The mounting caution in the White House reflected the tension of maintaining the cover-up, an effort heavily dependent on the continued cooperation of the convicted burglars. The events surrounding their sentencing snapped the tenuous bonds that connected their interests to the White House. In a few short months, the shattered chrysalis of the cover-up revealed the knowledge and complicity of the “higher-ups” that the likes of Howard Hunt had so steadfastly denied weeks earlier.
Sam Ervin, however underestimated, was a known enemy. By contrast, the man who stood at the vortex of one of the decisive events of the Watergate affair was an unlikely, even surprising, choice for his historical role. Federal District Judge John J. Sirica caricatured the type of judge that candidate Richard Nixon loved. His courthouse nickname—“Maximum John”—virtually said it all. Sixty-nine years old in 1973, a veteran of the bench since 1957, when Eisenhower had appointed him (with the strong backing of Nixon supporters William Rogers and Leonard Hall), he was, by dint of seniority, the Chief District Judge.
Sirica was born in Connecticut to Italian immigrant parents. He moved around a great deal as a child but finally settled for life in the District of Columbia in 1918. He tried George Washington University Law School briefly when he was seventeen, dropped out for a year, did some boxing, and then re-enrolled at Georgetown Law School. He was, by his own admission, an incompetent student and unsure of himself when he graduated in 1926. “Incredible,” was his own reaction to his successful bar examination. He drifted into a nondescript criminal practice, but the U.S. Attorney for the District, a former sparring partner, kept Sirica on his staff for over three years. The prosecutor was a Republican, and out of gratitude, Sirica adopted the same political affiliation. Sirica became quite active in local politics; indeed, that activity and his close friendship with Jack Dempsey seemed to be the highlights of his life before he became a federal judge. Perhaps his most fortunate move was one he did not make: his friend, Senator Joseph McCarthy, offered Sirica the position of counsel for his Senate investigating committee, but Sirica declined since he had just taken a partnership in a prominent Washington firm.32
From March 1973 onward, Judge Sirica was lionized in the media by liberals and conservatives alike. The image comforted; it also distorted. Some remembered Sirica as a man who badgered and castigated witnesses and lawyers, who had been reversed with alarming regularity by higher courts in important cases involving constitutional rights, and who lacked judicial temperament. “The worst thing about Sirica is his lack of interest,” one prosecutor reported; a defense lawyer added that “the worst thing about Sirica is that he has absolutely no capacity for understanding people.” In sum, the judge never had been a favorite of liberal crusaders or of those knowledgeable about local trial courts. Indeed, just before the Watergate trial opened, Sirica ordered a Los Angeles Times reporter to jail for contempt for refusing to surrender a tape recording of a potential witness in the case. The reporter remained in custody only two hours before the Circuit Court ordered him released. The Washington Post, later to become one of Sirica’s most enthusiastic cheerleaders, bitterly attacked his action, concluding that “the First Amendment is in real trouble and so are we all.”33
Sirica never was modest about how he came to the Watergate case. As Chief Judge, he assigned it to himself, but he claimed that his colleagues urged him to do so, portraying him (in his recall) as a paragon of objectivity: “ ‘Look, you are a Republican, you ought to take this case because we know you’ll go right down the middle. If you appoint some judge who’s been appointed by a Democratic president and something goes wrong, a hue and cry might go up.…’ So it made sense” that he take the case, he concluded.34 He said nothing about the obvious risk for a Republican judge perceived as favoring a Republican president. Yet Sirica had been Nixon’s kind of judge. And until 1973, Richard Nixon had been John Sirica’s kind of president.
Sirica had scheduled sentencing of the Watergate burglars for March 23. Three days earlier, James McCord delivered a letter to the judge’s chambers that led directly to the unraveling of the conspiracy. Recognizing the possibility of a stiff sentence, and “in the interest of restoring faith in the criminal justice system,… [and to] be of help to you in meting out justice in this case,” McCord told Sirica that pressure had been applied to have the defendants maintain silence; that perjury had occurred in the trial; that Watergate was not a CIA operation, but it involved other governmental officials; and that McCord wanted an opportunity to discuss the case at greater length with Sirica. The judge exuberantly told his clerk: “This is going to break this case wide open.”
McCord’s loyalty to the Administration had been questionable for several months. Apparently, he had been uneasy regarding attempts to link him most directly with the Cubans and thereby draw attention away from Hunt and Liddy. McCord also believed that the White House was anxious to blame the CIA for the break-in and would cite McCord as evidence for the notion. He wrote to his friend White House aide John Caulfield at the end of December, warning that “if Helms goes, and the Watergate operation is laid at [the] CIA’s feet where it does not belong, every tree in the forest will fall. It will be a scorched desert,” McCord warned.35
Richard Nixon knew in advance about McCord’s letter to Sirica. The day it was delivered, the President told Haldeman that Dean and others were concerned about the convicted burglars’ sentences and what Sirica might do. He knew that McCord did not want to go to jail and apparently had decided to talk. Haldeman realized the implications: McCord, he said, “would have a lot on Mitchell.” The President replied as if he were unaware of the connection between the two. John Dean knew the implications: “The dam was cracking,” he later said.
At the same moment, the hearings on L. Patrick Gray’s nomination as Director of the FBI verged on disaster, with Gray about to admit that he had cooperated with Dean in seeking to limit the investigation of the break-in. The nomination also brought a confrontation with the Senate over executive privilege. The day after McCord sent his letter to Sirica, Dean told the President that there was “a cancer on the presidency.” Still, the “containment” effort persisted. Howard Hunt received a $75,000 payment from a White House emissary. Kleindienst, probably acting on White House orders, publicly minimized McCord’s charges and privately wrote to Sirica, chiding him for not sending McCord’s letter through Department of Justice channels. But Assistant Attorney General Petersen knew, as well as the prosecutors did, that Kleindienst’s complaint was beside the point: the case, to use a favorite Oval Office expression, was about to blow.
The President and Haldeman in their March 20 meeting did not see any particular problems for themselves or any other key White House figures, however. They believed that they had to focus on protecting Mitchell and CREEP officials, confident that the problems of campaign officials were not their own. Eight days later, Ehrlichman telephoned Kleindienst, conveying word that no White House people had prior knowledge of the break-in. Nixon wanted Kleindienst to keep him informed on developments in the case, particularly any information that involved White House officials. But he was concerned about Mitchell and the people at CREEP, Ehrlichman reported. “So am I,” Kleindienst added. Ehrlichman relayed the President’s demand for “a private communication” from Kleindienst if he learned anything about Mitchell.36
After reading the McCord letter in court on March 23, Judge Sirica turned to the sentencing of the other defendants. He had pondered the question for some time and became convinced that he could use his power to force cooperation from the defendants. Accordingly, he ordered maximum sentences, including six to twenty years for Liddy, thirty-five for Hunt, and forty for the Cubans, plus fines. (Sirica subsequently reduced the sentences for all except Liddy.) When he announced the sentences, Sirica minced no words: the defendants controlled their own fates. “I recommend your full cooperation with the grand jury and the Senate Select Committee. You must understand that I hold out no promises or hopes of any kind to you in thi
s matter, but I do say that should you decide to speak freely, I would have to weigh that factor in appraising what sentences will be finally imposed in each case. Other facts will, of course, be considered, but I mention this one because it is one over which you have control.”37
Sirica believed that McCord’s letter and his own actions vitally affected events. “This case would never have been broken if McCord had elected to stand pat and had not written the letter to me,” the judge wrote. Sirica thought that McCord’s “trust” in him and the courts led to the letter. But McCord had hedged his bets and sent a copy of his letter to a Los Angeles Times reporter. Kleindienst dramatically noted that “future historians, in a more detached environment, might well conclude that the McCord letter was not only the turning point in Watergate but perhaps a turning point in modern civilization as well.” Perhaps; but, in fact, the cover-up already had begun to fray in the Gray hearings then underway. In addition, the prosecutors still had not given up on their pressures to induce the Watergate defendants to cooperate, and they were questioning CREEP employees at great length. Finally, the Senate’s investigators had begun to approach similar leads. Sirica knew that the prosecutors had planned to get convictions, grant immunity from further prosecution, and then bring back all the figures to the grand jury in hopes of amplifying their story. The prosecutors themselves deeply resented numerous reports that they had not attempted to bargain with McCord.38
Sirica’s threat of maximum sentences skirted dangerously close to the precipice of forcing self-incrimination. The judicial precedents were mixed. An appellate court had vacated sentences in a drug-trafficking case because they trenched upon the defendant’s right to avoid self-incrimination. “Mercy seasons justice,” the court said, “but the quality of mercy is strained when its price is abandonment of the classic freedom against self-incrimination.” Two years later, a Second Circuit Court ruling sustained broad discretion for the sentencing judge, including his right to consider matters inadmissible at trial. More to the point of Sirica’s example, the court ruled that when a judge left open the possibility of sentence reduction if the defendant subsequently cooperated, any judicial reference to the defendant’s silence was not a punishment for exercising self-incrimination. Ironically, the losing attorney in that case was Samuel Dash, the designated Majority Counsel for the newly created Senate Select Committee. Dash had recommended the precedent to Sirica, hoping that it might persuade the defendants to cooperate. He did so, he claimed, with great reluctance, believing as he did that the precedent abused the sentencing function. But legal and constitutional arguments, he noted, often come down to a cynical rationalization turning on “whose ox is gored.”
Civil libertarians had their problems with Sirica, lauding his interest in gaining the full story but contending that his pressures upon the defendants raised serious civil liberties problems. One prominent lawyer thought Sirica had exceeded his judicial role, citing the American Bar Association canon that the only purpose of a criminal trial is to determine the guilt of the accused, and that the trial judge must not permit the proceedings to be used for any other purpose. George V. Higgins, a former Assistant U.S. Attorney, also chastised Sirica for stretching the bounds framed by the prosecutor and the indictments in the case. The other issues were not properly before him. “Under the rules,” Higgins wrote, “he should not have messed with it.” Meanwhile Kleindienst, for entirely different reasons, complained to the White House that Sirica was “really lousing this thing up.”39
In White House conversations, Richard Nixon called the sentences “outrageous”; John Sirica himself was a “son-of-a-bitch of a judge” by the President’s lights. Yet a month later, when he admitted the possibility that Watergate was more than a “third-rate burglary,” the President praised Sirica as a “courageous judge,” in an obvious attempt to mollify growing public restlessness. Just days before the sentences, Nixon offered a new anticrime program, providing the death penalty for a number of offenses, mandatory minimum sentences, and bail prohibitions in some circumstances. Typically, he condemned “soft-headed” judges.40 Sirica’s actions confused the President’s categorical labels.
Nixon had no burning desire to determine whether in fact there was any involvement of “higher-ups” in the Watergate break-in; instead, he believed that the “main thing we have to get off our backs, of course, is the whole problem of political pressure.” Two days after making that remark, he told Haldeman that “we simply wouldn’t be able to govern” if the controversy escalated. Haldeman thought the opposition wanted to drive out the President’s top aides in order to prove corruption in the White House, but Nixon steeled himself to support Haldeman and Ehrlichman against the mounting assaults. He had little choice; they were, after all, extensions of his own will. Yet he knew things had changed. Watergate no longer was a Washington story, and it would become worse if the defendants talked. He was concerned about the men in jail and about Haldeman, Ehrlichman, Magruder, and Mitchell. Writing in retrospect, and anxious to demonstrate his utter ignorance of Dean’s activities, he recorded his greatest solicitude for Dean, who deserved “the most consideration because he was acting always as a counsel, giving his best advice and always avoiding anything which would smack of illegal or improper activities.” But Nixon never strayed too far from self-concern. He feared the unknown: “I guess we’re all a bit depressed,” he wrote in his diary.41
The President and his closest White House aides had determined by then that John Mitchell must be a sacrificial lamb if the strategy of containing the revelations was to work. Such passiveness occasionally gave way to exhortation. “Stonewall it,” “plead the Fifth Amendment,” “cover up”—anything to “save the plan,” he said defiantly. But in the next breath, he talked about his preference for “the other way”—in which his good friend John Mitchell would take the blame.42
The Oval Office was infected with confusion and ambivalence, blended with feistiness and belligerence. The President himself ran the gamut of those moods; his aides, as usual, reflected him. Sometimes Nixon and his men underestimated their adversaries and the dangers confronting them. But at bottom, the President recognized the peril. He instructed Haldeman to keep Dean working on the case. From the moment Senator Mansfield proposed a congressional investigation, Nixon was concerned. Dean, he said, should “try to turn it off.”
The trickle of revelations about Administration wrongdoing rapidly had turned into a steady stream; “every day,” John Ehrlichman complained, “the news was freighted with new accusations.”43 The President’s “enemies” were massing. A bunker mentality soon pervaded the White House. Administration figures saw the situation in terms of a metaphor, if not a defense: several talked about circling the wagons around the White House. But the circle may have been closed too late. The enemies were already within; the defenses had been breached.
XI
“WE HAVE A CANCER WITHIN, CLOSE TO THE PRESIDENCY.”
COVERING UP THE COVER-UP: JANUARY–MARCH 1973
James McCord’s letter to Judge Sirica tugged at the tightly wrapped strands of John Dean’s improvised cover-up. Back on September 15, Dean had promised the President fifty-four days—until the election—free of trouble. He had delivered. But four months later, Howard Hunt was demanding more money; Senator Ervin’s investigators were at work, following leads already established by the FBI, the grand jury, and the U.S. Attorney’s office; more important, congressional hearings on Gray’s FBI nomination were coming closer to unveiling Dean’s involvement. And any questions about Dean, of course, eventually had to lead to his intimate dealings in the Oval Office.
At the beginning of March, Dean remained outwardly confident. When the White House insisted on sending Jeb Magruder to the Commerce Department with a new appointment, Dean told Secretary Frederick B. Dent that Magruder had no particular problems. He might have some “bad publicity” in the next few weeks, Dean wrote, but he did not believe it would last. Only two weeks later, on March 20, Dean told
Richard Moore, the President’s special counsel, that the cover-up could not be maintained much longer. Moore thought the situation had become like a “tumor”; “it’s like a cancer,” he told Dean. The next day, Dean reported to the President.
“I have the impression that you don’t know everything I know,” John Dean told Nixon. “In other words, I have to know why you feel that we shouldn’t unravel something?” the President responded, as if knowing that his aide wished to release some of the pressure on the cover-up. The optimistic, even cocky, Dean of September 1972 had vanished; for him, the outlook was terribly grim. “We have a cancer within, close to the Presidency, that is growing,” Dean reported. “It is growing daily. It’s compounded, growing geometrically now, because it compounds itself.” Dean thereupon launched into a long narrative of the origins of Watergate and the subsequent White House responses. But radical surgery lay in the distance. For now, the President and his aides launched a new cover-up, one to mask their earlier effort and also to find appropriate people “to take the heat.”1 Dean’s pronouncement of March 21 was no surprise to Richard Nixon; he already had prepared for that new stage.
The innuendoes and rumors that had floated through Washington since the break-in ripened into substantial revelations during Gray’s confirmation hearings in February and March. The situation was fluid, dictating even more defensive innovations by Dean, the cover-up ringmaster. The Senate Judiciary Committee’s confirmation hearings began shortly after the President announced Gray’s nomination as FBI Director on February 17. By the end of the month, Gray had acknowledged his direct contacts with the White House during the Watergate investigation, and his ambitions lay shattered.
The Wars of Watergate Page 39