The White House Five Face Their (Heh, Heh, Heh) Peers
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?
