Them guilty beyond a reasonable doubt. Very high standard. It is not that they were blameless. Its not that they were innocent. But we say we would rather let 100 guilty go free than convict one innocent man. We are loading it to a high standard. The other thing that lawyers argue, which the public sometimes has trouble with, is procedure. If you need to get that evidence if you did not get that evidence into the courtroom properly, then it cant come in. If you did not share information exculpatory information properly with defense, those are which can violations equally invalidate a verdict. And i am happy to argue both. That is kind of what we are going to go through. One word from last week. Last week was the allure of the white house tapes. I went through a bunch of them with you. Perhaps too fast. What i find fascinating about this because i transcribe them. I worked word for word for hours in tracing what they were saying and the points they were trying to make. Trying to understand to get the transcript right. I give you that example of nixon telling John Mitchell to plead the fifth. If it will save it, save the plan. I said, that is not what he is saying. He is sending his best friend out to walk the plank. He is making him go in front of a grand jury without claim to executive privilege. He is trying in his own way to say, look, i dont care what you say when you go, but you have to go. He says, i dont care if they summon the others but he does mean John Mitchell. They can stonewall and plead the fifth, cover up. Save it for them. If properly understood, it would have been a very noble speech. Then it is followed by the paragraph that says, i would rather the truth come out because it will be worse by a leak. It would be better if everyone tells this truth. But it is totally misunderstood and missed transcribed to scribed to mistran suggest the opposite. The same thing about his going away speech. He calls his staff together, who have been on the long march and he says goodbye. His family is up there. At the time, i was amongst those that misunderstood the smoking gun. I thought he made his family come stand there with him. I thought it was terribly cruel. But it turns out they demanded to be there. They were there with him to the end. Then he tries to explain to the if you hate your enemies, they win. You just cannot do that. Everybody says, what a crazy thing to say. But this is his quaker upbringing. This is what his mother taught him. He really means it. He really means if you hate your enemies, if youre consumed by hatred, you lose. You should be able to rise above that. I do not think i hit this out of the park either. He keeps talking about alger hess. And his takedown of in the beginning of his career. There are at least 18 references on the tapes. What he means, people dont understand what he is saying. He is saying hess has perjured himself under oath. That is why he was in so much trouble. The statute had run on him being a commie. But where i nailed him was perjury. So i submit to you, if anybody had asked nixon, it shows up on the tapes. Should we go down and lie, trying to cover up this watergate breakin . He would have said, heck no. Then you have doubled your problems. You have the problem of offense and you have the problem of perjury. Why would you do that . People are not willing to give dick the benefit of the doubt. They think the references to mano combatano a between gladiators. That is enough about the tapes. We will go and we will talk about special prosecutors, and we will go back to our good friend, renata adler, who is a liberal journalist who is on the house impeachment staff, and then she went to law school and she wrote a bunch of stuff. This is her comment on the special prosecutors. True conservative said this from the first. Had always been a constitutional abomination. To begin with, impermissibly straddled the three branches of government. If nixon had not been in such dire straits he would have never permitted such an office in the person of archy cox. The press, however, of special loves special prosecutors. They can generate stories for each other. That something did not happen is not a story. That something does not matter is not a story. That an anecdote or accusation is unfounded is not a story. There is this further commonality of interests. Leaks, anonymous sources, rumor mongers, appear to offer stories and the good possibility for offers, pressures, threats, and rewards. The Journalists Exchange an attractive portrayal for a good story. There we are. The reporter in the prosecutor, the special prosecutor, not as often the genuine prosecutor, are in each others pocket. I have been trying very hard to quote from liberal people. It is not the bitter friends of Jeff Sheppard of geoff sheppard. It is liberals at the time or shortly thereafter who are complaining about how this was handled. The next one gets better. There is this guy, the legal commentator named richard harris, who wrote for the new york times. And in june, that is after the indictments, before nixons resignation and the coverup trial, so this is starting to roll. We know there is going to be a trial, but it has not occurred. He says, the only way to punish corruption in the Nixon Administration was to bring the watergate criminals to justice. This is being done, to an extent. But to restore Public Confidence in our democratic system fully, it was also essential that the prosecutions to be conducted fairly. That has not been done. In fact, many ilLegal Practices employed by the prosecutors to reestablish the primacy of the law in this nation appear at this stage to have perilously subverted it. Those guilty of crimes of the watergate affair were brought to justice did more lasting damage to the highest purpose of american law than did the crimes themselves. Harris, i like. I am quoting him further. Same article. The use of generally discredited and unenforced laws in order to get someone who is probably or certainly broken other laws, but cannot be successfully prosecuted for those crimes, the use of grand originallych were set up to protect the innocent asaids to the prosecution aides to the prosecution rather than accusatory bodies. The use of pleabargaining in which a prosecutor offers a defendant a lesser charge in exchange for a guilty plea or information about crimes committed by others. The use of partial or total immunity from prosecution in exchange for information. The use of selective prosecution, in which one person is tried for a crime, although others who are equally guilty of the same crime are ignored. The use of conspiracy charges when evidence of the crime that is believed to be committed is flimsy. The use of perjury charges for the same purpose. The use of criminal sanctions that can be applied against ordinary citizens, but not against government officials. And the uneven application of the law in general. We aregoes on, because going onto the next slide, to say, this is what they have been doing. This is his talk about public perceptions. Once a large majority finally became convinced that serious wrongdoings had been intentionally committed by some of the nations highest officials, probably including the president , public demand for punishing those who had caused it grew irresistibly. Pressed by this demand, the persuaded that there was an urgent need to meet it swiftly, the prosecutors with an astonishing disregard for fairness, fell back on all the means that could reasonably be justified by the end, including use of some of the same Legal Practices that had been employed by the Nixon Administration, and so roundly condemned by its critics. We are going to get to a slide that says, how come we did not know this stuff before . How come we are hearing it for the first time . This stuff was around, being said but got no coverage. The new yorker is a liberal publication. This is a prestigious guy dumping all over the prosecution, but no coverage. No further coverage. I have complained to you for 11 weeks that judge sirica met privately, secretly with prosecutors and people with interests adverse to Richard Nixon. I have him in the center of the bullseye and six guys around the side. We will talk about three of them so i have more time to go into the specific things, and we will start with the guy on the lower right corner at 4 00, clark mullenoff, whom do not know. He was a reporter for the Des Moines Register. He was a licensed attorney in the district the whole time. He was a confidant of the judge. He had known him for years. He was also ombudsman to president nixon. When nixon got elected, clark went to him and said, you know what you need is a whistleblower on your staff, on ombudsman to warn you if your staff is not doing something the right way, and i can think of a perfect candidate. I do not like you but i could keep you out of trouble if you hire me. Nixon goes for it and hires this guy, a viper to his breast. He wanted to report directly to nixon, but he ends up reporting to the Councils Office. John ehrlichman. And he has the title of special counsel because he is the lawyer. He stays for 10 months and digust. Isc because he did not have enough access to nixon. And he would say, i wanted to discuss my issues directly with the president. Ehrlichman and the others would say we have discussed it in this is the president s decision. And clark would say how do i know unless i heard it from the president . Maybe the president did not hear my point of view, so maybe his decision as relayed by you is wrong. And that went down really well. After 10 months, he leaves. But he leaves with the credibility of having worked on the Nixon White House staff for the previous 10 months, and he heads up the Washington Office registers moines and becomes the dean of the washingtonbased investigative reporters. This was before woodward and bernstein. They were a glint in someones mullenoff was big stuff. He has written a whole bunch of books, but two have to do with watergate. Heres a picture of clark and nixon in the oval office. Nixon has got his feet up on the desk. This is what blew up the tapes, when his feet clunked down on the desk. He supposedly is listening to clark. Clark appears to be lefthanded, i always look for that. I look for people who are lefthanded. These are two books. I will quote from the later book. He wrote a book about investigative reporting because he was the expert. The expert muckraker or the expert village scold. He never met clarks standard for propriety. The white house game plan was apparent to me. There would be the addition of minor figures indicted to give the impression of an investigation. It would be part of an obstruction of justice and unless they included mcgruder, haldeman, magruder, and stans. He had this interview and as a result of the interview, that occurs september 14, the day the burglary indictments come down. This is early on. Because of the stans interview, i knew Richard Nixon was involved in planning and directing a coverup being executed by john dean in the white house. He is saying in his book that the interview was embargoed, so he could not printed or tell print it or tell anybody. But he knew from that interview that there is a coverup and nixon is at the heart of it. John dean is running it. How can he tell . One of his best friends is judge sirica and judge sirica has nixon is at the heart of it. Juse trial judge for the breakin trial. He even says in his book, his later book he is going to quote, that he invited sirica to have lunch in the white house mess. They were close and it impressed the daylights out of sirica because clark was an insider in the Nixon White House. So he goes to meet with the judge. This is the second book. It comes out first. I hesitated to speak of my conviction that the judge would be aggressive and trustworthy as a judge. This is despite long conversations with him in the fall of 1972 in which we talked of the importance of honest government and i expressed a belief in the eventual triumph of right over wrong. We did not speak of the merits of the case. But i was sure that he was in need of assurance that if he did precisely what he believed to be right, at least one individual were to remember it, and record it in historic perspective. He is sitting there lobbying in secret. I tell you that i know what he was doing. Judge, you are the only person that stands between this coverup being successful and the truth coming out. Youve got to use the trial in the pursuit of truth. Thats the purpose here. You do that and i will write columns complementing you on what you are doing because im so influential. Long conversations with him in the fall of 1972. I dont care how good of a friend you are with a judge. You dont sit down with a judge and tell him how you think he should conduct a trial. You just dont do that. This comes out and no one seems to care because sirica was meeting with everybody. So we go back. You saw the slide a moment ago. You did not see number seven down there at the bottom. It turns out, fired from register for improper conduct, 1977. Remember when we were talking about triggering irs audits . John dean had 17 people. He is going to go bag them. When that came out, it turned out another thing that was happening was the white house was asking to see irs returns on particular individuals. And it turned out they were being requested by the Councils Office. And it turned out that the individual in the Councils Office who was asking to see these irs returns, these tax returns, your tax returns, trumps tax returns was clark mollenhoff. There was a story about it. It was three years later. Who cares . It turns out the president of the Des Moines Register said that is strange. And he did some checking he and he found out which returns were requested. He found out they were returns by people clark did not like. He had written articles about or the des moines Washington Bureau was writing articles about. You have this village scold, this great hero of investigative reporting, when he was in power, immediate abuse. And they fired him for it. They did not make a big public thing about it. I uncovered this because the guy wrote a book about being the head of the Des Moines Register. He had this line in here that said he fired a pulitzer prizewinning reporter. I only knew of one. I sent him an email, and he says you are writing a book. I said, it is not really about clark. It is about this other stuff. But this sounds really intriguing. He sends me an email and describes the entire thing. He said, this is what i remember. I came and chatted with him. He pulled all of these irs reports without authority to further personal grievances. Just illegal as hell. Ok, we go on. This is from siricas own book. And he describes meeting with earl silbert. Earl silbert is the first prosecutor. Earl has 10 years of prosecution experience. Approaching 70. Earl is hardly green behind the ears. He is the Principal Assistant u. S. Attorney in the district of columbia. I like earl. He is a good lawyer. I wanted to share one of my experiences and give them guidance through what was obviously a tough situation. A few days before the trial started, this is the burglary trial. He is in my chambers discussing Something Else, and i said you have a great opportunity in this case if you go down the middle. Let the chips fall where they may. Do not let anybody put pressure on you. Before he left my office, i gave him a bound copy of the hearings conducted back in 1944 the select committee into federal trade communication. I wanted the young prosecutor to know just how white washers were engineered. I wanted him to know that i had direct experience with coverups while serving as chief counsel to that committee. This is the judge told the prosecutor how to put on the case. It does not say it, this is the judges version. It says earl, go after the truth. Dont let them confine it to the burglary. Use the trial to figure out who at the white house was involved. That is what i want you to do. That is going right down the middle. In the library of congress under judge sirica, there are six earlier versions of the book. There was no ghost writer, he really wrote the book himself. And you can trace the significance. It starts getting reduced because his editors are saying we do not need to know that. But this was huge. Sirica was counsel to this committee and they were going to go from public hearings to executive session, and sirica if said, thats a coverup. If you do that, i will have to leave. He did that and he resigned. He was retained for the committee. He was in private practice. But he felt this was among one of the most significant things in his life, that he wanted the truth to come out at the hearings. And he wants the truth to come out at the burglary trial. What makes the burglary trial so unique, they were caught redhanded. Nobody really cared why they were there. That was not the issue of the trial. I read this to you, earls memo to the head of the Criminal Division the day they came down with the indictments was, weve traced as far as we can trace. We can prove these people. When we are through with the trial and they are looking at a long prison sentence, we will see if their story changes. But for now, we have these guys cold. That is who we are taking to trial. You have sirica saying i have a higher purpose. It corrupts the trial. Now we go to the next set of prosecutors. We will talk about three key meetings. December 14, february 11, and march 1. The reason we learn about these later is because jaworski took his files with him when he left. He dictated memos. We will see the memos. There is that tantalizing woodward interview. I have shown it to you two or three times where he interviews jaworski after he resigns and jaworski says there were lots of between memeetings and another guy, and nobody knows about him. Woodward doesnt followup on either one. We did not learn about these secret meetings until they became available to me. We will start with the first one. This is a letter. I know you cant read it, but that is ok. This is a letter to judge sirica. In the upper lefthand corner, not quite, right below the handwriting it says phil. This means phil drafted a letter and his secretary typed it. It is not a jaworski letter. We are not even sure he signed it because it is dated december 27, and he is in texas. You read the first line. It is in bigger print. When i met with you and the judge at your request on friday, top watergate prosecutors meeting with the two judges who would do the watergate trial. What is going on . They can say anything they want. This is not a casual hallway conversation. This is a formal sit down. Jaworski has been special prosecutor for a month. Sirica calls him down. Three days before this meeting, the meeting is december 14, sirica turned over to the prosecutors the transcript and tape of march 21. That is the cancer in the presidency meeting. The books by the prosecutors say, wow, nixon was tempted to pay blackmail. Dean goes in, we are being blackmailed. Nixon says what the hell, 1 million . Why not . It is a dramatic moment in everybodys book. You cannot tell me that is not why he called them down. He wanted to know their reaction. There is no legal reason for the meeting under any circumstance but the timing is suspect. This letter appears to be a cya letter. It is written two weeks later. Nearest i can tell, jaworski and st. Clair had talked. The morning of this letter. I think jaworski became concerned that the knowledge of this meeting would come out. I think this is a fake purpose. The letter does not make any sense. It says we will predict what cases are coming down the line. But you cant tell from the description what the cases are, except for one statement. I believe, by the end of january or the beginning of february, we may have an indictment in a case that could take three months. That is the coverup trial. He is saying we will have the indictment for you at the end of january and beginning of february. This is terribly important. Because sirica will turn 70 on march 19. And he will have to step down as chief judge. He cant appoint himself to preside over the trial. He has made it very clear he wants to appoint himself. He did the break in trial, why not do the second one . He has been a man of the year. Lets go for a twofer. The letter says worry not, we will get that to you on january, early february. Time passes. So we go to the next one. I gave you a copy of this, because i think this is the memo ofost important everything that i have. I will read it but you can look at it later. It is dated february 12. He is talking about the meeting the day before, february 11. I have it in front of me. On monday, i met with judge sirica. Several matters were convened as we sat alone in the jury room. He again indicated that provided that the indictments came down in time and he would take the case. He stated an urge to do so by any number of judges. He expressed his opinion that these indictments should be returned as soon as possible. He also said he was going to henceforth take all guilty pleas himself. That is because colson pled guilty in the plumbers case on the condition that he be sentenced by judge giselle and not judge sirica. Because judge giselle was due in the plumbers case. He said, no more. I got you, you have to come to me. He rejected other plea deals. He rejected the howard hunt plea deal. He rejected the cubans plea deal. You have to reject everything because he wants to go to trial. We talk about this case and he expressed the thought that perhaps a sealed indictment might be of some help. They are seating the jury in new york city. A case called the invesco case, John Mitchell and maury stans have been indicted for seeking to influence an investigation for an exchange of a few hundred thousand dollars contribution. The jury has not been seated. I know i said this to you before, but we will cover it again. If the indictments come down in washington, d. C. Come up before the jury is sequestered in new york, mitchells lawyers will say they have poisoned the jury so you cannot try me in new york. We have got to wait until the jury is sequestered. So sirica is saying, why do you not issue a sealed indictment . I can name myself and we will not place him up there. Then he talks about something in regards to his son. Theyre at the bottom, he says he has been invited to speak by the texas bar association. Jaworski is the past president of the texas bar association, so if you were some yahoo in texas and you wanted the famous judge sirica to talk, who would you ask to ask him . You would ask jaworski. I think this is very carefully stated to avoid the knowledge or understanding that it was jaworski who arranged for the invitation. And sirica loves it because he is famous. He gets to go. And the whole second page starts talking about the roadmap. We talked about this. Phil locke of our phil says if we cannot indict nixon, we can at least send up the grand jury information and give it to the house. We have to do it in secret. It has never been done before, but we know we can do it because the fifth amendment talks about a presentment or indictment. But if we spring this on sirica, he is likely to say you cannot do it. So let us meet with him in so lets go meet with him in advance and inform him of his rights. Heres the paragraph describing that discussion. And phil is right, sirica says we cannot do it. Grand jury material stays with the grand jury and the house has its own job. Then jaworski is convincing him , no, you have the power. You are chief judge. This is his own writeup about what he is doing. But in the end he prevails, and the last two sentences, he counters by stating he should be informed of the discretionhe of the discretion he could exercise and further request that there is a memo that covers the subject. I agreed that this would be done. The special prosecutor in secret sidles up to the judge and says this is going to come before you for a ruling, but we want to get our side in first because we want to present you with the report and ask you to send it to the hill. If we get into an argument about whether the grand jury can issue a report and the white house gets involved, we may never see this. We may never have a report because this has never been done before. So lets get our licks in early, and i do not have the stuff, but in the notes that are taken , it notes that sirica has approved the format. It had actually gone further. There are further discussions and it is worked out in advance. We go to the third memo, one dated march 1. Confidential file. And we are breaking halfway in the memo. On the morning of march 1, i met with judge sirica in 10 30. At the judge wants a dramatic newsworthy event so he wants the grand jury to common in person , in person to certify this is the coverup indictment and where the roadmap goes. They go in in secret and rehearse im going to say this, and you are going to say that. This is jaworski. I told sirica that i would ask the court to specially assigned the case. Rotation sot out of judge sirica could assign himself. If jaworski did not say it, it would be assigned by random. Jaworski says this get special treatment. That very afternoon, sirica appoints himself. They rehearse the government briefcase. What you have got is documented proof of totally improper meetings, secret meetings between the prosecutors and the judge. You cant then say, this judge is fair and impartial. This judge is so dirty and so conflicted he ought to be removed from the bench. The standards, the canons of judicial ethics, are so clear. You do not meet with one side without the other side being present. But this was routine. Sirica had an open door policy. We will switch now and talk about Something Else that is not an exparte meeting, but is Proof Positive of politicized indictments. What you want when the prosecutor is really bearing down on one side, you pray for an example from the other side in the same timeframe. The prosecutor did not do anything, and that is what i have on the next slide. This is the special prosecutors treatment of chuck colson versus bill bittman. Chuck colson was one of nixons strongest advocates. He said, i would run over my grandmother if it would get nixon reelected. He is a notorious nixon advocate. But he had only minor involvement coverup. Only minor involvement in the coverup. Bill bittman, who was a democrat, was counsel to howard hunt. He got the money, what we will call the hush money. There are arguments over what it was. But he presented the demands and got the money. He spread the money among the other lawyers. And he withheld evidence of blackmail. Hunt wrote a memo saying that if you guys do not pay up i will start revealing stuff. Then he got a meeting instead so the memo was never put forward. But hunt sat on the memo during the investigations. So hunt is dirty as hell. But hunt is a democratic icon. He did two things that distinguished himself in the previous administration. He secured the other conviction of jimmy hoffa. This is big stuff. And of the other thing he did and the other thing he did was he prosecuted the bobby baker case. He was secretary of the senate when Lyndon Johnson was majority leader. Lyndon was his boss. Robert kennedy did not like lyndon as Vice President and had triggered an investigation into bobby baker. That is why the department of justice was covering down on bobby baker, which would splash yndon, and his brother could take a new vp. But jaclyn had gotten shot, and had gotten shot, and now lyndon is president and Robert Kennedy is no longer attorney general. And they still have to prosecute bobby baker, but bill bittman does it with such skill that Lyndon Johnsons name never comes up. That is talent, because johnson was his boss. This whole time he was taking bribes and giving orders, ready dirty as can be. Leon jaworski is a johnson protege. He does not want bittman to be splashed. Bittman is one of his favorite guys. There is an indictment meeting, this is the third bullet. On january 30 first, 1974, there are two people taking notes, there is the recorder taking the notes who is going to be indicted, and then there is the this is the third bullet. Set that they are going to use to write the report. Up comes colson. There are others, but the task force, the Watergate Task force, comes in, does their presentation. They are lying attorneys, five or six of them, and then the staff attorneys review and decide whether they are going to agree with that indictment. So, they ask rick, who is on the cnn panel apparently last night, he was the deputy head of the Watergate Task force. They ask what are the chances for conviction . He says 5050. He is not that involved. The rules for department of justice in bringing in an indictment require the prosecutors have a high degree of confidence that a jury knowing everything they know would convict. If you are flipping a coin, it is 5050. You do not have a high degree of confidence one way or the other. You cannot lawyer around this. So, this is discussed. Jaworski says, and it is in the notes, i am familiar with the facts. I have met with colson and his lawyer and i am willing to sign the indictment because it will never come to trial. Colson is so scared that he will work out a plea deal. We dont really have to prove the case in the first place. The other set of notes, this is the other set. He has jaworski saying, i would like to nail colson. Is a flamboyant nixon supporter. Why not shaft him . Weve got the right. We are prosecutors. Then up comes bill bittman, and bill is dirty as a person could be. There are 22 boxes of investigatory information on bittman, unanimous recommendation of the task force. Jaworski will not do it. He says he is being a good defense lawyer, and the poor person presenting the case is just getting her head stuffed in. Jaworski says that she will never make a good defense lawyer. This is what defense lawyers do. He has just done the opposite colson. He has just done the opposite to colson. They do not indict bittman, and the next day, phil lacovara, a counsel, a man with some integrity, writes a two page memo and says we cannot do this. We cannot do this. The case at best is 5050, those are not our requirements. We told colson and his people, we announced publicly, we were adhering to the doj standard. It takes him a while to say it, but every person in that room did not want to indict colson except for you. I happen to have the memo. You cant read it on the screen, but it is short and sweet. It ends, i have discussed this memo with peter. He was taking the notes. He was present at the meeting and he asked that i mention that he concurs. Henry ruth, his deputy, has also recommended that, for similar reasons, colson should not be indicted. Everybody in the room except jaworski. So they had a second meeting. I do not have the notes from the second meeting. But james notes in all caps say collect memo. They did not want this memo floating around. This is outrageous. They got every copy back except the one jaworski took with him when he left office. There it is. Blackandwhite, incredible difference between colson the republican and bill bittman the democrat. We are going to do Something Else with colson because this just came out and i am outraged over this. There is a commentator on msnbc, a lawyer named nick ackerman, who was a young lawyer in the watergate case. Maybe you have seen it. I do not watch msnbc. He graduated from harvard in 1972, and he joins the prosecutors staff. He has done something for a year, but he is not a prosecutor. He was just a kid. I was just a kid. We were all kids, lots of us were kids. And he spent two years, his entire time on the special prosecutors staff, investigating and trying to prosecute chuck colson for the may 3 incident. Hoover died, were not supposed to read this quite yet, it came up too soon. J. Edgar hoover dies, he lies in state in the capitol. And on that day, there was going to be an antivietnam war demonstration, because it was hoover. And the republicans were gathering a counter demonstration. And they met and there was a clash, and the Police Arrested trying tons who were save the American Flag from the antiwar people. So what they decide is maybe colson is behind this and we can get colson on this. They assign this young kid, nick ackerman, do it. To do it. It does not quite work out, he spends two years working on it. And he comes up with nothing. So what does he do . Page memoan 18 documenting how hard he tried. As with other stuff that pops out, the purpose of the memo was not to document the prosecutorial abuse, the purpose was to say look how hard i tried. I did not get famous. My name is not in the paper. But i tried. I did not come across this memo. He appeared on nbc, the 45th anniversary of something last year, discussing this memo. If the memo had come from the national archives, a bunch of names would be redacted because they are still alive. And nobody got indicted. There is not a single redaction in this version because it is nicks copy that he leaked to talk about how great he was. You read it and it is the scariest document that i have ever come across. He says an extensive investigation was conducted in by this office. The initial decision was made in early july by phil, who were working on the plumbers task force. They were looking for stuff to do. They wanted to back colson. The decision to investigate was based primarily on the alleged involvement of chuck colson. I am skipping a whole bunch of stuff. It subsequently developed that colson became the prime target. This is the second paragraph. As will be explained in the course of this report, the evidence developed by this investigation would not a sufficient to indict colson for crimes related to the assault. What have been sufficient to indict him of perjury if he had denied knowledge of this incident under oath in the grand jury. If you study this like i do, this is reminiscent of george framptons leap of faith on the in the prosecutorial memo of Richard Nixon. All the grand jury would have to fact,to assume one little that nixon had ordered the payoff be made on hunts black mail, and then they could have found him guilty of participating in the cover up. This says the exact same thing. Do not have enough evidence to indict him, but if he were to lie in front of a grand jury, we could indict him for perjury. Well, no kidding. If you were to lie in front of the grand jury about the weather outside, we could indict you for perjury. This is a nonsensical statement typical of 1972 graduates of Harvard Law School. Because i graduated in 1969, and the law school went down from there. [laughter] 18 pages, and then it starts he starts describing how hard they tried. They started interviewing the demonstrators, then the counter demonstrators, then the d. C. The people at the Republican National committee, then the people on the white house staff, trying to get to colson, unrelenting search for colson. They concocted a hypothesis. The i have some time. I am going to read it. This is their hypothesis. Beginning in september, the team became more structured and we developed a working hypothesis, the assault on the counter demonstration were both instigated by colson for the purpose of disgracing daniel ellsberg. This hypothesis was formulated from two fact. First, colsons memorandum on ellsberg says we have to do something about him, and this particular demonstration brought together two very explosive elements, the antiwar and the patriots, so you might have assumed that there would be trouble. On the basis of this hypothesis it was decided to interview members of colsons staff, Reelection Committee employees, counter demonstrators whose knowledge might be important, and the employees including top officials, their assistance, assistants, their secretaries, participants in the counter demonstration. We got people from the d. C. Police, the fbi had observers. We interviewed all of them. We started to focus on a couple of people from the Republican National committee. And karl rove. Karl was a kid at the time in charge of students for nixon. So his name is misspelled. But his name pops up every once in a while. He is lucky he escapes. In september, karl rove, an employee of the rnc and one of the counter demonstrators, revealed that the editor of monday had led the counter demonstrations that john lofton had led with a bullhorn. Fancy that. We went and put him under oath and put him in front of a grand jury to find out what is going on. And then we started focusing on two members of colsons staff. Bill ratigan and dick howard. What we got ratigan on was that we decided he had actually perjured himself, but it was a little bit hard to prosecute. But we leaned hard on him because we wanted him to flip and say that colson was responsible for not planning the counter demonstration, but the assault that followed. We did the same thing with dick howard. We told him that you are going to indict him. We told him we were going to indict him. Ratigans attorney was told we were contemplating indicting, although no decision had been reached as to whether a viable case could be brought. Ackerman and horowitz decided that the threat of prosecution might be enough leverage to bring ratigan around as a government witness, and they go after dick howard. I am almost through. At approximately the same period of time, colson began negotiating for a plea deal in the fielding case. This was struck on may 1. Colsons attorney commented that we were putting pressure on deck howard and that colson was not going to let his subordinates take the rap for him in the way others in the white house staff had done. Just before the deal was finalized, they asked if howard would still be indicted. Howard was not indicted for perjury, simply because the evidence was not substantive enough to convict with respect for a possible 610 violations. These are political pamphlets without naming an author. Even though these may have constituted violations, we basically lost all interest in howard after colson pled. They are hammering his staff to get them to flip on colson because they want colson. We started with attorney general Robert Jacksons admonition, you cannot go after people, you have to go after crimes. This is an 18 page document that is the opposite. This is the last paragraph. Although it is quite clear that colson lied when he testified to the grand jury, and that immunity was specifically excluded, we could have won. The problem with the perjury prosecution are two fold, there is no proof of colsons motive to lie, although it can be reasonably conjectured that colson lied to protect dick howard from indictment and Richard Nixon from impeachment. There is no way to prove it. Secondly, there is no way to link colson to the assault, which is modeled which is muddled by his efforts to organize a counter demonstration. This melding of the counter demonstration and assault have been a problem throughout the investigation in charging anybody with a crime. Two years spent on this and came up empty. But he still practices law, and in his bio on his law firm, he appears regularly on msnbc concerning topical national fbis, including the Ongoing Investigation into russian tampering. It goes back to his original work. Conducted grand jury investigations into misuse of federal agencies. Could have fooled me. This is all he did. There is no federal agency involved. And other allegations of criminal conduct related to the breakin at the dnc. This has nothing to do with the breakin. This has everything to do with chuck colson. Examined all of the principles in the watergate scandal before the various watergate grand juries. A small exaggeration. This is a kid, one year out of Harvard Law School devoting two years to trying get the goods on chuck colson on some marginal issue. But you read his write up, he was right there. He was right there in the middle of it. Hoover lies in state, and he is buried at the presbyterian church, big presbyterian church, in northwest. And nixon is going to speak, so i got to clear this speech for substance because i am the law and order guy. No small stuff. Everything he says has got to be a checkmark that this was checked. What he was going to say is im going to ask congress to name the fbi building, then under construction, the j. Edgar hoover building. It is weak, but it is something to say. I knew from prior activity that the president of the United States can name or rename any Federal Building without exception. So i conveyed this to the speechwriter and said, you can just announce that he is naming it. He is the president , he has the authority. Because we always want to show you that geoff was there, i get a letter. I get a letter yet again from the president. I only have two. Dear geoff, you did a splendid job on the matter of the renaming of the fbi building and i wanted to tell you how much i appreciate your efforts in trying to honor esther hoover. Many thanks. In trying to honor mr. Hoover. Many thanks. Sincerely, the president. We go from this to the investigation, the prosecutors announced at their First Press Conference they would investigate every allegation made against the Nixon Administration. Lawyers, 100 people, all over the fbi and irs. These are quotes from their final report, which they put out in october of 1975. This is the year after nixon has resigned, and they go through it. This is a victory lap. They talk about how an nixon has resigned and they have convicted imprisoned 2000 imprisoned two dozen of my friends. Look at what else they tried to do and failed. These are fully investigated, but found no grounds for prosecution and i am following their page numbers. The lawyers roles. Any campaign or dirty tricks of course they didnt find any bank democrats. Of course they didnt find any by democrats. The itt payoffs on the antitrust suit. The wiretap investigations, the 17 nsc wiretaps. The irs enemy audits, we talk ed about that. They found no basis for prosecution. The mistreatment of demonstrators. The 30 pay to play investigations of agency decisions, where they would say these people gave money because they wanted a particular regulatory decision. We did not prove one. We could not find one. Sales of ambassadorships. The investigation into the loan to nixons brother, and the National Hispanic finance committee investigation, of which i know nothing. But there is a whole list of we tried. We gave it a real go. We couldnt find anything in these hearings. But if we had 100 people we could investigate temple and we would come up with more stuff than they came up with. Comment maury stans after he has been cleared of all of the finance investigations. They investigated several hundred such accusations through thousands of interviews and subpoenas through thousands of document using his own organization, computerized records from the urban committee and information for members of information from members of congress. After two years he announced in his final report that he could not find evidence adequate to take to court a single instance within this entire range of alleged corrupt practices. That was the surviving sum and substance of the alleged financial corruption of the 1972 nixon campaign. Not a single proven case of corrupt action. No favors granted, no cases fixed, no ambassadorships sold. No ill legal contributions from foreigners, no overseas laundries, no illegal solicitations. No list of companies in trouble with the government. No extortion, no coercion, no intentional circumvention of the law in a single instance. That is precisely what the department of justice and the special prosecutor and the courts found. To have his book published privately because nobody wanted to hear that. He is the one who so famously said, where do i go to get my reputation back . Every one of these things was featured in the newspapers to certify it is true. Then, i do not have time to go into this, cox was so worried that sirica was so proprosecution that they would win at the trial and lose on the appeal that he had a secret meeting with the chief judge of the Appellate Court and told him that he should stack the deck on the appeals, so that the liberal judges could be sure sirica was never overturned. There are 12 criminal appeals from judge siricas trial. Everyone is heard by the full court. From the outset. Remember the words, it is on the exam. At the same time, there are four criminal appeals from judge gesell. He is liberal, but competent. He did the plumbers trial, he did the perjury trial. None of his appeals are heard out of rotation. None of his appeals are heard out of rotation. Its the traditional three judge panel, of the corruption, the prosecutorial and judicial abuse even reached the d. C. Circuit court. So we say, why havent we heard . Why is he telling us this . If youre so smart, why arent you rich . One, there was liberal commentary. It just got no commentary. The aclu filed a makers brief, saying you really should the defendants asked for hearing on possible meetings. You owe them that. And, of course, the d. C. Circuit didnt want to have anything to do with that. But they prepared questions for john dean. The republicans wouldnt touch them. But buzhardt prepared tapes. They released the tapes. Not a single article. The stuff was there. It just didnt get covered. Why . There was a monolithic eastern establishment press there. There were only three networks, nbc, cbs, and abc, all headquartered within a six block area in manhattan. They all thought the same. The two dominant newspapers were the new york times. You probably read it. I dont. And the washington post, which wasnt that big, but everybody in washington reads the posts. It structures the debate for that day. You may not get it in utah but my heavens its influential in washington, d. C. And there were two weekly news magazines. They were supposed to provide the indepth analysis, and they did. All antinixon. So, nixons isolation and his lame duck status meant essentially he had no defenders outside of the white house compound itself. The urban Committee Republicans chose not to fight. And howard baker wanted to run for president , so he wasnt going to stand in the way. Why get in front of a Freight Train . If you stood up to defend nixon, the press would be all over you. You know, where do your kids go to school . What did your wife order for breakfast . There was no place to hide so all the defenders just took a step back. There was no fox news. No talk radio, no podcast, no alternate media at all. And phil gives an interview, i mentioned this before, after nixons gone, and hes asked to speculate on why nixon and nobody else, he said, unlike other president s, nixon didnt have the level of popularity to fall back on when he got in trouble. So when he needed friends, friends werent available. And then you get the fact that these two key sets of files were improperly removed. He takes his back to texas and jim takes his back to harvard and this is where the secrets were. Now, woodward could have known, i showed you his notes. Its phenomenal, its embarrassing. This could have all come out a long time ago when i was a young man. Ok, this is bob bourque. Bob comes in on the saturday night massacre, okay . He writes a book called saving justice, watergate, the saturday night massacre and other adventures of a solicitor general. It is published in 2013. It is published posthumously right after he died and he talked about what it was like to be solicitor general and what it was like to survive the saturday night massacre. When i was reading it yesterday, i mean i read it before, i wanted to read you the whole book because his take is so different from what you were told. Heres what he says, i argued the statutory case this is on impoundment, the issue of impoundment and got my hat handed to me. The court was very unfriendly to inpound. Because Richard Nixon was president. As i slowly realized the unspoken rule was that nixon was not going to win any cases. Thats not to say the office of the presidency didnt win any cases, it certainly did, but the closer any case got to Richard Nixon the person the quicker, oh, there was a typo, quicker it was rejected. Ok . This is the solicitor general saying these courts are all as biased as they can be against nixon, too, and then he goes on to talk about what it was like to be acting attorney general. Remember, i was the guy that went over to see him after the saturday night massacre to ask for some legal help and he really wasnt very friendly. He was not outgoing in meeting me halfway. Ok, throughout the matter, i was surprised and disappointed at the failure of so many lawyers to act like lawyers. Prone to complementing each other as specialists in process. Many lawyers demonstrated during the week after the massacre and throughout the watergate affair how easy it is to let process take a back seat to preferred political results. For those who found their liberal identity before embarking on a career as a lawyer, they regarded nixon ipso facto outside the law. So long as lawyers persist in castigating nixon, so long would they forfeit the respect due a learned profession. I mean, hes just saying the same thing that morrise stans was saying, that i was saying, that even the bar, the lawyers were saying nixon wont win. It wont happen. Hes an outsider. I did two books. The first book came out in 2008. It talks about the politics behind the watergate affair. I have a second book that came out in 2015 about all the memos that came out, all the specific allegations of impropriety. And then we get to a quick summation, the watergate convictions are accompanied by an astonishing lack of due process. And down, the next bold part, nixon was driven from office by allegations of propriety, we developed that in earlier weeks. This is the last slide. Whats going on today . Well, the files resurfaced that published two books and down at number four, theres pending legal challenges. Theres this petition that i have, in front of the d. C. Court, to unseal the transcripts of what the prosecutors told the grand jurors to get them to name nixon, an indicted coconspirator, and to move the road map up to the hill. And theres a fight over whether grand jury secrecy rules prevent that and the department of justice erroneously thinks they do. Just last week, there was a decision at the circuit that upheld grand jury secrecy. And they said, well, the nixon decision to transfer that stuff to the hill, that was in error. Oh, well thank you. And while they didnt say it, the release of nixons grand jury testimony in 2011, that had to be in error, too. Now, this is going to keep being appealed because a couple of other circuits have said, no, a judge can release them in the second circuit. So, it may end up in front of the supreme court. I want to get back to the judge hearing my petition, current chief judge, say wait, im not talking about disclosing witness testimony. I understand that. Im talking about disclosing prosecutorial representations, because i think theyll show prosecutorial abuse. So, were not talking about witnesses, im talking about abuse. You should do it my way. Well see. This has been fun. I took up 10 minutes of your time. We now switch and we go to q a. Remember, we have a camera, so kim. Going back to the beginning, the breakin. A burglary is not a federal crime. Its a state crime. What was the trigger at that point that moved it from essentially state jurisdiction to federal jurisdiction . Well, the people who were involved. James mccord was an employee of the Reelection Committee and it soon developed so that liddi was, too, and hunt. But what you say is true. There is no federal burglary statute. Los angeles county indicted them for burglary, and that would normally be where the case was, but this case had political ramifications, and from the outset, there was a fullcourt press by the department of justice, not surprisingly, to find out what the heck had been going on. And it just got worse and worse. But in the beginning, it was the career prosecutors. And that would have been ok. Its when the cover up collapsed it should have collapsed. And we brought in highly partisan, specially recruited people, to take the investigation in an entirely new direction. They postponed the indictments for 10 months, and they launched investigations into every aspect of the nixon presidency. Thats where it went off the rails. But its our fault, our in the bigger sense, because john dean was running this cover up. It just made it much, much worse. Can you repeat the question . Yeah, the question was, how come there was a federal prosecution when there was no federal burglary statute . Burglary, interestingly, burglary is a local crime. They always let the locals to prosecute those sorts of things. Maam . Is a special prosecutor per se a function of being initiated during the Nixon Administration, why then is it not possible, or is it possible, to have that eradicated as allowable because it happened once . How did the special prosecutor come about . Why cant we prevent it in the future . Theyre so abusive. There hadnt been a special prosecutor for 50 years. Since teapot dome. But, as a condition of confirming elliot richardson, the Senate Judiciary demanded the appointment. Now, nixon had offered, when he announced richardson as his nominee, that he could appoint a special supervising prosecutor. He was picturing one guy to make the decisions on what the department of justice recommended and to give richardson some help, because there were going to be republicans going to jail. Richardson didnt want to be attorney general and wanted to run for president , happily abandoned all responsibility, and the original budget for the special prosecutor was a hundred people. The powers that be thought it was so much fun to have special prosecutors that wanted the watergate reform as the ethics in Government Act that set up the independent prosecutor, which, adler was talking about, absolute aberration, that mixes up the judiciary with the congress with the executive. And it was in effect for 25 years. That was how they prosecuted the iran contra affair against reagan. And it was jolly fun until it was used against democrats with bill clinton, and then they decided this isnt fun at all. Lets let the thing lapse. So what it lapsed to was the ability within the department of justice to appoint a prosecutor who would report to the deputy or to the attorney general, so you can have a degree of independence, but still under the overall rubric and rules and supervision of the attorney general. That was Patrick Fitzgerald going against bush ii. That was this prosecution. Jeff sessions recused himself, so it went down to rosenstein. I dont think we could come up with a better answer than that. There are going to be situations where you need a special prosecutor. Were talking about this next week. Im not sure it was one of them because you get such abuse. I mean, if power corrupts, and the ability to prosecute, to ruin peoples lives, its nothing short of incredible, and i read you that quote from judge silverman, who was Deputy Attorney general as watergate wound down, who said one of the difficulties is the special prosecutor is evaluated based on who he bags, and hes got to justify his budget, so he just keeps looking and keeps looking. Well talk about it next week, but im far over. When did mueller conclude there was no russian collusion . Was it a year into it, was it two . Did he just think of it the day before he offered his report . Thats pretty key if you were the object of his investigations. You were scratching your head. Sir . Id like to learn more about your petition. What level of court is it at . The district court, because i filed it back in 2011. A little slow. When the other side filed to release Richard Nixons. And i said, ok, turn about is fair play. I would like to see some on our side come out. And it kind of sits because i dont know what im doing. These other three lawyers who, two months ago in enlightened it, they said this is a great precedent for shafting trump. Well take the grand jury stuff. Grand jury has got to know stuff about trump. Well use the nixon precedent to move it up to the house judiciary committee, and thats sitting there also. Well see where it goes. Has anybody answered it yet . Well, the judge originally said your request is too broad, ill give you the right to narrow it. I narrowed it and everybody went to sleep. I was doing my other book, so i didnt do anything. When these new guys filed, i sent a note down saying ive been here for 5 years, and the judge ruled initially. The new chief judge ruled that whatever portions of the road map had become public other ways, she wanted to see, and she wanted to be informed of who would be hurt if she revealed the rest of it, and then there is this case in the d. C. Circuit that was just decided last week, she said were going to hold everything in abeyance pending the resolution of the kiefer case. Is there a difference between propriety and impropriety with the prosecutor meeting with the judge in his role . Are we seeing the grand jury, are we seeing actual trial on the merits . Well, the question is, could you defend suricas exparte meetings because he was the supervising judge of the grand juries at the time, there wasnt lawyers on the other side . Could you say that was his job as judge . I would hate to take that on appeal because the rule is we have to avoid even the appearance of impropriety. I dont mind if then, as i think today, the chief judge supervises the grand juries in washington, d. C. But then that chief judge cant sit at trial. Thats the problem. He was in one role as judge watching the grand jury. Since maybe working stuff out, but this was stuff that was going to come before him for ruling. I mean, thats way, way over the line. And they knew who the lawyers were on the other side. This wasnt, gee, we didnt know who they were going to indict. You could say those words. He was supervising. As the judge himself said on the appeal, he said everything i did as a federal judge so you cannot question me. That would be hard to take to an objective court on appeal. I would not want to argue that side. We still have 10 minutes. Sir . Constitution sets up impeachment as sort of a criminal and a criminal procedure. I mean, its got elements of both in it. Do you think that what nixon and the breakin evolved as evidence of misbehavior rose to the level of impeachment, had the impeachment process moved forward, and would it still have been impeachable if the investigation had not taken place by the special counsel and sirica . If he hadnt cheated could they still have impeached nixon . And convicted . Impeached and then convicted in the senate. I have to take issue with your basic assumption. Theres no criminal aspect of impeachment. Theres a statement that in order to impeach, we must find you guilty of high crimes and misdemeanors, but its not defined, and those can be anything the house says they are. The house cannot imprison if they impeached Richard Nixon, which they were gonna. If they impeached nixon, they couldnt have imprisoned him, if he had been convicted by the senate they could not have imprisoned him. Thats why the prosecutors wanted to indict him after he resigned. You know, and the ford pardon intervened and then, because they were in full galloping regalia, they wanted to challenge the authority of ford to pardon him. And thats one of the funnier memos in the file. We may see that. Well talk about it next week. I think its without question that nixon would have been impeached. I would add that they hid from us the fact the prosecutor was giving grand jury information to john door, improper, and that door was saying in secret nixon had personally approved the payment of blackmail. In their dilemma, it really gets fun when you put yourself in their shoes, they had no witness who could testify to that. They had dean saying he wants money and the money paid. They had the guy who paid the money. But they couldnt put someone on the stand to say, and dick told me bob, i want that money paid. They didnt have anybody. So how do you get that case presented to a jury . How do you get that case presented to the members of the house judiciary committee, and they couldnt. Thats why they did it in secret. And we didnt know. We couldve disproved it, but we didnt know it was being made. Its just another one of those what if, what if, what if, what if nixon had a defender on the urban committee . What if they really crossexamined john dean . I mean, he spent weeks preparing the reaction to john dean. Tossed out. Well, you would assume that dean would have been crossexamined had it gone to the senate. Well, you know, what if, what if, what if, one of the difficulties that youve got to factor in, too, the rearming of the staff, where both sides lost institutional memory, and nixons fading of power and influence as a lameduck. Why would you stand up in front of a Freight Train . Maam . I was just wondering, has tricia cox or Julie Eisenhower reached out to you at all . Well, i know them both. I didnt know them when i was on the staff. There was a very, very firm chinese wall between the staff and the family that you would be fired if you attempted to cross. Theyre aware of my work, ok . The Nixon Foundation, which im not an officer or a director, the Nixon Foundation has a bifurcated view of watergate. Half the people think nixon will never get a fair shake if we dont attack, attack brutally, shepards done all the work, charge. And the other half says well never win that battle. Public opinion has hardened. My book says one of the sad lessons of history, once people have been bamboozled, they dont want to talk about the other side. Were wasting our time. Wed be better to talk about nixons accomplishments. And honestly, my best friends, 40 years, we served on the house staff together, really good friends, ill spend easter with one, lunch with the other, they are on opposite sides. And i dont blame them. I understand the dilemma. Im a dangerous friend, and what i have because its so hard to explain. Weve got 18 hours, you know, and i dont think, i dont think ive made the case i hoped to make when i started. Youre very kind. Well see you next week. Remember, next week we talk current events, so read the new york times, watch the tv. 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