The Strong Man: John Mitchell and the Secrets of Watergate (69 page)

By 1970, the year
before seniority made him the District of Columbia’s chief judge, John Sirica was reportedly the most reversed federal judge in Washington. That dubious achievement, along with his sloppy, biased conduct of
U.S. v. Liddy
, the original Watergate break-in trial, fueled Mitchell’s hopes for securing an acquittal on appeal.

At the outset of the
Liddy
trial, Sirica ordered sealed a portion of the record showing he had, through staggering incompetence, allowed on the jury a man who barely spoke English. The juror was dismissed only when marshals learned he had improperly communicated with his wife. Things only went downhill from there. Civil liberties advocates—hardly sympathetic to Gordon Liddy—winced when the judge, seeing the defendant conferring with his lawyer, Peter Maroulis, snapped that he was glad to see Maroulis “getting some good advice from [your] client, the former attorney.” Liddy had not yet been convicted, let alone disbarred.

Sirica’s conduct of
U.S. v. Mitchell
was no better. He approved the seating of a juror who had a close friend on the WSPF staff. Another juror, Marjorie Milbourn, told the judge that while the defendants may be innocent on legal grounds, “in moral terms, [their actions] might not have been everything that is acceptable.” Asked if she could still render a fair verdict, Milbourn conceded she could not “guarantee it.” Over defense objections, Sirica seated her on the jury; after the trial began, she wrote an admiring note to Leon Jaworski. A third juror admitted he had “probably” expressed an opinion about the guilt of the defendants, and that it varied from moment to moment.

“I can’t keep track of everything going on,” Sirica complained during the trial. Indeed: At various points, he forgot to excuse a witness; forgot key dates in the case’s chronology; permitted forms of cross-examination he later barred, without ever admitting error; proposed, unfathomably, that a witness be cross-examined outside the presence of the jury, then withdrew the idea; admitted he “maybe” allowed the prosecution to pose leading questions to a witness on redirect examination, a flagrant violation of courtroom procedure; admitted he “may” have improperly allowed the prosecution to make a closing argument to the jury during the questioning of a witness; admitted he “probably” gave the prosecution “too much latitude” in questioning a witness; admitted he couldn’t always discern the speakers on the Nixon tapes, the trial’s most important evidence; mocked Nixon from the bench; and shrugged “when you have a situation like we have, that has been highly publicized, you just can’t have a perfect trial.”

Most egregiously, Sirica bent the hearsay rules, even by the lax standards of conspiracy cases, to allow John Dean to relate to the jury what had been told him by individuals who were neither defendants in the case nor unindicted coconspirators. Sirica accepted the government’s novel contention that Dean’s discussions with these individuals, normally inadmissible in a court of law, were admissible in this case because the discussions had allegedly been “set in motion” by one of the defendants, Ehrlichman. David Bress, the former U.S. attorney representing Mardian, reeled from the implications. “I’ve just heard a new theory of exception to the hearsay rule,” he sneered. “The set-in-motion theory. I’ve never seen it in any law books. There is no law to support it. It is a violation of the hearsay rule.” Once again, Sirica disposed of the matter in two words:
Let’s proceed
.

The worst was still to come. On the trial’s eighteenth day, the seventh of Dean’s testimony, Ehrlichman’s defense attorney, William Frates, was completing his cross-examination. An accomplished verbal fencer with uncommon gifts for evasion, deflection, and filibuster, the “boyish-faced” witness had held up well under the onslaught, remaining “calm and unruffled,” an observer reported, bloodied more on “his character rather than his credibility.” He had help, of course: Unlike in the Vesco trial, where Judge Gagliardi had refused to let Dean get away with dodging questions, Sirica had freely allowed the witness to indulge his penchant for circumlocution and even offered the jury a generous endorsement of his candor (“He has told what he knows”).

Now, however, with the jury and witness excused for lunch, Sirica abruptly interrupted a dialogue with Frates, over a line of inquiry the lawyer was seeking permission to pursue with Dean, and began to attack the lead defendant. “Maybe I shouldn’t say what is in my mind,” Sirica said, in a fit of restraint he quickly overcame. “I will tell you what was in my mind.”

It is too bad that Mr. Mitchell didn’t say, “Throw them out of here, get them out fast,” and you wouldn’t even be in this courtroom today. It is too bad it didn’t happen that way. Anyway, it is not for me to say what should have been done. The jury hasn’t heard that and no harm can be done.

From the lips of the purportedly neutral umpire presiding over his trial, a defendant could scarcely imagine hearing a more prejudicial remark. Convinced he had just witnessed the crystalline example of reversible error he had been counting on Sirica to make all along, Hundley shrewdly said nothing; only after lunch did Mitchell’s lawyer rise to make “an objection in the record” to this shocking lapse in judicial propriety. Sirica seemed to anticipate the moment, immediately setting forth his defense for any appellate court to see. “Yes,” he said wearily, “it was out of the presence of the jury.”
¹¹

From lead prosecutor Jim Neal,
at least, Mitchell knew better than to expect impartiality, and Neal’s grueling daylong cross-examination of the former attorney general lived up to all expectations. Looking back on the trial almost two decades later, Neal recalled Mitchell as “a thoroughly delightful man.” The two even had their photograph taken together during the trial, posing alongside a Tennessee ham; at bottom Mitchell inscribed: “Which one is the ham?” “I got along very well with John Mitchell,” Neal said. “He understood what my job was and, in a sense, he understood what his role was…. He knew that he was going to prison and he took it with grace and stoicism.”

By the time the former attorney general took the witness stand, on November 26, 1974, the first of the five defendants to do so, twenty-six Nixon tape recordings had been played for the jury. The tapes’ introduction into evidence was unprecedented in the annals of criminal law, for they raised thorny questions of foundation (were these the actual tapes or copies, and who would so vouch?); chain of custody (the WSPF had previously complained that tape logs were kept haphazardly by the Secret Service men responsible for them, including on scraps of brown paper bags); and basic constitutional fairness (Sirica had barred all efforts to secure testimony from Nixon, a key participant in the discussions; moreover, there was no way for defense counsel to cross-examine a tape recording, even though the tapes “spoke” to the jury as dramatically as any live witness).

Not until the trial’s sixth day, and its seventh tape, did the jury hear Mitchell’s voice; characteristically, it was the first heard to address Nixon as “Mr. President.” Bill Hundley worried about the unswerving deference Mitchell showed Nixon. The former attorney general had “insisted” on testifying—it had helped in the Vesco trial—but he was otherwise loath to discuss the case with his lawyer. As he had done in the Vesco case, Mitchell left the small matter of conferral with counsel for the morning of his appearance in the witness box. “Do you have any last-minute advice, coach?” Mitchell asked. “I said two things to him,” Hundley recalled.

“Number one, don’t try to take on every government witness. And number two, and this is more important, I know you love Nixon, but when you’re up there just defend yourself. I’m not asking you to say anything bad about Nixon, just leave him out of it.” His testimony on direct was okay. Then it was Jim Neal’s turn…. Within ten minutes of cross-examination he had Mitchell eulogizing Nixon. The D.C. jury was ready to leap out of the box and strangle Mitchell. After we finished I was slouched in the back of his limo and Mitchell said, “What’s the matter with you, coach?” “You know what’s the matter. Within ten minutes, Neal had you eulogizing Nixon.” He said to me, “What difference does it make?” I laughed and said, “You’re probably right.”

“He was just saying, in essence: ‘There ain’t no way we’re going to win this trial; I might as well go down with my colors flying,’” Hundley said, years later, laughing.

Mitchell’s defense began with a cogent and impassioned statement by Hundley, in which he portrayed his client as the innocent victim of a White House conspiracy, led by Nixon, to make the former attorney general the fall guy in Watergate. Hundley conceded that his client had kept to himself what he knew about the White House horrors, but argued that that was not a crime. Mitchell, he said, had made “a conscious decision that he would not run to the police…[but] he did not perjure himself. He did not obstruct justice.”

At the close of the day’s testimony, Sirica dismissed the jury a few minutes early and, “with obvious skepticism,” went to work on Mitchell himself, declaring: “I have not yet, frankly, gotten satisfactory answers.” When Hundley objected to his client being interrogated outside the jury’s presence, the judge turned to Mitchell himself for support, as if they were uniquely accomplished brethren in the legal fraternity. “I think Mr. Mitchell will be the first one to agree with me, as a former attorney general, that every federal judge has the right, or any judge, if he has anything in his mind that has not been developed, or he has a question, as long as it doesn’t interfere with the defendant’s defense in the case—” “There is no question, Your honor,” Mitchell interjected agreeably, having little choice but to join Sirica in opposition to his own lawyer.

Although he framed his queries poorly, what Sirica searched for, in a half hour of questioning, was Mitchell’s explanation to a single question: Why had men like Fred LaRue kept coming back to the former attorney general, looking for money for the Watergate burglars, if CRP had no responsibility for the break-in and Mitchell himself had already rejected making any payments on those grounds? “I just can’t see there was any other obligation for [Dean and LaRue] to pay anything,” Sirica said. “I would like to be enlightened on that subject.” “I can’t enlighten you, Your Honor,” Mitchell replied. “I didn’t start it. I didn’t make the decision.” As for LaRue, Mitchell surmised he was simply “asking me for my advice as a friend.” Then, he gave a hint that there were better witnesses for Sirica to quiz: “Dean…had directed these operations during a long period of time—”

Neal leapt to his feet, “arms chopping the air,” angrily pointing at Mitchell. “Your Honor, there was testimony today that he started [the hush-money scheme].” The accusation drew Mitchell’s sharpest words of the trial. “Mr. Neal, that is about the third cheap shot you have had at me and I resent it. That was not the testimony…. You know very well that Mr. Kalmbach never mentioned me at all in connection with…the origin of this particular plan.”

On cross-examination, Neal pummeled the witness for sitting through the Gemstone pitches by Liddy, “a one-man crime wave,” and for failing to order his arrest.
You were the highest law enforcement officer in the country?
Neal asked. “Yes sir, that is correct,” Mitchell replied, poker-faced.
Hadn’t Liddy’s first presentation included plans to kidnap radical leaders to Mexico?
Mitchell questioned whether the court should “place the legal definition of kidnapping on it,” suggesting instead it was a matter of “segregating out radical leaders and keeping them from [their] activities.”
Was it contemplated these radical leaders would agree to this segregation?
Neal asked with undisguised sarcasm. “I wouldn’t presume so,” Mitchell answered.
And hadn’t Liddy proposed to use prostitutes to compromise Democrats?
“I don’t have a specific recollection of it,” Mitchell testified, “because we didn’t get into those details….”
Hadn’t Mitchell based his rejection of Liddy’s plan on cost, not constitutionality?
“That is not a fact,” Mitchell testified.

Then Neal moved to Count Three of the indictment, which charged Mitchell with lying to FBI agents when he claimed, in July 1972, that he had no knowledge of the Watergate break-in other than what he read in newspapers. “What I said was the materials that I had information of had been in the newspapers,” Mitchell testified.
Did you hear the FBI agents testify that you did make that statement to them?
Neal asked. Yes, Mitchell said, he had heard one of the agents so testify.
And he is not telling the truth?
“In my opinion, no.” Mitchell then asked for a chance to explain the circumstances surrounding the FBI interview. “If you feel some urge to explain the circumstances, Mr. Mitchell, please do,” Neal snapped. “I have an urge, Mr. Neal,” Mitchell shot back, “to get to the truth.” The former attorney general recalled how the two FBI agents were “scared to death” when they came to his office. “They asked a couple of questions,” Mitchell said, “and we discussed what my knowledge was, and what had been in the paper, and they left.” Neal oozed disdain:
Your urge to get to the truth, as you expressed it, didn’t cause you to tell these agents about the three meetings when the Liddy plan was discussed, did it?
“I did not volunteer it for obvious reasons,” Mitchell replied. Asked what those were, he stated firmly: “The re-election of the president of the United States.”