The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (24 page)

At least one of the parties to the agreement must then make an overt act in furtherance of that agreement—or, in the words of the federal statute, “[A]nd one or more of such persons do any act to effect the object of the conspiracy. . . .” This element of the crime is largely inconsequential, since the act can be committed by any member of the alleged conspiracy and need not be substantial or even criminal. Almost anything done by any member can be seen as having put the agreement into motion.

There must, however, be a “buy in” by each of the defendants; there must be a meeting of the minds (which is an analogy to contract law). The mental component of the conspiracy, however, involves two distinct states of mind. First, the defendant must understand and appreciate that an agreement has been reached and, second, the defendant must understand and appreciate that achieving the object of the agreement will involve some sort of criminal activity. Put a little differently, it must be shown that there was an intent to agree, as well as an understanding that a criminal offense was the desired outcome of that agreement. This particularized desire has been characterized as a requirement of
specific
intent.

If you have followed this description thus far, you should begin to see how ephemeral conspiracy concepts are—and how confusing such prosecutions can be to jurors.

Criticisms of prosecutors’ use of conspiracy statutes are common. Professor Paul Marcus wrote what for our purposes is the definitive article in 1976—“Conspiracy: The Criminal Agreement, in Theory and in Practice.”
¹¹
The basis for the article was a detailed questionnaire
of over thirty issues, which Marcus sent to over 1,600 judges and practitioners—including both prosecutors and members of the criminal defense bar. Half of those questioned responded in a substantive manner. The questionnaire was then followed up with face-to-face interviews with a variety of lawyers and judges in fourteen major U.S. cities.

Marcus opened his article with contrasting statements about conspiracy statutes, the first by Justice Felix Frankfurter in a 1961 opinion:

          
[C]ollective criminal agreement—partnership in crime—presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.

Frankfurter’s approving view of conspiracy prosecutions is contrasted with that of Clarence Darrow, who stated in his 1932 biography, “If there are still any citizens interested in protecting human liberty, let them study the conspiracy law of the United States.”

Richard Harris, writing in the
New Yorker
, went further:

          
In the view of most civil libertarians, conspiracy laws are basically pernicious, and should be either rewritten or taken off the books altogether. During conspiracy trials, moreover, prosecutors are permitted wide procedural latitude in presenting evidence, such as the right to introduce information that is based on the assumption that a conspiracy exists, though its existence has not yet been proven, while defendants are deprived of ordinary courtroom protections, such as the inadmissibility of hearsay evidence.
¹²

Marcus poses two troubling questions:

          
First, if the purpose of a primary rationale for the conspiracy law is to enable the government to intervene before the crime itself has occurred, why are prosecutors allowed to bring conspiracy charges
after
the crime itself has occurred?

                
Second, doesn’t conviction on both the conspiracy charge and the underlying crime constitute dual punishment (a sort of double jeopardy) for the same crime?

Marcus suggests the reasons for prosecutor’s widespread use of conspiracy statutes after posing the following question:

          
If the theoretical basis for convicting persons of both the substantive offense and the conspiracy is not supportable, and if in practice the conspirator rarely receives consecutive sentences, why do prosecutors charge and attempt to prove two offenses at trial? Surely there must be an advantage to counteract the disadvantages of time consumption and confusion engendered by more complex jury instructions. According to defense counsel, the advantage is higher conviction rates.

By far the most important advantage of including a conspiracy charge alongside the substantive count is the exception to the hearsay rule for any statement of any conspirator made during the course of the conspiracy. Such statements are admissible at trial against all conspirators. As Marcus documents in a footnote,

          
The out-of-court declaration of a coconspirator may be used as substantive evidence against the defendant as long as the declaration was made during the course of the conspiracy and in furtherance of it. The rationale for this exception to the hearsay rule is that the coconspirators are agents of one
another, and any such statement by one is the statement of all.

Marcus dramatically illustrates the perceived advantages of this exception in his table of responses to the following question:

          
Question 10: What would be the result of eliminating the hearsay exception where conspiracy is charged or where it is the uncharged basis for the charged crime?

The view of virtually all practitioners was that there would be a dramatic—almost catastrophic—decline in convictions were this exception to the hearsay rule to be eliminated.

The enormous influence of this hearsay exception on obtaining convictions, Marcus concludes, was almost universally accepted. And this is not only the exception to evidentiary rules that a conspiracy charge opens up. Marcus points out that the admissibility of acts of co-conspirators at trial also is hugely influential and is seen as a distinct advantage by almost 80 percent of his survey respondents.

Marcus identifies other advantages of bringing conspiracy counts:

          
The survey shows that these advantages are important, but it also establishes that other reasons encourage prosecutors to charge conspiracy: the reaction of the jury or judge to the alleged danger of group activity, jurors’ confusion that may lead them to convict all defendants, longer sentences, and improved plea bargaining positions.

A final point is pertinent to Watergate. The case law on conspiracies has been developed primarily in prosecutions for illegal gambling, narcotics distribution, or organized crime. In such cases, mere membership in the corrupt organization is evidence of an evil state of mind. Thus, once a conspiracy has been shown to exist, virtually no additional proof is necessary to add additional defendants to that
conspiracy, since there is no innocent reason for them to be a part of that group. When the organization in question is a legitimate one—such as the White House staff or a political committee—in which people could well have gone about their daily lives without being confronted with first having to join a criminal enterprise, a criminal prosecution framed in terms of conspiracy can easily produce unjust results.

It is easy to see why conspiracy was the first count named in the cover-up indictment brought by WSPF prosecutors. But a conspiracy charge becomes particularly troublesome when the underlying substantive charge is obstruction of justice, which is also a thought crime.

The definition of the crime of obstruction is exceedingly broad, encompassing interference in some way with an official investigation or court procedure. The Watergate cover-up defendants were charged under 18 U.S.C. § 1503, Influencing or injuring officer, juror or witness generally (“Whoever corruptly . . . endeavors to impede any witness . . .” as the statute read at the time) and § 1001, Statements or entries generally (“Whoever . . . knowingly and willfully falsifies, conceals or covers up . . . a material fact . . .”). Obstruction is typically committed by lying to investigators (perjury or false statements), by getting others to lie to investigators (subornation of perjury), or by destroying evidence (even if not then under subpoena).

With such a broad and open-ended definition, almost any act could be alleged to constitute an obstruction of justice. The only safeguard, such as it is, is the requirement of specific intent to obstruct or otherwise interfere with a judicial proceeding. The defendant, then, must not only know of the legal proceeding but must appreciate the connection between his act and that proceeding.

For our purposes, it is the reason behind the act in question, the defendant’s intent, which would pose the greatest challenge for the jury. To find guilt, the jury would be required to look into the mind of each defendant to determine his motive and the rationale for his actions.

Coupling a charge of conspiracy to obstruct justice with a charge of the obstruction itself doubles down on the key issue—to find one would be to find the other. This is particularly true when evidence—the acts and statements of co-conspirators, which become admissible only because of the conspiracy charge—will influence the jury’s deliberations on the obstruction charge.

Mitchell, Haldeman, and Ehrlichman were also charged with perjury under 18 U.S.C. § 1621, which provides, “Whoever, having taken an oath before a competent tribunal . . . willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury. . . .” Federal prosecutions for perjury are quite rare, however, because of the difficult burden of proof. The government must show that the untruth involved something material to the investigation, and the untruth must be proved from two independent sources.

Similarly, 18 U.S.C. § 1623 punishes false declarations before a grand jury or court with penalties of up to five years. Materiality is still required, but prosecutions do not require any particular number of witnesses or documentary evidence.

Under either section, the trial jury must decide what was going through the defendant’s mind at the time of his allegedly false testimony, a task that is particularly difficult if the defendant’s response to a question was that he could not remember.

SELECTING THE COVER-UP DEFENDANTS: THE ABUSE OF PROSECUTORIAL DISCRETION

There were lots of possible defendants for the cover-up’s comprehensive indictment. Students of Watergate have long wondered how these seven,
¹³
and no others, were selected for the political trial of the century. Documents which I have only recently uncovered tell a most interesting tale.

In early 1974 the prosecuting attorneys on the Watergate Task Force, then headed by Richard Ben-Veniste, held a series of meetings with the senior staff lawyers in the Office of the Special Prosecutor—Special Prosecutor Leon Jaworski, his deputy, Henry Ruth, and Special Counsel Philip Lacovara. What we know about these meetings comes from the handwritten notes taken by Peter Kreindler, the special prosecutor’s executive assistant. The notes are so detailed and revealing that they read like an account of a jury’s deliberations.

In the initial meeting on January 11, they discussed Richard Kleindienst, the former attorney general; Patrick Gray, the former acting director of the FBI; Jack Caulfield, Dean’s assistant, who had helped with the alleged “hush money” payments; and Herbert Porter, the young CRP staff member who had testified falsely before the grand jury about Gordon Liddy’s budget. No decisions were made, except that Gray would not be indicted. He had shown, they felt, bad judgment but was not involved in the conspiracy.
¹⁴

Kreindler summarized the deliberations: “Watergate [Task Force] views core as Mitchell, Haldeman, Ehrlichman and Mardian. Questions, in addition to Bittman & Parkinson, are Colson, Kalmbach & Strachan.”
¹⁵

In the next meeting, on January 31, they discussed Caulfield, who a year earlier had tried to induce James McCord not to testify against members of the administration. The special prosecutor had offered to recommend a suspended sentence for Caulfield if he pleaded guilty to a conspiracy charge, but now there was some concern about setting such a precedent. Jaworski agreed to stand by the agreement, but wanted to avoid any announcement and to let the matter drift for the time being.

The discussion then turned to Kenneth Parkinson, a lawyer who had passed messages about the defendants’ payment needs to CRP and the White House. He also had been told the story of the break-in by Magruder and had made extensive notes. When Mitchell denied Magruder’s story, Parkinson had destroyed those notes and helped to prepare Magruder for his grand jury testimony. Ben-Veniste said Parkinson’s background “couldn’t be cleaner. Pillar of bar & community, etc.,” but he had to be indicted because the “core of whole case is about money. Parkinson caught up in money.” Jill Volner, another task force prosecutor, added that Parkinson “has nothing to offer as a witness & would be counter-productive.” She added that the U.S. attorney prosecuting the Vesco case in New York, where Parkinson had initially represented Stans, “believes that Parkinson has lied to them.” The conclusion: “Watergate recommends including Parkinson as a defendant. Have decided tentatively, though, not to charge him with perjury. Only charge principals w/ perjury (Haldeman, Ehrlichman, Mitchell, Strachan).”