Revisiting Woodward and Bernstein’s Watergate Reporting: A New Smoking Gun?

The Watergate reporting by Washington Post reporters Bob Woodward and Carl Bernstein is now being questioned because of material discovered by Jeff Himmelman, who has written a new biography of Ben Bradlee, the Post’s former executive editor.  Himmelman is a former research assistant to Woodward, who, in turn, introduced him to Bradlee to assist on a book project that, in the end, became Himmelman’s soon-to-be-published Bradlee biography.  An excerpt from the book in New York Magazine has raised questions about whether Bradlee thought that all the details he was given by Woodward and Bernstein about Woodward’s source Deep Throat were accurate. (For examples, see here and here.)

To me, the most interesting information that Himmelman has revealed so far is contained in a seven-page memorandum that he found in Bradlee’s files.  The memorandum was written by Carl Bernstein in December 1972, and it summarizes Bernstein’s conversation with a woman who had served on the Watergate grand jury.

This episode almost got Woodward and Bernstein into serious trouble.  Ironically, the fact of the existence of this memo is exactly the kind of information Bob Woodward would call “a holy shit story,” because it causes anyone knowledgeable about the facts to ask: Is this a smoking gun?  Evidence of criminal conduct?  Has the statute of limitations run?

Carl Bernstein recognized the significance of this find when he wryly told Himmelman, “Maybe they’ll send us to jail after all.”  As Himmelman notes in passing, the grand juror conversation memo would not have been amusing to Judge John Sirica, had its existence been known at the time that he learned of Woodward and Bernstein’s efforts to contact grand jurors, for the judge made clear in his memoir, To Set the Record Straight, that he would have sent Woodward and Bernstein to jail “had they actually obtained information from that grand juror.”  Clearly, Sirica believed that had never happened—but in fact, it did.

Until Himmelman discovered the old document in Bradlee’s files, only Woodward and Bernstein themselves knew that, in fact, if Carl’s memo is accurate they had indeed obtained information from that grand juror—information which, as New York Magazine illustrates with a graphic, they disguised as coming from a conventional (that is, non-grand-jury) source.  They called the source “Z,” and Woodward later said that Z was in the same league as Deep Throat in terms of importance.

Woodward and Bernstein’s Recollections Of “A Seedy Venture”

In All The President’s Men, Woodward and Bernstein described their efforts to get information from grand jurors as “a seedy venture” and “a clumsy charade.” They write that the effort was, nonetheless, undertaken with an okay from the Post’s lawyer Edward Bennett Williams, who advised them that it was not illegal.  Bob Woodward rhetorically explained his concern, and their situation, by wondering in All The President’s Men “whether there was ever justification for a reporter to entice someone across the line of legality while standing safely on the right side himself.”

When a grand juror reported that he had been contacted by the Post’s reporters, it was the Post’s attorney, Ed Williams, who worked the problem out with the prosecutors and the judge.  It appears that Williams was able to do so because it was (incorrectly) believed that none of the grand jurors had imparted any grand-jury information to Woodward and Bernstein.  Based on this new evidence it seems that Woodward and Bernstein were volunteering nothing to anyone, including Williams.

Earl Silbert, the chief federal prosecutor on the Watergate break-in case, wrote in his contemporaneous diary that he gave Woodward and Bernstein a pass even though Judge Sirica was not pleased with this approach, because he had no evidence that the grand jurors had provided Woodward and Bernstein with any grand-jury information.  Silbert, while acknowledging a request by Judge Sirica that he “look into the law,” wrote in the diary that he did so only “quickly” because the “next morning [Judge Sirica] called [him] down to his chambers with a proposed solution to the [Woodward and] Bernstein matter, which was to make a general statement with the grand jury present, commending the Grand Jury for their actions in not disclosing any information and serving a warning on news media person[s] in general, without naming anyone, [that] this was not to go on anymore, not to continue upon pain of contempt.”  Because this had been Silbert’s own suggested approach, it was acceptable to him.

In his 1995 autobiography, A Good Life: Newspapering and Other Adventures, Ben Bradlee recalled this venture, explaining that it had started when a neighbor of Post editor Ben Cason got a tip about a disgruntled grand juror, and Bradlee dispatched Woodward and Bernstein to talk to the lady, after getting “reluctant” agreement from Ed Williams.  It turned out that the disgruntled lady was not actually on the Watergate grand jury.  But Woodward and Bernstein’s interest had been whetted, so Woodward obtained the names of Watergate grand jurors surreptitiously (memorizing a few at a time, after the clerk said they could not be copied from the files) and the undertaking continued.  When Woodward and Bernstein write about the venture in All The President’s Men, the reader is given the impression that the effort yielded no success, but in fact, Bernstein’s memo show it did.

Ben Bradlee also said that the effort with the grand jurors was fruitless, and noted how “the prosecutors recommended taking no action since no information had been given the reporters by the grand jurors.”

Himmelman says that he asked Bradlee about the Bernstein memo in his files but it did not “ring a huge bell.”  Bradlee told Himmelman, “I don’t ever remember probing whether they had talked to a grand juror.  Maybe because I was scared that they had.” Bradlee also wrote in his 1995 memoir that given the same circumstances, after being told by Williams it was not illegal, he would do it again.

It is not clear why Ed Williams, a seasoned and renowned criminal defense attorney, reluctantly thought that this action of reporters’ talking to grand jurors was not illegal, while Judge John Sirica thought that it was illegal, and would have jailed Woodward and Bernstein had he known that they had received grand jury information.  Because it was believed that nothing had actually been leaked from the grand jury, the question of the correct interpretation of the law—whether Williams’s or Sirica’s—was not really addressed.

Did Woodward And Bernstein Break The Law?

Frankly, it is still unclear, even today, whether or not Woodward and Bernstein broke the law when they spoke to the grand juror.  There is little law on the subject.  On a somewhat parallel set of facts, the Supreme Court of Indiana refused to hold reporters who similarly obtained grand-jury information in contempt under that state’s law in its March 27, 1990 decision in Indiana v. Heltzel.

In casual, off-the-record conversations with those who are knowledgeable about criminal law, I found no clear consensus opinion on the legality or illegality of Woodward and Bernstein’s reporting of grand-juror comments—not only because the law is murky, but also because we still do not know all the facts.  Himmelman, in the excerpt, does not examine the law as it applied to Woodward and Bernstein, although he does opine that the grand juror who was involved “had apparently broken the law by talking” to Woodward and Bernstein.  Others reporting on this story has also pointed out that the law is unclear. If that is true, then there might also be a due process problem raised by applying the law in a criminal case, where due process must especially be heeded. Vague and/or ambiguous criminal statutes cannot be constitutionally applied.

In my own discussions with attorneys on the subject, I found competing views (a) holding that a reporter’s talking to a grand juror is not a violation of the law and (b) holding that it is.

There is one area of clarity here, though:  There appears to be no statute of limitations on charges of contempt of court or charges based on a violation of Rule 6(e), regarding grand jury secrecy, while other potentially-applicable provisions could be subject to a statute of limitations.

Undoubtedly, there are more views on the correct interpretation of the law in this situation, but the following sampling of attorneys’ opinions, alone, illustrates the problems of assessing the legality of Woodward and Bernstein’s activity:

The View that Woodward and Bernstein Had a Complete Advice-of-Counsel Defense

One view holds that there was no criminal conduct because Woodward and Bernstein proceeded based on the advice of counsel—and not just any lawyer either, but one of the most highly-regarded criminal lawyers in the country at the time. In short, a powerful case can be made that Ed Williams’s advice negated any criminal intent on Woodward and Bernstein’s part in undertaking these actions.

Further evidence of Woodward and Bernstein’s effort to not violate the law is the fact that, as they write in All The President’s Men, they actually looked at Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure and concluded that it applied only to grand jurors, and not to reporters soliciting or enticing grand jurors to provide secret information in violation of their oath of secrecy.

The View that There Was Criminal Conduct Because Woodward and Bernstein Ignored Judge Sirica’s Admonitions Not to Use Grand Jury Information In the Future

Another view holds that Woodward and Bernstein engaged in criminal conduct because (1) after Judge Sirica let them off for earlier violations and warned against a recurrence, they still used the grand jury information in writing All The President’s Men (as graphically noted by the New York Magazine); and/or (2) Woodward may have effectively admitted to a conspiracy under, for example, 18 U.S.C. 371, when he wondered in All The President’s Men “whether there was every justification for a reporter to entice someone across the line of legality while standing safely on the right side himself.”

Needless to say, these are extremely complex issues, which I have oversimplified, not to mention that we do not have all the facts. Frankly, I think that when Bob Woodward told Jeff Himmelman that this was all about “a footnote to a footnote,” he got it right.  The only person who might still feel otherwise is Earl Silbert, the prosecutor who let Woodward and Bernstein off the hook at a time when he had what we now know to be less than complete information about their actions.  But as I write this, Silbert has not made any public comment.