The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (25 page)

Next on the agenda was William Bittman, Hunt’s defense lawyer. Jaworski stated that he knew the case well and had read all the memos. He stated that he was “troubled because of Bittman’s record.”
¹⁶
When Volner said Bittman knew well what was going on, Jaworski responded “from his experience that it may not have dawned on Bittman that he was doing something criminal,” (a state of mind that could have applied to most of the Watergate defendants). The matter was left unresolved, since Jaworski had agreed to meet with Bittman’s attorney to hear his side of the argument.

The next potential defendant was Gordon Strachan. After recalling that Strachan had “lied extensively to GJ in 4/73 about transactions with [Fred] LaRue,” the task force recommended that he be included in the conspiracy count and charged with perjury before the Senate. It was noted that there would be legal problems, since that testimony had occurred under a grant of use immunity.

The group then turned to Charles Colson. Jaworski opened the discussion: “LJ [Jaworski] said he is familiar w/ facts—talked to Colson
and Shapiro at length. [David Shapiro was Colson’s law partner and represented him in the criminal case.] LJ does not see strong case, but sees possibility of plea because of concern about indictment.” Kreindler goes on to observe:

          
RB-V [Ben-Veniste] thinks conspiracy could be won. PAL [Lacovara] raised problem of Colson getting caught up in larger conspiracy.

                
PMK [Kreindler] stated 8/72 perjury seems more solid & better case than major conspiracy. Perjury alone and/or conspiracy recognized as possibilities.

                
HR [Ruth] points out that no one testifies as to promise to Hunt of clemency—Dean pitted against 4 other witnesses.

                
LJ said if there are significant doubts, Fielding break-in [the Plumbers trial] may be way to proceed.

Colson appears to be a rather close case, and the matter remains unresolved, but the DOJ standard for indictment (which the special prosecutor announced he would meet) is that the prosecutor must believe a conviction is probable, which requires more than a fifty-fifty chance.

Kreindler’s notes conclude:

          
LJ has seen memos on Haldeman, Ehrlichman, Mitchell and Mardian & expressed no problem. Conspiracy & substantive count against each. Perjury against 1st three.

The next meeting occurred on Saturday, February 16. In response to a question about the order of the defendants, Jaworski directed that the indictment “name defendants ‘Mitchell, Haldeman & Ehrlichman’ and then alphabetically.” The discussion then focused on the timing of the indictment, Kreindler noting that “Sirica does not want indictment delayed.” This reference suggests that it was rather well known to prosecutors that Sirica faced a deadline in appointing himself to preside over the cover-up trial. Jaworski then inquired about indicting Colson for
perjury before the grand jury. Ben-Veniste opposed such a charge, saying there was enough to indict on the conspiracy charge, with a fifty-fifty chance of conviction. Ruth opposed naming Colson at all because the evidence would show that he was trying to get the story out after February 1973. Kreindler records that Ben-Veniste would start summing up the following Tuesday, when they would resolve questions about Colson and Bittman, and the meeting concluded.

If such a subsequent meeting occurred, we do not have Kreindler’s notes from it, but the WSPF file contains a two-page typed memorandum titled “Watergate, Final Decisions” and dated February 20, 1974, a Wednesday (see
Appendix M
). The first half-page reads in pertinent part (emphasis in original):

          
1.
    
Ruth has decided to include
Parkinson
in indictment. LJ said he agrees with it but did not want to make that decision but will sign indictment.

          
2.
    
On basis of Ben-Veniste’s assessment of chances of conviction of
Colson
on the evidence, LJ has decided that he should be included. Ben-Veniste said evidence shows he is a member of conspiracy and there is a 50-50 chance of conviction. Ruth dissents.

          
3.
    
Mardian
is to be included, according to LJ, because of his
early
involvement in incriminating activities, even though he withdrew later.

          
4.
    
There are no doubts about inclusion of
Mitchell
,
Ehrlichman
,
Haldeman
and
Strachan
.

The next page and a half is devoted exclusively to Bittman:

          
LJ has decided not to charge him; he was appearing [before the grand jury] as defense counsel acting for a guilty client [Howard Hunt], but one he had an obligation to do his best for. His conduct was unsavory, but his role is that of defense counsel and his actions are subject to several interpretations,
including those consistent with representing his client’s interests.

There followed extensive push-back from members of the Watergate Task Force, who had unanimously recommended Bittman’s indictment. Their questions for Jaworski include: How can you indict Parkinson, a man of sterling reputation, who was also acting as counsel, and not Bittman? How can you indict Colson, when chances of conviction are “no more than 50-50,” and not indict Bittman? But Jaworski held firm, and Bittman walked free.
¹⁷
In a two-page memorandum to Jaworski, Lacovara made one last attempt to convince him not to include Colson, noting that both Ruth and Kreindler shared his concerns, but to no avail (see
Appendix N
).
¹⁸

From this internal debate, it seems reasonable to conclude that Mitchell, Haldeman, and Ehrlichman were named first in the indictment to make clear—even to the most casual observer, but certainly to the jury—that they were the central defendants. They were deliberately named first. Although specific perjury counts could have been brought against each of the defendants, they were filed only against these three, who were characterized as “principals” not because they were principals in the cover-up but because they were Nixon’s closest associates. Indeed, after all the verdicts had been rendered and the appeals had concluded, only these three stood convicted of the cover-up. Everyone else named in the original indictment had been acquitted or had seen his charges dropped.

Lawyers retained as counsel were held to a higher standard (the phrase used by Jaworski), but that standard was unevenly applied. Kenneth Parkinson, a Republican who represented CRP in a civil case, was indicted. William Bittman, a Democrat who represented Hunt in a criminal case, was not. Parkinson, it should be noted, was the only defendant acquitted by the trial jury.

Charles Colson was included in the indictment even though the Watergate Task Force rated the chances of his conviction at no better than fifty-fifty and Jaworski’s entire staff opposed including him. Colson
was indicted not because he was central to the cover-up conspiracy but because, as Kreindler recorded, Jaworski saw the “possibility of plea [bargain] because of concern about indictment.” Jaworski was right. Colson was indicted (in both the cover-up and the Plumbers cases) and was the first to agree to a plea bargain and to become a witness for the government.

The WSPF’s decision about whom to indict for the cover-up reeked of political manipulation and brings no credit to Jaworski as special prosecutor. In a textbook case of prosecutorial abuse, he punished his political enemies and rewarded his political friends.

HIDING THE BALL: NON-DISCLOSURE OF EXCULPATORY EVIDENCE

The record of the WSPF prosecutors was tarnished by highly questionable acts and omissions with regard to their two principal witnesses, John Dean and Jeb Magruder. The duty of the prosecution to disclose possibly exculpatory evidence to the defense is a well-settled element of due process. The Supreme Court developed this doctrine in three cases that bear on the Watergate prosecutions.

In one of its landmark decisions in the criminal law, the Warren court overturned a murder conviction in
Brady v. Maryland
(1963) because the prosecution had not shared possibly exculpatory evidence in its possession with defense counsel. The Brady doctrine, as it came to be known, was considerably expanded in two subsequent decisions.

In 1972, the Court held that the prosecution must inform the jury if its witness has been promised immunity in exchange for his testimony.
¹⁹
And in 1976, the Supreme Court held in
United States v. Agurs
that undisclosed evidence is material if it would create a reasonable doubt of guilt that did not otherwise exist.
²⁰
Since the appeal from the Watergate cover-up trial was argued before the D.C. Circuit Court on January 6, 1976, and decided on October 12, 1976, the
Agurs
rule applied.

The case for disclosure was even stronger for reasons that only a lawyer could love.
Agurs
itself was appealed to the Supreme Court from the D.C. Circuit, which had ruled that withholding
any
material evidence violated due process.
²¹
Thus, during appeal of the Watergate cover-up convictions, the disclosure standard within the D.C. Circuit was even more expansive than that ultimately adopted by the Supreme Court on June 24, 1976.

As discussed below, it appears quite likely that the Watergate prosecutors violated the Brady doctrine by keeping from the defense material that could have undermined the testimony of the prosecution’s chief witnesses, Dean and Magruder.

THE BRADY DOCTRINE AND JOHN DEAN

The newly recruited Watergate Special Prosecution Force built its case against the cover-up defendants almost entirely around Dean’s testimony. Richard Ben-Veniste and George Frampton described Dean’s importance to their case:

          
The Watergate Task Force regarded the securing of Dean as a government witness to be the key to our entire case. Haldeman and Ehrlichman had acted almost exclusively through him. Without Dean, there were few direct witnesses against either Haldeman or Ehrlichman. There was no one else who could testify of his own personal knowledge to the full spectrum of their activities in the cover-up.
²²

Dean’s cooperation was so important to the Watergate Task Force that they did not charge him with destruction of evidence when he admitted to them on November 3, 1973, that it was he who had destroyed the notebooks and other materials taken from Howard Hunt’s safe. Dean’s admission to the prosecutors came within three weeks of Sirica’s approval in open court of his formal plea bargain. While the prosecutors did make Dean’s admission public right away, they took no action against him in response.

Nor did the special prosecutor take action against Dean when a good deal of his sworn testimony before the Ervin Committee turned out to be in substantial error. One of the White House’s goals in releasing transcripts of the tapes on April 30, 1974, was to highlight the errors and omissions in Dean’s Senate testimony. Indeed, several days later, on May 4, the White House Office of Communications released a thirty-two-page report detailing some nineteen instances where Dean’s assertions before the Ervin Committee were contradicted by the tapes themselves—particularly with regard to what he had told the president before their “cancer on the presidency” meeting of March 21, 1973.

But WSPF prosecutors already knew of such problems with Dean’s testimony. Following Jaworski’s assertion on February 3, 1974, on ABC’s
Issues and Answers
that prosecutors had full confidence in Dean’s veracity, Watergate Task Force attorney Peter Rient submitted a three-page analysis to Ben-Veniste, dated February 6, 1974 (see
Appendix L
), identifying some sixteen “material discrepancies” with the White House tapes then in their possession (the ones they had received from Sirica on December 12). We know that Jaworski was aware of this analysis because a copy of the memo was found in his confidential Watergate files. Nonetheless, Jaworski asserted on February 14 that WSPF prosecutors had concluded that Dean had made no “material misstatement in his testimony.” At a hearing the next day, Judge Gesell cautioned counsel for both sides to cease the public debate concerning Dean’s veracity, but WSPF prosecutors never stepped back from their firm public assertions of Dean’s credibility.
²³

The indictments of Haldeman and Mitchell—handed down within three weeks of these events—included perjury counts for similar erroneous testimony before Congress, but comparable charges against Dean were never contemplated.

This selective prosecution is powerful evidence that highly partisan WSPF prosecutors were out to get President Nixon and his senior aides “at all cost.” They labored over the preparation of prosecutorial reports on Mitchell, Haldeman, and Ehrlichman that ran into hundreds of pages, uncovering every possibility for charging them with perjury in
connection with their Ervin Committee and grand jury testimony. But no one lifted a finger against Dean. Nixon and his senior aides were their enemies; Dean was their friend.

As we saw earlier, Cox had expressed strong concerns about Dean and his actions during the cover-up, but Cox was gone, and the single overriding goal was to get Nixon and his top aides. To do so, they had to rely on Dean—and that required fully buying into Dean’s story that he was only doing what he had been told to do by his White House superiors. The problem was that there was evidence to the contrary, and it was sitting in their own files—evidence that was not disclosed to defense counsel, as required under the Brady doctrine.