Constitution Daily

Smart conversation from the National Constitution Center

Watergate versus the Fifth Amendment

June 18, 2012 by Geoff Shepard


In this commentary, Geoff Shepard, who served on Richard Nixon’s White House staff and his legal defense team, looks at arguments about due process violations for the Watergate defendants.


Our Founding Fathers wisely distributed power among three separate branches, to protect from its dangerous concentration and from human nature.


In Watergate, critical elements of all three were temporarily united to bring down a president re-elected with 61 percent of the popular vote


Among the Constitutional provisions trashed in the process was the Fifth Amendment’s guarantee that “no person shall be deprived of life, liberty or property . . . without due process of law.”


Watergate ended with President Richard Nixon’s resignation, and convictions on all counts of his top assistants:  Bob Haldeman, John Ehrlichman and John Mitchell.


This month, as the 40th anniversary of the Watergate break-in approached, we’ve witnessed an orgy of self-congratulation.


As Washington Post reporter Carl Bernstein proudly put it:  “What happened is that the system worked.  The American system worked.”  This is the same Carl Bernstein who recently admitted what he had denied for four decades:  that he tracked down and interviewed a Watergate grand juror while that jury still sat.


For these three defendants,  and perhaps for dozens of others caught up in the frenzy,  the American system certainly did not work.


Our Firth Amendment guarantees all defendants, no matter how reviled, will receive a fair trial.


The trial is conducted under uniformly applied rules for prosecutor conduct, before an untainted and unbiased jury of their peers, with the right to confront and cross-examine their accusers, and presided over by a fair and impartial judiciary.

Questions about due process and Watergate

Serious questions have arisen over the past four decades as to how many, or if any, of these due process standards were met.  Release of new materials over the last few years is adding urgency to these questions.


The United States Senate Watergate Committee conducted a televised legislative trial of Nixon administration officials.  The Watergate Special Prosecution Force, which reported — if to anyone at all — to Senate Judiciary Committee Democrats, expanded its charter to launch investigations into every aspect of Nixon’s presidency.


The Watergate Special Prosecution Force consisted not of apolitical career prosecutors, but of ardent Democrats. Seven of its eight top officers worked together in the Department of Justice under Presidents John F. Kennedy and Lyndon B. Johnson.


Their approach, which internal records suggest was pursued with savage vengeance, included postponing the cover-up indictments that had been promised within weeks by career prosecutors.


They also investigated and sought to discredit prominent Republicans, including such uninvolved individuals as Gerald Ford, Nelson Rockefeller, Senator Robert Dole, and Governor Ronald Reagan.


The career prosecutors who’d broken the cover-up were canned, with any idea of a speedy trial cast aside.  Leaks abounded, all piously denied.


The first Special Prosecutor, Harvard Law School professor Archibald Cox , held numerous meetings with appreciative reporters, happily answering hypothetical questions about what might yet unfold, thereby feeding the media circus the scandal had become.


The cover-up trial was the concluding act, where an immunity-seeking John Dean, who, by his own admission, had acted as the cover-up’s “chief desk officer,” tailored his testimony to prosecutors’ needs.


The charges brought against his superiors are best described as “thought crimes” such as conspiracy, obstruction and perjury that ask the jury to peer into their minds to judge their actions.


Civil libertarians have long been troubled that convictions on such ephemeral charges require little more than that the jurors decide they don’t like you.


Because the defendants had worked for Nixon, motive and opportunity were assumed.  All that was required was for Dean, who eagerly admitted committing overtly criminal acts, to testify that they were all in it together.


Dean was the prosecution’s principal witness, and recently released files prove that the substantial and dramatic changes in his testimony were improperly withheld from defense counsel.

Issues with jury and the judge

The District of Columbia jury pool was hopelessly tainted by two years of adverse pretrial publicity preceding the delayed trial.


This was vividly described in Judge MacKinnon’s fiery dissent in The United States v.  R Haldeman, which begins, “If ever in the history of our country there was a criminal case which by law had to be transferred to another place for trial because of prejudicial pretrial publicity alone, this is that case.”


A predictable political bias of the local District of Columbia jury pool against prominent Republicans was evinced by the overwhelmingly Democratic election majorities it customarily produces.


Virtually all defendants in Watergate-related trials held in Washington resulted in convictions.


Those few trials held outside uniformly resulted in acquittals, including those of Mitchell and Maurice Stans in the Vesco trial in New York and Duane Andreas in the misuse of corporate funds trial in Minnesota.


Anyone who thinks this bias doesn’t exist, or has changed, might ponder the more recent fates of Senator Ted Stevens and Scooter Libby.


Chief Judge John Sirica, who had appointed himself to preside over both the break-in and the later cover-up trials, was neither fair nor impartial.


Sirica conducted unprecedented judicial inquisitions rather than presiding over the trials before him.


Again, we look to a MacKinnon dissent for details—this time in Mitchell v. Sirica, the unsuccessful effort to remove Sirica from presiding over the cover-up trial.

Sirica and due process

Due process envisions trials where witnesses testify publicly, under oath and subject to cross-examination.


We now know that Judge Sirica had private or ex parte meetings with people having direct interests in those trials’ outcomes.


Sirica met with Edward Bennett Williams, counsel for both the Washington Post and the Democratic National Committee, which was pursuing its own civil suit against Nixon’s Re-election Committee.


Williams’ involvement is especially important because Sirica considered him to be his career mentor and had named Williams and his spouse as god-parents to his daughter.


Sirica had long, detailed conversations with reporter Clark Mollenhoff, who importuned him to seek to uncover “the truth” behind the Watergate break-in, rather than simply to try that case.


He met with Chief Counsel Sam Dash of the Senate Watergate Committee, who suggested a form of provisional sentencing, which Sirica adopted, to put extraordinary pressure on the break-in defendants.


The judge also met privately with lead prosecutors, even instructing one as to how to conduct his case.  Public knowledge of any of these meetings could have resulted in Sirica’s immediate removal as trial judge.


Perhaps the most egregious of Sirica’s actions was his sentencing of John Dean to a prison term of one to four years.


Sirica later admitted in his own book that this was done specifically to improve Dean’s credibility as the government’s lead witness in the cover-up trial.  Once convictions were obtained, Sirica reduced Dean’s sentence to “time served.”


By design, Dean was in confinement only for the trial’s duration.


The appellate process, which could have remedied such errors, was itself corrupted by a highly improper ex parte meeting between the Special Prosecutor and Chief Judge David Bazelon.


The United States Court of Appeals for the District of Columbia Circuit was hugely politicized, with a 5-4 decidedly liberal split.  To avoid any randomly assigned appellate panel having a nonliberal majority, Cox urged that appeals from Sirica’s rulings be heard by all nine judges from the very outset — a procedure known as sua sponte en banc.


Amazingly, all 13 of Sirica appeals were heard in this highly unusual manner — a procedure never duplicated in any appellate court, before or since, in our nation’s history.


Important books published earlier this year by Max Holland and Jeff Himmelman contain significant new disclosures.


But much information remains under seal in the US v. Liddy case and in records of the Senate Watergate Committee and the House Judiciary Impeachment Inquiry.


What has emerged, however, paints a painful picture of our Constitution’s guarantees being completely overwhelmed by political passions whipped up some 40 years ago.


Geoff Shepard served on Nixon’s White House staff and his legal defense team.  His 2008 book, The Secret Plot, explored the politics behind the successful exploitation of the Watergate scandal.


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