Watergate:
Ex Parte Communications
EDPA JUDICIAL RETREAT
NOVEMBER 14, 2016
Americans did likewise, such that only Gordon Liddy and James McCord
actually went to trial. Neither put on a defense (other than cross-examining
government witnesses) and both were found guilty on all counts.
At the trial’s conclusion on January 30th, Judge Sirica announced his
disappointment in being unable to ascertain “the truth” behind the break-in,
provided prosecutors with a list of individuals whom he demanded be called
before the grand jury, and called for a Senate investigation. Sentencing was
scheduled for two months hence, on March 23rd.
The Senate created its Select Committee on Presidential Campaign Activities
by a vote of 77-0 on February 8th. It was called the Ervin Committee, after
its chairman, Senator Sam Ervin (D-NC).
James McCord submitted a private letter to Judge Sirica a week before
sentencing day, asserting that there had been a cover-up, that perjury had
been committed, and that blame was being improperly placed.
As we now know, there really had been a cover-up – which collapsed shortly
after the McCord letter was made public by Judge Sirica on sentencing day.
New investigations were launched and people lawyered up.
Both Jeb
Magruder (who had been Mitchell’s deputy as CRP’s chief of staff) and John
Dean (who had been counsel to President Nixon and, by his own admission,
“chief desk officer” of the cover-up) sought out Earl Silbert to turn state’s
evidence and reach a plea bargain to testify against their former superiors.
On April 30th, President Nixon announced new developments in the case,
and accepted the resignations of H.R. “Bob” Haldeman, his longtime chief of
staff, John Ehrlichman, his head of domestic affairs, John Dean and Richard
Kleindienst, his then Attorney General. He also announced his nomination of
Elliott Richardson to be Kleindienst’s replacement and stated that Richardson
had the authority to appoint a special supervising prosecutor.
At Richardson’s confirmation hearings, he agreed to the appointment of his
Harvard Law professor, Archibald Cox, to be special prosecutor. Cox quickly
appointed two other law professors as his advisors, James Vorenberg and
Philip Heymann. Silbert and the career prosecutors were replaced and Cox’s
new office grew to be a hundred strong.
Ultimately, their investigations were grouped into five separate task forces:
The Watergate break-in and cover-up, the Plumbers investigation of Daniel
Ellsberg, campaign practices (dirty tricks), campaign finance irregularities,
and the ITT scandal.
The Senate’s Ervin Committee began public hearings on May 17, 1973, but it
did not attract much national attention until John Dean’s dramatic
appearance (testifying under a Senate grant of use immunity) beginning
June 25th. The hearings became even more dramatic on July 16th, when
Alex Butterfield revealed the existence of secret taping system, that
recorded all Presidential conversations, which had been installed in February,
1971.
Legal battles ensued for selective White House tapes, the first nine of which
were subpoenaed by the grand jury within the week. That subpoena was
upheld by the D.C. Circuit on October 12th.
Meanwhile, John Dean’s plea bargain (pleading to a single conspiracy count)
with the special prosecutors was formalized during his October 19th
appearance before Judge Sirica. The following day, Nixon ordered Elliot
Richardson to fire Archibald Cox, who resigned (along with his deputy)
rather than comply. Robert Bork became Acting Attorney General and
terminated Cox’s appointment. These actions resulted in a firestorm of
protest known as the Saturday Night Massacre. The following week, the
House of Representatives quickly ordered its Judiciary Committee to
commence an inquiry into the President’s impeachment.
The following week, White House lawyers announced that they would turn
over the subpoenaed tapes. Two of the requested conversations had never
been recorded, however, and a third had an unexplained 18½ minute gap.
This led to an evidentiary hearing inquiring into the validity of the White
House taping system, presided over by Judge Sirica.
Texas attorney Leon Jaworski was appointed to replace Archibald Cox as
special prosecutor on November 5th. Judge Sirica, by now a national figure,
was named Time Magazine’s 1973 Man of the Year in January, 1974.
Indictments in the Watergate cover-up case were handed down on March
1st. Defendants were charged with conspiracy, obstruction of justice and
perjury. Parallel indictments in the Plumbers case came down a week later,
on March 7th. Judge Sirica appointed himself to preside over the cover-up
trial and his colleague Gerhard Gesell to preside over the Plumbers case. On
March 19th, Judge Sirica turned seventy and was required to step down as
Chief judge, thereby losing the power to appoint judges out of normal
rotation.
Legal efforts to obtain copies of the White House tapes by the Senate’s Ervin
Committee and the House Judiciary Committee’s Impeachment Inquiry were
unsuccessful. On July 25th, however, the Supreme Court enforced the
special prosecutor’s subpoena for sixty-four more tapes.
One of those tapes, which had been recorded only six days after the
Watergate break-in, had the President concurring with his staff’s suggestion
that they get the CIA to tell the FBI not to interview two potential witnesses
– and seeming to confirm Presidential involvement in the cover-up from its
very outset. Public release of this tape, quickly known as the Smoking Gun,
led to Nixon’s resignation four days later.
Newly installed President Gerald Ford granted Nixon a total and complete
pardon one month later, on September 8th. The Watergate cover-up trial
began one month after that, on October 1, 1974, with John Dean as the
principal prosecution witness. The trial concluded on January 1, 1975, with
John Mitchell, Bob Haldeman and John Ehrlichman being convicted on all
counts.
Charles Colson pleaded guilty to a single count in the Plumbers case, Gordon
Strachan was severed due to complications from a Senate immunity grant,
Ken Parkinson was acquitted at trial, and Robert Mardian’s conviction was
reversed on appeal. Neither Strachan nor Mardian was ever re-prosecuted.
Special Prosecutor
Appointed
May 25,
1973
Cover-Up
Collapses
March 23,
1973
August 9,
1974
President Nixon
Resigns
January 1,
1975
Cover-Up Trial
Convictions
3 CRP Officials/4 Cubans Convicted January 30,1973
(Gordon Liddy, Howard Hunt and James McCord)
Senate Watergate Committee created February 7, 1973
Break-in Trial
CRP Break-ins: May 28 and June 17, 1972
Liddy’s Intel Plan Reviewed: 1/27, 2/4, 3/30/72
Critical Dates
Jeb S. Magruder
White House / CRP
White House / CRP
White House
Justice Department / CRP
G. Gordon Liddy
H.R. “Bob” Haldeman
John H. Mitchell
White House
John W. Dean
White House
John D. Ehrlichman
– (1) In the course of official proceedings in the cause.
– (2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
– (3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
– (4) As otherwise authorized by law, or by Section A(4) under Canon 3 of the Code of Judicial Conduct
• (B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
DR 7‐110(B), ABA Code of Professional Responsibility (superseded)
– (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
– (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order….
• A lawyer shall not:
ABA Model Rule 3.5(b)
(current)
• A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to ∙be heard according to law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. …
Canon (3)(A)(4), 1972 ABA Code of Judicial Conduct (adopted for the Code for U.S. Judges at the time)
– (a) initiate, permit, or consider ex parte communications as authorized by law; – (b) when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; …
• [E]xcept as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may: Code of Conduct for U.S. Judges Section 3(A)(4) (current)
8
7
6
5
Phil Lacovara & 1/2/74
To follow up on a rumor about Silbert that Sirica
Peter Kreindler
had heard at a New Year’s Eve party
Jaworski Staff
12/14/73 To discuss status of Watergate investigations
with judges Sirica and Gesell
Leon Jaworski
1/74
To discuss whether a sitting President could be
indicted
Leon Jaworski
2/11/74
To inform Sirica of the prosecutors’ intent to
have the grand jury issue a sealed report about
President Nixon to the House Judiciary
Committee
Leon Jaworski
3/1/74
To coordinate timing of the cover-up indictment,
such that Sirica could appoint himself to preside
over the subsequent trial
4
Courtesy call on Sirica on Jaworski’s first day in
office
Leon Jaworski
3
6/73 &
7/73
11/5/73
Archibald Cox
To tell Silbert how Sirica thought the
prosecution should proceed at trial
Unknown
2
1/73
Earl Silbert
1
Ex Parte Communications
Summary Meeting Chart
Vorenberg’s staff meeting notes (at
Harvard’s law library)
Lacovara’s 1/23/74 memo to
Jaworski, Jaworski’s 2/12/74
memo, and Vorenberg’s staff
meeting notes
Jaworski’s 2/12/74 & 3/1/74
memos to file
Sirica’s book: To Set the Record
Straight (1979)
Newspaper reports cited in
defendants’ appellate brief
Jaworski’s handwritten “to do” list
(from Jaworski papers at National
Archives)
Lacovara’s 1/2/74 memo to Ben
Veniste
Jaworski’s 12/27/73 letter to Sirica
1.
Ex parte Meeting with Earl Silbert
As Principal Assistant U.S. Attorney for the District of Columbia, Earl Silbert1
was an ideal and idealistic prosecutor. In pursuing the Watergate burglary,
he directed a complex investigation, sought indictments in those cases he
knew he could prove, laid out his strategy for his superiors in a timely and
convincing fashion (explaining clearly how he might go after any higher-ups
once the initial convictions had been obtained), and put on a most
convincing case on the government’s behalf at trial.
Silbert and his associates are responsible for breaking the cover-up—and
they did so in a thoroughly proper and professional manner. Later, however,
they were treated shoddily by the Special Prosecutor—relieved of their
responsibilities and gagged so they could not even respond to press
inquiries—and by many in the media.
Silbert’s professional and ethical prosecution was not good enough for Judge
Sirica, however. The Judge sought a private, ex parte meeting with Silbert.
We know about this meeting only because Judge Sirica describes it in his
own book. Here’s what he wrote:
I like Earl Silbert. I think he’s a good lawyer. I wanted to be
helpful, to share with him some of my experiences which I felt
might give him some guidance through what was obviously a
tough situation.
A few days before the trial started, he was in my chambers
discussing an administrative problem unconnected with the
Watergate case. I said to him, “Earl, look, you’ve got a great
opportunity in this case if you go right down in the middle, let
the chips fall where they may. Don’t let anybody put pressure
on you.”
Before he left my office, I gave him a bound copy of the hearings
conducted back in 1944 by a select committee of the House of
Representatives
into
the
activities
of
the
Federal
Communications Commission. I wanted the young prosecutor to
know just how white-washers were engineered. And I wanted
him to know that I had had direct experience with cover-ups
while serving as chief counsel to that committee.2
1
Files from Silbert’s Watergate investigations are a part of the Watergate Special
Prosecution Force files in the Special Access Section of Archives II in College Park,
Maryland.
2
John J. Sirica, To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the
Pardon (New York: Norton, 1979), p. 38.
2.
Ex Parte Meetings with Archibald Cox
In their attempt to have Judge Sirica removed as presiding judge in the
cover-up trial, the defendants cited two newspaper accounts—dated June 19
and July 18, 1973—indicating that Judge Sirica had met privately with
prosecutors while Archibald Cox was still the Special Prosecutor. In the
earlier article, the Associated Press had reported, “After Cox met with
newsmen, he conferred privately for 15 minutes with U.S. District Court
Judge John J. Sirica and Sirica, without further explanation, scheduled a
hearing for today.”1
This was about the time that Dean’s scheduled testimony before the Ervin
Committee was postponed because of the visit of the Soviet leader Leonid
Brezhnev.
Petition for Writ of Mandamus
Shortly after Judge Sirica had appointed himself, on March 1, 1974, to
preside over the cover-up trial, defendants petitioned the D.C. Circuit for a
Writ of Mandamus, seeking to remove Judge Sirica from further involvement
in the case. One of the things they requested was an evidentiary hearing to
explore Judge Sirica’s ex parte meetings with prosecutors, citing the two
newspaper articles about his meetings with Archibald Cox.
Interestingly, the ACLU filed an amicus brief supporting the Petition.2
The WSPF brief did not mention or respond to defendants’ request for an
evidentiary hearing.
The Circuit Court, sitting en banc and without oral argument, denied the
Petition in a one sentence, per curiam order, along with a vigorous dissent
from Judge MacKinnon.3
This was one of twelve appeals taken from Judge Sirica’s Watergate trials
where the Circuit Court sat sua sponte en banc.
1
2
3
See news article attached at 2-1.
See ACLU memorandum attached at 2-2.
Mitchell v. Sirica, 502 F.2d 375 (D.C. Cir. 1974), cert. denied, 418 U.S. 955 (1974).
2-2
3.
Jaworski’s Courtesy Call on Judge Sirica
At the top of Jaworski’s hand-written “to do” list for his first day in office
(November 5, 1973) is the word “oath.”
On the next line is the notation, “Courtesy call on Sirica.” Neither party
mentions this first meeting in his book, but it must have been an interesting
one—especially in light of what followed.
4.
Ex Parte Meeting with Lacovara and Kreindler
While attending a New Year’s Eve party at his former law firm, Hogan &
Hartson, Judge Sirica heard a rumor about Earl Silbert, whom he was
scheduled to swear in as U.S. Attorney the following Monday.
Judge Sirica called the Special Prosecutor’s office, asking to meet with
Jaworski—who was in Texas and unavailable.
Instead, he met with Special Counsel Philip Lacovara and Jaworski’s
Executive Assistant, Peter Kreindler.1
1
See Lacovara Memo of January 2, 1974, attached as 4-1.
!^,l
, v t"'p-.
1VATERGATE SPECIAL PROSECUTION FORCE
.t
-.,t.,p,
DEPARTMENT OF JUS'[{CE '
Memorendum
TO
Ri-chard Ben-Veniste
FROM :
Pbilip A. tacovar
suBJEcr:
EarI J. Silhert/Alex Butterfield
DATE:
Jan. 2, L974
4't aSrproximately 10 p.m. on Tuesday,
ilanuary L, Ig74r I received
a telephoa".?*1 rl iv__rtor from riaa-crr=istofferson,
to Jud'ge sirica,
1a!e clerk
itated *rat tn"]"age wanted. to see
Jarrorski and me inwho
rris-.i"*u.r* -,v.*iisti possibre the I{r.
crornins- e:l_I r"pii:anext
trr"i lrr.""-""liy ""ooi= ,rol-"*p*cred
back in washington u"aii noonr?odd
staied that r at reast shoul_d
come to chambers_
At 9:30 a'm' on .Tanuary 2?--?ccomp-+isg
by peter Kreindler, r
went to meet wirh .rudgrE airi;;--;;-il=
raw clerk in charrbers.
3he Judge began-uy
=iiting trr-t trre swea:ilg in of Earl
to be the int-e1:*_r-a:-;ti"rney
;r_ silbert
rrras schedured
:
for 12 noon and
that he had
;;";;rion
i::. corng .iout
thar
caused hirn ro
be somewhat concerned
"i]""-r"f;; pro!"="a court-appointment.
The Judge explain"a-rrr"t-.t ,the
p"ity-irrJ'previous-lvening at the
home of a w"1tri5e"-iionyf'
a preient g= fomer member of the
fr'rm of Hoqan .rra na=i;;;-(io+
;il;J;
io*", firm) had tord
-iroot'-silbert
hin rhat 116 rraa neaia;;" things
cause the court some embairasment.
Ai-d,escribedthar misht
by-the Judge,
the story rcas that aru"-J"tt"rFi"ia,-io=1911y
of
ri.a.
staff and now- raa
Hatdeman,s
rrad confidqa to a close friend
that' before l: ryJeenitti"r..tor,
e""rti"tt"E rre was-I-ll"a into Eardemanrs
office and toli
tiEerve- eo".tions he would be asked
and was tor-d rrr"i-a"swJi;
"bori-r;i-i-;" give.
it-i" unclear r*herher the
person to r'Ehom Butterfield. aliegiary-toia
trri, story was the
sane Person as related it to ;udse
si"i"i
t.ii-iiTlt*lru
the immedj-ate source of the story (refeired
likety
to,-,snly as opaulr)
heard about it seconafr""Jl'
JudgeSiricaasked'ghetherwg!newofanythingthatwora1d
indicate that
r..a been thel
or had otherwi_s"n"ir-JliiJi.
n"r*rri-il
the originar waterjate-inGstigatiiiu
--iepeating rT""liitl*rrn
:* ir,.ppropii:!ry:r"t
that r had' given.
the assurance
tfre .ruage-whei rre t*r*ptone. me at
on sunday, December
my home
zg,-igti,-to";"i;ilf
proposed
ment of si-lbert' r toia
appoint_
,the
him that r-rt"a-aiscussed.
in the case borh riirt tr."-;peg11r
silbert,s
role
p.o"..,rtor and with others
this offiee r*ho were il;; ii*iriir-riti"ir,e
in
watergate cover-up
4-1
and vrith the Justice Departaentrs handling of it
we
knew of nothing ro indilate bad fai-th or i*pi"pii;; and that
;"
silbery
part- The Judge asked whether Butterfield, had testified before s
the original grand' joty and. bot"h Peter xieindler and i ex*nressed
our doubts that he Lad-been inte.rogii"e.
The Judge asked for recomrnendations and, r told him that
we would
look i-nto the matter but that the likerilooo-ihat this report
would le1d- to-?ly heretofore unsuspected
about involvement by silbert j-n misconduct rras sodiselosures
that
r saw no
reason fgr d.glalz_ing the appointment. lilhen"iigttt
th6
;uage
asked
whether he should' sfep asiae and allow.ruage-H-rt to administer
the oath or should' at-Ieast discuss these fratters sith the Board.
.
-> /
of Judges, r told him that r;t;-in
no p""iii"" to advise h1u
on whether to avoid_adnilistering the olth io-siru*rt
himself
and r said he could, feeL free t6 ad.vise the Board, of Judges
that we did not- regard EarL silbert's
case as in
any way censurable- I promised^ that r role-in-trre
would
promptly
ascertain
whether we had anything on the eutterii;id-;";le
of this story.
After checking *nltl y?ut- Henry.Ruth,--George Frampton, and Gerry
Goldmanr r ascertainEa that niitrrer wateriate files nor central
files has any record that Butteriield wis-"n""-questioned by
anyone prior to his ?ppearanee before tl.e senate select conmittee
in JUJ-y, L973, r callld back the Judge and toia him of this
conelusion. r stated. that the most
iiL"iy
prior to his senate testimony, sone commiite"-;;;;;;-t";*iJicated
".pi.n.tion was thar
to the white House what trre 1i.t<e1y questions would 6" t9 piesent
or former !{hite Eouse staffmembers- Even though
Ealdenan 1,ras
not on Lhe staff at that time. he apparently siayed,
closeS-y fn
touch with matters and had been-traclc
Butllrfield.i s superior. r told
tfre Judsle that we would try to
dorrn *y l.=is f.or tlre
story.
The Judge thanked. me for this information.
stated that he
had just received a leJ.ephone salL from sara. Ee
Dastr
Ervin
cornmittee who had telephoned, hj:n about trrJ renrindofof the
the
committeers subpoeaa enforcement suit. rrr* J"aq" t"rJ-*"
that he had indicated to Dash, a,good. f.ilralJ""i"ifiy
wfrat
he had told us, and appareatly alio indicaled trr.t he had.
given
us this information.
He said' Dash told. him
that tre corsn:ittee had nottring adverse
about silbert and that its final report would
not contain anv
derrosatory info:roation about hirn. on this usIJ,
iiiiqJ"siri""
indicated to me that since both the conmittee and, ure
had
"cleared'. Silbert, he would proceed_rto sweai-him in as
United
States Attorney as scheduledl
2
r. suggest that someone frora yosr task
force should contast
to_ ascertain whethlr be rrie aavance
any guestions he rsas to be asked ry g"""a"*"nt knowredge of
*rhether before the senate-or beforl g*-gr"od investigators,
jury and what
Ii-R- naldenoan'nav rrive pi.y"a-iffiri*ri*s-o;,
asliegiog
;?i:
Brrtterfield,
cc:
LeOn Jaworski
$:HI
*131,u,"=
5.
Ex Parte Meeting with Jaworski and His Staff
On December 14, 1973, and at Judge Sirica’s explicit request, four top WSPF
officials participated in a private meeting with him and Judge Gerhard Gesell.
In addition to Jaworski, the prosecutors present were Henry Ruth, Deputy
Special Prosecutor; Philip Lacovara, Special Counsel; and Richard BenVeniste, acting head of the Watergate Task Force. Because no record was
kept, we do not know the extent of the meeting or the topics that were
covered. None of the participants ever even mentioned this meeting in their
three subsequent books.
Jaworski had assumed office just the month before, so the meeting is likely
to have been a review of the ongoing and anticipated WSPF criminal
investigations.
One topic most likely to have been discussed was the significance and effect
of the tape of March 21, 1973, especially because it had only been a matter
of days since Judge Sirica had turned the first set of subpoenaed White
House tapes over to WSPF prosecutors.
Although it is not clear why Judge Gesell alone was invited to the December
14th meeting, Judge Sirica assigned to him all the Watergate-related cases
that Judge Sirica did not take for himself. Indeed, Judge Gesell was already
involved in several Watergate-related matters. He had recently accepted
Donald Segretti’s guilty plea, on October 1st, for political sabotage of
campaign opponents. Judge Sirica had assigned him the related trial of
Dwight Chapin, who had been indicted for perjury on November 29th, and
Judge Gesell had accepted, on November 30th, Egil Krogh’s guilty plea for
his role in the Plumbers break-in of Daniel Ellsberg’s psychiatrist’s office.
We know about the meeting of December 14 because of a letter that
Jaworski sent Judge Sirica on December 27th. Jaworski’s letter opened with
the following sentence:
When Messrs. Ruth, Lacovara, Ben-Veniste and I met with you
and Judge Gesell at your request on Friday, December 14, you
suggested that it would be helpful if we could provide you with
some sense of the caseload that we would be generating for the
Court over the next several months.1
1
Jaworski Letter of December 27, 1974, attached as 5-1.
There also is a separate item of interest in Jaworski’s letter—his prediction
that the comprehensive cover-up indictments would be handed down by the
grand jury “by the end of January or the beginning of February.”2 This was
information that Judge Sirica very much welcomed, because grand jury
action within this time frame—before Judge Sirica’s seventieth birthday—
would allow him to appoint himself to preside over that trial.
2
Id.
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:
Unitcd States Departmsnt of Jusrice
1425 K Srrcer, N.Wwasnlnglon, D-C.20005
Washlngton,
lr-L. lLruU)
Decenrber 27 1973
,
pTcS'ir1'!
j
,rt/'r f';ujl
5-1
dreRcATE spEcrAL pRosEcuTroVpcnce
PA.t: sek
Ilonorable Jotin ,y. Sirica
Chief .Iudge
United Siates District Court
for the Distrist of Co]-umbia
Washington, D. C. 20001
Dear Chief Judge 3iri"u.=
when Hessrs- p.uth, Lacovara, Ben-veniste and r met r^lith
you and' Judg:
at your req'uest on Frid.ay, December L4,
you sug-g'ested fgser]
that
it
would be helpful if rse Lould provid.e
you vrith some, sense of the caseload.
that we wouLd be gienerating for the court over the next several
months.
vier^red' the status of ttre investig'"ti"*= eurrentryr have re;;y
yi!+ nry task force leaclers, -and. i.u.rr* put together vrtrat
";;;;
r
believe is a reas.,nabr-e projection
the scale of indictraents that may be returned ,letireen of
the
reginni..g.-or the new
year and the end of April. "'
.--r--------3
Febluary:, r foresee rhe possihir.ity rhar
::-:=:::{^":g_
j yiles may rerurn- ihr"; -;;iA-J;;$;;i-il#:o[ff
ll:_n-:* ;
"
y";r:-eacrr
to
iry
I
ourins
:*:F
:?::u,*:* :ff::=yarely
:3::_::T:. r e,"" ;;i;;i;; :;i,;"fr;;"i;''Jni3..I5;r.iHll
Llfg!\;
l-lll
*."r.=- r also anricipate
t*:lo":":3i: Tlnll_}::. f:r,r"three
voie;-i;
anorher area actively
ll33 i:::::,::*ii3i::*::r
l L.Lrr-LyC1
:: ::i
y::k=_tg
.o
the
tina
Lg
cis;:--A;d'f;;"ii;l*rTlii
Looking ahead to March_and Apri3,
l.ave reason to.
anticipate tr,ro -or three indictnt"n!" ii,.atr may
invorve one_
i'reek--trials, one involving a Lvro-r+eek triar, and
anotrrer
possibly leacling to a three-iveek trial.
of
course,
tLrere
are a number of other matters currently at trre preriminary
stages of investigation rrrhich
reaay for indictnent
during l4arch and ipril .= r',erl-might--n.
Adced. to the cases referred
.
\i/
2
to alrove- a:f,e a rrur.ber of relatively straightforward cases
that, if not terr*i.rrateC by an agreed. upoir p3-ea of guiLty,
should take no more the.n a day or two to try.
I ann sure you can appreciate th'at the estimates I have
given are extremely rough. It isr of sorlrse, possibl-e that
ihe grand. jur-y nriLl el.ect not, to return indiciments in some
of tJrese aieal. In add"ition, rrill.ingness by potential
defendants to agr'be to pLead gruilty before or after indictmeat may substantially reduee the nurnber or Lengttr of tlre
trials.- It.is my opinion, howevbr, that ttre bsti-mates I
lrave given, shil.e perhaps erring on the side of being
overly incLusive, trilt provide you trith infor:nation tbat
you Bray find helpful in planning for ttre assiginnent 'of
cases C.uring tlre earl.y part of tlre new year.
DIo Coubt in making your ot'm assessment of caseload
that rriJ-l- be consuned. betrseen
.you wilJ. consid,er the ti-rne'these
cases by pre-trial motions t
ind.ictments and, trial.s in
particularly notioas for continuances or transfers based, on
pre-tria1 publicity, including the report of the Ervi-a Com-'
mittee rrhich is sched,u3-ed to 'be released in ttre Spring.
-. '.1:'
' *'
, If further infofmatiofr' or detail- woul-d be hel-pful.; I
vrould be happy to respond. to any qluestions ]nou ntay have.
I-,et me take this opportunity to express aglain my Ceepest
appreciation for the extremely careful and responsible rr*ay
you trave been handLing t}.ese. sratters and for- the corrrtesies
you have extend.ed to me and to my staff .'
,
Sincerely,
,/t/
LEON JAV.IORSKI
Special Proseantor
cc: llr . *Taworski
. l.tr. Ruth
Mr. tacovara
Task Force Lead^ers
Fi].es
6.
Jaworski Discussion Regarding Indicting a Sitting President
Harvard Law Professor (and later Dean) James Vorenberg was the first
person to join Archibald Cox as a member of what became the hundred
person Watergate Special Prosecution Force—and functioned as Cox’s top
assistant throughout his tenure.
Vorenberg did most of the staff hiring and was instrumental in guiding WSPF
initiatives. He also urged Cox to be sure accurate records were kept, such
that they could issue a comprehensive Report at the conclusion of their
work. Volunteering to keep those records, Vorenberg kept a notebook of
significant events, which included staff meeting notes.
Vorenberg took all of his files with him when he departed and they became
available for review—at Harvard’s law library—only in the summer of 2015.
His notes marked “For Weeks Ending 2/14/74” contain the description of
tensions arising over Jaworski’s lack of full disclosure to his staff.1 Below is
the author’s expanded transcription and interpretation.
Expanded Transcription
1. President – The memo written by Carl Feldbaum, et al, recommending
President Nixon be indicted, is a cause of frustration in the staff
because Jaworski told them that he’d already reached an agreement
with Sirica, several weeks prior and without disclosure, that Nixon
would not be named. One problem is that some (and maybe most) of
the staff agree with Feldbaum’s memo.
Author’s Interpretation
Carl Feldbaum was Executive Assistant to Deputy Henry Ruth and would not
be expected to author such a memo without Ruth’s tacit approval. When the
memo came up for discussion at the staff meeting, Jaworski dismissed the
idea out of hand, saying that he’d already reached an agreement with Judge
Sirica that indicting a sitting president was outside the grand jury’s
authority—so the matter had already been settled. Vorenberg is noting that
the rest of the staff (some, if not most) are really upset that Jaworski did
this on his own and that he did not tell them he had done so.
1
A copy of Vorenberg’s handwritten notes is attached at 6-1.
Because Jaworski’s summary of his meeting with Judge Sirica of February
11th discusses only the possibility of a grand jury report and omits any
mention of the possibility of indicting President Nixon, this particular
discussion with the Judge must have occurred sometime before that, which
would put it in the second half of January—and would be yet another secret
conversation between Jaworski and the Judge.
Note that Vorenberg is not the least concerned about Jaworski’s ex parte
meetings with Judge Sirica; those have become routine. He is merely noting
that the staff is most upset with Jaworski for having precluded the option of
indicting President Nixon without allowing them to be heard on the matter.
6-1
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7.
A.
Ex Parte Discussions Regarding the Road Map
January 21, 1974
The next instance of prosecutorial coordination with Judge Sirica originated
within Jaworski’s own staff. WSPF prosecutors had concluded that it was
vitally important to share information they had gathered concerning
President Nixon, including grand jury materials, as soon as possible with the
House Judiciary Committee’s Impeachment Inquiry. Their method for doing
so—an interim grand jury report—ultimately became known as the “Road
Map.”
What is significant is the proposal in Lacovara’s memo of January 21, 1974
for another private meeting with Judge Sirica, to make sure that the Judge
fully appreciated that a grand jury presentment was in the works and that
he would be prepared to order its sealed report to be forwarded to the
House of Representatives in the manner that WSPF attorneys desired.1 As
Lacovara explained In his memo, “It would be most unfortunate, for
example, for the grand jury to return a presentment without forewarning
and then have the judge summarily refuse to receive it because of his lack of
awareness of the basis for such a submission.”2
The goal of this meeting, then, was to lobby Judge Sirica in advance of the
forthcoming grand jury report and to gain his concurrence on how it should
be handled. This meeting was particularly important because the grand jury
interim report would contain a copy of the March 21st tape, which the D.C.
Circuit had ruled could be made available to the grand jury. There was no
legal basis for transferring this tape to the House. In fact, in every instance
where the Congress attempted to enforce its own subpoena for these tapes
both the District Court and the Court of Appeals would uniformly rule that
they were not subject to judicial enforcement because of the constitutional
separation of powers.3
B.
February 11, 1974
The meeting that Lacovara had recommended actually took place on
February 11, 1974, even though it was Judge Sirica who occasioned it. Like
their earlier meeting, this one was unmentioned in subsequent books by the
1
See Lacovara’s Memo, Presentment by Watergate Grand Jury Concerning the President,
attached as 7-1.
2
Id.
3
See Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).
parties involved. Nor was it acknowledged in subsequent WSPF appellate
briefs responding to allegations that such meetings may have occurred.
Here is what Jaworski’s memo of the following day4 said about the portion of
this meeting that relates to the Road Map:
The Judge commented upon the status of matters before the
grand jury which led into further comments on the possibility of
the grand jury considering some type of special report or
presentment. He considered this a very touchy problem and
cautioned as to what the public’s reaction would be to a grand
jury stepping out with something that was beyond its normal
bounds. He cautioned that the whole effort could be tainted by
something irresponsibly being done by the grand jury. He stated
that the public would rightfully conclude that the entire
proceeding had not been judicious but simply one of wanting to
hurt the President. He further said that it was not the function
of the grand jury but that of the House Impeachment Committee
to express itself on that point. He then told me that in the event
that I observed anything along that line being considered by the
grand jury that he thought it would be appropriate for him to
meet with the grand jury in camera. I expressed the belief that
it was appropriate for the grand jury to refer to having in its
possession evidence that it believed to be material and relevant
to the impeachment proceedings and to suggest to the Court
that it be referred to the House Committee for that purpose. He
countered by stating that he believed he should be informed of
the discretion that he could exercise in matters of that kind and
further requested that I have a memorandum prepared for him
that covers this subject. I agreed to have this done.
C.
Vorenberg Notes for Two Weeks Ending February 28, 1974
Vorenberg’s notes labeled “For Two Weeks Ending 2/28/74”5 suggest that
Jaworski has actually shared the format of their intended report with Judge
Sirica and gained his approval.
Below is the author’s expanded
transcription.
4
5
Jaworki’s full memo of February 12, 1974, is attached as 8-1.
Vorenberg’s handwritten notes are attached as 7-2.
Partial Expanded Transcription
2. Jaworski is meeting with Sirica—Sirica liked the format of Lacovara’s
Report
-- Sirica hasn’t committed to any specific course of action
-- 2-26 – Jaworski discussed their grand jury scenario
-- The grand jury agreed to their approach, asking only three questions
-- They also named the President in their bill of particulars –
-- Jaworski says he urged Sirica not to hold a hearing that will give the
White House a chance to delay
-- The staff is to screen the sections – permitted to put what is urgent in
the Road Map
D.
Judge Sirica’s Subsequent Denial
We should jump ahead for a moment, since Judge Sirica would later dismiss
his ex parte discussion of the grand jury as but a minor allusion to a possible
action. John Wilson, Haldeman’s criminal defense attorney, was so incensed
at the surprise (and sealed) grand jury report that he submitted a formal
letter to Judge Sirica demanding to know if the judge had met with WSPF
prosecutors in advance of the report’s submission.6 This letter, which is to
be found among Judge Sirica’s papers in the Library of Congress, was never
answered directly. Indeed, the WSPF documents attached reveal why any
honest answer would have been difficult to compose.
What Judge Sirica did do, in his order approving of the grand jury
transmittal, was simply to state, “The Special Prosecutor notified the Court
shortly before delivery of the Report that the Grand Jury intended to take
such action.”
E.
D.C. Circuit
Following Judge Sirica’s order approving the Road Map’s transmittal, along
with other materials in a brown, government-issued brief case, defendants
sought a Writ of Prohibition or Mandamus.
The hearing was held before the court sitting en banc on March 21, 1974,
with a per curiam opinion upholding Judge Sirica’s action issued that very
same day.7
6
7
Wilson’s Letter of March 19, 1974 is attached as 7-3.
Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974), cert. denied, 418 U.S. 955 (1974).
Interestingly, neither the Road Map nor the contents of that brown brief case
have become public, so we do not know what information was transmitted to
the House Judiciary Committee and whether it included grand jury materials
which the House could not otherwise obtain. The Committee’s internal
records are not scheduled for release until 2024.
,lroor**'o!'
\4
r/
WATERGATE SPECIAL PROSECUTION FORCE
,,:
z:: c1i./t'
,
7-1
tt,in{ 4 Si'''''d
I'
DEPARTMENT OF JUSTICE
Memorandum
:
FROM
Leon Jaworski
Special Prosecutor
DATE:
January 21,
Lg74
nrt/
: phi].ip A. I
.";;;d
counsel
Prosecutor
SUBJECT:
Presentment by Watergate Grand Jury Concerning
the- president '
As part' of our consid.eration of the most appropriate r+ay
dealing with evidence tending to impli.cate the Fiesiaent in theof
hratergate cover-upr w€ have d-iscussed the possibiliLy of advising
the grand jury th?! it_may return a presentment setting
iii
views of the presidentrs lonpl-icity iven though it nigfrtforth
be
delermined as a matter of lai.r or poficl' that ihe presiaent should,
not be indicted.. Peter Kreind.ler was lsked to prepare a memorandum on this subject and he has reached the conciusiorr, reflected
in the attached menorandum, that sutraission of such a presentby-the grand jury r^rould be constitutional. f have been
Tgnt
discussing this subjeEt with him since ttre beginninf
of his
research and. am familiar with the authoritiesl r -free
with his
analysis and conclusions in all respects.
rf yog agree that presentment
lieu of either indictment
or non*action is tbe proper mod.e toinpursue,
there remains the
queslion of proced.ure. _specificallyl the reLative
rarity with
which presentments are filed in fediral courts rnakes
it Sesirable to advise chi-ef -Jud.ge sirica in ad.van". of ttil pi"p"".a
course. rt would be most unfortunate, for example, ;or lrre
grand' JurY to return ? presentment r^riihout foreiarning
then
lhe jud.ge summarity refuse to receive it because ofand.
his
l"o.*
lagk of awareness of the basis for such a submission- F'^r"r.trorif . 3". g.lso- questionable whether
shourd d.iscuss this ;;;;il"
trrith the chief ju-dqre befofe the we
whose decision would
;;;a-irrry,
be involved, has had an-opportunlty to-coisider
this possible
course. Yet there wou1d. be sone risk in d.iscussing
an
approach with the grand. juryr_ and perhaps planting asueh
seed
that
courd not be unsown, before-ihe juige has -t least tentatively
ind'icated' that tre would be prepaled to accept such a presentment-
In light of all. of thd foregoing factorsl I
recosunend the
following course:
as possi5le
J.. That you decide formaLly and as -guictly
in.your_capacity
g{ald
vrhat iavice yoit w.ot given to thE.
ittf
indictas its counsel- on the-qgestions of- (a) the Presidentrs
concerning
policy
aniiity as a matter of 1aw, &) tbe
-fact_ors
the propriety of
and (c)
indictient of an i-ncumbent President,
the Presipresentmen!.
tfrJ-grJnd juryrs submission of a
lqlnang
that
a-request
wlth
Aentl eithlr it op"tt court or under sea1,
My.
Judiciary'
the
on
it b; forwarded tA the llouse Corunitteejury
believe
we
told
grand
be
!")
own reconmend,ation is that the
be indicted. for the
that the President can constitutionaLly
quesllol is subcrirne of obstruction of justice but thit the
(bL
in-light of the
j"ct-to-considerable dou6t, 91d-therefore
from the naming
flow
ietrer" dislocations that would immediately
it would be
a sitting Presid.ent as a crilninal defendant,
of RepreEouse
"t
to leave forrnaJ" proceedings to the
preferable
jury
be advised
(c)
grand
should
the
sentatives. With regard toits
concLusions
that it may return a presentrnent, which states
based on tle eviAence- it has heaid, but which does not initiate
a-cri-minaL proceeding, and I would Propose that the presentment
be submitted und.er seal to the chiei juAge, with a request that
counsel
it be forrrarded to the House Judiciary Conrnittee after
any
srrlmit
to
given
opportunity
an
trave
been
President
efre
ior
have'
oUj""iiott", eittrer on the Iaw or the ficts, that they may
2. After you make the foreEoing d.ecisions, I recoumend
that you or I oi lottr appear before the grand jurYr.at, the
conclirsion of the- presenlation of the tapes, to ad.vise ttre:tt
of these determinaiions. They shouLd, caadidLy be told tbat it
is not certain how the court wiff respond to the subrnission
of a presentment but should be advised that this matter will
be diicussed, l.rith the chief judge Lf the grand jury is inclined
to return a presentmeat involving the President3. If the grand jury ind.icates its tendency toward, returniag a presen*rnentr-de shouJ.d schedule a conference with Chief ,iudge Sirica to apprise hirn in ad,vance of this possille
development. f would be prepared to submit a memorand,um of law
to hjrn-at such a meeting, if he indicated an interest Ln
receiving it.
-3
4. At any suctt meeting we 'shouJ.d. reconrmend to Judge Sirica
that the presentrneat be received by fuim under sealr with disclosgre onry of ttre fact that the girand
has made a submission to hira, and that the l{hite Eduse beJury
given ten d.ays to
review^the presentraent and to make objections to its iiLing and
tranwission.
Attachment
!{r. Ruth (Vattachmentl
Kreind.ler (w/o attachrnent)
Mr. Ben-Veniste (n/o attachment)
!11r.
7-2
{L*-fuw-
Slrt-"--<'$ f',e-r"- .* \,1(
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7-3
ROOER .r. WHITEFoRO
rt..{e..
RIT.IGGOLD HART G'C.IgT3
rlgHll .r. CARMODY loorieT'
AVENUE
EETHESDA, MARYI-AHO ?OOI4
EIs FTFTEENTH STREET' NORTHWEST
WASHINGTON, D. c. zoooE
301-556-57C}0
laARFrY L. RYAN, .jFa.Y. MORSANr.rR.
FRATIIi .H.sTRICKLER
U'TLLIAM g. ROLLOYI'
C}IARLES J. STEELE
JOt{N it, €ARMOOY, JR.
JAMES EdWARO AALARD
'(6/tN
74ol wlscoNslN
Wsrrsroxn, Ifa'nr, Clnacoov & l!-rr'soN
JOHlr J.WILSON
il9
MAFIYLAND OFFICT
I.AW OFFICES
eoa-C3A-O495
JO V. l.toFlGAN, JR,
FFANI( H. STRTCKLER
glLt.lAir E' FtOLLow'
Caa-EA9oREsg
CHANLES.J. STEELE
WH'IEHA'IT WASHIN TOi.
W. CATMOOY
ltarch 12, ]-gTll
coultlsEL
9oNALo L. HERSKOVTTZ
k
i/
f
i} 1f
'{t+ t
Ilonorable Jobn J. Slrica
Chlef
Judge
Dlstrlct Court
House
20001
D'C..
tJashlngton,
Dean Chlef Judge Slrlca:
you
llould you be wllLlnti to lnform us whebher
$ere eonsulted bi or whether you con{erred wlth the menber
proseeutors, ih.-Grand. Jury, br the foreman or other
Grand Jury presented
it."uoi, refardlng the repbrt whlch thebefore
report
1974,
1,
to you in open eolrt on Mareh you had notieesuch
Grand
the
of
tSat
was actually fre=unted; or
llu
prlor
to
report
sueh
a
Juryrs lntention to p::esent
actually dolng so?
UnLted States
Unlted States Court
ResPectful-1Y,
>\
JJl{:hle
cc: ALI Counsel
d
r'/'
8.
Ex Parte Meetings Regarding Timing of
the Cover-up Indictment
February 11, 1974
Another ex parte meeting between Jaworski and Judge Sirica took place on
February 11, 1974, and, again, it was Judge Sirica who occasioned it.1 He
was a worried man. Jaworski’s prediction of cover-up indictments by the
“end of January or the beginning of February” had proved inaccurate, and
the end of his tenure as Chief Judge, on March 19th, was but a few weeks
away. So Judge Sirica sought yet another ex parte meeting with Jaworski.
Like their earlier meeting, this one was unmentioned in subsequent books by
the parties involved.
It was not acknowledged in subsequent WSPF
appellate briefs responding to allegations that such meetings may have
occurred.
Here is what Jaworski’s memo of the following day2 said about this meeting:
On Monday, February 11, I met with the Judge at which time
several matters were covered as we sat alone in the jury room.
He again indicated that provided the indictments came down in
time, he would take the Watergate Case, stating that he had
been urged to do so by any number of judges from across the
nation the most recent of them being those who were in
attendance with him at a meeting in Atlanta. He expressed the
opinion that these indictments should be returned as soon as
possible. He also stated that henceforth all guilty pleas would be
taken by him. We talked about the Vesco case and he merely
expressed the thought that perhaps a sealed indictment would
be of some help.
Jaworski’s wording indicates that this was not the first time that the Judge
had informed him of his desire to appoint himself to the cover-up trial.
Jaworski knew—because Judge Sirica had told him so—that Judge Sirica
wanted to run this trial too. It is quite clear that Judge Sirica was urging
that the indictments be hurried along so that he could do so, a point
mentioned twice in Jaworski’s memo.
Judge Sirica’s discussion of the Vesco case with Jaworski is troubling in and
of itself. John Mitchell was about to go on trial in New York City for
1
2
A separate portion of the same meeting was discussed in incident 7 above.
Jaworski’s full memo is attached as 8-1.
improperly helping Robert Vesco resolve an SEC investigation in exchange
for a two-hundred-thousand-dollar political donation. When Judge Sirica
pressed Jaworski to hurry the cover-up indictments, the prosecutor would
have explained (as he detailed in his book) that he did not want these
indictments to be announced until after the Vesco jury had been
sequestered, lest Mitchell argue that the attendant publicity had poisoned
potential jurors’ minds for the Vesco case. Judge Sirica’s apparent response
was to suggest that the cover-up indictments could be brought in time for
him to appoint himself to the trial but kept under seal so as not to influence
the New York jurors.
February 19, 1974
In response to a one-page memo from his deputy regarding the Vesco case
in New York, Jaworski hand-wrote a response that included the following
sentence (emphasis in original):
“We know that barring unforeseen
circumstances the indictment will be in Wed or Thurs of next week & Judge S
expects that.”3
March 1, 1974
The comprehensive cover-up indictments were announced on a Friday in
Judge Sirica’s courtroom, apparently with the grand jurors actually present.
The WSPF prosecution force had met Judge Sirica’s birthday deadline with
less than three weeks to spare. After announcing the indictment, Jaworski
moved for special treatment of the cover-up case, so that Judge Sirica, the
Chief Judge, could assign someone out of the usual rotation to preside over
it. Indeed, Judge Sirica signed the order naming himself as trial judge later
that same day.
Documents that have recently come to light detail how Jaworski slipped into
Judge Sirica’s chambers a half hour before the hearing for yet another
private, off-the-record meeting to go over the Judge’s and the prosecutor’s
roles. They also met again after the hearing to discuss how smoothly things
had gone and to be sure that nothing further needed to be done at that
time. While neither of these ex parte meetings is mentioned in subsequent
appellate briefs or in Jaworski’s or Sirica’s book (except for the briefest and
almost misleading allusion by Jaworski4), we now know about the meetings
3
4
A copy of this memorandum is attached as 8-2.
Jaworski, p. 103.
because of a second secret memorandum that Jaworski wrote for his
confidential files, recording the agenda on which they agreed.5
Here is a portion of Jaworski’s memo:
On the morning of March 1, I met with Judge Sirica in chambers
at 10:30.
We reviewed the agenda consisting of (1)
presentation of indictments and sealed special report of the
grand jury; (2) unsealing of the special report and reading by
Judge Sirica, and the acceptance of the report and its resealing.
I told Judge Sirica that I would ask the Court to specially assign
the case in view of its length and protracted nature. . . .
After [the 11:00 hearing’s] opening, Judge Sirica looked at me,
asked if I had anything to take up with the Court. I then rose,
went to the lectern, and said, “May it please Your Honor, the
grand jury has an indictment to return . . . .” The Judge in open
court asked if I had any further comments, and I stated: “Due
to the length of the trial, conceivably three to four months, it is
the Prosecution’s view that under Rule 3-3(c), this case should
be specially assigned, and we so recommend.” This meant that
Judge Sirica could assign the case to himself, which he did do by
order later entered that day.
March 19, 1974
On this date, Judge Sirica turned seventy years of age and was
required to step down as Chief Judge, thereby losing the ability to
assign future cases to any particular judge. On March 7th, however,
he had assigned the Plumbers prosecution to Judge Gesell, who was
the only other judge included in the December 14, 1973 meeting with
the four WSPF prosecutors.
5
The draft copy of Jaworski’s memo of March 1, 1974 is attached as 8-3.
t
c
8-1
L2/L974
*d €"*b'
*,.uQ CONFT DENTIAL
11, I met with the Judge 'at which
time several matters were covefed. as we sat alone in tbe jurrr
room. He again indicated that provided ttre indictmeats 'came down
in tirne he would take ttre Watergate Caser' stating ttrat he had
been urged, to do so by any nunrlrer of .rudges from across
nation ttre most recent of them being those who were in
attendance with'hirr at a meeting in Atlanta. He errpressed the
opinion tlrat ttrese indictrnents should be retrrrned. as soon ig
possible. He arso stated, Lhat henceforttr all guilty pleas
would be taken by him. we taIl?ed. about the vesco case asd he
merely €{pssssed. the thought that perhaps a sealed inaietnent
On Mond.ay, I.ebnrary
might be of sorne help. Ee mentioned one or two personal
matters such as an effort to smear him because of a courpletely
fabricated, tale relating to him and his son, of whicb he
to be arrare. Actually the discussion began .wl,th
his r:nburdening himseLf to me on ttrat particular matter. Ee
also mentioned that he trad. been r:=ged to speak at ttre state
Bar of Texas in san Antonio and. indicated that he would.
wanted. me
accept tJlis inwitation,
2
so.
Ile sought my reaction and 1 urged him to do
rnatcers before
The Judge eormented' upon the sLatus of
o:r the possibil-ity
the grend jr:ry stricb. led into firrther co t ents
ofthegrandjr:ryconsideTarL'sornetypeofspecial.rePortor
probl-e.m and
presentrnents. Ile coasidered thle a very touchy
would be to'a
eaucioned as to wleat the public's reaction
grandjurysteppingoutwithsomethingxtraxwasbeyoadite
couLd be
no:mal botnds. IIe cautioned that the $ixole 'effort
grand
tainted by sonpg6*, irrespoasibly being done by the
jrrry.I{estated'thatthepublicwouldriglrtfirllycorrclude
thatttreentireproceedinghadnotbeenjudiciousbutsiq]-y
oneofwantingtobr:rttheP-resid'eat.Hefirrthersaidflrat
of tlre'
it was noL ttre funcr,ion of iire grand Jury but that
itseLf on t$at point'
l{ouse Impeachment Comrittee to exPtess
anything along
I{e ttrerr toLd me that ia tJre event I obserted
jury that he thougftt
that l-ine being eonsidered by ttre grand
tr^* hiu
Li',, to
frt meet
mer with the grand jurY
it wouJ.d be aPProPriate for
incatneTa'IexPressedthebe].iefLhatitwasaPPropriate
forthegrarrdjurytorefertohavin'glnit'spossessioa
.eirlderrce ttraL it' beliewed- to be materiaL and relevalx€ Co theinpeactrmentProceledings.andEosuggesttottreCourtth'at
Ee
it be referred. to the House Cofirmittee for t-jtrat' purgoi" '
shoul-d be infor:med
eountered by stacing that he belLeved he
that
of the discrer*^on tleat he could exereise in matters 9f
prepared
kiad and further requested ,that I trawe a ltremorandr'n'
,-T agreed to have thlg-done'
for hiu lhaf -covers this subjeet.
I
DEPARTMENT OF
1VATERGATE SPECIAL PROSECUTION FORCE
JUSTICE
8-2
Memor&ndurn
DATE:
Leon Jaworski-
TO
Feb. Lg, Lg74
Henry Ruth
SUBJECT:
Vesco Trial
.Iirn RayhilL called this morning at the request of
Judge Gaglia.rd.i to d,etermine if we had a date certain
f,or-the Watergrate indictment and, if not, whether we
would' state that the Watergate ind.j.ctment would
definitely be returned before the conclusiori of the
triil
.:...
Vesco
I told Rayhill .that we did not- now have such a date
certain, but that the jndictment would definitely be
retrrrned before the conclusion of the Vesco trialI also stated. for nayhiJ.l r s information that the
indiciment wou..Ld occur #itfrin the next 3 weeks at the
most.
;
Phil Lacovara joined j.n the phone call as I was replying
to Mr.
nayhilJ- r.s questions
Mr- Lacovara,
'
. ldr. Ben-Veniste
Mr. McBrid.e
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8-3
the eve of Thursday, February 28, l*ith the Plitche11Stans jury selected in New York and seguestered, it became apparent that we would move to bring in the watergate cover-up
Lndict:rents on Friday morning. After checking with Judge Siriea,
the hour of 11100 a,m. was decided upori.
On
#
I made known to hira in advance ttrat such a report
was
forthcom'n9r-
28, just as I was preparing
to leave the office around. 6245, Alexander Haig called saying that
there were so many rumors afloat that he was coneerned - that he
feared unexpected developments, etc. and he wondered if there was
anything I could proper!-y disclose. f told hirn that there was
nothing I could disclose as to the gontents of the indictment or
the report he had. heard would be made. I did. tell him that if the
grand jury made a report, in addition to returningf L; an indictment,
he should expect Judge Siricar ds would I, to aecept it and act on
it. He stated. that he and the White House gfenerally were fully
expecting the grand jury evidence to be made available to the Fouse
Judiciary Cormnittee - that they reaLized it belonged there, I suggested to him that the evi{enc_e may well have serious repercusgionsand he stated. that he was aware of that. I suggested that he and
the President r s counsel take a close look at the lvlarch 21 meeting
and. the actions that fol-lowed., even though the president took no
Personal part in the events that followed the March 2l meeting.
On Thursday evenlng, February
)2 - (
Finally, h€ asked, whether there was any indictment
contemplated involving present White House aides, inasrnuch as
he needed to make arrangements to meet the situat'ion" I t'old
him none htas contemplated at this time
fwice during the conversation, he said that he really
eal1ed to tel1 me that I was a "grea! American. " The second
tirne he mentioned it, I said "A1, t haventt done anything other
than what is my d.uty and I hope to continue to follow that course."
we parted with my again expressing my concern that the
president's counsel had. not sufficiently and accurately assessed
the fact's pertaining to ttre March 2L conference and the events
that took place that night. He said it would be again reviewed.
on the morning of March 1, I met with .Tudge sirica in
chambers at 10:30. We revieliled the agenda consisting of (1)
presentati.on of indictments and sealed speci.al report of the grand
jury; (2t unsealing of the speciaL report and reading by Judge
Siri-ca, and the acceptance of the report and its resealing. I
tol-d Judge Sirica lhat ! _w_ou!d aqk tl:e Couqt to 5pecially asgign
the case in vier* of its length and protracted nature and that I
was estimating the case would take three to four months to try.
I asked him to tel1 the grand jury to return in two weeks for
further consideration of other matters that had not been disposed
of. I had in mind the possibility of perjury indictments. I also
asked the Judge for a gag order under RuJ.e L-27 restraining extrajudicial statemelts;
,/:
shortly before 11:00, r left Judge sirica's chambers
and went into the courtroorR. As I left Judge Sirica's chambers,
r heard the Judge tel1 his marshal not to be nervous. But the
Judge showed some signs of nervousness too. He told me that he
had not slept since 3:00 that morning. when court opened, Judge
Siricats marshall was so nervous he couLd hardLy speak the ritual
folLowed in opening a court.
After opening, Judge Sirica looked at me, asked if I
had anything to take up with the court. r then rose, went to the
lectern, and said: "lulay it please your Honor, the grand jury has
an indictment to return. It also has a sealed report to deliver
to the Court. " ?he rest of the agenda was then follor*ed including
delivery of a briefcase of material, along with the special report
to the Court - also a key to the briefcase. The Judge indicated
that he would have an order on the special report by Monday {he
t'old me he would transmit to the counsel for the llouse Judiciary
Committee under rules that would not interfere with the trial of
the, accused.). The .Tudge in open court asked, if I had any further
comments, and r stated.; 'Due to the length of the trial, conceivably three to four months, it is the Prosecution's view that und.er
RuIe 3-3(c), this case should be special.Ly assigned, and, lre so
recomnend. " This meant that Judge sirica could aseign lhe case _
to himself, whieh he did do by order rater entered that day.
The Judge then announced his gag rule and then adjourned
court.
We met
went smoothly.
in tbe
He
s cflambers. f told hirn f thought al}.
in turn thanked. me for my help. ?he ,Judge was
,JudEe'
ffi: ffiTIIIIIffiffi
.