Revealing Documents from the Watergate Prosecutions

A Practice Groups Virtual Symposium

Event Video

The Watergate scandal culminated in the resignation of President Richard Nixon and the conviction of some two dozen members of his administration, in what remains one of the foremost political scandals of the twentieth century.

Marking the 50th anniversary of the scandal, an esteemed panel will join the Federalist Society's Practice Groups for a virtual symposium to conduct a detailed review of the prosecutions undertaken by the Watergate Special Prosecution Force.

Four batches of internal prosecutorial documents have surfaced in recent years, which some have argued call into question whether the defendants received the due process of law guaranteed to them by the Fifth and Sixth Amendments. These include documents taken by three of the special prosecutors when leaving office in 1974, as well as the sealed grand jury report, nicknamed the “Road Map,” which the House Judiciary Committee used as its basis for urging Nixon’s impeachment and which was unsealed by court order in 2018.

Please join us on September 15, 2022, for an in-depth discussion of these documents and the Watergate prosecutions between Hon. Theodore Olson, Prof. Stephen Saltzburg, Geoff Shepard, Hon. Laurence Silberman, and moderator Hon. Paul S. Diamond. The symposium program and documents to be discussed are available here.

Additional materials and commentary prepared by Geoff Shepard are available here. All expressions of opinion within those materials are those of Geoff Shepard, not those of the Federalist Society.


  • Hon. Theodore Olson, Partner, Gibson Dunn & Crutcher LLP
  • Prof. Stephen Saltzburg, Wallace and Beverley Woodbury University Professor of Law; Co-director of the Litigation and Dispute Resolution Program, The George Washington University Law School
  • Geoff Shepard, Author of The Nixon Conspiracy (2021) and The Real Watergate Scandal (2015)
  • Hon. Laurence Silberman, United States Circuit Judge, U.S. Court of Appeals for the D.C. Circuit
  • Moderator: Hon. Paul S. Diamond, United States District Judge, Eastern District of Pennsylvania

CLE Information

Download Event Program

Download Background Materials

Slide Deck


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Nate Kaczmarek:  Welcome to this Federalist Society Practice Group webinar. Today, we have lined up an all-star panel of legal experts to discuss, “Revealing Documents from the Watergate Prosecutions,” a special 50th anniversary symposium. My name is Nate Kaczmarek, and I am Vice President and Director of the Practice Groups. As always, please note that all expressions of opinion are those of the speakers on today’s webinar. For those of you interested in receiving CLE credit for today’s program, we have provided an instructional slide onscreen. Please follow those instructions and also sign in using the link in the Chat section.


We have a lot of interesting material to cover today and a packed program, so I’ll abbreviate our moderator’s bio. If you’d like to learn more about Judge Paul S. Diamond or any of our panelists’ accomplished backgrounds, please visit our website or the promotional emails for this program for further details.


Today, we are certainly pleased to have Judge Diamond to guide the discussion. Since 2004, Judge Diamond has served as a district judge for the Eastern District of Pennsylvania. His law degree is from the University of Pennsylvania Law School. He previously served as a state prosecutor in Philadelphia from 1977 to 1979 and then again from 1981 to 1983. He is the author of the book, Federal Grand Jury Practice and Procedure, Fifth Edition. Thank you, Judge Diamond, for joining us and leading us. How are you today?


Hon. Paul S. Diamond:  Very well, thank you. Thank you for that very gracious introduction. I would like to introduce our panel in alphabetical order. Our first panelist should be Ted Olson, who unfortunately was unable to be here today, so I will move onto Professor Stephen Saltzburg, a title professor at George W -- at GW Law School. He’s held a multitude of positions in the Department of Justice as well as the -- he served under the Iran-Contra special prosecutor. He’s a graduate of the University of Pennsylvania Law School, my alma mater.


Geoff Shepard, who worked in the Nixon White House Counsel’s Office after his graduation from Harvard Law School, he really has created all of this. He has ferreted out, through the Freedom of Information Act and great diligence, the many documents we will review today, which, I think, you will find quite fascinating.


And finally, Judge Laurence Silberman, he’s held a variety of high government posts. The two that bear most directly on our presentation today are -- he was Deputy Attorney General in the mid-1970s, and he has served on the D.C. Circuit Court of Appeals since 1985. He has been described as a giant of the federal bench. I think he is the giant of the federal bench.


With that, I will turn things over to Geoff Shepard. Those of us of a certain age, Watergate conjures up any number of things. It’s hard to really convey how the Watergate crisis captured the American imagination almost 50 years ago, really starting 50 years ago. But in 1973, a fair number of people in this country were glued to their television sets, watching the special investigating committee of the Senate, headed by then Senator Ervin, investigate Watergate. I think that it has -- it was then and continues to be depicted as a morality tale of good versus evil. And discussions tend to generate a good deal of heat but not a good deal of light.


 I think that we hope to present things more in shades of gray, and we have the evidence to do it. And with that, I will turn over this matter to Geoff Shepard, who will give us a bit of background on Watergate.


Geoff Shepard:  Thank you, Judge Diamond. I have been allocated up to 20 minutes by the panel to try to summarize the life and times of the Watergate scandal, and so, here we go. We figure about 85 percent of the viewers didn’t live through it, so we’re going to try to summarize it so they can put these documents in context.


What we refer to as the unrest of the 1960s is really the 20-year period between 1960 and 1980, when President John Kennedy, Martin Luther King, and Senator Robert Kennedy were all assassinated, when there were major riots in some 19 cities, when prestigious colleges and universities were shut down by student protests, and when no president completed two full terms in office. Jack Kennedy was assassinated. Lyndon Johnson chose not to run for a second term. Richard Nixon resigned in disgrace. Jerry Ford was never elected president at all, and Jimmy Carter was defeated after one term by President Reagan. It may come as a surprise to many of our viewers, but there were no computers, no cell phones, and no internet. Quite simply, it was a different era.


For Nixon’s part, he had won a narrow election in 1968 by promising to end the Vietnam War — that was called, “peace with honor” — and to restore law and order to a nation torn apart by dissent. He did both. There were 537,000 U.S. troops in Vietnam when Nixon took office. This number had declined to 250 when he ran for reelection in 1972. He had other foreign policy successes, including the opening to China, détente with the Soviet Union, and the reassertion of American influence in the Middle East, including saving Israel in the Yom Kippur War.


Domestically, he founded the Environmental Protection Agency and based the Clean Air and Clean Water Acts, peacefully desegregated the southern schools, restored the rights of Native Americans, ended the draft, enacted the 18-year-old vote, and appointed four justices to the Supreme Court in his first term. He quadrupled the number of women serving in senior government positions, launched the war on cancer, and broke the heroin epidemic that had been ravishing the nation’s inner cities.


His 1972 opponent was Senator George McGovern of South Dakota. He ran as a Progressive. He promised to raise taxes. His campaign was attacked as being in favor of acid, amnesty, and abortion. Acid was the scourge of psychedelic drugs, LSD in particular, affecting America’s college youth. Harvard professor Timothy Leary had famously urged his students to tune in, turn on, and drop out.


Amnesty was forgiveness for all of the draft dodgers, deserters, and miscreants who had so vigorously opposed the Vietnam War. And there were tens of thousands of them leftover from the most unpopular war in American history. But they wanted more than forgiveness. They wanted reassurance that they had been right all along, and George McGovern was happy to oblige. Abortion was roughly the same issue as we find ourselves in today — an intense, state-by-state legislative battle — because Roe v. Wade had not yet been decided by the Supreme Court.


The ’72 election turned into being a wipeout. Nixon ran up the greatest electoral landslide in our nation’s history, winning 61 percent of the vote and taking every state except Massachusetts and the District of Columbia. It was heady times for his supporters. Twenty-two months later, Nixon resigned in disgrace, and two dozen members of his administration were convicted and imprisoned in the greatest political scandal of the 20th century.


Now, Watergate had burst into public view on June 17, 1972, when five burglars were caught red-handed in the Watergate offices of the Democratic National Committee. They had cameras, bugging devices. One of them worked for the president’s reelection committee. Others had phone numbers and uncirculated hundred-dollar bills traceable to the Nixon White House.


The seeds of the scandal, however, had been planted the year before. The Pentagon Papers, a secret 48-volume study by the Defense Department of how we had gotten into the Vietnam War in the first place, was leaked to The New York Times, The Washington Post, and other major newspapers by anti-war activist Daniel Ellsberg. It was considered the biggest national security leak since the beginning of the Cold War. President Nixon authorized creation of a Special Investigations Unit within the White House itself. It was nicknamed the Plumbers because their job was to stop leaks. The problem with Ellsberg was that as a consultant to the RAND Corporation, a defense think tank in Santa Monica, he had access to 54,000 other classified documents.


The Plumbers decided to have a secret look at any Ellsberg files kept by his psychiatrist, Dr. Lewis Fielding. Their illicit entry over Labor Day weekend in 1971 was planned by the two top Plumbers, Gordon Liddy and Howard Hunt, was conducted by several Cuban Americans, and it was authorized by presidential assistant John Ehrlichman himself. Now, in and of itself, the Fielding break-in was not connected to Watergate. But that very same team, Cuban Americans directed by Liddy and Hunt, conducted the later Watergate break-in ten months later, except this time they got caught. So there really was a break-in. There really was a cover-up. The issue, then and now, is who else knew. As Senator Baker so famously put it, “What did the President know, and when did he know it?”


Now, Braum if you’ll go to the next slide, we’ll see six major players. Make sure that comes up. Okay. The top row are Nixon’s most senior staff members. They were heavily involved in his ’68 campaign and in his first term. John Mitchell is Nixon’s former law partner. He headed the ’68 campaign and then became Nixon’s Attorney General. He left the Department in 1972 to head up Nixon’s reelection efforts. Bob Haldeman, in the middle, was an advertising executive. He’d been with Nixon since the 1950s, and he’d become Nixon’s Chief of Staff. John Ehrlichman was Bob Haldeman’s classmate at UCLA. He was Nixon’s first Counsel, and he headed his Domestic Affairs Unit where he was my boss.


In the bottom row are the actual crooks, the mid-level soldiers who got their hands dirty in the break-in or in the cover-up. Interestingly, they had not been active in the ’68 campaign, but they sure were in the second one. Gordon Liddy was a former FBI agent. Remember, he masterminded the Plumbers break-in, and he masterminded the Watergate break-in. Jeb Magruder was a public relations staff member who’d been sent early to the reelection committee to get things running while they waited for John Mitchell to arrive from the Department of Justice.


John Dean was Ehrlichman’s successor as Nixon’s Counsel. He ended up running the cover-up and was described by the FBI as Watergate’s master manipulator. All these people have passed away, except John Dean. All of the people wrote books about their Watergate experiences, except John Mitchell, but James Rosen did a wonderful biography of Mitchell and Watergate called, The Strong Man.


Now, how did it all start? How did Watergate all start? Well, it started when Bob Haldeman asked John Dean to take the lead in preparing a perfectly legitimate campaign intelligence plan. This might, today, be called, “opposition research,” and every campaign has one. You want to know all about your opponents: their positions on public issues, their sources and uses of campaign funds, their schedules, and especially any dirt in their background. You might even have one of your people volunteer on their campaign to gather dirt from the inside.


Unfortunately in our case, John Dean recruited Gordon Liddy for this task, promising him at least $500,000 for his initiatives. And Liddy got carried away. He prepared a plan that included many overtly criminal acts. It was called, “Gemstone,” and it’s lovingly described in his autobiography. There’s no doubt what he proposed. It included specific proposals for mugging, bugging, kidnapping, and prostitution.


When Liddy showed up at the reelection committee and informed Jeb Magruder that he needed about a million dollars for the plan, Magruder said the only one with the authority to approve a commitment of that magnitude was John Mitchell, and he was still Attorney General. So these three folks in the bottom row trouped over to the Department of Justice and met with John Mitchell in his Attorney General’s office, where Liddy laid out his plan on charts prepared by the CIA. Now, Mitchell knew nothing about this initiative beforehand, but all three presenters came from the Nixon White House. A budget for Liddy’s plan was not formally approved at this first meeting. But later, after the break-in arrests, everyone who’d been there or otherwise knew about aspects of Liddy’s plan was very aware of their own potential exposure to prosecution, hence the cover-up.


How did it come out? For the top row, all three were convicted of obstruction of justice, conspiracy, and perjury in a three-month cover-up trial, each sentenced to a prison term of two and a half to eight years, and each served roughly eighteen months. For the bottom row, Liddy adopted the code of omertà, complete silence. He would speak to no one, not a grand jury, not a Congressional committee, not the prosecutors. He became known as the Iron Man of Watergate. But he paid for it. He served over five years in jail for his many crimes until his sentence was commuted by Jimmy Carter to be no longer than seven years.


Magruder was the weak reed in the cover-up and the first to reach a plea bargain with career prosecutors. He pled to a single felony. He served six months of a ten to -- ten-month to four-year sentence. John Dean failed in his own attempts to get immunity from the career prosecutors. But he did get it from the Senate Ervin Committee, who then portrayed him as an innocent whistleblower. And as Judge Diamond alluded, most Americans who know anything about Watergate got their knowledge from the televised hearings of the Ervin Committee because federal trials aren’t televised.


So it’s all Ervin Committee, really, all the time. Everybody watched. He became -- John Dean became the government’s chief witness against his former colleagues in the cover-up trial. He was sentenced to a prison term of one to four years with commitment beginning the scheduled opening of the trial itself. But that was just for show designed to enhance his credibility as a government witness. In fact, he was set completely free following the trial’s conclusion. And thus, he was only confined for four months, and that was on an army base. In truth, John Dean never spent a single night in an actual jail cell.


Now, let’s go to the next slide, and let’s have a look at the critical dates for the Watergate cover-up.


Nate Kaczmarek:  Geoff.


Geoff Shepard:  First, up at the top, you have Liddy’s intelligence plan reviewed. This is in the attorney general’s presence on January 27th and then, again, on February 4th and then by Jeb Magruder and John Mitchell on March 30th when allegedly the plan was approved. There were two actual break-ins into the DNC. The May 28th break-in was successful on planted bugging devices, but one of them didn’t work, so they went back in on June 17th, and that’s when they were caught. Now, today, the day of this panel is September 15th. That makes it exactly 50 years from the burglary indictments that were handed down on September 15, 1972.


The trial itself — and it was seven people — concluded on January 30, 1973, and it was four Cubans and three officials of the committee to reelect a president — Gordon Liddy, Howard Hunt, and James McCord. McCord is a very strange figure. He doesn’t figure prominently in today’s presentation, but he was a career CIA officer and was a wiretap expert. And Liddy had shanghaied him into coming and helping them with their wire taps. Shortly after the Watergate convictions of the burglars, the Senate created a Watergate Committee, headed by Senate Sam Ervin of North Carolina. Most people, as I said, their knowledge of Watergate comes from the televised hearings.


As sometimes happens, very rarely, but sometime happens, the Ervin Committee had no overt advocates of Richard Nixon, so they were very smooth hearings that weren’t strongly contested, and it seemed like everybody was piling on Nixon. It’s a biased point of view, of course, from me. The cover-up itself collapsed — I’m on the bottom row now of the slide — the cover-up collapsed on sentencing day, March 23rd, from the burglary convictions. James McCord wrote a letter to Judge Sirica and said there’s been a cover-up. People have perjured themselves. You don’t know what’s been going on. It caused quite a hullabaloo.


People started, who had guilty knowledge, started seeking out the prosecutors and revealing what had been going on. Nixon acted on April 30th and fired his two top aids and John Dean and appointed a new attorney general with the permission to establish a special prosecutor who was appointed on May 25th. Now, as you can see from the dates, we jump about a year here. But we’re doing that because in July of 1973, Alex Butterfield revealed there had been a taping system in the Oval Office, and lots and lots of the president’s conversations were on tape, and that led to about a year’s legal battle over the tapes themselves. Nixon’s defense collapsed. He resigned on August 9th, first and only president to resign from office in a scandal. He was pardoned by Jerry Ford on September 9th, and then, shortly thereafter, in October, the three-month cover-up trial of seven individuals — including Mitchell, Haldeman, and Ehrlichman — and that concluded on January 1, 1975.


And there, matters stood for 40 years. But then, something began to happen, and that’s what brings us to today. It turned out that four batches of documents of internal prosecution documents began to surface, beginning in 2013. Special Prosecutor Leon Jaworski had taken his confidential Watergate files with him when returning to Texas at the beginning of the cover-up trial. These included grand jury transcripts. They surfaced at his law school alma mater, Baylor Law School in Waco, Texas, in 2013. They were retrieved by our National Archives. They were government documents. And I was the first person to examine them.


Associate Special Prosecutor James Vorenberg, Cox’s top associate and his first hire, took his files with him when going back to Harvard. And they first surfaced in 2015. Now, these were mainly his extensive notes from staff meetings and other events in preparation for writing the prosecutor’s final report, which Vorenberg authored and came out in October of 1975. Again, I was the first person to gain access to these notes.


Counsel to the Special Prosecutor Philip Lacovara, who described his position as number two and a half in the office, took his files when he resigned. He resigned in advance of the cover-up prosecutions, and he didn’t return them to archives until 2020, just two years ago. Once again, I was the first to get to go through them. Finally, the prosecutor’s secret report, nicknamed the “Road Map” — we’ll get to it in this program — was the basis for the grand jury naming Nixon a co-conspirator and for the grand -- for the House Judiciary Committee recommending his impeachment, that remained sealed until 2018, when it was finally released in response to my court petition.


Now, I contend these documents undermine everything we’ve been told about the Watergate scandal. And they raise serious questions as to whether in a time of intense political upheaval, the defendants received anything like the fair trial guaranteed by the Fifth and Sixth Amendments to our Constitution. Now, if we go to the next slide, I have a triangle. This is --


Nate Kaczmarek:  Geoff, can I interrupt? I apologize for interrupting.


Geoff Shepard:  You go right ahead.  No, you go right ahead.


Nate Kaczmarek:  I just have one last final reminder announcement for our audience, just for those who are interested in CLE. The instructions are on the slide -- or on the screen presently. A reminder that if you need to sign in to -- for CLE, that is available in the Chat section, and lastly, if the audience -- audience members, as we go along, if questions arise in your mind that you’d like to ask our panel, please put them in the Q -- the Question-and-Answer section, the Q&A section at the bottom, and we will endeavor to answer at the end of the program all of your questions. With that, I will get out of the way and turn it back to you, Geoff.


Geoff Shepard:  All right. Right. We’ve going to my triangle slide. This is my attempt to illustrate what I believe the documents show: secret meetings, secret memos, secret coordination between all three branches of government. At the top, you have the executive branch. There are indications, written indications, that Special Prosecutor Archibald Cox, Special Prosecutor Leon Jaworski, and various Watergate Special Prosecution Force attorneys met secretly with the judges and met secretly with members of Congress and their staffs.


Down on the lower left side, the legislative branch and there were three active committees: Senate Judiciary, the Senate Ervin Committee, and House Judiciary. And they met with the special prosecutors, and on rare occasion, they met with the judges. And over on the right side, you see the three judges involved in the ex parte meetings that we’re going to discuss: Chief D.C. Circuit Judge David Bazelon, Chief District Judge John Sirica, and Federal District Judge Gerhard Gesell.


Now, before we go to the next slide, I want to finish up, and I’m going to turn it back over to Judge Diamond. Most Americans agree, at least we hope they agree, that no matter how despicable the defendants or how egregious their crimes, they deserve a fair trial. Only then can we hang them. This is what we mean by the rule of law. Our issue this afternoon is whether the documents I’ve uncovered, now publicly available at our National Archives, show others.


And we’re going to go into four areas: the ex parte meetings, the efforts to remove Judge Sirica, and apparent suppress of exculpatory evidence, the apparently partisan considerations in the choice of those who got indicted. I will summarize the document, turn the discussion over to Judge Diamond and the panel. One quick warning, we’ve realized there’s too much material to cover in a single three-hour session, so we’re dividing it in half. Today’s focus will be on issues connected with the cover-up trial. A second part, issues connected with Nixon’s impeachment, we hope to cover at a subsequent date that’s yet to be determined. The first section of our panel is a series of ex parte meetings. And if you’ll, Braum, if you’ll come up with the next slide --


Hon. Laurence H. Silberman:  Excuse me, Geoff.


Geoff Shepard:  Yes, sir.


Hon. Laurence H. Silberman:  Don’t you think you ought to mention at this point the Saturday Night Massacre and, therefore, the transition from Cox to Jaworski?


Geoff Shepard:  I’d be happy to, Judge. Archibald Cox was special prosecutor for six months and hired all of the Watergate special prosecution staff. In the -- controversially over the tapes, they -- Nixon didn’t want to turn the tapes over to anybody, but there was a proposed compromise, and it was called third-party authentication. It was actually Cox’s idea in the beginning. And what the White House suggested was they have the tapes listened -- prepare a transcript, have the tapes listened to by an expert, a third-party authenticator, and then, those transcripts, once authenticated, could be turned over to the special prosecutor and the grand jury.  They chose --


Hon. Laurence H. Silberman:  You should explain what the tapes were.


Geoff Shepard:  Well, these are the White House tapes that were put in Nixon’s office in February of 1971 and taped about two years of his private conversations. It was an automatic system. So if he was in the office or in his hideaway office in the old EOB and there was sound, the system picked it up. The tapes are many times difficult to transcribe because they’re not of high audio quality. And the prosecutor wanted the tapes. Nixon didn’t want to turn over anything but, toward the end, offered authenticated transcripts.


Nixon believed, fairly or unfairly, that Elliot Richardson, his attorney general, was prepared to fire Archibald Cox if Cox didn’t go along with his own idea of third-party authentication. But when push came to shove — and Cox said, not good enough. I want the tapes or nothing — Elliot Richardson decided it would be better for his own political future to resign instead of firing Cox. So Nixon ordered the next person in line, the deputy attorney general, to fire Cox. He declined, and he was fired. And then, Bob Bork, who was solicitor general, agreed to fire Archie Cox, and that rigmarole, occurring Friday evening, October 20th, is called the Saturday Night Massacre. And it ended up in a huge firestorm.


It was characterized by Nixon’s new chief of staff as a firestorm of protest, and the Nixon people folded, agreed to appoint a successor special prosecutor to take Archibald Cox’s place, who turned out to be Leon Jaworski. So you had Archibald Cox and Attorney General Elliot Richardson for the first six months, then you had Acting Attorney General Robert Bork and Leon Jaworski until Senator William Saxbe of Ohio was confirmed as the new attorney general. And Judge Larry Silberman was confirmed as the deputy attorney general and was attorney general from January of 1974 into the Ford administration until April of 1976, when he became ambassador to Yugoslavia. Larry, is that complete?


Hon. Laurence H. Silberman:  Fine. I just wanted you to explain the transition from Cox to Jaworski.


Geoff Shepard:  Very fair. Very fair. Watergate is two and a half years and very complex, and I tried to summarize, but I skipped many significant events. So what is -- today is 50 years from the burglar break-in. We’re going to fast forward almost two years to March 1st, which was the indictments for the cover-up trial. We’re going to skip this slide. Okay. Let’s proceed --


Hon. Paul S. Diamond:  Why don’t you let me just read the --


Geoff Shepard:  Yeah. Go ahead and read it. It’s just a paragraph. There it is.


Hon. Paul S. Diamond:  There it is.


Geoff Shepard:  Braum’s got it up. We’re okay. Go ahead, Larry -- go ahead, Paul.


Hon. Paul S. Diamond:  The chief judge of the D.C. District Court was John Sirica, who assigned the Watergate cases to himself, and the lawyer representing H. R. Haldeman — and, again, I can’t emphasize enough the currency these people had in American culture at the time — Haldeman, Ehrlichman, Dean, Archibald Cox, and so forth. But Haldeman’s lawyer wrote this letter to Chief Judge Sirica, “Would you be willing to inform us whether you were contacted or whether you conferred with the prosecutors, the Grand Jury, or the foreman or any -- or other member thereof, regarding the report which the Grand Jury presented to you in opening court on March 1, 1974.”


And we all practiced law at one time, and I think this is a fairly stunning letter for a lawyer who would be appearing before a judge to send to the judge. Did you have improper meetings, ex parte meetings, with the government? And we’re going to spend a fair amount of time giving you what the answer might have been. He never got an answer, but -- Mr. Wilson never got an answer to this letter, but before we go to the documents that Geoff has uncovered, I’m going to ask Professor Saltzburg to go through very quickly the ethics strictures that apply at the time, regarding judicial ex parte communications and lawyer ex parte communications. Professor Saltzburg.




Geoff Shepard:  Braum, go to the next slide. There.


Prof. Stephen A. Saltzburg:  So this one’s -- this one in the 1970s said, “In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending.” This is, basically, no ex parte contacts in any adversary proceeding, and basically, we all understood this. From the day you graduated law school, you understood that in adversary proceeding, the adversaries were supposed to be in court and to have an equal opportunity to speak to judge or jury in a jury case. There wasn’t to be any advantage sought by having a private conversation with the judge that related to the merits of the case that was before that judge.


Geoff Shepard:  Next slide.


Prof. Stephen A. Saltzburg:  And this is the flip. “Except as authorized by law, the judge shall neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” I say it’s the flip side because it’s just as improper for a judge to seek out one lawyer in a proceeding for a private conversation. That’s as compromising as if the lawyer sought out the judge. And I would -- I’ve been a lawyer for 50 years now. I don’t think I’ve ever had an ex parte conversation with a judge about a matter that was pending before that judge. I mean, I’ve had conversations with judges about other things. We all -- many of us have, but this is something that most judges, maybe all, take very seriously.


For example, I served on the Advisory Committee in the Federal Rules of Criminal Procedure with a federal judge. I don’t need to name it. And he had a tough evidence question, and he called me. I wasn’t a party. Called me, “Need to talk over the evidence question.” We talked, and then, he went on the record in the case.


And he just said to the lawyers, “I’ve just had a conversation with Professor Saltzburg. I asked him this question. This is what he said to me.” He said, “And here's his number. You can call him, if you wanted to check.” He didn’t have to do that. I wasn’t a party. I wasn’t in the case. It was kind of like he’d opened the book, only he didn’t have the book. So he called, but he wanted to be clear that the lawyers had a fair opportunity to deal with me on -- in what I said.


And that’s -- that is what, I think, is at the heart of the rule of law: equal access to judges, equal access to jury. And I would guess, Judge Diamond and Judge Silberman, that in all the years you’ve been either a lawyer or a judge, you probably had no ex parte communications.


Hon. Laurence H. Silberman:  I don’t ever recall one.


Hon. Paul S. Diamond:  No, I’ve never had ex parte communications. The only exception to that is when I conduct settlement conferences with the -- in civil cases. With the agreement of both sides, I will meet with each side to try to negotiate a settlement. In criminal cases, absolutely not. There’s no provision for it.


And in my opinion, any conviction that has at its foundation ex parte communications with me would be an invalid conviction. It’s a very, very serious matter. It is a very, very serious violation of due process, in my view, to have ex parte communications with either side — I don’t care about a criminal case now — about the merits of the case that will be or is proceeding before me.


And with that, why don’t we go to -- and we’re taking them slightly out of chronological order because, for the narrative, it makes a little more sense. To the next document, if you will, Braum. And this is the precious metal that Geoff Shepard has really, with a pickaxe, dung out of the side of a mountain through his FOIA efforts and his various petitions. I believe it’s all to the D.C. District Court. Geoff, could you summarize this document, please?


Geoff Shepard:  Surely. This is a memo from Phil Lacovara, Counsel to the Special Prosecutor, to Richard Ben-Veniste, who was head of the Watergate Task Force, and it describes an ex parte meeting he had that morning — this is the morning of January 2nd — with Judge Sirica. He was notified the night before. “I received a phone call at home from Todd Christofferson, a law clerk to Sirica.” And then, in the meeting itself, Sirica asked whether they knew anything that would indicate Earl Silbert would the source of any leaks.


Now, Sirica had been to a party of New Year’s Eve with his former law firm. He heard a rumor. The rumor was there were leaks out of the grand jury. The rumor was wrong. The leaks were coming out of the Senate Ervin Committee, which leaked like a sieve. Silbert had nothing to do with the Ervin Committee, and the object of the leak had nothing to do with the grand jury. But that wasn’t known at this part.


Go to the next page, next slide. And here, Lacovara is saying, “We told the judge we didn’t think there was any basis. And the judge said, ‘He just got a call from Sam Dash.’” Sam Dash is majority counsel of the Ervin Committee. “Judge told me he had indicated to Dash, a good friend, what he told us about this rumor.”


And then, the end of the memo, “Judge Sirica indicated to me since both the Committee and we had cleared Silbert, he would proceed to swear him in as interim United States Attorney as scheduled.” Now, Sirica had just been named, “Man of the Year,” by TIME Magazine, so he was really feeling his oats. What he’s done is appoint himself to check out these rumors he had heard at a party. Judge Diamond, what do you think?


Hon. Paul S. Diamond:  Well, first of all, I’d like to draw attention to the very first line at -- and this is -- Mr. Lacovara has written, “At approximately 10 p.m. on Tuesday, January 1, 1974, I received a telephone call at my home from the law clerk to Judge Sirica,” who then proceeds communicate with Mr. Lacovara on Judge Sirica’s behalf. I don’t believe that anyone in the U.S. Attorney’s Office here in Philadelphia has my home number and would call me at 10:00 at night on New Year's Day to discuss anything. It suggests to me — and I’m going to ask Judge Silberman and Professor Saltzburg what they think — but it suggests to me this was not the first communication of this nature because it’s at 10 at night. It appears to me, if you put it in context, there had to be communications before that. What do you think, Professor Saltzburg?


Prof. Stephen A. Saltzburg:  I think that’s highly likely. And the other thing is, one, you don’t get a call like that out of the blue. Aside from the home phone number, it’s -- there doesn’t seem to be any surprise, right, in this letter. It wasn’t like, “I was really surprised. I was shocked.” No, this seemed to be the normal course of events for what was unfolding between Judge Sirica and the special prosecutors.


Hon. Laurence H. Silberman:  I agree with that conclusion.


Hon. Paul S. Diamond:  The exact processes that were in place at the time are a bit hazy, but I’m assuming that as is the case today, when a Senate-confirmed U.S. attorney steps down, the DOJ names some interim person until the president names a new U.S. Attorney who is confirmed by the Senate.


Hon. Laurence H. Silberman:  I’m sorry. I think it’s actually the Court that does that.




Hon. Paul S. Diamond:  I thought the Court swore him in. Today, I know the DOJ names him, but in any event, before Sirica was going to do anything, he wanted to have Silbert, who just passed away — and Professor Saltzburg informed us a little earlier that his obituary is in The Washington Post today — he wanted to make sure Silbert was kosher, if you will. But it’s interesting that -- and I would like our panelists to weigh in a bit on this. The people he asks for advice are the Counsel to the Watergate Special Prosecutor and Counsel to the Ervin Committee. How does that strike you, Judge Silberman?


Hon. Laurence H. Silberman:  Inappropriate.


Hon. Paul S. Diamond:  Professor Saltzburg.


Prof. Stephen A. Saltzburg:  I’m glad you emphasize that. We haven’t mentioned Sam Dash earlier. Sam Dash was a Georgetown professor who became Counsel to the Watergate Committee. He was a very important player, I think, in the investigation of President Nixon. It is incredible, when you think about it, that, in this memo, he’s reporting that Judge Sirica is calling both the Watergate prosecutors and the Counsel to the Senate Committee in order to get their opinions on what he should do as a judge when it comes to swearing in the next acting United States attorney. It’s incredible.


Geoff Shepard:  I’d like to add a couple of additional facts to what Professor Saltzburg has said. Sam Dash taught at Georgetown, and Judge Sirica did a course at Georgetown, so they knew each other. In Sam Dash’s book, he describes another ex parte meeting he had with Sirica to urge a particular approach to sentencing. Sam Ervin’s top personal assistant was a gentleman named Rufus Edmisten, who is now in Raleigh, North Carolina. And Mr. Edmisten has said recently that Sam Dash went down to see Judge Sirica all the time, that Dash invited Edmisten to go with him, and he said, “You know, we shouldn’t be doing this. This is not proper.” So he didn’t go, but this contact between Sirica and Dash was not a one-off event. It was with some frequency.


Hon. Paul S. Diamond:  And to, again, give some historic context, Sam Dash is Republican analog[1] [2] . Chief counsel for the Republican side of the Ervin Committee was Fred Thompson. That was when Fred Thompson first appeared on the screen, not at The Hunt for Red October or one of the other movies or when he became senator from Tennessee. It was when he was Republican counsel, and Sam Dash, especially, became a public figure. Everybody knew anybody who appeared on TV all the time in this Watergate -- these televised Watergate hearings, they were at least as ubiquitous as the O. J. Simpson trial when it was televised, perhaps more so. And Dash was a celebrity, and that’s who it appears Judge Sirica went to for advice on whether or not someone who was about to swore as acting U.S. attorney is leaking grand jury material.


Hon. Laurence H. Silberman:  One gets the impression from this that Judge Sirica regarded his actions regarding the grand jury as corollary of the impeachment proceeding. It was an -- two branches of an operation directed at the president, and it looks like they were cooperating.


Hon. Paul S. Diamond:  That seems exactly right to me, Judge Silberman, and I think we’re going to find more evidence of that as we go forward. But it’s -- it appears to be two branches of government cooperating against the third. The judicial and the legislative cooperating against the executive. But why don’t we go on to the next document?


Prof. Stephen A. Saltzburg:  Can I ask one question, Judge, before you do?


Hon. Paul S. Diamond:  Sure. Sure.


Prof. Stephen A. Saltzburg:  Could Geoff -- could you explain or -- one thing? I may have this wrong, but prior to there being a special prosecutor, before Archibald Cox was named Special Prosecutor, my understanding is that the investigation into the Watergate break-in and the -- and later the cover-up, it was being done by the U.S. Attorney in D.C., and Earl Silbert was in that office. And Earl Silbert was, if not leading, one of the key players in that investigation. Then --


Geoff Shepard:  Oh, no. He was lead.


Prof. Stephen A. Saltzburg:  He was lead.


Geoff Shepard:  He was principal Assistant U.S. Attorney. He had two assistants, Seymour Glanzer and Donald Campbell, but Earl led the investigation. He is the one in his team who conducted the burglary trial, and he’s responsible for breaking the cover-up. It was all the career guys, and their reward for having done that is they were summarily dismissed when the case became politicized and a new -- and a special prosecutor was appointed.


Prof. Stephen A. Saltzburg:  So I wanted to ask you, so one of the odd things about this letter is isn’t it true that once they were dismissed, that Earl Silbert, or other of those prosecutors, that is the regular Justice Department lawyers, they were unlikely to even have access to grand jury material that that special prosecutor was generating.


Geoff Shepard:  Yeah, the rumor’s a little unclear because it’s just all a rumor, but the rumor was that Alex Butterfield was warned in advance of questions he was likely to be asked. Happened to be true of the Ervin Committee. Butterfield never appeared before the grand jury, had nothing to do with Earl Silbert. And that’s why the rumor was so misleading.


Hon. Paul S. Diamond:  And just to add a little more historical and legal context to this, Archibald Cox was appointed, when all is said and done, by President Nixon, and -- as was Leon Jaworski. As a result of Watergate, a law was passed, an independent counsel law, which has since sunsetted --


Hon. Laurence H. Silberman:  Wait a minute. Wait a minute. Wait a minute. I think he was -- I don’t think he was appointed by Nixon. He was appointed by Elliot Richardson, wasn’t he?


Hon. Paul S. Diamond:  He was appointed by the attorney general, but I consider that appointment by the Executive, Judge Silberman.


Hon. Laurence H. Silberman:  Yes, yes, of course. But let me tell you the circumstances. When Elliot went up for confirmation, the Democratic Senate, particularly led by Ted Kennedy, insisted that a special prosecutor be appointed. And it was more specific than that. It was that Archie Cox would be appointed, and Archie Cox had been solicitor general in the Kennedy administration and a close associate of Jack Kennedy and the Kennedy family. So as a price of confirmation, Elliot Richardson had to appoint as special prosecutor someone intimately and politically close to Ted Kennedy.


Geoff Shepard:  Well, actually, at one point, Richardson was asked, “How on earth did you pick Archie Cox? What did the White House say?” And Richardson said, “I never asked them. I appointed him on my own.”


Hon. Paul S. Diamond:  And the Special Prosecutor Act, the Independent Counsel Act, that the Supreme Court of the United States eventually -- it upheld the constitutionality of it, 8-1. When it was before the D.C. Circuit, Judge Silberman wrote an opinion that I find very --




Hon. Laurence H. Silberman:  Excuse me. Excuse me. Excuse me. 7-1.


Hon. Paul S. Diamond:  7-1. I apologize. Wrote a very persuasive opinion why he thought it was unconstitutional. Justice Scalia, he was the one who dissented, but in any event, that statute has sunsetted, and you note now that there are calls for appointment of independent counsel today. But that wouldn’t be done, pursuant to a statute. But that statute was a direct result of Watergate, just as the Federal Election Commission was created in the wake of Watergate. It didn’t exist before.


Geoff Shepard:  I would like to add that I have told Judge Silberman many times that his opinion in that case, Morrison v. Olson, is his most brilliant opinion, and the Judge has responded that in his many years on the bench, he has authored many brilliant opinions. [Laughter] All right. Let’s go on to the next document because it’s --


Hon. Paul S. Diamond:  Geoff never says that about me, Judge Silberman. Anyway, if we could go to the next document, please.


Geoff Shepard:  Okay. This is a letter written nominally by Leon Jaworski to Judge Sirica, and it’s dated December 27th, which is before this little session with Silbert. And the first sentence says it all. “When Messrs. Ruth, Lacovara, Ben-Veniste, and I met with you and Judge Gesell at your request on Friday, December 14th.”


Just stop right there. These are the four top Watergate prosecutors. Hank Ruth is Deputy Prosecutor. Leon Jaworski’s Lead Prosecutor. Phil Lacovara is Counsel to the Prosecutors, and Rick Ben-Veniste is the Acting Head of the Watergate Task Force. Judge Sirica and Judge Gesell are the two judges who will try all of the Watergate trials. Three days before this meeting, Judge Sirica had given to the prosecutors the first set of White House tapes.


So they just all get together for the fun of it. We don’t know what they discussed, but, Judge Diamond, the idea they got together at all.


Hon. Paul S. Diamond:  Well, why don’t you go on and summarize the rest of the letter, if you would, Geoff, and we will discuss it.


Geoff Shepard:  Well, the rest of the letter is an attempt to predict cases coming down the pike. And you can’t sort them out. You don’t know what case is a perjury case or what case is a Plumbers case because it’s too vague. The only case where you can tie it to a specific is highlighted at the bottom of the second paragraph, and it says, “I believe by the end of January or beginning of February, we may have an indictment of a case that could well take three to four months to try.” That’s the cover-up case.


And one interpretation of this letter is it’s a written promise to Judge Sirica that the indictment in the cover-up trial, which he’s made no secret he wants to appoint himself to hear, will come out by the end of January, beginning of February. Now, this is key to Sirica because Sirica’s going to turn 70 on March 19th. He’s going to have to step down as chief judge, and he will lose the ability to appoint himself to try the case. Now, to me, I fretted over this letter for eight years. I can’t make hide nor -- I can’t make sense out of the rest of the letter.


Hon. Paul S. Diamond:  Well, I think in every district there are lengthy trials that have to be -- where the court has to prepare for them. We certainly have had them in Philadelphia. I’m sure that there have been other D.C. trials that have taken two or three months to try. When I -- two-month trial I tried, I met with the lawyers for both sides to discuss case management. We had a final pretrial conference. We would discuss how long any part of the trial might take and this kind of thing, the practicalities of trying the case. I never met with four or five guys from the government, and no one else there, to discuss planning, to discuss this kind of thing. What do you think, Judge Silberman?


Hon. Laurence H. Silberman:  I think it’s horrifying. And you know what’s interesting? These are letters that were written and kept. You can’t imagine — or you can imagine — what the conversation could have included that’s not in the letter.


Geoff Shepard:  Well, I can.


Hon. Paul S. Diamond:  Professor Saltzburg, what do you think?


Prof. Stephen A. Saltzburg:  Well, I’d just remind everybody that the ethics rule that we put up there said the judge shouldn’t have conversations about a pending or impending proceeding. I believe the impending is just like this: that you can’t have conversations with four prosecutors about a matter that is going to come before the court, especially when they’re trying to make sure it comes before a particular court and a particular judge.


Hon. Paul S. Diamond:  Why don’t we move to the next slide, and, Geoff, if you could summarize -- first of all, explain what this document is. And perhaps the most impressive thing about Geoff is his ability to read James Vorenberg’s handwriting, which I can’t do.


Geoff Shepard:  Jim Vorenberg was Cox’s closest confidante and fellow professor of criminal law from Harvard Law School. And he took it upon himself to keep notes of all the staff meetings and all the significant events so he could author their report at the end of their work. Going through, nobody knew Nixon was going to resign. Nobody knew it was going to happen, so the report was an absolutely critical event. And what this is this is a set of notes, handwritten notes. He took these back to Harvard. I didn’t see these until 2015.


And he’s describing an event. Now, what’s happened, to put it in context, the prosecutors have concluded Nixon must have approved the payment of blackmail to Howard Hunt. They’ve got him cold. They’re going to prosecute him and put him in jail. That’s their thinking. This is the Special Prosecution Force.


There’s this ambiguity that maybe they’re going to pause and let the House Judiciary Committee take lead on Nixon’s impeachment. And four of the young prosecutors — these are the hotshots — have authored a memo that says, no, we got to indict him. None of this namby-pamby impeachment stuff. This is what we came to do, and if we have an ounce of integrity, we’ll indict him. And they circulated that amongst all of the senior staff.


And then, at a staff meeting, which Jaworski doesn’t attend -- I didn’t realize this, but Jaworski’s not there. He has Vorenberg say, too late. Judge Sirica and I have already agreed. We’re going to go the impeachment route, that the law’s too unclear on indicting a sitting president. So this is his note. The note is about the president. And then --




Hon. Paul S. Diamond:  Geoff, if you could read that --


Geoff Shepard:  -- and three others, recommending Nixon be indicted is a cause for frustration in the staff because Jaworski told him he’d already reached an agreement with Sirica several weeks before and without disclosure, without telling them that Nixon would not be named in their comprehensive indictment. One problem — this is Vorenberg, writing this down — is that some, and maybe most, of the staff agreed with Feldbaum’s memo. Now, we didn’t reproduce it. We have his memo. But [crosstalk 01:02:07] felt --


Hon. Paul S. Diamond:  -- But the gist of this is that Mr. Feldbaum wrote a memo recommending that the president be indicted and tried. It should be like every other criminal matter, and the section that Geoff has highlighted is that “Jaworski told them he’d already reached an agreement with Sirica several weeks prior and without disclosure,” meaning, I presume, without disclosure to the Watergate Special Prosecutor. And --


Geoff Shepard:  Yes, yes. That’s my conclusion.


Hon. Paul S. Diamond:  -- “that Nixon would not be named. One problem is that some, and maybe most, of the staff agree with Feldbaum’s memo,” i.e. they want him criminally charged. So you have the head of the Watergate Special Prosecutor’s Office meeting privately with the judge, and they agree that Nixon’s going to be impeached and not criminally tried. That is what this presumably contemporaneous — although as the young people say, “real time” — memo says. Professor Saltzburg, what do you think?


Prof. Stephen A. Saltzburg:  Well, it’s probably unique in that here’s a judge talking to the special prosecutor about who shouldn’t -- who should be charged and who shouldn’t be charged. That’s an extraordinary situation. By the way, I think it actually demonstrates why Judge Silberman and Justice Scalia were justly concerned about the whole idea of the constitutionality of a special prosecutor. When we look back on this, it seems to many people that impeachment was the way you remove a president. And that’s later the conclusion the Department reached, that you can indict a sitting president. But on the ethical side, it’s just horrible. On the practical side, it avoided a question of whether you could charge a sitting president, and that probably was to the good, but it’s hard to believe that Judge Sirica was agreeing on charging. Never heard a judge do that before.


Hon. Paul S. Diamond:  Judge Silberman.


Hon. Laurence H. Silberman:  Well, I agree. I totally agree. The discussions are wholly inappropriate. It looks as if Judge Sirica, the special prosecutor, and the Watergate Impeachment Committee were all combining and coordinating their activities.


Hon. Paul S. Diamond:  It sure does, doesn’t it? It looks that way to me, too, Judge Silberman. And in the 18 years I’ve been doing this job, I have never had a prosecutor pay me a visit to ask me who I thought should or shouldn’t be charged in a case I would assign to myself or even a case I wouldn’t assign to myself. And it’s said in such a casual way. “Jaworski told them that he’d already reached an agreement,” just sort of the back of the hand. We can’t do -- Mr. Feldbaum and the others, we can’t do it. Our boss has already reached an agreement with the judge. So that’s it.




Geoff Shepard:  In one of the recent books by one of these prosecutors, they recount this furious exchange between Jaworski and the lead Watergate Task Force Head, Ben-Veniste, where Jaworski accuses him of planting this memo to try to undermine Jaworski’s decision-making process. And --


Hon. Paul S. Diamond:  You’re talking about the Feldbaum memo?


Geoff Shepard:  The Feldbaum memo. He said -- he accuses Ben-Veniste of being behind it, and he’s screaming insubordination, which you can see the young Turks. They want to bag Nixon, not see -- letting the Congress do it. This is what we came for. We want to imprison the sitting president.


Prof. Stephen A. Saltzburg:  Just to show you the incestuous nature of this whole thing, I have no reason to know this, but my intuition is that Sam Dash, who was a really good friend of Sirica, that Sam Dash went to Sirica and said, they shouldn’t indict the president. This is something Congress should take care of. Impeachment should predominate. And Judge Sirica called in Jaworski and said that’s the way it should be. And Jaworski agreed. If I’m right, you have the Watergate -- you have the Ervin Committee through Sam Dash talking to the judge and the judge then talking to the prosecutor. It’s just horrible.


Geoff Shepard:  All right. Let’s go on because we got to get through this stuff. Let’s go on to the next memo because it gets worse. Now, before we read you the memo, look at the dilemma they’re in. The prosecution has now been told we’re going to let the Hill take the lead. But the prosecutors have gathered a tremendous amount of evidence, they think, against Richard Nixon through the use of the grand jury.


And they get it because they’re aiming toward a criminal prosecution. So they’re sitting on mountains of evidence, and they want to give it to the Hill to help out their colleagues on the Hill. But grand jury evidence is supposed to stay secret. So Phil Lacovara comes up with this idea of how to get secret grand jury material to the Congress.


Hon. Paul S. Diamond:  If I can interrupt you for just a second, Geoff. At the time also, I believe — and you’ll correct me if I’m wrong, Geoff — the House Impeachment Committee was having trouble getting evidence. People were invoking privilege. People were not testifying. They couldn’t -- the grand jury is uniquely powerful in its ability to obtain evidence. And that’s what was done here.


And so, what Geoff is telling us is that the Watergate Special Prosecutor Task Force — knowing that an agreement had been reached between Sirica and Jaworski, that it was going to be an impeachment, not a criminal prosecution — wanted to figure out a way to get secret grand jury materials over to the impeachment committee. Please go ahead, Geoff.


Geoff Shepard:  Yeah, they wanted to help. And there’s an exchange, not — we don’t have it today — where Jaworski says that’s just not our business. That’s the Congress’s business. That’s not our job. But they rolled him.


And this is Lacovara’s memo to Jaworski, explaining a very, very creative approach to get secret grand jury material to the Hill. They’re going to call it a presentment. And it’s so creative. I use the word, “bizarre.” If you go to the next slide — it’s still the first page — it says if we surprise Sirica, he might rule against us. “It would be unfortunate, for example, for the grand jury to return a presentment without forewarning” only to have Sirica “summarily refuse to receive it because of his lack of awareness of the basis for such a submission.”


So if you go to the next slide, what Lacovara suggests is if the grand jury agrees with us to a presentment, we should go meet with a judge, ex parte, “to apprise him in advance of this possible development.” I’ll even prepare a memo of points and authorities so he knows what his power is. This is seen in advance of a decision coming before him for decision. And then finally, the next page, he says if we do this, we should tell Sirica that he’s got to receive it under seal, this grand jury material, that he’s going to send to the Hill so Nixon and the defendants can’t see it. The fact we’re sending it can become public, but the information itself cannot be. What do you think about that memo?


Hon. Paul S. Diamond:  Well, let’s start with the idea of a presentment. There is no such thing -- if there are -- under state criminal codes, there are presentments of all kinds. But there is no such thing as a federal presentment. It is a way of charging someone, say a common law grand jury three hundred years ago, but the Federal Rules of Criminal Procedure refer only to an indictment. And the idea that -- of we’re not going to indict Nixon because Jaworski and Sirica have agreed Nixon’s not going to be indicted, so instead we’re going to call it anything but late for dinner. We’re going to call it a presentment --


Hon. Laurence H. Silberman:  Well, of course, you have to concede that it’s mentioned in the Constitution.


Hon. Paul S. Diamond:  It is mentioned in the Constitution, but I have something called a presentment in the index to my book, but there’s actually nothing in the text, which is a little embarrassing. It’s just never done.


Hon. Laurence H. Silberman:  Yes, because it was fallen into desuetude under the federal criminal rules, even before this -- these events came about. It wasn’t used. It was not used.


Hon. Paul S. Diamond:  Correct. And they’re saying if we return a presentment, Sirica may not know what we’re talking about. Certainly, if a prosecutor came to me with a presentment, I wouldn’t know what they were talking about. And so, as I read this memo, Geoff, the author of the memo is saying we don’t want the judge -- it would be unfortunate if the judge embarrassed us by saying, “What the heck is this?” So we should meet with him and tell him, and I’ll write him a memorandum, so he doesn’t get his script screwed up. What do you think, Professor Saltzburg?


Prof. Stephen A. Saltzburg:  Once again, it’s hard to imagine that they’re going to have private conversations with the judge. If they had, in fact, decided to go down the -- this path, they should have done the presentment, presented it to the judge, and he should have responded the way judges respond. If he said, “I won’t receive it,” fine. If he said, “What is this,” and he wanted to be heard on it, presumably they would say, “We want the White House to have an opportunity to review it.” He could then rule. But I mean, this is prosecutors planning the way in which a judge should carry out his duties, and it just runs so contrary to what judges do.


Hon. Laurence H. Silberman:  Most importantly, it’s done without knowledge of the defendants.


Hon. Paul S. Diamond:  That’s right.


Hon. Laurence H. Silberman:  That’s what horrifying about it.


Prof. Stephen A. Saltzburg:  Yeah.


Geoff Shepard:  All right. Let’s go to the next step because it -- we just follow a procedure. This is a two-page memo that Jaworski has dictated to his file, and the top paragraph describes another ex parte meeting in the jury room. And it really summarizes Judge Sirica saying I want to appoint myself. You told me this case would come up end of January, beginning of February, and that’s gone. I’m looking at a March 19th deadline. Where are these indictments?


So this paragraph, “February 11th, I met with the Judge. Several matters were covered as we sat alone in the jury room. He again indicated, provided the indictments come down in time, he’d take the case. He expressed the opinion the indictments should be returned as soon as possible.” He means that March 19th deadline. He’s not worried about the court scheduling the trial. He wants to appoint himself.


The second page is the follow-up to the Lacovara memo. That’s the next slide. And here, they start talking about the matters that have come before the grand jury. “The Judge commented upon the status of matters, which led to a further comment on the possibility of the grand jury considering some type of special report or presentment.” This is Jaworski’s summary of his pitch to the judge that they want to send this stuff to the Hill.


And Lacovara’s right. The judge doesn’t like this idea. And this is Jaworski’s very skillful description of how he talks Sirica into it. He says, Sirica “countered by [saying] he should be informed of his discretion.” Well, Jaworski’s urging it on him. You got to understand what we’re telling you you could do. And he further requested, “I have a memo prepared for him that covers this subject.”


This is the memo Lacovara offered to prepare, one-sided that will tell the judge what powers he had. And Jaworski said I agreed to have this done as though -- it’s as though it’s the judge’s idea, but it’s not. It’s Jaworski’s.  Now, we have this memo too. We didn’t reproduce it here, but we have the memo that Lacovara prepared that was presented in private to Sirica. And this memo, it’s just two pages. It looks like a quid pro quo. “I want to appoint myself to handle the trial.” And Jaworski says, “Well, we need your permission to send stuff up to the Congress.” Judge Diamond.


Hon. Paul S. Diamond:  And you haven’t gotten to the last couple of pages of the memo, but I -- that’s fine. We will get to it. I am astonished. When Geoff Shepard first showed this document to me the better part of ten years ago, I was flabbergasted. And the special prosecutor got the judge on the team because, otherwise, he might embarrass them. And Sirica himself was concerned about embarrassing himself. And so, he had -- he is being told this is the script we are going to follow. An absolutely remarkable memorandum to file by Mr. Jaworski. What do you think, Judge Silberman?


Hon. Laurence H. Silberman:  Well, I agree with you entirely.


Hon. Paul S. Diamond:  Professor Saltzburg.


Prof. Stephen A. Saltzburg:  Two things that -- about this memo that I think are really significant. The first thing is that Judge Sirica’s reaction was this is not right, that grand juries are to charge people. They’re not to submit secret reports. And he -- according to Jaworski, Judge Sirica said the public would rightfully conclude that the entire proceeding had not been judicious but simply one of wanting to hurt the president. And that seems to me that’s his first reaction. But then, he said, “He told them -- me” -- that’s Jaworski is saying, “Judge Sirica told me that if the grand jury is thinking about doing this, that Judge Sirica thought it would be appropriate for him to meet with the grand jury in camera, not -- that is just unbelievable.


Hon. Laurence H. Silberman:  Yeah, that’s really astonishing.


Hon. Paul S. Diamond:  And again, as Geoff told us, before -- well before this was written, Judge Sirica was TIME’s “Man of the Year.” I distinctly remember seeing Judge Sirica on a late-night talk show.


Geoff Shepard:  He was the most popular judge in America.


Hon. Paul S. Diamond:  I’ve never been asked to appear on a late-night talk show. Have you, Judge Silberman?


Hon. Laurence H. Silberman:  Yes, but I’ve never done so.




Hon. Paul S. Diamond:  Geoff, could you go on to the second part of this memo?


Geoff Shepard:  Yeah. A matter of clarification, it’s a separate memo.


Hon. Paul S. Diamond:  Oh, I’m sorry.


Geoff Shepard:  It looks like it’s page three and four, but let’s go onto it because it’s key. So this is document number four, page three because the earlier part of the document is not relevant. And what he’s describing, this -- we’ve moved forward to March 1st. This is the day the indictments will be handed down, and the Road Map will be presented. And it’s a complicated minuet. You do this; I’ll do that; you do this; I’ll do that.


So he goes in and meets secretly with a judge in advance to rehearse what they’re going to do in open court in a few minutes. “The morning of March 1st, I met with the Judge in his chambers at 10:30. We reviewed the agenda. I told [him] I’d ask the court to assign the case.” And then, go to the next page, next slide. It’s page four. Now, he’s describing -- this is Jaworski describing what happened in open court. “The judge asked if I had any further comments, and I said, ‘Yes. Due to the length of the trial, three to four months, we think under Rule 3-3 (c), this case should be specifically assigned, and we so recommend.”


Now, this is a necessary ingredient. The judge can’t just take it out of rotation. The prosecution has to ask that he do it. “This meant Judge Sirica could assign the case to himself, which he did by order later that day.” And then, you switch to after the hearing. “We met in the judge’s chambers [afterwards]. I told him I thought it’d all gone smoothly. He thanked me for my help. He was leaving today to speak at UVA and be back on Sunday. I told him I was going to Texas, and I’d be back on Tuesday. We both agreed we would call each other in the interim, if necessary.” This is a partnership.


Hon. Paul S. Diamond:  Well, this -- the “it all went -- I told him I thought all went smoothly.” That’s why lawyers often say ex parte is the best party. If you’ve given the judge his script and if the judge can read, yeah, it should go smoothly. Well, first of all, what do you think, Professor Saltzburg?


Prof. Stephen A. Saltzburg:  Well, all you need to know is an indictment has now been handed down, and the prosecutor and the judge have agreed to call each other if anything comes up. I mean, they’ve agreed in advance to have more ex parte contacts.


Hon. Paul S. Diamond:  Judge Silberman.


Hon. Laurence H. Silberman:  I agree. I agree with everybody. It’s dreadful.


Hon. Paul S. Diamond:  Braum, could you bring up that very first slide that has the letter from John Wilson to Judge --




Geoff Shepard:  John Wilson’s letter.


Hon. Paul S. Diamond:  Could you bring that up?


Geoff Shepard:  Way back. Way back. Way back. Back. There it is.


Hon. Paul S. Diamond:  There it is. And could you read again what the letter says, Geoff?


Geoff Shepard:  This is Wilson to Sirica right after the March 1st indictments being handed down. And the Road Map coming is a great surprise. “Would you be willing to inform us whether you were contacted by or whether you conferred with the prosecutors, the Grand Jury, the foreman, or other member thereof, regarding the report which the Grand Jury presented to you in open court on March 1st?” Wilson knows this thing didn’t just spring out of nowhere. They had to have been talking, and that’s what he puts in writing to the judge.


Hon. Paul S. Diamond:  And did the judge ever --


Geoff Shepard:  Interestingly, if I may, the judge says in the motion to remove him, he says, listen, everything I did, whatever I did, I did as Chief Judge, so it can’t be criticized. And we’ll see --


Hon. Paul S. Diamond:  We’ll get to that. We’ll get to that. We’ll get to that, but did Judge Sirica answer this letter?


Geoff Shepard:  Never. Never. He said he didn’t respond to letters. They were beneath him. I don’t respond to letters.


Hon. Paul S. Diamond:  That’s right. But when you look at this letter in the context of the documents that we have just discussed and that Geoff diligently unearthed, you realize why Wilson — who apparently served in the U.S. Attorney’s Office with Judge Sirica when they were both younger men — why Wilson would take this remarkable step and say to the judge have you been having any ex parte communications? And the judge says I won’t deign to answer.


Geoff Shepard:  Yeah. Now, let me interrupt, if I could, because we’re going -- we’re almost through.


Hon. Paul S. Diamond:  Well, we’re just about at the halfway point.


Geoff Shepard:  We’re going to go to break. So Nathan, you need to put that code up for the CLE certification. Braum, can you do it?


Braum:  Yes.


Geoff Shepard:  Okay. Now, look. If you’re watching for CLE credits, you got to write down this code because you’ll have to reproduce it—[redacted]—to prove you’ve been watching so far. Now, we leave it up there. Write it down because this -- you won’t get credit if you can’t reproduce this code.


Hon. Paul S. Diamond:  You’ll simply have had the pleasure of our company.


Geoff Shepard:  Well, it’s been enticing.


Braum:  Can you read it off one more time, Geoff?


Geoff Shepard:  Absolutely. [Redacted]. That’s the CLE code, if you’re looking for credit for watching this magnificent program. Now, unless we have further comments, we’ve kind of completed this series of ex parte communications, and there were lots more. We just didn’t pick the memos. So we’re going to take a ten-minute break. By my watch, it is 1:25, and we’ll come back at 1:35. And we’ll be muted out. We’ll see you in ten minutes. Thank you very much.



[BREAK 01:26:15]



Hon. Paul Diamond:  Are we live? 

Geoff Shepard:  Yes. 

Hon. Paul Diamond:  Okay. We're going to go -- We are live. We are going to go to the next part of our presentation, efforts to have Judge Sirica disqualified as the self-appointed trial judge. Geoff, why don't you take over?

Geoff Shepard:  Thank you. Braum, if you'll put up the hold slide at the end of that slideshow while I talk. Do you have that? Well, it doesn't matter. I can speak from the group just like it is right now. I'm going to ask you to put up Document 5 in just a second, but I don't want you to do it for a couple more minutes.

What has happened is that the defendants—not Nixon's people, but the defendants who've been indicted—have asked Judge Sirica to recuse himself. He's appointed himself. They've asked him, "Please undo that," and he's refused. So they have appealed to the D.C. circuit for a writ of mandamus ordering Sirica off the case, and one of the things they requested in that filing is an evidentiary hearing to explore any ex parte meetings that Sirica may have had with the prosecutors.

And they cite two newspaper articles that reported that Archie Cox had met privately with Sirica. They didn't attach them; I found one of them, and it says Cox saw Sirica for 10 minutes, after which Sirica scheduled a hearing for the afternoon. And it doesn't matter. I can't find anything more. It's about the time Brezhnev was coming to visit Nixon. I don't know if that's relevant, but they did cite two newspaper articles and asked for this evidentiary hearing.

And what's going to come up now is Document Number 5. The ACLU filed an amicus brief in support of this request, three-page amicus brief from the ACLU, and I'm just going to read you the first paragraph. "The American Civil Liberties Union is a private nonpartisan organization, 250,000 members. Its purpose is to defend the Bill of Rights. The union has historically specifically been concerned with construction and application of the Fifth and Sixth Amendment, which, taken together, supply the constitutional basis for the guarantees of a fair trial for anyone accused of crime."

Now scroll down just a touch for me. Okay. Stop. "The right of a defendant to have his case heard before an impartial judge is an elementary agreement of this constitutional requirement of a fair trial. It's for that reason we submit this memo. Having read the points and authorities and joint affidavit filed by the defendants in support of their motion to disqualify, we found this memo in support of defendants' rights to an evidentiary hearing on their motion. If they prove the assertions upon which their motion is grounded"—that's that Sirica's been meeting secretly with the prosecutors—"we believe the motion to disqualify should be granted."

So even the ACLU intervened in support of defendants' efforts to disqualify Sirica. Judge Diamond, do we have a reaction? 

Hon. Paul Diamond:  It's very interesting. Mandamus petitions get filed all the time in the Third Circuit, most frequently by federal prisoners or state prisoners whose federal habeas petitions aren't being decided quickly enough, and they ask the Circuit to step in and speed up the process. 

This kind of mandamus, generally you don't get to an appeals court unless you have a so-called final order, and then the appellate court has jurisdiction to hear an appeal from a final order. Refusal to disqualify as not a final order, but to make the disqualification process have any meaning, the law allows for the party seeking disqualification to ask for a mandamus to ask the Court to direct a district court to disqualify itself.

I get recusal petitions every now and then, and I generally deny them, just say "denied" or I will give some brief reasoning as to why I am denying them. I have never held an evidentiary hearing on a motion to disqualify me. On the other hand, I've never had this kind of ex parte communication which warrants my disqualification.

And so I think what the American Civil Liberties Union is saying -- And one can't help but wonder whether or not it was common knowledge at the time, common enough for the American Civil Liberties Union to produce this extraordinary document and say, "We have to have an evidentiary hearing, and if it's proven, the judge has to disqualify himself."

What do you think, Professor Saltzburg?

Prof. Stephen Saltzburg:  You know, one of the things I wondered about when I saw this document is something that Geoff probably knows the answer to, and that is, why couldn't the lawyers for defendants, those who were indicted -- Why couldn't they, in open court, have said in the presence of the prosecutor and Judge Sirica -- Why couldn't they say, "We believe that there may have been ex parte contacts, and right now we're asking the prosecutors, on the record, whether or not any such context have occurred"? And did they ever do that, Geoff? 

Geoff Shepard:  No. The only thing I can say, which is not directly responsive, the prosecutors were in a heck of a box on this appeal. And so you might ask yourself, "Boy, would I like to hear their discussions." Would they dispute there were ex parte?  Would they say, "No, it's okay because we can do this; we're better than you are"?

And what they chose to do was stand silent. They did not respond to the request for an evidentiary hearing. And that, too, I think, is very, very peculiar, but they couldn't, of course, because they knew there had been this series. But I know of no request in open court. We're going to get to a couple of other roads not taken by John Wilson in a few minutes, but that one --

Hon. Laurence Silberman:  One question I have for you. On the appeal to the D.C. Circuit, what did they say? Anything?

Geoff Shepard:  They cited these two -- You mean the Circuit itself or in their motion for the writ? 

Hon. Laurence Silberman:  No, no, not their motion. No, the prosecutors. What did the prosecutors say in response?

Geoff Shepard:  I didn't read it in preparation for this symposium, but when I did read it a while back, they just stood silent; they did not respond to this request.

Hon. Laurence Silberman:  Okay. That's what I assumed. 

Geoff Shepard:  Yep.  Now, if --

Hon. Paul Diamond:  I think they had an obligation, and Professor Saltzburg raised this earlier. Did the special prosecutor have an obligation to disclose that there were ex parte communications? What do you think, Professor?

Prof. Stephen Saltzburg:  I made this point a little earlier. The Wilson letter that we saw, we've seen several times. It's in contrast to everything else we've been talking about because, at the end of the letter, there was a cc, all counsel. So Wilson was making sure that everybody in the case was aware of this request to Judge Sirica. And it seems to me, once you're aware that the defense wants to know whether there are ex parte contacts, there's a Brady obligation to disclose those contacts.

Hon. Laurence Silberman:  That's exactly what I was thinking of. That's exactly what I was thinking of.

Prof. Stephen Saltzburg:  I mean, the prosecutor is really -- Judge Sirica looks pretty bad here, but the prosecutors, if possible, look worse.

Geoff Shepard:  It was a team effort, Steve. 

Hon. Paul Diamond:  Standing mute when this kind of question is being asked is, in my view, quite damning, quite damning. Well, Geoff --

Geoff Shepard:  Let's go on. 

Hon. Paul Diamond:  What did the Circuit -- what did the Circuit do? 

Geoff Shepard:  Let's go on and see what the circuit with the Circuit did.

Hon. Paul Diamond:  Yeah. 

Geoff Shepard:  So let's bring up Document 6. Now what we've done for the viewers, we've gone onto the internet, and this is the report on the case, Mitchell v. Sirica. And it says it was heard on June 7th and decided on July 25th. It's not entirely true, but scroll down just a touch to bring in that word "order" up a little bit higher. Okay. Stop.

And this is what the Court found. "Per curiam. On consideration of Petitioner's petition for mandamus and the pleadings filed with respect thereto, it is ordered by the Court en banc that the aforesaid petition for writ is denied." And if you go up above the word "order," you'll see there were six judges who heard the case: David Bazelon, who's Chief Judge; Jay Skelly Wight; Carl McGowan; Harold Leventhal; Spotswood Robinson; and the single dissenting judge, Judge MacKinnon.

But the five judges' opinion is not signed. It's per curiam, signed by five judges, without the opportunity to be heard. June 7th was the date that the government filed its response. The Court ruled the same day, caught Judge MacKinnon by total surprise, and he asked for additional time to file his dissent, which he filed on -- It became public on July 25th; he really filed it on July 23rd. This is a very bizarre approach.

Judge Silberman, can you shed any light on how this came about?

Hon. Laurence Silberman:  I think I can. One of my now-deceased partners at Morrison and Foerster was a man by the name of Ron Carr, a brilliant, brilliant lawyer who was number one in his class in Chicago Law School, clerked for Bazelon and then for Powell on the Supreme Court. He's now dead. He told me, when I was first appointed to the D.C. Circuit, the following story.

He said Archie Cox made a secret trip to Bazelon, who was Chief Judge, and that, in that secret trip, Archie Cox urged that any appeals from Watergate cases be en banced sua sponte, not go to a panel. There were three Republican appointees appointed by Republican presidents: Wilkie, Robb, and MacKinnon.

It appears that, when the case did come up, it was en banced sua sponte, which is really unusual. I think there's only maybe one other case in my whole time as a Circuit Judge that any case has been en banced sua sponte by the Court, and I'm not even sure that's correct. But, in any event, when it happened, Wilkie and Robb apparently recused themselves because of their relationship with either one of the defendants or the president.

And so there was only six that sat, but as Ron Carr told me 36 years ago when I was first appointed to this Court, the purpose of en bancing sua sponte was not to end up with a panel that might have two Republican appointees. So that's the background. I've never seen a case in which there's an en banc sua sponte and nothing but an order with no explanation.

Geoff Shepard:  Did you have occasion to look for the record of how this came about, I mean, through the clerk? 

Hon. Laurence Silberman:  Yes. Yes, I'm glad you reminded me. I did. I asked the clerk of Court, "What were the circumstances under which this en banc took place?" After searching carefully, he came back and told me he was amazed there was no record. There's no vote. There's no record. The only record he could find is when the Court stopped unblocking Watergate cases, which they did, I think, for the Mardian case. Mardian was the assistant attorney general.

Geoff Shepard:  Okay. Let me see if I -- Let me see if I understand what you're saying. Archie Cox became—this my interpretation—so worried about Sirica's pro-prosecution rulings that he was concerned Sirica was the most reversed judge in the D.C. Circuit, that they'd win at trial—they could hardly lose—but they get reversed on appeal because of denials of due process.

So he took it upon himself to call upon the chief judge and urge that the deck be stacked on appeal because if it was heard en banc bought from the outset, en banc sua sponte, the five liberal judges would always be in control and Sirica wouldn't be reversed.

Hon. Laurence Silberman:  That's your explanation of --

Geoff Shepard:  Yes, it is.

Hon. Laurence Silberman:  -- what happened. I can't give the explanation; I can only give the facts that I knew, and I can only describe what Ron Carr told me --

Geoff Shepard:  Sure.

Hon. Laurence Silberman:  -- because he's dead now.

Geoff Shepard:  But we do know one other thing. There were 12 appeals from Judge Sirica's criminal trials. All 12 were heard sua sponte en banc. So my interpretation is Archie suggested an approach, the judge bought it and executed on that approach. Now, based on what --

Hon. Laurence Silberman:  That certainly looks to be true. There's one other question you were going to ask me, which is, did Wilson have any other --

Geoff Shepard:  Yeah. I want to discuss this part first. I'm going to come back to you. I haven't forgotten, but I want the panel to discuss the idea of the special prosecutor calling on the Chief Appellate Judge.

Hon. Paul Diamond:  Well, let's back up and, if we can, just put to one side this meeting between Archibald Cox and David Bazelon. It doesn't seem inappropriate to me, in a case of this magnitude, for an appellate court on its own to say it's going to hear all these appeals en banc. We're going with the attorney -- We're charging the Attorney General of the United States. We're charging the Chief of White House Staff. White House Counsel is charged, and the president is -- I guess it wasn't public knowledge a decision had been made to impeach, not indict, but the president could be indicted. We should hear this en banc. That doesn't strike me as being inappropriate. What do you think, Professor?

Prof. Stephen Saltzburg:  I think it is reasonable, but I think Judge Silverman's in better position to answer this. I can't imagine a court going en banc and no record that nobody got heard on this or nobody voted. That doesn't seem right. I mean, that seems very strange.

Hon. Laurence Silberman:  We have, not sua sponte, en banced another case that I can recall in the almost 40 years I've been on the Court. Certainly if the president himself had been indicted, I would agree, but I'm not so sure the other cases would normally have been sua sponte en banc by another panel by another Court at another time. It's just so rare.

Geoff Shepard:  And what MacKinnon says in his dissent is how can you say it's extraordinary or we're going to hear it en banc and have no hearing? No opinion, no hearing, no nothing?

Hon. Paul Diamond:  Judge Silberman, I'd like to ask you a question of, really, a Court process at this time. Here in the Third Circuit, there is a motions panel that sits and hears things like petitions for mandamus and things of that nature. Two or three members of the Court, they grant or deny, and sometimes they will refer it to a panel of three to hear. Was that the procedure in the D.C. Circuit, if you know? 

Hon. Laurence Silberman:  Yes, that is the procedure here, but let me give you an example of a case that would be almost equally notorious. It was the Flynn case in which there was a mandamus directed at Judge Solomon. I didn't sit on it; I'm a senior judge, and I don't sit on en bancs unless I sit on a panel. And I did not sit on a panel in this case. It came up to a panel with a 2-1 vote, and then it was subsequently en banced.

There's only one time I can recall in all the years I've been on the Court where a case was -- where there was an effort to en banc something sua sponte that had not been -- where there had not been a panel opinion.

Geoff Shepard:  Why'd the other judges --

Hon. Laurence Silberman:  So it is very, very, very, very rare; in fact, I don't ever -- It never happened. And certainly, if you en banced it, to issue an order without an opinion, is ridiculous.

Hon. Paul Diamond:  Wouldn't the normal course in an en banc be, Judge Silberman, that an order of some kind would be circulated to the members of the bench, to the other five or six judges, and say, "This is what we're going to order. This is what we're going to issue," and they can decide whether or not they're going to join?

Hon. Laurence Silberman:  Exactly right, but MacKinnon objected that he didn't even have time on that.

Hon. Paul Diamond:  Well, it would appear to me, then, that what is normally kind of a ministerial thing where something gets circulated -- And these are the days before desktop computers, so a draft would have been physically circulated to the various chambers. And there's no record. You've discovered there's no paper record at all. This was done either in face-to-face meetings or on the phone.

Hon. Laurence Silberman:  Somehow. The clerk of Court was astonished to find there was zero record explaining why these cases were en banced. There was no vote. Normally, absolutely routine, for a case to be en banced, there has to be a majority vote. You know, the statute applies on that. There has to be a majority vote of the active judges, and there was no record. Zero.

Prof. Stephen Saltzburg:  So is there any record about Judge Robb and Judge Wilkie, that they recused themselves? Are there any documents showing that they did recuse?

Hon. Laurence Silberman:  Nope. I can just deduce that because they don't appear.

Hon. Paul Diamond:  So what we have is a meeting between the special prosecutor and the Chief Judge of the Court, and we then have -- or the former special prosecutor by then—I'm not sure—and the Chief Judge of the Court, and then we have the Court sua sponte hearing a mandamus petition and ruling on it without oral argument, without the opportunity for the dissenting judge to issue his dissent in a one-word order. It's all circumstantial evidence, but it doesn't sound good, Professor Saltzburg.

Prof. Stephen Saltzburg:  It doesn't sound good. It doesn't look good. And I tend to believe that there was ex parte contact, and I guess I'm influenced by that because it's happened once in my career. I argued a class-action case in the Fourth Circuit relating to parole procedures. I won a panel decision 2-1.

The rumor had it that the Chair of the House of Delegates in Virginia called the Chief Judge of the Fourth Circuit and said, "If you don't reverse that decision, I'm going to abolish parole in Virginia." And this is back in the early '70s. Next thing I knew -- I was visiting at Berkeley. The next thing I knew, the Fourth Circuit went en banc, no briefing, no argument, and reversed the panel 5-2.

Geoff Shepard:  Wow.

Hon. Paul Diamond:  You're a troublemaker, Saltzburg.

Prof. Stephen Saltzburg:  I was.

Geoff Shepard:  Let's round this out for just a second before we come back to Larry. MacKinnon files a fiery dissent a month later, and then that gets circulated within the special prosecutor's office. And we didn't reproduce the MacKinnon dissent, but the viewers can read it if they'd like. What I'd like Braum to do is put up Document Number 7.

Here's a memo from Phil Lacovara to his superiors, to everybody, dated July 23rd. That's when he got ahold of the MacKinnon dissent. And look at the yellow highlighted halfway down. "I've always regarded recusal motions as raising extremely troublesome problems. Although I doubt the Supremes will take this case at this time, Judge MacKinnon's opinion is an excellent and effective analysis of the reasons why Judge Sirica should not have insisted upon remaining as a trial judge."

And then, the bottom of the next paragraph, "Even the denial of cert won't get us out of the woods, but since the decision was made at the outset to support Judge Sirica, I see no way to turn back now."

Now, this is dated July 23rd. The opinion was published on July 25th—we saw that on the previous slide—and that's the date of the denial of cert by the Supreme Court. So I submit, humbly, even the counsel to the special prosecutor recognized how truly unfair this was.

Hon. Paul Diamond:  Well, there's an old Scottish saying, "You can't a probate and reprobate." He's saying how terrible this is, but we got to keep on going. There's no way out of it now.

Geoff Shepard:  Right. That's what he's saying.

Hon. Laurence Silberman:  Well, wait a minute. I have to correct myself. I was just thinking. Many years ago, I brought an action as a lawyer challenging Jimmy Carter's wage and price controls. I got an injunction in the federal district court issued by Judge Barrington Parker. And the same Bazelon Court did take an appeal two to three weeks later en banc because it was very embarrassing to President Carter. So that Court, the Bazelon Court, did, at least one other occasion --

Geoff Shepard:  Do it again.

Hon. Laurence Silberman:  -- the sua sponte en banc.

Hon. Paul Diamond:  Well, I have a more basic question to ask. We have a record of ex parte communication now, written and otherwise, with the trial judge and with the Chief Judge of the appellate court that eventually hears and denies all the appeals. The convictions of these Watergate defendants, today, looking back, could they be said to stand in light of these ex parte communications, or was the due process violation so egregious that the convictions would have to be vacated? What do you think, Professor?

Prof. Stephen Saltzburg:  They have to be vacated. I'm not sure if you saw the writ of coram nobis right now that they wouldn't be vacated, much like the Korematsu conviction got vacated 40 years after it occurred. I don't see how any Court could uphold these convictions. And as you or Geoff said earlier, it's not about whether they were guilty. It's not about whether bad things happened. It's whether they were tried before a fair judge in a fair proceeding, and the answer's no.

Hon. Laurence Silberman:  With respect to the secret communications between Cox and Bazelon, that depends on Ron Carr telling me the truth and my telling you the truth. We don't have any record of that, but Ron Carr was an extraordinarily honest man.

Geoff Shepard:  Well, we do also have the 12 cases.

Hon. Laurence Silberman:  Yes.

Geoff Shepard:  The pattern afterwards of all heard en banc. 

Hon. Laurence Silberman:  Yes. Yes.

Hon. Paul Diamond:  Judge Silberman, what do you think just on the Sirica communications alone, and then combined with what were the Bazelon ex parte communications? Could any conviction stand in light of those ex parte communications?

Hon. Laurence Silberman:  Absolutely not. It's not even a close question.

Hon. Paul Diamond:  That's what I think. That's what I think.

Geoff Shepard:  Judge, may I update? Are you going to give me permission to update?

Hon. Paul Diamond:  Are we going to our next section now, Geoff?

Hon. Laurence Silberman:  No, you should ask --

Geoff Shepard:  No, we're going back -- We're going back to Judge Silberman, who has an additional thought.

Hon. Paul Diamond:  Oh, I completely forgot. You're absolutely right.

Geoff Shepard:  Here's Wilson. He's been shut down hard. What else might he have done? Professor Saltzburg said, "Well, you might have asked in open court. That would put the wood to them." Larry Silberman may have a different approach.

Hon. Laurence Silberman:  As Deputy Attorney General, I, like my predecessor, Bill Ruckelshaus, and like both Attorneys General Elliot Richardson and Bill Saxbe, promised as part of the confirmation process to support the special prosecutor unless the special prosecutor was guilty of gross improprieties.

Now, as I have told Geoff, on one occasion, Jim St. Clair, counsel for Nixon, called me in the morning to claim that Jaworski had engaged in gross impropriety. I was acting Attorney General, and I asked, “What was the gross impropriety?" He said Buzhardt, White House counsel, was called before the grand jury and questioned about his conversations with President Nixon.

I expressed doubt that was a gross impropriety. I didn't think any government lawyer could confer attorney-client privilege on a government official who was accused of a crime. That was the position I took at the time, and it was subsequently endorsed by the Eighth Circuit in the Clinton era, but it was formally presented to me.

If Wilson had come to me with the accusation he made in his letter to Sirica and has appealed to the Court of Appeals, I would have felt obliged to call Jaworski and his staff in, and I would have asked squarely whether or not there were ex parte communications. I don't think they would have lied to me. If they had told me the truth -- And I suspect the truth is much more extensive than Geoff's documents reflect.

If they told me the truth, I would have insisted that a motion be filed by the Justice Department, not the special prosecutor, moving to recuse Sirica. I wouldn't have had the nerve to fire Jaworski because, those of you old enough to remember, that would have been another Saturday Night Massacre, and I couldn't have gotten away with that, although I would have thought about it. But I would have certainly had Justice file a motion to recuse Sirica, and that would have caused some kind of hearing.

Geoff Shepard:  A path not taken by John Wilson.

Hon. Paul Diamond:  It would have caused a firestorm. Presumably, Judge Silberman, the petition from the DOJ would have said that the degree of specificity would have been up to the particular scrivener, but that members of the Special Prosecutor's Task Force have acknowledged a lengthy pattern of ex parte communications with Judge Sirica. They've acknowledged it to us. That's the basis of our petition, correct?

Hon. Laurence Silberman:  Yes. I don't think they would have -- I don't think they would have lied to me.

Hon. Paul Diamond:  Well, I really do think that the dome of the Capitol would have come off.

Hon. Laurence Silberman:  Yeah, probably right. I probably would have been impeached myself, but I would have done -- I wouldn't have fired him. Jaworski did tangle with me on one matter. In the case of Nixon v. the United States, Nixon's lawyers argued that, with respect to the tapes case, with respect to the -- Nixon's lawyers argued that Jaworski did not have an independent status for standing purposes. He was a subordinate of Nixon, and therefore couldn't sue him.

Jaworski demanded of me and Saxbe—but primarily of me—that we support Jaworski on standing, that we were obliged to do that because we agreed to support his efforts to prosecute or investigate Nixon. And I refused on the grounds I didn't think there was standing. Now, of course, the Supreme Court concluded otherwise, but I think that was baloney.

Hon. Paul Diamond:  In fact, Judge Bork, in his Supreme Court confirmation hearings, was called on the carpet about that, too, because he took the same position you did, Judge Silberman, saying, "This is all part of the same executive. They do not have standing to proceed against the person for whom they're working."

Hon. Laurence Silberman:  Right. Exactly. So I did at least show some measure of courage. In an ideal world, if I've learned all of what we've learned today, I should have fired the special prosecutor, but I couldn't possibly have done that after the Cox massacre.

Geoff Shepard:  And you didn't know what we've uncovered.

Hon. Laurence Silberman:  No, even if I did uncover, what I would have done was moved to recuse Sirica, but I think that would have embarrassed the hell out of the special prosecutor.

Geoff Shepard:  Well, that might have been enough. Let's go on to the third major segment, which is the possible suppression of exculpatory evidence. And what I want Braum to do is to put up Document 10.

Now, let me explain this memo to you. It's a long memo; it's 26 pages long. When the cover up collapsed, John Dean and his lawyer sought the career prosecutors looking for immunity. And during the month of April -- Remember, he's fired on April 30th, but the cover up collapse starts about May 25th. John Dean or his lawyer met with or spoke on the phone with the career prosecutors 12 times.

Hon. Paul Diamond:  When you say "career prosecutors," you mean the people who worked in the U.S. Attorney's Office --

Geoff Shepard:  That's exactly correct.

Hon. Paul Diamond:  -- who are not specially appointed Watergate Special Prosecutor Task Force lawyers? These were the individuals who eventually got removed from the case.

Hon. Laurence Silberman:  Like Earl Silbert.

Geoff Shepard:  No, it is Earl and his two associates, Seymour Glanzer and Donald Campbell. The special prosecutors who came in later were worried that they may have inadvertently conferred in foreign immunity on John Dean when he came in and was telling the stories and telling stories.

Now, just to remind you, the U.S. Attorney prosecutors refused to give Dean immunity. They concluded he was too integral to the cover up, that it was too involved. They weren't going to give him immunity. So what they got worried about was they had somehow done it informally. So they interviewed them, and they went through -- Bring all your notes, and Campbell and Glanzer did one set of interviews. Silbert did another. This is the memo that summarizes the detailed interviews of Glanzer and Campbell, and they brought all their notes and they went through day by day of John Dean's interviews and what he said and what they thought and where it was going.

Now, this is posted online, so you can go read the whole thing. We're running short of time, so all I'm going to do is focus on two pages. So if we will go to page 17, here at page 17, down near the bottom -- You got to bring it up. This is paragraph 13 at page 17 of this memo.

"By the end of April, Dean had become much more antagonistic toward Haldeman and Ehrlichman in his discussions with the prosecutors and also in public issuing the scapegoat statement. Before that, the impression he gave of Haldeman was of a great devoted public servant, clean and hardworking. He had been restrained in his praise of Ehrlichman."

Now, we're going to get to whether this is required by Brady to be given to the defense lawyer, but here, we have Dean having met a dozen times with the U.S. Attorneys, and at the end of that line, he starts focusing on Haldeman and Ehrlichman. If you read the full memo, they say, "Well, he was talking about this, he was talking about that," but he never mentioned them.

And then, at the end, here he comes. Now, we're going to break into this and go to the handwritten notes from this same exact point in their interview, and that is Document Number 11. Okay. Now, this is one little part. The paragraph is up at the top, and I'm going to read it to you because you can't read Judy's handwritten note.

"Situation in state of flux because of Senate committee and Cox after 4/15." That's the middle of April. "Dean becomes antagonistic to E and H"—that's Ehrlichman and Haldeman—"whereas before, he had given the impression that Haldeman was clean and was restrained as to Ehrlichman's involvement. This is about the time of the scapegoat comment by Dean."

To me—and I'm an advocate—it's even worse than their typed version of the handwritten notes. Dean had given the impression Haldeman was clean and Ehrlichman's involvement was restrained. And then somebody says—my view—"That's too good. We don't want it that strong. Let's change it around so we'll say Haldeman was clean and hard-working, and Dean didn't really like Ehrlichman.'

Now we're going to go to one more and then we'll open for discussion. Go back to Document 10 and go to page 23 of Document 10. Now here in paragraph 15, "On May 3rd, Dean began focusing on presidential involvement, thus changing dramatically from his previous stance. Glanzer and Campbell agree with Silbert's account of Dean's statements about the president."

So we've got Dean changing his story in meetings with the prosecutors on Haldeman, Ehrlichman, and Nixon. Now, it's worse than he just changed his story and they didn't tell the defense; the changes in his story undermined the single most important thrust of his testimony against his former colleagues. Judge Diamond?

Hon. Paul Diamond:  I, at some point, would like Professor Saltzburg to explain to me the compulsion that D.C. lawyers have to put their sins down on paper and then turn them over to the National Archives, but we'll put that aside for a moment. We're watching sausage being made here.

Professor, you've served as a prosecutor. I've served as a prosecutor. It's not unusual for a cooperating witness or a witness who wants to be cooperating or someone looking for immunity, for his or her story to change with each iteration, is it?

Prof. Stephen Saltzburg:  It's not unusual. And actually, we've been blasting the prosecutors here. I actually have seen so many cases where witnesses have changed their story, but it never gets disclosed because there's nothing in writing, and the FBI agent who interviewed the witness 10 times doesn't tell the prosecutor that the first version and the 10th version, which is where we now are, are so different.

Hon. Paul Diamond:  So we have here not simply the evolution, if you will, of John Dean's version of events, but the evolution of the way it's recorded by the special prosecutor's office from her handwritten notes to the type script. And there's a whole body of law and criminal discovery on when an FBI agents notes have to be preserved and when they have to be given over to the defense—and you were the reporter for the Rules of Criminal Procedure committee, Professor—because the defense bar understands that these versions often change.

Is this kind of -- Well, first of all, do you view, Professor, these kinds of inconsistencies from a guy who apparently is looking to get a free ride -- And prosecutors everywhere are extremely reluctant to give an important witness who is up to his neck in criminality a free ride because the jury won't believe them. They want them to plead to something, and that's what happened here, but do you think that this would necessarily have constituted Brady material?

Prof. Stephen Saltzburg:  Without a doubt. Brady, Giglio, definitely. It's impeachment material. As you put it, I think it's important because you have somebody who has a strong bias here to protect himself, has strong interests. He's been trying to get immunity unsuccessfully from the beginning.

We basically know that, if you're John Dean and you're in it up to your eyeballs, the only way that you get out of it is to give them somebody on Geoff's chart, who was on the upper level, the top level, the people that were closest to the president: Haldeman, Ehrlichman, Mitchell. They're the three that the special prosecutor really wanted the most, and two of them were handed over by John Dean.

Now, once again, looking back, looks to me like there was a lot of reason to think Haldeman and Ehrlichman did bad stuff in connection with the cover up, but that's not the question. The question is, should John Dean have been able to make himself look like he was the innocent person watching all this go down, as opposed to somebody who had an incentive to and changed his story to make Ehrlichman and Haldeman look as bad as he could make them?

Hon. Paul Diamond:  And eventually dangled the biggest target of all, the president, who I believe -- Geoff, I have read this memo, but I don't -- He's dangling the president now at the very end as perhaps the final bit of bait to get him immunity.

Geoff Shepard:  While he's been fired on April 30th, and it says, on May 3rd, he starts talking about Nixon. And in his book -- There's an illusion. You got to look for it, but his lawyer tells him, "They're after you. They're going to call you to account. You've got to start pitching conspiracy."

So again, my very biased -- Dean says, "Well, of course there was a conspiracy. I was running it. And I can tell you, they're a part of it, and I'm the only path to the people you really want to get, so you got to be nice to me, or I won't tell you about them." Now, the ones on Nixon, that's on tape, and we can argue over what the tape says and doesn't say. The meetings with Haldeman and Ehrlichman, it's just his word against theirs.

Hon. Paul Diamond:  Well, let's hold off on that for just a second. Judge Silberman, do you agree with the professor that this was Brady material that should have been disclosed?

Hon. Laurence Silberman:  I think it's classic Brady material.

Hon. Paul Diamond:  Do you think the failure to disclose it, if it came out after Haldeman and Ehrlichman were convicted, would likely have resulted in reversal of those convictions?

Hon. Laurence Silberman:  Yes. Well, depends whether you have an unbiased Court of Appeals.

Geoff Shepard:  5-1.

Hon. Paul Diamond:  All right. I'm sorry, Geoff. I interrupted you. Please continue.

Geoff Shepard:  Well, no, I think I'm through. I would like to cite a case where, in fact, the prosecutors cheated, didn't do Brady, and it was thrown out.

Hon. Paul Diamond:  And that's the next document.

Geoff Shepard:  That's the next one. That's Document Number 12. This is an intriguing case. This is Nixon's tax lawyer, and he successfully removed the case to California. It's being heard in Los Angeles, and it's before a Democrat judge. And what's happened is they've discovered, in the course of the trial, that the prosecutors knew somebody had changed their mind and didn't disclose it.

And it's the third paragraph right down there at the bottom of the opinion where he says, you know, this is hugely important. This is the judge. "This is not an ordinary criminal matter." We're talking about the president. "The public interest in resolution of the issues raised by the government's indictment is manifest, but the public has a greater interest in the proper administration of our system of criminal justice. The defendant, Frank DeMarco, has moved to dismiss charges against him on the grounds of prosecutorial misconduct, and that motion must be granted."

Now, I only bring this up to show that they toss cases on the basis of lack of disclosure of Brady material. They tossed the case against these very particular special prosecutors, and here it is. And I would add, because I'm so biased, there were very few cases tried outside the District of Columbia, and every single one of them resulted in an acquittal. And, of course, there was a massive number of cases tried within the district, and all but two resulted in conviction.

Not that there's a pattern there, but it's really surprising. You know, the district is a tough place for Republicans. So if I can stop there, I can now go to the last item, if I may. We still have a half hour. The FedSoc people should put up that code again, at this point. If they have access to that code, this is a very good spot.

Hon. Paul Diamond:  And they should also tell us when we have to break to hear questions.

Geoff Shepard:  Yes. Okay, so the CLE code for the second half is [redacted]. Notice it is different from the earlier code, and you have to do this correctly. Don't mess this up. I'm going to read it a second time. [Redacted] to get CLE credit.

Now, just to warn those lawyers, we have to have three full hours of instruction. If we round it off toward the end, you'll only qualify for two hours in some states. So we've been watching the clock. We know when we started, which was a touch afternoon. We know we took a 10-minute break, so we're going to go that length past three o'clock in order to qualify for that third hour of CLE and, in case you don't think this whole thing is so entertaining, you do it for free.

And FedSoc people will tell us what that number is, but right now, I'm going to go to the fourth area of view, which is the seemingly partisan choice of defendants. And I want Document Number 9 to be posted. Here's Document Number 9. See, we're all prepared to do this. It's marked up at the top Final Decision.

Now, this is part of the fascinating stuff about these guys. They wrote down everything. This is where the Watergate task force comes in and says, "Here's who we think we ought to indict in the comprehensive cover up indictment. Here's who's already pled, cooperated, coconspirators, all that kind of stuff." And the task force makes recommendations.

This is run by Ben-Veniste at this point. He's acting. Actually, the head is James Neal, but the acting head is Ben-Veniste. And then the senior staff—Jaworski; his deputy, Phil Lacovara; James Vorenberg; and a couple of others—they debate whether to follow the recommendation because there's no review within the Department of Justice. Within the Justice Department, there would have been an outside review. This is an internal review.

We're going to contrast paragraph two, and we're going to contrast that with paragraph five. Now, paragraph two is Chuck Colson. Chuck is probably the most prominent Nixon defender. He's the one who is still famous for saying, "I'd run over my grandmother if he would help reelect President Nixon."

So the people who don't like Nixon don't like Chuck, but he wasn't that involved in the cover up itself. We don't like him. He's very prominent, but he's not an integral part. So it's right here, typed on this version prepared by Peter Kreindler.

"On the basis of Ben-Veniste's assessment of chances of conviction of Coulson on the evidence, Leon Jaworski has decided he should be included. White House has decided not to make available the tapes that Colson's lawyer, David Shapiro, wanted us to hear. Ben-Veniste said the evidence shows Colson is a member of the conspiracy, and there's a 50/50 chance of conviction."

Ruth, who's deputy, dissents from this recommendation. And what's causing the upset is the rules for the U. S. Attorneys say, "Look, we know you can show probable cause. That's not the test in indicting somebody. You have to have a high degree of confidence that a jury, knowing what you know, will bring in a conviction. We don't just try people for the fun of it. "

And here, the taskforce, maybe by mistake—maybe it just slipped out—they say, Well, he's not like the others. The chances of conviction are only 50/50." And Jaworski says, "I'll go anyway." Now, we're showing you this one, but there are handwritten notes from these segments that I've reviewed, and they're pretty consistent.

Jaworski says, "I'm familiar with the evidence. I've met with Colson. I've met with Shapiro. It's a weak case, but I'm willing to sign the indictment because --" And then one set of notes says, "He's going to plead anyway, so we don't have to prove the case." And the other set of notes from James Voernburg has Jaworski saying, "Because I'd really like to nail him."

So that's the way they handled Chuck Colson. Now compare that with paragraph five down here with the way they handled Bill Bittman. That's not a name you know, but Bill Bittman was Howard Hunt's lawyer. And he was coordinating the defense amongst the Cubans and Howard Hunt, and he was accepting the money being paid on the side and redistributing it to the lawyers for the other defendants.

And he knew that Colson was threatening to revise his memory if his legal bills weren't paid, but he didn't tell the prosecutors that. So Bittman is dirty as he can be, but it's a different case with Bittman because he's a Democrat, he's a Democrat hero, and he doesn't fit the narrative. He's not with the Nixon White House. He's not one of the crooks showing up for work every day. He's one of the lawyers, and his guilt fouls up the narrative.

So what this goes on to say is to point out how Jaworski refuses. I mean, this is a unanimous vote of the task force to indict Bittman. They think Bittman's dirty as he can be, but he refuses. And if you scroll down a little bit on this same -- I've highlighted in yellow, Frampton wants to indict him. He said the point's not Bittman's motive that changed his self-interest. Bittman’s facilitation of blackmail by Hunt was criminal.

And then Frampton said Bittman's conduct on behalf of his client went way beyond legal limits, and thus, such a motive was no excuse. And Volner, down near the bottom, says his conduct wasn't just a single bad judgment defending his client; he knew exactly what the consequences were of what he did.

And Jaworski—you got to read between the lines here—he attacks them. He says he was just defending his client. And scroll down to the very bottom. Jill Volner is the only female on the task force and she is arguing for indicting Bittman. And Jaworski tells Volner, "If you ever wanted to be a criminal defense lawyer, you'd starve if you took the position you're advocating here this morning." You know, you can't say that stuff anymore today.

So we have this contrast. Bittman, a Democrat, walks free. Colson, a Republican, on weak evidence, gets nominated. Now, I'll take one more minute because we have just a little bit of time. Why was Bittman a Democrat hero? And this is key. One, he won the first case in the conviction against Jimmy Hoffa, and that was Robert Kennedy's big effort, to get Hoffa squad, and Bittman prevailed.

But as importantly—this is my view—Bobby Kennedy decided to try to bump Lyndon Johnson off the ticket in 1964. Didn't like him. Didn't like this corn-tone Texan. So the way he was going to do it was go after Bobby Baker, the secretary to the Senate when Lyndon Johnson was majority leader. And Baker was corrupt as he could be, bribery and everything else, so they indicted Bobby Baker.

But then Jack Kennedy got assassinated and Lyndon Johnson became president. And Bobby Kennedy was no longer Attorney General, and there wasn't this personal overwhelming need to replace Johnson because he's already president. Bill Bittman conducted the Bobby Baker prosecution without Lyndon Johnson's name ever coming out. Leon Jaworski is a protege of Lyndon Johnson. It's not in the memo—it's in Shepard's bias—but there was no way in the world he was going to name Bittman when Bittman had saved Lyndon Johnson. Judge Diamond.

Hon. Paul Diamond:  Well, why don't we -- Forgetting for a minute the partisan political labels, why don't we talk about a prosecutor's decision to charge someone and not to charge someone. And Geoff has provided me very kindly with a speech made by Justice Jackson, Robert Jackson, when he was Attorney General of the United States. This is in the summer of 1940.

He had been Solicitor General and would become a member of the Supreme Court, but he was Attorney General and he was making a speech to United States attorneys from across the nation who had gathered in Washington. And it's a long speech, and I'm not going to read the whole thing to you, but I'm going to read a couple of paragraphs.

"What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant and the public harm the greatest and the proof the most certain. If the prosecutor is obliged to choose his cases, it follows he can choose his defendants. Therein is the most dangerous power of the prosecutor, that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted."

Professor, did Leon Jaworski pick the cases, or pick the people he thought should be prosecuted based on this particular memo?

Prof. Stephen Saltzburg:  I want to start out by saying I loved that speech that he gave to the Department. I refer to it often. He really did identify the role of a prosecutor. And when you see this particular memo, it's hard to conclude anything other than there's a total inconsistency here. The idea of charging Colson when Henry Ruth, who was the lead, basically said no, that he didn't think he should be charged and the best you could say is there was a 50/50 chance of the conviction, and not charging Bittman when the apparently overwhelming judgment was that he was certainly someone they could convict, demonstrates, I think, what Geoff said, that Colson was closely identified with Nixon. He was hated. He got charged.

I didn't know the history of Bittman, but all I can judge from this memo is Leon Jaworski had his mind made up, period, the end. Bittman was not going to be charged. And Geoff, I want to ask you one thing: If Bittman had been charged, what do you think they would have charged him with?

Geoff Shepard:  Obstruction of justice.

Hon. Paul Diamond:  Conspiracy.

Geoff Shepard:  They might even have said he was in on the conspiracy to obstruct justice, but Colson wrote -- I'm sorry. Hunt, because he was Hunt's lawyer.

Prof. Stephen Saltzburg:  Right.

Geoff Shepard:  Hunt wrote a memo to Bittman and said, "If these guys don't pay up, I'm going to  revise my memory." And Bittman didn't pass that along to the prosecutors after the thing fell apart. It was his law firm that found it in the files and gave it to the special prosecutors, Hogan and Hartson, and said, "You should know this memo exists."

Now, what happened instead was Hunt met personally with a lawyer for the reelection committee and said, "Pay up or I change my mind." And we're going to get to that much later, if we do. But they had written proof of Bittman's criminality. It would have been a very strong case, but again, it fouled up the narrative.

Hon. Paul Diamond:  Hold on a minute, Geoff, just for one second. We have a panel member who has at least a bit of an official history with Colson.

Geoff Shepard:  Yes, we have.

Hon. Paul Diamond:  Judge Silberman, what do you think of, as reflected in this memo, the decision to charge Colson?

Hon. Laurence Silberman:  Well, I admit I fought with Colson for almost two and a half years. I despised him.

Geoff Shepard:  At Labor? You were a solicitor and then Undersecretary of Labor?

Hon. Laurence Silberman:  As Undersecretary of Labor. I won't go through all the things he tried to do. He tried to fix cases in the Labor Department. I instructed people not to talk to anybody in the Labor Department, not to talk to Colson without my permission, which showed him much. He tried to get me fired at one point.

So if I had been -- If I'd had any role in the case, I would have recused myself, basically Colson, but I agree with -- Looking back on it now. I agree entirely with Geoff. It looks as if Jaworski was biased. Colson was so, so desperately unpopular. I think he was target number one.

And indeed, I will tell you this story: When he tried to fix cases and I objected violently, I came to John Ehrlichman to complain about Colson trying to fix cases in the Labor Department, or the NLRB, and Ehrlichman said the most interesting thing to me. He said, "Larry, there's not a thing I can do about Colson. He is the second most powerful man in the country."

Prof. Stephen Saltzburg:  Wow.

Geoff Shepard:  Just to finish that story, Paul, if I could, I was in a meeting, the only meeting I was ever in in Colson's office. His office was across the hall from mine. And Nixon asked to see him, and he was in his hideaway office in the Old EOB. And so Colson stepped around briefly to go see Nixon.

And Joan Hall, who was Colson's secretary, said, "Come to the window. I want to show you something." She said, "I promise you, within one minute, Bob Haldeman will come across the street to Nixon's office." And sure enough, Haldeman comes running out of the west way, up the stairs to Nixon's office. And she said, "They've told the receptionist outside his hideaway office that she'll get fired if Colson gets in with the President and she doesn't alert Haldeman or Ehrlichman. I think he's so dangerous when he gets alone with the president, and he plays to the President's dark side, that they've got to be there to stop Nixon from making a mistake."

And one of the things they were most proud of, Haldeman and Ehrlichman, beginning the second term, they got Colson out of the White House. Nixon wasn't going to run again. We don't need this guy. Get him out of here. But, as Larry said, when the chapel fell, Colson was among the most hated people in America. He personified the dark side of Dick Nixon. Everybody knew.

Hon. Paul Diamond:  Well, let me --

Hon. Laurence Silberman:  And, thinking about it, he reminds me of the former mayor of New York, Giuliani.

Geoff Shepard:  Yeah, nice target.

Hon. Paul Diamond:  Professor Saltzburg, you've been practicing for a while, a little longer than I have. Can you really say that the decision that whoever the chief prosecutor is in a particular office makes to charge people—I mean a discretionary decision whether or not to charge, not the police bring someone in because they caught him robbing a bank, but an investigation precedes the decision to charge—that these decisions are always 99 and 44, 100 percent pure?

Hon. Laurence Silberman:  No such thing.

Prof. Stephen Saltzburg:  I agree with Judge Silberman. My experience, if you appoint good people who are trying to do the right thing, they will do the right thing most of the time, but we all have our biases, some implicit, some explicit. And you can't help but be affected by your biases, and they do sometimes result in people walking who should be prosecuted and people being prosecuted who, if another prosecutor were leading the office, would not be. It's just the way of the world. And we're human, and we'll never be -- we'll never be perfect.

Hon. Paul Diamond:  And again, this is a -- We're watching the sausage being made. I asked the question, Geoff, is it time for us to take questions?

Geoff Shepard:  Well, I want to do one thing before we do because, of course, we've dropped the second half of our program, but I want to read a teaser because I think people will be just as intrigued with the second half. So if we could put up Document 14. This is fun. And let me explain the context.

Hank Ruth, the deputy, becomes very concerned the House Judiciary Committee is going to get rolled and Nixon is going to walk free, so he says, "We have to help them." And Jaworski says, "It's just not our job. Our job is to prosecute criminal cases. That's their job." And Ruth writes back and says, "But they're floundering. We have to help them." And this is what Jaworski writes back.

Now, it's a draft. It's dated January 21st, but I just think this is fascinating stuff, and I'm going to read it to you. "I believed the written exchange between us on dealing of Nixon, in light of the evidence, because they afforded opportunities for thorough consideration of questions and answers, but I'm beginning to wonder whether they're not wasted effort. Some of the comments in your last memo almost preclude further discussion. I've deferred replying, because the innuendos don't do justice to calm and reasoning judgments."

Scroll down just a touch more. "I said before, and I emphasize again, the mere conclusion the president is not indictable or should not be named as an unindicted coconspirator furnishes no basis for us pursuing still another course beset with restraints that should not be violated. I mean this: If it is not sound in law or policy to indict the president, if it's not sound in law or policy to name him as an unindicted coconspirator, it cannot become so simply because the efforts of the house to impeach are frustrated.

"Differently stated, if the House bogs down an impeachment because of a lack of evidence that cannot properly and legally be released to it or because of its own failures, the unindictable president does not perforce these shortcomings become indictable."

I mean, at this point—this is January 21, 1974—Jaworski is disinclined to help the House, disinclined to name Nixon an unindicted coconspirator. He gets rolled on both. Now scroll down just a little bit more.

Hon. Paul Diamond:  Jeff, we're running out of time.

Geoff Shepard:  We want to go to the -- 

Hon. Laurence Silberman:  Geoff, I don't think -- At this point, I think we're over the hill.

Geoff Shepard:  All right. Too much?

Hon. Paul Diamond:  I think we should go to questions.

Geoff Shepard:  All right. All right. I recede. Jack or Nathan, you're going to read questions to us.

Jack Derwin:  Absolutely. Happy to go to audience Q&A now. I'll remind our audience that you can use the Q&A box at the bottom right of your Zoom window. I'm Jack Derwin with The Federalist Society's Practice Groups. And we have a few great questions queued up, and as we wait for some more to filter in, we can get through the few that we do have.

From early on in the panel, somebody was wondering -- specifically to you, Geoff, to be interested in your perspective on President Nixon's remarks and his interview with David Frost and whether the movie dramatization of that seems generally fair and unbiased.

Geoff Shepard:  Well, the public's knowledge of Watergate, visual knowledge of Watergate, stems from three things: the Irvin committee hearings; which were pretty much one sided; the movie All The President's Men, which is pretty much one sided; and the movie version of the Frost-Nixon interviews.

This is one of those situations where you could buy the DVD of the actual interviews and you could read what he said, or you could go to the movies and you could watch Peter Morgan's interpretation, the entertainment interpretation of those interviews.

And what's really funny, they asked Frank Langella, who played Nixon and looks like Nixon, they said, "Did you study Richard Nixon so you could play him correctly?" And he said, "No. I studied the character that Peter Morgan wrote so I could play it the way Peter Morgan wanted it played."

And it comes into focus in one most intriguing thing. In the movie, Nixon confesses to being a part of the cover up, but he never did in his interview with David Frost. He doesn't say that. He says, "Look, the question was intent, and I had no intent to break the law." So I don't think it's a fair -- I've got an essay on my website about the movie, but I don't think it's a fair portrayal of Richard Nixon.

Jack Derwin:  All right. Next, we have a question regarding --

Hon. Laurence Silberman:  Well, I have come to have an extremely negative view of Richard Nixon, unrelated to all these, because we've been talking about, based on my own experiences and subsequent information, so Geoff and I are somewhat in disagreement about this.

Geoff Shepard:  But we're also old and dear friends, and we discuss this sort of thing almost all the time.

Hon. Laurence Silberman:  Right.

Hon. Paul Diamond:  Next question.

Jack Derwin:  So we have a question here regarding the Lacovara July 23, 1974, memo, in which he concedes that the law of the case principle may not bar future appeal, raising the ex parte matters. Does anyone see an avenue today by which a motion for dismissing any and all of the Sirica's Court's Watergate convictions can be pursued?

Geoff Shepard:  Well, I think what Lacovara means in the memo is they didn't issue an opinion; they just denied the writ, so this could be raised again. The recusal issue could be raised again on appeal after the cover up trial. That's the illusion. Then the question is, could you challenge this stuff today? These people may have different opinions.

One option is a writ of coram nobis where one of his descendants could come into court and say, "Unfair." The wrongdoing continues over. That would be expensive. That would be difficult. You'd file it in the D.C. District Court. There may be another alternative kind of along the lines that Larry Silberman alluded to. Someone could bring to the attention of the Department of Justice this wrongdoing and say, "You can't stand silent."

Hon. Laurence Silberman:  Didn't you try to do that in the Justice Department?

Hon. Paul Diamond:  Go ahead, Geoff. Go ahead.

Geoff Shepard:  All right. Thank you. Yes. We were going to skip this part, but last October, I learned there was a specific unit within the Department of Justice called the Office of Professional Responsibility, whose sole mission is to pursue allegations of attorney misconduct by Department of Justice attorneys.

The day I learned of the existence of this unit, which was founded under the Ford administration, I filed a complaint of attorney misconduct. And over the course of the following year, I followed up with 10 separate letters, raising different points, which are all on my website.

Late last month, not having heard anything back from them, I received a letter, and the letter said—my characterization, but it's up on my website—"We don't deign to look into this. It's too long ago. Those people aren't with the Department anymore, and we aren't sure the Department is responsible for their activities."

Now, in preparation for this -- I haven't responded to their response. It's right here on my desk. I wanted to wait until after this forum. But Judge Silberman brought up an interesting point in the guidelines. It says DOJ can get involved in allegations of gross improprieties. So I don't see how the Department of Justice can claim they're not responsible for actions by the Office of the Special Prosecutor.

Hon. Paul Diamond:  If we can move for just a second, Geoff, I'd like to ask the professor -- a writ of coram nobis, I never filed one as a lawyer and I've never had one filed before me. The most famous one I can think of is Alger Hiss's petition for a writ of coram nobis, which was denied, and that denial was upheld. But petition for a writ of coram nobis to cure a manifest and great injustice, is it not?

Prof. Stephen Saltzburg:  It is. It's based on facts that were not in the record, which casts doubt on the conviction. The case I mentioned -- You may remember the Korematsu case --

Hon. Paul Diamond:  The Korematsu case, yes.

Geoff Shepard:  Sure.

Prof. Stephen Saltzburg:  -- in the '40s where the Court upheld the internment of Japanese. Well, Fred Korematsu, his relatives filed a writ of coram nobis in the District Court in San Francisco, the Northern District of California. It was assigned to Marilyn Hall Patel, and she discovered that the United States had lied to the Supreme Court in the Korematsu case, that they had withheld evidence that suggested the Japanese were not a threat. They distorted the record, and she granted the writ of coram nobis.

The United States tried to have an appeal, but it didn't go anywhere, and so his conviction was reversed. It was reversed -- I can't remember. I think it was the '90s, so it would be almost 50 years after his conviction.

Geoff Shepard:  I was told by one of the panel members that my thirst for unethical findings against the Prosecution Force is not worthwhile, is beneath me. And my response was, I don't care about disciplining these lawyers. I think those convictions are invalid, and I think the Department of Justice, someday, will come into court, as it did with Ted Stevens, and say, "We can't support these verdicts. Material has come to our attention."

Hon. Paul Diamond:  I don't know of a case where the Department of Justice—oh, I don't know, half a century after the fact—comes in and says, "We want this conviction vacated." But if a member of a family of a Watergate defendant were to file a petition for a writ of coram nobis, it would be interesting in light of the response Geoff got, which is, "These were not our employees." That's how I read it when you sent it to me. "These guys didn't work for us, and we have other things to do than dip into this 40-year-old, 50-year-old -- allegation of 50-year-old impropriety."

But if a coram nobis writ were filed by John Doe's son saying, "I want my father's name cleared" and he did that in the D. C. District Court, Steve Saltzburg, what do you think the DOJ -- And the reasons he gives are these ex parte communications with Sirica because that's really all we have in writing.

What do you think -- And the exculpatory evidence that Geoff has found about the evolution of the key witnesses version of events and the way decisions to charge were made. Do you think, a half a century later, that rises to the level of granting a writ of coram nobis, Professor?

Prof. Stephen Saltzburg:  Not on the third point, the charging decisions, but I do think the first two, the ex parte contacts—not just one; the many ex parte contacts—the arrangement to have Sirica positioned so he could make himself the judge and assign all the guilty pleas and all the cases to him, and John Dean's -- the changing testimony of John Dean. Yeah, I think there's a pretty good chance a writ could be granted.

Geoff Shepard:  Now, I add—it wasn't persuasive—that these guys taking their records with them amounted to a cover up and prevented timely discovery.

Hon. Paul Diamond:  Well, the way Brady works is anything the prosecutor has in his or her possession—that is, exculpatory as Brady material—has to be disclosed. I don't know that it would have been disclosed any more quickly if it went to the National Archives right away. And the fact that they gave it to the National Archives -- Look, we haven't discussed why these lawyers, all of them very accomplished people, would have recorded this kind of improper behavior and then given it over to the National Archives.

Geoff Shepard:  They gave it over because they died.

Hon. Laurence Silberman:  That's what amazes me about this. And I have the impression that, if they recorded what they did record, I wonder if they didn't record other material that's even worse.

Hon. Paul Diamond:  It kind of jumps out at you, doesn't it, Judge?

Hon. Laurence Silberman:  Yes.

Geoff Shepard:  Now, the big discovery was Leon Jaworski's confidential file. That's where most of the dynamite and ammo has come from. And I think what he did -- He parachuted into the middle of a battlefield, and nobody trusted him, not Archie's staff, nor certainly the White House.

And the judge kept calling him over, and what he decided to do, I think, is make concurrent notes so he could explain -- because some of those memos say, "You invited me over. That's why we were there." Then I think that evolved into his decision to write a book. It's just what Nixon did with the tapes.

He was keeping concurrent notes on company time, on company stationery with a company secretary so he could write his book, and he took the stuff with him. Some people do this; they take documents improperly from Washington D.C. so they can refer to them in the future.

And then there's one other possibility. It's possible he wanted it to come out, but I don't think so. Remember, in those days --

Hon. Paul Diamond:  Jeff, he is implicating himself in improper conduct. If you're saying he wanted to get back at these people who never really accepted him and who strong-armed him, I understand, but he's describing his own misconduct.

I think the code that has just been put up is our cue that this is over. Am I correct, Jack?

Jack Derwin:  We can probably fit in another one or two questions real quick.

Geoff Shepard:  Yeah. We got to make sure we -- We got to make sure we hit the third hour. Do you want us to read this, Jack?

Jack Derwin:  Yeah, I can go ahead. So it's [redacted]. I believe in the chat, we're also going to post the sign-out sheet now. For those of you seeking CLE, please use that to sign out. We'll leave that. We'll repost that a few times for your benefit.

Geoff Shepard:  Okay. Okay.

Jack Derwin:  I do think we can address another question or two here, if that's all right with you, Geoff, and other panelists.

Hon. Paul Diamond:  Sure.

Geoff Shepard:  No, that's fine. Go ahead.

Jack Derwin:  Great. Yeah. We have an interesting one here about how this sort of played out at the time. At the time when the presentment was made in open court, did anyone in the press or other observers pick up that something odd or suspicious was going on?

Geoff Shepard:  Give me the second half of that question. Anybody in the press?

Jack Derwin:  Or other observers pick up that something out of the ordinary was going on.

Geoff Shepard:  Well, no. Back then, there was a uniform, monolithic press. There were three networks: ABC, NBC, CBS; two national newspapers: The Times and The Post; and two weekly magazines which were hugely influential: Time and Newsweek. And they were uniformly disdainful of President Nixon.

So you had a hounding of him without letup almost from the time he got Alger Hiss, but Nixon was not light by the mainstream press. And it was almost to the point of grave dancing. We couldn't get our story out. Now, last June was the 50th anniversary of the break-in, which was more news.

And in some discussion groups, it was observed that if talk radio—Fox News, Newsmax—existed, and podcasts, back with Nixon, he would never have been driven from office, that you would get -- And this was not said happily. This was not said regretfully. This was said because the people who said it don't like what's going on today. They don't like the object of their fury to be defended by anybody.

But nobody, with the exception of Chuck Colson, was going to venture out. We couldn't get lawyers. I mean, that's in the news today. What I remember thinking at the time, "A president is going to be driven from office because he can't find a lawyer willing to defend him." Then Jim St. Clair --

Hon. Laurence Silberman:  Now, wait a minute. He had Jim St. Clair.

Geoff Shepard:  No, no. This is before St. Clair was there. Remember, we went through J.J. Sullivan and Chappy Rose and the guy who came up from Miami Beach, Sam Powers. Remember Morrie Liebman? Morrie was managing partner at Sidley Austin—fine guy—and he was Hauge's best friend, and he'd come in all the time trying to suggest another lawyer, Dick Sprague from Philadelphia, somebody else, and they couldn't make a deal, and then they got Jim St. Clair.

Now, Jim St. Clair was superb, but he had no staff, Larry. We were faced off against 30 lawyers from the Ervin committee, 60 lawyers from a special prosecutor, 45 lawyers from the impeachment committee. And we had, as you're very familiar, some good lawyers, but it was a pickup game. It was a ragtag bunch of people. We need no economies being established. We weren't used to litigating.

Hon. Paul Diamond:  Geoff, with all due respect, I think we've answered the question. Jack, do you want to ask -- do you want to pose another question to us?

Hon. Paul Diamond:  Thank you, Paul. You got another question, Jack?

Jack Derwin:  It's a good one to close out on. It's a little bit forward-looking.

Hon. Paul Diamond:  Geoff, why don't you forward look for us?

Geoff Shepard:  Oh, were you going to read a question?

Jack Derwin:  Yeah. Based on these lessons learned --

Hon. Paul Diamond:  Oh, I'm sorry. I thought you were telling us to close up. I'm sorry. Go ahead.

Jack Derwin:  Sure. Sure. We can use this as sort of a closing statement. How can we improve transparency and integrity in prosecutions, particularly of high-ranking executive officials and other top-ranking political appointees?

Geoff Shepard:  Well, if you say what really are the lessons learned, one: Independent prosecutors don't work. I think we might get universal agreement to that. Two, your only hope for the future is a free and vibrant press. I don't like the press. I don't like articles that I disagree with, but that's what keeps people honest.

And maybe others have other ideas. Certainly, Attorney General Jackson's admonition to the U.S. attorneys is the best statement of what's expected, but when you parse it, there's no easy answer. We have to have good people making correct decisions.

Hon. Paul Diamond:  There's a move afoot now to amend the rules -- I was on the Civil Procedural Rules committee, and there were all kinds of proposals to amend the rules when at least some have suggested the root problem is district court judges, we won't do our jobs. We won't manage the civil cases before us. We won't handle discovery.

And if you don't have a judge who is willing to do his or her job, no rule change is going to make a difference, and I think that's true in a criminal sphere as well. If you have prosecutors who don't honor their oath of office, even a vibrant press won't necessarily be able to sniff anything out. And what we see here, what Geoff has uncovered here, can happen, and it violates any notion of due process.

Hon. Laurence Silberman:  May I respond and, in a way, echo what Geoff said? As I look back on it and think how I was influenced myself as events transpired, the uniform press hostility to Nixon—indeed, any Republican, but particularly to Nixon—based on his race against Helen Gahagan Douglas in California and his chairmanship other than House Un-American Activities Committee, meant that the hostility, at least, was absolutely uniformly against him.

And that was true of all the press and media, and I think that's the explanation for the behavior of everybody involved. No matter what you did, as long as you were after Nixon, you were going to be protected.

Geoff Shepard:  One intriguing thing that I think about a lot -- Larry and I are both graduates of Harvard Law School. I happened to go to college at Whittier where Nixon went. Nixon was awarded a Harvard scholarship to go to Harvard College by the Republicans of Orange County, and he couldn't afford to go. This was The Depression.

He couldn't afford to go. He was needed in his family's business because he drove downtown at 4 a.m. every morning to buy fruit to bring back to the store. So, throughout his whole life, as he's being just pilloried by the Ivy League elites, he knows, but for his poverty, he might have been there, too, and I just find that poignant. 

Hon. Paul Diamond:  Well, I just want to point out that Professor Saltzburg and I both went to the University of Pennsylvania Law School. I simply want to point that out.

Geoff Shepard:  And got an excellent education.

Prof. Stephen Saltzburg:  Can I address that last --

Hon. Laurence Silberman:  Actually --


Hon. Laurence Silberman:  -- the only thing, if you look at the tapes that are now published concerning Nixon's private discussions with Ehrlichman and Haldeman, there were two categories of people that he distrusted and disliked intensely. One were Harvard graduates, and the second were Jews. And the amusing thing is, his administration was rife with both.

Geoff Shepard:  It really is.

Hon. Paul Diamond:  As is this panel. As is this panel.

Geoff Shepard:  Let me take a second on that because Larry and I go round and round on that.

Hon. Paul Diamond:  I think we're way out of time, Geoff. I mean, way out of time.

Geoff Shepard:  We've got to use -- We've got to use up the late start.

Hon. Paul Diamond:  Geoff, it's 20 after 3.

Geoff Shepard:  Well, there was the 10-minute break, and then there was a late start, so we're right on the board.

Hon. Paul Diamond:  Okay. Whatever Jack says.

Geoff Shepard:  Jack's got the watch. What do we have to go to, Jack?

Jack Derwin:  Well, one more chance for closing statements, and then we'll wrap up here.

Geoff Shepard:  All right. I insist. If I can remember my point. Larry says, "Look, he hates Harvard people"—boy, did he—"and he says disparaging things about the Jews." The interesting thing about Nixon's cabinet -- And I give speeches at Harvard. I'm a graduate of the law school. There wasn't a single Harvard graduate in his cabinet, but dozens and dozens of them in the subcabinet. Now, they tended to be B school and law school graduates, not the college.

         Harvard's a great university, and they pick great people, and they assume leadership roles. The argument over the Jewish situation is intriguing because, usually—not always, but usually—he's expressing frustration that he's done so much for them and for Israel, and they vote a pure Democrat line. And so some of them -- He's talking about them as a voting block, but I add, he had dozens of Jews in his administration that he appointed: Arthur Burns and Henry Kissinger and Herb Stein.

Hon. Paul Diamond:  I don't think they get CLE credit for this kind of observation.

Geoff Shepard:  Fair enough. Fair enough.


Jack Derwin:  Cannot thank you enough, Geoff, for taking the time and our outstanding panel today. And I have a few final CLE notes for our attendees. Once again, a few of you were asking -- So there were two codes. One was given before the break, one was given after, and then I repeated that second one again at the very end as we went to Q&A. That was the same code; you didn't miss anything there, just two codes. And so you'll receive an email in the coming days asking you to enter those two codes. And once again, for now, the sign-out sheet is available in the chat. You can use that to sign out. 

Geoff Shepard:  Okay. And the panel --

Jack Derwin:  Thanks again to our awesome panel.

Geoff Shepard:  The panel is going to get an email so we can criticize each other immediately after this.

Jack Derwin:  That's right. That's right. And thanks so much to our attendees for joining today's program. You can keep track of everything The Federalist Society is up to at or on social media @fedsoc. With that, we are adjourned. Thank you.