In 2008, former Nixon official Geoff Shepard wrote a book titled The Secret Plot to Make Teddy Kennedy President, in which he posited that the Watergate scandal was more about Democratic political maneuvering than it was about high crimes by White House officials. Now Shepard is working on another book about political plots and conspiracies, about "prosecutorial and judicial misconduct in the Watergate trials," some of which he recounted last week in a piece posted at The Atlantic titled "The Watergate Cover-Up Trial: Justice Denied."
In his article, Shepard alleges many things. First, he asserts that U.S. District Judge John Sirica, one of the generally accepted heroes of the Watergate story, acted in an unprofessional and unethical manner by meeting with Watergate special prosecutor Leon Jaworski in private in advance of the 1974 criminal indictment of John Mitchell, H.R. Haldeman, John Ehrlichman, Charles Colson and the other three conspirators. Shepard says he has uncovered new evidence, from Jaworski's files, that lead him to:
suggest that defendants in the Watergate cover-up trial, held before Judge John Sirica, received anything but a fair trial. Indeed, they suggest prosecutorial and judicial misconduct so serious -- secret meetings, secret documents, secret collusion -- that their disclosure at the time either would have prevented Sirica from presiding over the trial or would have resulted in the reversal of the convictions and the cases being remanded for new trials.
The documents I have uncovered raise two basic and vital questions: How much private contact could Sirica, in his role supervising the Watergate grand jury, legitimately have with prosecutors presenting evidence to that grand jury before the trial began, and still be seen as fair and impartial? And had the substantial contacts revealed in these documents been known, would Sirica still have been able to appoint himself to preside over the trial? The answers to these questions lay bare a series of improprieties that call into question the legitimacy of the Mitchell, Haldeman, and Ehrlichman verdicts.
It seems to me the most direct way to confront allegations like these, to test conspiracy theories involving long-dead officials, is to let a fresh set of eyes look over the matter. New York University School of Law Professor Stephen Gillers is one of the nation's leading experts on judicial ethics and I trust him on this more, so I made Gillers a simple request: Please read Shepard's Atlantic piece and share your views of the assertions it makes about judicial ethics as they relate to Sirica. Gillers was kind enough to respond in detail. The upshot is that there was conduct here unbecoming a judge -- but nowhere near the epic fail that Shepard suggests. Here is what Gillers wrote:
The two principal sources today for judicial recusal in the federal system are the Code of Conduct for U.S. Judges and 28 USC section 455. The former was adopted in 1973 (and amended since) and the latter was enacted in 1974, with minor amendments thereafter. The Code, at least, would have been applicable to Judge Sirica's 1974 meetings. That aside, there was, even before the Code and the statute, an understanding that in our adversary system ex parte meetings between a judge and fewer than all parties (or their counsel) was forbidden with some exceptions and for reasons described below.
The first ex parte meeting that Shepard describes (on December 14, 1973) cannot be the basis for criticizing Sirica. There is no indication of the substance of the discussion. So Shepard is left to speculate about what the first meeting "could not have been" about and what "seems quite likely" was Sirica's purpose. I have argued elsewhere that ex parte meetings with judges, when permitted, should be held on the record. But that was not then and is not now required in federal court.
The meeting of February 11, 1974, is troublesome. Assuming that the Jaworski memo is correct, Sirica stated his intention to take the cover up cases if "the indictments came down in time." Sirica urged that "these indictments should be returned as soon as possible." He told Jaworski that judges "across the nation" were urging him to preside. And he said that he would take all guilty pleas.
It is one thing to keep a chief judge informed of prospective events that could have a significant effect on the business and operation of the courthouse, as the cover up indictments surely would (though again, a transcript would have been desirable). It is wrong, however, for the chief judge to advise on timing of the indictments and to signal his eagerness to preside (and the fact that other federal judges had urged the same) if the indictments "'came down in time." The upshot is an advantage for the [Watergate Special Prosecution Force].
Sirica is inviting Jaworski to do something he would like done, which would please the judge. The WSPF is assured, so far as possible, that this judge will take any guilty pleas as well, if the timing worked out. Something for everyone. Or so it can be read.
This is too cozy.
Now, it all may have been entirely innocent. But the reason for forbidding ex parte contact is not merely to prevent improper conduct in fact but to give the parties and the public confidence in the independence of the court and to ensure that opposing parties have opportunity to challenge their adversary's assertions or any efforts at procedural advantage.
At the very least, a transcript would have preserved the conversation and given the defendants a belated chance to respond to the communications, although trial lawyers do not view a belated chance as of equal value. An on-the-record discussion would also have caused the participants to be especially cautious in what they said -- to stay within the limits of the permissible.
It should be recognized, and without detracting from these observations, that prosecutors have long tried to time indictments to position themselves for the most favorable judge, as they see it. This is harder today, with the advent of the "wheel" and random selection, but it was not uncommon at the time. Also not uncommon at the time was the ability and willingness of chief judges of a district or circuit court to steer desirable cases to themselves. All that was disturbing but it happened. The February 11 meeting went even further and crossed the line in my view.
I have no problem with the discussions insofar as they focused on how to minimize prejudice to the Vesco case from the handing up of the indictments. I also have no problem with Jaworski alerting Sirica, as chief judge, to the prospect of a grand jury report. The grand jury is an arm of the court. Sirica heads the court. This would be a remarkable event and apparently the grand jury's authority was unclear. I don't see why Jaworski could not confer with Sirica about the fact of the imminent report to be forwarded to the House of Representatives. I share Lacovara's concerns in his January 21, 1974 memorandum. The fact of the report (putting aside the basis for it) did not tilt the adversary process. Or if counsel thought otherwise, they were free to raise the issue.
Or maybe not so free. Shepard also alleges that Jaworski failed or refused to acknowledge the ex parte meetings he had with Sirica even when the matter of the judge's recusal came up in the resulting criminal case against John Mitchell and company. Shepard writes:
Jaworski knew this, and chose to make no public disclosure. His risks became more complicated when the defendants attempted to have Sirica removed as their trial judge. Here is the dilemma he faced when they sought Sirica's removal in Mitchell v. Sirica -- and requested an evidentiary hearing into his alleged ex parte contacts with WSPF prosecutors: Had the meetings described above been disclosed, the resulting firestorm over Sirica's injudicious conduct and Jaworski's seeming acquiescence could well have jeopardized his license to practice law. This is why the WSPF reply brief, filed May 20, 1974, in response to the defendants' appeal, did not directly respond to their requested evidentiary hearing in any manner whatsoever.
The prosecutors could not represent to the appellate court that no such ex parte meetings had taken place or that they were ministerial in nature, so they chose to ignore the issue completely in their brief. This is highly questionable conduct for any officer of the court, who has an overarching responsibility not to deliberately mislead any judicial panel. Willful non-disclosure concerning a matter so squarely before the appellate court could be grounds for disbarment.
I asked Gillers about this, too. He told me:
Shepard here is suggesting that Jaworski did not reveal the ex parte meetings because he risked discipline, even disbarment, if they became known. (I suppose Shepard might say the same about the other WSPF lawyers who were at or knew of the meetings). I think Shepard is wrong about that. The meetings appear to have been instigated by Sirica and nothing Shepard has discovered suggests that the conversations touched on the substance of the charges or how the case would be tried.
Compare what has become known about Irving Kaufman's substantive ex parte communications with the lawyers who prosecuted Julius and Ethel Rosenberg (including Roy Cohn). Had these surfaced, Kaufman would have been removed. If they had surfaced after the convictions, I believe the circuit would have reversed, although I have to add that in making that retrospective prediction there is always the danger of futurism -- judging a past event by the law as it has evolved.
Nor do I think that the failure to reveal the meetings in response to defendants' motion would have landed Sirica in discipline. That is not to say that the failure is defensible. It is not. The defendants put the issue of ex parte communications on the table and the WSPF should have come forward with what it knew. (I wonder why the defense did not ask the court to order it to do so.) But not every transgression ends up in discipline, much less disbarment.
If the ex parte meetings had become known to the Circuit Court before trial, I believe it would have ordered a further inquiry. Probably that would have taken the form of a detailed description of the meetings from the recollections of all participants (with the lawyers' submissions under oath) and production of all their notes for review in camera. Depending on what these showed, the circuit might well have exercised a residual supervisory authority to reassign the cover up cases. It had that power.
The primary consideration for the court would have been the need for the appearance of absolute fairness given the prominence of the case and the strong public interest in a fair trial, not to mention the unique political dimension. If it did this, the court would have said that it had no doubt that Sirica could be fair but that the appearance of justice is as important as justice. And the world was watching.
If the ex parte communications first became known after trial, I don't think the circuit would have reversed for that reason alone. There would be a great reluctance to reverse if the trial was otherwise conducted within the rules. It might, however, have given less deference to those trial rulings that defendants on appeal claimed were erroneous.
Gillers has given us important context about Shepard's allegations. Now we can better situate this new information with what we already know about the Watergate story. And with the 40th anniversary of the Watergate denouement coming next year, I have a great idea for Shepard's next book. It could be titled: Watergate: The Secret Plot by Nixon Officials to Subvert Justice and Undermine the Constitution. Wouldn't it be fascinating for a lawyer of Shepard's considerable ability to tackle the backstory behind a vast conspiracy like that?