The Watergate Trials

The term Watergate has expanded. From the name of a group of apartments and offices on the shores of the Potomac River in Washington, it has come to mean a series of scandals during 1972–1974.

A year before the Watergate break-in the Watergate wheel was set in motion. Publication in June 1971 of the Pentagon Papers, obtained from Daniel Ellsberg by the New York Times, caused a wave of anxiety to roll through the White House. When the Supreme Court refused to halt their publication, President Nixon and his staff resolved to stop the leaks which made their publication possible and to find out as much as they could about Ellsberg.⁷ Other wiretapping and covert political operations had been started earlier, but in mid-1971 the paranoia intensified. Within a month of the Pentagon Papers crisis the “plumbers’ unit” was established in the White House and G. Gordon Liddy was hired. When the 1972 campaign was organized Liddy shifted from the White House to the Committee to Re-elect the President. In both places he put his skill in clandestine jobs to use.⁸

The Watergate break-in was on June 17, 1972. The cover-up story concocted by John Mitchell, Jeb Magruder, John Dean, and several others held up through the November election of 1972. They would admit to authorizing Liddy to use $250,000 for intelligence-gathering, but they would claim that the break-in was Liddy’s scheme.⁹ After the January 1973 trial of Liddy and James McCord, in which the jury found them guilty on all counts of the break-in, Judge John Sirica delayed sentencing because, as he told them, he was not satisfied that “all the pertinent facts that might be available” were produced in the trial.¹⁰ Sirica’s pressure worked.

During the Liddy-McCord break-in trial another trial was progressing in Los Angeles: Daniel Ellsberg and Anthony Russo were being prosecuted for the theft of the Pentagon Papers. At first it seemed that the Ellsberg-Russo trial was unrelated to the Watergate trial. But on April 27, 1973, it became known that the judge in the trial, Judge W. Matthew Byrne, had been twice contacted by John Ehrlichman to discuss the possibility that Byrne might accept the FBI directorship. The burglary at the office of Ellsberg’s psychiatrist prompted Judge Byrne to dismiss all charges and declare a mistrial. The additional knowledge that Ehrlichman had met with the judge during the trial to offer him a job provoked heightened speculation about White House motives.¹²

A week after Judge Byrne declared a mistrial in the Ellsberg-Russo case the nation’s attention was captured by the Senate Watergate Hearings (the Senate Select Committee on Presidential Campaign Activities), chaired by Senator Sam Ervin and televised gavel-to-gavel from mid-May to August 1973. Congressional hearings and political trials in the United States raise the same political questions but operate from contrasting models. Hearings by Congress are akin to the inquisitorial model, except that they are generally far from secret. Trials under the accusatorial system commence with a detailed indictment and advance according to stringent rules of relevancy and protection against self-incrimination toward a verdict from an unbiased jury.

After the Ervin Committee had heard from James McCord, Maurice Stans, and Jeb Magruder, it found that it then had before it a head-on collision between John Dean’s testimony that President Nixon had participated in the Watergate cover-up and a White House denial. Dean’s testimony, while trenchant, pitted his credibility against the president’s, a contest Dean would have difficulty winning.¹⁴ But with the revelation by Alexander Butterfield, which was the bombshell of the hearings, that Nixon had taped his Oval Office conversations, the confrontation rapidly shifted to the president vs. the committee and then to the president vs. the courts. This struggle began in July 1973 and ended a year later when the Supreme Court said in a unanimous decision that the tapes would have to be turned over to Judge Sirica’s court for the coverup trial. On August 9, 1974, Nixon resigned.

While the battle over the White House tapes raged, the White House backed-and-filled. Nixon kept his distance by saying such things as “let others wallow in Watergate, we are going to do our job.”¹⁵ While, in short, the legitimacy of the Nixon administration drained away, two recent cabinet members were put on trial. Not knowing what was coming up later during 1974 the press billed the Spring 1974 trial of former attorney general John Mitchell and former commerce secretary Maurice Stans “one of the most extraordinary criminal cases in the nation’s history” that promised to be “a courtroom drama unparalleled in the last half century.”¹⁶ Mitchell and Stans were charged with taking a secret $200,000 from financial manipulator Robert Vesco in return for their influence on the Securities and Exchange Commission which was investigating Vesco.

If the Mitchell-Stans trial had not been called “the trial of the century,” the Plumbers’ trial might have qualified. It involved one of President Nixon’s closest advisors, John Ehrlichman, and the black bag team that operated out of the White House (Bernard Baker, G. Gordon Liddy, and Eugenio Martinez). They were tried for the break-in at Dr. Fielding’s office (Daniel Ellsberg’s psychiatrist) with testimony offered by another close advisor to Nixon, Charles Colson. The Plumbers’ trial coincided with the impeachment hearings in June and July 1974. It was upstaged.

Neither the Mitchell-Stans trial nor the Plumbers’ trial were a “trial of the century.” They were nearly forgotten when the national attention was drawn to the House Judiciary Committee impeachment hearings and Nixon’s resignation. While the Mitchell-Stans and the Plumbers’ trials involved corruption, the misuse of power, and the issue of responsibility, the impeachment hearings touched the legitimacy of the Nixon administration. Because we understand human nature or think we do, we can fathom matters of corruption and the misuse of power, although when those in high places are put on trial, it is a public drama to watch the mighty being humbled. But legitimacy is mysterious, and the office of the president embodies that mystery. The impeachment hearings and the higher drama at the White House captured our deeply felt sense of the symbolic. In politics legitimacy has primacy.

The long-anticipated cover-up trial of John Mitchell and presidential aides H. R. Haldeman and John Ehrlichman came as an anticlimax after the Nixon resignation. Their trial had to come after the tape question was resolved, but the Supreme Court in resolving it precipitated Nixon’s fall. The Watergate cover-up trial revealed that those closest to President Nixon were engaged in cover-up activities as soon as the break-in had been discovered: attempting to arrange to get the burglars out of jail and out of the country, making secret hush-money payoffs, approaching the CIA for covert funds, destroying documents, lying to the FBI investigators, and committing perjury before the Senate Committee and the grand jury.¹⁸

Not only were those who broke into the Democratic Headquarters caught red-handed, but so were the advisors closest to Nixon and, with the full verification of Dean’s story on the tapes, Nixon too.

Did the media pillory the Watergate defendants? Or, on the other hand, did the press uncover the scandal and smite the evildoers? In either case, whether the media coverage was akin to a witch hunt or to David slaying Goliath, the issue is the place of the media in the rule of law. If the media creates caricatures of those involved in a trial and portrays the courtroom as a stage for a melodrama, then, whatever the legal agenda, the political agenda will be inevitably partisan. One view of the role of the media would have it that such a result is the only result we can expect: “Misinforming merely abuses the audience; boring loses the audience.”²⁰ The Watergate story, as Raymond Price sees it in retrospect, was an ideal one to tell with drama and fiction: “High stakes, fast action, famous stars, mystery, suspense, confrontation, good guys, and bad guys.

Maurice Stans, in looking back at the Watergate events, argued that most of those punished and defamed were innocent victims. The combination of ambitious politicians and prosecutors plus the “media binge” produced, in Stans’s judgment, “a relentless search for wrongdoers” comparable to the Salem witch trials.²² While he acknowledged that the Watergate trials did bring some guilty to justice (such as Liddy, although he was “exorbitantly punished”),²³ Stans found that some of the guilty got off easily (those given immunity for their testimony) and many undeserving innocent were punished. “Without having played any part in Watergate or its cover-up,” Stans asked, “why in the world was I so victimized by it?”²⁴

The “media binge” Stans saw behind the Watergate hysteria was to him most evident in the “range of despicable tactics” employed by Woodward and Bernstein of the Washington Post. They and the rest of the journalists created a climate in which accuracy was sacrificed for sensationalism.²⁵ This high excitement permitted the prejudices of the Ervin Committee to exercise arbitrary power over him and the other victims. While there was no connection between the Vesco matter and Watergate, the prosecutors, the Ervin Committee, and the media linked the two events with the suggestion that Stans was guilty in both. Senator Ervin, Stans asserted, had two categories of witnesses: “guilty with penitence” or “guilty without penitence.”²⁶ In short, from Stans’s viewpoint, the hearings and trials of Watergate were beyond the limits of the rule of law and functioned as partisan trials. As he finished his testimony before the Ervin Committee Stans appealed to the committee to take account of the “innocent victims of this tragedy.” He, together with others in the Nixon administration and campaign, “believed in my President.… All I ask, Mr. Chairman and Members of the Committee, is that when you write your report you give me back my good name.”²⁷

G. Gordon Liddy represents an extreme Watergate position. His ideas, as well as his actions, are a straightforward challenge to the rule of law. Liddy rejected its limits and denounced those who took it seriously. If some of the others involved in Watergate were ad men and ambitious politicians with a willingness to use Machiavellian tactics to advance the cause of Nixon’s reelection, Liddy was a Nietzschean who approached politics as a terrorist would. The others were drawn into the Watergate quagmire out of loyalty to Nixon, but Liddy viewed the entire world as a power jungle where only those who fought survived. While the others would later regret and repent, Liddy not only justified what he had done but regretted only that he was restrained from doing more. He gloried in his aggressive stance. The others saw Watergate as dirty but necessary politics; Liddy viewed Watergate as a skirmish in a war.

The prime example of the internal war the Nixon administration faced, as Liddy looked at the situation of the early 1970s, was the bombing of the Army Math Center at the University of Wisconsin (a case which will be covered in chapter 6). He saw this bombing as part of the “thousands of bombings, burnings, riots, and lootings of the â€?60s, to say nothing of the murders of police just because they were police, the killing of judges, and the general disintegration of social order.”²⁸ To fight this trend Liddy, while working for the White House, masterminded a series of battle plans. ODESSA was the coordinating group for a variety of clandestine projects which included discrediting Daniel Ellsberg, perhaps with drugs which would befuddle him when he made a speech, because he was the person “who had been made a hero by the press…now the symbolic personification of all the leakers.”²⁹ After he was shifted from the White House to the Committee to Reelect the President, Liddy drew up elaborate plans under the code name GEMSTONE. These included details for kidnapping demonstration leaders, drugging them, and holding them in Mexico until the Republican Convention was over; spying on the Democratic candidates with bugs and even chase planes to eavesdrop on airplanes and buses; using prostitutes in a houseboat wired for sound during the Democratic Convention; promoting a variety of counter-demonstrations; and finally, employing a sabotage team to destroy the air-conditioning equipment at the Democratic Convention. John Mitchell told Liddy the million-dollar budget for GEMSTONE was too much, that he should return with “something more realistic,” and that he should burn his charts.³⁰ When Jack Anderson wrote a column in which, in Liddy’s judgment, an intelligence source abroad had been compromised, perhaps to the point of threatening the agent’s life, Liddy developed a plan to assassinate Anderson.³¹

Most of Liddy’s extravagant battle plans were rejected by his superiors, although the two break-ins for which he was convicted—Ellsberg’s psychiatrist’s office and the Watergate—had been approved. To Liddy such projects, including assassinations, were not justified out of blind obedience to authority. Blind obedience would lead, he suggests, to justifying genocide, as the Nazis did. Liddy’s code, by contrast, was built on the distinction between an action which is evil in itself (genocide or the sexual assault of a child) and an action which is wrong only because a law prohibits it (driving through a stop sign). Liddy was willing to propose and carry out an assassination of Jack Anderson provided it was: “a) an order from legitimate authority; b) a question of malum prohibitum (wrong only because the law prohibits it); and c) a rational response to the problem.”³² Assassinating Anderson, Liddy explained, would not be a matter of retribution for what he had written in his column but a preventive measure. Fortunately, the one condition not met was (a); he did not receive an order. But the other two conditions, in Liddy’s estimation, were in place.

Liddy’s argument for the ODESSA and GEMSTONE projects and for political assassination is vigilante justice. The regular legal process, Liddy reasoned, was not bringing Ellsberg to justice, and the media was making him into a culture hero. The same thing he saw was happening to the anti-Vietnam War demonstrators. Jack Anderson was not being stopped by the regular processes. Even the FBI, in which Liddy had begun his career, was unwilling to undertake the measures necessary. Liddy justified his projects because the law was not effective in halting the illegal activities of the dissidents and the media. Justice Louis Brandeis had this to say about agents of the government using criminal methods in order to control crime:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.³³

This would apply to Liddy while employed by the White House. His activities as an agent for the Committee to Reelect the President would be even more clearly from a terrorist’s book.

Liddy’s code was the code of war, not the rule of law. He agreed with Stewart Alsop who described him as engaging in war, not politics. Throughout, Liddy viewed himself as a loyal and professional soldier who would not engage in indiscriminate terror in which civilians would be injured but who would not hesitate to employ discriminate terror against the enemy. Like a soldier, he was willing to accept the consequences of his own actions, well illustrated by his refusal to provide details and information in exchange for a lighter sentence and by his suggestion to John Dean that if the administration wanted him killed all Dean had to do was to tell him on which street corner to stand.³⁴

Woven through the various books written by the Watergaters are themes which present Watergate as a moral lesson. Liddy’s story follows the Nietzschean pattern of aristocratic and heroic self-assertion. His autobiography is titled Will. Once a sickly and fearful child, he tells how he drew upon a family heritage and his capacity to test himself to become a belligerent FBI agent, county prosecutor, Watergate spy, and prisoner. His one grandfather was a football star, the other a pugilist and stevedore; an uncle was an FBI agent who helped catch Dillinger, and his father was a successful lawyer who was knighted by the king of Sweden as a member of the Royal Order of the North Star. Young G. Gordon did such things as climb a tree during an electrical storm and eat a rat. Although he was a lawyer, Liddy’s code throughout was a challenge to the rule of law. After being tried, convicted, and serving a prison term, he left prison in triumph.

By way of contrast, the narratives of Jeb Magruder and John Dean are moral odysseys. They tell about their journeys through the mazes of power toward a wisdom learned in painful experience. Their titles also suggest their themes: Magruder’s An American Life: One Man’s Road to Watergate and Dean’s Blind Ambition: The White House Years. Magruder and Dean begin in what they see as mundane but yet successful careers and are raised to the realms of power. Both describe the excitement and awe of their first visits to San Clemente where they had their job interviews and were admitted into the presence of Nixon. After he is hired Magruder thinks: “This was the chance I had been waiting for all my life. The Magruder family had, over the years, known its ups and downs, but now I was one of the Magruders who was on the way up, all the way to the top.”³⁵ The moral stumbling block was, of course, Watergate. “Slowly, steadily, I would climb toward the moral abyss of the President’s inner circle,” Dean related, “until I finally fell into it, thinking I had made it to the top just as I began to realize I had actually touched bottom."³⁶ The hearings and trials were a moral purging. When Magruder decided to talk to the prosecutors, he felt he was “sick of lying, to my wife, to my friends, to the press, even to myself. The strain was just too much.” Once he made the decision he changed: “I felt a tremendous sense of relief, I felt almost happy, to be finished with the cover-up and all its lies. I felt as if I’d been seized by madness for a long time and suddenly I had become sane again.”³⁷ Magruder and Dean left the Watergate experience humiliated but wiser.

The Watergate defendants, especially those who wrote books, appealed to the public through the political agenda. The most vivid example of this is H. R. Haldeman’s petition two days before Nixon resigned. Haldeman, on behalf of the Watergate defendants, urged that Nixon grant clemency to everyone convicted for Watergate crimes. After submitting that all the acts they had done were either done at the president’s direction, with his knowledge and approval, or for his bereft, not for their own enrichment, Haldeman suggested that such clemency “permits the wrongs and rights to be adjudicated in the â€?court of history’ rather than in the highly prejudiced political crucible of Washington, D. C., courts.” He went on to suggest that such an act would add “to the image of Richard Nixon” by demonstrating that he “seeks to do justice when he knows the judicial process cannot or will not.”³⁸

The political agenda of Watergate contained what historian Daniel Boorstin calls “the conscience of the marketplace—the people’s feeling of outrage at the violation of common decency, of legal and constitutional rules.”³⁹ Whether the “court of history,” to use Haldeman’s term, will turn that outrage in favor of the Watergate defendants remains to be seen. Thus far, the D. C. courts have expressed the conscience of the marketplace in favor of the rule of law and against those who used the power of the White House to violate it. Boorstin distinguishes the conscience of the marketplace from the judgment of the marketplace, which is lynch law.⁴⁰ The former is the rule of law, while the latter is partisan justice. While the jury of history is always out, although it comes in with continual verdicts, in the first decade after Watergate the verdict seems clear: The Watergate defendants violated the law and were properly convicted. The victor is, therefore, neither a person nor a party but the rule of law.