The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (18 page)

How reassuring. Here is yet another instructive example of how a considerate and resolute judge has assessed an unfortunate incident and dealt with it in a prompt and proper manner—from the lips of the very judge who acted so responsibly. And he knows the reporters were contrite about what they had done because they said so in their bestselling book.

The only trouble is that much of this story turns out to be completely untrue.

Sirica’s remarks to the overreaching journalists were hardly a “stiff lecture in open court.” Having collected members of the press in his
courtroom on December 19, 1972, he informed them that “a news media representative” had improperly approached grand jurors, a trespass he characterized as “extremely serious.” He took no action against the two reporters, warning only in the most general way that seeking out grand jurors could, potentially, place people in contempt of court.

Gordon Liddy, who had been indicted by this same grand jury and was soon to stand trial before this very judge, complained in his memoir that Sirica “had knuckled under to the
Post
’s powerful lawyer, Edward Bennett Williams,” pointing out that far from singling out Woodward and Bernstein for their unacceptable conduct, Sirica had never even mentioned their names.
⁸

This was not the only ex parte meeting that Williams had with Sirica at that time:

          
Shortly after Sirica’s lecture to the press against seeking out grand jurors, a potential witness in the case mistakenly understood Woodward to have identified himself as an FBI agent when he tried to interview her. Williams again had to argue on behalf of Woodward and Bernstein to Sirica, who placed additional restrictions on the two eager reporters.
⁹

So we have not one but two instances of private meetings between Sirica and Ed Williams, about whose friendship the judge was so punctilious that he would not allow Williams even to practice before him in court. Of course, we do not know the full content of the meetings—since they were secret and no record of their conversation was kept—so we don’t know what else might have been said during the course of their discussion. It seems fair to assume, however, that these were not quick, five-minute conversations.

We only know that if the defendants’ counsel had been made aware of these meetings, as they should have been, they would have insisted that they be conducted in open court and on the record so that everyone would know what had been said and they could have been assured that their clients’ interests had been protected.

This was how matters stood until April 29, 2012, when an article by Jeff Himmelman was posted in the online edition of
New York
magazine.
¹⁰

Himmelman, who had been Woodward’s research assistant and lived on the third floor of Woodward’s house, had agreed to help Ben Bradlee, the ninety-year-old former editor of the
Washington Post
, who was considering writing another book. Bradlee, who died in October 2014, subsequently decided to have Himmelman write the book on his own and opened all of his files to the young researcher.

The article, soon followed by the book itself,
Yours in Truth: A Personal Portrait of Ben Bradlee
, contained a number of remarkable revelations. To begin with, in a talk on March 15, 2011, Woodward said that the
Post
’s lawyers had approved their efforts to interview the Watergate grand jurors:

          
In the Watergate investigation, Carl Bernstein and I went to talk to grand jurors.
We had legal advice saying we could do it
. It was very risky. It is not something I’m sure I’d do all the time, but when you’re convinced the system of justice has collapsed, I think you have to be very aggressive. But we didn’t say we were from the U.S. attorney’s office. We identified ourselves as
Washington Post
reporters—and we got nothing from the grand jurors [emphasis added].
¹¹

This is rather startling news, since Williams had vehemently denied ever giving advance permission for this initiative. It also does not sound like the contrition that Sirica bragged about having inspired with his skillful handling of this breach of grand jury sanctity.

Himmelman also disclosed that Williams himself had strongly objected to the description of his meeting with Sirica that appeared in Woodward’s and Bernstein’s blockbuster book,
All the President’s Men
:
¹²

          
Williams didn’t like the idea of a back room deal with Sirica and objected to its publication in
All the President’s Men
; just
before the book came out he appealed to Simon and Schuster to have it eliminated from the manuscript. When it made it into the final draft, Williams refused to talk to Woodward for two years.
¹³

Williams was right to be seriously concerned. Much more attuned to the Rules of Professional Responsibility than the two reporters, the eminent lawyer had realized all along that his meeting with Sirica could have been characterized—and criticized—as a back-room deal. But Woodward’s and Bernstein’s description was an entirely different matter. Williams knew the responsibilities and obligations regarding ex parte meetings between lawyers and judges and feared that the disclosure of such a meeting in the reporters’ book would be seen as a clear violation of both legal and judicial ethics and lead to real trouble. It is no wonder that he was so aggressive in his efforts to have that section removed and that he reacted so strongly when it was not. The disclosure could have gotten him hauled before the bar association’s ethics committee and perhaps even disciplined as a result.

Himmelman’s most interesting disclosure, however, was that Bernstein had, in fact, succeeded in interviewing at least one of the Watergate grand jurors. She turns out to be the source that the two reporters misleadingly described in their book as “Z,” with the implication that she was a CRP secretary.
¹⁴

Bradlee’s files contained seven pages of typed notes from Bernstein’s interview with that grand juror on December 4, 1972. This appears to confirm that Bradlee himself knew of Bernstein’s success, and it suggests that the evidence of this breach of grand jury sanctity had been deposited with Bradlee for safekeeping when Silbert was tipped off about the reporters’ attempted interviews. If they were questioned, Woodward and Bernstein could deny having anything incriminating in their possession. While one hesitates to question the ethics of these heroic journalists, the cynically minded might ask in what other particulars the veracity of their reporting might be doubted.
¹⁵

Finally, Himmelman found the following notes from the files of Alan Pakula, the director of the movie version of
All the President’s Men
:

          
Barry Sussman [the editor in charge of the
Washington Post
’s Watergate coverage], to Pakula: “Some of their writing is not true . . . that they never got something from a Grand Jury member. Barry thinks that’s wrong. They did get information from one person and Carl planned to meet with that person again.”
¹⁶

There is considerable basis, therefore, for believing that the
Post
’s entire newsroom had been lying about the grand juror incident for forty years. It also contains the tantalizing possibility that Edward Bennett Williams not only knew and approved of the initiative in advance but may also have known about the successful interview with one of the grand jurors when he assured Sirica that Woodward and Bernstein had obtained no information from any of them.

The reporters’ interview with at least one Watergate grand juror was highly improper, and their lying about it for the subsequent forty years only adds to these concerns. A zealous prosecutor could have framed the interview as an obstruction of justice and the participation of the
Post
’s management and its counsel as part of a conspiracy to obstruct justice. But that sort of prosecutorial zeal was reserved only for Nixon and his associates.

Williams’s ex parte meetings with Sirica were equally improper and clearly influenced the judge to react much less aggressively than he might otherwise have done. But for Williams’s personal and private intervention with Sirica, we might have learned far more about this troublesome breach of the sanctity of the Watergate grand jury. Some cover-ups, it seems, are successful.
¹⁷

Moreover, if it could have been shown that the grand jury’s secrecy had been breached and that the breach had led to further adverse publicity about potential defendants, the necessity of moving their subsequent trial to another jurisdiction might have been undeniably apparent.

If plaintiffs can informally dispose of problems through friendly chats with a judge who is remorselessly exacting with the defendants in a parallel case, then we must seriously question whether the trials over which that judge presides meet the standards of fairness demanded by the Fifth Amendment.

Ex Parte Meetings with Clark Mollenhoff

Clark Mollenhoff
¹⁸
is not a name many people know today, but it once was—at least among members of the Washington press corps. Before the legend of Woodward and Bernstein made investigative reporting a hallowed profession, Mollenhoff (1921–1991) was the dean of Washington’s investigative reporters. The Institute on Political Journalism still bestows its annual Clark Mollenhoff Award for Excellence in Investigative Reporting on the author of the best investigative journalism in a newspaper or magazine.

Born and raised in Iowa and a 1944 graduate of Drake University law school, Mollenhoff was admitted to practice in Iowa, in Washington, D.C., and in the federal courts up to and including the U.S. Supreme Court. He was a reporter, yes, but also an active member of the legal profession and subject to its rules of professional responsibility.

Mollenhoff had worked for the
Des Moines Register
since his college days and was assigned to its Washington bureau following his year at Harvard as a Neiman Fellow. A nationally syndicated columnist and the author of several books, Mollenhoff had won the Pulitzer Prize for his reporting on the influence of organized crime in American society before joining the Nixon White House staff as special counsel in 1969. After leaving the White House, he authored six more books, including
Game Plan for Disaster
(1976), about Watergate, and a college textbook,
Investigative Reporting
(1981), whose highly disturbing disclosures will be the focus of our attention. Like Edward Bennett Williams, Mollenhoff was a close friend of Sirica, who mentions him twice in his own book.

Like many of the more prominent reporters in the capital, Mollenhoff was not content merely to report on the news; he felt compelled to help shape newsworthy events themselves. For example, in July 1974, as
Watergate spiraled toward its unhappy conclusion, Mollenhoff became so troubled about Vice President Ford’s continued support of Nixon that he took it upon himself to counsel the vice president:

          
I called Ford on the telephone. In a brief, friendly conversation, I expressed my views and listed the reasons for my opinion that the evidence established a serious criminal case of obstruction of justice against Richard Nixon. Ford offered no rebuttal to the facts I cited or to my legal considerations.

                
It was not my desire to urge him to criticize President Nixon, but I did suggest that it was in neither his best interest nor that of the country for him to engage in a public defense which was without merit.
¹⁹

The man on the phone with the vice president was not a reporter—much less a reporter’s reporter. This was a man of action, one who knew what public officials ought to be doing and was not shy about telling them so directly.

Similarly, Mollenhoff modestly credits himself with talking Jeb Magruder into coming clean about his own role in Watergate and its cover-up. Mollenhoff sought him out in April 1973, after Judge Sirica had read James McCord’s letter, to share his views about Magruder’s deteriorating situation. Having first talked to Magruder’s attorney, Mollenhoff took it upon himself to help Magruder to switch sides; that is, to become a prosecution witness. When they met, Mollenhoff writes,

          
I told him . . . that I planned “to write a column indicting you in connection with the Watergate affair.”

                
When I entered his office, at 2:00 P.M., Magruder had been reasonably confident that he could “ride it out,” but when I left, at 2:30, he was nervous and uncertain, making frequent reference to assurances his lawyers had been giving him for some months. As a parting shot, I tossed another ingredient into his stew: “I don’t know who your lawyers are
and I don’t want to know, but if they are paid for by the Nixon re-election committee, you had better ask yourself whether they are really looking out for your interests or whether they are using you to protect some higher-ups.”
²⁰

The day after his meeting with Mollenhoff, Magruder came clean with his lawyers, which quickly led to his agreement the evening of April 13 to plead guilty to a single felony count and to become a prosecution witness.

Mollenhoff injected himself into the heart of the scandal at the precise moment that the cover-up was collapsing, creating the appearance, at least, that he was more interested in breaking the cover-up and bringing down the Nixon administration than in Magruder’s personal welfare. Mollenhoff was, as they say, an interested party, and he acted not as a reporter but as an active participant in the Watergate drama.