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Geoff Shepard Responds to “Maximum John Versus Tricky Dick”

Max Holland’s critique of my new book, The Real Watergate Scandal: Collusion, Conspiracy, and the Plot that Brought Nixon Down, is disappointing because I fear he missed its core message: That Watergate prosecutors and judges wanted so badly to rid the nation of Richard Nixon and his top aides that they totally trashed our Constitution and Bill of Rights.

He seeks to dismiss the significance of over a dozen secret meetings, each of which is well documented, between judges and Watergate prosecutors or other interested parties. But they cannot be so dismissed. We aspire to be a nation of laws and not of men, which means that people running our judicial system need to adhere to its constitutional requirements.

The Fifth and Sixth Amendments, if they mean anything at all, require fair trials that include a fair and impartial trial judge, nonpartisan prosecutors who enforce the laws in an even-handed manner, untainted and unbiased juries, and the automatic right of appeal to a court of review that is equally fair and impartial.

The three Watergate cover-up defendants who were ultimately convicted on all counts—John Mitchell, H. R. “Bob” Haldeman, and John Ehrlichman—got none of these guaranteed due process protections.

Federal District Judge John Sirica met secretly with prosecutors on at least eight documented occasions, with documents at our National Archives containing allusions to many more. They reached secret agreements that President Nixon could be named a co-conspirator, but not actually indicted; that the cover-up indictments of his aides would be issued before Sirica was required to step down as chief judge, so he could appoint himself to preside over their trial; and that the grand jury could issue an unprecedented sealed report to the House of Representatives, with Sirica even approving the format of that report in advance. Each of these issues would ultimately come before the court for argument, but prosecutors chose to pre-clear their positions in advance—with the very judge who would soon rule on those issues.

Each of these agreements and every one of the ex parte meetings constituted flagrant violations of the due process of law guaranteed to all defendants.

The book also details how Judge Sirica falsely sentenced John Dean to a prison term of one to four years (the harshest sentence handed down at the time), with his incarceration to coincide with the beginning of the cover-up trial. But one week following the defendants’ convictions, Sirica reduced Dean’s sentence to time served, resulting in a term of four months. In his 1979 book To Set the Record Straight, Sirica admitted he did this for the express purpose of enhancing Dean’s credibility with the jurors. Only decades later did we learn that Dean never spent a night in an actual jail cell.  Instead, he was placed in a witness protection facility at Fort Hollabird, Maryland.  This was not disclosed to the jurors—or to the American public.

The Real Watergate Scandal discloses how Watergate prosecutors hid exculpatory evidence concerning changed testimony by its two lead witnesses from defense counsel, which was yet another due process violation. It discloses how they indicted Charles Colson on the flimsiest of evidence and yet declined to indict William Bittman, Howard Hunt’s defense counsel who had handled “hush money” payments to the defendants and had hidden evidence from prosecutors. (Colson was a Republican, Bittman a Democrat.) It describes how prosecutors secretly assured grand jurors and House Judiciary Committee staff that they could prove that President Nixon had personally approved Hunt’s blackmail demands, but did not prove this in court. It discloses how Archibald Cox, the first special prosecutor, became so worried that Judge Sirica’s indefensible antics would result in a reversal on appeal that he secretly met with the chief appellate judge to explain how the Circuit Court’s judicial panels could be stacked on appeal in order to assure that Sirica was upheld.

Every one of these allegations is not only being disclosed for the first time, but is fully documented by materials uncovered at our National Archives.

Most Americans would agree that every defendant—whatever the crime or however despised the criminal—deserves a fair trial. The book makes clear that this did not happen in the Watergate trials. Instead, our Constitution and Bill of Rights were unable to withstand the onslaught from the political tsunami that engulfed the nation during Watergate.

That is the thesis of my book and that is what should be the concern of each American. Read the book and appreciate its documentation. After all, if it could be done to Republicans during Watergate, it could be done to Democrats on some future occasion.

Read Holland’s reply here

Reader Discussion

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on November 06, 2015 at 20:49:09 pm

Richard Nixon,who I voted for in 1968 but not in 1972,must have really teed off someone in the "Deep State" for him to be treated the way he was. Whatever it was that disturbed the elites must have been important otherwise they wouldn't have allowed him to be fed to the Leftist sharks. In today's day and age what cost Nixon his presidency is nothing compared to what Mr.Obama and Ms.Clinton have done over the past several years,yet they get a pass. With that said,the thrust of Mr.Shepard's book is corruption in the courts. So whats new. Many of America's problems today stem from past judicial misconduct and bad decisions. The problem is that judicial misconduct,acting under the color of law,leads the majority of the American people to accept judicial decisions as "legitimate" remedies in law when nothing could be further from the truth. People,many of them sincere,have taken their well prepared cases to court only to lose their case because a judge,instead of acting as a neutral referee colluded with the prosecution and thus became nothing but a rubber stamp second prosecuting attorney. In many cases judges careers were enhanced because they "got along to get along" and aided and abetted court decisions in favor of the state. As the noble Roman Tacitus stated almost 2000 years ago,"the more laws the more the corruption." Today America is very corrupt.

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libertarian jerry
on November 07, 2015 at 12:03:19 pm

In the whole Watergate affair, the one thing that has always amazed me is how that chaneleon, John Dean, managed to get off so lightly. A (somewhat) credible case was made some years back that placed Dean at the center of the whole conspiracy, in part, in an effort to obtain and destroy some rather embarrassing information about the activities of his then wife.
Who knows? - but rather than the reluctant participant and later hero of the saga, Dean to my mind appears to be more of a dissembling, self-promoting weasel.

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gabe
on November 07, 2015 at 14:37:29 pm

The Watergate cover-up defendants were denied due process in at least one respect: they deserved a change of venue. In this respect I agree with Geoff Shepard, and wrote as much.

With regard to ex parte meetings held by Judge Sirica, some documented and many others not, Shepard’s case would have been strengthened had he talked to WSPF lawyers—many of whom are still around—and/or elicited the views of legal experts about the nature of Jaworski’s secret meetings. That Shepard did neither of these things suggests his case is not as cut and dry as he makes it out to be. I am not a lawyer, much less a legal ethicist, but I understand that certain ex parte communications were (and are) permitted under law.

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Max Holland
on November 08, 2015 at 10:39:29 am

There are some occasions when prosecutors and judges interact in the natural course of their business, such as obtaining search warrants or empanelling grand juries, but nothing like the ex parte meetings detailed in my book are even remotely condoned by the Code of Conduct for U.S. Judges. I did a September panel at George Washington University with two prominent law professors which will soon be posted on my website. You will enjoy watching their reactions of concern and astonishment at my book's disclosures.

Geoff Shepard

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Geoff Shepard
on November 09, 2015 at 10:19:36 am

Hunter S. Thompson got it right when he referred to John Dean as 'that crafty ferret.'

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Shirley

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.