The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (35 page)

Shortly after the trial, an FBI whistle-blower informed the federal district court judge that prosecutors had not told defense counsel of the substantial changes that had occurred in the testimony of the government’s primary witness, and that a possibly exculpatory witness had been whisked back to Alaska so that he would be unavailable at trial. The Department of Justice then undertook its own investigation. Concluding that it could no longer support the verdict, it formally requested in April 2009 that the senator’s conviction be withdrawn. It was too late to restore Stevens to the Senate seat he had lost the previous November, but a special investigating magistrate, appointed by the judge, ultimately issued a scathing three-hundred-page report documenting the prosecutorial misconduct.
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Justice delayed may be justice denied, but these cases show that it is important for the health of our justice system to correct the record, if possible, even many years after a miscarriage of justice. Judge Sirica should not have been allowed to preside at the Watergate cover-up trial. The convictions handed down there should have been reversed and remanded for a new trial. If a fair trial had been held—one in which exculpatory evidence had been disclosed to the defendants, the credibility of prosecution witnesses had not been manipulated with fake prison terms, and the jury was untainted and unbiased—it is quite possible that the jury would have concluded that the prosecutors had not proved their case beyond a reasonable doubt.

So what can be done? After forty years and the deaths of the defendants, retrials are no longer feasible, but there remains a way to challenge these convictions and perhaps to trigger a thorough investigation of the wrongdoing detailed in this book. The defendants’ heirs could petition the original trial court, the federal district court for the District of Columbia, for a writ of error coram nobis, a remedy for a judgment that rests on an error of fact which was not known at the time of the judgment and which, if known, would have prevented the judgment.

Maintaining such an action would be expensive, time-consuming, and fraught with uncertainty. The burden of proof would be on the descendants and strictly-enforced rules of evidence might preclude
introduction of much of the material revealed in this book. It remains, however, a tantalizing possibility, especially because it would place the issue formally before the district court and could put the petitioners in a position to request that the court undertake its own investigation. After all, it is the reputation of the district court that has been challenged by these disclosures, and the court might conclude that it has an interest in responding. As in Senator Stevens’s case, the court could undertake its own investigation, without the necessity of the heirs’ seeking public release of relevant grand jury and other restricted documents.

There might even be an evidentiary hearing of the sort requested by the defendants in their effort to preclude Sirica from presiding at their trial. The defendants had hoped to explore the nature and extent of ex parte contacts between Sirica and the Watergate prosecutors. We know of nine such meetings, but persons still living—who worked alongside of Sirica, Cox, or Jaworski—may know of many more. It was the prosecutors who dodged this issue on appeal, never even responding to the defendants’ request. It would be instructive to have their associates questioned, under oath, regarding such secret contacts between judge and prosecutor.

If the court were to conclude that due process had been denied to these defendants, it could take corrective measures on its own volition, including vacating the convictions.

The Department of Justice would be a necessary party to any coram nobis action and might be asked to undertake its own internal investigation in response or be instructed to do so by the court. The department might conclude that it simply could not support the verdicts and urge, as it did after the disclosures in Senator Stevens’s trial, that they be vacated. If nothing else, the department would have to respond to the petition itself.

Regardless of whether such a petition is filed, the Watergate trials will eventually be studied, not as an example of how our Constitution worked in a time of great stress, but as a case in which fundamental rights of due process were cast aside in a political maelstrom.

WATERGATE IN AMERICAN HISTORY

Any future analysis of the Watergate scandal will have to take into account the disclosures I have detailed, which means starting from scratch. The cover-up convictions have been treated as the capstone, precluding any meaningful review of whether the defendants might have been telling the truth. The mindless conclusion “They stand convicted on all counts, so their individual stories and excuses can be dismissed outright,” which historians have never accepted as the last word in other controversial prosecutions, cannot be the last word here.

Chief Judge David Bazelon’s own words, quoted in chapter nine, undercut any dismissive argument that the defendants were “guilty anyway.” Moreover, guilt can be found only by a court after a constitutionally sound trial.

But removing that capstone, by showing that the cover-up convictions were improperly obtained and are indefensible as a matter of law, would ensure that serious students continue to “wallow in Watergate” (as Nixon put it) for many years to come.

There is no question that the original Watergate break-in and the ensuing cover-up entailed extensive criminal wrongdoing. The essential question, then as now, is whether this criminal activity was confined to the level of Gordon Liddy, Jeb Magruder, and John Dean or whether these men were operating under the direction and control of one or more of John Mitchell, Bob Haldeman, and John Ehrlichman. I strongly suspect that the former view is at least as persuasive as the latter.

There ought to be further investigation into how the judges and prosecutors abused their oaths to uphold the Constitution. Examined in the calmer atmosphere that historical distance affords, their spectacular misdeeds appear more egregious than those of the defendants they persecuted with ruthless abandon.

Any fair analysis of the alleged abuses of power that were the basis for the second article of impeachment brought against Nixon will have to be undertaken in the context of the extensive invasions of privacy stretching back to 1936 that were so well documented by the Church Committee soon after Nixon left office, as well as contemporary assertions
of presidential authority by subsequent administrations (particularly Barack Obama’s).

THE LEGACY OF RICHARD NIXON

History will be kinder to Richard Nixon than most people now realize or than some liberals would like. His many accomplishments, in foreign and domestic affairs, will receive their due appreciation. Moreover, as the Watergate scandal slowly gives up its secrets, future generations of Americans will come to wonder how his political enemies were able to force Nixon’s resignation and undo his landslide re-election by the American people.

One of the most striking historical twists of Watergate is that the effort to bring Nixon down was led by people from the only two political jurisdictions that had voted against his re-election: the Commonwealth of Massachusetts and the District of Columbia. From the former came Senator Edward Kennedy, whose personal investigation evolved into the Ervin Committee and who demanded a special prosecutor as a condition of confirming Elliot Richardson (also of Massachusetts) as attorney general. It was Congressman Tip O’Neill, later to become Speaker of the House, who was the principal behind-the-scenes advocate of impeachment.
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And it was Archibald Cox and his Harvard cohort who dominated the Watergate Special Prosecution Force and turned Nixon’s idea for a special supervising prosecutor into a hundred-man inquisition that investigated every aspect of the Nixon presidency. From the District of Columbia came all of the judges and jurors who tried and convicted the Watergate defendants.

Few today regard the impeachments of Andrew Johnson and Bill Clinton as anything other than partisan excesses spawned by the fevered politics of their respective times. It should come as no surprise when the same conclusion is reached in the future about Nixon’s forced resignation and the conviction of his top aides.

Once John Dean’s recent revelations have been absorbed, especially the clarification of the meaning of the “smoking gun” tape, and
historians have a better understanding of the judicial and prosecutorial treachery that misled the House Judiciary Committee, the entire Nixon presidency can receive the measured and unemotional evaluation that it deserves.

This book is a part of that process, but it will be helped along as more and more scholars realize that the Nixon presidency is by far the most well documented in history. This is not only because of the taping system (with all of its ugliness), but because of the centralization of foreign and domestic policymaking in the executive office of the president (through the revitalization of the National Security Council, the transformation of the Office of Management and Budget and the creation of the Domestic Council), and because Nixon’s decision-making process required written documentation.

Indeed, it would not be surprising for Nixon to make yet another comeback, one more spectacular than his election as president in 1968.

WATERGATE AND THE REST OF US

Once we have corrected the record on Watergate, a necessary first step, how do we citizens protect our country from such abuses in the future?

Perhaps Philip Lacovara best described the situation in an interview with Bob Zelnick on NPR’s
All Things Considered
on October 17, 1974, some two months after the president had resigned, when he said:

          
I wish I could say that I share the unbridled optimism of many people who say that Watergate has shown that the system does work. The system worked in this instance, but only, I’m afraid, because of a unique interplay of events that are unlikely to be repeated [referring to the White House tapes that captured Nixon’s own words during key conversations].

                
These circumstances, I think we can assume, will never again be repeated in history, even if some future President abuses his public trust. So I’m not quite as sanguine as others
about how wonderfully the system has worked. And, frankly, I’m not sure that the mentality that led to a—to the Watergate phenomenon has been erased. I think we’ve found that other public officials, who are more popular than Mr. Nixon was, more easily are being excused for very, very questionable conduct simply because they are seen as important to the conduct of our international affairs or because they have some personal popularity that makes them less vulnerable targets. I don’t think that that is the way our legal or constitutional system should operate, but I’m afraid we’re right back to where we were before Watergate.

Lacovara’s candor earned him a personal rebuke from Jaworski, whose confidential files contain the copy of a handwritten note, alongside the above paragraph, which has been underlined:

          
Phil—In all candor I think it is simply unprofessional for you to get into comments of this type—What prosecutions did you recommend that fell into this category? LJ
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But history has shown Lacovara’s concerns to be well-founded. The Church Committee’s detailed disclosures show that abuses of power were a growing, if hidden, scandal well before the Nixon presidency, and the record of abuses by the Obama administration make Nixon’s look positively amateurish.

The failure of the Watergate reform legislation merely shows what many have known since time immemorial: morality cannot be legislated. There will always be demagogues, charlatans, and outright criminals in public life, as elsewhere. Power will always corrupt, and the powerful will always be tempted to cut corners to achieve their earnestly desired goals.

Much as I would personally love to see the Obama administration officials who were involved in the Fast and Furious, Benghazi, and IRS cover-ups squirm before grand juries convened by a special
prosecutor, I find myself in agreement with Justice Antonin Scalia and D.C. Circuit Court Judge Laurence Silberman that specially selected prosecutors, at least those operating with total independence from the Department of Justice, violate the separation of powers and are unconstitutional.

Even our friend Justice Jackson had little to offer in his 1940 speech with regard to becoming better prosecutors within the Department of Justice. He concluded by saying that it was impossible to define the specific qualities that made a good prosecutor, but it certainly included a sensitivity to fair play and sportsmanship, saying that the best protection against prosecutorial abuse would come from the prosecutor who tempered zeal with kindness, who sought truth and not victims, who served the law and not factional purposes, and who approached his task with humility.

The sad truth is that there is no way to assure those with the power to prosecute will not overreact to alleged wrongdoing in the future. It is so easy to repeat the cliché that those who will not study history are destined to repeat it, but this also does us no real good. As unsatisfying as it sounds, we are left to rely on those characteristics that have proved helpful time and again in our nation’s history: an active and informed citizenry with a sense of fair play and a free and vibrant press. And if I may say so, it helps to have independent researchers willing to dig through thousands of pages of archival documents to find what supposedly thorough investigative reporters have somehow overlooked.

As for me, I am content to live in Nixon’s shadow—to keep arranging staff reunions and producing Nixon Legacy Forums as long as any of us are left. So much good was accomplished by his administration that the public has yet to appreciate. I carry the burden, with the rest of Nixon’s defense team, of having failed the president. We were overwhelmed by his many opponents, but perhaps we could have done more. I felt at the time that a president was being driven from office for lack of an effective legal defense—and I still believe that is what occurred. But I do hope that through this book and my other efforts I have given Richard Nixon a
fair return for the extra $250 scholarship he extended to that struggling Whittier College student some fifty years ago.