Full text of "Watergate Special Prosuection Force Report"

WATERGATE Special Prosecution Force For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $2.65 Stock Number 027-000-00335-4 Contents Page Introduction 1 Brief History of the Watergate Special Prosecution Force 4 Policies and Procedures for Investigation and Prosecution 21 Major Investigations and Other Actions 50 Relations With White House During the Nixon and Ford Administrations 87 Concluding Observations and Recommendations 134 APPENDIX A. Status Report of Cases 155 B. Organizational History 171 C. Relations With the U.S. Attorney for the District of Columbia 100 D. Relations With the Attorney General 195 E. Relations With Congressional Committees 205 F. Relations With Other Law Enforcement Agencies 217 G. Press Relations 227 H. Computer Systems 231 I. Administration 242 J. Charter Documents 245 K. Chronology 253 L. Bibliography of Watergate Source Materials__ 265 M. Staff List 274 iii Introduction The Watergate Special Prosecution Force (WSPF) has worked for 28 months as an independent investigatory and prosecutive agency within the Department of Justice. As a result of its work, judges and juries have applied the criminal sanction to an unpre- cedented number of high Government officials and to important business leaders. The Special Prosecutor’s mandate includes the requirement that he shall report to the public and to Congress about his activities. Some of the task lies ahead. Appeals will proceed for probably two years or more. A few cases have to be completed. But most of the work of the office is done and most of the staff have finished their tasks. It now seems appropriate to summarize the completed work in a comprehensive report. No group of prosecutors and supporting personnel ever have labored under greater public scrutiny. Every decision seemed to be a delicate one and previously uncharted courses frequently had to be faced. Each action occurred in the midst of a national turmoil and, in retrospect, some may be judged in the future as just plain wrong. This report seeks not to justify, but to explain. The Congress, the American people and other law enforcement agencies gave con- tinued support to the efforts of this office. A full accounting, within the confines and strictures that the law properly places upon pros- ecutors, is required. This report contains no facts about alleged criminal activity not previously disclosed in a public forum. Many public officials saw the Special Prosecutor as one with special privileges to lay bare what witnesses had said and to offer his own, personal conclusions as to what really happened. Other persons also asserted that President Nixon’s pardon, and Congress’ passage in the middle of WSPF’s work of a retroactive, 3-year statute of limitations for campaign law violations (replacing the normal 5-year period for initiating pro- secutions) reinforced the propriety of releasing grand jury testimony, informants’ allegations, and the confidential assertions of cooperative witnesses. However, for WSPF to make public the evidence it gathered concerning the former President and others who were not charged 1 with criminal offenses would be to add another abuse of power to those that led to creation of a Special Prosecutor’s office. The Federal Rules of Criminal Procedure prohibit the disclosure of information presented to a grand jury except as necessary in the course of criminal proceedings. 1 The American Bar Association reinforces this stricture in its Code of Professional Responsibility and limits the circumstances under which attorneys involved in criminal investigations are free to make out-of-court statements about the details of their work. Most important, in terms of the American constitutional system of government, is the notion of fundamental fairness for those who, after investigation, have not been charged with any criminal miscon- duct. This consideration is particularly important for a Special Prosecutor whose independence considerably reduces his accountabil- ity and who must be unusually sensitive to possible abuses of his power. It is a basic axiom of our system of justice that every man is innocent unless proven guilty after judicial proceedings designed to protect his rights and to ensure a fair adjudication of the charges against him. Where no such charges are brought, it would be irre- sponsible and unethical for a prosecutor to issue a report suggesting criminal conduct on the part of an individual who has no effective means of challenging the allegations against him or of requiring the prosecutor to establish such charges beyond a reasonable doubt. The decision to remain within the boundaries placed upon all other prosecutors is in no sense an absolute bar to public knowledge; approximately a quarter of a million pages of Watergate facts already exist for public consumption. This material includes the public hear- ings and published reports of the Senate Select Committee on Presi- dential Campaign Activities and the House Judiciary Committee, other existing and forthcoming reports of Congressional committees, the voluminous records of the criminal trials resulting from WSPF’s investigations, evidence obtained in several civil suits, and numerous books and articles analyzing the events of “Watergate” from a variety of perspectives. The most significant of such records are listed in a bibliography in the appendix to this report. In addition, the Presi- dential Recordings and Materials Preservation Act of 1974, if upheld by the courts, will provide the public with access to enormous amounts 1 Recorded Presidential conversations were made available to the Special Prosecutor and the grand jury only for use in the investigation and prosecution of criminal charges, not for the purposes of a public report. Since the Supreme Court in United States v. Nixon ordered the President to supply the tapes only for such use, the Special Prosecutor is barred from disclosing any Presidential materials other than those used in court proceedings. The public’s right of access to these materials, along with the former President’s assertion of ownership and executive privilege to control their disclosure, is now the subject of litigation which also restrains release of Presidential materials. 2 of information from the files of the Nixon Administration, including tape recordings of Presidential conversations. Subject to the constraints described above, the following report attempts to describe accurately and completely the policies and opera- tions of the Watergate Special Prosecution Force from May 29, 1973 to the middle of September 1975. The five chapters of the main report contain a narrative of operations, a description of office policies and practices in investigative and prosecutive decisions, summaries of major investigations, a narrative of relations with the White House during the Nixon and Ford Administrations, and observations and recommendations. The attached appendix contains more detailed information on the organization of the office; relations with U.S. Attorneys, Congressional committees and other law enforcement agencies; press relations; the office administration and information system; a chronology; a status report of all court matters; and the bibliography. 3 Brief History of the Watergate Special Prosecution Force BACKGROUND AND ESTABLISHMENT OF OFFICE Agents of the Committee to Re-Elect the President (CRP) broke into the Democratic National Committee headquarters in the Water- gate office complex on June 17, 1972. The resulting conspiracy, burglary, and wiretapping charges produced convictions of seven men the following January in a trial before Chief Judge John J. Sirica of the U.S. District Court for the District of Columbia. By that time various public allegations had created suspicions that high-level officials of CRP and the Nixon Administration had engaged in a variety of illegal activities connected with the 1972 campaign, of which the Watergate break-in was only one. As a result, the Senate estab- lished its Select Committee on Presidential Campaign Activities, chaired by Senator Sam J. Ervin, Jr. On March 19, 1973, before the Select Committee hearings started, James W. McCord, one of the convicted Watergate burglars, wrote an explosive letter to Judge Sirica who was to sentence him 4 days later. McCord’s letter, revealed in open court, claimed that Govern- ment witnesses had committed perjury during his trial and that the trial had failed to identify others involved in the Watergate operation. Throughout April, news accounts based on the reopening of the criminal investigation, the initial Select Committee inquiries and press investigations — as well as public statements by the Adminis- tration — increased public doubt about the conduct of high White House and campaign officials. These doubts heightened at the end of April with the dismissal of the counsel to the President, and the resignation of the Attorney General, the acting director of the Federal Bureau of Investigation, and two of the President’s closest aides. Further public concern arose about the desirability of the U.S. Attorney’s office continuing its investigation, especially in light of publicly assumed interference from Justice Department and White House officials. During his confirmation hearings before the Senate Judiciary Committee, the newly designated Attorney General, Elliot 4 Richardson, pledged to appoint an independent special prosecutor to take over the inquiry. With the approval of the Judiciary Committee, Richardson and Archibald Cox, his ultimate choice for the post of Special Prosecutor, agreed upon the terms of Cox’s charter. The resulting statement, entitled “Duties and Responsibilities of the Special Prosecutor,” be- came part of Department of Justice regulations and defined the Special Prosecutor’s jurisdiction in these terms: The Special Prosecutor shall have full authority for investigat- ing and prosecuting offenses arising out of the unauthorized entry into Democratic National Committee headquarters at the Water- gate, all offenses arising out of the 1972 presidential election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility, allegations involving the President, members of the White House staff, or presidential appointees, and any other matters which he consents to have assigned to him by the Attorney General. Richardson also pledged to Cox adequate funding, complete inde- pendence in hiring and supervising his staff, and sole responsibility for contesting any “executive privilege” or “national security” claims which might be raised to prevent the acquisition of evidence. Cox could decide whether to seek grants of immunity (subject to the Attorney General’s approval as required by statute), and whether and to what extent he would inform or consult with the Attorney General about his work. Richardson further agreed that he would not “countermand or interfere with the Special Prosecutor’s decisions or actions,” and that he could remove Cox from office only for “extraordinary improprie- ties.” On May 25, 1973, Cox was sworn in as Special Prosecutor and the Watergate Special Prosecution Force (WSPF) was officially established within the Department of Justice. MAY 25-OCTOBER 20, 1973 Richardson had told the Senate Judiciary Committee that Cox’s jurisdiction would include the Watergate case, the activities of alleged political saboteur Donald Segretti, the office burglary of Dr. Lewis Fielding, Daniel Ellsberg’s psychiatrist, and illegal activity involving 1972 campaign contributions that Cox chose to investigate. Richardson later referred to Cox certain allegations, including possible perjury in Senate hearings relating to Administration handling of an antitrust suit against the International Telephone and Telegraph Corporation (ITT). When the Justice Department’s Criminal and Tax Divisions were conducting any investigations regarding matters related to his jurisdiction, they would inform the Special Prosecutor and ascertain if he wanted to take responsibility. In addition, after initial discussions and inquiries, the Special Prosecutor arranged to use the FBI for 5 investigative work and to send investigative requests directly to the Bureau without transmittal through the Attorney General. 1 One of Cox’s first problems was the possible impact on his work of the Senate Select Committee’s televised hearings, which had begun about a week before he took office. Although the Committee and the Special Prosecutor’s office were investigating many of the same allega- tions about Watergate and other Nixon Administration activities, each meant to use the information it would gather for a different purpose, in accord with its particular responsibilities. The Committee sought to bring facts before the public in order to propose legislative remedies for any abuses it might uncover; the Special Prosecutor had the responsibility of investigating and prosecuting specific criminal charges. The danger existed that legislative hearings might frustrate the criminal proceedings. For example, in order to obtain the testimony of several important witnesses, the Committee planned to immunize them, thus barring any prosecution that could be shown to be based on any direct or indirect use of their Senate testimony. In addition, the televised hearings might create adverse publicity about potential defendants in criminal trials, especially a Watergate trial that then seemed likely to begin in a few months. For these reasons, Cox re- quested that the Committee postpone its hearings; the Committee quickly rejected this request. Before two Committee witnesses were immunized, Cox acted to reduce the chance that a future criminal case against either of them would be “tainted” by evidence obtained as a result of their testimony. He arranged to have the evidence already gathered against each of them deposited under seal with the District Court before they testi- fied at the Committee hearings. And, to minimize possible pretrial publicity and ensure maximum fairness to potential defendants, he sought a court order that the Committee’s grants of immunity be conditioned on its holding hearings in executive session, or at least without radio and television coverage. However, Judge Sirica con- cluded that he had no power to issue such an order to a Congressional committee, and Cox decided not to appeal the decision, since a pro- longed conflict with the Committee would have kept both groups from their investigative work and the likelihood of a successful appeal was doubtful. In the end, the continuation of public hearings through the summer of 1973, among other benefits, brought to public attention testimony relating to alleged White House involvement in the Water- 1 Richardson and Cox also made an agreement as to the prosecution of former Administration officials and others on charges relating to favorable treatment of financier Robert Yesco in return for a campaign contribution. While the matter was within the Special Prosecutor’s jurisdiction, Cox agreed that it should con- tinue to be handled by the U.S. Attorney’s office for the Southern District of New York, which had conducted the investigation and obtained the indictment in the case. Thereafter, WSPF exercised very little supervisory authority over the case. 6 gate cover-up and other crimes and thereby helped create for the Special Prosecutor's investigation a base of public and Congressional support that did much to force the re-establishment of WSPF after the President's attempt to abolish it later that year. This early conflict over the possible harm that the Committee's televised hearings would inflict on the cover-up investigation soon subsided. In other WSPF matters, the Committee's staff had com- menced its investigation some months before the prosecutors were appointed and had gathered much information of value to WSPF. Most of this information was placed on computer tapes, which the Committee agreed to provide to the prosectors. 2 WSPF decided to undertake a similar computer operation, and arranged to use the same Library of Congress computer system so that information gathered from other sources could be cross-referenced with that obtained by the Committee. Meanwhile, Cox was selecting a staff that eventually numbered, in permanent positions, 37 attorneys, 16 other professionals, and 32 supporting personnel by August 1974. 3 The bulk of the investigative work was divided among five task forces, each responsible for a broad area of investigation — the Watergate break-in and cover-up; the allegations about ITT and possible perjury during 1972 Senate hear- ings; the activities of the White House “Plumbers" group, including the break-in at Ellsberg's psychiatrist's office ; 4 Segretti's activities and other alleged campaign “dirty tricks"; and illegal conduct in the financing of the various Presidential campaigns of 1972. Assisting and providing support for the task forces were several other groups. A counsel's office was established to provide legal advice to the Special Prosecutor and the task forces. An information section went to work summarizing and cross-indexing the masses of Congres- sional and grand jury testimony that had already been gathered, and creating a filing and reference system that would give any WSPF investigator access to whatever information was already available in the area of his inquiry. An office of public affairs handled relations with the press — an especially sensitive task in view of the dual de- mands of the First Amendment's free-press guarantees and the right of a potential defendant to a trial unprejudiced by publicity about his conduct. An administrative office dealt with the many problems of space allocation, payroll, supplies, equipment, clerical help, and 2 While the initial agreement between the Committee and the Special Pros- ecutor had covered only information made public at the Committee’s hearings, the Committee agreed in March 1974 to provide WSPF with computer access to other information its staff had gathered which had not been disclosed in hearings. 3 In addition, there were ten temporary employees at that time. 4 This task force also looked into various alleged abuses related to Federal agencies and later into possible illegal activity in connection with President Nixon’s tax returns. 7 messenger service. The FBI and IRS supplied personnel who worked closely with WSPF in some of its investigations, while the Federal Protective Service provided security services for WSPF’£ offices in a private building in downtown Washington. The Assistant U.S. Attorneys who had handled the initial Water- gate investigation — Earl Silbert, Seymour Glanzer, and Donald Campbell — worked with WSPF until the end of June, when they returned to the U.S. Attorney’s office for the District of Columbia. The grand jury that had brought the original Watergate indictment in the fall of 1972, and had received new evidence in the spring of 1973, continued to hear evidence gathered by WSPF in the Watergate cover-up case. In August a second grand jury was empaneled to hear evidence in other cases, and a third grand jury was added in January 1974. Because the original grand jury was so familiar with the Water- gate case, special legislation in December 1973 extended its term beyond the normal 18 months. As the various task forces were absorbing information already gathered by other investigators and beginning to interview witnesses and bring them before the grand jury, the Senate Select Committee continued its hearings. In June, former White House counsel John Dean gave testimony implicating President Nixon and his closest advisors in the Watergate cover-up. On July 16, a former White House official told the Committee that President Nixon in 1971 had installed in the White House a taping system designed to record his meetings and telephone conversations. This revelation opened up the possibility of obtaining evidence that could resolve the con- flicting testimony about alleged involvement of Administration officials in various crimes. On July 23, the Special Prosecutor, after unsuccessful attempts to obtain such material from the President on a voluntary basis, issued a subpoena on behalf of the grand jury for the tapes, notes, and memoranda of nine conversations which the available evidence indicated were relevant and necessary to the investigation. The President opposed the subpoena, and appealed Judge Sirica’s order enforcing it to the U.S. Court of Appeals for the District of Columbia Circuit. After first suggesting that Cox and the White House seek a compromise — which they were unable to do — the ap- pellate court on October 12 affirmed Judge Sirica’s order with modifi- cations sought by the Special Prosecutor. The Court directed Judge Sirica to listen to the tapes to determine whether they contained discussions subject to a valid claim of executive privilege, and then turn over any unprivileged sections of the tapes to the grand jury. While the litigation over the subpoenaed tapes had delayed the Watergate and other WSPF investigations, the prosecutors had made considerable progress in the first six months of their work. The Water- 8 gate investigation had produced guilty pleas from Fred LaRue, Jeb Magruder, and John Dean on charges of conspiracy to obstruct justice. Donald Segretti had pleaded guilty to charges of conspiracy and distributing campaign literature without properly identifying its source, in connection with his “dirty tricks” operation. Egil Krogh, Jr. had been indicted for lying to the grand jury in prior testimony regarding the “Plumbers’ ” activities. Three large corporations — American Airlines, Goodyear Tire and Rubber, and Minnesota Mining and Manufacturing — had entered guilty pleas to making illegal corporate contributions in the 1972 Presidential election, as had the responsible officers of two of them. Dwayne Andreas and his First Interoceanic Corporation had been charged with the same offenses. Other investigations had progressed, and were expected to produce additional indictments and guilty pleas. In the negotiations leading to their guilty pleas, Segretti, LaRue, Magruder, and Dean had agreed to disclose to WSPF what they knew about the Watergate case and other matters under investigation. Dean’s guilty plea and agreement to cooperate with the prosecutors came October 19, the last day for the President to seek Supreme Court review of the decision ordering him to produce the tapes. Instead of asking the Supreme Court to hear the case, he announced a proposed compromise: Senator John Stennis would listen to the tapes and review a statement of their contents; if verified by Stennis the statement would then be given to the Special Prosecutor and the grand jury. Under an integral part of the proposal, Cox would agree not to litigate further with respect to the nine tapes or to seek addi- tional tapes in the future. In a news conference the following day, Cox stated his reasons for not accepting the proposal. Edited summaries, he noted, probably would not be admissible as evidence in court. His agreement not to seek additional tapes would prevent WSPF from conducting its investigations thoroughly. And the order to accept the compromise terms, he said, was inconsistent with the pledge of independence he had received from Attorney General Richardson at the time of his appointment. That evening, October 20, the White House announced the events that came to be known as the “Saturday Night Massacre”: President Nixon ordered Attorney General Richardson to dismiss Cox for his refusal to accept the White House proposal; Richardson resigned rather than carry out the order, and Deputy Attorney General William Ruckelshaus was fired for his refusal to obey; finally, Solicitor General Robert Bork, next in seniority at the Justice Department, dismissed Cox as Special Prosecutor. Also on White House orders, agents of the FBI occupied the offices of WSPF, the Attorney General, and the Deputy Attorney General in order to prevent the removal of any documents. WSPF staff members, gathered in their offices, were 9 informed that they would work henceforth as part of the Justice Department’s Criminal Division. The events leading to Cox’s dismissal had been foreshadowed by a number of his contacts with Attorney General Richardson over the previous months. On several occasions Richardson had asked whether particular matters Cox appeared to be investigating were under his jurisdiction and had expressed concern that Cox’s inquiries were going into areas not contemplated when WSPF was established. Some of these questions were inherent in the apparent breadth of Cox’s charter. Other questions rose from Richardson’s own misgivings, and those of White House officials. The actions which Richardson raised in conversation with Cox included WSPF’s possible inquiry into the financing of President Nixon’s two homes, its broad letters to several Federal agencies asking their policies and practices in electronic surveillance, the inter- viewing of a former White House aide who had prepared a controver- sial plan for intelligence gathering by the executive branch, investiga- tion of wiretaps claimed to be justified by national security, and an inquiry into the handling of campaign contributions by a close friend of the President. In July, because both he and Cox were uneasy about the prospect of a series of politically motivated referrals to WSPF of charges against the President or his Administration, with attendant publicity, Richardson had suggested that the Criminal Division screen all allegations to determine whether they were substantial and fell within WSPF’s jurisdiction before sending them on to Cox. Cox quickly rejected this proposal and Richardson did not pursue it. In August, citing the concerns of White House officials that Cox was reaching beyond his charter, Richardson proposed revising the Special Prosecuter’s charter to define his jurisdiction with more precise limitations, and appointing a special consultant on national security matters to serve as an expediting intermediary between the Special Prosecutor and agencies from which he was seeking informa- tion regarding such matters. Cox felt that it was his own responsibility to determine what matters fell within the terms of his existing charter, and rejected any charter revisions as unnecessary. Cox also disagreed with the idea of a national security consultant because he saw such an official as a possible hindrance rather than an aid to obtaining neces- sary information. Richardson also informed Cox of White House positions on various issues, including the production of evidence in response to the Special Prosecutor’s requests. Despite their willingness to take independent positions on such legal issues as executive privilege and national security, Richardson and Cox had also made efforts to reach agree- ment on such issues. During the period just before his resignation and Cox’s dismissal, Richardson had made efforts to achieve a compromise 10 on the question of the Special Prosecutor's access to the subpoenaed tapes. OCTOBER 20, 1973-AUGUST 9, 1974 The “Saturday Night Massacre” did not halt the work of WSPF, and the prosecutors resumed their grand jury sessions as scheduled the following Tuesday. Bork placed Assistant Attorney General Henry Petersen, head of the Criminal Division, in charge of the in- vestigations WSPF had been conducting. Both men assured the staff that its work would continue with the cooperation of the Justice Department and without interference from the White House. Upon WSPF's request, Judge Sirica issued a protective order to limit access to, and prevent removal of, WSPF files. Despite their anger over Cox's dismissal and their doubts about the future of their office, the staff members, in a series of meetings, decided to continue their work for the time being. Nevertheless, the dismissal of Cox and the President's refusal to produce the subpoenaed tapes provoked what one White House official called a “firestorm” of public criticism and serious talk of impeachment on Capitol Hill. In an abrupt reversal, the President announced on October 23 that he would comply with the grand jury subpoena and on October 26 that Bork would appoint a new Special Prosecutor who would have “total cooperation from the executive branch.” While the President said he would be unwilling to produce additional White House tapes or other evidence that he considered privileged, he placed no restrictions on the new Special Prosecutor's authority to seek such evidence through the courts. On November 1, the President announced that he would nominate Senator William B. Saxbe as the new Attorney General. Later that day, Acting Attorney General Bork announced his appointment of Leon Jaworski as Special Prosecutor. Jaworski, who was sworn into office November 5, was assured the same jurisdiction and guarantees of independence as Cox, with the additional provision that he could be dismissed, or his jurisdiction limited, only with consent of a bi- partisan group of eight Congressional leaders. Three days after taking office, Jaworski told a House subcommittee that the continuity of WSPF operations had been restored and that the office's staff would remain intact. Meanwhile, a number of bills had been introduced in Congress to provide for judicial appointment or other safeguards of the inde- pendence of the Special Prosecutor. In the wake of the “Saturday Night Massacre,” many people thought it impossible to assure an independent investigation by anyone appointed solely by the exe- cutive branch of Government or subject to dismissal without Con- 11 gressional approval. Others including Chief Judge Sirica and some of his fellow judges opposed the idea of a court-appointed prosecutor, and Saxbe testified that he had accepted his nomination only on the condition that Jaworski’s investigation would remain independent. Jaworski testified that he would welcome any legislation protecting his independence further, but was satisfied with his charter and the assurances he had been given. In mid-November, ruling on a civil suit that challenged the dismissal of Cox, District Judge Gerhard Gesell held that Cox’s firing had been illegal. However, noting that Cox had not sought reinstatement, the judge said there was no reason to interfere with Jaworski’s tenure. As a result of all these events, Congress abandoned the idea of establishing a special prosecutor’s office by legislation. Less than a week after the President’s attorney had told Judge Sirica that the nine subpoenaed tapes would be produced for his examination, another White House lawyer announced that two of the conversations for which tapes had been sought had in fact never been recorded. Shortly thereafter, during a court inquiry into the question of the President’s compliance with the subpoena, White House lawyers disclosed that the tape of a third conversation con- tained a substantial “gap” — a humming sound which obliterated some 18 % minutes of one of the President’s conversations— and that dictabelts of the President’s recollections of two of the conversations contained shorter gaps. A panel of experts chosen by White House and WSPF lawyers reported in January 1974 that the 18%-minute gap had been caused by a series of deliberate erasures, and that it was impossible to retrieve the original conversation. Judge Sirica thereupon referred the matter to a grand jury. A lengthy investigation, conducted by WSPF and the FBI, concluded that only a small number of people had had the opportunity to make the erasures but was unable to fix criminal responsibility on any particular individual or individuals. Meanwhile, the task force investigations continued. By the end of 1973, five more corporations — Braniff Airways, Ashland Petroleum Gabon Inc., Gulf Oil Corporation, Phillips Petroleum Company, and Carnation Company — and their responsible officers had pleaded guilty to making corporate contributions to 1972 Presidential cam- paigns. Former Presidential aide Dwight Chapin had been indicted for making false statements to the grand jury in connection with Segretti’s activities. Egil Krogh, Jr., former head of the White House “Plumbers,” had entered a guilty plea to conspiring to violate the rights of Dr. Fielding, whose office had been broken into in a vain attempt to obtain Daniel Ellsberg’s psychiatric records. The new year brought additional indictments and guilty pleas. Herbert Porter, a former aide in the President’s re-election campaign, pleaded guilty to making false statements in connection with the 12 original investigation of the Watergate ease. Jake Jacobsen, an attorney who had helped milk producer cooperatives make campaign contributions and obtain an increase in milk price supports, was indicted on charges of making false statements to the grand jury. Herbert Kalmbach, the Presidents personal lawyer and an active campaign fundraiser, pleaded guilty to a felony violation of the Federal Corrupt Practices Act in his fund-raising for candidates in the 1970 Congressional elections and to a charge of promising an ambassadorship to a campaign contributor. Efforts to obtain additional recordings and other documents from the White House, for use as evidence in various grand jury investiga- tions, continued during the winter of 1973-74. For a short period after Jaworski took office, the White House offered limited cooperation by supplying some of the numerous tapes and documents requested by WSPF over the past four months. In January, however, the President retained as counsel James St. Clair, whose major concern -appeared to be protecting him against possible impeachment. The President stopped his initial cooperation with Jaworski, and WSPF requests were soon met by unusual delays and claims that some materials could not be located. Other materials, the President said, were unnecessary to the grand jury investigations. To furnish them would be inconsistent with his constitutional responsibilities. During the winter, and again in the late spring of 1974, Jaworski met periodically with General Alexander Haig, the President’s chief of staff. For the most part, these meetings involved attempts by Jaworski to persuade Haig that the President shoxild provide WSPF with materials it was seeking. Haig complained about particular actions by WSPF staff members, including their intensive questioning of White House witnesses in the grand jury and their efforts to have FBI agents interview White House staff members in connection with the investigation of the 1834-minute tape gap. On March 1, the grand jury returned an indictment in the Water- gate cover-up case of seven men formerly associated with the White House or CUP — Charles Colson, John Ehrlichman, H. R. Haldeman, Robert Mardian, John Mitchell, Kenneth Parkinson, and Gordon Strachan — on charges of conspiracy, obstruction of justice, and, as to some, perjury and false declarations. A week later six men — Bernard Barker, Colson, Felipe DeDiego, Ehrlichman, Gordon Liddy, and Eugenio Martinez — were indicted for conspiring to violate Dr. Fielding’s civil rights in connection with the illegal entry of his office, and Ehrlichman was charged in addition with making false statements to the FBI and the grand jury about the case. The grand jury hearing evidence in the Watergate case concluded that President Nixon had been a participant in the cover-up. However, after extensive legal research in the office, Jaworski concluded that it would be improper to indict an incumbent President for such a crime 13 591-439 0 - 75 -2 when the House of Representatives’ Judiciary Committee had already begun a formal impeachment inquiry. He believed, in addi- tion, that such an indictment would be challenged and ultimately overturned by the Supreme Court, and that the fruitless litigation would delay the trial of the seven cover-up defendants and possibly also temporarily halt the impeachment inquiry. The grand jury then authorized the Special Prosecutor to name President Nixon as an unindicted co-conspirator in the cover-up case. Since this finding was relevant to the impeachment investigation, WSPF asked the grand jury to report to the court all of its evidence relating to the President’s alleged involvement in the cover-up, with a recommendation that Judge Sirica forward the report to the House Judiciary Committee. The grand jury did so and by order of Judge Sirica, upheld by the Court of Appeals, the report was delivered to the Committee on March 26. Discussions had been held between Committee attorneys and WSPF several months before. The prosecutors felt obligated to assist the Committee to the extent that such assistance was legally proper and would not jeopardize WSPF’s investigations. In February, with the consent of White House counsel, WSPF had provided the Com- mittee with a list of tapes and documents it had received from the White House, and in March the office supplied a list of those items requested from White House files but not received. As soon as the existence of the grand jury report became public knowledge, the President’s counsel agreed to supply the Committee with all materials that had been supplied to the Special Prosecutor, and he subsequently did so. Later in the spring, when the Committee sought access to various records under seal of the court, the Special Prosecutor on most occasions indicated his approval. WSPF’s task force heads also met on several occasions with Committee attorneys to provide relevant information. Necessary ground rules protected the secrecy of grand jury proceedings and the confidentiality of WSPF sources of informa- tion. The prosecutors suggested what witnesses the Committee should interview on what subjects, and what lines of inquiry were likely to prove fruitless for their purposes. After months of frustrating efforts to obtain grand jury and trial evidence from the White House, including recordings of Presidential conversations, Jaworski decided that he would have to resort, as his predecessor had, to judicial process. A grand jury subpoena of March 15 had resulted in the production of campaign contribution documents from White House files but had not called for Presidential tapes. At Jaworski’s request, Judge Sirica issued a trial subpoena on April 18 in the cover-up case for recordings and documents related to 64 specified Presidential conversations. Unlike the previous subpoenas, which had been issued by the grand juries in connection with their investigations, this one was issued by the court so that WSPF could 14 prepare adequately for the trial in the Watergate case, then scheduled to begin early in September. On April 30, two days before the date for compliance with the trial subpoena, the President released to the public edited transcripts of some of the recorded conversations which had been subpoenaed by both the House Committee and WSPF, claiming that “the ma- terials . . . will tell it all.” The next day, he formally refused to provide the tapes to Judge Sirica contending that some of the materials cov- ered by the subpoena were protected by executive privilege, that dis- closure would be “contrary to the public interest,” and that the sub- poena was invalid because the tapes would be inadmissible as evi- dence. His attorneys filed a motion to quash the subpoena. Jaworski informed Haig and St. Clair a few days later that im- minent argument in court by WSPF in an effort to enforce the sub- poena would require the statement that the President had been named as an unindicted co-conspirator. Jaworski offered to withdraw the subpoena, thus postponing disclosure of the President's status until later trial proceedings, if the White House supplied voluntarily 16 specified tape recordings that WSPF considered crucial. A few days later, after listening to the tapes in question, the President sent word to Jaworski that his proposed compromise was unacceptable. During ensuing litigation over the White House motion to quash the subpoena, the President's counsel asserted that the Special Prosecutor, as an employee of the executive branch, lacked authority to seek evidence from the White House by judicial process. This renewed the argument used seven months earlier to justify the dis- missal of Cox. In accordance with a promise he had made when appointed, Jaworski immediately informed the chairmen of the Senate Judiciary Committee and House Judiciary Committee of the new challenge to his independence. By resolution the following day, the Senate Committee affirmed its support of Jaworski's right to take the President to court, and urged Attorney General Saxbe to “use all reasonable and appropriate means to guarantee the independence” of the Special Prosecutor. Two days later, Saxbe promised the Com- mittee that he would support WSPF’s independence. On May 20, Judge Sirica denied the President's motion to quash and ordered him to comply with the subpoena. After the President's lawyers announced their decision to appeal this order, Jaworski asked the Supreme Court to consider the matter as soon as possible, bypassing the Court of Appeals in order to avoid unnecessary delays. The Supreme Court agreed to do so, over White House opposition. After legal briefs and oral arguments had been scheduled in an unusual summer session, the Court ruled unanimously on July 24 that the President must comply with the subpoena. While recognizing for the first time the Constitutional doctrine of executive privilege, 15 the Court held that “the generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial.” The President announced that he would comply with the Court’s ruling and with the subpoena. In the days that followed, the House Judiciary Committee con- cluded its inquiry by adopting three articles of impeachment to be reported to the full House of Representatives for its consideration. On August 5, the President released to the public transcripts of portions of recorded conversations held six days after the Watergate break-in. His accompanying statement acknowledged that in the conversations he had ordered steps taken to conceal from the FBI the involvement of White House and campaign officials, and he admitted that he had kept this evidence from his own lawyers and Congres- sional supporters. On August 9, in the face of overwhelming support for impeachment in the House and almost certain conviction in the Senate, he resigned the Presidency. The Special Prosecutor’s efforts to obtain Watergate trial evidence from President Nixon did not inhibit other WSPF investigations and prosecutions. A trial jury convicted Dwight Chapin of lying about his knowledge of campaign “dirty tricks.” Gordon Liddy, one of the men convicted in the original Watergate break-in case, was indicted, tried, and convicted of contempt of Congress, for his refusal to testify before a House committee. The ITT investigations resulted in two con- victions : former Attorney General Richard Kleindienst pleaded guilty to giving inaccurate testimony to a Senate Committee, and Lieutenant Governor Ed Reinecke of California, who chose to stand trial, was convicted of perjury. Investigations of campaign contribution activity also continued during the spring and summer of 1974. Diamond International Corporation, Northrop Corporation, Lehigh Valley Cooperative Farmers, and National By-Products, Inc., all entered guilty pleas to making illegal campaign contributions. The principal officer of Dia- mond, two officers of Lehigh Valley, and two officers of Northrop pleaded guilty to similar charges. American Ship Building Company and its chairman George Steinbrenner were indicted for making illegal contributions, and Steinbrenner was also charged with con- spiracy and obstruction of the grand jury’s inquiry. Another official of American Ship Building acknowledged guilt as an accessory to an illegal contribution. A jury in New York found John Mitchell and Maurice Stans, two former members of President Nixon’s cabinet, not guilty of charges connected with contributions by financier Robert Vesco, and a federal judge in Minnesota acquitted the First Interoceanic Corporation and Dwayne Andreas of illegal contribution charges. The investigation into the campaign activities of Associated Milk Producers, Inc. (AMPI) resulted in several prosecutions. Former 16 AMPI officials Harold Nelson and David Parr pleaded guilty to conspiracy charges, with Nelson also acknowledging his part in a conspiracy to make an illegal payment to a public official. AMPI entered a guilty plea to charges of conspiracy and making five cor- porate contributions. The perjury charge against attorney Jake Jacobsen had been dismissed on technical grounds, but he pleaded guilty to a later charge of making illegal payments to a public official. The same indictment charged former Treasury Secretary John Connally with accepting such payments and with conspiracy and perjury. Later in the summer of 1974, Norman Sherman and John Valentine pleaded guilty to aiding and abetting unlawful AMPI contributions. While WSPF’s subpoena of White House tapes for the Watergate trial was pending before Judge Sirica, Judge Gerhard Gesell was hear- ing pretrial motions in the Fielding break-in case. Because of doubts about the legal effect of a previous grant of immunity to defendant Felipe DeDiego, the judge dismissed the charges against him. Judge Gesell also ruled against a defense argument that the entry into Dr. Fielding’s office had been justified by considerations of national security. Shortly after this ruling, one of the defendants, former White House aide Charles Colson, pleaded guilty to obstructing justice in the federal criminal case brought against Daniel Ellsberg after his public release of the Pentagon Papers. Colson admitted that White House efforts to discredit Ellsberg by public release of deroga- tory information were intended to interfere with his fair trial. As a result of this plea and his agreement to disclose what he knew about matters under the Special Prosecutor’s jurisdiction, the charges against Colson in the Watergate case and the original charges against him in the Fielding break-in case were dropped. The break-in trial began June 26 and ended July 12 with the convictions of the four remaining defendants — Bernard Barker, John Ehrlichman, Gordon Liddy, and Eugenio Martinez. AUGUST 9, 1 974-OCTO BER 1, 1975 The Nixon resignation presented WSPF with an immediate question: should the former President be prosecuted as a private citizen for whatever crimes he might have committed while in office? Jaworski, after announcing that he had reached no agreement or understanding with anyone about the former President’s possible prosecution, said he intended to defer a decision on whether to seek any indictments. The WSPF staff needed time to analyze all the relevant factors. But, on September 8, before the Special Prosecutor had decided whether to seek an indictment, President Ford pardoned his predecessor for any and all Federal crimes he might have com- mitted while President. 17 President Nixon's resignation also raised questions of access to the White House papers and recordings which WSPF needed in its investigations of possible criminal conduct during his Administration. President Ford's counsel assured WSPF on August 15 that the former President's files would be kept in White House custody until their ownership had been resolved. However, when he announced the pardon September 8, President Ford also revealed an agreement — made without any prior notice to the Special Prosecutor — giving the former President control over access to the files, which would be kept in a Government installation near the Nixon residence in California. President Ford based his position on a Justice Department opinion that the former President was the legal owner of the materials, and on his belief that their physical security could be assured by main- taining them in Government custody. The Special Prosecutor dis- agreed with the President's view of the situation and suggested that he might challenge the September 8 agreement in court. Resulting discussions among WSPF, Justice Department, and White House officials produced an agreement whereby the Nixon files would remain in White House custody pending review of the question of WSPF's access to them. On October 17, the former President filed a lawsuit to compel enforcement of the September 8 agreement giving him control over access to his White House files. The court issued a temporary re- straining order prohibiting access to the materials without the consent of attorneys for both the former President and President Ford. On November 9, based on President Ford's determination that the needs of justice required direct access to the Nixon files by the Special Prosecutor's office, the President's counsel, along with the directors of the General Services Administration and the Secret Service, agreed in writing with the Special Prosecutor on procedures for direct access by WSPF. The Special Prosecutor’s office then began discussions with former President Nixon's counsel to obtain his consent to this agreement. Because of the needs of all parties to prepare adequately for trial, the Watergate cover-up trial was postponed from September 9 to October 1 pursuant to a suggestion from the Court of Appeals to Judge Sirica. Doubts about the effect on the prosecution’s case of grants of immunity to defendant Gordon Strachan led to his severance from the trial. 5 On October 12, shortly after the jury had been se- questered, Special Prosecutor Jaworski announced that he would resign as of October 26, stating that the bulk of the office's work had been completed. He also announced that he had decided not to challenge President Ford's pardon of former President Nixon in 5 Charges against Strachan were dismissed on the Special Prosecutor's motion March 10, 1975. 18 the courts because he did not believe such a challenge would have any chance of prevailing. Thus WSPF ended its consideration of the former President as a possible defendant. Jaworski was succeeded October 26 by Henry S. Ruth, Jr., who had served as deputy to both of the previous Special Prosecutors. During the months following President Nixon's resignation, WSPF obtained additional indictments and convictions. George Stein- brenner and the American Ship Building Company pleaded guilty to charges of conspiracy and making an illegal campaign contribution, and “DKI for '74/' a committee supporting the re-election of Senator Daniel Inouye, pleaded guilty to failing to report a contribution received from Steinbrenner. Guilty pleas for illegal contributions were entered by LBC&W, Inc. and its principal officer, Greyhound Cor- poration, Ashland Oil, Inc., Ratrie, Robbins, and Schweitzer, Inc. and its principal officers, and the principal officer of HMS Electric Corporation. Tim Babcock, an executive of Occidental Petroleum, Inc. and formerly Governor of Montana, pleaded guilty to making a campaign contribution in another person's name. Oklahoma lawyer Stuart Russell and Minnesota lawyer Jack Chestnut were both in- dicted in connection with milk-producer contribution activities. Jack Gleason and Harry Dent, former White House aides, pleaded guilty to violating the Federal Corrupt Practices Act in their fund-raising for the 1970 Congressional elections. Edward Morgan, a former Dep- uty Counsel in the White House, pleaded guilty to conspiracy to defraud the Government in connection with an income tax deduction taken by former President Nixon. Most of these actions occurred as the Watergate cover-up trial was taking place during the autumn of 1974 in Judge Sirica's court- room. Efforts to obtain former President Nixon's testimony at the trial were frustrated when three court-appointed physicians reported that his serious illness prevented his testimony for several months. After a three-month trial, defendants Ehrlichman, Haldeman, Mardian and Mitchell were found guilty by the jury, and defendant Parkinson was acquitted. Early in 1975, WSPF's staff began a steady reduction as investi- gations and prosecutions were completed, but office business con- tinued through the spring and summer. Los Angeles lawyer Frank DeMarco and Chicago book dealer and appraiser Ralph Newman were indicted on conspiracy and other charges related to their roles in the preparation of former President Nixon's income tax returns. Former Secretary of Commerce Maurice Stans, who had headed the Finance Committee to Re-Elect the President, pleaded guilty to three violations of the Federal Election Campaign Act's reporting require- ments and to two violations of accepting corporate contributions. Former Treasury Secretary Connally was found not guilty by a jury on charges of accepting illegal payments, and the remaining charges 19 against him were dismissed. A New York City jury convicted Jack Chestnut of a felony for aiding and abetting an illegal milk-producer contribution 6 and a San Antonio, Texas, jury convicted Stuart Russell of three felonies for conspiracy and aiding and abetting other dairy industry contributions. Former Congressman Wendell Wyatt pleaded guilty to a reporting violation under the Federal Election Campaign Act. Discussions with the former President’s counsel about WSPF access to Nixon Administration tapes and documents resulted in an understanding that permitted the prosecutors to obtain relevant evidence. Beginning in February 1975, with an index prepared by Government archivists, the prosecutors designated the particular files they wanted searched for documents and recordings related to specified investigations. The file searches were conducted by archivists under the supervision of President Ford’s counsel; former President Nixon’s attorney reviewed all requested recordings of Presidential conversations and provided copies of those which might be pertinent to WSPF’s investigations. Between February and June, WSPF obtained numerous documents and tapes generated in the White House during the Nixon Administration. On June 23 and 24, after negotiations with the former President’s counsel, several WSPF attorneys and two members of the grand jury took Nixon’s testimony under oath near his California residence. A considerable portion of the prosecutors’ work in 1975 involved the numerous appeals that followed convictions at trial and other court actions. Matters on appeal included the convictions in the 1973 Watergate trial, the later Watergate cover-up trial, the Fielding break-in trial, the trials of Dwight Chapin, Ed Reinecke, and Stuart Russell, and the sentence imposed on Tim Babcock. The prosecutors unsuccessfully sought reversal of a court order moving the trials of Frank DeMarco and Ralph Newman to two separate cities and intervened in litigation to oppose Mr. Nixon’s contention that the Presidential Recordings and Materials Preservation Act of 1974 deprived him unconstitutionally of his Presidential papers. The appellate process in some cases is expected to extend at least through 1976. The grand juries which had heard evidence obtained by WSPF were dismissed when their terms expired. The first, originally empaneled on June 5, 1972, and extended by legislation was dismissed on December 4, 1974. After having sat for the standard 18-month term, the second was dismissed February 12, 1975, and the third, July 3, 1975. 6 After the WSPF investigation and grand jury indictment, the office of the United States Attorney for the Southern District of New York conducted the trial at WSPF’s request. 20 Policies and Procedures for Investigation and Prosecution BEGINNING INVESTIGATIONS The Special Prosecutor's new charter covered a number of matters already under investigation by other agencies when Archibald Cox took office in May 1973. The U.S. Attorney's office for the District of Columbia had been handling the Watergate break-in case and the cover-up allegations. The Fielding break-in had come to its attention in the course of that inquiry, as had possible violations of campaign financing and reporting laws which it had referred to the Justice Department's Criminal Division. That Division had also begun inquiries into possible perjury at the Senate confirmation hearings of Richard Kleindienst to be Attorney General. The hearings had been reopened earlier to explore the possible relationship between the alleged commitment of International Telephone and Telegraph Corporation to help finance the 1972 Republican convention and the Justice Department's settlement of an antitrust suit against the corporation. And a Federal grand jury in the Middle District of Florida had indicted Donald Segretti on May 4 for criminal acts in his “dirty tricks” operation. The creation of WSPF centralized the investigation of these related allegations, many of which involved the same individuals, into a unified single agency. However, the Special Prosecutor realized that an undetermined volume of matters not yet investigated would also fall within WSPF's jurisdiction. Thus, the office organization developed into five task forces and the investigative category of each was sufficiently broad to include assumption of existing investigations and categories of responsibility in the anticipated general areas of inquiry. Each task force began its work by giving attention to the particular matters it had been created to investigate. But as time passed and additional possible violations of law came to the office's attention most of the task forces undertook new inquiries, which in most cases bore some relation to the matters they had been estab- lished originally to investigate. 21 The task force initially assigned to look into the Fielding break-in, for example, eventually examined numerous allegations against the “Plumbers” and other White House staff for illegal activities in gen- erating electronic surveillance and IRS harassment of many citizens. In 1974, partly because it had been investigating possible violations of law relating to the Internal Revenue Service, it was assigned to look into possible violations in connection with President Nixon’s taxes. The “Dirty Tricks” Task Force, initially assigned the Segretti case, eventually investigated many allegations of similar conduct in connection with the 1972 campaigns of both Republican and Democratic candidates. The Campaign Contributions Task Force began its inquiries with a series of allegations about illegal corporate contributions and quid pro quo relationships between contributions and Administration actions, and ultimately came to investigate hundreds of such allegations. It also undertook the investigation of charges relating to the campaign activities of Associated Milk Producers, Inc. The ITT investigation, which had begun by focusing on the antitrust settlement and possible perjury at the Kleindienst hearings, eventually included other allegations relating to ITT, such as the Securities and Exchange Commission’s handling of an investi- gation of the corporation and an Internal Revenue Service ruling on the merger of ITT and another corporation. The only task force whose initial responsibilities were not enlarged later was the one handling the Watergate cover-up case, although its work came to include inquiries into some matters ancillary to that case, such as the 18%- minute gap in one of the White House tapes. The information with which WSPF began its investigations came from many sources : the original prosecutors’ summary memorandum, grand jury and trial testimony, FBI investigative reports, Congres- sional hearing transcripts, depositions in civil suits, and newspaper and magazine articles. How much information each task force received at its start or at the start of any later investigation depended on how far investigations by others had progressed; a few matters were well developed by the time WSPF began its work, while many others were unsubstantiated charges. The Watergate cover-up case had progressed substantially by the time WSPF took it over. The Assistant U.S. Attorneys who had originally handled the matter worked with WSPF attorneys on the investigation and briefed Cox and his staff on their findings. At Cox’s request, their files were moved into the Special Prosecutor’s office. In its dealings with the original prosecutors, WSPF was faced with two conflicting needs: to obtain all the information developed by their investigation, as well as ensure its aggressive continuity, and at the same time to avoid any appearance that the Special Prosecutor’s investigation was dependent upon theirs, or limited merely to reviewing their work. The conflict was resolved when the 22 original investigators withdrew from the investigation on June 29 and returned to the U.S. Attorney’s office. During the 1-month transition period, WSPF personnel had sat in on their meetings with witnesses and attorneys and their presentations to the grand jury, and all decisions in the Watergate investigation had been submitted to Cox for his approval. In contrast to the Watergate Task Force, which took over re- sponsibility after substantial investigative work had been done, the task force concerned with campaign financing began with about 70 different matters that appeared suspicious but about which little was known. To an extent greater than in the other task forces, its staff had to make difficult choices about which investigations should be given priority. The possible illegal acts fell into two broad cate- gories: (a) campaign law violations resulting from illegal contributions by corporations and unions, and failure to comply with contribution reporting requirements; and (b) bribery and other violations grouped into a so-called quid pro quo category, i.e., allegations of a dependent relationship between contributions and Government decisions by the Administration. The campaign law allegations had more substance and more initial evidence with which to begin. In addition, since investiga- tion of these would commence with the larger contributions, they also would seem to possess the greater potential for a quid pro quo relationship. Accordingly, the campaign financing task force focused originally on many political contributions shown on various available lists of contributors. The task force attorneys realized that few such investi- gations had been successful in the past and felt that time demands dictated a course that would generate witness cooperation in order to break the barrier of prior witness silence. They also knew that locating the source of funds that large organizations used for contribu- tions might be an impossible task. The Special Prosecutor soon an- nounced his policy to afford prosecutorial consideration in the form of reduced charges against those illegal contributors who volunteered information to WSPF. The subsequent early disclosure by several corporations that they had made such contributions, prompted in part by their awareness that such activity was being investigated, helped the task force in its subsequent dealings with witnesses who realized that full-scale investigations were actually in progress. Eventually the task force was able to investigate several hundred different allegations relating to campaign financing, including quid pro quo matters, although most of the inquiries failed to develop evidence that would warrant criminal charges. Sometimes facts obtained by WSPF in the course of its own in- vestigations or from other sources would point to the possibility of criminal conduct in areas either outside WSPF's jurisdiction or periph- eral to its chief concerns. The Special Prosecutor’s charter gave him 23 broad jurisdiction to investigate and prosecute “all offenses arising out of the 1972 Presidential election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility, allega- tions involving the President, members of the White House staff, or Presidential appointees,” and other matters. But for WSPF to investigate every allegation falling within those terms would have spread the office’s resources too thinly to achieve significant results, and it seemed unnecessary for WSPF to look into matters which established law-enforcement agencies could handle without apparent risk of the higher-level interference which had led to the Special Prosecutor’s appointment. Accordingly, some relatively routine matters were referred by mutual agreement to the Criminal Division of the Justice Department, the Internal Revenue Service, or other agencies, after initial inquiries had shown that there was no reason, other than a literal reading of the Special Prosecutor’s charter, for WSPF to handle them. After an inquiry into the role the FBI had played in the Watergate investigation prior to his appointment, and in order to take advantage of the Bureau’s nationwide organization and facilities, Cox decided to request the continued assistance of the Bureau agents who had worked on the Watergate case. A decision not to establish his own investigative staff was made after Cox had determined that the FBI agents doing the day-to-day work in the Watergate case had appar- ently done conscientious jobs. The Special Prosecutor agreed with the Attorney General that the WSPF requests for investigative help in all task force areas would be sent directly to the FBI and the Bureau reports would come directly to WSPF, bypassing the Attorney Gen- eral’s office. Although the Bureau was not involved in some of the investigations WSPF conducted, and played a small part in others, its work in still others was extensive, involving in the aggregate 58 of its 59 field offices in the United States and several of its “legal attache” offices overseas. Some investigative help also came from the Internal Revenue Service, which audited financial records and assigned agents to work with WSPF, primarily on campaign contributions matters. At the outset, arrangements were made for the Justice Department to bring to WSPF’s attention any information it obtained that might bear on matters under WSPF’s jurisdiction. Later, appropriate ar- rangements for disclosure of tax information were made with IRS in connection with campaign financing activities. The Senate Select Committee made available some of the information its staff had ob- tained except that received under grants of immunity from prosecu- tion and testimony given in exceutive sessions of the Committee. Individual Members of Congress provided information from time to time as it was developed in investigations by their staffs or committees. In addition to these official sources, WSPF received numerous letters 24 and phone calls from private citizens, many of them anonymous, with information they felt bore on matters under its jurisdiction. These unsolicited “tips” ranged widely in value and all received attention, but most of them either provided no facts that could be checked or provided facts which, when checked, left no reason to believe a criminal offense had been committed. People with actual knowledge of matters under investigation usually had to be invited to tell the prosecutors what they knew; not surprisingly, many of those who knew enough to provide useful information and realized the value of their knowledge were unwilling to come forward because of their own possible involve- ment in criminal or otherwise questionable activities, or because they distrusted the prosecutors 7 motives. THE INVESTIGATIVE PROCESS In conducting its investigations, WSPF used most of the ap- proaches and techniques commonly used in Federal investigations of “white-collar” and organized crime. These kinds of crime, unlike the “street crimes” which receive more public and official attention, are effectively invisible. They involve conspiracies whose facts are known only to their participants, all of whom have good reasons to maintain secrecy; and their individual victims, if any, usually do not realize that they have been victimized. Thus, the information that investiga- tors and prosecutors need in such cases must usually come from people who were themselves involved in the criminal activities under inquiry. Generally this information can come from only three possible sources: the statements of insiders or participants who for some reason are willing to disclose their knowledge, documents which corroborate such statements or provide further information, and the fruits of surveil- lance, including court-authorized electronic eavesdropping. The first of these sources is especially important because it often leads to the other two. Documents have to be identified, or their meaning ex- plained, by witnesses who must be persuaded to be helpful. Surveil- lance, of course, can be undertaken only when the investigator knows what or whom to watch, and he can normally learn this only from wit- nesses or documents; electronic surveillance requires a warrant which must be based on such information. As an additional characteristic in “white-collar” investigations of Government officials, corporate officers, and others highly placed in organizations, the subjects frequently can “track” the progress of the inquiry. For example, corporate or agency employees interviewed by prosecutors are sometimes accompanied by lawyers who represent their employers and whose presence may therefore inhibit the witness- es from being cooperative or truthful. In other cases, such employees may report back to their supervisors on the interviews. These condi- 25 tions make it easier for the officials of any organization to tailor their own accounts of events to what they know the prosecutors know, and to conceal criminal conduct more effectively if they are so inclined. The need for information from “insiders” and the subjects’ ability to keep track of the investigations were elements which WSPF cases had in common with the “white-collar” and organized crime cases other Federal prosecutors handle. But WSPF’s investigations were also affected by conditions that are not ordinarily as significant, if they appear at all, in other cases involving “white-collar” crime. — Much of the evidence needed for investigations and prosecutions was held by the White House and proved exceedingly difficult to obtain. Tapes and documents relating to Presidential conversations were obtained only after extensive litigation, and production of other documents was delayed and uncertain. As a result, in the Watergate investigation the prosecutors initially were forced to unravel con- flicting statements of witnesses to a greater extent than they would have otherwise, and to devote considerable time to litigation over tape recordings. In other investigations, difficulties in obtaining evidence from the White House delayed the full examination of such evidence until relatively late in WSPF’s lifetime. Had such evidence been available sooner, some investigations might have been closed earlier and others might have resulted in the filing of additional charges. On the other hand, public attention to WSPF’s efforts to obtain documents might have made their wholesale destruction less likely. And, of course, the tape recordings of Presidential conversa- tions, when they were finally obtained, were extraordinarily valuable as evidence corroborating what witnesses had told the prosecutors. — The public importance of most of the matters WSPF investi- gated meant that others, notably committees of Congress and plain- tiffs in civil suits, had interests as strong and legitimate as WSPF’s in uncovering the same facts for their own different purposes. Although other criminal investigators and prosecutors, both State and Federal, deferred to WSPF in cases where they had been looking into the same matters, this kind of deference could not be expected of Congressional committees and private litigants, whose purposes might be harmed by delaying their own inquiries. In one respect, these parallel inquiries were helpful, as they provided valuable information to the prosecutors, especially as WSPF’s work was beginning. In other respects, they may have unavoidably hindered the prosecutors’ inquiries by inhibiting some witnesses from telling the prosecutors what they knew. Prior public testimony of key witnesses may have helped other witnesses and suspects fabricate their own versions of events. Some people may have feared that disclosures to WSPF would lead to their being con- tacted by other investigators. People who had testified in self-serving ways in other forums may have been inhibited from giving WSPF more accurate information because of their prior statements. And the credibility of prosecution witnesses at trial could sometimes be chal- lenged by pointing to inconsistencies in their statements to other investigators. —The interest of the news media in WSPF’s work and the cases it produced created potential problems. Some witnesses may have been reluctant to provide information for fear that they would find them- selves testifying in a celebrated trial or portrayed in the press as having been involved in a major scandal; their chances of remaining anony- mous were considerably less than those of most witnesses in more traditional investigations. Furthermore, press attention to WSPF’s work created ever-present dangers that errors in the conduct of in- vestigations, including “leaks” of information, might be exploited by people who wanted to halt WSPF’s work. There was the additional and unusual problem of disclosures by people associated with witnesses and potential defendants, for the purpose of generating publicity for tactical advantage or to bring public pressure on WSPF to take a particular action. However, publicity may also have worked to WSPF’s advantage insofar as it may have influenced some witnesses to appear cooperative by letting the prosecutors interview them, furnishing office calendars and similar records, and testifying before the grand jury. While at times cooperation was more apparent then real, the access it provided to such people, whose hostility otherwise might have en- gendered a lack of cooperation, did contribute to the resolution of matters being investigated. — Unlike most prosecuting agencies, WSPF required continuous public support for its work. Political pressures had led to the creation of the office, and other political pressures could destroy it. Its investi- gations jeopardized some of the most powerful people in the country, who could be expected to try to protect themselves and their associates by publicly challenging and encouraging others to challenge WSPF’s impartiality and the motives of the people who were providing in- formation to the prosecutors. For example, the credibility of John Dean, one of the most important witnesses in the Watergate cover-up case, was attacked publicly by high officials during the course of his cooperation with WSPF. The prospect of such denunciation, or simply of incurring the hostility of such powerful people, may have affected other witnesses’ decisions about telling the prosecutors what they knew. The need to retain public support probably made WSPF more cau- tious and restrained in its methods than a prosecuting agency would normally be in an investigation. For example, WSPF never used “planted” informants or electronic surveillance, although such tech- niques, often used in “white-collar” and organized crime investigations, might have been productive on a few occasions. The use of such tech- niques, though legally proper, might have damaged WSPF’s credibility with the public whose support it needed, since they were at least 27 superficially comparable with the similar techniques used illegally in the criminal conspiracies the office was investigating. As noted above, apart from the significant differences dictated by these unique circumstances, WSPF conducted its investigations in ways similar to those used by Federal prosecutors in “white-collar” and organized crime cases. Because of the large numbers of people involved and the complexity of the cases, this process is usually far more laborious and time-consuming than the investigation of most other types of crime. Thus, while experience, instinct, and luck play a part, such investigations are most often characterized by careful planning, ongoing strategic decisions, persistence, attention to detail, the amassing of large quantities of information, and the investigators’ ability to obtain information from people who often have an interest in withholding it. The way in which witnesses are contacted, and their cooperation is sought and maintained, becomes an important factor in such cases. WSPF contacts with witnesses, as in most Federal investigations, occurred in three basic settings: interviews by agents of the FBI pursuant to WSPF requests for assistance, interviews by attorneys in WSPF’s offices, and grand jury appearances. Which of these vehicles was used in any particular instance depended on a variety of possible considerations. When a bare allegation was received, showing a possible violation of criminal law but lacking specifics, the FBI was often asked to make initial inquiries through the appropriate field office to obtain further details; its findings would be used in deciding whether to continue the investigation. The FBI was also asked to pursue leads arising from witnesses’ statements to the prosecutors or the grand jury, and to seek corroboration of material facts supplied by some witnesses. For example, agents checked telephone, hotel, and airline records to learn whether they supported witnesses’ accounts of phone calls and travel. In some cases, the FBI was also asked to provide investigative help between the time of indictment and trial, when prosecutors cannot use the grand jury process for investigative purposes. In some nationwide investigations, such as that of dairy industry campaign activities, the initial information available strongly sug- gested that criminal activity had occurred and that the participants were endeavoring to prevent discovery of the full facts. It was impor- tant that such inquiries be centrally conducted, so that each person contacting witnesses would be as fully informed as possible about every document, every witness’ prior statements, and the attitudes and propensities of each potential witness. Here, too, immediate follow-up and selective use of the grand jury can become crucial. In such situations, prosecutors normally assume the interrogator’s role, with only selective use of another law enforcement agency such as the FBI. It is important for the prosecutor, and perhaps ultimately the 28 grand jury, to hear witnesses directly and question them with knowl- edge of all information already available. This contrasts with the normal FBI procedure of having witnesses interviewed by agents stationed in the field offices covering the respective areas where they reside. In addition, the FBI lacks the subpoena power available to the prosecutor through the grand jury. Accordingly, in some of the nation- wide inquiries WSPF attorneys interviewed most of the witnesses them- selves rather than asking the FBI to do so. In a few instances, most notably the Watergate investigation and the inquiry into the 18% minute tape gap, where most witnesses resided in the Washington area, the same group of FBI agents worked continuously and closely with WSPF attorneys who used all available settings for questioning witnesses. When the prosecutors learned, from the FBI or other sources, facts indicating that a witness might have information relevant to an investigation, they commonly interviewed such a witness in WSPF's offices to determine whether the facts warranted further investigation. Office interviews were also used in pursuit of investigative leads which seemed likely to have value in eventual prosecutions. Another func- tion of office interviews was in preparing cooperative witnesses for grand jury or trial testimony. Office interviews also had value in letting some uncooperative witnesses know how much the prosecutors had learned about their activities; this knowdedge might affect their attitude towards cooperation. When appropriate, people interviewed by WSPF attorneys were informed of their rights in connection with the interview — that they were not required to participate in the interview 7 , that they could end the conversation at any time, and that they could consult a lawyer and bring him with them (as most did). These warnings resemble those required by the Supreme Court's decision in Miranda v. Arizona when the police arrest someone suspected of a crime. While the law only requires that such warnings be given in certain situations, the prose- cutors generally tried to err on the side of caution by giving the warnings even when not legally required to do so. When an investiga- tion had progressed substantially, the warnings were almost always given to each witness. A witness was called to appear before the grand jury if the prose- cutors believed that such an appearance was the most reliable method of obtaining, or attempting to obtain, truthful testimony. Apart from the basic purpose of bringing relevant evidence to the grand jury's attention, grand jury appearances produced a verbatim record of the witness' sworn testimony which could serve as a basis for further inquiries or could be used, if necessary, to challenge any later incon- sistent statement. In addition, since deliberately false testimony could lead to perjury charges, grand jury witnesses had a strong in- centive to be truthful. 29 591-439 0 - 75 -3 A grand jury appearance also gave the prosecutors a chance to see what kind of impression a witness made on a group of citizens similar to those who would serve on a trial jury — his demeanor, nervousness, certainty or uncertainty of recollection, and general credibility. Although most grand jury witnesses appeared at the pros- ecutor's request or under subpoena, others did so at their own request. Any potential defendant who wanted to give the grand jury his version of the facts was invited to do so, whether or not the prosecutors would have called for his testimony on their own. When appropriate, before giving testimony, grand jury witnesses were advised of their rights — to decline to answer any question on grounds of self -incrimination, to have an attorney, and to consult with him outside the grand jury room at any time during the question- ing. As in all Federal grand jury proceedings, witnesses were not entitled to have their lawyers physically present in the grand jury room while testifying. Any grand jury witness who informed the prosecutors that he would invoke his Fifth Amendment privilege against self-incrimination regarding all substantive questions was excused from testifying, provided that his lawyer informed the prosecutors in writing of his position. The grand jury would not be informed of the witness' intent to assert his privilege unless its mem- bers specifically insisted upon his appearance; this happened rarely. The prosecutors worked with some witnesses in all three ways — first having an FBI agent interview them, later interviewing them in WSPF's offices, then questioning them under oath before a grand jury — and with other witnesses in only one or two. Any such contacts, in any investigation, involve a danger of letting the witness, partic- ularly a hostile one, learn what the prosecutors already know and what more they want to find out. Thus a witness may obtain more information in an interview or grand jury appearance than he pro- vides. If he is a potential defendant or wants to protect one, such information can help him fashion a version of the facts which will sidetrack the prosecutors' investigation without being so implausible as to raise suspicions. For example, in an office interview the prose- cutors might ask a witness what had happened at a particular meeting he had attended. Realizing that they knew of that meeting, the witness could feign forgetfulness and avoid telling them anything of value. After the interview, he would be able to “consult his records," and perhaps also consult others who had attended the same meeting, and concoct an account that would work to his or their advantage. Sometimes a witness would decline a request to be interviewed or to testify before the grand jury because he believed the information he might provide could be used as evidence against him in a later prosecution. Such a situation, which prosecutors commonly face, requires a determination whether to give assurances to the witness in return for his cooperation. Some witnesses were satisfied merely 30 to know that the prosecutors did not view them as potential defendants and had no present reason to expect to charge them. Others insisted on being assured that their statements in office interviews would not be repeated later as direct evidence against them, although the witnesses understood that investigation of others based on the office statements might result in the obtaining of evidence that could be used against the cooperating witness. In some instances, witnesses insisted on what amounted to informal use immunity — a promise that neither their statements nor evidence obtained as a result of them would be used against them. And in rare instances, witnesses would insist that WSPF apply to the District Court for a formal grant of use immunity. About 30 of the hundreds of witnesses who were interviewed by the prosecutors or testified before the grand jury received complete use immunity, either formal or informal, and only a few of them might have been prosecuted otherwise. The prosecutors tried to avoid giving such immunity when they could not be sure how their cases would develop. If the assurances given were too broad, a valid future prosecution might be foreclosed; if they were not broad enough, valuable information might not be obtained from the witnesses. In many instances, the prosecutors had little basis to choose which of these risks to run. In order to determine as accurately as possible the appropriateness of making any commitment to a witness who requested one, the prosecutors often followed the common practice of asking the witness’ counsel to make an offer of proof — a statement in broad hypothetical terms of what the witness would be able to tell them. This statement gave them a better basis for deciding whether the witness’ information was important enough to their overall investigation to justify whatever assurances he was seeking. Another reason for the prosecutors’ conservative approach to immunity, particularly as to important Government agency actions, was the irrelevance of the practice, often followed in organized crime cases, of using a person’s rank in an organization as a principal stand- ard in deciding whether to immunize him — for example, giving immunity to street-level participants in criminal activity in order to obtain their testimony against the major figures. This practice, which has many variations in individual cases, makes sense in dealing with members of continuing hierarchial organizations whose major activity is crime. But a “low level” employee in an organization like the White House staff is a relative concept — anyone in such a position has a great deal of power. It was felt that they should take some responsibilit}Hor their actions; “following orders” should not be an absolute defense for criminal conduct. When a witness seeking immunity appeared to bear major respon- sibility for criminal conduct, and the prosecutors believed they had enough evidence to obtain his conviction, they rejected the choice of 31 immunity and instead pursued a course of plea bargaining. This involved telling the witness the entire range of charges he might some day face, and offering to reduce this total range in return for his plea of guilty to an appropriate charge and cooperation with the inves- tigators. This course would provide the prosecutors with the guilty man’s future testimony and make him more credible as a trial witness against other defendants than he would be as a man who had traded his testimony for complete immumity from his own guilt. Moreover, plea bargaining is probably a better basis than a grant of immunity for assuring that a witness does not fabricate information he thinks the prosecutors “want to hear” in his offer of proof, since he would expect the offer to result only in a negotiated guilty plea rather than in his freedom. Most important, it avoided the unfairness of per- mitting one guilty of serious misconduct to avoid all liability. The use of plea bargaining rather than immunity involved delays in some investigations — instead of immunizing a witness and getting his immediate cooperation, the prosecutors had to negotiate with his counsel over an appropriate charge to which he would plead guilty before his testimony would become available. But the result of the practice was that no one whom the prosecutors could prove had major responsibility for criminal conduct was immunized on WSPF’s initiative. In giving assurance to witnesses in return for their cooperation, whether those assurances were limited to the nonuse of their actual statements as evidence against them, or as broad as a formal or informal grant of immunity, or embodied in a plea agreement, the prosecutors always reserved the right to cancel the agreement or to bring charges of perjury or false statements to criminal investigators if a witness lied to them. While witnesses often failed to provide as much evidence as the prosecutors might have expected from them, none were charged with such offenses. When an investigation resulted in a finding that no criminal activities could be detected, it was closed without the filing of a formal memorandum. This occurred most often in the campaign contri- butions area where by far the largest number of WSPF’s investiga- tions occurred and where the prosecutors started with the least information. Where the initial inquiry showed possible criminal activity but little promise of successful identification of the particular individuals involved, closing was also at the task force level, some- times with the filing of a memorandum indicating the reasons for the closing. Copies of such memoranda were sent to the Deputy Special Prosecutor, through whom all investigative requests to other agencies had been routed. In task forces that handled relatively few separate investigations, matters showing little promise were normally closed through consultation with the task force leader, the Deputy Special Prosecutor, and on many occasions the Special Prosecutor. No major 32 matter that had produced significant evidence of criminality short of prosecution potential was closed without the approval of the Special Prosecutor or his Deputy. A closing was never final; the investigation could always be reopened (subject to the statute of limitations) if new evidence turned up. But in practice this rarely occurred. The day-to-day work in investigations was done within WSPF’s five task forces. Each task force leader had considerable discretion in choosing investigative techniques and strategy. Progress, priorities, and thoroughness of the task forces were monitored by the Special Prosecutor and his Deputy through regular meetings with each task force’s lawyers and other meetings with the heads of all task forces. These meetings were a means of maintaining communications among task forces, shifting manpower as needs changed, and keeping the Special Prosecutor and his Deputy informed of the course of all investigations. In the early months of WSPF’s work, it was routine for each task force to inform his colleagues in other task forces of the witnesses who were coming in to be interviewed or to appear before the grand jury, so that each investigating attorney who needed to talk with a particular witness would have a chance to do so. This kind of coordination became less frequent as time passed and the investi- gations became more distinct from one another. However, grand jury time continued to be scheduled centrally and decisions about bringing charges or accepting plea bargains were cleared with all the task forces that had been investigating activities or persons relative to the proposed course of action. People who pleaded guilty to charges and agreed to disclose to WSPF what they knew about all matters under investigation were interviewed by members of each task force to find out what they could add to the evidence that each was gathering. This coordination process involved serious problems among the task forces. Each had its own priorities; each had its demands for witness interview timing and precedence; and each relevant investigating group had its own views of the propriety of a proposed immunity, a proposed plea of guilty or a proposed initial criminal charge against a subject. If an investigation led to findings that might form the basis of criminal charges against anyone, the prosecutors continued their inquiries with a view to shaping the case they expected to prove against such an individual. This involved obtaining the most accurate, complete, and detailed information they could get on the events which constituted the crime, using counsel’s office for legal research to determine what charges the evidence most clearly described, and making a charging decision in consultation with others in the office and with the Special Prosecutor’s approval. 33 CHARGING AND DISPOSING OF CASES Fulfilling the prosecutor's obligation to investigate all eases fully and fairly requires not only thorough investigation and analysis of the facts, but also the exercise of care and judgment in deciding what, if any, criminal charges should be brought. In deciding whether to bring charges, prosecutors often take a great many factors into account. While there were similarities in the processes and criteria by which the various WSPF task forces made their recommendations and the Special Prosecutor made his decisions, there were also substantial and important differences in the ways WSPF handled each of the cases within its jurisdiction. Among other variables, these differences re- sulted from the unique facts of each case, the varying laws applicable to the conduct in question, the nature and quality of the evidence available to the prosecution, and the differing circumstances of each potential defendant. To discuss these factors fully would require the unfair disclosure of much confidential information obtained during the office's investigations. Such disclosure might seriously violate both the rights of those who were not charged with any crime and the legal and ethical obligations of prosecutors to protect the rights of the accused. Hence, it must be noted that the discussions of investigating, charging, prosecuting, and plea-bargaining practices contained in this report can in no sense be interpreted as applying fully to any single case or describing completely the way a particular case was handled by WSPF. More to the point, they cannot be considered as statements of uniform policy on the part of WSPF, the Department of Justice, or any other prosecuting entity. The initiative for criminal charges in “white-collar" cases typically comes from prosecutors rather than from victims making complaints. During and after the evidence-gathering process, the decision normally involves legal research into the applicability of particular criminal statutes to the facts and the development of a theory of the case to determine which violations are most clearly demorstrated by the evi- dence and what kind of additional evidence is required. The office review undertaken before seeking an indictment in the Fielding break- in case provides an example of this process. The evidence showed that the potential defendants had authorized, planned, and conducted a surreptitious entry into Dr. Fielding’s California office in an effort to photograph psychiatric records of Daniel Ellsberg, his former patient, who was then facing charges in connection with the disclosure of the “Pentagon Papers." This break-in, the evidence indicated, was part of a larger plan to damage Ellsberg's reputation by obtaining and releasing derogatory information about him. However, deciding on the proper charge proved no easy matter. Although these acts obviously constituted burglary, none of the Federal burglary statutes, which are aimed at protecting Federal 34 property, banks, and interstate commerce, as opposed to private premises, seemed to be applicable. Another law, prohibiting con- spiracy in the District of Columbia to commit an offense in another state, as defined by the other state’s law, required that the planned action be an offense under both District of Columbia and the other state’s law, and the burglary and trespassing statutes of California and the District of Columbia seemed too dissimilar to meet this requirement. A charge of obstructing justice was also considered. Such a charge would have been based on the theory that the break-in was part of a plan to impair Ellsberg’s right to a fair trial by spreading damaging information about him. Although one of the defendants later entered a guilty plea to this offense, WSPF decided not to rec- ommend this charge to the grand jury for several reasons. In addition to difficulties of proof as to some defendants, an obstruction charge might have put WSPF in the position of seeming to defend Ellsberg’s conduct in the course of the defendant’s trial, a position which the prosecutors felt would unnecessarily complicate their task and raise irrelevant issues. Another problem with an obstruction charge based on the known facts was the possible future consequence of inhibiting public officials from m&king statements on matters of public impor- tance when such matters were also related to judicial proceedings. The prosecutors also considered a charge of conspiring to defraud the Government on the theory that the defendants had misapplied Government funds and facilities in the anti-Ellsberg effort of which the break-in was a part. But this theory was rejected, as it would have required proof of actions other than the break-in and would have constituted an application of the conspiracy statute in an unusual way that might have been confusing. All these options involved legal or evidentiary difficulties that the prosecutors saw no reason to face, given the availability of a charge which seemed clearly applicable — conspiring to violate Dr. Fielding’s Fourth Amendment constitutional right to be free from unauthorized governmental intrusion on his premises. Proof of this charge required only a showing that the defendants had authorized, planned, and con- ducted the break-in, and that they had thereby intended and agreed to engage in conduct whose effect was to deprive Dr. Fislding of rights clearly protected by the Fourth Amendment. The choice of this charge involved considerable research on the requirements of the statute (18 U.S.C. § 241) in proving each defendant’s intent to violate the Fourth Amendment, which the prosecutors decided could be met by the evidence they would present to the jury. Another choice the prosecutors often faced in deciding what indict- ments to seek was whether to ask the grand jury to bring perjury charges against people who appeared to have testified falsely before the grand jury or other bodies, such as Congre