Completely insufficient attention has been paid to the recent revelations about the grand jury and federal court findings against President Richard Nixon. In a word, the entire basis of the case against Nixon himself has been completely undermined. This certainly has not happened in respect of those who undoubtedly committed the crimes of the forced entries at the Democratic National Committee at the Watergate or of the office of Pentagon Papers publisher Daniel Ellsberg’s psychiatrist. Those crimes occurred, but there has never been a whit of evidence that Nixon knew anything about them in advance.
The case against Nixon has always been based on the claim that he authorized the payment of campaign funds to people implicated in the Watergate break-in to encourage them to alter their testimony, and thus he obstructed justice.
The core of the case goes back to March 21, 1973, nine months after the Watergate forced entry, when White House Counsel John Dean reported to Nixon and revealed to him some of the skullduggery that had been committed by others to complicate the task of investigators. Specifically, Dean conveyed to the president how one of the organizers of the Watergate intrusion, Howard Hunt, who had recently lost his wife in an air crash and had four young children, had demanded $125,000 to pay legal fees and normal expenses in the next two days, or he would commit indiscretions. According to information that has just been released in response to litigation over Richard Nixon’s grand jury testimony, Nixon reduced the $125,000 to $75,000 which was necessary to pay legal bills, and that was paid to Hunt on the evening of March 21, 1973.
It has also come to light, from the papers of special Watergate prosecutor Leon Jaworski (succeeding Archibald Cox), that on discovery of the information that a payment had been made on Nixon’s approval to Hunt on that date, that the prosecutors and the judge hearing the case against the Watergate burglars, John Sirica, agreed that there was evidence that could convict Nixon of high crimes and misdemeanors as the Constitution requires for removal of a president from office. The prosecutors wished to write up a “road map” on the basis of their investigation that would make an overwhelming case for the impeachment and conviction of Nixon, and send it under seal to the Special Watergate Committee of the U.S. Senate. The Senate committee, in turn, would send the report along to the House Judiciary Committee, which could then vote out articles of impeachment against Nixon, and send the case for trial to the U.S. Senate, where the chief justice of the United States would preside in accord with the constitutional procedure for such an event.
Sirica advised that he would soon be turning 70. If the special prosecutor wanted him to appoint himself to try the question of whether such findings could be transmitted under seal and without the specific knowledge of defendants to congressional committees, they would have to bring their action soon before age limitations would require him to hand over his position as chief judge to another jurist. The investigators and Sirica strategized the handling of the “road map,” which had been assembled from grand jury materials. The road map and the grand jury testimony on which it was based did go to the relevant committees and to the special prosecutors, and on the basis of them, President Nixon was designated an unindicted co-conspirator, and eventually, on August 9, 1974, became the only person in history to resign the presidency of the United States.
Actions were taken many years later, one by a former member of Nixon’s legal staff, Geoffrey Shepard, following another, unrelated action seeking the opening of grand jury material, (the “road map” to impeachment of the president). Opening up grand jury testimony historically only had been done in the Julius and Ethel Rosenberg and Alger Hiss espionage and perjury cases that had been immense early Cold War causes celebres. Shepard and the other petitioners were after the grand jury evidence Nixon gave to one prosecutor and two grand jury members in San Clemente, California a few months after his resignation, and after the full pardon granted him by President Ford. Shepard wanted everything to do with the Nixon case to be opened. President Nixon had had acute problems of phlebitis in 1974, and was not able physically to attend the trial of the cover-up defendants, which was the case that Sirica was concerned about presiding over before he retired as chief judge.
About six weeks ago, three prominent lawyers from the Watergate era sued for all the Nixon “road map” material to be opened, because they were seeking the release of comparable material, insofar as there is any in the Trump inquiry, to be opened as well. The evidence opened up by the Shepard lawsuit to reveal the grand jury evidence involving Nixon. Nixon’s comments to the grand jurors who visited him reveal that the congressional committees and the Washington grand juries were falsely advised that the Nixon version of events effectively confirmed the road map.
In reality, Richard Nixon’s evidence conformed exactly to what he said about these matters in all other cases: that he had never approved or authorized any payments to obstruct justice, alter testimony or tampered with witnesses, and that he resigned as president when he learned that courts and congressional committees indicative of likely votes in both houses of Congress concluded that the road map was accurate and that Nixon would be convicted.
Nixon’s responses to the grand jurors were falsely represented as confirmation of guilt. Apart from the inadequacy of the evidence, it is completely unlawful for the presiding first instance judge and the prosecutor to conspire in this way to promote a false verdict, even if—as appears to be the case—Sirica and Jaworski probably believed the evidence, which had been falsified by Jaworski’s staff, a swarm of Nixon-hating legal assassins who were prepared to do anything short of physical assault with deadly weapons to bring down the president. The cases against former Attorney General John Mitchell, and senior White House aides H.R. Haldeman and John Ehrlichman would also have been compromised.
The historic implications of what has been discovered are very serious. No one with any interest in Richard Nixon, Watergate, and the continuing strutting and primping of the veterans of the Watergate catacombs—especially Bob Woodward and Carl Bernstein—should listen to the podcast of authentic legal historian and Watergate veteran Geoff Shepard that has been posted by the Nixon Foundation below:
The copycat litigation of the Trump-haters today is of no significance.
But the increasing evidence of the Mueller special counsel’s tug-of-war to try to extort perjury against the president by effectively threatening Paul Manafort with decades of solitary confinement, and trying to intimidate Jerome Corsi, George Papadopoulos (a third of the way through his 14-day prison term—it was to such nonsense that Mueller is reduced), is cautionary. That inquiry, including its predecessor, has been going for 28 months, arose from a fired FBI director leaking a tendentious and contested memo that was government property to the New York Times to provoke his and Mueller’s old sidekick Rod Rosenstein to set up a special counsel, and the staff was composed entirely of fang-and-claw Trump-hating partisans.
At least there was a crime at the Watergate and a few other places. But both attempts at pseudo-legal putsches are and have been disgusting and profoundly illegal corruptions of the system, and contribute to an understanding of why the American prosecutors win a North Korean level 99 percent of their indictments, 97 percent without a trial, and the sweet land of liberty has six to 12 times as many incarcerated people per capita as comparable large and prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom.
Chief Justice John Roberts may try to defend the integrity of the federal courts as nonpartisan, though the defense is nonsense in the case of the Ninth Circuit that president Trump denounced. But he and all the Supreme Court justices of the last 30 years should be ashamed of the withering of the Bill of Rights and the degeneration of the United States into a prosecutocracy and a carceral state.
Mueller’s efforts will fail, partly because the witnesses from whom Mueller tries to extort inculpatory perjury against the president will assume that they are in safer hands relying on the president’s power to reduce sentences than on Mueller’s ability to dissuade the submissive bench from throwing the book at them if they lie in aid of the prosecution, which is the normal method of operation of U.S. criminal courts.
The bipartisan criminal justice reform winding its way through Congress is a start. But Mueller, by trying to destroy Trump through illicit means, is going to force a general examination of prosecutorial abuses. In the process, the reputation of an outstanding president will inevitably be redeemed. President Nixon’s one full term was one of the most successful in the country’s history.
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