Richard Nixon, Fall Guy

Irwin F. Gellman Author, Roosevelt and Batista
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President Gerard Ford dispatched his personal attorney, Benton Becker, to San Clemente, California, to meet with Richard Nixon and explain to the former president the significant provisions of the presidential pardon. Ford was granting the pardon, Becker emphatically highlighted, with the understanding that if Nixon accepted it, he was admitting guilt to criminal behavior. Once Nixon agreed to this condition, Becker had fulfilled his obligation to his client President Ford. Afterwards Becker and Jack Miller, Nixon’s counsel, had drinks where they speculated about a trial where Nixon was the defendant. If the former president, they both agreed, could have received a fair trial (which they both concurred was impossible), a jury would have found Nixon not guilty.

Nixon haters would vehemently disagree with the conclusions of these two distinguished lawyers, and probably found Geoff Shepard’s The Real Watergate Scandal even more disturbing. Shepard graduated from Harvard Law School and was chosen as a White House Fellow at twenty-four. After his fellowship ended, he worked at the Nixon White House and was attached to the Domestic Council staff for five years. During this time he also assisted with the presidential defense team. Shepard makes no secret that he is pro-Nixon and that this book is a defense of his president. The volume is not a traditional historical account; rather it is a legal brief designed to present the best possible argument on behalf of his client. If you are willing to entertain a spirited defense of Nixon and his close associates, then this is an essential read.

The argument is clearly defined. The defendants faced a “systematic denial of their constitutionally guaranteed right to due process of law.” The trial that Nixon’s chief counselors confronted was a media circus. They were denied a jury composed of their peers and were prevented from confronting and cross-examining their accusers in the true spirit of the adversarial system at trial. Their judge, John Sirica, played the roles of judge, prosecutor and jury. Impartial lawyers looking for justice did not staff the Watergate Special Prosecutor Force (WSPF), but instead a group of partisan Democrats determined to convict the defendants at almost any price. The prosecutors did not present their case in front of an unbiased jury, but a pool selected from Washington, D.C. that was eighty percent Democrats who voted against Republicans. Finally, once the defendants were convicted in the federal district circuit, their appeals were rejected in front of a liberal court of appeals that, too, was biased against the defendants.

Some of the charges in this web of judicial impropriety are troubling. Judge Sirica had little respect for defendants in general and treated the Nixon defendants in this matter. He held ex parte sessions with the prosecutors on numerous occasions that, at the very least, demonstrated bias.  He also was one of the most revered federal district court judges. In the case against Nixon’s associates, the liberal court of appeals refused to recuse Sirica or grant a change of venue.

The WSPF was not designed to insure justice. The first head of the force was Archibald Cox, a staunch Democrat who vigorously supported John Kennedy against Nixon in the 1960 presidential election. Lyndon Johnson hired Cox’s successor Leon Jaworski, also a committed Democrat, to prevent a recount in Texas during the same election. Those who worked under these two partisans were equally, if not more energetically, convinced that their Republican adversaries should serve time in prison.

The WSPF relied on two principal witnesses who served Nixon and his associates. One was John Dean, a convicted felon, who oftentimes changed his testimony to suit the prosecutors’ demands. The other was Jeb Magruder who altered his testimony so much that the prosecutors worried about using him as a witness. The WSPF never disclosed this exculpatory evidence that the defendants could have used to impeach Dean and Magruder’s testimony.     

No one denies that some government officials carried out criminal acts, but that does not excuse critics of the Nixon administration from committing their own excesses. To deflect attention from their own abuses, Shepard’s adversaries assert that his allegations have little merit. Judges often hold ex parte sessions; prosecutors are committed to send the guilty to prison; John Dean generally was consistent in his testimony; the defendants could get a fair trial in Washington, D.C., and the court of appeals decided correctly against the defendants.

Some of these criticisms are valid, but taken in their totality, Shepard’s theme rings true, and he should have gone further. The defendants in the Nixon White House could never have received unbiased consideration. Someone had to pay for the domestic turmoil in America. The anti-Vietnam war movement, the violent factions in the civil rights struggle, female liberation, unrest on college campus and a host of other disruptions created deep schisms in the United States psyche.  

Many in the Nixon administration firmly believed that they were facing a wartime mentality where they were being attacked, and they needed to defend themselves. Under such adverse circumstances, those who were placed on trial were paying for the upheavals across the nation. Shepard exposes the glaring example of the perversion in the justice system. He should have added that this was merely one example of the malaise that affected the entire country.

Irwin F. Gellman, author of The President and the Apprentice