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New Jaworski Documents: The Watergate Trials Were Invalid

August 10th, 2013 Leave a comment Go to comments

Geoff Shepherd has a new Atlantic article, “The Watergate Cover-Up Trial: Justice Denied?” He has found hitherto unrevealed documents that show that the Watergate defendants were right when they charged that their judge, Judge Sirica, was holding illegal secret meetings with the prosecutors to plan legal strategy against them. In new trials they probably would have been convicted anyway, but if this had come out at the time, all of their convictions would have been voided and Prosecutor Jaworski and Judge Sirica disbarred. They would have had new trials, and probably would have been convicted anyway, but the Nixon stance that “The Democrats do illegal stuff too” would have been mightily supported. My comments to the author:

1. Talk about whether we would have expected all Lacovara memos, and this one in particular, to be in the other publicly available Watergate files, based on its nature and date.

2. Have you talked with Lacovara and others?

3. This is the kind of analysis that really would benefit from web links to original documents– not just your new finds, which maybe you want to keep secret for a while, but public documetns, the per curiam decisions you mention, etc. That would be useful in articles on the Web like the Atlantic one, and also for a web page for your book, to encourage fact-checking on it and reviews and replies and public discussion generally. Journalists, including web commentors like me, are lazy and will take all the help they can get as far as digging up information. And it will be useful for yourself, too, to have web links.

4. “But, he apparently suggested, the indictments should be kept under seal so as not to potentially influence New York jurors.”

If they were under seal, does that mean the defendants would not know about them till they were unsealed? Explain the importance of this more. I guess it is that if filed under seal, the defendants would not know at the time of indictment that Sirica could appoint himself the judge (and would predictably do so). They would breathe a sigh of relief as the date of his stepping down as chief judge passed, thinking they had only a random chance of getting him as the judge. So this would extend the period of the defense advantage in knowing who the judge would be.

“March 1, 1974: The comprehensive cover-up indictments were unsealed in Sirica’s courtroom at 11 a.m. The prosecution had met Sirica’s birthday-imposed deadline — albeit with less than three weeks to spare.”

I guess he couldn’t wait to unseal till after his birthday, or he would have lost his chance to appoint himself as the judge. So the sealing of the indictment was just for a few days— no great harm. But the principle is still bad.

5 “In sum, this is a judge giving legal advice to a prosecutor on matters that are certain to soon come before him for rulings — conduct that is indefensible as a matter of law.”

You put this too mildly. This is better:

“In sum, this is a judge giving secret advice on legal strategy to help a prosecutor win a case, after the judge has made sure that he himself will be appointed the judge to decide the case. That’s judicial impeachment material.

6. “This is why the WSPF reply brief, filed May 20, 1974, in response to the defendants’ appeal, did not directly respond to their requested evidentiary hearing in any manner whatsoever. The prosecutors could not represent to the appellate court that no such ex parte meetings had taken place or that they were ministerial in nature, so they chose to ignore the issue completely in their brief. This is highly questionable conduct for any officer of the court, who has an overarching responsibility not to deliberately mislead any judicial panel. Willful non-disclosure concerning a matter so squarely before the appellate court could be grounds for disbarment.”

You need to explain this more. It doesn’t sound so bad to remain silent. Does an officer of the court have a duty to disclose misconduct of which he is aware, if he is discussing the general subject? Did he have had a duty to admit that the meetings took place?

Explain how a hearing would have worked. Would it be just lawyers? Would each side have subpoena power to bring witnesses? (e.g., Jaworski’s appointment secretary, his appointment book) Would the lawyers be under oath and be asked whether any meetings took place? Would Sirica have to answer that question himself?

7. “If so, then – much like Nixon’s similarly intended use of his White House tapes – the precise accuracy of the record he kept gives everyone pause for concern about what really took place.”

Nixon had tapes— so they couldn’t be lies, though he could selectively erase. Jaworski’s memos are like a politician’s diary— they can lie about what took place, so we have to be skeptical about their truthfulness. I guess, though, that like Nixon being able to delete tapes on meetings he didn’t want to record for history, Jaworski could be silent in his memos about his own unlawful meetings.

8. Beef up your conclusions. It sounds as if here is what you think would have happened if the DC Circuit hadn’t been biased, or at least hadn’t decided that it was important to keep confidence in the judicial system despite a law-breaking judge, since the ultimate outcome for the defendants would be the same anyway:
(That’s irony: aren’t these the same appellate judges who favored Warren Court acquittals on technicalities?) (And don’t we know see that it wasn’t just one judge who was corrupt, but almost the entire DC Circuit— it’s not the crime, it’s the cover-up!)

A. Sirica would have stepped down as judge in the case, in disgrace, and perhaps been disbarred.
B. A new judge would have been randomly chosen.
C. The trials would have taken longer, being fairer to the defendants.
D. The defendants would have been convicted anyway.
E. The defendants would have received lighter sentences.
Would it have had implications for whether the proceedings were shaped so as to get President Nixon? Would teh Sirica-managed indictments have been voided, and new grand juries needed?

Or, if it had come to light later, would this be what happened?
F. All the verdicts would be voided.
G. Fresh indictments would have had to be brought (since Sirica oversaw that too), and new trials.
H. The defendants would have been reconvicted,but would have received lighter sentences.

COuld the defendants have brought a Section 1983 case for damages?

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