The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (40 page)

Denied Liddy’s appeal of a contempt sentence that was added to his existing sentence, which he had already had begun to serve.

Argued June 14, 1974; decided December 12, 1974.

Judges Bazelon, Wright, McGowan, Leventhal, Robinson, MacKinnon, and Wilkey, sitting en banc
.

Wilkey opinion, with separate MacKinnon dissent.

6.
    
United States v. McCord
, 509 F.2d 334 (D.C. Cir. 1974),
cert. denied
, 420 U.S. 911 (1975),
http://openjurist.org/509/f2d/334/united-states-v-w-mccord-j-j
.

Upheld James McCord’s conviction in the break-in case, which McCord was challenging in light of disclosure of the cover-up.

Argued June 14, 1974; decided December 12, 1974.

Judges Bazelon, Wright, McGowan, Leventhal, Robinson, MacKinnon, and Wilkey, sitting en banc
.

Bazelon opinion, with MacKinnon filing a separate concurrence.

7.
    
United States v. Hunt
, 514 F.2d 270 (D.C. Cir. 1974),
https://bulk.resource.org/courts.gov/c/F2/514/514.F2d.270.73-2199.html
.

Upheld Judge Sirica’s denial of Howard Hunt’s effort to withdraw his original guilty plea in the break-in case.

Argued June 14, 1974; decided February 25, 1975.

Bazelon, Wright, McGowan, Leventhal, Robinson, MacKinnon, and Wilkey, sitting en banc.

Per curiam decision; MacKinnon and Wilkey filed separate concurrences.

8.
    
United States v. Barker
, 514 F.2d 508 (D.C. Cir. 1975),
cert. denied,
421 U.S. 1013 (1975).

Upheld Sirica’s denial of the Cubans’ effort to withdraw their original guilty pleas in the break-in case.

Argued June 14, 1974; decided February 25, 1975.

Judges Bazelon, Wright, McGowan, Leventhal, Robinson, MacKinnon, and Wilkey, sitting en banc.

Wright opinion, separate concurring opinion by Bazelon. Mackinnon and Wilkey dissented.

9.
    
Ehrlichman v. Sirica
, [citation not available],
cert denied
, 419 U.S. 1310 (1974),
https://bulk.resource.org/courts.gov/c/US/419/419.US.1310.html
.

Denied Ehrlichman’s application for a stay of the cover-up trial until January 1975 in light of Nixon’s resignation and Ford’s pardon.

Chief Justice Warren Burger, sitting as circuit justice, issued an opinion on August 28, 1974, denying Ehrlichman’s appeal from the circuit court’s decision. His opinion states in pertinent part: “That court [D.C. Circuit], sitting
en banc
, did not rule directly on the petition, but instead remanded and recommended that the District Judge consider delaying the trial three or four weeks. . . .” One of Burger’s stated reasons for not “second guessing” the circuit court was that it had heard the case en banc.

10.
  
Haldeman v. Sirica
[citation not available],
cert. denied
, 419 U.S. 997 (1974).

Denied Haldeman’s application for a stay of the cover-up trial until a hearing could be held on his claim that his indictment was flawed because the grand jury’s term had been improperly extended.

As with the case above, there is no recorded decision at the circuit court level, but certiorari was denied on November 11, 1974. Here there is no express indication of whether the circuit court had sat en banc, but it is safe to assume that it did so.

11.
  
United States v. Mardian
, 546 F.2d 973 (D.C. Cir. 1976),
https://bulk.resource.org/courts.gov/c/F2/546/546.F2d.973.75-1383.html
.

Reversed Robert Mardian’s conviction in the cover-up case because his case was not severed when his lawyer became ill during trial.

Argued January 6, 1976; decided October 12, 1976.

Judges Bazelon, Wright, McGowan, Robinson, and MacKinnon, sitting en banc.

Wright opinion. NB: This is the only reversal of the twelve appeals from Judge Sirica’s Watergate-related criminal cases.

12.
  
United States v. Haldeman
, 559 F.2d 31 (D.C. Cir. 1976),
cert. denied
, 431 U.S. 933 (1977),
https://bulk.resource.org/courts.gov/c/F2/559/559.F2d.31.6.8.12.23.75-1384.html
.

Upheld the cover-up convictions of Haldeman, Ehrlichman, and Mitchell.

Argued January 6, 1976; decided October 12, 1976. Rehearing denied December 8, 1976.

Judges Bazelon, Wright, McGowan, Leventhal, Robinson, and MacKinnon, sitting en banc.

Per curiam decision, with blistering dissent by MacKinnon.

III. APPEALS FROM CRIMINAL CASES TRIED BEFORE JUDGE GESELL

1.
    
United States v. Chapin
, 515 F.2d 1274 (D.C. Cir. 1975),
https://bulk.resource.org/courts.gov/c/F2/515/515.F2d.1274.74-1648.html
.

Denied Dwight Chapin’s appeal of his conviction for perjury in trial before Judge Gesell.

Argued February 7, 1975; decided July 14, 1975.

Judges Wright, Leventhal, and Davis (of U.S. Court of Claims, sitting by designation).

Davis opinion.

2.
    
United States v. Ehrlichman
, 546 F.2d 910 (D.C. Cir. 1976),
cert. denied
, 429 U.S. 1120 (1977),
https://bulk.resource.org/courts.gov/c/F2/546/546.F2d.910.74-1882.html
.

Upheld Ehrlichman’s conviction on all counts in the Plumbers trial before Judge Gesell.

Argued June 18, 1975; decided May 17, 1976.

Judges Leventhal, Wilkey, and Merhige (U.S. District Judge from the Eastern District of Virginia, sitting by designation).

Wilkey opinion.

3.
    
United States v. Barker
, 546 F.2d 940 (D.C. Cir. 1975),
https://bulk.resource.org/courts.gov/c/F2/546/546.F2d.940.74-1884.74-1883.html
.

Reversed the convictions in the Plumbers case on the grounds that the Cuban defendants had not been allowed to raise the defense of good faith reliance on national security.

Argued June 18, 1975; decided May 17, 1976.

Judges Leventhal, Wilkey, and Merhige (U.S. District Judge from the Eastern District of Virginia, sitting by designation).

Wilkey opinion, with Leventhal filing a dissent.

4.
    
United States v. Liddy
, 542 F.2d 76 (D.C. Cir 1976),
http://law.justia.com/cases/federal/appellate-courtsF2/542/76/25255/

Upheld Liddy’s conviction in the Plumbers case.

Argued June 18, 1975; decided May 17, 1976.

Judges Leventhal, Wilkey, and Merhige (U.S. District Judge from the Eastern District of Virginia, sitting by designation).

Merhige opinion.

ACKNOWLEDGMENTS

M
any thanks are due to my agent, Jane Dystel, who guided me through the trials and tribulations of a budding author, and to John Jenkins, who recommended her. Jane’s strict discipline and candid advice has been essential to getting my work into print.

Also essential were the contributions from the fine folks at Regnery Publishing: Alex Novak, my publisher, for his faith in me and in my story; Tom Spence, my editor, who took none of my assertions for granted and greatly helped in clarifying my somewhat dense professional jargon; and Patricia Jackson and Mark Bloomfield, who helped introduce my book to the market.

Wally Johnson, a former colleague, is a trusted friend whose experience as a federal prosecutor, Senate Judiciary staffer, White House aide, and assistant attorney general was a constant resource and extraordinary help in making sense of my archival discoveries. Without his insights and guidance, my narrative would not be nearly as thoughtful or precise.

I’m also grateful for the invaluable comments from my former colleagues on the Nixon White House staff, particularly those who read my manuscript in one of its many drafts: Jim Cavanaugh, Dwight Chapin, Frank Gannon, Tod Hullin, Ken Khachigian, and Bill Kilberg, as well as several members of the federal judiciary, who have asked to remain unidentified.

While I did all of my own research (and thus any errors are mine and mine alone), I do want to recognize the continuing courtesy of the National Archives staff, particularly David Paynter in the Special Access Section, who has responded to my many document requests over the past decade.

Finally, I would like to thank my loving wife and two sons, Saundra, Jon, and Will, who have had to put up with my life-long Watergate obsession and those many times when I would lose myself in the painful memories of that scandal’s unfolding.

NOTES

CHAPTER ONE: IDENTIFYING THE REAL WRONGDOING

1
.
     
Carl Sagan,
The Demon-Haunted World: Science as a Candle in the Dark
(New York: Random House, 1996).

2
.
     
See
http://www.napoleon.org/en/essential_napoleon/key_painting/files/prudhon_vengeance.asp
for a copy of the painting. An earlier rendition of this painting hangs in the Getty Museum in Los Angeles.

3
.
     
The phrase seems to originate in Pericles’s funeral oration, as recorded by Thucydides in his history of the Peloponnesian War: “But our laws secure equal justice for all in their private disputes. . . .”

4
.
     
A full accounting of the far-reaching scope of the investigations conducted by its task forces is set forth in the Report of the Watergate Special Prosecution Force, dated October 1975.

CHAPTER TWO: UNDERSTANDING WATERGATE

1
.
     
Judge Sirica’s papers are at the Library of Congress. All have been opened, except those classified for national security purposes, which do not seem relevant to this book’s disclosures.

2
.
     
Judge Bazelon’s papers are at the Biddle Law Library of the University of Pennsylvania Law School. They were expressly sealed until after his death, but do not seem to contain any dramatic revelations.

3
.
     
Professor Cox’s papers are at the Harvard Law School Library in the Special Collections section, along with those of fellow professor and WSPF prosecutor James Vorenberg.

4
.
     
Leon Jaworski’s papers were given to his alma mater, Baylor University. In 2012, the National Archives retrieved from that collection the WSPF papers that were made available to me in mid-2013 in response to a FOIA request.

5
.
     
John Dean is still in possession of all of his own papers, but the WSPF files on him are available in the Special Access section of Archives II in College Park, Maryland.

6
.
     
John Prodos,
Vietnam: The History of an Unwinnable War (1945–1975)
(Lawrence, KS: University Press of Kansas)
.
An internet search for “Cable 243” will supply the background of the specific cable that Hunt may have been trying to reconstruct.

7
.
     
John Dean,
The Nixon Defense: What He Knew and When He Knew It
(New York: Penguin Viking, 2014), Appendix A.

8
.
     
Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee), Book II,
The Growth of Domestic Intelligence, 1936–1976
.

9
.
     
Dean,
The Nixon Defense
, footnote at pp. 55–56: “In short, the smoking gun was only firing blanks.” See also my two essays on the smoking gun at
http://geoffshepard.com/essays.html
.

10
.
   
William Merrill,
Watergate Prosecutor
(East Lansing, MI: Michigan State University Press, 2008), 7.

11
.
   
The president was justifying his decision to send his colleagues before the Ervin Committee without a claim of executive privilege, emphasizing that each man would have to decide how to testify in his own self-interest. They could stonewall, invoke the Fifth Amendment, or cover up if doing
so would save them. This reading is far more consistent with the remainder of their taped conversation.

CHAPTER THREE: WHAT WENT WRONG

1
.
     
The Ervin Committee investigatory papers (apart from its public hearings and published report) were sealed for fifty years, a standard practice for investigatory committees, and won’t become available until 2024.

2
.
     
All of WSPF papers in possession of National Archives are in the Special Access section of Archives II in College Park, Maryland. They are opened only in response to specific requests under the Freedom of Information Act, after review and redacting of names of unindicted people who are still living. Once reviewed, however, such papers are open to all researchers.

3
.
     
Richard Ben-Veniste and George Frampton,
Stonewall: The Real Story of the Watergate Prosecution
(New York: Simon and Schuster, 1977), 35.