Transcripts For CSPAN3 Watergate Prosecutorial Documents Revisited 20230312

but since 2004, judge dimond has served as a district judge for the eastern district of pennsylvania. his law degree is from the university of pennsylvania law school. he previously served as a state prosecutor in philadelphia from 1977 to 1979, and then again from. 1981 to 1983. he is the author of the book the federal grand jury practice and procedure fifth edition. thank you, judge dimond. dimond for joining us and for leading us. how are you today? very well. thank you. thank you for that very gracious introduction. i would like to introduce our panel in alphabetical order. our first panelist should be ted olson, who unfortunately was unable to be here today. so i will move on to professor stevens mossberg title. professor at george at gw law school. he's held a multitude of positions in the department of justice as well as the he served under the iran-contra special prosecutor. he's a graduate of the university of pennsylvania law school, my alma mater, geoff shepard. he worked in the nixon white house counsel's office after his graduation from harvard law school, he really has created all of this. he has figured it out through the freedom of information act and great diligence. the many documents we will review today, which i think you will find quite fascinating. fascinating. and finally, judge lawrence silberman, he's held a variety of of high government posts. the two that bear most directly on our presentation today are he was deputy attorney general in the mid 1970s and he has served on the d.c. circuit court of appeals since 1985. he has been described as a giant of the federal bench. i think he is the giant of the federal bench with that, i will turn things to geoff shepard. those of us of a certain age, watergate conjures up any number of things. it's hard to really convey how the watergate crisis captured the american imagination. and almost 50 years ago, really starting 50 years ago, but in 1973, a fair number. people in this country were glued to their televisions, watching the special investigating committee of the senate, headed by then senator ervin, investigate watergate. i think that it has was then and continues to be depicted as a morality tale of good, good versus evil. and discussions tend or tend to generate a good deal of heat, but not a good deal of light. i think that we hope to present things more in shades of gray and we have the evidence to do it and with that, i will turn over this matter to geoff shepard, who will give a bit of background on watergate. thank you, judge diamond. i have been allocated up to 20 minutes by the panel to try to summarize the life and times of the watergate scandal. and so here, here we go. we figure about 85% of the viewers didn't live through it. so we're going to try to summarize it so they can put these documents in context. what we refer to as the unrest of the 1960s is really the 20 year period between 60 and 1981. president john kennedy, martin luther king and senator robert kennedy were all assassinated when there were major riots in some 19 cities. one prestigious colleges and universities these were shut down by student protests. and when no president completed two full terms in office, jack kennedy was assassinated. lyndon johnson chose not to run for a second term. richard nixon resigned in disgrace. jerry ford was never elected president at all and jimmy carter was defeated after one term by president reagan. it may come as a surprise to many of our viewers, but there were no computers, no cell phones and internet. quite simply, it was a different era for nixon's part, he had won a narrow election in 1968, but to end the vietnam war that was called peace with honor and to restore law and order to a nation torn apart by dissent. you did both. there were 537,000 u.s. troops in vietnam when nixon took office. this number had to 250 when he ran for reelection in 1972. he had other foreign policy successes, including the opening to china they talked with the soviet union and the reassertion of american influence in the middle east, including saving israel, the yom kippur war. domestically, he founded, the environmental protection agency and passed the clean air and clean water act peacefully desegregating. did the southern schools, restored the rights of native americans ended the draft, enacted the 18 year old vote, and appointed four justices to the supreme court in his first term, he quadrupled number of women serving in senior government positions, launched the on cancer and broke the heroin epidemic that had been ravaging the nation's inner cities. his 1972 opponent was senator george mcgovern of, south dakota. he ran a progressive. he promised to raise taxes. his campaign was attacked as being in favor of acid amnesty and abortion. acid was the scourge of psychedelic drugs in particular, affecting america's college youth. harvard professor timothy leary had famously urged his students to tune in turn on and drop out. amnesty was forgiveness for all of the draft dodgers deserters and miscreants who had so vigorous to oppose the vietnam war. and there were tens of thousands of that leftover from the most unpopular war in american history. but they wanted more than forgiveness. they wanted to reassure us that they had been right all along. and george mcgovern was, happy to oblige a abortion, was roughly the same issue as we find ourselves in today. and in tents state by state legislative battle, because roe v wade had not yet been decided by the supreme court, the 72 election turned in to be a wipeout. nixon ran up the greatest electoral landslide in our nation's history, winning 61% of the vote and taking every state except massachusetts and the district of columbia. it was heady times for his support. of 22 months later, nixon in disgrace and two dozen members of administration were convicted and imprisoned in the greatest political scandal of the 20th century. now had burst into public view on june 17, 1972, when five burglars were caught red handed in the watergate offices of the democratic national committee. they had cameras bugging devices. one of them worked for the president's reelection committee. others had phone numbers and uncirculated $100 bills traceable to the nixon white house. the seeds of the scandal though, however, have been planted year before the pentagon and papers a secret 48 volume study by the defense department of how we had gotten into the vietnam war in the first place was leaked to the new york times. the washington post, and other major newspapers by anti-war activist daniel ellsberg. it was considered the biggest national security leak since the beginning of the cold war. president authorized creation of a special unit within the white house itself was nicknamed the plumbers because their job was to stop leaks. the problem with ellsberg was that as a consultant to the rand corporation, a defense think tank in santa monica, he had access to 54,000 other classified documents. the plumbers decided to have a secret. look at amy ellsberg files kept by his psychiatrist, dr. lewis fielding their illicit entry over labor day weekend in. 1971 was planned by. the two top plumbers, gordon and howard hunt, was conducted by several cuban americans, and it was authorized by presidential assistant john erlichman himself. now, in and of itself the fielding break in was not connected to watergate, but that very same cubana americans directed by liddy and hunt, conducted later watergate break in ten months later. except this time they got caught. so there really was a break in there really was the cover up. the issue then and now is who else knew it? senator? so famously put it. what did the president know and when did he know it? now? bromwich he'll go to the next slide. we'll see. six major players make sure that comes up. okay. the top row on nixon's most senior staff members, they were heavily involved in the 68 campaign and in his first term. john mitchell is nixon's former law partner. he handed the 68 campaign and then became attorney general. he left the department in 1972 to head up nixon's reelect efforts. bob haldeman in the middle was an advertising executive. he'd been with nixon since the 1950s, and he'd become nixon's chief of staff. john ehrlichman was haldeman classmate at ucla. he was nixon's first counsel, and then headed his domestic affairs unit, where he was my boss in the bottom are the actual crooks, the mid-level soldiers, who got their hands dirty, the break in or in the cover. interesting. labor had not been active in the 68 campaign, but they sure were in the second with gordon liddy was a former fbi agent. remember, he'd masterminded the plumbers break in, andy masterminded the watergate break in. jim magruder was a public relations staff member who had been sent early to the reelection committee to get things running while. they waited for john mitchell to arrive from the department of justice. john dean was erlichman successor as nixon's counsel. he ended up running cover up and was described by the fbi as watergate master manipulator. all these people have passed away except john dean. all of the people wrote books about their watergate. except john mitchell. but james rosen did a wonderful biography of mitchell and watergate called the strong man. now, how did you know? start another watergate. i'll start. well, it started when bob haldeman asked john dean to take the lead in preparing a perfectly legitimate campaign intelligence plan. this might today be opposition research, and every campaign has one. you want to know all about your opponents, their positions on public issues, sources and uses of campaign, their schedules, and especially any dirt in their background. you might even have one of your people volunteer on their campaign to gather dirt from the inside. unfortunately, in our case john dean recruited, gordon liddy for this task probably seen him at least $500,000 for his initiatives and liddy got carried away. he prepared a plan that included many overtly criminal acts, was called gemstone. and it's lovingly in his autobiography. there's no doubt what he proposed. it included specific proposals for mugging, bugging, kidnaping and prostitution, well, liddy showed up at the reelection committee and informed jeb magruder that he needed about $1,000,000 for the plan. magruder said the only one with the authority to approve big commitment of that magnitude was john mitchell and he was still attorney general. so these three folks in the bottom row trooped over to the department of justice and met with john mitchell in his attorney general's where liddy laid out his plan on charts prepared by cia. mitchell nothing about this initiative beforehand, but all three presenters came the nixon white house. a budget for late. his plan was not formally approved at this first meeting, but later, after the break in arrests, everyone who'd been there or otherwise knew about aspects of liddy's plan was very aware of their own potential exposure to prosecution. hence the cover up. how did it come? well, for the top, all three were convicted of obstruction of justice, conspiracy and perjury in a three month cover up trial, each sentenced to a prison term of two and a half to eight years, and each served roughly 18 months for the bottom row. liddy adopted the code of omerta. complete silence, he would say to no one, not a grand jury, not a congressional, not the prosecutors. he became known as the iron man of watergate, but he paid for it. he served over five years in jail for his many crimes until his sentence was commuted by jimmy carter to be no longer than seven years. magruder was the weak reed in the cover up and the first to reach a plea bargain with career prosecutors. he pled a single felony. he served six months of a ten to 14 to 4 year sentence. john dean failed in his own attempts, get immunity from the career prosecutors. what he did did it from senate ervin committee, who then portrayed him as an innocent whistleblower and as judge diamond eluded most americans who know anything about watergate got their knowledge from the televised hearings of the irvin committee because federal trials aren't televised. so it's all ervin committee really all the time everybody watched he became john dean became the government's chief witness against former colleagues in the cover up trial. he was sentenced to a prison term 1 to 4 years with commitment. the scheduled opening of the trial itself. but that was just for show designed to enhance his credibility as a government witness. in fact, he set completely free following the trial's conclusion, and thus he was only confined for four months and. that was on an army base. in truth, john dean never spent a single night in an actual cell. now let's go to the next slide. let's have a look at the critical dates for the watergate cover up. yeah, first up at the top, you have liddy's plan reviewed. this is in the attorney general's presence on january 27th. and then again on february 4th, and then by jeb magruder and john mitchell on march 30th, when allegedly the plan was approved. there were two actual break ins into the dnc, say the may 28th break in was success full of planted bugging devices, but one of them didn't work, so they went back. on june 17th and that's they were caught. now, today, the day of this panel is september 15th. that makes it exactly 50 years from the burglary indictments that were handed down on september 15th, 1972. the trial itself all when it was seven people conclude started on january 30th, 1973, and it was cubans and three officials of the committee reelect the president. gordon liddy, howard hunt and james mccord. mccord is a very strange figure. he doesn't figure prominently. today's presentation, but he was a career cia officer and was wiretap expert. and liddy had shanghaied him into coming and helping them with their wiretaps shortly after watergate convictions of the burglars the senate created a watergate committee headed by senator sam ervin of north carolina. most people, as i said, their knowledge of watergate comes from the televised hearings, as sometimes happens very rarely, but sometimes happens. the ervin committee. no overt advocate of richard nixon. so they were very smooth hearings that weren't strongly contested. and it seemed like everybody was it was piling on nixon. it's a biased point of view, of course, to make the cover up itself collapsed. i'm on the bottom row now. the slide, the cover up collapsed on sentencing day. much. 23rd from the burglary convictions. james mccord wrote a letter to judge sirica and said there's been a cover up. people have perjured themselves. you don't know what's been going on in. it caused quite a hullabaloo people started who who had guilty knowledge started seeking the prosecutors and revealing what been going on. nixon acted on april 30th, fired his two top aides and john dean and appointed new attorney general with the permission to establish a special prosecutor who was appointed may 25th. now as you can see from the dates we jump about a year here, but we're doing that because in july of 1973, alex butterfield revealed there had been a taping system in the oval office and lots and lots of the president's conversations were on tape and that led to a year legal battle over the tapes themselves. nixon's defense collapse. first he resigned on august 9th, first and only president to resign from office in a scandal. he was pardoned by jerry ford on september nine and then shortly thereafter in october. the three month cover up trial began. seven individuals, including mitchell and haldeman and erlichman, and that concluded on january first, 1975, and their matter stood for 40 years. but then something began to happen. and that's what brings us to today. it turned that for batches of documents of internal prosecution documents began to surface beginning in 2013. special prosecutor leon jaworski had taken his confidence. your watergate files with him when returning to texas at the beginning of the cover up trial. these included grand jury transcripts. they surfaced at his law school alma mater, bay baylor law school and waco, texas in 2013. there were retrieved by our national archives. they were government documents and i was the first person to examine them, associate special prosecutor james boren cox's top associate and his first hire took his files with him when going back to. and they first surfaced in 25th in and these were mainly his extensive notes from staff meetings and other in preparation, writing the prosecutor's final report, which warren burge authored and came out in october of 1975. again, i the first person to gain access to these notes, counsel to the special prosecutor phillip lacovara, who described his position as number two and a half in the office, took his files. one, he resigned. nabors signed in advance of a cover up prosecution, and he didn't return them to archives until 2020. just two years ago. once again, i was the first to get to go through them finally, the prosecutor's secret report is nicknamed the road map. we'll get to in this program, which the basis for the grand jury naming, nixon, a coconspirator and for the grant for the house judiciary committee recommending his impeachment that remained sealed until 2018, when it was finally released in response to my court petition. now i can ten. these documents undermine everything we've been told about the watergate, and they raised serious as to whether in a time of intense politic upheaval, the defendants received anything like the fair trial by the fifth and sixth amendments to our constitution. if we go to the next slide, i have a triangle loop this is jeff. jeff, can i interrupt? you've got a lot of interrupting. oh, you go right ahead. i just have one last, final reminder announcement for our audience, just for those who are interested in kelly. the instructions are on the slide or on the screen. a reminder that if you need to sign in to for kelly, that is available in the chat section. and lastly, if the audience audience members as we go along, give questions, arise in your mind that you'd like to ask our panel, please put them in the queue. the question and answer of the q&a section at the bottom. and we will endeavor to answer at the end of the program all of your questions with that, i will get out of the way and turn it back to you, jeff. all right. at right. we're going to mind triangle slide. this is my attempt to. illustrate what i believe the documents show. secret meetings, secret memos secret coordination between all three branches of government. at the top, you have the executive. there are indicate since written indications that special prosecutor archibald cox, special prosecutor leon jaworski and various watergate special prosecution force attorneys met secretly with judges and met secretly with members of congress and their steps down on the lower left side, the legislative. and there were three active committees, senate judiciary, the senate ervin committee and house judiciary. and they met the special prosecutors. and on rare occasion they met with the judges in on the right side. you see the three judges involved in the ex parte, two meetings that we're going to discuss. chief, d.c. circuit judge david bazelon, chief district judge john sirica, and federal district judge pierre hart, gizelle. now, before we go to the next slide, i want to finish up and i'm going to turn it back over to judge diamond. most americans, at least we hope they agree that no matter how despicable the defendants are, how egregious their crimes they deserve a fair trial. only then can we hand them. this is what we mean by the rule of law. our issue this afternoon is whether the documents i've uncovered now publicly available at our national archives show others and we're going to go into four areas the ex parte meetings the efforts to remove judge sirica, the apparent suppression of exculpatory evidence, the apparently partizan considerations in the choice of those who got indicted. iowa summarized the docket and turned the discussion over to judge diamond and the panel. but one quick warning. we've realized there's too much to cover in a single three hour session, so we're dividing it in half. today's focus will be issues connected with a cover up trial. a second part issues connected with nixon's impeachment. we hope to cover at a subsequent date. that's yet to be determined. first, section two of our panel is a series of ex parte meetings. and if you're gone, if you'll come up with the next slide, excuse me, jeff. yes, sir. don't you think you ought to mention at this point they share in night massacre. and therefore the transit from cox to george. i'd be happy to judge archibald cox was special prosecutor for six months and hired all of watergate's best prosecution staff in the controversy solely over the tapes. they. nixon want to turn the tapes over to anybody. but there was a proposed compromise and it was called third party authentication. it was actually cox's idea in the beginning. and what the white house suggests was, they have the tapes. listen up, prepare a transcript. have the tapes listened to by an expert, a third party authenticate later and then those transcripts, once authenticated, could be turned over to the special prosecutor in the grand. you should explain you should explain what the tapes were. well, these are the white house that were put in in nixon's office in february of 1971. and tapes about two years of his private conversation. it was an automatic system. so if he in the office or in his hideaway office, in the oval, they and there were sound the system picked it up. the tapes are many times difficult to transcribe because they're not of high audio quality and the prosecutor wanted the nixon didn't want to turn over anything but toward the end. authenticated transcripts nixon fairly or unfairly that eliot richardson his attorney general, was prepared to fire archibald cox if didn't go along with his own. a third party authentication. but when push came to shove and cox said, good enough, i want the tapes or nothing. eliot richardson decided it would be better for own political future to resign instead of firing cox. so nixon ordered the next person in line the deputy attorney general, to fire cox. he declined. he was fired. and then bob bork, who was solicitor general, agreed to fire archie and that reagan miracle occurring friday evening, october 20th, is called the saturday night massacre. and it ended up in a huge firestorm. it was characterized by nixon's new chief of staff as a firestorm of protest and the nixon people ordered agreed to appoint a six gasser special prosecutor to take archibald cox as place, who turned out be leon dawson. so you had archibald cox and attorney general elliot richardson for the first six months. then you had acting attorney general robert bork and leon jaworski until senator saxby of ohio was confirmed as the new attorney general. and judge larry silberman was confirmed as the deputy attorney general and was attorney general from january of 1974 into the ford administration until april of 1976, when he became ambassador to yugoslavia. larry, is that complete? fine. i just wanted you to explain the transition from cox as jaworski. very, very, very fair. it's watergate is two and a half years and very complex and i tried to summarize, i, i skipped many significant events. so what is today is 50 years from the burglar break in. we're going to fast forward. almost two years to march first, which was the indictments for the the the indictments for the cover up trial. we're going to skip this slide. okay, let's go. let's proceed. oh, just what did you let me just read the right hand. read it. it's a paragraph. that started rooms. got it up. well, go ahead. go ahead. what the chief judge of the d.c. district court was john sirica, who assigned joined the watergate cases to himself and the lawyer representing h.r. haldeman and. again, i, i can't emphasize enough the currency these people had in american culture at the time, haldeman, erlichman, archibald cox, and so forth. but haldeman's lawyer wrote this letter to chief judge sirica. would you be willing to inform us whether you were contacted or whether conferred with the prosecutors, the grand or the foreman or any or other member thereof, regarding the report which the grand jury presented to you in open court on march 1st,. 1974, and we all practice the law at one time. and i think this is a fairly stunning letter for a lawyer who would be appearing before a judge to send to the judge. did you have improper meetings, party meetings with the with the government and we're going to spend a fair amount of time giving you what the answer have been. he never got an answer that mr. wilson never got an answer to this letter. but before we to the documents that jeff has uncovered, i'm going to ask professor salzberg to go through very quickly ethics strictures that apply at the time regarding judicial expertise, communication lines and lawyer explore to communicate. professor salzberg, you are brahm. go to the next slide. there. so this one, this one in the 1970s said in an adversary, a lawyer shall not communicate or cause another to communicate as the merits of the cause. with the judge or an official before whom the proceeding is pending. this is basically no ex parte context in any adversarial proceeding, and basically we all understood this. i mean, from from the day you graduated law. so you understood that the an adversary proceeding, the adversary were supposed to be in court and to have an equal opportunity to speak to a judge or a jury. in a jury case, there wasn't be any advantage sought by having a private conversation with judge that related to the merits of the case that was before that judge. if if next excellent. and this is a the flip except as authorized by law. the judge shall neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. i say it's the flip side, because it's just as improper for a judge to seek out one lawyer in a proceeding for a private conversation that's just compromising, as if the lawyers sought out the judge. and i would add that, i mean, i've been a lawyer for 50 years now. i don't think i've had an ex party conversation with a judge about a matter that was pending before that judge that got relations with judges about, other things. we all many of the same. but this is something that most judges may be all take very seriously. for example, i on the advisory committee the federal rules of criminal procedure with federal i don't need to name it and he had a tough evidence and he called me. i wasn't a party called me to talk over the evidence question. we talked and then he went on the record case and he just said to lawyers, i just had a conversation with professor software. i asked him this question. this is what he said to me. he said, and here's his number you can call it if you want. i mean, i was he didn't have to do that i wasn't a party. i wasn't even in the case. it was kind of like he i'd open the book only he didn't have the book. so he called, but he wanted to be clear that the lawyers had a fair opportunity to deal with me and what i said and that's that is what i think is at the heart of the rule of law equal access to judges, equal access to juries. and i would guess judge diamond, a judge. so that in all the years you've been either lawyer judge, you probably had no ex party communicate. i don't ever recall one. no, i've never had ex parte communications. the only exception that is when i conduct settlement conferences with the american civil cases, with the agreement of both sides, i will meet with each side to try to negotiate a settlement in criminal cases. absolutely not. there's no provision for and in my opinion, any conviction that has at its foundation and export communications with me be an invalid conviction. it's a very, very serious matter. it is a very very serious violation of due process, in my view, to have ex parte de communications with either side and talk about a criminal now about the merits, the case that will be or is reforming. and with that, why don't we go one? we're taking them slightly out of chronological order, because for the narrative that makes a little more sense to the next document, if you will, brian and is the this is the precious metal that jeff shepherd has really with a pickax dug out of the side of a mountain through through his foyer efforts and his various petitions. i believe it's all to the dc court. jeff, could you summarize this document? earlier this is a memo from phil lacovara counsel to the special prosecutor to richard ben-veniste, who is head of the watergate task force. and it describes gibbs and ex parte meeting he had that morning. the just the morning of january 2nd, with judge sirica. he was notified the night before. i received phone call at home from. todd christofferson, law clerk, sirica, and then in the meeting itself, sirica asked whether they knew anything that would indicate earl silbert would be the source of any leaks. now, sirica had been to a party on new year's eve with his former law firm. he heard a rumor. the rumor was there were leaks out of the grandeur. the rumor was wrong. the leaks were coming out of. the senate ervin committee, which leaked like a sieve. silbert had nothing to do with the ervin and the object of the leak had to do with the grand jury. but that wasn't known at this part. go to the next page. next slide. and here of our saying, we told the judge we didn't think there was any basis. and then the judge said he just got a call from sam dash. sam dash is majority counsel, the urban committee judge told me that indicated dash a good friend what he told us about this rumor. and then the end of the memo. judge sirica indicated me since both the committee and we had cleared silbert, he proceed to swearing in as interim united states attorney scheduled. now, sirica had just been named of the year by time magazine, so he was really feeling this out. what he's done is appoint himself to check out these rumors he inherited part. judge diamond, what do you think. well, first of all, i'd like to draw attention to the very first line and is a mr. lacovara has written at approximately 10 p.m. on tuesday, january first, 1974, i received a telephone call at my home from the law clerk to judge sirica, who then proceeded to communicate with lacovara on judge as we have. i don't believe that anyone in the u.s. attorney's office here in philadelphia has my home number and would call me at 10:00 at night. i year's day to discuss anything. it suggests to me and going to ask judge silberman, a professor, what they think. but it suggests me this was not the first communication of this nature. because it's a tenant. it's a tenant knight. it appears to me, if you put it in context, there had to be communications before that. what do you think, professor salzberg? i think that's highly likely. the other thing is, when you don't get a call like that out of the blue and it is outside from the home phone number, it's there doesn't seem to be any surprise right. this letter was like how there's really surprise that i was shocked. now, this seemed to be the normal course of events for what was unfolding between judge sirica and the special prosecutors. i agree with that. now i the exact processes that were in place at the time are a bit hazy, but i am assuming that as is case today, when a senate confirmed u.s. attorney steps down, the doj names some interim person until the president names a new u.s. attorney who is confirmed the senate. sorry, i think i thought i think it's actually the court does that. but i think i thought the court swore him in today. i know the doj names them, but in any of that before sirica was going to do anything he wanted to have. silber who just passed away and professor salzberg confirmed informed us a little earlier that his obituary is in the washington post today. he wanted to make sure silber was kosher, if you will. and but it's interesting, and i would like our panel to weigh in a bit on this. the people he asks for advice are the counsel to the watergate special prosecutor and, counsel to the ervin committee. how does that strike you? judge silberman inappropriate. professor salzberg. i'm glad you emphasized this that we we haven't mentioned sam earlier. sam dash was a georgetown professor who became counsel to the watergate committee. it was a very important player, i think, in the investigation of president nixon. and it's important if it is incredible, you think about it, that in memo he's reporting that judge sirica is calling both the watergate prosecutors and. the counsel to the senate committee, in order to get their opinions on what he should what he do as a judge when it comes to in the next acting united states attorney. it's incredible. i i'd like to add a couple of additional facts to what professor saltzburg has said. sam has taught at georgetown and judge sirica, i did a course at georgetown. so they knew each other in sam dash's book, he describes another ex parte meeting he had with sirica to urge particular approach to sentencing. sam ervin, top personal assistant, was a gentleman named rufus edmiston, who is now in raleigh, north carolina. and mr. edmondson has said recently that sam dash went down to see judge sirica all the time. then that dash invited edmondson to go with and he said, you know, we shouldn't be doing this. this is not proper. so didn't go. but it this contact between sirica dash was not a one off event. it was with some frequency. and to to again, give some historic context. as sam dashes republican analog to council for the republican side of the ervin committee was fred thompson. that was when fred thompson first appeared on the screen, not at the hunt for red october or one of the other movies, or when he became senator from tennessee. it was when he was republican counsel and sam dash especially became a public figure. everybody everybody knew anybody who appeared on tv all the time. and this watergate these what televised watergate hearings, they were at least as ubiquitous as the o.j. simpson trial when it was televised, perhaps more so. and dash was a celebrity and that's who it. judge sirica went to for advice on whether or not someone was about to be sworn in as acting u.s. attorney is leaking grand jury. one gets the impression from this that judge sirica regarded his actions as regarding the grand jury as a call of the impeachment proceeding. it an offer to branches of an operation directed at the president. that's okay. looks like they were cooperating. that seems exactly right to me. silberman and i think we're going to find more evidence of that as we go forward. but it's it appears to be two branches of government cooperating against the third. the judicial and the legislative cooperating against the executive. but why don't we go on to the next document? and i guess one question, judge, before you do. sure. sure. could jeff could could you explain or one thing i, i may have this wrong, but prior to there being a special prosecutor, before archibald cox was named special prosecutor. my understanding is that the investigation into the watergate break in and the and the cover up, it was being done by the u.s. attorney in d.c. and earl silbert was in that office. and also it was, if not leading, one of the key players in that investigation, then who was he was lead. he was playing the role. he was principal assistant u.s. attorney. he had to assistance. seymour bland's, her and donald campbell. but but earl earl led the investigation. he is the one in his team who conducted the burglary trial and he's responsible for breaking the cover up. i mean, it was it was all career guys and reward for having done is they were summarily dismissed when the case became politicized and the news and the special prosecutor was appointed that so i wanted to see so one of the odd things about this letter is isn't it true that once they were dismissed that earl silbert or other of those prosecutors that is the regular justice department lawyers they were unlikely to even have access to grand jury material that the special prosecutor was generating. yeah. you know, the rumor is a little unclear because it's just all a rumor. but the rumor was that alex butterfield was warned in advance of questions he was likely to be asked. happened to be true of the urban committee. butterfield never appeared before the jury had nothing to do with earl silver, and that's where the rumor was. so misleading. and just to to add a little more historical and legal context to this. archibald was appointed judge when all is said and done by president nixon and, as was leon jaworski, as a result of, watergate, a law was passed, an independent counsel law which has since sunsetted wait a moment. i think he was i don't think he was appointed by nixon. he was appointed by elliot richardson. it. it was appointed by the attorney general. but i consider that appointment by the executive. judge silberman. yes, of course. and let me tell you the circumstances. when went up for confirmation the democratic senate, particularly led by ted kennedy, insisted that a special be appointed and were it was more specific than that. it was that archie cox would be appointed. and archie cox had been solicitor general in the kennedy administration and a close associate of jack kennedy and the kennedy family. so as a price of confirmation elliott richardson had to appoint a special prosecutor, someone intimately and politically close to ted kennedy. well, actually, at one point, the richardson was asked, how on earth did you did you pick archie cox? i mean what did the white house say? and richardson said, i never them you know, i appointed them on my own. and the the special the special prosecutor asked the independent counsel that the supreme court of the united states eventually upheld the constitutionality of it. 8 to 1, when was before the d.c. circuit judge wrote an opinion that i heard, excuse me, 7 to 1, 7 to 1. i apologize. i wrote a very persuasive opinion. he thought it was unconstitutional. justice scalia to say he was the one who dissented. but in any event, that statute has sunsetted. and you now that there are calls for appointment, independent counsel today, but that wouldn't be done pursuant to a statute. but that statute, a direct result of watergate. just as the federal election commission was created in the wake of watergate it didn't exist before. i would like to add i would like to add that have told judge silberman many times that his opinion in case more than the olson is his most brilliant opinion. and the judge has responded that in its many years on the bench. he has authored many brilliant opinions. all right, let's go out and let's go next to the next document, because it's never as that about me, judge silberman. anyway, if we could go. to the to the next document, please okay. this is a letter written nominally by leon jaworski to judge sirica, and it's dated december 27th, which is before little session with with silbert. and the first sentence says it all grandmasters ruth lacovara, ben, vanessa and i met you and judge gonzalo at your on friday, december 14. you stop right there. these are the four top watergate. hank ruth is deputy prosecutor. lee endorses lead prosecutor. phil lacovara is counsel to the prosecutors in rick ben-veniste. he is the acting head of the watergate task force with the judge sirica and judge gonzalo are the two judges who will try all of the trials. three days before this meeting, judge sirica had given to the prosecutors the first set of white house tapes. so they just all get together for the fun of it. we don't know what they discussed. but judge diamond, the idea they got together at all. well, why don't you go on and summarize rest of the letter, if you would, jeff. and we will discuss it. well, the rest of the letter is an attempt to predict cases down the pike. and you can't them out. you don't know what cases of perjury case or what cases the plumbers case because it's too vague. we only case where you can tie to a specific is highlighted at the bottom of the second paragraph and. it says, i believe by the end of january or beginning of february three, we may have an indictment of a case that could well take 3 to 4 months to try. that's the cover up case. and one interpretation of letter is it's a written promise to judge sirica, that being diamond in the cover up trial, which he's no secret he wants to appoint himself to here, will come out by the end of january, beginning of february. now, this is key to sirica because. sirica is going to turn 70 on march 19th. he's going to have to step down as, chief judge, and he will lose the ability to appoint himself to try case. now, to me, i've fretted over this letter eight years. i can't make i can't make sense out of the rest of the. well, i, i, i think in every district there are lengthy trials that have to be where the court has to prepare for them. we certainly have had them and philadelphia, i'm sure that there have been other d.c. trials have taken two or three months to try. when i two months trial. i. i met with the lawyers for both sides to discuss case management. we had a final conference. we would discuss how long any part of the trial might take and this kind of thing, the practicalities of trying the case. i never with four or five guys from the government and no one else there to discuss planning to discuss kind of thing. what do you think, judge silberman? i think it's and. and you know what's interesting, these are letters that were written and kept, you cou you can imagine or you can what the conversation could have included. that's not in the letter. well, i can. professor salzberg, what do you think? but just remind everybody that the ethics rule that we put out there said the judge shouldn't have conversation about a pending or impending proceeding. i believe the impending is just like this, that you can't have conversations. four prosecutors about a matter that is going to come before the court, especially when they're trying to make sure it before a particular court and a particular judge. why don't we move to the next slide? and, jeff, if you could summarize first of all, explain this document is and perhaps the most impressive thing about jefferson's ability to read james warren burke's handwriting, which i can't do. jim jim thornburgh was cox's closest confidant and fellow professor of criminal law from harvard law school, and he took it upon himself to keep notes of all the staff meetings and all the events. so he could author their report at the end of their work going through. nobody knew nixon was going to resign. nobody knew it was going to happen. so the report was an absolutely crucial recall event and what this is, this is a set of notes, handwritten notes that he these back to harvard. i didn't see these until 2015. and describing an event. now, what's happened? to put it in context, the prosecutors have concluded nixon must have approved the payment of black mail to howard. but they've got him cold. they're going to prosecute him and put him in jail. that's thinking. and they said, this is the special prosecution in force. there's this ambiguity that they're going to talk and let the house judiciary committee take a lead on nixon's impeachment and four of the young prof. prosecutors, these are the have authored a memo that says we've got to indict him. none of namby pamby impeachment stuff. this is what we came to do. and we have an ounce of integrity will indict him and. they circulated that amongst all of the senior staff and at a staff meeting in which jaworski doesn't attend, i didn't realize this. but you ask. he's not there. he has warned burge say to late judge and i have already agreed. we're going to go the impeachment route, that the law is too unclear on indicting a sitting president. so is his note. the note is about the president. just read that. but that's a small group. that's three others. if you look at that, we indicted. is that cause for your frustration in the staff. because jaworski told him he'd already reached an agreement with sirica several weeks before and without disclosure without telling that nixon would not be named in their comprehensive indictment. one problem this is this is gorenberg writing this down is that some and maybe most of the agreed with fell bombs memo. now we didn't reproduce it we have this memo and the gist of this the gist of this is. mr. fell down wrote a memo recommending that the president be indicted and tried. it should be like every other criminal matter and and the section that that jeff has highlighted is that jaworski told them he'd already reached an agreement with sirica. sirica several weeks prior and without disclosure, meaning i presume without disclosure to the watergate prosecutor. yes, that's my conclusion that nixon would not be named. one problem is that some and maybe most of the staff agree with phillip adams memo, i.e. they want him criminally charged. so you, the head of the watergate special prosecutors office meeting privately with the judge and they agree that nixon is going to be impeached and not criminally tried. that is what this presumably contemporary is. so those, as the young people say, real memo says. professor salzberg, what do you think? well, it's you know, it's probably unique in that here's a judge talking to the special prosecutor about who should who should be and who shouldn't be charged. it's an extraordinary situation by the way, i think it actually demonstrates why silberman and justice scalia were justly concerned about the the the whole idea of the constitutionality of a special prosecutor. i mean, the when we look back on this, it it seems to many people that impeachment was the way you remove the president and and that's later the conclusion department reached that. you can indict a sitting president, but, you know, the on the ethical side it's just horrible. on the practical side, it avoided a question of whether you could charge a sitting president. and that probably was the good. but it's hard to believe that judge sirica was agreeing on charging. never heard a judge do that before. judge well, i agree, i totally agree that the discussions are wholly inappropriate. i you're looking at looks as if judge sirica, special prosecutor and the watergate impeachment committee were all combined running and coordinating their activities. it does, doesn't it? it it looks that way to me, too judge silberman and, in the 18 years i've been doing this job, i have never had a prosecutor pay me a visit to ask me who i thought should or shouldn't be charged, a case i would assign to myself. or even a case i wouldn't assign to myself. it is it is. and it's it's it's said in such a casual way, a jaworski told him that he'd already reached an agreement just of the back of the hand. we can't mr. fell down and the others, we can't do it. our bosses already reached an agreement with the judge. so that's it. what's in one of the recent books by one of these prosecutor was they recount this furious exchange between jaworski and the lead watergate task force had been domestic or jaworski accuses him of planting this memo to try to undermine jaworski is decision making process and talking about the film about you're talking about the fell down the failed ball memo he said he accuses ben-veniste of being it and is screaming. which, you know, you can see them turk's they want to bag nixon thusly letting the congress do it. this is what we came for. we want to imprison the sitting president. know just to show you the incestuous nature of this whole thing. i have no reason to know this, but my intuition is that sam dash, who was a really good friend of sirica, that sam dash went to sirica and said they shouldn't. the president. this is congress should take care of impeachment should predominate. and judge sirica called in jaworski and said that's way it should be. and jaworski agreed. i mean, so if i'm right, you have the watergate, you have the ervin committee through sam dash talking to the judge and the judge, then talking to the prosecutor. it's just horrible. all right. let's let's go on because we got to get through this stuff. let's go on to the next memo because it gets worse. now, before we read you the memo look at the dilemma there in the prosecution has now been told we're going to let the hill take the lead. but the prosecutors have gathered a tremendous of evidence, they think, against nixon through the use the grand jury, and they get it. they're aiming toward a criminal prosecution. so they're sitting on mountains of evidence and want to give it to the hill to help out their colleagues on the hill. but grand evidence is supposed to stay secret. so phil lacovara comes up with this idea of how they get secret grand jury material to the congress by getting a director for the second jeff at the also i believe and correct me if i'm wrong jeff the the house impeachment committee was having trouble getting evidence. people were invoking privilege. people were not testifying. they couldn't. the grand jury is uniquely powerful and its ability to obtain evidence and that's what was done here. and so what jeff is telling us is that the watergate special prosecutor task force knowing that an agreement had been between sirica and jaworski that it was going to be an impeachment, not a criminal prosecution, wanted to figure out a way to get secret grand jury materials over to the impeachment committee. please go ahead, jeff. yeah, they wanted to help and there's an exchange not we don't have it today. where jaworski says that's just not our business. that's the congress's business, that's not our job. but they rolled it. and this is like a bar memo to two jaworski excuse in a very, very creative approach to get secret jury material to the hill. they're going to call it a presentment. and it's so creative. i'll use the word bizarre. if you go to the next slide, it's still the first page. it says you know, if we surprise sirica, he might against it would be unfortunate. for example, for the grand jury return to presentment without forewarning only to have sirica summarily refused to received it because of his lack of awareness of the for such a submission. so if you go to the next slide, what lacovara suggests is if the grand jury agrees us to do a presentment, we go meet with a judge. ex party to appraise him in advance of this possible development. i don't even prepare memo points in authorities so he knows what is our is this seen him in advance of a decision coming before him for decision and finally the next page he says if we do, we should tell sirica that he's got to receive it under see all this grand jury material that he's going to send to the hill. so nixon and the defendants can't see it. we the fact we're sending it can become public, but the information itself cannot be. what do you think about that memo? well, let's start with the idea of of presenting the. there is no such thing. there are there are there are under state criminal codes. there are present notes of all kinds. but there is no such thing as a federal presentment. it is a way of charging someone say a common law. a common law, grand jury. 300 years ago. but the federal rules of criminal procedure refer only to an indictment and the idea that we're not going to indict nixon because jaworski and sirica have agreed nixon is not going to be indicted. so instead we're going to call it anything but for dinner. we're going to call it a prison dinner. well, of course, you have to concede that it's mentioned in the constitution. it is mentioned in the constitution. but in effect, i have something called a presentment in the index to my book. but there's actually nothing in the text which is a little embarrassing. it's just it's never done it because it fallen fallen into this to honor the federal federal criminal rules even before the massacre. these events came about. it was right. it was not. all right. and they're saying if we return a presentment, sirica may not know what we're talking about. certainly, if a prosecutor came to me with a presentment. i would know what they were talking about. and so as i as i read memo, jeff, the author of the memo is saying, we don't want to. it would be unfortunate if the judge embarrassed by saying, what the heck is this? so we should meet with them and, tell them and i'll write them a memorandum so he doesn't get he doesn't get a script screwed up. what do you think professor salzberg? it's once again it's hard. imagine that they're going to have private conversations with the judge. they, you know, if they had in fact, decided to go down the this path, they should have done the presentment, presented it to the judge, and he should have responded the way judges respond. if he said, i won't receive it, fine. if he said, you know, what is this? and he wanted to be heard on it, presumably they would say, we want the white house to have an opportunity to, review it. he could then rule. but i mean, this is classic planning. the way in which a judge should carry out his duties and if it just runs so contrary, what the judges do, most importantly, it's done without. no knowledge of the defendants. that's. that's what's horrifying. it. yeah. all right. let's go to the next let's go to the next step because we just follow a procedure. this is a two page memo that you ask is dictated to his file. and the top paragraph describes another ex parte meeting in the jury room. and it really summary ises. judge sirico saying, i want to appoint myself. you told me this case would come up in the january beginning of february, and that's gone. i'm looking at a march 19th deadline. where these indictments. so this paragraph, february 11th, i met with a judge. several matters were covered as we sat alone in the jury room. he again then indicated provided come down in time. he take the case. he expressed the opinion that the indictment should be returned as soon as possible. and that he means march 19th, deadline. he's not worried about the court's scheduling trial. he wants to appoint himself. the second page is the follow up to the lack of our memo. that's next slide. and here they start talking about the matters that have come before the grand jury. the judge commented upon the status of matters which led to a further comment on the possibility of the grand jury considering some of special order presentment. this is jaworski summary of his pitch to the judge that they want to send this stuff to the hill and lock there is right the judge does not like idea and this is jaworski is very skillful. description of how he talks sirica it. he says sirica countered by saying he should be informed of his discretion. well jaworski is urging that you've got you got to understand what we're telling you you could do. and he further i have a memo prepared for that covers this subject. this is the memo lacovara offered to prepare a one sided meal, tell judge what powers the majority desire. i agreed to have this done as though it is, though it's the judge's idea. but it's not. it's your case. now we have this memo to we didn't reproduce here, but we have the memo that that lacovara prepared that was presented in private it to sirica and this memo is just two pages. it looks a quid pro quo. i want to appoint myself to handle the trial. and jaworski says, well, we need your permission to send stuff up to the congress. judge dana and you haven't gotten to the to the last couple of pages, the memo. but i that's fine. we will get it. i, i am, i am astonished. i really i went when geoff shepard first showed this document to me the better part of ten years ago, i was flabbergasted and they the special prosecutor got the judge, the team, because otherwise he might embarrass them. and sirica was concerned about embarrassing himself. and so he had is being told this is script we are going to follow and absolutely remarkable memorandum and then to file by mr. jaworski. what do you think judge silberman? well, i agree with you entirely entirely. professor salzberg. there are two things that about this that i think are really significant. the first thing is that judge sirica reaction was this is not. the grand jury is on a charge. people then have to submit secret reports. and he is, according to jaworski. judge sirica said public would rightfully conclude that the entire proceeding had not been but simply one of wanting to hurt the president. and that seems to me that his first reaction but then he he told me that's jaworski is saying your record told me that if the grand jury is thinking about doing this, that judge your record thought it would appropriate for him to meet with the grand jury in. no. that is unbelievable. yeah. that's really astonishing. and again, as as jeff told. before well before this was written, judge sirica was time's man of the year. i distinctly remember judge sirica on a late night talk show. now as the most popular judge in. i've never been asked to appear on a late night talk show, have you? judge silberman? yes, but i've never so that jeff could, you go on to the to the second part of this memo. yeah, matter of clarification. it's a separate memo. it looks like it's three and four. but let's go on to it because it's key. so this is document number four. page three. because the earlier of the document is not relevant. and what he's describing is we've move forward to march 1st. this the day the indictments will be handed and the roadmap will be presented and a complicated minuet. you do this, i'll do that. do this. i'll do that. so he goes in and meets secretly with a judge in advance to rehearse what they're going to do in court in a few minutes. the morning of march 1st, i met with the judge in his chambers. at 1030, we reviewed the agenda. i told him i'd ask the court to assign the case, then go to the page. next slide page for the judge, and that now he's describing this as jaworski describing what happened in open court judge, if i had any further comment and i yes. due to the length of the trial, 3 to 4 months, we think under rule three three say this case should be specifically assigned and we so recommend in and this is a necessary ingredient the judge can't just take it out of rotation. the prosecution has to ask that he do it. this man, judge sirica, could assign the case to himself, which he did by order. later that day. and you switch to after they it. we met in the judge's chambers afterwards. i told them that i thought it all gone smoothly. he thanked me for my help. he was leaving today to speak uva and be back on sunday. i told them i was going to texas and i'd be back on tuesday. we both agreed. we would call each other in the interim, if necessary, and this is a partnership. well, this day it all went. i told them friends thought all went smoothly. that's lawyers often say ex parte is the best part. if you is a given. if you've given the judge his script and if the judge can read. yeah it should go smoothly. well first of all, what do you think, professor salzberg? well, all you need to know, an indictment has now been down and the process here and the judge have agreed they'll call each other if anything comes up. i mean, they've agreed. in advance. the more expert he contacts, judge silberman i agree. i agree with everybody. this is dreadful. bronk, could you bring up that very first slide that has letter from john wilson. judge john wilson. could you bring that up. way back, way back, way. back. there it is. there it is. and would you read again what the letter says, jeff, this is wilson to sirica. it's going to be right after march 1st. the indictments being handed down and, the roadmap coming as a great surprise. would you be willing to inform whether you were contacted by or whether you conferred with the prosecutor, the grand jury, the foreman or other member thereof, regarding the report, which the grand jury presented to you in open court on march? wilson no this thing didn't just spring out of nowhere. they had to have been talking. and that's what he puts in to the judge. and if i may if i may, the judge says in the motion to remove him, he says, listen, everything i did whatever i did, i did as chief judge. so i can't be criticized. we'll get to the we'll get to that. we'll get to that. but but did judge sirica answer this letter? never. never. he said he didn't respond to letters. that was. i don't respond to letters. but. but when you look at this letter in the context, the documents that we have just discussed and that jeff diligently unearthed, you realize why wilson who apparently served in the u.s. attorney's office with judge when they were both younger men, why wilson would take this remark step and say to the judge, have you been having any parte communications? and the judge says, i won't deign to answer. yeah. now, let me interrupt you if i could, because we're going to work, although it was just about it at the half hour. we're going to go to break. nathan, you need to put that up for the clay. from. can you do it? yes. okay. now, look, if you're watching for reality credits, you've got to write down this code because you'll to reproduce it. to prove you've been watching so far. now we leave it up there. write it down. because you won't get credit if can't reproduce this code, you'll simply have had the pleasure of our company. while it's been enticing. now, can you read it off one more time? just. absolutely no. that's the sealy code. if you're looking for credit, for this magnificent program. now, in last have further comments with kind of completed in this series ex parte de communications and they there were lots more we just didn't pick the. so we're going take a ten minute break. by my it is 125 and we'll come back at 135 and we'll be muted out. but we'll see you in 10 minutes. thank you very much. maybe we live. yeah. well, okay we are live. we are going to go to the next part of our presentation efforts to judge sirica disqualified as the self appointed trial judge. jeff, why don't you take. thank you. brahm, if put up the hold slide at the end of the slide show while i talk, you'll have that. well, it doesn't matter. i can speak from the group just like it is right now. i'm to ask you to put up document five in just a second, but i don't want you to do for a couple more minutes. what has happened is that the defense orders not not nixon's people, but the defendants who've been indicted, have judge sarah kidd to recuse. he's appointed himself. they've asked. please don't do that. at least he's refused. so they have appealed the d.c. circuit for a writ of mandamus ordering sirica off the case. and one of the things they requested in that filing is an evidentiary hearing to explore any parte meetings that sirica may have had with the prosecutor. and they cite two newspaper articles that reported that archie cox had met privately with sirica. they didn't attach. i found one of them and it the court saw sirica for 10 minutes. after which sirica scheduled a hearing for the afternoon and that i can't find anything more to about the time bridge now forthcoming to visit nixon. i don't know if that's. but they did say write to newspaper articles and ask for this evidentiary hearing. and what's going to come up now is document number five. i've the aclu filed an amicus brief in support of this request, a three page amicus brief from the aclu. and i'm just to read you the first pair of graph. the american liberties union is a private, nonpartisan organization. 250,000 members. its purpose is to defend the bill of rights. the union has historically specifically been concerned with construction and application, the fifth and sixth amendment, which taken together supply the constitutional for the guarantees a fair trial for anyone accused of crime. now scroll. scroll down. just a touch. morning. okay, stop. the right of a defendant to have his case heard before. an impartial judge is an element. every agreement of this constitution, a requirement of a fair trial. it's for that reason. we submit memo. having read the points in, authorities enjoin filed by the defendant in support of their motion to disclose a5. we filed this memo in support of defendant's rights to an evidentiary hearing on their motion. if they prove the assertions upon which their motion is grounded, that's that's the record's been meeting secretly with the prosecutors. we believe motion to disqualify should be granted. so even the hcr, you intervened in support of defendant's efforts to disqualify the record, does document. do we have any reaction? it's it's very interesting. ng mandamus get filed all the time in the third circuit. most frequently by federal prisoners or state prisoners whose federal habeas petitions aren't decided quickly enough. and ask the circuit to step in and speed up the process. this kind of mandamus. generally, you don't get to appeals court unless you have a fine a final order and. then the appellate court has jurisdiction to an appeal from a final order refusal to disqualify is not a final order, but make the disqualification process have any meaning. the law allows for the parties seeking disqualification to ask for a mandamus to ask court to direct the district to disqualify. i get get recusal petitions every now and then and i generally deny them. just say denied or i will give some brief reasoning as to why i am denying them. i have never held evidentiary hearing on a motion to disqualify me. on the other hand, i never had this kind of ex parte communication which warrants my disqualify occasion. and so think what the american civil liberties union is saying and one can't help but wonder whether or not it was knowledge at the time common enough for the american civil liberties union to produce extraordinary document and say we have to have an evidentiary hearing. and if it's proven, the judge has to disqualify himself. what do you think, professor salzberg? you know, one of the things i wondered about when i saw document is something that jeff probably knows answer to, and that is why couldn't the lawyers for defendants, those were indicted. why couldn't they in open court have said in the presence of the prosecutor and judge sirica? why couldn't they say, we believe that there may have been party contacts? and right now we're asking prosecutors on the record whether not any such contacts have occurred in. and did they ever do that to. no. the only thing i can say, which is not directly responsive, but prosecutors were in a heck of a box on this appeal. and so you might ask, well, what? i like to hear their discussion. would they dispute? there were ex parte j. would say now it was okay because we can do this. we're better than you are. and what they chose to do was silent. they did not respond to request for an evidentiary hearing. and that, i think, is very, very. but they couldn't, of course because they knew there been this series but i know of no request in open court we're we're going to get to a couple of other roads not taken by john wilson that a few minutes but that one. one question i have for you what on the appeal to the d.c. circuit, what did they anything they. these two. well, you mean the circuit itself or. or in their in their motion. the writ. no, no, not motion. but no, they prosecutors. what did the prosecutors say in response. i didn't read it. preparation for this symposium. but when i did read it a while back, they just silent. they did not respond this request. okay. that's what i said. that's why. so, yeah. now, if i think they had an obligation and professor salzberg raised this did did special prosecutor have an obligation to disclose that there were ex parte communications. what do you think, professor? i this point a little earlier than the wilson letter that we saw we've seen several times the it's in contrast, everything else we did talking about because at the end of the letter there was cc all counsel. so wilson was making sure that everybody the case was aware of this request to judge sirica. and it seems to me once you're aware that the defense wants to know whether they're ex party contacts, there's a brady obligation to disclose those contacts. that's exactly what i was thinking. is exactly what i was thinking. know, i mean, the prosecutor is really a judge. sirica looks pretty bad. but the prosecutors, if possible look worse. it was a team effort state at standing mute when. this kind of question is being asked, is, in my view, quite --. quite. well, what did the circuit what did the circuit say? what the circuit did? yeah. so let's bring up. document six. now, what we've done for the viewers we've gone on to the internet. this is the report on the case. mitchell v sirica and it says it was heard on june seven and decided on july 15th, 25th. it's not entirely true, but scroll down just to touch you. bring in that word. order up a little bit higher. okay, stop. and this is what the court found. per curiam on consideration of petitioner's petition for mandamus and. the pleadings filed with respect thereto. it is ordered by the court and that the aforesaid petition for writ is is denied. and if you go up the word order, you'll say there were six judges who heard the case. david bazelon, chief judge jay skelly. right. her macgowan, harold leventhal, spottswood and the single dissenting judge. judge mckiernan. but the five judges of opinion is is not signed, per curiam signed by five judges without the opportunity to be heard. june seven was the date that the government filed response. the court ruled the same day. court judge mckinnon by total surprise and he asked for additional to file his dissent, which he filed on. it became public on july 2050. really found that on july 23rd. this is a very bizarre approach. now, judge silberman can, you shed any light on how this came. i think i can. one of my now deceased partners at morrison foster. the man brother, was a man by the name of ron carr, a brilliant, brilliant who was number one in his class at chicago law school, clerked for bazelon and then for, well, on the supreme court, he told me he's now dead. he told me when was first appointed to the d.c. circuit. the following story. he said, archie cox made a secret trip to barcelona, was chief judge. and that in that secret trip trip, archie cox urged that any appeals from watergate cases. be on bond. so as monte not go to a panel panel, there were three republican appointees appointed by republican presidents. willkie, robb and mckinnon. it appears that when the case did come up and it was on bond. so his party. which is really unusual, i think there's. maybe one other case in my whole time as a circuit judge that any case has been on bond. so so his party on the court and i'm not even sure that's correct. but in any event, when happened willkie and robb apparently recused themselves because of relationship with either one of the defendants or the president. and so there was only six. that's. but the as ron carr told me, 36 years ago when i was first appointed to this court, the purpose of on blocking source fondling was not to end up with a panel that might and that might have to republican. so. that's the background. i've never seen a case in there is an en bloc search party and nothing but an order with no explanation. did did you have occasion to look for the record of how this came about? i mean, yes. yes. i'm glad you reminded me. i did. i asked the clerk of court. what were the circumstances under which john took place. after searching, he came back and told me he was amazed. there was no record. there's no vote. there's no record. the only record he could find is when the court stopped on blocking watergate cases, which they did, i think for the martin case, more. martin was the session. let me see if i. let me see if i understand what you're saying. archie cox became. so this is my interpretation. so worried about pro-prosecution that he was concerned record was the most reversed judge in the d.c. circuit that they'd won at trial. hardly lose, but they reversed on appeal because of the not denials of due process. so he took it upon himself to call upon the chief judge and urge that the death stamped on appeal. because if it was heard bought from the outset and box to respond to, the five liberal judges would always be in control and sirica wouldn't be reversed. and now that goes. that goes. that's your explanation of what? yes, it is. what happened? i can't give the explanation i can only give the facts. i know. i can only describe what ron carr told me. sure. because he's now. but we do know one other thing. there were 12 of appeals from judge two records criminal trials, all 12 were heard through response in bulk. so my interpretation is, is archie and approached the judge boarded and executed on that approach. now based on what certainly that certainly looks to be true. there's one other question you were going to ask me, which is, did wilson any other. yeah. i want to discuss this part first. i'm going to come back to you. i'm i'm not i haven't forgotten, but i that panel to discuss the idea of the special prosecutor calling on the chief appellate judge. well, let's back up from that. and if we can just put to one side this meeting between archibald cox and david bazile on it doesn't seem inappropriate to me in a case of this magnitude for the for an appellate court its own to say it's going to hear all these appeals on banc. is this we're going with the attorney we're charging the attorney general of the united states. we're charging the chief of white house staff, white house counsel is charged and the president is. i guess it wasn't public knowledge decision had been made to impeach, not indict but the president could be indicted. we should hear this on bond. that doesn't strike me as being an appropriate how. what do you think, professor? i think it is reasonable, but i think judge silverman's in a better position to answer this. i can't imagine a court going on back and no record that nobody got heard on this or nobody voted. that doesn't seem right. i mean, that seems very strange. we have not a serious party. on bond. another case that i can recall and i almost 40 years i've been on the court. is, it's not certainly if the president hadn't had been indicted, i would, but i'm so sure the other cases would normally have been was finally on bond by another panel, by another court at another time, just because it's just so rare and what what mckinnon says in his dissent is, how can you say it's extraordinary. i we're going to hear it and bark and have no hearing, no opinion, no hearing, no nothing. judge silberman, i'd like to ask you a question, really, a court process at this time. here in the third circuit, there is a motion panel that sits and hears things like petitions for mandamus and things of that nature. two or three members of the court that grant or deny. and sometimes they will it to a panel of three to hear. was that the procedure in the d.c. circuit if you know. yes. that is the procedure here. but let me give you an of a case. there would be equally or almost equally a notorious it was the flynn case which in which there was mandamus directed a judge. i didn't sit on it. i'm a senior judge and don't sit on on bunks unless i sit on the panel. i did not sit on a panel on this case. it came up to a panel with 2 to 1 vote and then it was subsequently on bond. the only. there's only one time i can recall in all the years i've been the court where a case was a whether it was an effort to on bunk something. so as far to that had not been or there had not been a panel opinion. was. so it is rather very very very very rare in fact is i don't have a it never happened. and certainly if you on bonk it to issue order without an opinion is ridiculous wouldn't it the normal course in an arm bonk be. judge silberman that an order of some kind would circulated to the members of bench to the to the other five or six judges and say this is what we're going to this is what we're going to issue. and they can decide whether or not going to join exactly right. this is what mccain and objecting that he didn't even have time on that. well it would appear to me that then this what what is normally a sign of a a ministerial thing something gets circulated and these are the days before desktop computers so a draft would have been physically circulated to the various chambers and there's no record you're telling your you've discovered there's no paper record at all this was done either in face to face meetings or on the phone. somehow there is no the clerk's office. the clerk court was astonished to find there was zero record explaining why these cases were on bond. there was no vote. normally. no, i have absolute only routine for a case to be on bond. there has to be a majority. you know, the statute applies on that. there has to be a majority vote of the active judges. and there's no there was no record zero. so, i mean, is there any record about judge robb that judge wilkie, that they recused themselves? are there any documents showing that they recuse? nope. i can just deduce that because they don't they don't appear. so what we have is a meeting between the special and the chief judge of the court. and and we then have or the former special prosecutor. by then, i'm not sure i'm the chief judge. the court and then we have the court susan sontag, hearing a mandamus petition and on it without oral argument without the opportunity for the dissenting judge to issue his dissent in a one word order. it's all circumstantial, but it doesn't sound. professor salsburg doesn't sound it doesn't look good. and you know, i tend to believe that there was ex parte party contact and i guess i'm influenced by that because. it's happened once in my career. i argued a class case in the fourth circuit relating to procedures. i won a panel decision 2 to 1. the rumor had it that the chair of the of delegates in virginia called the chief judge of the fourth circuit and said if you don't reverse that decision, i'm going to abolish parole in virginia. this is back in the early seventies. next thing i knew, i was visiting at berkeley. the next thing i knew, the fourth circuit went on about no briefing, no argument, and reversed the panel 5 to 2. wow, you're a troublemaker. i'll spare. i was. let's round this out for just a second before we come back to larry. mckinnon files a dissent a month and that gets circulated within. the special prosecutor's office and we didn't reproduce the mckinnon dissent but but the viewers can read it if they'd like whether like brown to do is put up document number seven here is a memo from phil lacovara to his superiors to everybody dated july 23rd. that's when he got a hold of the mckinnon dissent and look at the yellow highlighted halfway down this i've always regard added recusal motions as raising extremely trouble problems though. i doubt the supremes will take this case at this time. judge mckinnon's opinion is an excellent and effective of the reason why judge sirica should not have, upon remaining as a trial judge. and then the bottom of the next paragraph, even the denial of cert won't get out of the woods. but since decision was made at the outset to support judge sirica, i see no way to turn back now. now, this is dated july 23rd, the opinion was published on july 25th. we saw that on the previous slide and that's the date of the denial of cert by the supreme. so i humbly evelyn believed that the counsel. to the special prosecutor recognized how truly unfair was. well it's there's old scottish saying you can't and reprobate. he's saying how terrible this is but we got to keep on going. there's no way out of it now, right? that's what he's saying. well, wait a minute. i have to correct myself. i was just thinking money. years ago, i brought action as a lawyer challenging jimmy for cars, wage and price. i got an injunction in the federal district court by judge issued by judge frank and parker and the same bazelon court did. take an appeal. 2 to 3 weeks later on bond. because it was was very embarrassing to president carter show that court the baseline court did at least one other occasion do it again sue us for bank. well, i knew i have a more basic question to ask. we have a record ex parte de communication now, written and otherwise with the trial judge and with chief judge of the appellate court that eventually hears, denies all the appeal. the converse fictions of these watergate defendants could today. looking back they be said to stand in light of of of these ex parte communications or was due process violation so egregious that the convictions would have to be vacated. what do you think, professor? they have to be vacated that i'm not sure if you saw that writ of corrine nobis right now that they wouldn't be vacated. much like the korematsu conviction that 40 years after it was, it occurred. i mean and also see how any word uphold these convictions and you or just said earlier it's not about whether they were guilty it's not about whether bad things happened. it's whether they were tried. a fair judge in a fair proceeding. and the answer is no. with respect to the secret communique between cox and bosworth that depends on ron carr telling me the truth and my telling you the truth. we don't have any record that. but ron carr was an extraordinary straight, honest man. well we do also have the 12 cases. yes. all the pattern afterwards of all. all heard. yes. and bob? yes. judge silberman, do you think just on the record, communications alone and then combined with were the baseline ex parte communications, could any any conviction stand based in light of those ex parte taken occasions? absolutely not. there's not even a close question. that's that's what i that's probably date. you're going to give me permission to update. are we or are we going to our next section now, jeff? no. you should ask. oh, we're going back and back to judge silberman who has an additional four. oh, i completely. you're absolutely right. here's wilson, he's been shut down hard. what else might have done, judge? professor said. well, you might have asked in open court. that would put the word to them. larry silberman may have different approach as deputy attorney general. i like predecessor bill ruckelshaus and like both attorney general elliot richardson and. bill saxby promised as part of the confirmation process to support the special prosecutor. unless the special prosecutor was guilty of improprieties. now, as i have told jeff on one occasion, jim st clair, counsel for nixon, called me in the morning to claim that jaworski and jaworski had engaged in gross impropriety. i was acting attorney general. and i asked, what was the gross impropriety? he said was are white house counsel was called before grand jury and questioned his conversations with president nixon's. i expressed doubt that that was a gross impropriety. i didn't think any government lawyer could confer privilege, attorney client privilege on a government official who was accused of a crime. that was a position i took the time and it was subsequently endorsed by the eighth circuit in the clinton but it was a formally present to me. if wilson had come to me. with the accusation he made in his letter to sirica and it is an appeal to the court of appeals. i would have felt obliged to call george and his staff in and i would have squarely whether or not there were communications. i don't think they would have lied to me if. they had told me the truth. and i suspect the truth is much more extensive than. jeff's documents reflect. if they had told me the. i would have insisted that the motion be filed by the justice department department, not the special prosecutor. moving to recuse sirica. i wouldn't have had the nerve to fire jaworski because as you all those of you old enough to remember that have been another saturday night massacre and i couldn't have away with that although i would have thought about it. but i have certainly just as a motion to recuse sirica and that would have. caused a some kind of hearing. a path not taken by john wilson. it would have caused the presumably presumably judge silberman petition from the doj would have said that the degree specificity would have been up to the the particular scrivener. but that members of the special prosecutors task force have acknowledged a lengthy pattern of expert communications with judge sirica. if they acknowledged it to us, that's the basis. our petition, correct? yes i don't think they would have. i think they would have lied to me. well, i really i didn't think that the dome of the capitol have come off. yeah, i'm probably right. i probably i probably would have been impeached myself. well, i would have done that. i wouldn't fired them. i don't know. now i did. jaworski did tangle with me on one matter. you in the case in nixon versus united states. the justice nixon's lawyers argued that with respect the tapes case with respect to that that nixon's lawyers argued that jaworski did not have an independent status for standing. he was a subordinate nixon and therefore couldn't sue jaworski demanded of me and saxby, but primarily of me, that we support george ski on standing that we were obliged to do because we agreed to support his efforts to proceed or investigate nixon. and i refuse on the grounds i didn't think there was standing. now, of course, the supreme court concluded otherwise, but i think that was baloney. in fact, judge bork in his supreme court confirms in hearings was called on the carpet about that, too, because he took the same position you did. judge silberman saying this is all part the same executive. they do not have standing to proceed. the person for whom they're working. right. so i did at least shows some measure of courage, show backbone. but but but i have in the real in an ideal world i should have if i learned all of what i have learned. we have learned today i should have fired the special. but i couldn't possibly have done that after the cox. all right. my singer. and you didn't know what we've uncovered? it's surface. so even if i did under we were i would have done was move to recuse sirica yeah but i would have embarrassed the hell out of the special prosecutor. well that might have been enough. let's go on to the third major segment, which is the possible suppression of exculpatory evidence. and what i want them to do is to put up a document ten. let me explain this memo to you. it's a long memo, 26 pages long. when the cover up collapsed, john dean and his lawyers sought the career. prosecutors looking for immunity. and during month of april, memories fired on april 30th. but the cover up collapse starts about may 25th. john dean or, his lawyer, met with or spoke on the phone with the career prosecutors 12 times. when you say career prosecutors, you mean the people who worked in the u.s. attorney's office? that's exactly correct. who were not specially appointed watergate prosecutor, task force lawyers. this is these these were the individuals who eventually got removed from the case, like earle. so like you're all sober. like i said, it is, earle and his two associates, seymour and donald campbell, the special prosecutor, came in later, were worried that may have inadvertently conferred immunity on john dean when he came in and was telling the stories. telling stories. and just to you, the u.s. prosecutors refer used to give dean immunity. they concluded he was too integral to. to the cover up that he was he was too involved. they weren't going to give him immunity. so what, they got worried about was they they had somehow done it informally. so they interviewed them and they went through all your notes and they did them. campbell and glanzer did one set of andrew silber another. this is the memo that summarizes the interview detailed interviews of glanzer campbell. and they brought all our notes and they went through day by day of john dean's interviews and what he said and what they thought and where it was going. now, this is posted online so you can read the whole thing where ron of time. so all i'm going to do is focus on two pages. so we will go. page 17 here at page 17 down near the bottom. you to bring it up. this is paragraph 3018 at page 17 of this memo by the of april, dean had become much more antagonistic toward haldeman and erlichman in his discussions with the and also in public. issuing the scapegoat statement. before that the impression he gave of haldeman was that a great devoted public servant clean and, hardworking. he had been restored gained in his praise of. now we're going to get to whether this required by brady to be given to the defense lawyers. but here we have been met a dozen times with the u.s. attorney's and happy end of that line. he starts focusing on hold them on and look then if you read the full memo, they say, well, he was talking about this he was talking about that. he never mentioned them. and then at the end here, he. now we're going to break into this and go to the handwritten notes from this same exact point in interview. and that is number 11. okay. now, this is one little part. the paragraph is up at the top and i'm going to read it to you because you can't read judy judy's handwritten note. so situation in state of flux because of senate committee and cox after 415 that's the middle of april dean becomes antagonist to engage that's erlichman and haldeman whereas before he had given an impression that haldeman was clean and was restrained and as to erlichman involvement this is about the time of the state go comment by being to me and i'm an advocate it's even worse their typed version of the handwritten say haldeman being a given the impression haldeman would claim and erlichman is involvement was restraint. and then somebody says, my view, that's too good. we don't want it that strong. let's it around. so we'll say, haldeman was clean and hard working and dean didn't really like erlichman. now we're going to go to one more and then we'll open for discussion, go back to ten and go to page 23 of document ten. now, here on in paragraph 15, on may 3rd, dean began focusing in on president schill involvement. thus changing dramatically from his previous stance. glanzer and campbell agree with gilbert's account of dean's statements about the president. so we've got changing his story in meetings with the prosecutors on haldeman, erlichman and nixon. now it's worse than just changed his story. and they didn't tell defense. the changes in his story undermine and be the single most important thrust of his testimony against his former judge dimond. this is i at some point would like professor salzberg to explain to me the that dc lawyers to put their sentence down on paper and then turn them over to the national archives, but will you call? we'll put that aside for a moment. we're watching sausage being here. professor, you've served as a prosecutor. i've served as a prosecutor. it's not unusual for a witness, cooperating witness or a witness who wants to be cooperating or someone looking for immunity for, his his or her story to change with each iteration. is it not unusual. and actually, i we've been blasting the prosecutors here. i have seen so many cases where witnesses have changed their story, but it never gets disclosed because there's nothing writing. and the fbi agent who interviewed the witness, ten times doesn't tell the prosecutor that the first version and the 10th version, which is where we now are are so different. so we here not simply evolution, if you will, of john dean's version of events, but the evolution of the way it's recorded by the special prosecutor's office from her handwritten notes to the typescript. and there's a whole of law and criminal discovery when an fbi agents notes have to be preserved and when they have to be given over to the defense, because and you were the reporter for rules of criminal procedure committee, professor, because the defense bar understands that these these versions often change is this kind of. well, first of all, do you view, professor of this kind these kinds of inconsistency sees from a guy who apparently is looking to get a ride and prosecutors everywhere are extremely reluctant to give an important witness who is up to his neck in criminal ity a free ride, because the jury won't believe they want him to plead to something. and that's what happened here. but do you think this would necessarily have constituted brady material? without a doubt. brady, you go. brady, giglio, definitely. it's impeachment material. as you put it, i think it's very it's important because you have somebody who has a strong bias to protect himself, a strong interest. he's been trying to get unsuccessfully from beginning. we basically know that the way you're if you're john dean and you're in it up to your eyeballs the only way that you get out of it is to give them somebody on jeff's chart who was on upper level, you know, the top level the people that were closest to the president, haldeman, erlichman, mitchell they're the three the government, really, that the special prosecutor really wanted the most. and two of them were handed over by. john dean once again, looking back, it looks to me like there was a lot of reason to think haldeman erlichman did bad stuff in connection with the cover up. was that's not the question. question is should john dean have an able to make himself look like he was the the innocent person watching all of this go down as opposed to somebody who had an incentive to and changed his story to make erlichman and and haldeman? look as bad as he could make them and eventually he dangled the biggest the biggest target of all the president guess who i believe, jeff, i have this that this this memo. but don't this is this he's dangling the president now at the very end as perhaps the final a bit of bait to get him immunity. well, he's been fired on april 30th and it says on may 30 starts talking about nixon. and in his book there's there's an allusion you got you've got to look for it. but his lawyer tells him they're after you. they're going to they're going to call you to account. you've got to start pitching conspiracy. so again, my very biased name says, well, of course, there was a conspiracy. i was running it and i can tell they're a part of it and i'm only to people you really want to get. so you got to be nice to me. i won't tell you about them now. the ones on that's on tape, we can argue or what the tape says. it doesn't say the meetings with haldeman and erlichman. it's just word against theirs. well, let's hold off on that for just a second. judge silberman, do you agree with the professor that? this was pretty material that should have been disclosed? i think it's classic pretty material. do you think failure to disclose it if it came out? haldeman and when we're convicted, would likely have resulted in a reversal of those convictions? yes. well, depends whether you had a number court of appeals. 5 to 6, 5 to 1. right. all right. i'm sorry, jeff. i interrupted you. please continue. well, no, i think. i think i'm through. i would like to cite a case. in fact, the prosecutors cheated didn't do brady and it was thrown. and that's the next document. that's the next one. that's document number number 12. this is an intriguing case. this is nixon's tax lawyer and he successfully removed the case to california is being heard in los angeles. and the the it's before a democrat judge and what's is they've discovered in the course of the trial that the prosecutors somebody had changed their mind and didn't disclose it and it's the third paragraph right down there at the bottom of the opinion where he says, you know, this is this is hugely important. this is the judge. well, this is no ordinary matter. we're talking about president. the public interest in. the resolution of the issues raised by government indictment is manifest. but the public has greater interest in the proper of our system, of criminal justice, the defend it demarco has moved to dismiss charges against him on the grounds of prosecutorial misconduct, and that motion must be granted now, i'll only bring this up to show that they do they passed cases on on the basis of lack disclosure of brady material. they tossed the case against very poetic special prosecutors and here it is and i would because i'm so biased there were very few cases tried outside the district of columbia and every single one of them resulted in an acquittal. and of course, there was a massive number of cases tried within the district and. all but two resulted in conviction not that there's a pattern there, but it's really surprising. you know, the district is tough place for a poor republicans. so if i can stop there, i can now go to the last item, if i may. we still have a half hour. the the feds sort people should put up that code again at this point, if they have access to that code, this is a very good spot. and they should also tell us when we have to break, hear questions. yes. okay. so the cle code for the half is no. notice. it is different from the earlier code and you have do this correctly, don't mess this. i'm going to read it a second time. to get clear now just to warn those lawyers, we have to have three full hours instruction that we rounded off toward the end. you'll only qualify for 2 hours in some states. so we've been watching clock. we know when we started which was a touch afternoon we know we took a ten minute break so we're going to go that. past 3:00 in order qualify for that third hour of clay and in case you don't think this whole thing is so entertaining, you do it for free. and that's what people will tell us what that number is. but right now i'm going to go to the fourth area of of view, which the seemingly partizan choice of defendants and i want document number nine to be posted. here's document number nine. see, we're all prepared to do this. it's marked up at the top. final decisions. now, this is part of the fascinating stuff about these guys. they wrote down everything. this is the watergate task force comes in and says, here's who we think where to indict in the comprehensive cover up indictment. here's who's already pled cooperate, coconspirators, all that kind of stuff. and the task force makes recommendations. this is run. ben-veniste at this point, he's acting actually the head is james neal. but the acting head has been fantastic. and then the senior staff, jaworski deputy phil lacovara, james and a couple of others, they debate whether to follow the because there's no within the department of justice if they were within the justice department would have been an outside review. this is an internal review we're going to contrast. paragraph two and we're going to contrast that with paragraph five, paragraph is chuck colson is the most prominent nixon defender in he's the one who's so famous for saying i'd run my grandmother if it would help reelect nixon. so the people who don't like nixon don't like chuck, but he wasn't that involved in the cover up. we don't like he's very prominent but he's not an integral part. so it's it's right here typed on this version prepared by peter kremlin on the basis of is the assessment of chance or self conviction of colson on the evidence leon jaworski has, he should be included white house has decided not to make available the tapes that colson's david wanted us to hear. ben-veniste said the evidence shows colson is member of the conspiracy and there's a 5050 chance of conviction ruth, whose deputy dissents from this recommendation and what's causing the death is the rules for the u.s. attorneys say. we know you can show probable cause that's not the test. and somebody you have to have a high degree of confidence that a jury knowing, what you know, will in a conviction we don't just people for the fun of it and here the task force may be by mistake it may be it just slipped out they said well you know he's not like the others the chances of conviction are only 5050 and you ask he says i'll go anywhere. now we're showing you this one. but are handwritten notes from these segments that i've reviewed and they're pretty consistent. jaworski says. i'm familiar with the evidence i've met with colson. i've met with shapiro. it's a weak case, but i'm willing to sign the indictment because. and then one set of notes says he's going to plead anyway so we don't have to prove the case. and the other and that's from james goldberg has has to ask he's saying, because i'd really like to nail it. so that's the they handled chuck colson now compare them with paragraph five down here with the way they handled bill bittman. that's not a name. you know but bill bittman was hunt's lawyer and he was coordinate aiding the defense amongst the cubans. and howard hunt. and he was accepting the money being paid on the side and redistributing it to. the lawyers for the other defendants and he knew that colson was threatening to revive his memory if his legal bills weren't paid. but he tell the prosecutors that so that money is dirty as he can be. but it's a different case with bit one because he said is a democrat hero and he doesn't the narrative he's not with the nixon white house. he's not one of the crooks showing up for work every day he's one of the lawyers and his guilt fouls up the marital art. so what this goes on to say is to point out how jaworski refuses. i mean, this is the unanimous of the task force to indict bittman. they think that was dirty, easy. you can be. but he refuses and if you scroll down a little bit on this same i've highlighted in crampton wants to him, he said the point's not batman's motive that changed to self-interest. it's batman's facilitation. blackmail by hunt was criminal. and then frampton said bittman conduct on behalf of his client when way beyond legal limits. and that's such a motive was no involved or down near the bottom says conduct wasn't just a single bad judgment. defending client. he knew exactly what the costs were of what he did. and jaworski got to read between the lines here he attacks them. he says he was justified wounding his client. let's go down to the very bottom. joe warner is the only female on the task force. she is arguing for indicting bittman and tells wallner, if you ever wanted to be a criminal defense lawyer, you are. if you took the position you're advocating here this morning, i mean, you get you know, you can't say that stuff anymore today. so we have this contra bittman, the democratic walks free. colson, a republican. the week evidence gets nominated. let's take one more minute because we have just a little bit of time. why bittman, a democrat, he wrote and this is key. one. he won the first case in the conviction against hoffa. and that was robert, big effort to get hoffa squad and bittman prevailed but as importantly this is my view bobby kennedy to try to bump lyndon johnson off the ticket in 1964 didn't like him didn't like this cornpone texan. so the way he was going to do was go after bobby baker, the secretary to the senate, when lyndon johnson was majority leader and baker was corrupt as it be, bribery and everything else. so they indicted bobby baker, but then jack kennedy got a assassinated in lyndon johnson, became. and bobby kennedy was no longer attorney general and there wasn't personal, overwhelming need to replace johnson because already president bill bittman conducted the bobby baker prosecutors mission without lyndon johnson's name ever. coming up, leon jaworski is a protege of lyndon johnson. it's not in the memos in shepherd's bias, but there was no way in the world he was going to name when bittman saved lyndon johnson. judge dimond? well why don't we forgetting for a minute the partizan political why don't talk about a prosecutor's decision, charge someone and not charge someone and jeff has provided me very kindly with a speech made by justice jackson. jackson, when he was attorney general of the united states. this is in the summer of 1940. he had been solicitor general and would become a member of the supreme when he was attorney general. and he was making a speech to united states attorneys from across the nation who had gathered in. and it's a long speech, and i'm not going to read the whole thing to you, but i'm going to read a couple of paragraphs, whatever prosecutor practically required to do is select the cases for prosecution and to select those in which the is the most flagrant and public forum, the greatest and the first, the most certain. if the prosecutor obliged to choose cases it follows, he can choose defendants very is the most dangerous power of the prosecutor that he will pick people that he thinks he should get rather than pick cases that need to be prosecuted. professor did leon jaworski pick the cases or pick the people he thought should prosecuted based on this particular memo? i want to start by saying i loved that speech that he gave to the department and i referred to it often he really did identify the role of a prosecutor. when you see this particular memo, it's it's hard to to conclude anything other than there's a total inconsistency here. the idea of charging coulson when henry ruth who was one of the elite basically said no, that he didn't think he should be charged. and the best you could say is it was a 5050 chance of a conviction and not charging. bittman when the apparently overwhelming judgment was that he was certainly someone they could convict demonstrates that that i think what jeff said, that coulson was close to identified with nixon he was hated. he got charged. i didn't know the history of bittman but i all i can can judge from this memo is leon jaworski had his made up period the end bittman was not going to be charged and jeff, i wanted to ask you one thing. if bittman had been charged, what do you think they would have charged him with obstruction of justice, conspiracy? they might even have said he was in on the conspiracy to obstruct justice, but he had colson wrote, i'm sorry, huck, because he was hunt's lawyer. right. hunt wrote a memo to bittman and said, if these guys don't pay up. i'm to revise my memory. and bittman didn't pass that. to the prosecutors after the thing fell apart. it was his law firm that found it in the and gave it to the special prosecutor, hogan and hartson, and said, you know, this memo exists now. what happened instead was hunt met personally with a lawyer for the committee and said, pay or i changed my mind and we're going to get to that much later. if we do. but they had written proof of pittman's criminality. it would have been a very strong case. but again, it fouled the narrative because hold on, jeff, just just for one second. we have a panel member who has at least a bit of an official history with coulson, judge silberman goes the silberman what do you think of as reflected in this memo the decision to charge coulson. well. i admit, i fought with coulson for over two, almost two and a half years. i despised him. that labor you were looking at her. and then under secretary of labor as, undersecretary of labor. i won't go through all the things he tried to do. you try to fix cases. the labor department. i instructed people not to talk to anybody in the labor department, not to talk to galston my permission. we showed him much. he tried to get me fired at one point. so if i had been white, had any role in the case, i would have recused myself. basically coulson but i agree, with looking back on it now, i agree entirely with jeff. it looks as if jaworski was biased. coulson was so desperately unpopular. i he was target number one and indeed i'll tell you this story when he tried to fix cases and i objected violently i came to john erlichman to complain about calls trying to fix cases in the labor department or the nlrb and erlichman said the most interesting thing to me he said, larry, there's not a thing i can do about coulson is the second most powerful man in country. well, that's disproportionate story. if could i was intimating the only meeting i was having in paulson's office office was across the hall from my and nixon asked to see him and he was in his hideaway office in the old building. and so of course he stepped around briefly to go sit next and john hall, who was coulson secretary, said come to the window. i want to show you something. she said, i promise you, within one minute, haldeman come across the street to nixon's office. and sure enough, haldeman comes running out of the was way up the to nixon's office. and she said, they've told the receptionist outside his hideaway office that get fired if. colson gets in with the president and doesn't alert haldeman or erlichman and so when he gets alone with the president and he plays to the president's side, that they've got to be there to stop nixon from making a mistake. and one of the things they were most proud all in the beginning, second term, they got colson out of the white house. nixon wasn't going to run again. we don't need this guy. get him out of here. but as larry. when the when the chapel colson was the most hated people in america. he personified the dark side of -- nixon every body, knew. let me let me in thinking about it. he reminds me of the former mayor of new york. giuliani yeah. nice target, professor. a. you've practicing for while a little longer than i have. can you really say that the decision that whoever the chief prosecutor is in a particular office makes to charge people not in a discretionary decision whether or not to charge not the police bring someone in because they caught him robbing bank but an investigation proceeds that decision to charge that decisions are always is a 99 and 44 100% pure no such. yeah i agree with judge silberman it's your hope my my experience if you if you appoint good people who are trying to do the right thing they will the right thing most of the time. but we all have our biases. some implicit, some and there then you help but be affected by by by your biases. and they do result in people walking who should be prosecuted people being prosecuted, who in if another prosecutor were leading the office would not be. it's just the way of the world. and we're human and we'll never be we'll never be perfect. and again, this is a this is a we're watching the sausage being made. i ask the question, jeff, is it time for us to take questions? well, i want to do one thing before we do, because, of course, we've the second half of our program. but i want to read a teaser because i think people will just as intrigued with the second half thought we could put up a document. this is fun and. let me explain the context. hank ruth, the deputy becomes very concerned the house judiciary committee is going to get rolled and nixon is going to walk. so he says, we have to help. and jaworski says, just not our job. our job is to prosecute cases. that's their job. and jaworski ruth writes back and says, but they're floundering and we have to help them. and this is what jaworski writes back now. it's a draft. it's dated january 21st, but i just think this is fascinating and i'm going to read it to you. i believe the written between us on dealing nixon in light of the evidence because they afforded opportunities for thorough consideration of questions, answers. but i'm beginning to wonder whether they're not wasted effort. some of the comments in there last memo almost preclude further discussion of deferred because of the don't do justice to come and reasoning judgment. scroll down, just touch more. i said before, and i emphasize again the mere conclusion the president is not indicted about or should not be named an unindicted coconspirator furnishes no basis for us pursuing still another course, beset with restraints that should not be violate. i mean, this if it is not sound in a law or policy to indict the president, if it's not sound in law or policy to name him as an honored coconspirator. it cannot become so simply because the efforts of the house to impeach are frustrated differently stated. if the house bogs down and impeachment, because a lack of evidence that cannot properly and legally be released to it or because of its own failure is the unendurable process and does not perforce shortcomings become indictable. i mean, at this point, this is january 21st, 1974. jaworski is to help the house disinclined to name nixon and unindicted coconspirator. he gets rolled on boat. now down just a little bit more. jeff, we're running out of go. we want to go to the cross. come on, jeff. jeff, i don't think at this point you're, i think we're all over the hill. all right. you're much. let's i think we should go to questions. all right. all right. i received. jack or nathan. you're going to read questions to us absolutely happy to go to audience now or remind our audience that you can use the q&a box at the bottom right of your window. i'm jack derwin with the federalist practice groups and we have a few questions queued up and as we waitress and more filter in, we can to the few that we do have from early on in the panel, somebody was wondering specifically you, jeff, to be interested in your perspective on president nixon's remarks and his interview, david frost, and whether the movie dramatization of that seems generally fair and unbiased. well, the public's knowledge of watergate, visual knowledge of watergate stems from three things. the ervin committee, which were pretty much one sided, the movie all the president's men, which is pretty much one sided and, the movie version of the frost nixon interviews, this is one of those situations where you could buy the dvd of the actual interviews and. you could read what he said or you could go to the movies and you could watch peter morgan's interpretation. the entertainment interpreter version of those interviews. and what's really funny, they asked franklin gellar, who played nixon and looks like nixon. they said, did you study richard nixon, so you could play him correctly? and they said, no. i studied the carol. after that, peter morgan wrote so i could play it way. peter morgan wanted it play in. it comes into focus. and one most intriguing thing in the movie, nixon confesses to being a part of the cover up, but he never in this. in his interview with with david frost, he doesn't say that. he says, look, the question was intent and i had no intent break the law. so i don't think it's a fair i've got a nest egg on my website about the movie, but i don't think it's a fair portrayal of richard nixon. or writing. next, we have a question regarding how well i have come to have an extremely negative view of richard nixon, unrelated to all the we've been talking about. so based on my own experiences and subsequent information information, so jeff and i are someone in disagreement about this, but we're also old and dear friends. we this sort of thing almost all the time. right. there in question. so we have a question here regarding lack of our july 23rd, 1974 memo, in which he concedes that the law of the case principle may not bar future appeal, raising the expert date matters. does anyone see an avenue today by which a motion for dismissing any and all of the sirica courts watergate convictions can be. well, i think what lacovara means the memo is they didn't they didn't issue an opinion they just denied the writ. so this could be raised again. the recusal issue could be raised again on appeal after the coverup trial. that's the illusion. then the question is, could you challenge this stuff today. these people may have different. one option is a writ of calm noblesse, where one of his descendants could come into court and, say unfair. the wrongdoing continues over that would be expensive. that would be difficult. you'd find it in the d.c. district court. there may be another alternative kind of on the line along the lines that larry silberman alluded to someone could bring to the attention of the department of justice wrongdoing and say you can't stand silent. don't you try, to do that. if the justice department department can. go ahead, jeff. go. all right. thank you. yes. we weren't going to skip this part, but last october i learned there was a specific unit within the department of justice called the office of professional whose sole is to pursue allegations of attorney misconduct by department justice attorneys. the day learned of the existence of this unit was founded under the ford administration. i filed a complaint of attorney miss and over the course of the following year i followed up with ten separate letters raising points which all on my website. lately month not having heard anything back from them. i received a letter and the letter said my characterization. but it's up on website. we don't to look into this. it's too long. those people aren't with department anymore and we aren't sure that the partment is responsible for their activities. now in preparation for this, i haven't responded to their response. it's right here on my desk. i wanted to wait till after the storm, but judge silberman brought up an point in the guidelines. it says doj can get involved in allegations of gross improprieties. so i don't see how that of justice can claim. they're not responsible for actions by the office of the special prosecutor. if we can move for a second, jeff, i'd like to ask the professor rid of quorum nobis as never. i never filed one as a lawyer and i've never had one filed before. may the famous one i can think of is alger hiss. this petition for a writ of quorum nobis which was denied, and that denial was upheld. but it petitioned for a writ of quorum. no, this is to cure a manifest great injustice, is it not? it is. it's based on facts that were not in the record, which cast doubt on the conviction. the case i mentioned, you may remember the korematsu case for korematsu case. yes, sure in the forties where the court upheld the internment of japanese while fred korematsu relatives filed a writ of quorum. no this in the district court in, san francisco in the northern district of california was assigned in maryland. all patel and she discovered that the united states had lied to the supreme court in the korematsu case that they had withheld evidence that suggested the japanese were not a threat. they distorted the record, and she granted the writ of quorum notice. the united states tried to have the appeal dismissed. to have an appeal, but it didn't go anywhere. and so his conviction was reversed. was reversed. i can't remember. think it was in id so would be almost years after his conviction. i was told by one of the panel members that my thirst for unethical findings against the prosecution force is is not worthwhile is beneath me. and my response was, i don't care about disciplining these lawyers. i think those convictions are invalid. and i think the department of justice someday will come into court, as it did ted stevens and said, we support these verdicts, material come to our attention. it's stuff. i, i don't know the case where the department justice. oh i don't half a century after the fact comes in and says we want this conviction but if a member of a family of a watergate were to file a petition a writ of quorum. no this this would be interesting in light of the response jeff got, which is these were not our employees. that's how i read it. when you sent it to me, these these guys didn't work for and we have things to do than dip into this 40 year old, 50 year old. right. i allegation of 50 year old impropriety. but if if a quorum. no were filed by john doe's son saying i want my father's name cleared and he did that in the d.c. district court steve salzberg what do you think the doj and he gives the reasons. he gives are these ex parte communications with sirica because that's really all we have in writing. what do you think? and the and the exculpatory evidence that jeff has found about the evolution of the key witness, this version of acts and a decision the way decisions charge were made you think a half a century later that rises to a level of granting a writ of quorum notice. professor not on the third point that the charging decisions but i do think the first to do the the the ex parte aiken attacks not just one the many ex parte a contact the arrangement to have surrogate position so he could make himself the judge and sign all the guilty pleas all the cases to him and john and the the changing testimony. john danger, i think, is a pretty good chance to be granted. now, i add wasn't persuasive that these guys taking records with them amounted to a cover up and prevented timely discovery? well, the way brady works is anything the prosecutor has in his or her possession that is exculpatory as brady material to be disclosed. i don't know that it would have been disclosed any quickly if it went to the national archives right away and the that they gave it to the national archives. look, we haven't discussed why these lawyers, all of them very accomplished people would have recorded this kind of improper behavior and then given it over the national archives. that's why they gave it over, because they died. and that's what amazes about this. i, i have the impression that if they recorded what they did record, i wonder if they didn't record other that's even worse it kind of out at you doesn't it judge. yes. the the big discovery was leon jaworski is confidential. that's where most the dynamite memos come from. and i think what did what he parachuted into the middle of a battlefield and nobody trusted not archie stapp nor certainly the white house and the judge kept calling him over and what he decided do i think is make concurrent notes so he could explain because some those memos say, you invited me over. that's why we were there then i think that into his decision to a book and he just like nixon doing with the tapes he was keeping concurrent notes for him mean on company time on company stationery with the company secretary so he could write his book and took the stuff with him. some people do this, they take documents improperly from both that basis so they can refer them in the future and then there's one other possibility. it's possible he wanted it to come, but i don't think so. but jeff. jeff here today, he's he's he is implicating himself in improper conduct. if you're saying he wanted to get back at these people who never really accepted him and who strong armed him. i understand. but he he's describing his own boss conduct. i think there's a code that just been put up as our cue that our are this this is over. am i correct, jack? that we could probably fit in another one or two questions, but we got to make sure we got to make sure we get the third hour. you honestly that's jack. yeah i can go ahead so it's not. i believe in the chat. ross, we're going to the sign out sheet now for those of you seeking, please use that to sign up we'll leave that will be posted a few times through your benefit okay i do think we can address another question or two here, if that's all right with you jeff and other panelists. no that's fine. go ahead. right. yeah, we have an interesting one here about how this sort of played out the time at the time when the present moment was made, an open court than anyone in the press or other observers pick up. that's something odd or suspicious was going on. give me the second half of that question. anybody in press or other observers pick up? that's something out of the ordinary. it was going on. well, no, back then there was a uniform, monolithic. there were three networks, abc, nbc, cbs, two national newspapers, the times in the post and two weekly magazines, which were hugely influential time and, newsweek and they were uniformly disdainful of president nixon. so you had a hounding of him without letter? i mean, almost from the time he got out. yes. but nixon was not liked by the mainstream press, and it was to the point of grave dancing dancing. we couldn't get our story out. now, last june it was the 50th anniversary of the break in, which was more news. and in some discussion groups it was observed that if talk radio fox news, newsmax. existed and podcasts back with nixon, he would never have been driven from office, that you would get. and this was not said happily this not said regretfully this was said because the paper said it don't like what's going on today. they don't like the object of their fury to be defended by anybody. but nobody, with the exception of chuck colson, was going to venture out. we couldn't get lawyers. i mean, that's in the news today. well, i remember thinking at the time a is going to be driven from office because he can't find a lawyer willing to defend him. now, then jim, you. hey, wait a minute. here. jim st clair. no, no. this is sinclair. was their member. we went through jj sullivan and chappy rose and the guy who came up from miami beach, sam powers. remember maury liebman? maury was managing partner. sidley austin fine. got them. and he was haig's best friend. and he'd come in all the time trying to suggest another lawyer, the sprague from philadelphia, somebody else. and they couldn't make a deal and then they got jim sinclair. now, jim sinclair was superb, but he had no staff, larry. we were we were faced off against 30 lawyers from the ervin committee, 60 lawyers from a special process tutor, 45 lawyers from the impeachment committee. and we had as sure very familiar some lawyers, but it was a pick up game. it was a ragtag bunch of bunch of people. we had no colleagues. it had been established, i want you to litigating, jeff, with all due respect. i think we've answered the question, jack, you want to ask, do you want to pose. and i guess it was you got another question. do you want to close out on? it's a little bit forward looking, jeff. why don't you forward for us? oh, you where are you going? to read a question. yeah. based on these lessons learned. i'm sorry i thought i thought you were telling us to close up. i'm sorry. go ahead, george. sorry we can use this as sort of a closing statement. how can we improve transparency and integrity in prosecutions, particularly of high ranking executive officials and other top political employee appointees? well, if you. well, what really are the lessons learned? one, independent prosecutors don't work. i think we might get universal for that, too. your only hope for the future is a free and vibrant press. i don't like the press, but i don't like articles that i disagree with, but that's what keeps honest and maybe others have other ideas. certainly attorney general jackson's admonition to the us attorneys is the best statement of what's expected. but when you pass it, there's no easy answer. we to have good people making correct decisions. there's a move afoot now to amend the rules. i was on the civil procedural rules committee and there were there were all kinds of proposal to amend the rules when least some have suggested the root problem is district court judges. we won't do our jobs. we won't manage the civil cases before us. we won't discovery and if you don't have a judge who's willing to do his or her job, no rule change is going to make a difference. and i think that's true in the criminal sphere as well if you have prosecutors who don't honor their oath of office. even a vibrant press won't necessarily be able to sniff anything out. and what we see here, what jeff has has uncovered can happen. it's it's it's it it it it violate any notion of due process. i respond and in a way i echo jeff's that as i look back on it and think how i was influenced by cell as events transpired, the uniform press hostility, the nixon indeed to any republican but particularly nixon based on his race against helen geoghegan douglas in california you and his chairmanship of the house un-american activities. meant his the hostility elites was absolutely uniformly against them and that was true of all the press and media. and i think that's the explanation for the behavior of everybody involved, no matter what you did, as long as you were after nixon, you were going to be protected. well, one intriguing thing that i think about, lot, larry and i are both graduates of harvard law school, but happened to go to college, whittier, where nixon won nixon awarded a harvard scholarship to go to harvard college by the of orange county. any couldn't afford go. this was the depression he couldn't afford to go he was needed in his family's business because he drove downtown at 4 a.m. every morning to buy fruit to bring back the store. so throughout his whole life, as he's been just pilloried by the ivy league elites, he knows. but for his poverty, he might have been there to. and i just find that poignant. well, i just want to point out that professor salzberg and i went to the university of pennsylvania law. i simply want to point that out. but i've got an excellent, excellent education and i address that. i actually think if look at the tapes that are now published concerning nixon's private discussions with erlichman and haldeman, there are two categories of people that he distrusted and disliked intensely. one were harvard graduate, and the second were --, and amusing thing is, his administration was rife with both. it really and as is this panel, as is this. now, let me take a second on that, because larry and i go and i think we're way, way out of time, jeff. i mean, way out of we got two years. we got to use up the deficit. it's 20 after three. well, that was the ten minute break and then there was a late start. so we're right on the ball. whatever jack says, jack's got the jack jack's got the watch. what do we have to go to jack? one more chance for closing statements and then wrap up. all right. let me i insist insist if i can remember my larry says, look, he hates harvard people. boy, did he at any he says disparaging things about the -- the interest he thinks about nixon's cabinet. i give speeches at harvard i'm a graduate of the law school there wasn't a single harvard graduate in his cabinet but dozens dozens of them in the sub-cabinet. now, they tended to be school and law school graduates, not the college, but the place. i mean, harvard's a great university and they picked great people and they assumed leadership roles. the argument over the situation is intriguing because. it's usually not always, usually he's expressing frustration that he's done so much for them and for israel and they vote a pure democrat lot. and so some of them he's not he's talking about them as a voting bloc. but i had he had dozens of -- in his administration that he appointed it arthur burns and henry kissinger and herb stein. i don't i don't think they get sally credit for this kind of opportunity. garner and heard up. thank you enough, jeff,

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