When I started at Columbia Law School in 1964, I didn’t expect to be a practicing lawyer, let alone a Watergate prosecutor pursuing criminal cases arising from events tied to a presidential election. I went to law school because I thought a law degree would help me get a job that I wanted reporting about law, crime, or politics. Stereotypes and sexism of the era meant those jobs were filled almost entirely by men, so I needed something more than my journalism degree to impress an editor and become a reporter.
Another thing I never expected was that 50 years after the Watergate trials, what I and my fellow prosecutors did then would be relevant to current political and legal events. Who could have foreseen the parallels between Watergate and former and current president Donald Trump’s criminal indictments for election-related conduct or the use of a special prosecutor to file those indictments or the current Supreme Court’s decision finding presidential immunity from criminal prosecution (for core constitutional responsibilities, presumptive immunity for other presidential acts, and none for private acts) in Trump v. United States, 603 U.S. 593, 144 S. Ct. 2312 (2024)? For most of my life, I believed that Watergate was a sui generis event with its own unique set of indicted and unindicted coconspirators (many of them lawyers). As evidenced by the numerous criminal cases filed against Trump and many of his top lawyers and administration officials, I was wrong. So it is worth another look back today at my experiences as one of the prosecutors involved in that earlier use of a special prosecutor against a president and his aides.
My strategy of using a JD to get the right reporting job took an immediate detour. When I graduated, I became a trial attorney at the Department of Justice (DOJ), prosecuting organized crime and labor racketeering cases. Then, with less than five years of experience, I took on a president of the United States as part of the extraordinary Watergate Special Prosecution Force obstruction-of-justice trial team.
How did that happen? I graduated from law school the day after Bobby Kennedy was assassinated while campaigning for the Democratic nomination to run for president against Richard Nixon. It was two months after Martin Luther King’s assassination and a time of student protests and activism. Like many in my class, I was attracted to public service, civil rights, and criminal justice issues. Being a lawyer seemed a better path to that goal than journalism, so I decided to pursue law—at least until I repaid my tuition loans. Trial advocacy was my favorite class, and I did well in moot court, so litigation was what I wanted to do. Networking led to an offer from the DOJ’s Organized Crime and Racketeering Section as a trial attorney, and I was sure it was the best place for me to get trial experience right away.
To understand my role in Watergate, you need to understand the culture and stereotypes of the era. Women were called girls then. Only 4 percent of all the lawyers in America were women, and almost none of that 4 percent were litigators. My 1968 class was 5 percent female. There was no woman’s movement. No MS Magazine. No National Organization for Women. No EEOC. No consciousness-raising groups. No mentors or role models to provide help. My male classmates told me and my female classmates that a man would die in Vietnam because we took his rightful place in the class and that we’d never practice law anyway. Job interviewers asked how many children I planned to have and what birth control I used. Also, they asked what I’d do if a client had an emergency while I was hosting a dinner party. One interviewer told me he couldn’t hire me because the job required travel and I’d be the only woman, and he couldn’t possibly let me travel with a man.
I thought all that was behind me when I joined the DOJ, but it wasn’t. Like all my colleagues, I argued appeals, but unlike the men I started with, I had to fight to get my first trial long after they got theirs. It took me a long while to see that being the first and only woman attorney was the problem, and even longer to figure out what to do to overcome it. As the only woman lawyer in the section, I had no one to talk to about a solution to the differential treatment.
I decided I had to go directly to the section chief and ask why I wasn’t getting assigned a trial. He told me, without any apparent discomfort, that it was because I was a “girl” and would be much more “vulnerable” than a man in a trial court where I’d be surrounded by made members of the Mafia or corrupt union officers. He said I was safer arguing appeals with only lawyers in the courtroom. I asked what he had failed to notice about me when he hired me as a trial attorney, and I demanded a trial. The result: He sent me to Alaska in January 1970 for my first trial. He turned out to be right about one thing. I was more vulnerable than the men because pants for women were prohibited in all federal courts in those days. I had to wear skirts despite the 30-below-zero temperatures, arguing to jurors wearing flannel-lined pants. After Alaska, my caseload grew, and I traveled the U.S. trying cases.
The section chief calling me “girl” didn’t offend me as it should have. It was common parlance, so I was used to it. That’s why my memoir is titled The Watergate Girl: My Fight for Truth and Justice Against a Criminal President.
President Richard Nixon, who had been inaugurated shortly after I started at the DOJ, was running for reelection in 1972 when a break-in at the headquarters of the Democratic National Committee (DNC) in the Watergate Office Building changed everything—for him, the country, and me.
The burglary happened on June 17, 1972. Five men were caught inside the DNC headquarters and arrested for a crime eventually linked to Nixon’s Committee to Re-elect the President, known as CREEP, as well as to his attorney general and top White House aides. That break-in was the first of many illegal acts in what became known generally as the Watergate scandal. Some have said that Nixon’s coverup of the break-in and other actions by his associates, an effort to obstruct justice, was worse than the underlying crime. The events of that time started a 50-year run of the use of the suffix “gate” to describe all kinds of questionable and nefarious schemes.
The initial facts of the Watergate break-in were reported in The Washington Post by two young reporters, Bob Woodward and Carl Bernstein. The details were strange and raised suspicions that this was a political crime tied to the 1972 election, not a robbery. The five men arrested were wearing fancy suits and ties and surgical gloves. They carried expensive cameras and electronic eavesdropping equipment and fresh $100 bills, and the DNC office was a strange target for a heist. Then we learned that four of those arrested were Cuban Americans who had worked with the Central Intelligence Agency (CIA) during the clandestine Bay of Pigs invasion of Cuba, and the fifth was the chief of security for CREEP. The official tied to Nixon’s reelection committee used an alias when arrested, but his true identity was soon uncovered, as was the role in the break-in of two others: Gordon Liddy, the lawyer for CREEP, and a White House aide, Howard Hunt.
It was a colorful cast of characters, with political ties that were hard to ignore, although voters did. Nixon was reelected in a landslide victory, winning 49 states, losing only Massachusetts. How could that be in the face of the known facts? How could this crime be unrelated to politics and the election?
Nixon was inaugurated for the second time, just after the burglars’ trial ended. Suspicion grew that the White House and CREEP had tried to interfere with the election. What was not yet known was the extent of the involvement of Nixon’s Department of Justice from the start of the scandal. It is now clear that the DOJ and its Federal Bureau of Investigation (FBI) were used by Nixon to obstruct the investigation of the break-in.
The presiding judge in the burglars’ trial, John J. Sirica, made it clear that he believed there was a connection between the burglars in his courtroom and higher-ups in the campaign and White House. Sirica frequently interrupted the prosecutors’ questions to pursue that belief.
I thought the judge was right, but the trial ended in January 1973, right before Nixon’s second inauguration and just six months after the arrests, with no one else charged. All seven defendants (the burglars, Liddy, and Hunt) either pleaded guilty or went to trial and were convicted of the break-in. A month later, in February 1973, the Senate unanimously voted to create a Select Committee on Presidential Campaign Activities under the leadership of Senator Sam Ervin (D-NC) and Senator Howard Baker (R-TN) as the ranking member. Fifty years later, it is hard to imagine such a bipartisan effort to inquire into the actions of one side in a presidential election.
The select committee was created to determine if any new laws might be needed to protect America going forward, not to investigate what existing laws might have been violated. That investigation would become part of our jobs as prosecutors, which included following the money. Nixon had attempted to prevent the discovery of the source of the $100 bills because that money was traceable. The link to CREEP and Nixon would become obvious if that money was traced, as indeed it was—to a campaign donation check cashed by one of the Cuban Americans at a bank in Miami.
In the meantime, in March 1973, the focus changed to a conspiracy to obstruct justice through concealment of the involvement of the White House and CREEP. On the eve of his sentencing, one of the convicted burglars, James McCord, revealed the truth. He was a former CIA agent, the electronics expert assigned to bug the DNC offices, and the head of security for CREEP. McCord’s fear of a long prison sentence from Judge Sirica—commonly known then as “maximum John”—motivated him to send a letter to Sirica in hopes of leniency. The letter said that Sirica was right, higher-ups were involved, hush money was paid, and perjury was committed in the grand jury investigating the break-in and at the burglars’ trial. McCord’s letter, in my opinion, is the real and undervalued breakthrough of Watergate.
The McCord letter was enough predicate to appoint a special prosecutor to investigate possible violations of existing laws by the president, his top White House aides, and campaign staff. Nixon’s attorney general, Elliott Richardson—who had previously served as assistant secretary of state, and then in the cabinet as secretary of health, education, and welfare and as secretary of defense—appointed Archibald Cox, former solicitor general under President John Kennedy and a professor at Harvard Law School, to the role of Watergate special prosecutor. Fifty years later, Attorney General Merrick Garland would appoint another special prosecutor, Jack Smith, to investigate once again alleged criminal conduct by a president and his associates in connection with election activities.
Cox was sworn in on May 25, 1973. I was interviewed and hired that same day. Cox wanted me to start immediately. I pleaded for at least two weeks to hand over my organized crime cases and pack up and move from the elegant DOJ headquarters to the offices of the Watergate Special Prosecution Force in a nondescript modern building at 1425 K Street NW, in the heart of D.C.’s red-light district. We settled on a few days. My DOJ colleagues gave me a farewell gift of three brass balls in a beautiful red silk box with a note: “Because you have more than most men.”
At the new office, I became a part of the main Watergate trial team. It was led by James F. Neal, a high-profile trial lawyer from Nashville who prosecuted Jimmy Hoffa and then served as the U.S. attorney in Tennessee before Watergate. After Watergate, Jim represented many Nashville stars (including Johnny Cash, who came to watch the Watergate trial), defended Elvis Presley’s doctor on charges of involvement in Elvis’s death, won an acquittal for Ford Motor Company when the company was charged with reckless homicide due to the faulty design of its Pinto model car, and successfully defended Governor Edwin Edwards of Louisiana in a trial for racketeering.
Richard Ben-Veniste, just one year ahead of me in law school, and I completed the trial team. Richard also went on to an illustrious career after Watergate, both in private practice and as the Democrats’ chief counsel on the Senate Whitewater Committee, a congressional investigation of President Bill Clinton that resulted in the appointment of another special counsel, Kenneth Starr. The Starr special prosecutors started with inquiries into a private Arkansas real estate transaction known as Whitewater, and they ended their investigation by publishing a book-length public report filled with lurid details of presidential sex acts. Clinton was never indicted for a crime, and efforts to remove him from office by impeachment failed in the Senate.
In addition to the three of us who handled the courtroom, there were some of the best lawyers I’ve ever worked with doing essential work, interviewing witnesses, analyzing documents, and researching novel areas of law. George Frampton, Jerry Goldman, Larry Iason, Ken Geller, Henry Hecht, and Peter Rient were fresh off Supreme Court clerkships or other prestigious jobs. Working nearly 24/7 under intense scrutiny and unable to talk to anyone except each other about what we were uncovering, we bonded and became close friends. There were outstanding agents from the FBI, the Internal Revenue Service, and elsewhere who helped with the investigation. There were also teams looking at other possible criminal conduct, such as illegal campaign contributions and campaign dirty tricks, plus a brilliant in-house legal team led by Philip A. Lacovara for the major legal questions facing us. All were essential to our operations.
Except for Cox, Neal, and a few others, we were all young, sometimes called the children’s march against the wicked king. Jim was 45 at the time. Richard and I were barely 30. Our youth may explain why we were undaunted by the task at hand.
As at the DOJ, I was the only female prosecutor when I joined the Watergate team. In court, I was the only woman other than the court reporters and a few women journalists—and eventually one key witness, President Nixon’s secretary, Rose Mary Woods. She would be accused by the White House of responsibility for an 18½-minute gap in a crucial tape recording subpoenaed before any indictments by our grand jury.
There was an important change when I became a Watergate prosecutor: I was accepted as a full and equal partner in the work by my team. Sadly, however, sexism in court and elsewhere wasn’t dead. Headlines calling me the miniskirted lawyer and reporting what I wore before what I said in court plagued me, and the trial transcripts show remarks in court from Judge Sirica that reeked of sexism.
It was a heady experience to be part of this extraordinary group working to uncover facts and secure justice. We had no political agenda. For a former aspiring journalist, seeing reporters daily was thrilling. Knowing what everyone wanted to know before it was public and being a part of history was exciting too. Making news rather than reporting it gave me a new perspective. At the same time, it was depressing to see the corruption and immorality at the top of the government I had been raised to respect.
A month after we started work, former White House counsel John Dean testified before the select committee. At the same time, we were interviewing him and Nixon aide Jeb Stuart Magruder as two of our key witnesses. They each negotiated a plea and cooperation deal for their roles in the scandal. Dean was the most important witness. His testimony was credible and corroborated by other witnesses and by White House records. But in a case like this one, no single witness, no matter how broad the witness’s knowledge and how deep the witness’s involvement, was enough.
We needed more corroboration before we could consider indicting defendants like the president and his top aides. We got it on July 16, 1973, when Alexander Butterfield, deputy assistant to President Nixon, publicly revealed the existence of a White House taping system. He had revealed this bombshell information to a closed investigative session on Friday the 13th, but it remained a rare D.C. secret until Monday.
We (and John Dean) learned about the taping system like every other American: from the televised Senate select committee hearings on Monday, July 16. Within hours of Butterfield’s testimony, we reviewed and carefully selected nine conversations we were sure would overcome expected claims of executive privilege by Nixon in an effort to thwart disclosure. In selecting what to subpoena, we relied on Dean’s testimony of his conversations in the White House with Nixon and on White House records of calls and meetings that made it logical that those conversations would be discussions in furtherance of a crime.
We knew we needed these tapes and had to ask for them, but we also knew that if the tapes didn’t corroborate everything Dean had already publicly said to the Ervin committee, the tapes would destroy him as a witness—and our case with it. There was a risk that even minor errors would undermine Dean’s credibility, and there was a real risk in the fact that Dean did not know about the tapes when he testified before the Senate and testified solely from memory. Most witnesses have documents and diaries to refresh their memories before testifying, but Dean had been fired and escorted out of the White House without being allowed to remove his personal materials. He had no notebooks or calendars, not even a scrap of paper in the pre-computer age to refresh his memory. Luckily for us, Dean had an incredible memory, and his testimony withstood intense cross-examination.
We prepared a subpoena for nine tapes, but Cox thought it was more gentlemanly to write a letter asking the White House to voluntarily produce them. I and others on the team were sure that was a waste of time, and it was. Our request was promptly denied, so on July 23, 1973, the grand jury issued our subpoena for the recordings of the nine conversations we had carefully selected from hundreds of possibilities.
Two days later, the president informed Judge Sirica he simply would not comply with our subpoena. It seemed outrageous at the time that Nixon thought he could do that without any accountability. Now with the new Supreme Court opinion on the books providing presidential immunity from criminal prosecution for “official acts,” such a refusal would no longer seem surprising. After all, we were conducting a criminal investigation and seeking tapes of conversations that took place in the Oval Office of the White House between the president and aides who were government employees.
A court battle ensued with Nixon over production of the tapes. Judge Sirica ruled in our favor on August 29, 1973. On September 11, the case was argued before the District of Columbia Circuit Court of Appeals. The next day, the appeals court ruled in our favor and ordered the president to turn the tapes over to us. Less than two months after disclosure of the taping system, a trial court and appellate court had already ordered production of the tapes. The speed of the judicial system then is in sharp contrast to what happened in the Trump legal challenges to the special prosecutor’s efforts leading to the Supreme Court immunity decision.
Instead of complying, on October 19, Nixon offered us a compromise. He would let a nearly deaf, recently mugged, and elderly Senator John Stennis (D-MS) listen to the tapes to verify a transcript prepared by the White House. Even if the transcript wouldn’t bias what Stennis heard and even if the transcript were an accurate report (both unlikely), Stennis’s testimony about the tapes would be hearsay and could not be used at a trial. So we had no choice but to refuse and go public with our reasoning.
The next day, Saturday, October 20, 1973, Cox held a press conference at the National Press Club to explain why he had to refuse the Stennis compromise and insist that President Nixon obey the court order. I sat spellbound listening to the eloquence and integrity of Cox’s words.
At the same time, I pondered a personal problem. I was booked on a flight to New York for a family wedding and a rare afternoon and evening off. I decided to cancel, but my team persuaded me that nothing would happen in response to the presser before I returned on Sunday because “nothing happens on a Saturday in D.C.” I went to New York and missed the infamous “Saturday Night Massacre.” In the days before cell phones and instant news in your pocket, I danced the night away, knowing nothing of the drama in D.C. until I returned to my hotel after midnight and was handed a message from my team. It read, “Cox fired. Office seized. Return.”
I called the office for details and learned that Nixon had fired Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus for refusing Nixon’s order to fire Cox. Cox had then been fired by the solicitor general, Robert Bork, who had just become the acting attorney general. I returned to D.C. on the first morning flight. I found our offices sealed and all the teams gathered in a small conference room, trying to decide if we too had been fired and, if we hadn’t, whether we should quit in protest. Cox counseled us to stay and do our job as long as we could.
The public rose in protest of the firing of Cox on that Saturday night. Nixon saw this was a losing political fight, so he reversed course three days later. Nixon agreed to give us the tapes and appoint a new special prosecutor. I wondered why a new one was necessary. Why not just bring back Cox? Still, it took less than two more weeks to get a new special prosecutor appointed.
On November 5, 1973, Leon Jaworski was sworn in as the new special prosecutor. We were skeptical of him. Jaworski had a compelling résumé. He was a prominent Texas attorney, a recent president of the American Bar Association, founder of a large law firm, and a respected litigator. He had been a prosecutor in the Nuremberg trials of Nazi war criminals and later represented Lyndon Johnson in a case that allowed Johnson to run simultaneously for the Senate and the vice presidency. He had started his law practice defending bootleggers during Prohibition. But, although he was a Democrat, he voted for Nixon twice, and that made us suspicious. He won some of us over by not changing any staff when he replaced Cox, and his trial experience was a benefit as we proceeded to trial.
Before Jaworski took over the office, we were already anxiously awaiting delivery of the tapes. A week passed with no news. Then, on Halloween, White House lawyers notified us that two tapes were missing, one because it was recorded from the White House residence, which had no taping system, and one because of a technical malfunction.
Judge Sirica ordered a public hearing rather than letting us investigate the two missing tapes in secret before a grand jury. Sirica was suspicious of the White House’s explanation and felt the issue was of critical public interest and needed to be played out in open court, not behind closed doors. The president’s lawyers would present witnesses to prove these two missing tapes weren’t the result of criminal destruction of evidence. We would then cross-examine each witness.
The hearing ended without establishing any nefarious conduct, and we went back to waiting for delivery of the remaining seven tapes. Time dragged on until November 21, the day before Thanksgiving. It was mid-afternoon and everyone else in Washington was already home cooking by the time we got a call to return to Judge Sirica’s courtroom. J. Fred Buzhardt, the chief White House counsel for Watergate, then informed us there was a third tape with a problem, an 18½-minute hum where there should have been conversation. More incriminating was what he said next—that there was no innocent explanation for the gap and that only Rose Mary Woods, President Nixon’s secretary, could explain.
It is terrible trial tactics to announce one bad fact, resolve it, and then say, “Oh, I forgot about this other huge problem.” It makes it look much worse that way, just like not getting out all the incriminating things about your star witness before cross-examination.
Making the gap even more suspect was that it was on a recording of a conversation just three days after the break-in. This was long before the president had admitted to knowing about the involvement of anyone who worked for him, and a time when we were sure he had already been told about the break-in and might have become part of the conspiracy to obstruct its investigation. It was important for us to hear what the president was told on that date.
Bad tactics and a suspicious deletion of a likely probative conversation led Judge Sirica to order a second public hearing. Since I had questioned Woods in the first hearing when she was a chain-of-custody witness, she would be my witness again. But this time, she would be testifying as the prime suspect in an apparent destruction of evidence.
I spent the entire Thanksgiving weekend preparing as best I could. I had only a transcript of her testimony in the first hearing and meticulous contemporaneous notes of the erased conversation taken by Nixon’s chief of staff and eventual defendant H. R. “Bob” Haldeman. Those notes, combined with the audible part of the tape, proved that the buzz started exactly when the discussion turned to the subject of Watergate and ended when the notes showed a new topic began.
On Monday, I was ready. I had memorized Haldeman’s notes and scoured the transcripts of Woods’s prior testimony, as you would for any cross-examination. I had asked one unexpectedly prescient question of Woods in the first tapes hearing that I could use to discredit anything she now said. I had asked her what precautions she took while transcribing the tapes to avoid erasing anything. She had snarled, “I used my head. It’s the only one I had to use.” She later added that she wasn’t stupid enough to have done anything like that, even though at the time of her initial testimony she knew about the 18½-minute gap.
None of what I knew gave me any clue what she would say about how the gap came to be. I was going to have to violate the first rule of cross and ask a question I didn’t know the answer to. What had she done? What did she know about the 18½-minute gap? Would she take responsibility for causing it?
Woods strode into court as if she owned it, her eyes focused straight ahead. She looked fierce, but I was sure she didn’t feel that way. For the first time in my career, I had to give a witness in court her Miranda warnings. That is usually done by investigators or at the grand jury or at their first interview with agents. This was indeed a unique situation.
After Mirandizing her, I began the questioning, asking her what had happened. She described accidentally hitting the wrong button on the machine she was using to transcribe the tapes, RECORD rather than STOP, and keeping her foot on a pedal that made the reel-to-reel tapes continue to rotate, all as she stretched nearly six feet to answer a phone call. That, she said, must have caused the gap and hum by recording over the original audio of the conversation with the president. That’s when I used her prior snide retort to me in the first hearing to discredit her.
Her testimony created a physically improbable picture, so I asked that the machine be brought to the witness box for her to demonstrate this physical feat. My instinct was right, albeit risky. Perry Mason always gets the witness to admit that it was her, not Mason’s client, who did the crime, but that does not happen in real life—except it did here. Woods’s attempted demonstration failed. As soon as she pretended to reach for the telephone, her foot came off the pedal and the tape instantly stopped revolving. The court emptied as reporters ran out to a bank of pay phones (you can search online to see what those looked like) to call in the story.
Woods insisted it was different in her office. So I asked Judge Sirica if we could adjourn to the White House. He said yes, and Woods, her new private lawyer (she was no longer represented by White House counsel), and I left for her office. Once there, she did in fact manage to hold her foot on the pedal and stretch out just enough to reach the phone, but the photographs taken by the White House photographer of this reenactment showed clearly that was not what really happened when the gap in the tape was created. The next day I introduced into evidence the photos of Woods in her truly awkward stretched position behind her desk, and the world saw what I had seen. Nixon’s attempt to blame his secretary had not worked.
During my cross back in the courtroom the next day, Woods accused me of making her pose for the incriminating photos. I stated for the record that that was not true. She responded angrily, and that’s when sexism rose to its full ugly dimensions. Judge Sirica interrupted, scolding us. “We have enough problems without two ladies getting into an argument.” The blood drained from my face. No man ever had to endure a comment like that or another statement by Sirica, during my cross of one of the defendants during trial: “Now, Mr. Mardian, don’t you know you can never win an argument with a lady.” We weren’t arguing. I was a lawyer cross-examining a defendant.
Weeks after the second tapes hearing adjourned, we finally got the existing tapes, including the one with the gap. That one was sent to electronics engineers for analysis as we listened to the other six. What we heard on those tapes corroborated the testimony we already had from Dean and Magruder and moved our investigation forward at record speed.
Listening to those tapes was devastating. The first one we listened to was Dean’s March 21, 1973, conversation in the Oval Office telling the president that there was a “cancer” growing on the presidency from the Watergate scandal. Dean said that it would cost a million dollars in hush money to meet the blackmail threats of several of the Watergate burglars and keep them from revealing their connection to CREEP and the White House. Nixon responded by saying he knew where he could get the money.
On March 1, 1974, our grand jury indictment was handed up, charging Nixon’s attorney general and later CREEP chair John Mitchell, White House Chief of Staff Bob Haldeman, Nixon’s Chief Domestic Adviser John Ehrlichman, Assistant Attorney General Robert Mardian, and CREEP lawyer Kenneth Parkinson, on charges of obstruction of justice, perjury, and other crimes. All the top officials ultimately were convicted. Parkinson was the only defendant acquitted, as he was a latecomer to the coverup and got in over his head.
President Nixon was not a defendant. I and many on our team believed he should have been indicted because the evidence against him was overwhelming and we saw nothing in the Constitution that barred it. Jaworski believed impeachment was the appropriate way to remove a criminal president, and he refused to allow the indictment of Nixon.
The grand jury agreed that the evidence warranted indictment of Nixon and wanted to proceed with one. Jaworski was immovable. Eventually, our team reached a compromise with Jaworski. He would come before the grand jury and explain why it should not indict Nixon, but he would let us name Nixon as an unindicted co-conspirator (necessary to the admissibility of the tapes against those indicted conspirators). Moreover, Jaworski agreed to let us ask Judge Sirica for a waiver of Rule 6(e) on grand jury secrecy so that we could put a package of evidence together for the House Judiciary Committee, which was by then conducting a bipartisan impeachment investigation.
We made the motion for waiver of grand jury secrecy on the same day that the indictment was handed up, and Judge Sirica granted it. We put our evidence (including tapes) that was most relevant to impeachable offenses into a standard government-issued brown, faux-leather briefcase and had it delivered to the House Judiciary Committee. I have been told by the committee’s youngest member, then representative Elizabeth Holtzman (D-NY), that our evidence was significant in their bipartisan vote approving three articles of impeachment against Nixon.
As strong as our evidence was, we wanted more before the trial. On April 16, 1974, a trial subpoena for an additional 64 tapes was served on the president’s lawyers. One of the tapes in that subpoena later became known as the “smoking gun tape” and led directly to Nixon’s ultimate resignation.
Nixon, as with the earlier grand jury subpoena, refused compliance. Judge Sirica ruled to enforce it, but Nixon remained obdurate. On May 24, 1974, we appealed directly to the Supreme Court, skipping an appeal to the Court of Appeals for the D.C. Circuit. The Supreme Court granted certiorari a week after we requested it, and it heard oral arguments just a few weeks later on July 8. On July 24, 1974, the Supreme Court upheld our trial subpoena and issued a 8–0 opinion (Justice Rehnquist properly recused himself) that made clear that even a sitting president was not above the law and had to comply with our subpoena for a criminal case. Nixon was held to account and had to produce the tapes.
Nixon obeyed the unanimous Supreme Court ruling and gave us the additional tapes. The first one of that batch that we listened to was of a conversation on June 23, 1972, six days after the Watergate break-in, and long before Nixon admitted to learning about the involvement of his aides in the break-in. We heard Nixon approve a plan to get the director and deputy director of the CIA to tell the new acting director of the FBI to stop the bureau’s investigation of the break-in, on the baseless grounds that the investigation endangered national security. Nixon’s real motivation for this interference in the FBI investigation was that he knew that if the FBI followed the money, it would discover that Nixon was part of the obstruction conspiracy from right after the break-in and that the $100 bills the burglars had with them when arrested came from a campaign donation. That would leave no doubt that CREEP had funded the crime and would inexorably link Nixon and CREEP to the break-in and cover-up.
This was the “smoking gun tape.” It showed Nixon lied when he said he knew nothing about the cover-up until Dean told him about it in March 1973. It established beyond peradventure that President Nixon was part of the conspiracy alleged in our indictment that would lead to multiple convictions. In my view, this tape alone showed how Nixon had obstructed justice and misused his power as president with the plot to use the CIA to stop the FBI from following the money trail.
The Supreme Court of 50 years ago held, without any dissent, that we could proceed with a criminal investigation of a president and his aides who used government agencies as part of an alleged conspiracy to obstruct justice and cover up electionrelated crimes. But the Supreme Court’s Trump v. United States majority opinion raises a question as to whether this Supreme Court, unlike the Court in Nixon’s case, would see such conduct as a core presidential responsibility or “official conduct,” which is then immune from criminal investigation by a special prosecutor.
The smoking gun recording became public on August 5, 1974. On August 7, the three top Republicans in Congress, knowing what that tape showed, went to the White House. They told Nixon the evidence was clear and that the Senate would convict him on the bipartisan articles of impeachment if he didn’t resign.
Nixon knew he had no choice. He began the preparations for a peaceful transfer of power by asking Rose Mary Woods to inform his wife and daughters that he was resigning. He didn’t have the courage to tell them himself and relied on the woman he had blamed for the 18½-minute gap. She did as asked. The next day, August 8, Nixon announced his resignation, effective at noon on August 9, 1974. Gerald Ford, the vice president that Nixon selected to replace the elected vice president, Spiro Agnew, who himself left office 10 days before the Saturday Night Massacre after pleading nolo contendere to criminal charges unrelated to Watergate, took the oath of office as president.
Nixon was now a private citizen. The reasons for Jaworski’s refusal to let us indict Nixon with the others in March 1974 no longer applied. He had refused, not because it was unconstitutional to indict a sitting president, but on the grounds that impeachment was a better solution and a possible one because of the bipartisan support for impeachment at that time. Jaworski also believed the president should not be indicted because it would interfere with the job of the president.
I disagreed with Jaworski’s opinion and urged him to allow Nixon’s indictment in March with his co-conspirators, because no one should be able to commit crimes and not face the consequences of our system of justice and the rule of law. I had lost that battle, but I thought Jaworski should and might allow us to indict Nixon now that he was a private citizen. The argument that an indictment would interfere with his duties as president could not apply anymore, and it was too late for impeachment because he was no longer in office. While we discussed the logistics and the law, the newly inaugurated President Ford pardoned Nixon, making our discussions moot and depriving the country of a trial of the evidence against a president who left office in disgrace.
Less than two months after Nixon resigned, the Watergate cover-up trial began as scheduled on October 1, 1974. It took three months for the prosecutors and the defense to present all the evidence. The trial ended with a jury verdict on January 1, 1975. It took us just over 18 months from Cox’s initial appointment, which included the time for litigation over the tapes and our appeal to the Supreme Court, to reach a final jury verdict and bring Nixon’s co-conspirators to justice.
