They certainly do seem glad to see each other again after all this time away from Washington. The mood is almost reminiscent of one of those old evenings at the White House which featured good Christian Republican fellowship, the Marine Band, California wine and Rose Mary doing her lonely tango. Some of the guests have even promised to sing — but that will come later. Right now, it’s enough just to catch up with old friends and acquaintances.
John Ehrlichman arrives before things have really started to swing, escorting his chipper wife, Jean, and a guest of theirs, a striking older woman with freshly coiffed gray hair, dressed in a basic black turtleneck with a simple but stunning piece of modern gold jewelry around her neck. They amuse themselves by chatting until John Mitchell trudges in, shakes Ehrlichman’s hand and then leans over rather creakily to give Mrs. E. a big buss on the cheek. The place is filling up quickly now, people are starting to mix, so when Bob Haldeman comes in, he kisses Jean and greets Mitchell but walks right past John Ehrlichman, who is standing a few feet away. This causes a few raised eyebrows. But Bob has made small talk with no more than three or four intimate friends when he suddenly spots John in the crowd and walks over to greet him, not wanting John to think for a minute that he was trying to cut him. No hard feelings on John’s part, though; he is just happy to see Bob again, giving him a warm, hearty, lingering handshake.
Meanwhile, Kenneth Parkinson, who used to be the lawyer for CREEP, comes in and nods to a few people. Ken is a pleasant-looking man, blond, hornrimmed, with a quick smile, but he is curiously vague, aloof, doesn’t really seem to know anybody here very well. . . .
Bob Mardian shows up at the last moment. Mardian and Mitchell are great pals, of course, and Mardian used to be very tight with Dick Kleindienst and Barry Goldwater and that whole crowd from Phoenix, where the Mardian brothers have done better than all right in the construction business. The trouble with Mardian is that his drab suits, silver glasses and bald head make him look like the Russian heavy in a James Bond film, and he seems to have worn a permanent scowl ever since he got passed over for the Number Two spot at CREEP in favor of Jeb Magruder back in ’72. Mardian doesn’t look as if he’s much of a one for these big social affairs, but he seems to realize that in Washington you have to put in an appearance at these things now and then, and this one is obligatory. Well, at least he manages to get up a civil word for Mitchell.
In the front of this huge, high-ceilinged, marble-faced, fluorescent-lit Ceremonial Courtroom of Washington’s U.S. Courthouse, the five defendants and their legion of lawyers are so busy waving, kissing, embracing and small talking for the benefit of a press corps searching for signs of widely reported discord, that they hardly have time to notice the 170 prospective jurors who are sitting sullen faced on the benches behind the bar. The jury panel looks like a Palm Sunday congregation of the Seventh Abyssinian Baptist Church; it requires careful inspection to discern a white face among them. In view of the Nixon administration’s record on civil rights, the godawful gist of which has certainly not been lost on the 75% of D.C.’s population which is black, the complexion of the jury panel cannot be very heartening to the five Nixonians who are about to stand trial.
But the jury may be the least of their problems. The sheer weight of the evidence against them is so overwhelming that it is almost impossible to find anyone in Washington who is willing to bet on their acquittal — and that probably includes most of their lawyers. The main reason that they are submitting to this trial instead of throwing themselves on the mercy of the prosecutors is their not-so-faint hope that 70-year-old John Sirica, one of the most reversed judges in the District’s history, will succumb either to exhaustion or to his penchant for dispensing street-corner justice in the courtroom, and will make a reversible error so horrendous that even the liberal Court of Appeals will not be able to ignore it.
In cases like this one, the defendants are usually so desperate that they abandon all the advantages that might be gained from keeping up a solid front and start fragging each other, trying to convince the jury that the other guy did the deed. Which is just the kind of situation that prosecutors dream about. “This case sounds like it might end up like any number of big stock-fraud conspiracies I’ve prosecuted,” says a former prosecutor from another district. “Those kind of people almost never cooperate with each other; they don’t trust one another because they know each other so well. Manycases of this sort are made by the defendants, not by the government — the defendants sew em up. You put your minimum prima facie case in and then let the defendants chew each other to ribbons. In some cases, you hardly cross-examine some of the defendants, because the lawyers for the other guys do the job for you — there’s blood all over the place. It’s sooo effective when you can get up and say, ‘No questions, your honor.’ The jury sort of says, ‘Thanks for not taking up any more of our time, Mr. Prosecutor, we see your point.'”
This is where any comparisons between the Nixon gang and the Mafia start to break down: The mafiosi, bound together by blood ties and a fearsome code of honor, tend to hang tough at a conspiracy trial. These five defendants are more likely to act like panicky businessmen. Once upon a time, they were joined in the common interest of trying to protect the Boss, but then the Boss himself started off the fragging match by trying to make John Mitchell take the fall. When Mitchell refused, the Boss sent John Dean down the tubes, but Dean promptly went out and told his story to the Senate Select Committee and 200 million Americans.
Those were the best of times for Sam Dash’s people and the worst of times for Archie Cox’s. Dean was refusing to play ball with the special prosecutor’s office, Nixon was refusing to part with the first subpoenaed batch of White House tapes, and the whole coverup case seemed to be fizzling. Even Dean’s decision to come in out of the cold and plead on October 19th, 1973, did little to encourage Cox’s people, for they were not happy with the prospect of having to put on a case depending heavily on testimony from a witness as vulnerable as Dean. The prosecutors perceived what Nixon consistently missed — the fact that an alarming percentage of the American people could not decide whether or not Dean was telling the truth. Nixon was so painfully conscious that Dean was telling the truth that he could not grasp how badly the that he could not grasp how badly the rest of the country needed to see some sort of corroboration before it could swallow Dean’s account. Therefore he miscalculated the value of that first set of tapes and surrendered them in full confidence that they couldn’t do him any more harm than Dean had already done. By the time he realized that the tapes had put the special prosecutor’s office back in business by giving them precisely the kind of corroborative evidence they had previously lacked, it was too late to do anything but go crazy.
Now Jaworski’s office has a lot more tapes, and the fragging continues. Kenneth Parkinson will probably defend himself by claiming that he hardly knew any of his fellow “conspirators” and that Mitchell and Mardian consistently lied to him, never telling him what was going on at CREEP. Mardian will probably make his stand on the lawyer-client relationship, claiming that his conversations with Mitchell were privileged — although he may have a difficult time explaining why he didn’t jump up to protest when he allegedly heard John Mitchell tell Jeb Magruder to “have a fire” and destroy the Gemstone files. John Ehrlichman will no doubt fall back on an “I-was-screwed-by-my-best-friend” defense, claiming that Haldeman told him that the coverup was in the interest of national security, and that he was fool enough to believe it. Haldeman may try to argue that he was only following orders from the Chief. And Mitchell . . . well, M the Mitch doesn’t seem to have any defense at all, but he has long detested Haldeman and Ehrlichman, and he might toss a grenade in their direction if he gets the chance, just for the hell of it.
As if all this throat-cutting, if it happens, will not cause trouble enough, the defendants will also have to contend with the fact that they are charged with one of the broadest, meanest, vaguest and most generally abused laws in the book — the conspiracy statute, Title/18, United States Code, Section 371. Bill Safire addressed this point in his New York Times column of October 3rd, where he wrote: “The central accusation is not that the president’s men actually ‘covered up’ the Watergate breakin’ it is that they ‘conspired’ to do so. The broad conspiracy cop-out is used when a prosecutor cannot prove the crime itself; its use ordinarily makes the skin of civil libertarians crawl.”
Good for you, Bill. Back when you worked at the White House, you probably always meant to write that speech for Nixon, the one denouncing the outrageous use of the conspiracy statute against the Chicago Eight, the Panther Thirteen, the Harrisburg Seven and Daniel Ellsberg; but you just didn’t have time after they farmed you out to Spiro Agnew so that you could spoonfeed him phrases like “nattering nabobs of negativism.” We understand, Bill. Scratch a conservative whose friends have run afoul of the law and you’ll always find a civil libertarian.
Of course, Safire is right on one point: The announcement of a new conspiracy charge usually does send the real civil libertarians running for their poster paints, and with good reason. The statute has piled up a record so rotten that it would make a Nazi blush; for a hundred years it was used to crush the embryonic labor-union movement; it was the instrument which sent the Haymarket rioters to the gallows, the Wobblies to prison and the Rosenbergs to the Chair; and in the last few years the government has repeatedly relied on the statute in its efforts to knock down the First Amendment and trample the rights of every dissenter who posed a threat to its authority.
The only virtue of the conspiracy law is that it sometimes offers the only means of nailing padroni, company executives, presidents and other powerful menaces who approve plans to break the law with a nod or a wink or an ambiguous monosyllable, taking every possible precaution to insulate themselves from the actual planning of the crimes. But more often, the statute is used to sweep harmless, peripheral characters into an indictment: Whenever possible, the government likes to dress up its list of defendants with a dark-skinned foreigner who speaks with a funny accent, so as to impress the jury with the dangerously “un-American” nature of the crime. Hence, a Pakistani scholar named Eqbal Ahmad was dragged into the Harrisburg case and a South Vietnamese student named Vu Van Thai was charged in the Ellsberg indictment; in the Sobels spy case during the Sixties, the government named as an “unindicted coconspirator” Levranti Beria, the NKVD chief, who had been dead for ten years.
The conspiracy law contains certain spectacularly irrational features which clash with the main principles of American jurisprudence and make the statute a special favorite with lazy and bigoted prosecutors. To put you in the slammer for conspiracy, the government merely has to show that you entered into an “illegal agreement” and does not have to prove that any harmful or illegal acts came to pass as a result; and, thanks to a little theory called “conscious parallelism,” the law maintains that you can enter into an agreement without ever having met or talked with your “cocon-spirators.” That makes it especially easy for a prosecutor to put you in jail, and the law also gives the prosecutor ways to beat the Statute of Limitations and to try the case in venues where he can pick the kind of jury he likes.
But even though conspiracy law remains a bad business, civil libertarians can sit back and watch the Watergate trial with relatively easy consciences, for the simple reason that Jaworski’s people are not going to have to rely on any of the flagrantly repugnant features of the statute to make their case. Far from leaning on the conspiracy statute to make an otherwise ridiculous case, they have plenty of solid evidence to prove the substantive crimes of lying and obstruction of justice which are also charged in the indictment. And the evidence indicates that the five defendants had a whopping agreement on their objective — one which should have reeked of illegality to any reasonable man. Finally, no “little” people are being arbitrarily hauled into this indictment, with the possible exception of Kenneth Parkinson, whose lawyer had a fair point when he argued that his obscure client should not be made to sit at the same trial with the infamous Watergate heavies, soaking up guilt-by-association like a sponge tossed into a cesspool.
The only other conspiracy-law abuse that civil libertarians have to worry about at this trial is the “hearsay exception.” Ordinarily, the hearsay rule dictates that out-of-court declarations are not admissible as evidence; the jurors are supposed to take into account only statements from people who can be cross-examined. But in a conspiracy trial, where the law holds each conspirator responsible for the words and actions of all of his coconspirators, the hearsay evidence of a coconspirator may be admitted. If John Dean, one of the 20 unindicted coconspirators named in the case, claims that Haldeman told him that Mitchell said something in furtherance of the coverup, then Mitchell is stuck with that statement on the record, and so are the other four defendants.
Although this if-one-person-said-it-then-everybody-said-it catch is grossly unfair when applied to a situation like the Spock case — where some of the defendants had never even spoken to each other before they were indicted — it makes sense in the Watergate case, where the evidence clearly indicates that the defendants not only plotted a coverup together, but also carried it out. These people give every sign of having sat down and put together a coverup with their eyes wide open.
In essence, they tacitly gave each other carte blanche to do whatever was necessary to keep the American people in the dark. In the eyes of the law, they ceased to be five separate people and became one Conspiracy. So it is not outrageous that they should have to answer for each other’s words and actions. Besides, the most important hearsay evidence to be introduced at the trial will be the White House tapes. The hearsay rule was invented to insure reliability of evidence, and what could be more reliable than Richard Nixon’s superb, Secret-Service-installed taping equipment?