Watergate, page 65
Seperately, Lacovara had been working with George Frampton to draft a document collecting evidence, and analyzing and outlining the crimes the prosecutors believed the president had committed—by the time they finished, months later, the memo would stretch to 128 pages. As Jaworski, Ruth, and Lacovara read the assembled information, the evidence was compelling and hardly subtle. In the matter of the hush money payments, for instance, prosecutors found at least fifteen different instances where Nixon had either advanced the conspiracy or confirmed his awareness of it in conversation; ten episodes backed up his participation in the conspiracy to offer presidential clemency in exchange for witness’s silence, and a dozen others highlighted what Jaworski called his “counseling, facilitating, assisting, and giving of false statements testimony.” Charges were even clearer: 18 USC §3 (accessory after the fact) and 18 USC §4 (misprision of a felony); 18 USC §201(d) (bribery); 18 U.S. Code §371 (conspiracy to obstruct justice); and 18 USC §1510 (obstruction of a criminal investigation through bribery to prevent communication to the prosecutors).
The memo, as it was fleshed out and drafted, became the most sensitive document in the entire prosecution; just eight copies were made. Though many members of his team advocated for an immediate indictment, Jaworski felt the law was too unsettled; the nation couldn’t face the turmoil, distraction, and trauma that would unfold during months—if not years—of uncertainty about how a presidential trial would play out. Moreover, while the memo outlined damning evidence, most of it was still only known to the special prosecutors. They needed to tread lightly to avoid getting ahead of public opinion.
As he made that clear, “a ferocious battle of wills ensued,” Volner recalled. “He saw us as a band of renegades who were too young and too zealous for our own—and our nation’s good.”
One morning, Ruth found on a secretary’s desk a draft presidential indictment drawn up by Peter Rient as an experiment, a three-page document laying out the charges against Nixon himself entitled The United States of America vs. Richard M. Nixon. “Ruth was apoplectic,” Ben-Veniste and Frampton recalled. “The last thing he needed now was for Special Prosecutor Jaworski to come upon a document like this.” Another memo pushing for a presidential indictment, written by four of the prosecutors—Carl Feldbaum, George Frampton, Jerry Goldman, and Rient—led to an explosive dispute between Jaworski and Richard Ben-Veniste.
As the disagreements and stress mounted, so did suspicions. The staff noticed that once or twice a week, Jaworski would hurriedly don his coat around 5 p.m., with no meeting on his calendar, and leave with his briefcase, returning fifteen to twenty minutes later. Staff wondered if he was delivering sensitive papers to someone covertly, and Ruth and others began mapping the odd departures. Did they always happen on the same day? Or were they consistently a certain number of days apart? No one ever figured out the truth, which was much less sinister: On nights when he realized he would be working late, Jaworski simply went for a short walk, aimlessly rounding the block, before settling back in. As he explained much later, “Why carry the attaché case? Often I would be recognized as I walked and it was much easier for me to explain that I was hurrying to an appointment than to engage in conversation with strangers.”
Finally, over a dinner with Jaworski at Volner’s house, the team began to edge toward a compromise on the president’s case: The grand jury might not be able to indict the president, but it could name Nixon an unindicted co-conspirator and then attempt to hold that information back from the public as long as possible. The prosecutors knew that they needed to work Nixon into the indictment somehow, not just to demonstrate culpability, but because it would allow a jury to hear the full tapes and recordings of conversations in the Oval Office. If the president was not included, then his portion of the conversations would have to be excised, leaving prosecutors to play only snippets and undermining the entire case by robbing the conversations of vital context and nuance.
They agreed that they could keep the names of unindicted co-conspirators sealed until much closer to trial, thereby keeping Nixon’s role a secret for some period after the cover-up indictment and giving the “alternative mechanisms” time to play out on Capitol Hill without prejudice. Ben-Veniste offered an unprecedented suggestion to maximize secrecy and flexibility: The grand jury could stop short of formally naming Nixon an unindicted co-conspirator and vote instead to authorize Jaworski to name the president later, if needed. The move would be codified in the official, secret minutes of the grand jury, which would preserve the prosecution’s trial strategy without necessarily forcing a disclosure timeline.
The solution was elegant, but prompted another thorny question: If they weren’t going to indict the president, how could they transmit the evidence they had gathered to the House Judiciary Committee for impeachment purposes? Normally there were strict rules against the publication of evidence gathered under the cloak of secrecy in a grand jury, but there appeared to be some constitutional exceptions. Staff found an 1811 precedent of a county grand jury in the Mississippi Territory passing along a report to the House for the impeachment of a federal judge early in the nation’s history, which established that they could transmit information to the House, but not the prosecutors.
With an agreed-upon plan, the special prosecutors settled on building what they called a “road map,” an almost clinical collection and organization of indexed evidence that contrasted the president’s public statements denying knowledge of the cover-up with the evidence to the contrary; it would not be written in the form of an indictment or “presentment,” and stop short of drawing any specific conclusions.
On February 25, Jaworski himself, along with other prosecutors, presented their arguments to the grand jury. For two hours, they laid out their approach, recommendations, and request that the jury vote to allow them to name Nixon himself a co-conspirator.
There was little doubt in the grand jury’s mind about the president’s guilt, and patience had grown thin among the citizen body. The main Watergate grand jury, composed of twenty-three civilians pulled from their daily lives, had met more than one hundred times by the beginning of February, so often that two jurors had lost their jobs due to missing so much work. “They were in a militant mood,” Ben-Veniste and Frampton recalled. Frustrated by the president’s ongoing non-cooperation, the foreman of the grand jury had written a secret three-page letter in late January on behalf of the panel, pleading directly for Nixon to testify. “Evidence presented to the Grand Jury in the form of testimony and tangible evidence—including tape recordings and documents—indicates you have information that is highly relevant to the Grand Jury’s inquiry,” the foreman, Vladimir Pregelj, wrote. “I am hereby requesting you on behalf of the Grand Jury to appear before it—at the White House or such other place as would be appropriate—to testify as other witnesses on matters that are subject of our investigation.” Pregelj concluded by writing, “Inasmuch as we are in the closing stages of our investigation, we would appreciate an early response to this request.” Nixon continued to refuse cooperation.
Now Pregelj argued briefly with Jaworski that the grand jury should take the presidential indictment question to the Supreme Court, but as the back-and-forth continued, it was clear the special prosecutor’s proposal would be accepted. One juror stood up and thanked the special prosecutor, “Mr. Jaworski, we appreciate what you are doing. I have to admit that I had reservations about you when you first came.”
“You were not the only one,” Jaworski replied.
The resulting vote was 19–0, with a single abstention, to authorize the naming of the co-conspirators. As the stenographer took down the official alphabetical list, her eyes bulged when they got to N: “Richard M. Nixon.”II
* * *
Hoping to prevent any confusion or court battles about the legal boundaries of its inquiry, the House authorized Rodino’s Judiciary Committee to investigate the need for impeachment “fully and completely” and to subpoena any person or information “it deems necessary.” The Ervin Committee, for its part, ceased public activity to avoid “interfer[ing] unduly with the ongoing impeachment process”; its final report would be written in private.
On February 25, Doar’s team met with Pete Rodino and the GOP ranking member, Edward Hutchinson, to present a draft five-page letter for the White House that requested access to “all tapes, dictabelts or other electronic recordings, transcripts, memoranda, notes or other writings or things relating to” a specific list of particular meetings and conversations between President Nixon, Haldeman, Ehrlichman, Dean, Kleindienst, and Petersen in February, March, and April 1973. The letter outlined the days, topics, and even in many cases the times of the meetings, pulled from White House records, but focused around the crucial March 1973 time period that John Dean had already testified to. That, House investigators felt, was the most noncontroversial place to start. After both Rodino and Hutchinson approved the request, the impeachment staff’s sergeant-at-arms hand-delivered it to James St. Clair at the White House.
Over the next two weeks, Washington publicly debated the merits of the House request, even though no one other than the senior leaders of the inquiry knew precisely what it contained; when Representative Elizabeth Holtzman went over to the inquiry offices at the Congressional Hotel to try to read the letter, she was blocked by Doar’s staff. Republican representatives privately and publicly urged the White House’s voluntary cooperation. The letter was purposefully not a subpoena, but it was understood that the next message from the House might be.
Speaking at a March 13 press conference, Rodino and Hutchinson made a combined plea to the White House to cooperate. “What we have asked for is very reasonable and very relevant,” the Republican ranking member said. “It is necessary to the inquiry. There would be no inquiry if there were no suspicion about the President’s actions in connection with the so-called Watergate cover-up.” As they spoke, reporters noted the calendar: It was the 106th anniversary of the day that the House voted to impeach Andrew Johnson.
* * *
The handing down of the final indictment for the Watergate cover-up was carefully timed to avoid interfering with the Vesco trial of John Mitchell and Maurice Stans in New York. As soon as it was clear that that jury would be chosen and sequestered by Thursday, February 28, the Special Prosecution Force rushed to roll out their magnum opus.
As part of their cover-up investigation, the prosecutors had agreed not to focus on the Watergate bugging operation itself; under legal principles, the break-in planning and burglary seemed to represent a “separate conspiracy,” which would muddle the ability to present evidence admissible only against some of the defendants in the cover-up. There was a big difference between the burglary, which was really a campaign operation, and the cover-up, which was a White House operation involving the highest officials of government. Most of all, though, the evidence on the burglary was just inconclusive; while they had a sense that some of the cover-up defendants had foreknowledge of the burglary, the only direct testimony they had was Magruder’s against Mitchell, and it seemed weak.
Instead, the indictment picked up with the events of June 17 itself, walking hour by hour through the cover-up efforts and the flailing efforts by Nixon’s inner circle to hush up the White House’s links to the crime. “The Watergate cover-up resembled an ordinary organized-crime case,” Ben-Veniste and Frampton recalled. “Serious offenses had been committed: obstruction of justice, tampering with witnesses, payoffs, misuse of investigative information, perjury. All of the defendants had some knowledge of what was going on. They met and discussed the problems that the federal criminal investigation posed for them.” The only thing that was remarkable was that the defendants were meeting in the Oval Office.
When Jaworski’s office photocopier broke down while they prepared four hundred copies of the fifty-page indictment, Doar’s team retreated to the neighboring office of the National Endowment for the Arts to finish. U.S. marshals escorted them to the courthouse; when an elevator arrived on the ninth floor of the offices at 1425 K Street NW with other passengers already on board, the marshals barked, “This elevator is impounded—everybody off,” and then, once the elevator was empty, they wheeled aboard the cart of indictments.
On March 1, the twenty-one grand jurors filed into Sirica’s courtroom—two were absent that day—all dressed to the nines; many of the women wore their favored church hats. Foreman Vladimir Pregelj handed an indictment and other supporting materials over to the judge; Ben-Veniste stepped forward with the locked briefcase that held the sealed Impeachment Roadmap. The whole thing took just fifteen minutes.
John Mitchell, H. R. Haldeman, John Ehrlichman, Chuck Colson, Gordon Strachan, Robert Mardian, and Kenneth Parkinson—a onetime CREEP lawyer—all faced conspiracy charges; six faced additional obstruction of justice charges, as well as sundry charges against several for perjury and/or giving false statement to the FBI or grand jury. (It also noted, without naming any, eighteen unindicted co-conspirators.) There were almost not enough columns across a front page for the nation’s newspapers to run headshots of all those charged.
In the wake of the indictments, the Washington Post’s Richard Cohen calculated that twenty-eight people around the White House or the president’s reelection campaign had now been charged, as well as ten corporations or their officers charged with illegal campaign contributions to Nixon. And there was still more to come. Just days later, a grand jury on the other side of the country indicted John Ehrlichman and Chuck Colson in the ham-handed burglary at the office of Daniel Ellsberg’s psychiatrist, charging the two former White House aides with conspiring to violate the civil rights of Dr. Lewis Fielding, as well as indicting Liddy, Barker, and Martinez, who had also been charged in the Watergate burglary. The threads of the Watergate scandal were beginning to connect, as Americans and the news media began to understand clearly how the DNC break-in represented not the “only” criminal act, but just one of a broader, longer series of troublesome actions by presidential aides that had begun at least a year earlier and continued—at least according to some—right up until the present moment.
The arraignment for the new “Watergate Seven” occurred the following Saturday—an unusual weekend appearance scheduled around John Mitchell, who was still on trial in New York. A large crowd of gawkers waited outside the courthouse on the blustery gray day, some holding signs with slogans like “Jail to the Chief” and mocking Mitchell’s reputation as “Mr. Law and Order”; one demonstrator even wore a giant papier-mâché head of Nixon. Inside, the prosecutors tried not to gawk as they watched the rogue’s gallery of the nation’s most powerful men file into the courtroom and, awkwardly, greet one another; Kenneth Parkinson had never even met Haldeman and Ehrlichman before finding himself alongside them at the defendants’ table. “Thrown together now in a manner not of their own choosing, these were proud, arrogant, and unforgiving men whose mutual dislike and distrust were manifest,” Ben-Veniste and Frampton recalled. For years before the burglary they had jockeyed for position and power around Nixon, and then for ten months afterward, they’d worked to lay the blame on one another. Now they were all bound together, for better or worse.
Jaworski walked over to greet Mitchell, who had been attorney general when he headed the American Bar Association. He looked, Jaworski observed, like a fraction of his former self—pallid and shrunken. “You must be very busy these days,” Mitchell said, rising to greet the special prosecutor.
“More so than I wish, John,” Jaworski replied.
Almost immediately, defense lawyers asked Sirica to allow the men to skip the normal mugshots and fingerprintings, but the judge ordered that they be treated as any other defendants. The men were then trooped down Pennsylvania Avenue to the FBI’s offices in the Old Post Office building, their fall from grace complete.
Hours after the court appearances, Carl Bernstein called to double-check a tip that the grand jury had taken a straw vote to indict Nixon himself. Not having heard anything of the sort, Jaworski’s office panicked, denied the story, and even called Katharine Graham herself. “It’s not true,” the office’s deputy spokesman, John Barker, told her. “You have to kill the story.” Barker emphasized how damaging it would be to public confidence if the Post reported an informal poll—a move that would be seen as foreshadowing a real, live presidential indictment. Unable to find a second source, the Post never ran the story, but in the days ahead the paper and other outlets reported that the grand jury would have willingly indicted the president if asked. Finally, on March 5, CBS’s Daniel Schorr reported that the grand jury had taken a straw poll in support of indicting Nixon.
It wasn’t until eight years later, during an ABC News special, that the special prosecutor’s team discovered how accurate the Bernstein tip had been. In the interview, it was revealed that during a session when the jurors were evaluating evidence without the prosecutors present, they had indeed taken a straw poll. “There were 19 people in the grand-jury room that particular day,” juror Elayne Edlund told ABC’s 20/20, “and we all raised our hands about wanting an indictment—all of us. And some of us raised both hands.”
