I was not going to say anything about this subject. But several attorney friends were so annoyed by Geoff Shepard’s piece in The Atlantic that I am doing this column. Based on some recently discovered information, Shepard wrote a 6500-word essay for the August 9, 2013 issue claiming that Nixon’s top advisers did not get justice when they were convicted for conspiracy, obstruction of justice, and perjury.
I am never surprised by Geoff Shepard’s work, only that anyone takes it seriously, which in this instance appears to have happened because it was published by The Atlantic, which legitimized it. For those who are unaware, Shepard is an “all-we-think-we-know-about-Watergate-is-wrong” revisionist. With a straight face, he claims that Watergate was actually a secret plot to make Teddy Kennedy president. He is a true Nixon apologist.
As a young Harvard Law graduate, his first job was as a Nixon White House fellow, and he stayed on, tossing his lot in with a presidency that turned to rot. Geoff never recovered. He’s bitter, particularly toward someone like me who thought it important to tell the truth, but he also dislikes those who worked in the Watergate Special Prosecutor’s Office and Judge John Sirica, who presided over most of the Watergate cases—they are the targets of his Atlantic piece.
Shepard’s New Charge: Judicial and Prosecutorial Misconduct
Most recently, Shepard is concerned that former attorney general John Mitchell, former White House chief of staff H. R. “Bob” Haldeman, and his former boss, assistant to the president for domestic affairs John Ehrlichman, did not receive “the fair trial guaranteed by our Constitution.” For Geoff, “whether [these] defendants were innocent or guilty,” is not of concern. Rather, he is “worried on a more basic level that the heightened emotions of the times denied them due process of law envisioned by our Constitution.” (He opines that they may have been acquitted by another judge in another venue. Not a chance. The evidence today is even more overwhelming than it was when they were found guilty beyond a reasonable doubt. Nixon’s tapes are irrefutable. They weren’t denied justice; rather, they got off lightly.)
To make his charge, Shepard employs Nixonian certitude to conclude as follows: “It turns out that the notion that ‘no man is above the law’ somehow didn’t apply to the judges [sic] and prosecutor [sic] involved in the cover-up trial.” Only Judge Sirica presided over the cover-up trial; and there were several prosecutors. Shepard says that he has found “new documents” that “suggest prosecutorial and judicial misconduct so serious—secret meetings, secret documents, secret collusion—that their disclosure at the time either would have prevent Sirica from presiding over the trial, or would have resulted in the reversal of the convictions and the cases being remanded for new trials [sic].” Had the convictions been overturned, the defendants would have been retried as co-conspirators in one, not several trials.
The prosecutor whom Shepard charges with “above the law” misconduct is former Watergate Special Prosecutor Lean Jaworski. Shepard’s core charge is that Sirica and Jaworski held secret ex parte meetings, which were unlawful.
The Alleged Secret Ex Parte Meetings
To educate his readers about these unscrupulous, if not illegal meetings, Geoff sets forth what he says is the applicable canon from the Code of Conduct for United States Judges, which places an “explicit ban on ex parte meetings.” Shepard quotes the current code, which is far wordier than the code that existed in 1973-1974, but the substance is sufficiently similar for purposes of this discussion. Here are the standards that Shepard cites as applicable to the situation (the emphases are his):
“Canon 3.A.4: Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:
“(b) When circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication.”
Well, if this were the canon, Geoff might have a point. But the first thing I noticed was that he had dropped paragraph (a), which makes all the difference in the world, and similar language was found in the similar canon circa 1973-74. Paragraph (a) states [A judge may:] “(a) initiate, permit, or consider ex parte communications as authorized by law.” [My double emphasis added.] This paragraph eviscerates Shepard’s claim that Sirica and Jaworski acted above the law. To the contrary, they were actually following the law.
Duties of the Chief Judge of the U.S. District Court
While Shepard alludes to the fact that as Chief Judge of the U.S. District Court for the District of Columbia Sirica had administrative responsibilities, he simply passes over the fact that the so-called secret meetings all appear to have related to the work of the grand jury, and the fact that the grand jury wanted to indict Nixon. Most constitutional law scholars, not to mention those who were in the U.S. Department of Justice at the time, believe that a sitting president cannot be indicted, but only impeached. So Jaworski worked out the compromise to send a sealed report from the Watergate grand jury to the House Judiciary Committee, which was conducting the impeachment inquiry. For this reason it is not surprising he had secret meetings with Sirica.
The Deskbook for Chief Judges of U.S. District Courts shows there are many reasons that Sirica might have called in Jaworski as he did, all perfectly legal and proper. And if they related to the grand jury, as it appears, then their being secret was per Rule 6(e) of the Federal Rules of Criminal Procedure, which require them to be secret.
All this is so obvious I wondered if I was missing something, so I called Ronald Rotunda, a well-known ethicist who also teaches professional responsibility at Chapman Law School. I asked Ron if he had read Shepard’s piece. He had and he was troubled by the efforts to make something out of nothing. He too had noticed that Shepard had failed to include the fact that a chief judge has extremely broad latitude in calling for ex parte meetings with a prosecutor.
Rotunda also pointed out that Shepard cites an unsent draft memo found in Jaworski’s files where he mentions the “attitude” of the Watergate Special Prosecutor’s professional staff in calling for a “conviction” of Nixon. The fact that Jaworski inherited a staff that wanted to convict Nixon was certainly no revelation, nor any surprise. After all, Nixon had fired their boss, the initial Special Prosecutor, Archibald Cox. The fact that Jaworski mentioned this in a draft, which only made it to his files, Rotunda found was of no significance whatsoever.
Ron Rotunda summed up it nicely: “Geoff Shepard should look for work as a scriptwriter for the “X Files.”
Other Fundamental Problems With Shepard’s False Accusations
What prompted me to look at Shepard’s work was a long note from an attorney friend who is a former federal prosecutor, and now active as a criminal defense attorney in both federal and state courts. He is also very knowledgeable about Watergate. He wrote that he was “unimpressed with Shepard’s argument that he has uncovered documents that if they had been disclosed earlier, ‘would have prevented Sirica from presiding over the trial or would have resulted in the reversal of the convictions and the cases being remanded for new trials.’” He said that Shepard had failed to provide “a showing of actual prejudice sufficient to overcome the very strong and prodigiously used doctrine of ‘harmless error,’ which is something I struggle against (usually vainly) in death penalty habeas cases.” Cases a bit more serious than the cover-up trial.
My friend highlighted Shepard’s argument, which I have further summarized: Shepard focuses on alleged ex parte meetings, yet all but one occurred prior to the return of the indictment. Shepard contends that had the “other side” learned of the intended grand jury report, “it might have moved swiftly to seek a finding before Sirica or on appeal that the grand jury had no authority to issue any report at all.” Shepard further claims that had they known in advance of the intended report, congressional Republicans could have demanded that the White House be given an opportunity to review the report and offer a rebuttal when the report was transmitted to the Judiciary Committee, but Shepard believes that by “keeping their initiative secret—possibly with Sirica’s advance concurrence—the Watergate prosecutors could obtain a significant procedural advantage over Nixon and the cover-up defendants.”
The trouble with these arguments, my friend explains, even if correct (with which I have a problem) they furnish nothing to support the claim that the subsequent cover-up trial was rendered unfair by the sealed report to the Judiciary Committee or by possible ex parte discussions between Sirica and Jaworski concerning the report and how it should be handled. Shepard is totally unclear as to how an advantage over Nixon, or the failure to give the White House an opportunity to offer rebuttal to the report, could have anything whatever to do with a fair trial for the Watergate defendants.
As for Shepard’s contention that the documents disclose that Sirica was trying to expedite the date of the indictment so that he could assign the case to himself before his term as Chief Judge ended, my friend found nothing in the assignment itself that actually prejudiced the defendants at trial. He noted that “with the exception of a very small number of errors which are ‘structural errors’ that require automatic reversal, any error including, constitutional error, is harmless and does not compel reversal unless prejudice can be shown under a rather strict standard.”
If Shepard is claiming that all this shows Sirica’s lack of impartiality, my friend points out that “Shepard himself notes that the defendants sought an evidentiary hearing and attempted to have Sirica removed from the case prior to trial based in part on an assertion of ex parte communications, but their efforts were summarily rejected by the D.C. Circuit Court sitting en banc, and by the U.S. Supreme Court as well.” On direct appeal, these allegations were again, my friend notes, rejected as “unworthy of concern, on the grounds that had any such meetings occurred, they would only have been in connection with Sirica’s official duties.”
Finally, my friend observes that ex parte communications between federal judges and federal prosecutors are not, in his personal experience, unheard of or even an uncommon situation in the real world. He reports that when he was in the U.S. Attorney’s Office, calls came from federal judges complaining about office policies (procedural matters or about the performance of a prosecutor in a specific case) or about grand jury proceedings. This happens, my friend thought, because just as Sirica was a former assistant U.S. attorney, so too are many federal judges; therefore, they have few hesitations about calling federal prosecutors, since they are not calling to fix or prejudge cases.
My friend summed it up nicely as well: “Perhaps Shepard’s following book [dealing with the Watergate trials] will furnish more support for his argument, but I doubt I will want to spend any money on it to find out.”