The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (15 page)

Amazingly, Sirica had the audacity at his March 6th hearing on this matter to raise the possibility that the Judiciary Committee ought to postpone its impeachment investigation until the conclusion of the cover-up trial over which he would soon preside. “What harm would be done by waiting for this trial, which will begin September 9th?” he asked.
Somehow none of the lawyers present, particularly those representing the Judiciary Committee and the president, felt that halting the committee’s own investigation during the pendency of Sirica’s show trial was prudent or even feasible.

On March 18, Sirica ruled in favor of transmitting the Road Map. His opinion did not mention the inclusion of any tapes, but it did indicate that he knew what would be transmitted: “After having had an opportunity to familiarize itself with the contents of the Report, the Court invited all counsel who might conceivably have an interest in the matter, without regard to standing, to state their positions concerning its disposition.”

Haldeman and Ehrlichman appealed to the D.C. Circuit two days later, and the appellate hearing was held and decided the very next day—a harbinger of the quick affirmations of Sirica’s rulings that were to dog them throughout their defense. Sitting en banc, the five members of the circuit court’s liberal block issued an unsigned order upholding Sirica’s ruling.
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In its brief order, the court relied heavily on the judgment of the special prosecutor in instituting the report and on that of Sirica in upholding its transmittal, saying that their determination that the defendants could still receive a fair trial was more persuasive than the “slender reed” raised regarding possible prejudicial pretrial publicity. Nowhere in the court’s opinion, including in Judge MacKinnon’s dissent, was it acknowledged that some of the “selected evidence” being transmitted included actual tape recordings and WSPF transcripts.

The White House had consistently resisted court enforcement of congressional subpoenas of tape recordings and had prevailed in suits before Sirica, Gesell, and the D.C. Circuit. It seems clear in retrospect that if the White House had known of the inclusion of tape recordings, they would have objected to their transmittal in this manner because of the precedent that would be set. It further appears that had the court of appeals been formally informed of the tapes’ inclusion, it too would have been hard pressed to uphold the transmittal’s propriety. Both the WSPF prosecutors and Sirica must have realized this, which is why they took
great pains to avoid any specific mention of the inclusion of the tapes themselves.

So, what did the much-heralded Road Map say? While it remains sealed, the best source as to its contents is James Doyle, who wrote:

          
It was a simple document, fifty-five pages long, with only a sentence or two on each of the pages. Each page was a reference to a piece of evidence—sentences from one of the tape recordings, quotations from grand jury testimony.

                
Someday the archives will be opened and what the prosecutors referred to as “the road map” will be made public. When that happens it will prove a simple and unimpressive document, for it is narrow, declaratory, without conclusions.

                
This is how the road map worked: One page might say, “On March 16, 1973, E. Howard Hunt demanded $120,000.” Then it would list page references to grand jury testimony from witnesses who saw Hunt’s blackmail note and references to tapes where Hunt’s demand was discussed. The grand jury transcripts and the tape transcripts would be included. The next page might say, “On March 21, 1973, John Dean told President Nixon that Hunt had demanded $120,000, and that he estimated Hunt and the other Watergate defendants would ‘cost’ a million dollars in the next two years.” More grand jury and tape transcript page references. The next page would say, “President Nixon responded, ‘For Christ’s sake, get it’”; and there would be further references to the tapes.

                
The strength of the document was its simplicity. An inexorable logic marched through its pages. The conclusion that the President of the United States took part in a criminal conspiracy became inescapable.
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Doyle’s example of “how the road map worked” suggests that it made the same unsupported leap that Frampton made in his draft prosecutorial report, namely, that since the March 21st payment to Hunt’s
lawyer followed Dean’s meeting with President Nixon, the payment must have been made as a result of that meeting.

The Frampton Supposition is a classic example of the logical fallacy
post hoc, ergo propter hoc—
literally, “after this, therefore because of this.” The Watergate Task Force built its case on this fallacy because it had to—it had nothing else. Charging ahead, the prosecutors privately informed the grand jury and the House Judiciary Committee of their conclusion that President Nixon had personally ordered actions in furtherance of a criminal conspiracy, hoping that everyone would ignore or fail to notice the missing causal link.

NAMING NIXON AS AN UNINDICTED CO-CONSPIRATOR

In addition to transmitting a report to the congressmen contemplating the impeachment of the president, the grand jury followed the WSPF prosecutors’ counsel and named Nixon as an unindicted co-conspirator in the Watergate cover-up.

As a part of their comprehensive cover-up indictment, the grand jurors had voted nineteen to zero on February 25, 1974, to take this unprecedented action following a personal appeal by Special Prosecutor Leon Jaworski. When the grand jury had taken an earlier straw poll on whether to indict the president, Ben-Veniste had been in the room, at least according to the grand juror George Gross.
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Grand jury votes are not supposed to be taken in the presence of prosecutors, and aside from whether straw votes should be taken at all, the episode indicates how closely involved with the jurors the WSPF prosecutors had become.

Naming President Nixon as a co-conspirator was the very action that Archibald Cox had publicly announced he wouldn’t allow, but Cox was long gone. Jaworski’s own initial, adamant refusal also had been overcome—no doubt as a result of the confidence that the Frampton Supposition had inspired in the prosecution.

Naming the president as an unindicted co-conspirator was deceptively simple and diabolically clever. It put him into an impossible position, both legally and politically—accused of criminal conduct by the grand jury, but unable to come into a court of law to defend himself. But
there was an added benefit: the simple expedient of naming Nixon as a co-conspirator made all the White House tape recordings admissible at trial through an exception to the hearsay rule that will be discussed in the following chapter. One wonders whether the advantage in trial tactics was the real reason in overcoming the lead prosecutors’ prior objections to including the president among the conspirators.

HELP FOR THE HOUSE JUDICIARY COMMITTEE

Apparently, the Road Map was not clear enough for the House Judiciary Committee, and WSPF prosecutors felt obliged to hold secret meetings with its staff to assure that they appreciated what the prosecutors believed they had uncovered. These secret contacts with the impeachment staff began in May, Ben-Veniste and Frampton write, going out of their way to insist that they and his colleagues were “sensitive” to the rules of grand jury secrecy.
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To provide a sharper focus for these meetings, Henry Ruth suggested that Frampton’s 128-page Prosecutive Report on President Nixon should be revised so that prosecutors would have “in hand a comprehensive, up-to-date prosecutive memorandum laying out all of the evidence against the President.”
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Frampton’s sixty-four-page revision, dated June 28, 1974,
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reflects a single-minded focus on the events of March 21, as is evident from its opening paragraph:

          
This memorandum focuses on facts, inferences, and theories that demonstrate that beginning no later than March 21, 1973, the President joined an ongoing criminal conspiracy to obstruct justice, obstruct a criminal investigation, and commit perjury. . . .

This contention is directly contrary to President Nixon’s essential Watergate defense (which Dean vigorously supports in his recent book)—that Nixon didn’t fully appreciate what had been going on before his March 21st meeting with Dean, after which he began trying to get to the
bottom of it. In contrast, WSPF prosecutors asserted that Nixon had joined the cover-up conspiracy upon learning of it.

Frampton recounts the prosecution’s version of the events of March 21—on the president’s instructions, Haldeman called Mitchell after the meeting with Dean and told him to instruct LaRue to meet Hunt’s blackmail demand, which LaRue did that evening—and then sets forth the prosecution’s theory of Nixon’s criminal liability:

          
The actions and statements of the President set out above are sufficient to show that the President joined and became an active participant in a conspiracy to make cash payments to Howard Hunt and others in order to influence their testimony before various tribunals.

                
The President’s counsel has argued that the President did not specifically instruct anyone on March 21 to make the payment to Hunt and that in any event the $75,000 paid on that same night was not paid on a direct chain of instructions emanating from the President. Despite this argument, there is certainly sufficient evidence—consisting of the undisputed facts listed above together with a single inference that a reasonable man could certainly draw therefrom in light of all the surrounding circumstances—to permit a jury to conclude beyond a reasonable doubt that the President did instruct that Hunt be paid and that the President’s instructions were communicated by a direct chain of communication from Haldeman to Mitchell to LaRue, thereby becoming the causal force of the payment that evening. [pp. 16–17]

Frampton goes on to say that, even if they couldn’t prove a direct casual connection, a jury could still find beyond a reasonable doubt that the president “threw his lot in with the conspirators and had made their purpose his own,” and that, even if there had been no seventy-five-thousand-dollar payment at all, “there probably would be sufficient evidence upon which the jury could find Presidential liability.” While
his intent was to cover all of the bases, the main thrust of Frampton’s report was WSPF prosecutors’ belief in the Frampton Supposition, which he repeated:

          
Given the entire chain of circumstances, given the President’s urgent concern about Hunt’s threat on the morning of March 21, and given Haldeman’s role as the President’s chief of staff ordinarily charged with communicating the President’s desires directly to those who were required to take highly significant action, a jury could certainly draw the inference that Haldeman did pass along the President’s feelings as instructions to Mitchell. Such an inference completes the causal chain. [p. 27]

This revised memorandum indicates in the clearest terms the WSPF prosecutors’ nearly exclusive reliance on the Frampton Supposition as the primary evidence of the president’s personal guilt and their eagerness to convince the House Judiciary staff of their conclusions.

But if we pause to reexamine the Frampton Supposition in the cold light of day, we can see it for what it was. It was not, in fact, “a single inference that a reasonable man could certainly draw . . . in light of all the surrounding circumstances” but an argument with absurd implications. By making this one reasonable leap of faith, Frampton maintains, a jury could conclude beyond a reasonable doubt that Nixon did what no actual evidence shows he did. As we shall see, the reasonableness of that single inference did not hold up when challenged in court, and their theory was quietly abandoned, but only after the damage had been done.

Armed with Frampton’s revised Prosecutive Report, WSPF staff connived to convey its full import to John Doar, lead counsel to the Judiciary Committee’s impeachment inquiry. Ben-Veniste and Frampton describe how they pulled this off:

          
Within a few days John Doar became aware of the existence of this memorandum. Doar demanded the document and
told the Special Prosecutor and his deputy that he would recommend to the full Judiciary Committee that it be subpoenaed if necessary. Doar was told, in response, that we believed it would be unwise to have a copy of this document go to the committee physically, as it was an internal prosecution document. Since it was obviously relevant to the impeachment inquiry, however, Doar would be permitted to examine it in our offices if he agreed to withdraw the “threat” of a subpoena. Several late evenings that week Doar pored over the memorandum in Ruth’s office, taking copious notes.
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What Ben-Veniste and Frampton omit is that Doar’s supposed demand for the report and the WSPF’s response are documented by three letters, all dated the same day and all helpfully bearing the notation “By Hand,” as though this exchange of letters really had occurred over the course of a single day. The unlikelihood of such an exchange raises a suspicion that these documents were created after the fact to give the appearance of propriety to the prosecutors’ sharing their report with Doar.

Ben-Veniste and Frampton also neglect to point out that, by supposedly following this procedure (and avoiding the formality of a subpoena), WSPF information was conveyed to the impeachment inquiry staff in secret. The president’s lawyers, unaware of these meetings, had no opportunity to challenge them or to refute the memorandum’s assertions. Since the WSPF’s assistance to the House impeachment inquiry was kept secret, it could not be reviewed by a court of law.