BOOKS REVIEWED
By John Dean.' New York: Simon & Schuster.
1976. Pp. 398. $11.95.
BLIND AMBITION,
CHIEF COUNSEL:
INSIDE THE
ERVIN
COMMITTEE-THE
UNTOLD
By Samuel Dash. 2 New York: Random
House. 1976. Pp. 272. $10.00.
STORY OF WATERGATE,
THE RIGHT AND THE POWER: THE PROSECUTION OF WATERGATE,
By Leon Jaworski. 3
Houston: Gulf Publishing Co. 1976. Pp. 292.
$9.95.
4
Reviewed by Marc Lackritz
The 1976 pre-Christmas publishing rush produced another three
books of grist for the already overworked Watergate mill. These
books were written by lawyers involved intimately in either the perpetration, investigation, or prosecution of the crimes now known collectively as "Watergate." Unfortunately, each fails to provide any
additional perspective, illumination, or understanding of the institutional dimensions of the scandal. Instead, each book substitutes first
person recollections and memorabilia for the longer view and the
deeper analysis.
It is perhaps unfair to expect participants in great events to rise
above their immediate surroundings in reflecting on their roles and
the events that shaped them. Yet these books, individually and collectively, again demonstrate the inadvisability of having lawyers write
history, especially when the history involves their own actions. With
the publication of these three books, few main actors in the Watergate drama remain to be heard. Thus, the task of providing a more
1. John Dean, who was Counsel to President Nixon, is currently a reporter with
ROLLING STONE magazine.
2. Samuel Dash, former Counsel to the Senate Watergate Committee, is a professor
of law and the director of the Institute of Criminal Law and Procedure at Georgetown
University Law Center.
3. Leon Jaworski, who served as Special Watergate Prosecutor, is presently in private practice in addition to serving as Chairman of the Board for both the Southwestern
Legal Foundation and the American Judicature Society.
4. Marc Lackritz, former Assistant Counsel to the Watergate Committee, is an attorney with the firm of Wald, Harkrader & Ross, in Washington, D.C.
19771
BOOKS REVIEWED
enduring analysis of the Watergate events will be left, appropriately,
for the historians.
There is much, however, that is both readable and revealing in
these books. Blind Ambition, 5 -for example, should be required reading for all ambitious young lawyers, especially those entering the Carter White House or government service. John Dean portrays himself
as a quintessential by-product of the American Dream-an insecure
striver whose only ideological commitment was to upward mobility
and power. He also effectively describes an attitude toward selfadvancement that did not leave Washington with the Nixon Administration: fulfill other people's expectations if you want to get
ahead. 6
Far more damning than Dean's self-analysis, however, is the absence of any discussion of the social goals or values that might motivate one to enter government service. Dean's commitment clearly
was to self rather than the public. His lesson is that once social objectives are unimportant or abandoned, social processes become expedient as well. Interestingly, it is only self-interest that ultimately converts Dean into a constitutionalist.
Dean's inability to refuse a request from higher up the White
House chain of command is not surprising in light of his personal
values and the modus operandi of the Nixon White House. Saying
"no" was probably never a viable option since individuality and independence were not qualities handsomely rewarded by either H.R.
Haldeman or Richard Nixon. What is surprising is Dean's success in
bringing down the incumbent President once he discovered that his
self-interest lay in telling the truth.
Dean relishes the opportunity to recount the events leading to
Nixon's downfall, especially since he is able to weave in the transcripts
of the White House tapes to emphasize and corroborate his previous
testimony. He is a bit cavalier, however, in attempting to put his own
7
tawdry conduct in the best possible light.
5.
6.
J. DEAN, BLIND AMBITION (1976) [hereinafter cited as DEAN].
According to Dean's description of himself, he would have put a chameleon to
shame. For example, when informed he was being considered for a White House staff
position, Dean was careful not to display any outward signs of anticipation. Dean says,
"[A]s always, I was masking my inner calculations and feelings, this time behind an
appearance of friendly sincerity." Id. at 12. Dean recounts that when he first met President Nixon, he adjusted his behavior to conform to his perception of what Nixon desired. As Dean says, "I wanted very much to be what I thought he wanted to find." Id.
at 20.
7. Dean cites one portion of the transcripts in which he tells Nixon that a plan to use
the Justice Department for unethical campaign activities is an "exciting prospect." Id. at
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:770
Dean adds little new substance to the well known story of the
Watergate scandal. Some of his recollections, however, help to explain the motive for the break-in at the Democratic National Committee (DNC) Headquarters, which has remained the most elusive element of the scandal. The only explanation that presently makes much
sense relates to the preoccupation and paranoia of President Nixon
and his staff regarding the activities and associates of Howard Hughes.
Howard Hughes "was feared in the Nixon White House, where some
believed that the 'Hughes loan' scandal had cost Richard Nixon the
1960 election to John F. Kennedy." 8 Hughes' 1969-70 contribution of
$100,000 to Charles "Bebe" Rebozo, Nixon's close personal friend,
as well as the activities and services performed for Hughes by DNC
Chairman Larry O'Brien, provided the Nixon White House and
the Committee to Re-Elect the President (CREP) with both defensive and offensive reasons to break into and bug O'Brien's DNC office. 9 Dean provides some new support for this theory by attributing
the origin of the Watergate scheme to two memoranda from President Nixon to H.R. Haldeman in early 1971. In the first memorandum, Nixon directed Haldeman to initiate an investigation into an
alleged retainer paid to O'Brien by Hughes. 10 Dean performed this
investigatory function until their plan to leak information to the press
about the O'Brien retainer was halted, apparently because Nixon officials feared an embarrassing retaliation by O'Brien or Hughes which
"might well shake loose Republican skeletons from the closet.""
They were particularly concerned about previous loans and campaign
contributions made to both Nixon's brother, F. Donald Nixon, and
Nixon's closest friend, Charles G. "Bebe" Rebozo.12
138-39. In explaining this exchange, Dean states, "[I was merely] trying to sound like a
vicious prize fighter and doing a poor job, but I seemed to be pleasing the President."
Id. at 139. At his attorney's insistence most of such self-serving statements were eliminated from Dean's public testimony, but apparently he did not have the benefit of such
wise counsel in writing portions of his book.
8. DEAN, supra note 5, at 67.
9. Interest in Larry O'Brien was not limited to CREP. Dean notes that in the late
spring of 1972, he asked Haldeman who Senator McGovern's campaign manager would
be. "'How about Larry O'Brien?,' Dean asked.
'God, I hope that's who he picks. We can nail O'Brien,' said Haldeman, leaning back
in his chair, grinning smugly and enjoying something privately." Id. at 88.
10. Id. at 66. Although Dean received immunity, he never provided the Senate
Watergate Committee with this information despite frequent questioning concerning
this matter.
11. Id. at 68-69.
12. F. Donald Nixon had first embarrassed his younger brother, Richard, in 1960,
when Jack Anderson revealed during the Presidential campaign that Donald had re-
1977]
BOOKS REVIEWED
In late April, 1971, President Nixon dictated another "political"
memorandum to Haldeman. This communication directed Haldeman
to insure that the re-election campaign had a better "political intelligence capability" than previous campaigns.
According to Dean, these two memoranda sowed the specific seeds
from which Watergate blossomed. 13 They led to the hiring of G.
Gordon Liddy as general counsel to CREP, with responsibility for
gathering political intelligence. 14 The hiring of Liddy on December
8, 1971, marked the beginning of the end of the Nixon Administration. 15
Liddy's first intelligence gathering plan, "Gemstone," had a $1
million budget and included the use of kidnapping squads, prostitutes, break-ins, and electronic surveillance. 16 According to Dean,
Attorney General Mitchell rejected this plan because of its cost and
because he was concerned primarily with preventing anti-Nixon demonstrations at the convention, not with gathering information harmful
to the Democrats. He advised Liddy to "go back to your drawing
board and see what you can do."' 1 7 One week later Liddy returned
with a scaled-down version of his original scheme costing only
$500,000. At this meeting,' 8 Mitchell, Liddy and Magruder discussed
potential targets of Liddy's intelligence operations. Among the targets
discussed were the DNC headquarters in Washington and at the con-
ceived a secret loan of $205,000 from Howard Hughes which had been secured by
property worth substantially less than the amount loaned.
During the 1968 Presidential campaign Donald Nixon was again involved with representatives of Howard Hughes. He attempted to arrange a $50,000 cash contribution
from Hughes to the Nixon campaign, but his efforts were stymied in part because Rebozo, who was to receive the contribution, refused to meet with the Hughes representative and the President's brother because of the earlier embarrassment. See WATERGATE
FINAL REPORT, supra note 8, at 937. After the campaign ended, Hughes' aides continued
their efforts to make substantial cash contributions to President Nixon. They succeeded
in September, 1969, and the summer of 1970, when at least two cash payments of $50,000
each were delivered to Rebozo through Hughes' aide Richard Danner. Id. at 945.
13. DEAN, supra note 5, at 70.
14. DEAN, supra note 5, at 76-78. Liddy's "principal efforts were devoted to developing, advocating and implementing a comprehensive political intelligence-gathering
program for CR[E]P under the code name 'GEMSTONE'." Since he refused to testify,
Liddy's role was constructed through the testimony of others. WATERGATE FINAL REPORT, supra note 8, at 20-21.
15. Id. at 20.
16. Id. at 21.
17. DEAN, supra note 5, at 85.
18. Dean arrived late for this meeting so his account lacks the detail that Jeb Magruder was able to provide. WATERGATE FINAL REPORT, supra note 8, at 22.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:770
vention and the headquarters of the Democratic nominee. 19 John
Mitchell suggested both DNC Chairman Larry O'Brien and Las
Vegas publisher Hank Greenspun as additional targets. According to
Magruder, Mitchell said that Greenspun's safe contained information
"which would finish off Muskie," 2 0 who was then the leading Democratic candidate.
Mitchell expressed interest in only two aspects of Liddy's grandiose
scheme: first, a "feasibility study" of a break-in into Greenspun's office and safe; 2 ' and second, the designation of Larry O'Brien as a
target for electronic surveillance or a break-in. 22 At the end of this
meeting 23 Liddy was instructed to do a feasibility study to determine
whether an entry into Greenspun's office was possible. 2 4 With the
assistance of Howard Hunt, Liddy spent the next month with various
Hughes officials trying to devise an elaborate plan to burglarize
Greenspun's office. 2 5 The plan included an entry into Greenspun's
offices, a break-in to the safe, a quick departure to Mexico in a
Hughes private plane, and division of the contents of Greenspun's
safe between CREP and the Hughes organization. 26 After further
scrutiny, however, the Hughes organization considered the scheme
27
too risky and refused to participate, thus terminating the scheme.
The rest of the Gemstone plan, which focused specifically on
Larry O'Brien and the DNC offices, was finally approved by Mit19. Id.
20. Id.
21. Interestingly, on February 3, 1972, the day before this meeting in Mitchell's
office, an article by Wallace Turner had appeared in the New York Times which said
that Hank Greenspun had the largest collection of copies of Hughes' handwritten
memoranda, and quoted Greenspun as saying he had "about 200 individual items in his
Hughes communications collection." N.Y. Times, Feb. 3, 1972, at 19, col. 1. Only ten
days earlier, Jack Anderson had alleged in his column that "$100,000 was siphoned off
from the Silver Slipper casino and delivered to Mr. Nixon's crony, Bebe Rebozo, by
Hughes aide Richard Danner." Wash. Post, Jan. 24, 1972, § B, at 11, col. 3. The appearance of both of these newspaper stories must have influenced Mitchell as he discussed
potential "targets" with Gordon Liddy.
22. WATERGATE FINAL REPORT, supra note 8, at 22.
23. The meeting was held in the Attorney General's office. In his book, Dean recalls
the discussions of "targets" and "surveillance", but notes that the meeting broke up
after he expressed concern over discussing such matters in the office of the Attorney
General. DEAN, supra note 5, at 86.
24. WATERGATE FINAL REPORT, supra note 8, at 22.
25. Hunt offered to share any information from Greenspun's safe with the Hughes
organization in exchange for its assistance in the break-in. Hearings Before the Select
Committee on Presidential Campaign Activities of the United States, 93d Cong., 1st
Sess. 3686-87 (1973) [hereinafter cited as Hearings].
26. Id.
27. Id.
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BOOKS REVIEWED
chell. 2 8 By this time Dean had left the intelligence-gathering business with H.R. Haldeman's blessing, 29 and therefore he is unable to
provide any further details regarding the motives for the Watergate
break-in and bugging.
In the early morning hours of May 28, 1972, the Watergate burglars broke into the offices of the DNC on the sixth floor of the
Watergate Office Building. There they installed electronic bugging
devices in telephones and photographed many papers from the DNC
files. 30 The telephone conversations at the DNC were subsequently
transcribed and shown to Mitchell along with the photographed
documents. Mitchell thought the material was useless and complained to Liddy that "it was not worth the money he had been paid
for it." 3 1 Liddy explained that there was a technical problem with one
bug and that another had been improperly placed but that these
problems would be corrected. Thus, the fateful second Watergate
break-in on June 17, 1972, was made merely to correct problems
with the wiretap devices. 32
Both the preoccupation with Howard Hughes and the desire for
political intelligence led to targetting Larry O'Brien for electronic
surveillance. 33 As Dean's book corroborates, both concerns originated
with Richard Nixon. Thus far the accumulated evidence in the
Watergate case has failed to show Richard Nixon's complicity in the
details and actual planning of the Watergate break-in and bugging.
Nevertheless, the evidence certainly leads to an inference that
''targets" of the Gemstone plan may well have been discussed by
Nixon and Mitchell in the period preceding the second Gemstone
meeting in the Attorney General's office. Neither the prosecutors,
the courts, nor the congressional committees have shown much interest in obtaining the White House tapes of meetings and conversations during the few weeks prior to this time. Yet such tapes would
certainly help clarify one of the few remaining mysteries in the
bizarre case-the full extent of Nixon's role in establishing the targets of Operation Gemstone.
WATERGATE FINAL REPORT, supra note 8, at 24-25.
29. DEAN, supra note 5, at 87.
30. WATERGATE FINAL REPORT, supra note 8, at 28.
31. Id. at 29.
32. Dean writes that Liddy told him two days after the second break-in that they
28.
were in the DNC offices again "because Magruder pushed me.... the transmitter was
not producing right." DEAN, supra note 5, at 97.
33. WATERGATE FINAL REPORT, supra note 8, at 29-30.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:770
Blind Ambition also indirectly provides needed information for future investigations. Dean's frequent mention of his secretary, Jane
Thomas, is a timely reminder of the value in focusing on the subordinates to a target witness. 34 Furthermore, his descriptions of the pressures he was under while at the heart of the conspiracy 35 reinforce
prosecutorial notions of how to break conspiracies and uncover prosecution witnesses. Although Dean waxes melodramatic about his own
decision to come forward with the truth, 36 he actually had little
choice by late March, 1973.
For those still wavering in their support of legislation which would
automatically "trigger" the appointment of a temporary special prosecutor when governmental wrongdoing is alleged, Dean provides additional evidence of the inherent difficulties of the executive branch
investigating itself in a full, vigorous, and objective manner. Dean's
description of his relationship with Henry Petersen, then Assistant
Attorney General for the Criminal Division, reveals that Petersen was
under constant pressure by the White House to perform his duties in
conformance with the President's wishes. On numerous occasions
Dean, as a Presidential agent, attempted either to obtain information
from Petersen or to influence his decisionmaking. These efforts were
rewarded, according to Dean, when Petersen limited the Watergate
inquiry. 37
To date, Dean remains the only witness to testify under oath
against Richard Nixon. Blind Ambition provides additional proof,
were any necessary after Dean's oft-repeated testimony, of his extraordinary memory for detail and nuance. After the many weeks of testimony before courts, grand juries and congressional committees, it
appears that Dean made only two factual errors, both inconsequential
and both subsequently corrected or explained. First, he mistakenly
placed a meeting he had with Herbert Kalmbach at the Mayflower
Hotel rather than the Statler Hilton, and second, he testified that his
discussion with President Nixon, in which he informed the President
of the "cancer growing on the Presidency" and discussed Howard
Hunt's money demands, occurred on March 13, when in fact this
34. Chief Counsel Samuel Dash of the Watergate Committee referred to these subordinates as satellites. Through questioning the satellites of each witness, Dash conducted his investigation, slowly building a foundation for the witnesses' testimony. S.
DASH,
CHIEF COUNSEL:
INSIDE THE ERVIN
COMMITTEE-THE UNTOLD
WATERGATE 166 (1976) [hereinafter cited as DASH].
35. DEAN, supra note 5, at 194-225.
36. Id. at 276.
37. Id. at 11-12, 149, 170, 202-03, 255.
STORY OF
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meeting was on March 21. Fortunately, neither mistake was critical.
It is truly remarkable that every other aspect of Dean's testimony has
held up through long hours of cross-examination and comparison with
the White House tapes. How fortunate the nation was to have had a
lynchpin of this conspiracy with such a fine memory. With the advice
of his very able counsel Charles Shaffer, Dean also resisted the temptation to "overtestify," or to implicate other members of the conspiracy (including Nixon) beyond the actual facts of the case.
As Sam Dash explains in Chief Counsel: Inside the Ervin Committee-The Untold Story of Watergate, John Dean was the key to
Dash's plans for public hearings on the scandal.38 Dash discusses in
detail his strategy of presenting the Watergate witnesses in three
phases: 3 9 first, to provide detailed background information about the
White House and CREP operations, he questioned witnesses at the
periphery of the conspiracy; second, in thej'accuse phase, the middle
level co-conspirators, specifically Magruder, Kalmbach, Strachan and
Dean, testified against the principal co-conspirators; and third, the
principals were afforded an opportunity to testify after the evidence
against them had accumulated. In contrast, Senator Howard Baker 40
and Minority Counsel Fred Thompson wanted only a few days of
hearings, 4 1 with the principal co-conspirators as the first witnesses.
According to their strategy, Dean would have been the final
42
witness.
Had this approach been followed, the impact of the hearings would
have been diminished substantially, and the "cover-up" might well
have succeeded. The strength of the Ervin Committee's hearings in
the summer of 1973 was that they told the Watergate story clearly
and coherently, building slowly to the testimony of the major principals. It is to the credit of Senator Ervin and Sam Dash that this
strategy was not derailed by either Senator Baker or the more impatient Democratic members of the Committee.
Thus, John Dean became the key witness on whom Dash risked
the success of the hearings and the investigation. Dash describes his
remarkable series of private meetings with Dean in which Dean out-
38. DASH, supra note 34, at 71.
39. Id. at 88. See generally id. at 86-106.
40. Dash provides interesting detail about Senator Baker's private efforts to shorten
the hearings, to deny John Dean immunity, and generally to limit the efficacy of the
Committee's investigation. Id. at 118-19.
41. Id. at 89.
42. Id. at 96.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:770
lined his own participation and that of others, including President
Nixon, in the Watergate cover-up. 4 3 Because of his well-founded mistrust of the Committee's minority and its staff, attorney Charles Shaffer insisted that none of Dean's testimony or written summaries of it
be given to the Senate Committee until Dean was ready to testify
publicly. 44 Dash, therefore, proposed that he meet alone with Dean
45
and that Dean's testimony be disseminated only to Chairman Ervin.
Dash took an enormous risk that Dean was telling the truth. By
isolating Dean, Dash precluded the normal "follow-up" interviews
with Dean's subordinates and contacts until the moment before his
public testimony and after immunity for Dean had already been
voted by the Committee. Nevertheless, Dash was so impressed with
Dean's account that he recommended that final action be taken on his
46
immunity without any corroborating interviews or investigations.
Dash's hunch proved both correct and crucial to the eventual outcome of the case. His recounting of the story, however, either
minimizes or neglects the very large risks he took.
The most severe shortcoming of Dash's book is that it merely
touches on a few significant issues without developing or resolving
them. For example, the relationship between the press and an investigating legislative committee is quite complex. It depends largely on
how their mutual interests interact. In the early stages of an investigation, a committee generally needs the press very badly because the
press is ahead of the committee in collecting relevant information.
Moreover, the publicity generated about the committee's investigation and public purpose initially helps to increase cooperation and responsiveness to committee inquiries. But the needs of the committee
43. Id. at 106-25.
44. Shaffer was afraid that testimony given to the Committee before the hearings
would be detrimental to Dean, since the White House was ignorant of the papers Dean
removed as well as of the content of his testimony. Any prehearing information would
enable the White House to launch a public campaign to fabricate information and to
discredit Dean. Id. at 102.
45. Id. at 103-04. Moreover, Shaffer was concerned since the Committee had not
definitely agreed to give Dean immunity. Therefore Dean was risking talking with Dash
without the assurance that Dash would not later be a witness against him. To avoid this
problem Dash treated these meetings as "non-interviews," whereby if the information
given by Dean was not sufficient for immunity, Dash would tell only Ervin and thereafter pretend the interviews never occurred. But if the information was suitable for immunity purposes, Dash would make such a recommendation to the Committee without
disclosing the factual basis for it. After convincing Shaffer that his client would be protected, Dash obtained Ervin's approval. Ervin disliked withholding the information
from the Committee, but he realized that it was "tactically necessary." Id.
46. Id. at 117.
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quickly shift as an investigation matures. Because of its greater resources and access to legal process, the committee's information base
expands rapidly. At the same time, leaks of substantive investigative
information to the press compromise the integrity of the investigation, making it more difficult to secure the cooperation of unwilling
witnesses. Thus the relationship between press and committee becomes more adversarial as the committee's need for the press decreases. The press, which initially helped to launch the committee,
grows resentful of its increased exclusion from the investigation.
Thus, it ends up needing the committee more than the committee
needs it. The roles are reversed.
The Senate Watergate Committee provided a classic example of
this kind of evolving symbiotic relationship. Yet Dash largely ignores
the development of this issue, focusing instead on vignettes that give
him the opportunity to posture on the ill effects of "leaks" or to denigrate the press. For example, early in his tenure as chief counsel
Dash proposed to Bob Woodward of the Washington Post that
Woodward "provide tips to the committee without receiving any information from us in return." 47 Woodward agreed to help the Committee. This agreement raises some interesting questions regarding
the propriety of the press' providing direct assistance to one of the
protagonists in an event on which it is supposed to be reporting a
story. Dash does not pause, however, to reflect on this issue or the
potential for abuse of such arrangements. Instead he criticizes
Woodward's information as being unproductive, 48 and follows with
the self-serving statement that "even if they helped me, I could not
return the favor and become a news 'leak.' -49
Dash compounds his misunderstanding of the role of the press
when he discusses the veritable flood of information to the press after
James McCord's interview. Dash lambastes Woodward and Bernstein
for exploiting the Committee's leaks and for rewriting the Committee's
investigative product. 50 He also accuses them of having "apparently
forgot[ten] the initial purpose of their earlier effective investigative
reporting, which had helped support the creation of our committee
and its investigation." 5 1
47.
Dash did not ask for the sources of the information, but only for investigative
leads. Id. at 24.
48. Dash said the few leads provided turned up in the routine investigation of his
staff. Id.
49. Id.
50. Id. at 52.
51. Id. at 53.
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[Vol. 26:770
Unfortunately, Dash does not move from these general assertions
into any discussion or analysis of the normative roles to be played by
both institutions. At one point, he even acknowledges that the "leak"
of a memorandum outlining the lack of cooperation given the Com52
mittee by the Internal Revenue Service may have been beneficial.
He makes no distinction between "leaks" of substantive information
gathered by an investigation and "leaks" of information relating instead to intragovernmental responsiveness and cooperation. Furthermore, there is no discussion of the responsibilities in such a situation
of the staff lawyer who knows that if he informs the committee members of some newsworthy item, it will probably soon appear in the
media. Committee members and staff attorneys clearly work under
different types of pressures and motives. As a result any legislative
investigation must hover dangerously close to the brink of irresponsibility and can succeed only through a combination of circumstances,
luck, and the integrity of the committee chairman.
The re-election pressures on Congressmen and the need to generate favorable publicity for the incumbent combine to make legislative
investigations inherently unstable and potentially irresponsible. The
legacy of the McCarthy era is institutional as well as political, and
should continue to remind us that for every Senate Watergate Committee there are other legislative investigations that are both irresponsible and counter-productive. Unfortunately, Sam Dash chooses
not to discuss or analyze any reasons for the almost unique success of
the Senate Watergate Committee. The answer probably lies in the
natural animosity of much of the press toward the Nixon Administration, the good fortune of the Committee and its staff in uncovering
explosive evidence directly implicating the President and his staff in
the commission of a crime, and the integrity of Senator Ervin.
These factors helped to overcome the "sieve" reputation of some Committee and staff members. The Committee's performance and its public acceptance suffered tremendously on the few occasions that witnesses, such as Pat Buchanan, 53 focused more public attention on the
52.
Id at 242-43.
53. Dash called on Buchanan to testify, not to show his participation in the Watergate
crimes, but rather to identify the "blueprint" of the campaign practices. Buchanan, a
prolific writer of memoranda, disliked the liberal establishment. He therefore urged the
use of any means available to prevent it from regaining power. Like Ehrlichman, he was
aggressive and attacked the Committee first on news leaks and second on their questioning tactics. Moreover, Buchanan was able to distract the press and enliven the serious mood of the Committee hearings with his frequently humorous responses. After he
was excused as a witness, the consensus was that he had "devastated the Committee."
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Committee's irresponsibility than the misdeeds it was investigating.
In addition, Dash raises, but fails to explore and question, the occurrence of two almost identical Watergate investigations proceeding
simultaneously-one by the Special Prosecutor to determine criminal
responsibility for the entire affair; the other by a Senate Committee
which was to inform the public of governmental malfeasance and to
propose legislative remedies designed to preclude its recurrence.
Since the objectives of the two inquiries were different, the procedures guiding them also differed, with both advantages and disadvantages accruing to witnesses or targets in the investigations.
First, as John Dean notes, the existence of two investigations, each
having the power to grant immunity to witnesses, provided defense
attorneys with some leverage and options in bargaining on behalf of
their clients. 54 Second, defendants in a pending criminal trial may be
disadvantaged by the massive publicity accorded a legislative investigation which is conducted at the same time or prior to the trial on
the same charges. Dash describes Special Prosecutor Cox' unsuccessful attempt to prohibit the Senate Committee from televising the testimony of Magruder and Dean. He simplistically attributes Cox' move
to his desire "to preclude any defendant from having a basis to contend that the special prosecutor had allowed pretrial publicity to prejudice the criminal prosecution. ' '55 The issue of potential fairness to
defendants is more complex and deserves deeper treatment than
Dash provides.
For instance, is televised testimony under oath (but without questioning by their own attorneys) as patently unfair to defendants as
anonymous source newspaper and television stories about a crime?
Also, how capable is a trial court of providing a fair trial to defendants
after public congressional hearings? Dash summarily dismisses both
issues by noting that "[t]he law was overwhelmingly against Cox, and
he knew it." 56 Yet the question remains whether the value of having
This was due largely to the belief of the press that every witness was being accused of
wrongdoing. Id. at 204-06.
54. For example, Shaffer made arrangements for Dean to meet secretly with the
Watergate prosecutors. While evaluating Dean's credibility and account of the events,
the prosecutors agreed that the conversations would be off the record. Therefore, they
could not later be used in a prosecution against Dean. They also agreed not to inform
Petersen, who was believed to be leaking information to the White House, of the meetings. DEAN, supra note 5, at 231-33.
55. DASH, supra note 34, at 145.
56. Id. The law to which Dash refers is the separation of powers doctrine whereby
congressional hearings may not be interrupted by the pendency of criminal prosecutions.
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[Vol. 2-6:770
two competing investigations into the same crime outweighs the potential harm. The leverage which competing investigations give to
some defendants may be a significant help to their defenses, notvithstanding the potential unfairness the hearings create for the principal
defendants. Thus, it is unclear whether competing investigations are
of long-term institutional value, especially if the middle level operators
are solely guilty and are trying valiantly to save themselves at the
expense of their innocent superiors.
The Right and the Power,5 7 the pretentiously titled book by Leon
Jaworski, has none of the redeeming features of the books by Dean
and Dash. It is instead a dry, naive, and banal recitation of the daily
events that befell Leon Jaworski during his tenure as the Watergate
Special Prosecutor.
Jaworski's naivet6 truly borders on the incredible. In discussions
with Alexander Haig about the possibility of becoming Special Prosecutor, Haig informed Jaworski that he was "high on the list for appointment to the Supreme Court."5 8 The impropriety of this potential
reward, dangled by a White House staff member to an official about
to begin investigating Administration wrongdoing, is obvious. Presumably, the suggestion was intended to influence the outcome of an
ongoing investigation. Yet Jaworski passes off the incident as being
"part flattery, part fact, but I suspected it was all bait." 59 "Bait" is by
far the most charitable interpretation of Haig's statement.
As if to assure the reader that he was really as naive as he sounds,
Jaworski describes his reaction upon hearing the tape of the White
House conversation on March 21, 1973.60 He claims, "[I]t had never
occurred to me that the President was in the driver's seat." 61 If that
statement is true, Jaworski was worse than naive, and both the hopes
of the White House and the doubts of the staff of the Special Prosecution Force were well-founded. 62 Fortunately, Jaworski retained
the entire staff which Archibald Cox had assembled, and thus, despite
63
Jaworski's naivet6, the investigation did not lose much momentum.
57. L. JAwoRsMt, THE RIGHT AND THE POWER (1976) [hereinafter cited as JAWORSKI].
58. Id. at 4.
59. Id.
60. The March 21 tape is the one in which Dean, Haldeman, and Nixon discuss the
full extent of the cover-up operations. Id. at 46-53.
61. Id. at 45.
62. Id. at 11.
63. Id.
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Far more troubling than Jaworski's naivet6, however, are his descriptions of his frequent contacts with Alexander Haig, who was President Nixon's Chief of Staff and the acting President through much of
the Watergate crisis. 64 Jaworski seems to recognize the impropriety of
the Special Prosecutor's having private discussions with the President, since he says they would be "subject to misunderstanding by
others." 65 Nevertheless, the frequent meetings with Haig give
Jaworski no pause, even though the early Watergate cover-up had
succeeded only because President Nixon and his staff had been kept
fully informed of the prosecutor's activities and information. 66 From
Jaworski's own descriptions, it appears that he provided Haig with
more information about the case and his reactions to it than he provided to his own staff.67 One is left with a number of questions about
a man who so freely provides information about his investigation to
the target's right-hand man while withholding it from his own staff.
Since this case concerned a series of cover-ups, the communication of
news of the investigation's progress to the perpetrator of the cover-up
could hardly have been beneficial to the investigation.
Jaworski delves into unnecessary and dry detail in his recounting of
his adventures. 6 8 Interestingly, the best parts of the book are the
excerpts from the memoranda written by the Special Prosecution
Staff and by outside counsel on the issue of whether to indict
Nixon.6 9 Unfortunately, Jaworski offers only a summary discussion of
his decision not to indict Nixon while or after he was in office-a
decision which is not as well argued nor as persuasive as the
70
memoranda advocating indictment.
The major flaw in Jaworski's book lies in the overstatements and
gross generalizations in his conclusion. Jaworski views the Watergate
64. Id. at 23-25, 53-55, 81-84, 129-31, 135-37, 217-19.
65. Id. at 89.
66. These contacts are also interesting since both Jaworski and Haig consulted
Joseph Califano, now Secretary of the Department of Health, Education & Welfare, for
advice. C. BERNSTEIN & R. WOODwARD, THE FINAL DAYS 249 (1976).
67. Jaworski writes, "But I couldn't reveal how I felt, even to Henry Ruth, my
closest associate." JAWORSKI, supra note 56, at 57.
68. For example, Jaworski discusses his impressions upon seeing Mitchell on the
first day of trial as well as the brief conversation which ensued. Id. at 109.
69. Id. at 225-38.
70. Id. at 222-25. Jaworski considered the true dilemma to be whether Nixon could
receive a fair trial under the circumstances. He was not convinced that any delay in the
judicial process would be sufficient to reduce prejudice to a constitutionally tolerable
level. Moreover, he was concerned about the repercussions of an indictment on the
nation and the world. Finally, procedural problems were an important consideration. Id.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:770
case as a vindication of the Constitution and a ringing affirmation of
governmental institutions performing well under stress. 7 1 Although
there is an alluring symmetry to the "institutional" explanation of
Watergate, the actual development of the case clearly shows that the
factor of luck was at least as instrumental in producing the outcome
as was the Constitution. There were simply too many individualized
sine qua non's to support the blithe conclusion that "the system
worked."
The tape recordings loom as the most significant and enigmatic
element of the case because John Dean's testimony alone would have
been insufficient to impeach and convict Nixon or even to force his
resignation. Thus, the haunting specter of Watergate is the probability that no future President will need to worry about impeachment
unless he tape records all conversations and fails to destroy the incriminating discussions. This is the true and disturbing legacy of the
Watergate case.
One of the few redeeming features of Jaworski's book is that he is
about the only writer-participant in the Watergate investigation who
has not claimed responsibility for the discovery of the White House
tapes. Nevertheless, one of the perplexing questions which lingers
after Watergate is why, upon the public disclosure of his covert taping system, Nixon did not destroy all of the tapes. Jaworski speculates
as to Nixon's motivation for not destroying the tapes:
Nixon did not destroy the tapes because it never occurred to him that
legal action might force him to surrender them. During 1972, and
perhaps during the early part of 1973, he thought the tapes possessed
extraordinary monetary value. He hoped to realize a fortune from them.
I am confident that he felt secure in his claim of executive
privilege. And when that claim was jeopardized by the actions of the
72
Special Prosecutor's office, it was too late.
Jaworski's explanation, however, is too facile. At least one portion of a
relevant (and no doubt incriminating) tape was destroyed. 73 But other
incriminating tapes were not destroyed, and they ultimately destroyed Nixon. Nixon had lied so frequently about his role in these
events that he most probably had little idea of just how incriminating
the tapes were. In reviewing the transcripts of Nixon's many March
and April, 1973, conversations with John Dean, it appears that Nixon
71.
72.
73.
Id. at 279.
Id. at 272.
For example, the famous 182 minute gap on the June 21 tape.
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simply did not understand that the acts to cover up the CREP complicity in the Watergate break-in were just as criminal as the break-in
itself. Nixon was therefore confused about both the facts and the law
of the case.
Thus, the tapes were not destroyed, the "smoking pistol" was uncovered, Nixon resigned, and Leon Jaworski is able to write that the
Constitution works and that "it was interpreted again so as to reaffirm
that no one-absolutely no one-is above the law." 7 4 Yet, after reading these three books and reflecting upon the fortuitous, and in some
instances, unique events that produced this outcome, one is surprised
by the amount of proof that was in fact necessary to remove a dishonest President. Because of this extraordinary amount of proof, there is
a, gnawing feeling that the events, which appear on their surface to
have made the Presidency and the executive branch more accountable
to Congress and the public, may contribute in the long run to the insulation and the imperial nature of the Presidency.
74. Id. at 279.