Watergate:

Ex Parte Communications

EDPA JUDICIAL RETREAT

NOVEMBER 14, 2016

Americans did likewise, such that only Gordon Liddy and James McCord actually went to trial. Neither put on a defense (other than cross-examining government witnesses) and both were found guilty on all counts.

At the trial’s conclusion on January 30th, Judge Sirica announced his disappointment in being unable to ascertain “the truth” behind the break-in, provided prosecutors with a list of individuals whom he demanded be called before the grand jury, and called for a Senate investigation. Sentencing was scheduled for two months hence, on March 23rd.

The Senate created its Select Committee on Presidential Campaign Activities by a vote of 77-0 on February 8th. It was called the Ervin Committee, after its chairman, Senator Sam Ervin (D-NC).

James McCord submitted a private letter to Judge Sirica a week before sentencing day, asserting that there had been a cover-up, that perjury had been committed, and that blame was being improperly placed.

As we now know, there really had been a cover-up – which collapsed shortly after the McCord letter was made public by Judge Sirica on sentencing day. New investigations were launched and people lawyered up. Both Jeb Magruder (who had been Mitchell’s deputy as CRP’s chief of staff) and John Dean (who had been counsel to President Nixon and, by his own admission, “chief desk officer” of the cover-up) sought out Earl Silbert to turn state’s evidence and reach a plea bargain to testify against their former superiors.

On April 30th, President Nixon announced new developments in the case, and accepted the resignations of H.R. “Bob” Haldeman, his longtime chief of staff, John Ehrlichman, his head of domestic affairs, John Dean and Richard Kleindienst, his then Attorney General. He also announced his nomination of Elliott Richardson to be Kleindienst’s replacement and stated that Richardson had the authority to appoint a special supervising prosecutor.

At Richardson’s confirmation hearings, he agreed to the appointment of his Harvard Law professor, Archibald Cox, to be special prosecutor. Cox quickly appointed two other law professors as his advisors, James Vorenberg and Philip Heymann. Silbert and the career prosecutors were replaced and Cox’s new office grew to be a hundred strong.

Ultimately, their investigations were grouped into five separate task forces: The Watergate break-in and cover-up, the Plumbers investigation of Daniel Ellsberg, campaign practices (dirty tricks), campaign finance irregularities, and the ITT scandal.

The Senate’s Ervin Committee began public hearings on May 17, 1973, but it did not attract much national attention until John Dean’s dramatic appearance (testifying under a Senate grant of use immunity) beginning June 25th. The hearings became even more dramatic on July 16th, when

Alex Butterfield revealed the existence of secret taping system, that recorded all Presidential conversations, which had been installed in February, 1971.

Legal battles ensued for selective White House tapes, the first nine of which were subpoenaed by the grand jury within the week. That subpoena was upheld by the D.C. Circuit on October 12th.

Meanwhile, John Dean’s plea bargain (pleading to a single conspiracy count) with the special prosecutors was formalized during his October 19th appearance before Judge Sirica. The following day, Nixon ordered Elliot Richardson to fire Archibald Cox, who resigned (along with his deputy) rather than comply. Robert Bork became Acting Attorney General and terminated Cox’s appointment. These actions resulted in a firestorm of protest known as the Saturday Night Massacre. The following week, the House of Representatives quickly ordered its Judiciary Committee to commence an inquiry into the President’s impeachment.

The following week, White House lawyers announced that they would turn over the subpoenaed tapes. Two of the requested conversations had never been recorded, however, and a third had an unexplained 18½ minute gap. This led to an evidentiary hearing inquiring into the validity of the White House taping system, presided over by Judge Sirica.

Texas attorney Leon Jaworski was appointed to replace Archibald Cox as special prosecutor on November 5th. Judge Sirica, by now a national figure, was named Time Magazine’s 1973 Man of the Year in January, 1974.

Indictments in the Watergate cover-up case were handed down on March 1st. Defendants were charged with conspiracy, obstruction of justice and perjury. Parallel indictments in the Plumbers case came down a week later, on March 7th. Judge Sirica appointed himself to preside over the cover-up trial and his colleague Gerhard Gesell to preside over the Plumbers case. On March 19th, Judge Sirica turned seventy and was required to step down as Chief judge, thereby losing the power to appoint judges out of normal rotation.

Legal efforts to obtain copies of the White House tapes by the Senate’s Ervin Committee and the House Judiciary Committee’s Impeachment Inquiry were unsuccessful. On July 25th, however, the Supreme Court enforced the special prosecutor’s subpoena for sixty-four more tapes.

One of those tapes, which had been recorded only six days after the Watergate break-in, had the President concurring with his staff’s suggestion that they get the CIA to tell the FBI not to interview two potential witnesses – and seeming to confirm Presidential involvement in the cover-up from itsvery outset. Public release of this tape, quickly known as the Smoking Gun, led to Nixon’s resignation four days later.

Newly installed President Gerald Ford granted Nixon a total and complete pardon one month later, on September 8th. The Watergate cover-up trial began one month after that, on October 1, 1974, with John Dean as the principal prosecution witness. The trial concluded on January 1, 1975, with John Mitchell, Bob Haldeman and John Ehrlichman being convicted on all counts.

Charles Colson pleaded guilty to a single count in the Plumbers case, Gordon Strachan was severed due to complications from a Senate immunity grant, Ken Parkinson was acquitted at trial, and Robert Mardian’s conviction was reversed on appeal. Neither Strachan nor Mardian was ever re-prosecuted.

Cri

tica

l Dat

es

CR

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reak

-in

s:

May

28

and

Ju

ne

17,

1972

3 C

RP

Off

icia

ls/4

Cu

ban

s C

on

vict

ed J

anu

ary

30,1

973

(Go

rdo

n L

idd

y, H

ow

ard

Hu

nt

and

Jam

es M

cCo

rd)

Sen

ate

Wat

erg

ate

Co

mm

itte

e cr

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d F

ebru

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ver-

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Co

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ses

Sp

ecia

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pp

oin

ted

Pre

sid

ent

Nix

on

Res

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sC

ove

r-U

p T

rial

Co

nvi

ctio

ns

Mar

ch 2

3,19

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ay 2

5,19

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ug

ust

9,

1974

Jan

uar

y 1,

1975

Bre

ak-i

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rial

Lidd

y’s

Inte

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evie

wed

: 1/2

7, 2

/4,

3/30

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Joh

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epar

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CR

PH

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dem

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DR 7‐110

(B), AB

A Co

de of P

rofessional 

Respon

sibility (sup

ersede

d)•(B) In an

 adversary proceed

ing, a lawyer shall no

t commun

icate, or cause ano

ther to

 com

mun

icate, as to 

the merits of the

 cause with

 a judge or an official 

before who

m th

e proceeding

 is pen

ding, excep

t:–(1) In the course of o

fficial proceed

ings in

 the cause.

–(2) In writing if he

 promptly delivers a

 cop

y of th

e writing 

to opp

osing coun

sel or to the adverse party if he

 is not 

represented by a lawyer.

–(3) O

rally upo

n adeq

uate notice to opp

osing coun

sel or to 

the adverse party if he

 is not re

presented by a lawyer.

–(4) A

s otherwise

 autho

rized

 by law, or b

y Section A(4) 

unde

r Canon

 3 of the

 Cod

e of Ju

dicial Con

duct

ABA Mod

el Rule 3.5(b)

(current)

•A lawyer shall no

t:–(a) seek to influ

ence a judge, juror, prospe

ctive 

juror o

r other official by means prohibited by law;

–(b) com

mun

icate ex parte with

 such a person 

durin

g the proceeding

 unless a

utho

rized

 to do so 

by law or cou

rt order….

Cano

n (3)(A

)(4), 19

72 ABA

 Cod

e of Ju

dicial Con

duct 

(ado

pted

 for the

 Cod

e for U

.S. Jud

ges a

t the

 time)

•A judge shou

ld accord to every person who

 is 

legally interested

 in a proceed

ing, or h

is lawyer, full rig

ht to

 ∙be he

ard according to law, 

and except as a

utho

rized

 by law, neither 

initiate no

r con

sider ex pa

rte or other 

commun

ications con

cerning a pe

nding or 

impe

nding proceeding. …

Code

 of C

ondu

ct fo

r U.S. Jud

ges 

Section 3(A)(4) (current)

•[E]xcept

as se

t out below

, a judge shou

ld not initiate, permit, or 

consider ex parte commun

ications or con

sider other 

commun

ications con

cerning a pe

nding or im

pend

ing matter that 

are made ou

tside the presen

ce of the

 partie

s or the

ir lawyers. If a

 judge receives an un

authorize

d ex parte com

mun

ication be

aring on

 the substance of a m

a tter, the judge shou

ld promptly notify

 the 

parties o

f the

 subject m

atter o

f the

 com

mun

ication and allow th

e parties a

n op

portun

ity to

 respon

d, if re

quested. A judge may: 

–(a) initia

te, p

ermit, or con

sider ex parte commun

ications as a

utho

rized

 by law; 

–(b) w

hen circum

stances requ

ire it, permit ex parte com

mun

ication for 

sche

duling, adm

inistrative, or e

mergency pu

rposes, but only if the ex 

parte commun

ication do

es not add

ress sub

stantive matters and

 the 

judge reason

ably believes that no party will gain a proced

ural, 

substantive, or tactical advantage as a

 result of th

e ex parte 

commun

ication;  …

Ex P

arte

Com

mu

nic

atio

ns

Sum

mar

y M

eetin

g Cha

rt

1

Earl S

ilber

t 1/

73

To t

ell S

ilber

t ho

w S

iric

a th

ough

t th

e pr

osec

utio

n sh

ould

pro

ceed

at

tria

l Siric

a’s

book

: T

o Set

the

Rec

ord

Str

aigh

t (1

979)

2

Arc

hiba

ld C

ox

6/73

&

7/73

U

nkno

wn

New

spap

er r

epor

ts c

ited

in

defe

ndan

ts’ a

ppel

late

brief

3

Le

on J

awor

ski

11/5

/73

Cou

rtes

y ca

ll on

Siric

a on

Jaw

orsk

i’s fir

st d

ay in

of

fice

Jaw

orsk

i’s h

andw

ritt

en “

to d

o” li

st

(fro

m J

awor

ski p

aper

s at

Nat

iona

l Arc

hive

s)

4

Phil

Laco

vara

&

Pete

r Kre

indl

er

1/2/

74

To fol

low

up

on a

rum

or a

bout

Silb

ert

that

Siric

a ha

d he

ard

at a

New

Yea

r’s

Eve

part

y La

cova

ra’s

1/2

/74

mem

o to

Ben

Ven

iste

5

Ja

wor

ski S

taff

12/1

4/73

To

dis

cuss

sta

tus

of W

ater

gate

inve

stig

atio

ns

with

jud

ges

Siric

a an

d G

esel

l Ja

wor

ski’s

12/

27/7

3 le

tter

to

Siric

a

6

Leon

Jaw

orsk

i 1/

74

To d

iscu

ss w

heth

er a

sitt

ing

Pres

iden

t co

uld

be

indi

cted

Vor

enbe

rg’s

sta

ff m

eetin

g no

tes

(at

Har

vard

’s la

w li

brar

y)

7

Leon

Jaw

orsk

i 2/

11/7

4 To

info

rm S

iric

a of

the

pro

secu

tors

’ int

ent

to

have

the

gra

nd jur

y is

sue

a se

aled

rep

ort

abou

t Pr

esid

ent

Nix

on t

o th

e H

ouse

Ju

dici

ary

Com

mitt

ee

Laco

vara

’s 1

/23/

74 m

emo

to

Jaw

orsk

i, Ja

wor

ski’s

2/1

2/74

m

emo,

and

Vor

enbe

rg’s

sta

ff

mee

ting

note

s 8

Le

on J

awor

ski

3/1/

74

To c

oord

inat

e tim

ing

of t

he c

over

-up

indi

ctm

ent,

su

ch t

hat

Siric

a co

uld

appo

int

him

self

to p

resi

de

over

the

sub

sequ

ent

tria

l

Jaw

orsk

i’s 2

/12/

74 &

3/1

/74

mem

os t

o fil

e

1. Ex parte Meeting with Earl Silbert As Principal Assistant U.S. Attorney for the District of Columbia, Earl Silbert1 was an ideal and idealistic prosecutor. In pursuing the Watergate burglary, he directed a complex investigation, sought indictments in those cases he knew he could prove, laid out his strategy for his superiors in a timely and convincing fashion (explaining clearly how he might go after any higher-ups once the initial convictions had been obtained), and put on a most convincing case on the government’s behalf at trial. Silbert and his associates are responsible for breaking the cover-up—and they did so in a thoroughly proper and professional manner. Later, however, they were treated shoddily by the Special Prosecutor—relieved of their responsibilities and gagged so they could not even respond to press inquiries—and by many in the media. Silbert’s professional and ethical prosecution was not good enough for Judge Sirica, however. The Judge sought a private, ex parte meeting with Silbert. We know about this meeting only because Judge Sirica describes it in his own book. Here’s what he wrote:

I like Earl Silbert. I think he’s a good lawyer. I wanted to be helpful, to share with him some of my experiences which I felt might give him some guidance through what was obviously a tough situation. A few days before the trial started, he was in my chambers discussing an administrative problem unconnected with the Watergate case. I said to him, “Earl, look, you’ve got a great opportunity in this case if you go right down in the middle, let the chips fall where they may. Don’t let anybody put pressure on you.” Before he left my office, I gave him a bound copy of the hearings conducted back in 1944 by a select committee of the House of Representatives into the activities of the Federal Communications Commission. I wanted the young prosecutor to know just how white-washers were engineered. And I wanted him to know that I had had direct experience with cover-ups while serving as chief counsel to that committee.2

1 Files from Silbert’s Watergate investigations are a part of the Watergate Special Prosecution Force files in the Special Access Section of Archives II in College Park, Maryland. 2 John J. Sirica, To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the Pardon (New York: Norton, 1979), p. 38.

2. Ex Parte Meetings with Archibald Cox

In their attempt to have Judge Sirica removed as presiding judge in the cover-up trial, the defendants cited two newspaper accounts—dated June 19 and July 18, 1973—indicating that Judge Sirica had met privately with prosecutors while Archibald Cox was still the Special Prosecutor. In the earlier article, the Associated Press had reported, “After Cox met with newsmen, he conferred privately for 15 minutes with U.S. District Court Judge John J. Sirica and Sirica, without further explanation, scheduled a hearing for today.”1 This was about the time that Dean’s scheduled testimony before the Ervin Committee was postponed because of the visit of the Soviet leader Leonid Brezhnev. Petition for Writ of Mandamus Shortly after Judge Sirica had appointed himself, on March 1, 1974, to preside over the cover-up trial, defendants petitioned the D.C. Circuit for a Writ of Mandamus, seeking to remove Judge Sirica from further involvement in the case. One of the things they requested was an evidentiary hearing to explore Judge Sirica’s ex parte meetings with prosecutors, citing the two newspaper articles about his meetings with Archibald Cox. Interestingly, the ACLU filed an amicus brief supporting the Petition.2 The WSPF brief did not mention or respond to defendants’ request for an evidentiary hearing. The Circuit Court, sitting en banc and without oral argument, denied the Petition in a one sentence, per curiam order, along with a vigorous dissent from Judge MacKinnon.3 This was one of twelve appeals taken from Judge Sirica’s Watergate trials where the Circuit Court sat sua sponte en banc.

1 See news article attached at 2-1. 2 See ACLU memorandum attached at 2-2. 3 Mitchell v. Sirica, 502 F.2d 375 (D.C. Cir. 1974), cert. denied, 418 U.S. 955 (1974).

2-2

3. Jaworski’s Courtesy Call on Judge Sirica At the top of Jaworski’s hand-written “to do” list for his first day in office (November 5, 1973) is the word “oath.” On the next line is the notation, “Courtesy call on Sirica.” Neither party mentions this first meeting in his book, but it must have been an interesting one—especially in light of what followed.

4. Ex Parte Meeting with Lacovara and Kreindler While attending a New Year’s Eve party at his former law firm, Hogan & Hartson, Judge Sirica heard a rumor about Earl Silbert, whom he was scheduled to swear in as U.S. Attorney the following Monday. Judge Sirica called the Special Prosecutor’s office, asking to meet with Jaworski—who was in Texas and unavailable. Instead, he met with Special Counsel Philip Lacovara and Jaworski’s Executive Assistant, Peter Kreindler.1

1 See Lacovara Memo of January 2, 1974, attached as 4-1.

!^,l .t, v t"'p-. -.,t.,p,

DEPARTMENT OF JUS'[{CE '

DATE: Jan. 2, L974

TO

1VATERGATE SPECIAL PROSECUTION FORCE

MemorendumRi-chard Ben-Veniste

FROM : Pbilip A. tacovar

suBJEcr: EarI J. Silhert/Alex Butterfield

4't aSrproximately 10 p.m. on Tuesday, ilanuary L, Ig74r I receiveda telephoa".?*1 rl iv__rtor from riaa-crr=istofferson, 1a!e clerkto Jud'ge sirica, who itated *rat tn"]"age wanted. to see I{r.Jarrorski and me in rris-.i"*u.r* ""-""liy "" possibre the next :crornins- e:l_I r"pii:a- trr"i lrr. -,v.*iisti

ooi= ,rol-"*p*credback in washington u"aii noonr?odd staied that r at reast shoul_dcome to chambers_

At 9:30 a'm' on .Tanuary 2?--?ccomp-+isg by peter Kreindler, rwent to meet wirh .rudgrE airi;;--;;-il= raw clerk in charrbers.3he Judge began-uy =iiting trr-t trre swea:ilg in of Earl ;r_ silbertto be the int-e1:*_r-a:-;ti"rney rrras schedured for 12 noon andthat he had i::. corng "i]""-r"f;; ;;";;rion thar caused hirn robe somewhat concerned .iout the pro!"="a court-appointment.The Judge explain"a-rrr"t-.t , p"ity-irrJ'previous-lvening at thehome of a w"1tri5e"-iionyf' a preient g= fomer member of thefr'rm of Hoqan .rra na=i;;;-(io+ ;il;J; io*", firm) had tordhin rhat 116 rraa neaia;;" things -iroot'-silbert

thar mishtcause the court some embairasment. Ai-d,escribed by-the Judge,the story rcas that aru"-J"tt"rFi"ia,-io=1911y of ri.a. Hatdeman,sstaff and now- raa eenitti"r..tor, rrad confidqa to a close friendthat' before l: ryJ e""rti"tt"E rre was-I-ll"a into Eardemanrsoffice and toli "bori-r;i-i- tiEerve eo".tions he would be askedand was tor-d rrr"i-a"swJi; ;" give. - it-i" unclear r*herher theperson to r'Ehom Butterfield. aliegiary-toia trri, story was thesane Person as related it to ;udse si"i"i t.ii-iiTlt*lru liketythe immedj-ate source of the story (refeired to,-,snly as opaulr)heard about it seconafr""Jl'JudgeSiricaasked'ghetherwg!newofanythingthatwora1dindicate that n"ir-JliiJi. r..a been thelor had otherwi_s" n"r*rri-il :* ir,.ppropii:!ry:r"t rT""liitl*rrnthe originar waterjate-inGstigatiiiu --iepeating

the assurancethat r had' given. tfre .ruage-whei rre t*r*ptone. me at my homeon sunday, December zg,-igti,-to";"i;ilf ,the proposed appoint_ment of si-lbert' r toia him that r-rt"a-aiscussed. silbert,s rolein the case borh riirt tr."-;peg11r p.o"..,rtor and with others inthis offiee r*ho were il;; ii*iriir-riti"ir,e watergate cover-up

4-1

and vrith the Justice Departaentrs handling of it and that weknew of nothing ro indilate bad fai-th or i*pi"pii;; ;" silbery spart- The Judge asked whether Butterfield, had testified beforethe original grand' joty and. bot"h Peter xieindler and i ex*nressedour doubts that he Lad-been inte.rogii"e.The Judge asked for recomrnendations and, r told him that we wouldlook i-nto the matter but that the likerilooo-ihat this reportwould le1d- to-?ly heretofore unsuspected diselosures about in-volvement by silbert j-n misconduct rras so "iigttt that r saw noreason fgr d.glalz_ing the appointment. lilhen th6 ;uage askedwhether he should' sfep asiae and allow.ruage-H-rt to administerthe oath or should' at-Ieast discuss these fratters sith the Board.of Judges, r told him that r;t;-in no p""iii"" to advise h1uon whether to avoid_adnilistering the olth io-siru*rt himselfand r said he could, feeL free t6 ad.vise the Board, of Judgesthat we did not- regard EarL silbert's role-in-trre case as inany way censurable- I promised^ that r would promptly ascertain

. whether we had anything on the eutterii;id-;";le of this story.After checking *nltl y?ut- Henry.Ruth,--George Frampton, and GerryGoldmanr r ascertainEa that niitrrer wateriate files nor centralfiles has any record that Butteriield wis-"n""-questioned byanyone prior to his ?ppearanee before tl.e senate select conmitteein JUJ-y, L973, r callld back the Judge and toia him of thisconelusion. r stated. that the most iiL"iy

".pi.n.tion was tharprior to his senate testimony, sone commiite"-;;;;;;-t";*iJicatedto the white House what trre 1i.t<e1y questions would 6" t9 piesentor former !{hite Eouse staffmembers- Even though Ealdenan 1,rasnot on Lhe staff at that time. he apparently siayed, closeS-y fntouch with matters and had been Butllrfield.i s - superior. r told

-> tfre Judsle that we would try to

-traclc dorrn *y l.=is f.or tlre/ story.

The Judge thanked. me for this information. Ee stated that hehad just received a leJ.ephone salL from sara. Dastr of the Ervincornmittee who had telephoned, hj:n about trrJ renrind of thecommitteers subpoeaa enforcement suit. rrr* J"aq" t"rJ-*"that he had indicated to Dash, a,good. f.ilralJ""i"ifiy wfrathe had told us, and appareatly alio indicaled trr.t he had. givenus this information.He said' Dash told. him that tre corsn:ittee had nottring adverseabout silbert and that its final report would not contain anvderrosatory info:roation about hirn. on this usIJ, iiiiqJ"siri""indicated to me that since both the conmittee and, ure had"cleared'. Silbert, he would proceed_rto sweai-him in as UnitedStates Attorney as scheduledl

2

r. suggest that someone frora yosr task force should contastBrrtterfield, to_ ascertain whethlr be rrie aavance knowredge ofany guestions he rsas to be asked ry g"""a"*"nt investigators,*rhether before the senate-or beforl g*-gr"od jury and what;?i: Ii-R- naldenoan'nav rrive pi.y"a-iffiri*ri*s-o;, asliegiogcc: LeOn Jaworski

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5. Ex Parte Meeting with Jaworski and His Staff On December 14, 1973, and at Judge Sirica’s explicit request, four top WSPF officials participated in a private meeting with him and Judge Gerhard Gesell. In addition to Jaworski, the prosecutors present were Henry Ruth, Deputy Special Prosecutor; Philip Lacovara, Special Counsel; and Richard Ben-Veniste, acting head of the Watergate Task Force. Because no record was kept, we do not know the extent of the meeting or the topics that were covered. None of the participants ever even mentioned this meeting in their three subsequent books. Jaworski had assumed office just the month before, so the meeting is likely to have been a review of the ongoing and anticipated WSPF criminal investigations. One topic most likely to have been discussed was the significance and effect of the tape of March 21, 1973, especially because it had only been a matter of days since Judge Sirica had turned the first set of subpoenaed White House tapes over to WSPF prosecutors. Although it is not clear why Judge Gesell alone was invited to the December 14th meeting, Judge Sirica assigned to him all the Watergate-related cases that Judge Sirica did not take for himself. Indeed, Judge Gesell was already involved in several Watergate-related matters. He had recently accepted Donald Segretti’s guilty plea, on October 1st, for political sabotage of campaign opponents. Judge Sirica had assigned him the related trial of Dwight Chapin, who had been indicted for perjury on November 29th, and Judge Gesell had accepted, on November 30th, Egil Krogh’s guilty plea for his role in the Plumbers break-in of Daniel Ellsberg’s psychiatrist’s office. We know about the meeting of December 14 because of a letter that Jaworski sent Judge Sirica on December 27th. Jaworski’s letter opened with the following sentence:

When Messrs. Ruth, Lacovara, Ben-Veniste and I met with you and Judge Gesell at your request on Friday, December 14, you suggested that it would be helpful if we could provide you with some sense of the caseload that we would be generating for the Court over the next several months.1

1 Jaworski Letter of December 27, 1974, attached as 5-1.

There also is a separate item of interest in Jaworski’s letter—his prediction that the comprehensive cover-up indictments would be handed down by the grand jury “by the end of January or the beginning of February.”2 This was information that Judge Sirica very much welcomed, because grand jury action within this time frame—before Judge Sirica’s seventieth birthday—would allow him to appoint himself to preside over that trial.

2 Id.

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Ilonorable Jotin ,y. SiricaChief .IudgeUnited Siates District Court

for the Distrist of Co]-umbiaWashington, D. C. 20001

Dear Chief Judge 3iri"u.=when Hessrs- p.uth, Lacovara, Ben-veniste and r met r^lithyou and' Judg: fgser] at your req'uest on Frid.ay, December L4,you sug-g'ested that it would be helpful if rse Lould provid.eyou vrith some, sense of the caseload. that we wouLd be gienerat-ing for the court over the next several months. r have re-vier^red' the status of ttre investig'"ti"*= eurrentry ";;;; ;;yyi!+ nry task force leaclers, -and. i.u.rr* put together vrtrat rbelieve is a reas.,nabr-e projection of the scale of indict- .raents that may be returned ,letireen the reginni..g.-or the newyear and the end of April. "' .--r--------3

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Looking ahead to March_and Apri3, r l.ave reason to.anticipate tr,ro -or three indictnt"n!" ii,.at may invorve one_i'reek--trials, one involving a Lvro-r+eek triar, and anotrrerpossibly leacling to a three-iveek trial. of course, tLrereare a number of other matters currently at trre preriminarystages of investigation rrrhich might--n. reaay for indictnentduring l4arch and ipril .= r',erl- Adced. to the cases referred

5-1

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to alrove- a:f,e a rrur.ber of relatively straightforward casesthat, if not terr*i.rrateC by an agreed. upoir p3-ea of guiLty,should take no more the.n a day or two to try.

I ann sure you can appreciate th'at the estimates I havegiven are extremely rough. It isr of sorlrse, possibl-e thatihe grand. jur-y nriLl el.ect not, to return indiciments in someof tJrese aieal. In add"ition, rrill.ingness by potentialdefendants to agr'be to pLead gruilty before or after indict-meat may substantially reduee the nurnber or Lengttr of tlretrials.- It.is my opinion, howevbr, that ttre bsti-mates Ilrave given, shil.e perhaps erring on the side of beingoverly incLusive, trilt provide you trith infor:nation tbatyou Bray find helpful in planning for ttre assiginnent 'ofcases C.uring tlre earl.y part of tlre new year. ,

DIo Coubt in making your ot'm assessment of caseload.you wilJ. consid,er the ti-rne that rriJ-l- be consuned. betrseenind.ictments and, trial.s in 'these cases by pre-trial motions tparticularly notioas for continuances or transfers based, onpre-tria1 publicity, including the report of the Ervi-a Com-'mittee rrhich is sched,u3-ed to 'be released in ttre Spring.

-. '.1:' ' *', If further infofmatiofr' or detail- woul-d be hel-pful.; I

vrould be happy to respond. to any qluestions ]nou ntay have.I-,et me take this opportunity to express aglain my Ceepestappreciation for the extremely careful and responsible rr*ayyou trave been handLing t}.ese. sratters and for- the corrrtesiesyou have extend.ed to me and to my staff .'

Sincerely,

,/t/LEON JAV.IORSKISpecial Proseantor

cc: llr . *Taworski. l.tr. RuthMr. tacovaraTask Force Lead^ersFi].es

6. Jaworski Discussion Regarding Indicting a Sitting President Harvard Law Professor (and later Dean) James Vorenberg was the first person to join Archibald Cox as a member of what became the hundred person Watergate Special Prosecution Force—and functioned as Cox’s top assistant throughout his tenure. Vorenberg did most of the staff hiring and was instrumental in guiding WSPF initiatives. He also urged Cox to be sure accurate records were kept, such that they could issue a comprehensive Report at the conclusion of their work. Volunteering to keep those records, Vorenberg kept a notebook of significant events, which included staff meeting notes. Vorenberg took all of his files with him when he departed and they became available for review—at Harvard’s law library—only in the summer of 2015. His notes marked “For Weeks Ending 2/14/74” contain the description of tensions arising over Jaworski’s lack of full disclosure to his staff.1 Below is the author’s expanded transcription and interpretation. Expanded Transcription

1. President – The memo written by Carl Feldbaum, et al, recommending President Nixon be indicted, is a cause of frustration in the staff because Jaworski told them that he’d already reached an agreement with Sirica, several weeks prior and without disclosure, that Nixon would not be named. One problem is that some (and maybe most) of the staff agree with Feldbaum’s memo.

Author’s Interpretation Carl Feldbaum was Executive Assistant to Deputy Henry Ruth and would not be expected to author such a memo without Ruth’s tacit approval. When the memo came up for discussion at the staff meeting, Jaworski dismissed the idea out of hand, saying that he’d already reached an agreement with Judge Sirica that indicting a sitting president was outside the grand jury’s authority—so the matter had already been settled. Vorenberg is noting that the rest of the staff (some, if not most) are really upset that Jaworski did this on his own and that he did not tell them he had done so.

1 A copy of Vorenberg’s handwritten notes is attached at 6-1.

Because Jaworski’s summary of his meeting with Judge Sirica of February 11th discusses only the possibility of a grand jury report and omits any mention of the possibility of indicting President Nixon, this particular discussion with the Judge must have occurred sometime before that, which would put it in the second half of January—and would be yet another secret conversation between Jaworski and the Judge. Note that Vorenberg is not the least concerned about Jaworski’s ex parte meetings with Judge Sirica; those have become routine. He is merely noting that the staff is most upset with Jaworski for having precluded the option of indicting President Nixon without allowing them to be heard on the matter.

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7. Ex Parte Discussions Regarding the Road Map

A. January 21, 1974 The next instance of prosecutorial coordination with Judge Sirica originated within Jaworski’s own staff. WSPF prosecutors had concluded that it was vitally important to share information they had gathered concerning President Nixon, including grand jury materials, as soon as possible with the House Judiciary Committee’s Impeachment Inquiry. Their method for doing so—an interim grand jury report—ultimately became known as the “Road Map.” What is significant is the proposal in Lacovara’s memo of January 21, 1974 for another private meeting with Judge Sirica, to make sure that the Judge fully appreciated that a grand jury presentment was in the works and that he would be prepared to order its sealed report to be forwarded to the House of Representatives in the manner that WSPF attorneys desired.1 As Lacovara explained In his memo, “It would be most unfortunate, for example, for the grand jury to return a presentment without forewarning and then have the judge summarily refuse to receive it because of his lack of awareness of the basis for such a submission.”2 The goal of this meeting, then, was to lobby Judge Sirica in advance of the forthcoming grand jury report and to gain his concurrence on how it should be handled. This meeting was particularly important because the grand jury interim report would contain a copy of the March 21st tape, which the D.C. Circuit had ruled could be made available to the grand jury. There was no legal basis for transferring this tape to the House. In fact, in every instance where the Congress attempted to enforce its own subpoena for these tapes both the District Court and the Court of Appeals would uniformly rule that they were not subject to judicial enforcement because of the constitutional separation of powers.3 B. February 11, 1974 The meeting that Lacovara had recommended actually took place on February 11, 1974, even though it was Judge Sirica who occasioned it. Like their earlier meeting, this one was unmentioned in subsequent books by the

1 See Lacovara’s Memo, Presentment by Watergate Grand Jury Concerning the President, attached as 7-1. 2 Id. 3 See Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).

parties involved. Nor was it acknowledged in subsequent WSPF appellate briefs responding to allegations that such meetings may have occurred.

Here is what Jaworski’s memo of the following day4 said about the portion of this meeting that relates to the Road Map:

The Judge commented upon the status of matters before the grand jury which led into further comments on the possibility of the grand jury considering some type of special report or presentment. He considered this a very touchy problem and cautioned as to what the public’s reaction would be to a grand jury stepping out with something that was beyond its normal bounds. He cautioned that the whole effort could be tainted by something irresponsibly being done by the grand jury. He stated that the public would rightfully conclude that the entire proceeding had not been judicious but simply one of wanting to hurt the President. He further said that it was not the function of the grand jury but that of the House Impeachment Committee to express itself on that point. He then told me that in the event that I observed anything along that line being considered by the grand jury that he thought it would be appropriate for him to meet with the grand jury in camera. I expressed the belief that it was appropriate for the grand jury to refer to having in its possession evidence that it believed to be material and relevant to the impeachment proceedings and to suggest to the Court that it be referred to the House Committee for that purpose. He countered by stating that he believed he should be informed of the discretion that he could exercise in matters of that kind and further requested that I have a memorandum prepared for him that covers this subject. I agreed to have this done.

C. Vorenberg Notes for Two Weeks Ending February 28, 1974

Vorenberg’s notes labeled “For Two Weeks Ending 2/28/74”5 suggest that Jaworski has actually shared the format of their intended report with Judge Sirica and gained his approval. Below is the author’s expanded transcription.

4 Jaworki’s full memo of February 12, 1974, is attached as 8-1. 5 Vorenberg’s handwritten notes are attached as 7-2.

Partial Expanded Transcription

2. Jaworski is meeting with Sirica—Sirica liked the format of Lacovara’sReport

-- Sirica hasn’t committed to any specific course of action -- 2-26 – Jaworski discussed their grand jury scenario

-- The grand jury agreed to their approach, asking only three questions -- They also named the President in their bill of particulars –

-- Jaworski says he urged Sirica not to hold a hearing that will give the White House a chance to delay -- The staff is to screen the sections – permitted to put what is urgent in the Road Map

D. Judge Sirica’s Subsequent Denial

We should jump ahead for a moment, since Judge Sirica would later dismiss his ex parte discussion of the grand jury as but a minor allusion to a possible action. John Wilson, Haldeman’s criminal defense attorney, was so incensed at the surprise (and sealed) grand jury report that he submitted a formal letter to Judge Sirica demanding to know if the judge had met with WSPF prosecutors in advance of the report’s submission.6 This letter, which is to be found among Judge Sirica’s papers in the Library of Congress, was never answered directly. Indeed, the WSPF documents attached reveal why any honest answer would have been difficult to compose.

What Judge Sirica did do, in his order approving of the grand jury transmittal, was simply to state, “The Special Prosecutor notified the Court shortly before delivery of the Report that the Grand Jury intended to take such action.”

E. D.C. Circuit

Following Judge Sirica’s order approving the Road Map’s transmittal, along with other materials in a brown, government-issued brief case, defendants sought a Writ of Prohibition or Mandamus.

The hearing was held before the court sitting en banc on March 21, 1974, with a per curiam opinion upholding Judge Sirica’s action issued that very same day.7

6 Wilson’s Letter of March 19, 1974 is attached as 7-3. 7 Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974), cert. denied, 418 U.S. 955 (1974).

Interestingly, neither the Road Map nor the contents of that brown brief case have become public, so we do not know what information was transmitted to the House Judiciary Committee and whether it included grand jury materials which the House could not otherwise obtain. The Committee’s internal records are not scheduled for release until 2024.

WATERGATE SPECIAL PROSECUTION FORCE

,lroor**'o!' z:: , c1i./t'

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DEPARTMENT OF JUSTICE

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Memorandum

FROM

SUBJECT: Presentment bythe- president '

: Leon JaworskiSpecial Prosecutor

nrt/: phi].ip A. I

counsel .";;;dProsecutor

DATE: January 21, Lg74

Watergate Grand Jury Concerning

As part' of our consid.eration of the most appropriate r+ay ofdealing with evidence tending to impli.cate the Fiesiaent in thehratergate cover-upr w€ have d-iscussed the possibiliLy of advisingthe grand jury th?! it_may return a presentment setting forth iiiviews of the presidentrs lonpl-icity iven though it nigfrt bedelermined as a matter of lai.r or poficl' that ihe presiaent should,not be indicted.. Peter Kreind.ler was lsked to prepare a memoran-dum on this subject and he has reached the conciusiorr, reflectedin the attached menorandum, that sutraission of such a present-Tgnt by-the grand jury r^rould be constitutional. f have beendiscussing this subjeEt with him since ttre beginninf of hisresearch and. am familiar with the authoritiesl r -free with hisanalysis and conclusions in all respects.

rf yog agree that presentment in lieu of either indictmentor non*action is tbe proper mod.e to pursue, there remains thequeslion of proced.ure. _specificallyl the reLative rarity withwhich presentments are filed in fediral courts rnakes it Sesir-able to advise chi-ef -Jud.ge sirica in ad.van". of ttil pi"p"".acourse. rt would be most unfortunate, for example, ;or lrregrand' JurY to return ? presentment r^riihout foreiarning and. thenl"o.* lhe jud.ge summarity refuse to receive it because of hislagk of awareness of the basis for such a submission- F'^r"r.tror-if . 3". g.lso- questionable whether we shourd d.iscuss this ;;;;il"trrith the chief ju-dqre befofe the ;;;a-irrry, whose decision wouldbe involved, has had an-opportunlty to-coisider this possiblecourse. Yet there wou1d. be sone risk in d.iscussing sueh anapproach with the grand. juryr_ and perhaps planting a seed thatcourd not be unsown, before-ihe juige has -t least tentativelyind'icated' that tre would be prepaled to accept such a presentment-

7-1

In light of all. of thd foregoing factorsl I recosunend thefollowing course:

J.. That you decide formaLly and as -guictly as possi5levrhat iavice yoit w.ot given to thE. g{ald ittf in.your_capacityas its counsel- on the-qgestions of- (a) the Presidentrs indict-aniiity as a matter of 1aw, &) tbe policy -fact_ors concerningindictient of an i-ncumbent President, and (c) the propriety oftfrJ-grJnd juryrs submission of a presentmen!. lqlnang the Presi-Aentl eithlr it op"tt court or under sea1, wlth a-request thatit b; forwarded tA the llouse Corunittee on the Judiciary' My.

own reconmend,ation is that the grand jury be told !") we believethat the President can constitutionaLly be indicted. for thecrirne of obstruction of justice but thit the quesllol is sub-j"ct-to-considerable dou6t, 91d-therefore (bL in-light of theietrer" dislocations that would immediately flow from the naming

"t a sitting Presid.ent as a crilninal defendant, it would bepreferable to leave forrnaJ" proceedings to the Eouse of Repre-sentatives. With regard to- (c) the grand jury should be advisedthat it may return a presentrnent, which states its concLusionsbased on tle eviAence- it has heaid, but which does not initiatea-cri-minaL proceeding, and I would Propose that the presentmentbe submitted und.er seal to the chiei juAge, with a request thatit be forrrarded to the House Judiciary Conrnittee after counselior efre President trave been given an opportunity to srrlmit anyoUj""iiott", eittrer on the Iaw or the ficts, that they may have'

2. After you make the foreEoing d.ecisions, I recoumendthat you or I oi lottr appear before the grand jurYr.at, theconclirsion of the- presenlation of the tapes, to ad.vise ttre:ttof these determinaiions. They shouLd, caadidLy be told tbat itis not certain how the court wiff respond to the subrnissionof a presentment but should be advised that this matter willbe diicussed, l.rith the chief judge Lf the grand jury is inclinedto return a presentmeat involving the President-

3. If the grand jury ind.icates its tendency toward, re-turniag a presen*rnentr-de shouJ.d schedule a conference with -

Chief ,iudge Sirica to apprise hirn in ad,vance of this possilledevelopment. f would be prepared to submit a memorand,um of lawto hjrn-at such a meeting, if he indicated an interest Lnreceiving it.

-3

4. At any suctt meeting we 'shouJ.d. reconrmend to Judge Siricathat the presentrneat be received by fuim under sealr with dis-closgre onry of ttre fact that the girand Jury has made a submis-sion to hira, and that the l{hite Eduse be given ten d.ays toreview^the presentraent and to make objections to its iiLing andtranwission.

Attachment

Ruth (VattachmentlKreind.ler (w/o attachrnent)Ben-Veniste (n/o attachment)

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ROOER .r. WHITEFoRO rt..{e..RIT.IGGOLD HART G'C.IgT3rlgHll .r. CARMODY loorieT'JOHlr J.WILSONlaARFrY L. RYAN, .jFa-

il9 .Y. MORSANr.rR.FRATIIi .H.sTRICKLERU'TLLIAM g. ROLLOYI'C}IARLES J. STEELEJOt{N it, €ARMOOY, JR.JAMES EdWARO AALARD

'(6/tN W. CATMOOY

coultlsEL9oNALo L. HERSKOVTTZ

I.AW OFFICES

Wsrrsroxn, Ifa'nr, Clnacoov & l!-rr'soN

EIs FTFTEENTH STREET' NORTHWEST

WASHINGTON, D. c. zoooEeoa-C3A-O495Caa-EA9oREsg

WH'IEHA'IT WASHIN TOi.

ltarch 12, ]-gTll

MAFIYLAND OFFICT74ol wlscoNslN AVENUE

EETHESDA, MARYI-AHO ?OOI4

301-556-57C}0

JO V. l.toFlGAN, JR,FFANI( H. STRTCKLERglLt.lAir E' FtOLLow'CHANLES.J. STEELE

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dr'/'Ilonorable Jobn J. SlricaChlef JudgeUnLted States Dlstrlct CourtUnlted States Court HousetJashlngton, D'C.. 20001

Dean Chlef Judge Slrlca:

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JJl{:hle

cc: ALI Counsel

llould you be wllLlnti to lnform us whebher you$ere eonsulted bi or whether you con{erred wlth theproseeutors, ih.-Grand. Jury, br the foreman or other menberit."uoi, refardlng the repbrt whlch the Grand Jury presentedto you in open eolrt on Mareh 1, 1974, before such reportwas actually fre=unted; or tSat you had notiee of the GrandJuryrs lntention to p::esent sueh a report prlor to lluactually dolng so?

ResPectful-1Y,

7-3

8. Ex Parte Meetings Regarding Timing ofthe Cover-up Indictment

February 11, 1974

Another ex parte meeting between Jaworski and Judge Sirica took place on February 11, 1974, and, again, it was Judge Sirica who occasioned it.1 He was a worried man. Jaworski’s prediction of cover-up indictments by the “end of January or the beginning of February” had proved inaccurate, and the end of his tenure as Chief Judge, on March 19th, was but a few weeks away. So Judge Sirica sought yet another ex parte meeting with Jaworski. Like their earlier meeting, this one was unmentioned in subsequent books by the parties involved. It was not acknowledged in subsequent WSPF appellate briefs responding to allegations that such meetings may have occurred.

Here is what Jaworski’s memo of the following day2 said about this meeting:

On Monday, February 11, I met with the Judge at which time several matters were covered as we sat alone in the jury room. He again indicated that provided the indictments came down in time, he would take the Watergate Case, stating that he had been urged to do so by any number of judges from across the nation the most recent of them being those who were in attendance with him at a meeting in Atlanta. He expressed the opinion that these indictments should be returned as soon as possible. He also stated that henceforth all guilty pleas would be taken by him. We talked about the Vesco case and he merely expressed the thought that perhaps a sealed indictment would be of some help.

Jaworski’s wording indicates that this was not the first time that the Judge had informed him of his desire to appoint himself to the cover-up trial. Jaworski knew—because Judge Sirica had told him so—that Judge Sirica wanted to run this trial too. It is quite clear that Judge Sirica was urging that the indictments be hurried along so that he could do so, a point mentioned twice in Jaworski’s memo.

Judge Sirica’s discussion of the Vesco case with Jaworski is troubling in and of itself. John Mitchell was about to go on trial in New York City for

1 A separate portion of the same meeting was discussed in incident 7 above. 2 Jaworski’s full memo is attached as 8-1.

improperly helping Robert Vesco resolve an SEC investigation in exchange for a two-hundred-thousand-dollar political donation. When Judge Sirica pressed Jaworski to hurry the cover-up indictments, the prosecutor would have explained (as he detailed in his book) that he did not want these indictments to be announced until after the Vesco jury had been sequestered, lest Mitchell argue that the attendant publicity had poisoned potential jurors’ minds for the Vesco case. Judge Sirica’s apparent response was to suggest that the cover-up indictments could be brought in time for him to appoint himself to the trial but kept under seal so as not to influence the New York jurors.

February 19, 1974

In response to a one-page memo from his deputy regarding the Vesco case in New York, Jaworski hand-wrote a response that included the following sentence (emphasis in original): “We know that barring unforeseen circumstances the indictment will be in Wed or Thurs of next week & Judge S expects that.”3

March 1, 1974

The comprehensive cover-up indictments were announced on a Friday in Judge Sirica’s courtroom, apparently with the grand jurors actually present. The WSPF prosecution force had met Judge Sirica’s birthday deadline with less than three weeks to spare. After announcing the indictment, Jaworski moved for special treatment of the cover-up case, so that Judge Sirica, the Chief Judge, could assign someone out of the usual rotation to preside over it. Indeed, Judge Sirica signed the order naming himself as trial judge later that same day.

Documents that have recently come to light detail how Jaworski slipped into Judge Sirica’s chambers a half hour before the hearing for yet another private, off-the-record meeting to go over the Judge’s and the prosecutor’s roles. They also met again after the hearing to discuss how smoothly things had gone and to be sure that nothing further needed to be done at that time. While neither of these ex parte meetings is mentioned in subsequent appellate briefs or in Jaworski’s or Sirica’s book (except for the briefest and almost misleading allusion by Jaworski4), we now know about the meetings

3 A copy of this memorandum is attached as 8-2. 4 Jaworski, p. 103.

because of a second secret memorandum that Jaworski wrote for his confidential files, recording the agenda on which they agreed.5

Here is a portion of Jaworski’s memo:

On the morning of March 1, I met with Judge Sirica in chambers at 10:30. We reviewed the agenda consisting of (1) presentation of indictments and sealed special report of the grand jury; (2) unsealing of the special report and reading by Judge Sirica, and the acceptance of the report and its resealing. I told Judge Sirica that I would ask the Court to specially assign the case in view of its length and protracted nature. . . .

After [the 11:00 hearing’s] opening, Judge Sirica looked at me, asked if I had anything to take up with the Court. I then rose, went to the lectern, and said, “May it please Your Honor, the grand jury has an indictment to return . . . .” The Judge in open court asked if I had any further comments, and I stated: “Due to the length of the trial, conceivably three to four months, it is the Prosecution’s view that under Rule 3-3(c), this case should be specially assigned, and we so recommend.” This meant that Judge Sirica could assign the case to himself, which he did do by order later entered that day.

March 19, 1974

On this date, Judge Sirica turned seventy years of age and was required to step down as Chief Judge, thereby losing the ability to assign future cases to any particular judge. On March 7th, however, he had assigned the Plumbers prosecution to Judge Gesell, who was the only other judge included in the December 14, 1973 meeting with the four WSPF prosecutors.

5 The draft copy of Jaworski’s memo of March 1, 1974 is attached as 8-3.

tc

*d €"*b'*,.uQ CONFT DENTIAL

On Mond.ay, I.ebnrary 11, I met with the Judge 'at which

time several matters were covefed. as we sat alone in tbe jurrr

room. He again indicated that provided ttre indictmeats 'came down

in tirne he would take ttre Watergate Caser' stating ttrat he had

been urged, to do so by any nunrlrer of .rudges from across

nation ttre most recent of them being those who were inattendance with'hirr at a meeting in Atlanta. He errpressed the

opinion tlrat ttrese indictrnents should be retrrrned. as soon igpossible. He arso stated, Lhat henceforttr all guilty pleas

would be taken by him. we taIl?ed. about the vesco case asd he

merely €{pssssed. the thought that perhaps a sealed inaietnentmight be of sorne help. Ee mentioned one or two personal

matters such as an effort to smear him because of a courpletely

fabricated, tale relating to him and his son, of whicb he

wanted. me to be arrare. Actually the discussion began .wl,th

his r:nburdening himseLf to me on ttrat particular matter. Ee

also mentioned that he trad. been r:=ged to speak at ttre stateBar of Texas in san Antonio and. indicated that he would.

L2/L974

accept tJlis inwitation,

8-1

2

Ile sought my reaction and 1 urged him to do

ofso.

rnatcers beforeThe Judge eormented' upon the sLatus

the grend jr:ry stricb. led into firrther co t ents o:r the possibil-ity

ofthegrandjr:ryconsideTarL'sornetypeofspecial.rePortorpresentrnents. Ile coasidered thle a very touchy probl-e.m and

eaucioned as to wleat the public's reaction would be to'a

grandjurysteppingoutwithsomethingxtraxwasbeyoaditeno:mal botnds. IIe cautioned that the $ixole 'effort couLd be

tainted by sonpg6*, irrespoasibly being done by the grand

jrrry.I{estated'thatthepublicwouldriglrtfirllycorrclude

thatttreentireproceedinghadnotbeenjudiciousbutsiq]-yoneofwantingtobr:rttheP-resid'eat.Hefirrthersaidflratit was noL ttre funcr,ion of iire grand Jury but that of tlre'

l{ouse Impeachment Comrittee to exPtess itseLf on t$at point'

I{e ttrerr toLd me that ia tJre event I obserted anything along

that l-ine being eonsidered by ttre grand jury that he thougftt

tr^* Li',, frt mer rand jurYit wouJ.d be aPProPriate for hiu to meet with the g

incatneTa'IexPressedthebe].iefLhatitwasaPPropriateforthegrarrdjurytorefertohavin'glnit'spossessioa

.eirlderrce ttraL it' beliewed- to be materiaL and relevalx€ Co -

theinpeactrmentProceledings.andEosuggesttottreCourtth'atit be referred. to the House Cofirmittee for t-jtrat' purgoi" ' Ee

eountered by stacing that he belLeved he shoul-d be infor:med

of the discrer*^on tleat he could exereise in matters 9f that

kiad and further requested ,that I trawe a ltremorandr'n' prepared

for hiu lhaf -covers this subjeet. ,-T agreed to have thlg-done'

1VATERGATE SPECIAL PROSECUTIONI

FORCE

Phil Lacovara joined j.n theto Mr. nayhilJ- r.s questions

Mr-. ldr.

Mr. McBrid.e

Lacovara, '

Ben-Veniste

lh--*.' g fL;- f faa*& effi/Lrak .--( & z"etL f4' - : Wflifu;*1 e;*" -**ifu,;d;*"eJ Lq. "f*; fu*c a #n :9,4* s; ryY ,*,u:-ffiffi"-:rtT"e'ffi#ffi

Memor&ndurnTO Leon Jaworski-

Henry Ruth

SUBJECT: Vesco Trial

.Iirn RayhilL called this morning at the request ofJudge Gaglia.rd.i to d,etermine if we had a date certainf,or-the Watergrate indictment and, if not, whether wewould' state that the Watergate ind.j.ctment woulddefinitely be returned before the conclusiori of theVesco triil .:...I told Rayhill .that we did not- now have such a datecertain, but that the jndictment would definitely beretrrrned before the conclusion of the Vesco trial-

I also stated. for nayhiJ.l r s information that theindiciment wou..Ld occur #itfrin the next 3 weeks at themost. ;

phone call as I was replying

DEPARTMENT OF JUSTICE

DATE: Feb. Lg, Lg74

8-2

&t{ o

On the eve of Thursday, February 28, l*ith the Plitche11-

Stans jury selected in New York and seguestered, it became ap-

parent that we would move to bring in the watergate cover-up

Lndict:rents on Friday morning. After checking with Judge Siriea,the hour of 11100 a,m. was decided upori.

# I made known to hira in advance ttrat such a report was

forthcom'n9r-

On Thursday evenlng, February 28, just as I was preparing

to leave the office around. 6245, Alexander Haig called saying thatthere were so many rumors afloat that he was coneerned - that he

feared unexpected developments, etc. and he wondered if there was

anything I could proper!-y disclose. f told hirn that there was

nothing I could disclose as to the gontents of the indictment or

the report he had. heard would be made. I did. tell him that if the

grand jury made a report, in addition to returningf L; an indictment,he should expect Judge Siricar ds would I, to aecept it and act on

it. He stated. that he and the White House gfenerally were fullyexpecting the grand jury evidence to be made available to the Fouse

Judiciary Cormnittee - that they reaLized it belonged there, I sug-

gested to him that the evi{enc_e may well have serious repercusgions-

and he stated. that he was aware of that. I suggested that he and

the President r s counsel take a close look at the lvlarch 21 meeting

and. the actions that fol-lowed., even though the president took no

Personal part in the events that followed the March 2l meeting.

8-3

)2 - (

Finally, h€ asked, whether there was any indictment

contemplated involving present White House aides, inasrnuch as

he needed to make arrangements to meet the situat'ion" I t'old

him none htas contemplated at this time

fwice during the conversation, he said that he really

eal1ed to tel1 me that I was a "grea! American. " The second

tirne he mentioned it, I said "A1, t haventt done anything other

than what is my d.uty and I hope to continue to follow that course."

we parted with my again expressing my concern that the

president's counsel had. not sufficiently and accurately assessed

the fact's pertaining to ttre March 2L conference and the events

that took place that night. He said it would be again reviewed.

on the morning of March 1, I met with .Tudge sirica in

chambers at 10:30. We revieliled the agenda consisting of (1)

presentati.on of indictments and sealed speci.al report of the grand

jury; (2t unsealing of the speciaL report and reading by Judge

Siri-ca, and the acceptance of the report and its resealing. I

tol-d Judge Sirica lhat ! _w_ou!d aqk tl:e Couqt to 5pecially asgign

the case in vier* of its length and protracted nature and that I

was estimating the case would take three to four months to try.

I asked him to tel1 the grand jury to return in two weeks for

further consideration of other matters that had not been disposed

of. I had in mind the possibility of perjury indictments. I also

asked the Judge for a gag order under RuJ.e L-27 restraining extra-judicial statemelts;

,/:

shortly before 11:00, r left Judge sirica's chambers

and went into the courtroorR. As I left Judge Sirica's chambers,

r heard the Judge tel1 his marshal not to be nervous. But the

Judge showed some signs of nervousness too. He told me that he

had not slept since 3:00 that morning. when court opened, Judge

Siricats marshall was so nervous he couLd hardLy speak the ritualfolLowed in opening a court.

After opening, Judge Sirica looked at me, asked if Ihad anything to take up with the court. r then rose, went to thelectern, and said: "lulay it please your Honor, the grand jury has

an indictment to return. It also has a sealed report to deliverto the Court. " ?he rest of the agenda was then follor*ed includingdelivery of a briefcase of material, along with the special reportto the Court - also a key to the briefcase. The Judge indicatedthat he would have an order on the special report by Monday {he

t'old me he would transmit to the counsel for the llouse JudiciaryCommittee under rules that would not interfere with the trial ofthe, accused.). The .Tudge in open court asked, if I had any furthercomments, and r stated.; 'Due to the length of the trial, conceiv-ably three to four months, it is the Prosecution's view that und.er

RuIe 3-3(c), this case should be special.Ly assigned, and, lre so

recomnend. " This meant that Judge sirica could aseign lhe case _

to himself, whieh he did do by order rater entered that day.

court.The Judge then announced his gag rule and then adjourned

We met

went smoothly.

inHe

tbe ,JudEe' s cflambers. f told hirn f thought al}.in turn thanked. me for my help. ?he ,Judge was

ffi: ffiTIIIIIffiffi

.