doubt about the defendants’ guilt to preclude their convictions. Two similar cases in which exculpatory information emerged after a conviction offer instruction on how these Watergate convictions might be handled.

On American Soil: How Justice Became a Casualty of World War II
by Jack Hamann,
¹
published in 2005, tells how forty-three black U.S. soldiers were court-martialed for rioting and murdering an Italian prisoner of war at Fort Lawton, near Seattle, in 1944. An initial investigation
had concluded there was insufficient evidence to bring charges, but the army became concerned about repercussions regarding treatment of its own prisoners of war in Italy. A sharp young army prosecutor named Leon Jaworski handled the re-investigation and eventually secured twenty-eight convictions. The problem was that there was no direct evidence against these soldiers, some of whom were imprisoned, and all of whom were dishonorably discharged.

The army’s initial investigation had indicated that the black soldiers were not at fault for the riot. Jaworski knew about that investigation but kept it from the defendants’ lawyers, who could have used prior inconsistent statements to discredit Jaworski’s lead witness. The publication of Hamann’s book led the army to seek out each of the wrongfully discharged soldiers or his heirs, to correct his record with an honorable discharge, and to restore his back pay. Jaworski’s reputation as a fair and objective prosecutor who respected the due-process requirement of disclosing exculpatory evidence was badly tarnished.

Many years later, the prosecution of Senator Ted Stevens of Alaska involved a violation of due process almost exactly parallel to that in the Watergate cover-up prosecution. In the election year of 2008, the Public Integrity Unit of the Department of Justice charged Stevens with not disclosing the value of vacation home renovations on his Senate financial disclosure forms. His conviction cost him his re-election and provided the Democrats with the critical sixtieth vote in the Senate that made them immune to Republican filibusters on Obamacare, on financial regulation, and on confirmations of presidential appointees.

If Senator Stevens had in fact improperly accepted improvements to a home in Alaska, the evidence and all of the witnesses would be in Alaska, and the wrongdoing could better have been prosecuted there. But prosecuting a popular senator on his home turf would be difficult, so the Department of Justice reconfigured the charges as a failure to disclose such improvements on Senate forms—which meant that he could be prosecuted in the District of Columbia, with a jury pool well known for its dislike of Republicans.