After the Tall Timber (66 page)

Even 1934, when one thinks about it, was not just the year when Prohibition ended, and Sirica quit the U.S. Attorney’s office—and Congress at last legalized professional boxing in Washington. It was also a year
deep
in the Depression, a particularly odd time for a young lawyer to leave a government job and start his own practice. It was the year as well when Sirica says he met Dempsey, and when he tried to start and promote a boxing arena with a “local prizefighter,” Goldie Ahearne. It goes by now almost without saying that Goldie Ahearne could not, any more than Sirica himself, legally have been a “local prizefighter” before 1934.

There are countless peculiarities in Sirica’s story. His professions of patriotism, for example, coupled with his lack of military service, in any capacity whatever, in World War II. He was, after all, a bachelor. The whole war took place during what he called his “starvation period.” The
Times
, in its unusually fulsome obituary of August 15, 1992, which described Sirica as “indisputably  . . . a hero,” “a great scholar” (and “by seemingly unanimous agreement, an honest man”), particularly stressed that he was “patriotic,” “unabashedly patriotic,” and added to its repeated characterizations of Sirica as “an authentic American hero” a military component.

The “for physical reasons,” at least on the basis of
To Set the Record Straight
, seems unlikely, considering Sirica’s account of his superb physical condition—and of course there are other capacities in which a bachelor, sitting idly in his office “waiting for the phone to ring,” might serve in the military. In his book, Sirica never so much as mentions the possibility of military service. But the
Times
’s claim that “during much of the war, he toured the country with Mr. Dempsey on bond-selling drives” is beyond description. Here is the relevant passage from
To Set the Record Straight
:

In 1942, the Cole Brothers Circus was Clyde Beatty’s circus, with no connection to war bonds or a war effort of any kind. In 1945, in other words
after
the war, it is true, when Dempsey went on a tour selling “savings bonds,” Sirica went with him. “While thoroughly enjoying myself,” Sirica writes, “I also felt I was doing something important for my country.” Perhaps he was.

Among Sirica’s unlikely, and in this book and his legend unmentioned, friends and correspondents is FBI Director J. Edgar Hoover. Why would a judge of Sirica’s renown
not
have become friends with the FBI director? Because Sirica was not yet at all renowned. Hoover died in May 1972, a month before the break-in at the Watergate. His friendship with Sirica dates from the fifties—overlapping, for all one knows, with the friendship with Senator Joseph McCarthy—when Hoover, fighting the Communist menace, was still denying the very existence of organized crime. There must be a true story here somewhere, but so far no one has told or apparently even looked into it.

That is all I said or wanted to say about the subject. If a reader were to read this sentence, at least as quoted and discussed in the
Times
, to suggest that while Sirica was presiding over the Watergate cases he was taking payoffs from the mob, that is not a plausible reading. I was writing, after all, about Sirica’s autobiography. “A close connection to Senator Joseph McCarthy”—in the phrase that directly precedes “clear ties to organized crime”—would necessarily have ended on May 2, 1957, when McCarthy died. Sirica had not yet even assumed his position on the bench. If I had meant that Sirica was taking such payments on the bench or at any other time, I would of course have said so.

But enough. I do not need and never did intend to investigate the story of John J. Sirica. At the time I read his book, I had already written extensively about Watergate. I had also worked, until the day of President Nixon’s resignation, for the impeachment inquiry. It only became clear, from the book itself and then in retrospect, that the legend, the accumulation of clichés, received ideas, and bromides—the “scrupulously honest man,” the “hero,” who rises from humble beginnings to confront “the most powerful man on earth” and to find (if need be in disregard of the rules of evidence) “the truth for the American people”—had almost no basis in reality.

The legend of Sirica as a “scupulously honest man” and a “hero” rests, of course, on the Watergate trials. The conduct of those trials, criticized at the time, raises questions of all kinds. It is by no means clear, for example, why Judge Sirica assigned the cases to himself. There is evidence that, far from seeking to expedite the Watergate investigations, Sirica may have sought for several crucial months to delay them. In putting off the first trial until after the election, he says he was determined to have “a fair trial, not a quick one.” Look at that phrase a moment. The fairness of his conduct in those trials has always been precisely the matter most in dispute. In October, on account of “back pain,” he postponed the trials again, until January. It may also be that, in spite of the legend, Judge Sirica was less interested in getting at, as he put it, the “truth for the American people” than in some entirely other agenda—for example, in frustrating the investigation of the House Committee on Banking and Currency, the Patman Committee, which was the one investigative body that would have known where to look for the deeper truth about the Watergate—not the burglary or the cover-up but the sources of the cash. The Patman investigation concerned President Nixon so intensely that he sent then-Congressman Gerald Ford to persuade the committee Republicans to deny Patman the subpoena power. He sent Attorney General Richard Kleindienst, an old friend of Sirica’s, to persuade the judge, in the name of “protecting the defendants’ civil rights,” to issue an unusually broad “gag order,” forbidding anyone (government officers, witnesses, defendants, lawyers) from making statements about “any aspects of the case” to anyone, including congressional committees. The gag order, as even Sirica acknowledged, “strengthened the hand of the administration in stonewalling Patman.” Patman protested, in a five-page letter, to Sirica. By the time Sirica agreed to modify his order, Congressman Ford had persuaded the Republicans. Subpoena power for Patman’s Committee on Banking and Currency was denied.

A great deal has been made of what Sirica himself seems to consider the crucial break in the Watergate case: a letter from one of the convicted Watergate burglars, James McCord, alleging that perjury had been committed, that persons higher up than the original burglars were implicated, that “pressure” had been applied to the defendants to “plead guilty and remain silent.” McCord himself was a mysterious figure, formerly CIA and formerly FBI, as well as former guard of John Mitchell’s loquacious and frequently inebriated wife. On Friday, March 13, 1973, Judge Sirica read McCord’s letter melodramatically in open court. Ever since, that reading has been regarded as a turning point in the entire case. This seems highly improbable for two reasons: McCord did not
know
(or at least did not divulge) anything either important or admissible in the case; and he had sent a copy of his letter to the
Los Angeles Times
, so that it would have become public in any event.

The accepted chronology of Sirica’s life was always mystifying, and as a career pattern it is almost incomprehensible. It may even be that the real progression in Sirica’s life was not as the legend would have it, but rather this: first, the man of Prohibition and illegal boxing, in the U.S. Attorney’s office; then McCarthy’s man and even J. Edgar Hoover’s, with whatever politics that implies; then perhaps just the Republican Party’s man, its emissary to Italian communities (mostly, in those days Democratic); then a federal judge, the worst on the Washington bench; then Nixon’s man, an irascible figure who repeatedly expresses disdain for the rules of evidence; then, in his unprecedented use of “provisional sentencing” as a form of coercion, a vain sort of bully, who is concerned not “to sit like some nincompoop” while the defendants, under appropriate sentences, are “laughing at us”; then, a sort of obsessed prosecutor, who does not really discover any “truth”; and finally, in his vanity and posturing, a man, a “hero,” for the press.

A judge, after all, is not meant to be a hero. The only judges in our times who could legitimately be described as heroes were Frank Johnson, Elbert Tuttle, John Minor Wisdom, and the other judges of the Fifth Circuit, who took genuine risks, and suffered for them, for justice in the South. And judges, under the Constitution, are not meant to ascertain, least of all to prosecute or to coerce by sentencing, the “truth,” “for the American people,” or even for the jury. They are to preside fairly, under the adversary system, over cases presented by lawyers for the plaintiffs and the defendants before them. Anything else, whether it is posturing for the media, or coercing defendants with outrageous “provisional sentences,” or working on behalf of some party not before the court, undermines the system. Far from demonstrating that “no man is above the law,” it suggests that the judge himself is above it. We do not, under the Constitution, have a system wherein judges are inquisitors. In any event, though there may be material for a real biography of Judge Sirica, there is also this inescapable and awkward truth: Even in the Watergate investigations, he made no important contribution, except to the lore.

For the moment, almost as a housekeeping matter, just two relatively minor instances of dishonesty, corruption, incompetence—instances where they seem to overlap. In the matter of
voir dire
: Judge Sirica, having promised, at the request of both prosecution and defense, to interview prospective jurors individually, and in chambers, did not do so. As a result, when one juror was reported, at a crucial moment in the trial, to have violated the sequestration rules and spoken at length by telephone with his wife, Sirica interviewed that juror to ascertain whether he had obtained information from the outside world, and perhaps communicated it to other jurors. It turned out that the juror had in fact obtained such information. It also turned out that the juror knew only Spanish, and neither spoke nor understood English. To cover for this error—the juror could understand neither the testimony about the burglary nor instructions in the law—Sirica dismissed the juror and simply
sealed
this embarrassing portion of the record. The incident involved incompetence, surely, followed by a substantial lapse of integrity.

More serious was his use of “provisional sentencing” and outright dishonesty in at least one instance of it. Having imposed “temporary sentences” of unprecedented severity on the five defendants who pleaded guilty, Sirica told them that their actual sentences might depend on their cooperation with subsequent investigations. This was, in itself, a highly improper use of provisional sentencing—widely criticized, as “extortion,” “abuse of power,” and “the torture rack,” by two presidents of the American Bar Association and scholars ranging from Monroe Freedman to Philip Kurland. Provisional sentencing is a procedure to make sentences contingent on reports about the defendants’ character, and not a device for judges to coerce testimony when the adversary system (which is, after all, the American system) has already run its course. Far from demonstrating the bromide that no man, not even the President, is above the law, Judge Sirica proceeded as though one man, the judge himself, were above it.

The outright falsification was as follows. On March 23, 1973, Judge Sirica said that the sentences for the five defendants who had pleaded guilty would depend on their cooperation in implicating people higher up.

By 1975, the President had resigned. John Dean, John Mitchell, Bob Haldeman, and John Ehrlichman, government officials higher up than any of the first seven Watergate defendants, had all been tried, convicted, and sent to jail. In denying an appeal for reduction of sentence by a defendant who had not pleaded guilty, had not received a provisional sentence, and was not one of the original five, Sirica simply “quoted” the last sentence of his March 23, 1973, Memorandum of Opinion and Order, as follows:

There is no doubt that Judge Sirica altered this passage deliberately. About “you have control,” he even notes “italics added.” The key alteration, however, is from “I mean each one of the five of you” to “I mean each and every one of you.” The latter would have included the defendant, G. Gordon Liddy, among those who had pleaded guilty and whose sentences were contingent on their “cooperation.” Liddy was never one of them, and Liddy’s sentence was never contingent on any cooperation. The falsification was crucial. It enabled Judge Sirica to keep Liddy in jail, in worse conditions and for a far longer term than any other Watergate defendant, including those far higher up in the administration—on the pretense that Liddy had not accepted an offer that Sirica never made to him. The D.C. jail to which Sirica sent him was ancient, dirty, overcrowded, rat-infested, with temperatures that reached 104 degrees. Liddy was for a long time the only white prisoner there. (The D.C. jail has since been closed.) On April 12, 1977, when President Jimmy Carter commuted Liddy’s twenty-year sentence to eight “in the interests of justice,” Judge Sirica complained to the press.