1973
Judge John J. Sirica
FROM THE TIME ARCHIVE
Jan. 2, 1974
There was little ennobling in the broad shape of human affairs in 1973.
Mankind progressed haltingly, if at all, in its tortuous quest for greater
wisdom in the conduct of international relations and greater brotherhood among
individuals. The U.S. continued to improve relations with China and clung to a
strained detente with the Soviet Union. But political sentiments elsewhere
still were expressed in the blood language of terrorist bombs and bullets, from
Belfast to Madrid, Rome to Khartoum. Once more men died in battles on the hot
sands of the Sinai and in the barren Golan Heights. The first freely elected
Marxist leader in the world was killed in a right-wing rebellion in Chile; a
changing of the guardians refurbished authoritarian rule in Greece. For
Americans, the dying finally ended in the paddyfields and jungles of Viet Nam,
but more than 50,000 Vietnamese killed each other after the long-awaited
"peace."
Yet more than any other event, it was the multifaceted Watergate affair,
the worst political scandal in U.S. history, that dominated the news in 1973.
As it gradually unfolded, involving more and more areas of President Richard
Nixon's Administration, it revealed a shocking disdain for both the spirit and
letter of the law at the highest levels of Government. Ultimately, not only the
primacy of the rule of law on which the American system rests but the
presidency of Nixon stood challenged, plunging the U.S. into a grave
governmental crisis. Fittingly, it was the American legal system, which had
trained so many of the malefactors caught in the Watergate web, that came to
the rescue.
One judge, stubbornly and doggedly pursuing the truth in his courtroom
regardless of its political implications, forced Watergate into the light of
investigative day. One judge, insisting that not all the panoply of the
presidency entitled Nixon to withhold material evidence from the Watergate
prosecutors, brought the White House tapes and documents out of hiding. For
these deeds, and as a symbol of the America judiciary's insistence on the
priority of law throughout the sordid Watergate saga of 1973, TIME's Man of the
Year is Federal Judge John Joseph Sirica.
A Judicial Search for Truth and Justice
Set against the widespread abuse of Executive power exemplified by
Watergate, Sirica's performance was particularly reassuring as a testament to
the integrity of the institution he represents. Of proudly humble origins and
with no pretensions to legal erudition, Sirica, at 69, culminated his career
only a year from retirement as chief judge of the U.S. District Court for
Washington, D.C. He had from the outset no ambition other than to do his job in
the Watergate cases; find the truth, see that justice was done.
Modest and unimposing in speech and stature out of court, the 5-ft. 6-in.
jurist towered and glowered from his bench, openly indignant at what he
considered evasions and deceptions in testimony before him. He simply did not
believe that the seven lowly burglars who had wiretapped Democratic National
Committee headquarters at Washington's Watergate complex in June 1972 were a
self-starting team working alone. Injudiciously, some have argued, but
undeniably in the higher national interest, as others would insist, he applied
pressure until he got a scandal-bursting response. Once James W. McCord Jr.
began to talk, the White House conspiracy to keep Watergate "a third-rate
burglary" came apart at the seams.
Sirica used his same rugged courtroom common sense to cope with the
challenge of a historic constitutional clash between branches of Government.
Even a President must respond to subpoenas for evidence in criminal cases,
Sirica ruled. Judges, not the President, must ultimately decide whether claims
of Executive privilege to withhold such evidence are valid. Presidents, in
short, are not above the law. The Circuit Court of Appeals for the District of
Columbia upheld him; and in the end, Nixon gave up, partly because he feared
that the Supreme Court would also see it Sirica's way.
Other characters in the Watergate drama, most notably the President,
around whom the whole affair revolved, played major roles. Yet Nixon, to his
own detriment, never took charge of the scandal, continually reacting to events
rather than shaping them. The remarkable Senator Sam Ervin, who rose
spectacularly as a national folk hero in chairing the historic Senate Watergate
hearings, employed literary allusions and unabashed outrage to effectively
belittle the many evasive and amoral Nixon men who came before him.
Archibald Cox, the determined Special Prosecutor, refused to accept a
unilateral Nixon "compromise" designed to circumvent Sirica's orders regarding
the presidential tapes, and publicly protested Nixon's command that he desist
from seeking further presidential evidence. Fired by Nixon, Cox bowed out with
a Brahmin civility that inspired a fire storm of protest at his dismissal.
Former Attorney General Elliot Richardson, too, stood as a staunch symbol of
integrity in the celebrated "Saturday Night Massacre" by defying the White
House decree that he fire Cox. Richardson resigned instead, further arousing
national indignation.
A Trio of Global Actors
The Watergate drama in Washington could not, of course, completely obscure
the principal actors elsewhere on the world stage. Three were particularly
notable for their roles during 1973. Egypt's President Anwar Sadat skillfully
courted alliances among Arab leaders, then launched the coordinated Yom Kippur
attack by his armies and those of Syria on Israeli-occupied territories.
Although the strike was ultimately successful, the fact that the invading
armies were not instantly crushed by the Israelis restored a measure of Arab
pride that may help make a Middle East settlement possible. Saudi Arabia's King
Feisal responded to the urgings of militant Arab leaders and curtailed oil
shipments to nations that the Arabs deemed too friendly with Israel. The
immediate impact was devastating. The long-term repercussion could prove
beneficial, however, as a grim reminder that industrialized nations have for
too long wasted energy and recklessly failed to develop alternate sources of
it.
Most important of the three men was Henry Kissinger, the U.S. Secretary of
State and presidential advisor. As Nixon was engulfed by Watergate, Kissinger
became, in effect, America's president for foreign affairs. He ranged the world
in a virtuoso performance of solo diplomacy. He twice toured major capitals of
the Middle East, first to help achieve a cease-fire, then to complete
arrangements for a Geneva conference seeking a long- range settlement. Twice he
flew to Moscow to bolster detente or ease the Middle East crisis. He also
undertook two missions to China, building on the diplomacy initiated the year
before by Nixon and himself.
Kissinger played a key role, too, in the year's most significant foreign
policy achievement; the negotiated withdrawal of U.S. combat forces from the
nations' debilitating involvement in the Viet Nam War. However tardy, the
settlement allowed 587 American prisoners of war to return home, the draft to
be suspended and the domestic strife that had inspired a rebellious
counterculture to be eased. It did not, however, achieve a true peace for Viet
Nam itself and at year's end fighting continued almost unabated.
Following directly on the shattering U.S. experience in Viet Nam, it was
the turbulent U.S. political crisis that made some of the world worry about the
stability of America and question its capacity to play a global role. Variously
disbelieving, saddened, sickened and cynical, many Americans, too, lost faith
in leaders who had betrayed their trust. One who had most blatantly done so was
Spiro Agnew, an acerbic apostle of righteousness who had thrived as Nixon's
Vice President on strident demands for harsh judgements against all who
disagreed with his own rigid concepts of acceptable ideology and
permissible—but never permissive—behavior. Then, faced with overwhelming
evidence of his own criminal corruptness and petty greed in accepting graft
from Maryland contractors, Agnew successively claimed innocence, lashed out at
his accusers, copped a plea on income tax evasion, and quit.
A Vice President admitting criminal activity was shocking enough. But with
the gradual, string-by-string unraveling of Watergate, the resulting
revelations indicated an astonishing pervasiveness of corruption among Nixon's
political and official associates. Theirs was a lust for the enhancement of
their leader carried far beyond acceptable limits. That made it all the more
menacing to democracy, if less alarming to those who insisted that, after all,
nothing was stolen and no one was killed. No fewer than twelve of Nixon's
former aides or the hands they hired were convicted of crimes. Six others,
including two Cabinet members, were indicted. At least seven more Nixon
officials seem certain to be indicted when the three federal grand juries now
at work in Washington complete their tasks. The total of all those charges with
crimes could surpass 30.
Later trials may absolve some defendants, but the range of criminal
charges against them is appalling. It includes perjury, burglary, illegal
wiretapping, obstruction of justice, destruction of evidence, fraud, extortion,
solicitation of illegal campaign contributions, violation of campaign funding
laws, subornation of perjury, illegal distribution of campaign literature, and
various forms of conspiracy to commit illegal acts. No such litany of
illegality has ever before been officially leveled against the associates of
any U.S. President.
The Allegations Against the President
But as the scandal ballooned well beyond a political burglary and its
cover-up, wide-ranging allegations against Nixon himself became part of the
sordid affair. They included contentions that Nixon had: 1) intervened in an
antitrust action against ITT in return for political contributions; 2) raised
milk support prices and reduced dairy imports for similar considerations; 3)
issued orders leading to the burglary of the office of Daniel Ellsburg's
psychiatrist; 4) offered to appoint the judge in the Ellsburg case FBI
director, as a means of influencing his decision in the case; 5) ordered or
condoned illegal wiretapping and other "White House horrors" perpetrated by his
self-appointed "plumbers"; 6) obstructed justice by firing Prosecutor Cox; 7)
directed or knew about the solicitation of illegal campaign contributions from
corporations; 8) misused public funds in improving his residences in Key
Biscayne and San Clemente; 9) failed to pay his proper share of federal and
California income taxes; 10) had altered or disposed of some presidential
Watergate tapes.
Richard Nixon's culpability is not yet clear, although the president of
almost anything else would have been quickly forced to resign by a scandal
which infected so much of his organization. Moreover, the strange oscillations
in White House attitudes toward the various investigations raised grave doubts
about Nixon's innocence. First there were blanket denials, lavish claims of
Executive privilege and invocations of national security. Then came repeated
clarifications, previous statements declared "inoperative," and multiple
promises of full disclosure. Subpoenas were resisted. The persistent Special
Prosecutor was fired. Next a sudden yielding to the courts, followed by an
Operation Candor that was far from candid, claims that crucial tapes were
"nonexistent" and the revelation of a mysterious flaw in one recording.
Observes TIME Washington Bureau Chief Hugh Sidey: "It all falls into place, it
all makes sense, if one makes a very simple assumption: Nixon is guilty—he
knew what his men were doing and, indeed, directed them." Otherwise, it was all
irrational behavior—and that, too would be frightening in a President. As a
result, Nixon, who began the year as the most decisively re-elected President
in U.S. history, ended it facing demands for his resignation and an impeachment
inquiry by the Judiciary Committee of the House of Representatives.
As 1973 began, the Watergate wiretapping was widely regarded as a
mysterious political operation, its origins unknown and its seriousness
unappreciated. Candidate George McGovern had been unable to stir much interest
in it as a campaign issue. Except for dogged digging by a small segment of the
U.S. press, most notably the Washington Post and TIME, the entire matter might
have faded from public view.
While the news stories traced some links between the White House and the
electronic eavesdropping on the Democrats, the Justice Department prepared to
handle the case routinely. Henry Petersen, head of the department's criminal
division, assigned a team of bright but junior prosecutors, including Earl J.
Silbert, Seymour Glanzer and Donald Campbell, to the task. At Petersen's
direction, they showed little zeal for tracing the source of the funds used by
the men arrested at the Watergate or determining who had authorized the
politically motivated crime.
The case of the seven original defendants did not look all that ordinary
to Judge Sirica, who had been reading the newspapers and later told some
reporters: "I was only asking myself the same questions you were." As chief
judge of the District Court, he had the duty to assign the case to one of 15
judges—and he took it himself. That was partly because he had a relatively
light docket at the time, but also because he felt that if he as a Republican
judge handled the matter, and did so fairly and aggressively, no charges could
be leveled that partisanship had entered the judicial process.
The Appearance of Justice Must Prevail
Thus on Jan. 11, ten days before Nixon was inaugurated for his second term
in a mood of festive partying and high spirits, Sirica presided solemnly in his
fifth-floor courtroom in the beige U.S. Court House and served notice that he
regarded the Watergate burglary as a far from simple matter. E. Howard Hunt
Jr., sometime White House consultant, CIA agent and mystery novelist, offered
to plead guilty to three of the six charges against him as one of the seven men
arrested for the Watergate wiretapping-burglary. In this case, answered Sirica,
the public would have to be assured that not only "the substance of justice"
but also "the appearance of justice" was preserved. Also, because "of the
apparent strength of the Government's case" against him, Hunt would have to
plead guilty to all six counts or go to trial for each, Hunt admitted his guilt
on all of them.
"Don't pull any punches—you give me straight answers," warned Sirica when
the four Cuban Americans arrested at the Watergate pleaded guilty four days
later. If anyone else was involved, Sirica added, "I want to know it and the
grand jury wants to know it." The four insisted that the conspiracy stopped at
the low levels of their arrested leaders: Hunt, G. Gordon Liddy, another former
White House consultant and counsel for Nixon's 1972 re-election finance
committee; and James W. McCord Jr., a former CIA electronic-eavesdropping
expert and security chief for Nixon's re-election committee. Where did they get
the money to carry out their operation? They did not know. Snapped Sirica:
"Well, I'm sorry, but I don't believe you."
Sirica was still skeptical when the Government's main witness, Former FBI
Agent Alfred C. Baldwin, admitted at the trial of Liddy and McCord that he had
monitored many of the conversations of Democrats on a radio receiver in the
Howard Johnson's motel across the street from the Watergate. But Baldwin also
insisted that he could not recall to whom at the Nixon re-election committee he
had delivered records of the intercepted talks. "Here you are an FBI agent and
you want the court and jury to believe that you gave [them] to some guard you
hardly knew? Is that your testimony?" asked Sirica. It was indeed.
With the jury out of the courtroom, Sirica dismissed as "ridiculous,
frankly" the claim by McCord's attorney, Gerald Alch, that McCord had helped
bug the Democrats in hopes of detecting plans of radicals for acts of violence
against Republicans during the campaign. If McCord really believed that, Sirica
suggested, he should have called police, the FBI or the Secret Service. Well,
could McCord's defense be based on the claim that he had no criminal intent?
"You may argue it," Sirica told Alch. "Whether the jury will believe you is
another story."
The jury did not, finding both McCord and Liddy guilty on Jan. 30 of
burglary, wiretapping and attempted bugging. At a bail hearing for the two
conspirators, Sirica urged the Government's prosecutors to put certain Nixon
officials "under oath in the grand jury room." At least one, former Commerce
Secretary Maurice Stans, had been permitted by the prosecution to submit a
sworn statement to the grand jury in lieu of testifying. "I am still not
satisfied that all of the pertinent facts have been produced before an American
jury," Sirica declared. He reminded the prosecutors of a list of persons he
wanted them to question again.
Following judicial routine, Sirica ordered presentencing investigations
for all seven defendants. But going beyond normal procedure, he let the
convicted men know that the severity of sentences would depend heavily on the
degree to which they cooperated with probation officers and investigators still
probing the Watergate crimes. One potential truth-bearing forum looming ahead
at the time was that of Sam Ervin's Senate Select Committee. Sirica welcomed
the hearings despite the fact that they could complicate some criminal
prosecutions. "Not only as a judge but as one of millions of Americans who are
looking for certain answers," Sirica said, he hoped the Ervin committee could
"get to the bottom of what happened in this case."
The combination of the impending hearings, twinges of conscience, and
Sirica's not very veiled hints at severe sentences was too much for one of the
previously uncommunicative conspirators. On March 20 Sirica stepped out of his
chambers and into his office reception area to find James McCord standing there
with a letter in his hand. A clerk told the startled judge that McCord wanted
to see him privately. Sirica, who never allows a defendant or convicted
individual to approach him privately before sentencing, quickly retreated into
his chambers and ordered McCord to leave. He said McCord would have to hand any
communication to his probation officer on a lower floor.
For Sirica, it was an awkward situation. Perhaps McCord was offering
incriminating information on others. But what if the envelope contained money,
and some sinister plot to frame the judge was under way? Should he have any
private dealings at all with McCord, if only to accept a letter? Should he just
turn the envelope over to Government prosecutors and let them open it? But what
if it contained something McCord did not even want the prosecutors to know?
Sirica resolved the matter instinctively, reverting to a career-long
tendency to get everything possible on the official record. He summoned two law
clerks, a court reporter, a bailiff, and the probation officer with the letter.
Sirica would open it only in their presence, and he would read it immediately
into the record. As he did so, the implications of McCord's message immediately
hit Sirica. "I knew this might throw light on things we suspected but didn't
know," he explained later. "It convinced me I'd done exactly the right thing in
asking all those questions."
Three days later, Sirica acted on another of his habits; when in doubt,
make matters public. He read the McCord letter to a crowded courtroom. McCord
had written that he feared "retaliatory measures against me, my family and my
friends," said he did not trust the regular investigatory agencies enough to
give them the information but felt he must disclose that: 1) political
pressures from high officials had been "applied to the defendants to plead
guilty and remain silent"; 2) perjury masking the motivations of the defendants
had occurred during the McCord-Liddy trial; and 3) "others involved in the
Watergate operation were not identified during the trial, when they could have
been by those testifying." After he had read the letter and watched newsmen
rush for telephones, the import struck Sirica again, almost like a physical
blow. He felt pains in his chest, ordered a recess in the proceedings and
retired to his chambers to rest.
When McCord again detailed his charges to Government and Senate
investigators, he claimed he had been told that former Attorney General John
Mitchell had approved the Watergate wiretapping plans, that all the defendants
had been given regular installments of payoff money to keep quiet, that he and
others had been promised Executive clemency in return for their silence after
serving short prison terms, and that this offer came from the White House.
McCord's sources of information were Liddy and Hunt, making his own testimony
hearsay and this legally inconclusive in a criminal case. But the fact that
McCord was talking broke the conspiracy of silence—and blew open the whole
scandal.
Sirica then deferred sentencing McCord. But in the most controversial act
in his entire handling of the Watergate affair, he also kept the pressure on
the other convicted conspirators to talk too by giving them harsh provisional
sentences ranging up to 40 years. He called their crimes "sordid, despicable
and thoroughly reprehensible." He promised to review the sentences later and
said that the final sentencing "would depend on your full cooperation with the
grand jury and the Senate Select Committee." Sirica's expressed purpose: "Some
good can and should come from a revelation of sinister conduct whenever and
wherever such conduct exists."
Solid evidence that the extreme sentences would not be finally imposed
came when Sirica sentenced Liddy, the one conspirator who apparently intended
to live up to the omerta training of a clandestine agent by stubbornly
remaining silent. Liddy was given a term of from six years and eight months to
20 years. When he was granted immunity against further prosecution and recalled
before the grand jury for questioning about other conspirators, he still
balked—so Sirica on April 3 gave him an additional prison term for contempt of
court. Frankly conceding that he was wielding a judicial club, Sirica said that
the aim was "to give meaning and coercive impact to the court's contempt
powers."
At a higher level, the cover-up was now crumbling. White House Counsel
John Dean had warned Nixon on March 21 that "there was a cancer growing on the
presidency." Dean spirited documents from his own files out of the White House,
put them in a bank safe-deposit box and gave the keys to Sirica. When the White
House on May 14 asked Sirica to return the Dean documents, the judge refused.
He would keep the originals and give copies to new Watergate Special Prosecutor
Archibald Cox and the Ervin committee staff.
Sirica complied with a Senate committee request by giving limited immunity
against prosecution to Dean and another suddenly talkative witness, Jeb Stuart
Magruder, deputy director of Nixon's re-election committee. They could still be
prosecuted, but not on the basis of evidence gleaned solely from their
televised testimony. Sirica also flashed a judicial green light for the
hearings to proceed as planned by rejecting a Cox motion that television and
radio coverage of Dean's and Magruder's testimony be banned. Cox had argued
that the wide publicity could jeopardize future criminal cases against
individuals.
The Parade Before the Ervin Committee
Throughout much of the summer, the nations attention shifted from
courtroom to caucus room as the familiar Watergate names turned into
unforgettable images on America's television screens. This was television's
greatest contribution yet to public understanding of a historic and confusing
event in American political history. More than all of the news accounts, more
than the proceedings in Judge Sirica's courtroom, the Senate Watergate hearings
dramatized the issues and personalities, permitting millions of Americans to
make up their own minds about whom to believe and whom to doubt.
Some of the once faceless Nixon operatives ruefully admitted their own
guilty roles in the several Watergate conspiracies. Others unconvincingly
denied any participation by themselves or anyone at the White House. But only
the relatively powerless John Dean, tainted but nevertheless courageous in his
turncoat testimony, made grave accusations of the President's participation in
the cover-up. His chilling tale, conveyed in a lifeless baritone, was sharply
denied by such far more influential and shrewd Nixon intimates as H.R.
Haldeman, John Ehrlichman and John Mitchell.
Nixon stood on his earlier claims that he had known nothing of the
wiretapping in advance, never approved clemency for the defendants, was unaware
of the payoffs to them and played no part in the conspiracy to conceal. Then,
dramatically, a means to break the testimonial impasse was revealed: Alexander
Butterfield, a former White House aide (now head of the F.A.A.), told the Ervin
committee that most of the President's White House meetings and telephone calls
had been secretly recorded. The Senate committee and Prosecutor Cox promptly
issued subpoenas for key tapes.
That brought Judge Sirica back on center stage in an unfamiliar and
challenging role. In 16 years on the federal bench, Sirica had handled a wide
gamut of criminal trials and civil suits, including highly complex antitrust
cases. But now he was being asked to rule on an unprecedented claim by the
Executive Branch that a President is immune from subpoenas because the courts
have no power to enforce any order against him; that only the impeachment
process of Congress can touch him. Moreover, argued Nixon's legal consultant,
University of Texas Law Professor Charles Alan Wright, Nixon's tapes were
protected by the unwritten doctrine of Executive privilege. Only the President
had the power to decide which of his documents were so privileged or which
might also endanger national security if made public. At issue, contended
Wright, was "nothing less than the continued existence of the presidency as a
functioning institution."
Sirica did not agree. In an opinion praised by some legal scholars as
unexpectedly erudite, he wrote that he was "extremely reluctant to finally
stand against a declaration of the President of the United States on any but
the strongest possible evidence." Nonetheless, he would have to examine the
tapes himself in order to determine whether the President's case for not
yielding them was valid. "In all candor," Sirica said, "the court fails to
perceive any reason for suspending the power of courts to get evidence and rule
on questions of privilege in criminal matters simply because it is the
President of the United States who holds the evidence" Asked Sirica
rhetorically: "What distinctive quality of the presidency permits its incumbent
to withhold evidence? To argue that the need for presidential privacy justifies
it is not persuasive." As for impeachment, that could be "the final remedy" in
"the most excessive cases," but "the courts have always enjoyed the good faith
of the Executive Branch." Sirica, in short, would not expect Nixon to ignore a
court order.
White House Turnabout on Giving Up Tapes
Sirica had the satisfaction of seeing his opinion essentially upheld by
the Circuit Court of Appeals, which observed: "Though the President is elected
by nationwide ballot and is often said to represent all the people, he does not
embody the nation's sovereignty. He is not above the law's commands.
On Oct. 19 Nixon announced that he would not appeal the case to the
Supreme Court. Instead, he would make available a summary of each of the
subpoenaed tapes and would allow Senator John Stennis of Mississippi to listen
to the tapes to see if the summary was accurate. There was no reason for
Prosecutor Cox to accept that unilateral arrangement, since he had a far better
chance of getting the tapes themselves under Sirica's order. So Cox
objected—and was fired by Nixon. Declared Cox after he was ousted: "Whether
ours shall continue to be a government of laws and not of men is now for
Congress and ultimately the American People to decide."
The clamor of public protest that followed the Cox dismissal and the
virtually simultaneous resignations of Attorney General Elliot Richardson and
Deputy Attorney General William Ruckelshaus shocked the White House. At first
Counselor Wright, on the following Tuesday, Oct. 23, was prepared to argue
before Sirica that the Stennis compromise met the thrust of the Court of
Appeals' suggestion that an out-of-court solution to the tapes impasse be
found. But clearly it did not meet Sirica's order to produce the tapes.
Although Sirica will not say what he intended to do about it, he does admit
that he "was prepared to act." Other judicial sources expected him eventually
to cite the President for contempt of court. Suddenly, however Nixon changed
his mind, ordered Wright to tell Sirica that he would "fully comply" with the
subpoenas for the tapes. When Wright did so, astonishing almost everyone in
Sirica's courtroom, the clearly incredulous judge smiled broadly and said, "Mr.
Wright, the court is very happy the President has reached this decision."
The court was not at all happy, however, when another White House counsel,
J. Fred Buzhardt, informed Sirica on Oct. 30 that two of the nine subpoenaed
tapes were "nonexistent" because they had never been made. Sirica scowled even
more sternly on Nov. 21 when Buzhardt sheepishly revealed another problem with
the tapes: 18 minutes of a Nixon conversation with Chief of Staff Haldeman—the
only part of the recording about Watergate—had been obliterated by a
mysterious overriding hum. Again, Sirica ordered public hearings on this
curious dwindling of the taped evidence.
Those unusual fact-finding proceedings produced the bizarre testimony of
Rose Mary Woods, Nixon's longtime personal secretary. She said she had
inadvertently kept her left foot on the pedal of a tape recorder while
stretching behind her to answer a telephone call, at the same time mistakenly
pushing the "record" button on the machine—and thereby erasing perhaps five
minutes (but not 18) of the taped conversation. Asked in Perry Mason-style by
Jill Wine Volner, an Assistant Special Prosecutor, to re-enact this, Miss Woods
reached for an imaginary phone—and lifted her left foot. Sirica ordered all
the tapes to be examined by a panel of technical experts for "any evidence of
tampering."
While the technicians continued their studies—an undertaking Sirica
described as potentially "most important and conclusive"—he and his young law
clerk, Todd Christofferson, listened to the tapes though headphones in a jury
room. Sirica upheld claims of Executive privilege or irrelevance on all or
parts of three tapes, turning five over to the new Special Prosecutor, Leon
Jaworski, and the grand jury. Although constricted, the tapes still were
expected to be helpful in determining who had been more truthful, Nixon or
Dean.
Convinced that legal processes were well in motion to get at Watergate
truths, Sirica sentenced the long-jailed burglars to relatively light terms;
the minimums ranged from one year to 30 months, much of the time already
served. Said Sirica: "I've given you the lowest minimum I thought justified."
The Argument Over Sirica's Tactics and Conduct
Despite that outcome, Sirica has been severely criticized by some legal
authorities for using the provisional-sentencing procedure as a device to get
the defendants to cooperate with investigators. "We must be concerned about a
federal judge—no matter how worthy his motives or how much we may applaud his
results—using the criminal-sentencing process as a means and tool for further
criminal investigation of others," contends Chesterfield Smith, president of
the American Bar Association. The association's president-elect, James Fellers
of Oklahoma City, much admires Sirica and his Watergate role but likens the
sentencing tactic to "the torture rack and the Spanish Inquisition." Argues Law
Dean Monroe Freedman of Hofstra University: "Sirica deserves to be censured for
becoming the prosecutor himself." The University of Chicago's Law Professor
Philip Kurland considers the harsh original sentences "a form of extortion."
Sirica defends his action on grounds that no one seriously expected those
severe sentences to be made final and that the law makes it mandatory that any
provisional sentence must be the maximum possible; he did not have discretion
to make it lower. Moreover, it could be argued that Sirica's efforts to
determine the true motives and origins of the crime were relevant to his
decision on how severely finally to punish the defendants. Yet it is also true
that the men had every legal right to remain silent and that this particular
use of provisional sentencing, while technically lawful, could infringe on
their civil rights. Sirica, not much given to mulling over law theory, is
unrepentant. To critics of his actions, including his persistent questioning of
defendants from the bench, he has replied: "I'm glad I did it. If I had to do
it over, I would do the same—and that's the end of that."
Many of Sirica's colleagues on benches around the country seem to agree
with him. More broadly, his handling of the Watergate cases is widely seen as a
vindication of the legal system at a time of great stress, Chief Judge David
Bazelon, who heads the U.S. Circuit Court of Appeals for the District of
Columbia, which has sometimes reversed Sirica rulings, contends that Sirica
became enraged not because he believed he was being lied to personally, but
because he thought the court was being lied to. He has humility, which is not a
universal virtue among judges." Former A.B.A. President Bernard Segal calls
Sirica "a shining light. He's shown firmness, understanding and great
integrity." Declares a former partner of Sirica's in the Washington law firm of
Hogan & Hartson: "He was the worst judge the Administration could have had
on this case. He's a deep-dyed Republican who is genuinely outraged at what's
happening in the party that put him on the bench."
Exposure of wrongdoing is, of course, the first requisite in achieving
justice—and Sirica deserves the prime credit for taking those vital initial
steps. Whether justice and law in the end will prevail still depends on the
investigation by Prosecutor Jaworski and his determined staff, the outcome of
numerous individual trials, and what may still be learned—and done about—the
President's actions in the many Watergate- related improprieties. Sirica will
continue to play a role in that process since he intends to remain an active
judge on the bench even after he retires as chief judge in March. Early this
year he will issue his ruling on whether the tapes were tampered with. He may
well assign himself one or more of the major impending Watergate trials.
The future criminal cases, however, may not answer a key question: How
could so much have suddenly gone so wrong? Certainly a longtime trend toward an
increasingly dominant U.S. presidency was a factor. In a development beginning
with Franklin Roosevelt, vastly enhanced by the romantic Camelot atmosphere
surrounding John Kennedy, too much authority has been given by Americans to
their Presidents and too much has been expected of them. Harvard Divinity
Professor Harvey Cox goes so far as to contend that the U.S. public surrounds
the Oval Office with a mystique that approaches "a national quasi-religious
cultism."
Yet there is something unique in the Nixon character and the men he chose
to aid him that spawned Watergate. Despite his intention of "returning power to
the people," Nixon drew authority about him like a blanket of insulation—and
waved it over domineering aides responsible only to himself. Unchecked by the
accountability of Cabinet officers, who must look to the traditions of their
office, answer to congressional committees and worry about legalities and
public opinion, these apparatchik White House guardians cherished secrecy and
told Nixon only what he wanted to hear.
The President in turn seemed at ease solely with such automatic yes men
and relatively anonymous associates, but apparently confided fully not even in
them. Yet he shared powerful prejudices with them, most dangerously a siege
mentality in which so many other vague classifications of Americans—liberals,
antiwar radicals, academic intellectuals, Eastern sophisticates, the
press—were seen as enemies, akin to unfriendly foreign powers. They were to be
subverted, subjected to surveillance and eavesdropping, and "screwed" by
agencies of Government. Nixon's re-election campaign became a crusade in which
any means were seen as justified to keep all those fearful foes out of power.
National security was equated with Nixon security.
But how could so many attorneys, trained in concepts of justice and the
rule of law, become involved? Orville H. Schell Jr., president of the New York
City Bar Association, blames this on a tendency of many lawyers today to forgo
their critical independence and to serve as in-house counsels for corporations,
foundations and Government. Their powerful clients thus become their bosses;
the lawyer's aim is to please, not to advise that what the boss wants done may
be wrong. One law school dean is less charitable in faulting such a broad
trend. He blames Nixon for hiring "legal midgets—underclass lawyers. That's
why he was so surprised by the really classy guys like Cox, Richardson and
Ruckleshaus."
Yet it is the legal profession that has, however belatedly and at first by
a narrow edge, finally become most aroused about the transgressions against law
and the Constitution that make up the dismal scandal. While the profession has
moved forcefully through such men as Sirica, Cox and Richardson to acquit
itself, it is still on trial, and whether justice will finally prevail is still
in doubt.
No Single Outcome Can Please Everyone
"We don't have a victory of good, we just have an exposure of evil,"
observes Professor Kurland. "Nothing has been triumphant but cynicism."
Stanford Law Professor Anthony Amsterdam worries whether justice can possibly
be done when the criminal evidence has been held up for so long by those who
might be guilty. "It is as if in a bank robbery all evidence were given to the
robber to hold for two years before trial."
Certainly if justice is not seen as prevailing by most Americans in the
many trials still to emerge from the affair, a deepening cynicism and a
rootless everybody-does-it syndrome of irresponsibility for individual acts may
be Watergate's more lasting legacy. Whatever the outcome—most crucially
including the fairness and thoroughness with which the President's political
fate is resolved—millions of Americans will still consider the result wrong.
Watergate thus is bound to leave a lingering bitterness among at least a
minority of Americans.
Yet the nation may well be poised in a fateful fulcrum that will either
tip predominant sentiment toward a new faith in its fundamental
institutions—including Congress, the Constitution and the courts—or send it
into a trough of public despair and anomie. The direction will depend to a
large degree upon how many members of Congress, Government prosecutors, judges,
jurors—and, indeed, the vast public jury—try to emulate the nonpartisan
determination and faith of Judge John Sirica, who insists with simple sincerity
that "if the truth just came out, we'll all be all right."
COVERS GALLERY: Click here to see the cover image from 1973
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