Watergate Prosecutor

by William H. Merrill

Overview

This is the inside story of the Watergate trials.
     Written by the ultimate insider who helped change the course of history: William Merrill was the Special Prosecutor who sent the "plumbers" to jail. Not just any plumbers, but the "Nixon plumbers," hired by the White House to "stop leaks" by any means necessary. Officially, they were the Special Investigation Unit. Unofficially, they were the "dirty tricks squad," whose illegal actions eventually caused the President to resign his office. Bill Merrill prosecuted the plumbers. Here, more than thirty years later, he reveals how he did it.
     On September 4, 1971, two burglars — later identified as E. Howard Hunt and G. Gordon Liddy — broke into the office of Lewis Fielding, a Beverly Hills psychiatrist, among whose patients was Daniel Ellsberg, a prominent antiwar activist who had recently released to the press the formerly top-secret "Pentagon Papers." On June 13, 1972, five burglars entered the offices of the Democratic National Committee, which were located in the Watergate complex in Washington,
DC. Both of these crimes were eventually traced back to the "plumbers unit," which was directed by John Ehrlichman, President Nixon's top domestic aide. As he convincingly recounts, Merrill sought the job as Assistant Special Prosecutor for one reason: to bring these criminals to justice. In addition, as this revelatory account makes clear, he pursued that goal tenaciously.
     Merrill wrote this book in 1978, but never published it. Today, at the age of 83, he is confined to a VA hospital in Michigan, the victim of a debilitating stroke.
     In 1974, Merrill was mentioned in the media almost every day during the Watergate trials. Directing a team of attorneys and assistants, he constructed cases against all of the plumbers—and he won every case. "Watergate" continues to reverberate in the American consciousness today. Revelations that the White House had planned and carried out illegal acts fundamentally rocked the nation. In his response to these unprecedented crimes, William Merrill literally changed the course of history. This is his story.
 
 

Product Details

ISBN-13:	9780870138058
Publisher:	Michigan State University Press
Publication date:	01/28/2008
Pages:	193
Product dimensions:	6.20(w) x 9.20(h) x 0.80(d)

About the Author

William Merrill served as Assistant Special Prosecutor during the Watergate trials. He grew up in an upper-class suburb of Detroit, enlisted in the U.S. Army Air Force in World War II, graduated from Dartmouth College after the war, and earned his law degree at Yale University. In 1968 he served as the Michigan state director of the campaign to elect Robert Kennedy to the Presidency.

Read an Excerpt

Watergate Prosecutor

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By William H. Merrill

Michigan State University Press

Copyright © 2008 William H. Merrill
All right reserved.
ISBN: 978-0-87013-805-8

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Chapter One

Beginning of the End for Nixon

A society in which faceless men carry out orders that no one admits the responsibility for giving. —from the trial notes of William H. Merrill

In the spring of 1973, things began coming apart at the seams for Richard Nixon. It was a time of confusion for many Americans who had given Nixon an apparently overwhelming mandate the preceding November. After only a few weeks into his new term as president, it must have seemed particularly ironic to Nixon, since his reelection appeared to have vindicated his statements that McGovern's claims about Watergate were politically motivated and without substance.

The unraveling began in March when James McCord, one of the defendants convicted of the Watergate burglary in June 1972, wrote Judge Sirica that perjury had been committed during the trial, and that the defendants had been pressured to remain silent to protect others.

In April, Patrick Grey resigned as acting director of the FBI in the face of newspaper reports that he had destroyed documents relating to the Watergate break-in.

Like the unfolding of a Greek tragedy, the public learned that two of the Watergate burglars had been involved in a break-in at the office of Daniel Ellsberg's psychiatrist in Los Angeles in September 1971. This revelation occurred near the end of Ellsberg's trial involving charges of having unauthorized possession of classified documents. The break-in at Ellsberg's psychiatrist and certain other actions by the government caused the judge in charge of the trial to conclude that Ellsberg had been denied a fair trial, and the charges against him were dismissed.

Then on April 30, H. R. Haldeman and John D. Ehrlichman, the President's top advisers, resigned, and John Dean, the President's legal counsel, was fired.

Chapter Two

Appointment as Associate Watergate Special Prosecutor

What we are involved with is an effort to ensure honest govern ment—a respect for government—the sanctity of the Constitution. —from the trial notes of William H. Merrill

During the early part of May, 1973, Congress and the press began to discuss the appointment of a special prosecutor. I was intrigued by the thought of becoming a member of the staff ; it seemed to be a once-in-a-lifetime opportunity for public service that would involve vital issues of national significance. I recognized that there also might be personal and professional advantages.

When it appeared that Archibald Cox would be appointed Special Prosecutor, I contacted Jack Miller, an old friend in Washington who had been assistant attorney general in charge of the Criminal Division of the Department of Justice in the early 1950s when I had been chief assistant United States attorney in Detroit. I asked him to recommend me to Cox. A few days later, Jack phoned and said he had talked to Cox about me. He suggested that I write if I was still interested. That same day, I sent a letter to Cox confirming my interest in becoming a member of his staff .

While I waited, I wondered if I would be making a mistake in leaving the security and certainty of the law firm of which I was a partner in return for the financial and other sacrifices that would have to be made, and the uncertainty of the outcome if I went to work for Cox. The picture of a determined president on the cover of the June 4 issue of Time, with the caption "Nixon Fights Back," added to the already troublesome feelings about what I was contemplating. But the more I thought about it, the more convinced I became that the advantages outweighed the risks.

After a few days, I phoned Cox's office to follow up on my letter. I was assured that my inquiry was being considered, and that I would hear something in due course. However, I got the impression that the office was besieged by many applicants, and that the few who were there were too overburdened in attempting to keep up with daily developments to spend much time considering staffing. I learned later that over 1,040 applications had been received. So I invented a trip to Washington on "other business" in order to discuss my application in person.

When I informed my law partners of my decision, one of them responded that he would make more money the next year than I would. I was surprised by such a comment; what was involved was too important to be measured in those terms.

On Tuesday, June 12, I met briefly with James Vorenberg and Philip Heymann, professors from Harvard Law School who had come with Cox to help him staff the office and begin the laborious investigations that followed. We talked about the activities I might become involved in, but at that time, the structure of the staff was vague and indefinite. Whatever developed, my law partner was right: my salary would be less than half of what I was earning in private practice.

Then I met Cox. The meeting was brief and rather strange in view of its purpose. Archie did not question me about my background as an assistant United States attorney, or my views on the role of a prosecutor. Rather, we discussed the importance of the principles that seemed to be at stake, particularly the concept that in our society no one is above the law. I was impressed when Archie mentioned the humbling nature of his job. He went on to say that in reading the grand jury testimony of various individuals in positions of importance and authority whom he had known and admired, he wondered what he might have done under similar circumstances. He said, "I know I would not have done anything which I knew or felt was questionable, but I wonder how I would have reacted if I had known others were involved in such conduct."

On my return to Detroit, the cab driver who was taking me to the airport said he was fed up with the Ervin Committee hearings. The committee had been in session since May 17. I was disappointed in this remark. The Special Prosecutor would need much greater public understanding and support if he were to be successful.

The next day, Vorenberg called and said Cox wanted me to join the staff, and told me they had requested an FBI clearance of me by June 10. Although the clearance had not been completed, Vorenberg phoned on June 18 and asked if I could start right away, subject to the results of the FBI investigation. I agreed to start the next Monday. My eagerness to join the Special Prosecutor's staff was to some extent influenced by the thoughts expressed in a New York Times editorial on June 17 entitled "Subverting America," which stated:

The Watergate scandal is a profoundly sinister event because, in so many of its aspects it reflects an authoritarian turn of mind and a ready willingness on the part of those at the highest levels of government to subvert democratic values and practices. Tyranny was not yet a fact, but the drift toward tyranny, toward curtailing and impairing essential freedoms, was well underway until the Watergate scandal alerted the nation to the danger.

Watergate was a series of crimes and conspiracies against individual liberty, against the democratic electoral process, and against lawful government. Only when the great majority of citizens know the full story of these crimes and conspiracies can the restorative work of reform and renewal begin.

This educational process would be one of the major responsibilities of the Watergate Special Prosecution Force.

My arrival at the office, 1425 K Street, on June 19 was delayed by a monumental traffic jam. The police had blockaded several streets due to a visit by Soviet Premier Brezhnev. Much of that first day was occupied with filling out the inevitable and sometimes incomprehensible government forms and having my picture taken for special identification papers. The indoctrination was completed when I took the oath of office as an associate Watergate special prosecutor, in which I promised "to protect and defend the Constitution of the United States of America."

Chapter Three

Determining My Role

"God grants liberty only to those who love it, and are always ready to guard it and defend it." —Daniel Webster, 1834, as quoted from the trial notes of William H. Merrill

For the first few days, I attempted to assimilate all the material on the Watergate break-in and the suspected cover-up. There were volumes of grand jury testimony, congressional committee testimony, FBI interviews, statements from witnesses, and documentary evidence—much of which was incomplete or contradictory. I was trying to understand the lengthy and detailed chronology of events, evaluate the evidence, and determine who might be witnesses and who might be defendants. By the end of the first week, I had read enough to recognize that we would be confronted with the argument that the actions we were challenging were justified on grounds of national security. I wrote a memo to Cox that suggested we begin the necessary factual and legal research to develop an appropriate response to such a defense.

There was a sense of urgency in what we were doing because of the public interest in its outcome. As a consequence, we worked long hours, oft en far into the night. The pressure was increased by the constant press coverage of continuing developments, and by the uncomfortable feeling that many reporters knew much more about the facts than we did.

Within a few days, I was impressed because our offices were completely furnished with draperies. It was not my experience that government offices were equipped so nicely or so quickly, so I assumed that this was in some way a mark of the prestige of the Special Prosecutor.

A few days later, I was visited by an FBI agent who said he was our security officer. He informed me that the drapes were lined with a special sound-deadening material to prevent anyone from picking up conversations from outside the office by using a directional microphone. He also told me to keep the venetian blinds closed to obstruct the use of high-powered photography to read documents on our desks.

I was duly impressed. I recognized that these and other security measures were an effort to establish the credibility and professionalism of the Special Prosecutor's Office, and to prevent things like the public disclosure of grand jury testimony that had occurred in the original investigation of the Watergate burglary.

During the next week, one of the Washington papers carried the contents of two internal memoranda from the Special Prosecutor's Office, and my confidence in our security measures suddenly decreased. We discovered that the contents of our waste baskets were being picked up by some enterprising individual and sold to the newspaper. A shredder was promptly added to our office and used nightly thereafter.

My precise role had not been clearly defined when I began work. At first I was to be part of a "shadow" prosecution team that might be required to take over from the three assistant United States attorneys who had investigated and prosecuted the Watergate break-in case. They had moved into the Special Prosecutor's Office and were in charge of the investigation into the cover-up of the Watergate break-in. I was not very enthusiastic about such a tenuous relationship and mentioned my displeasure to Vorenberg.

However, my concern was relieved in an unexpected way. On June 21, the American Civil Liberties Union filed a brief in support of McCord's motion for a new trial, severely criticizing the original Watergate prosecutors and listing twenty-three areas in which they had failed to pursue the investigation and prosecute the case diligently. The subsequent publicity about these charges made the position of the three prosecutors with Cox untenable, and in order to prevent any embarrassment of the Special Prosecutor they resigned on June 29.

A few days later, the papers carried reports that the three original prosecutors had recommended indictments against H. R. Haldeman, John Ehrlichman, John Dean, and John Mitchell. Cox denounced the stories and characterized their source as a gross breach of professional ethics. He stated that no conclusion on who would be charged had been reached, and that such a decision would he made by him and his staff. He added that any member of his staff would be dismissed for commenting to the media on a proposed indictment. This was typical of Cox's high standards of professional ethics, his efforts to protect the rights of the individuals who were under investigation, and his constant concern about not jeopardizing future cases by adverse pretrial publicity.

As a result of the resignation of the original Watergate prosecutors, the Special Prosecutor formed his own task force to investigate and prosecute the Watergate cover-up. This group was headed by Jim Neal, who had been working on the cover-up since Cox had been appointed. It also resulted in a clarification of my role.

On June 29, I met with Vorenberg and Heyman and was asked if I would like to be in charge of an investigation into the Fielding break-in. I said I had heard of the Ellsberg break-in—the break-in at Ellsberg's psychiatrist's office—but that I did not know of any other break-in. Someone politely pointed out that Fielding was the name of Ellsberg's psychiatrist. I was told that it was not clear who was responsible for the break-in or whether it violated any federal statute, and that it would be up to me to develop these matters further. I agreed to review the relevant grand jury testimony and FBI interviews.

The somewhat limited file showed that Howard Hunt and Gordon Liddy had engineered a break-in during the Labor Day weekend of 1971 at the office of Dr. Lewis Fielding, a psychiatrist in Beverly Hills, California. Hunt, a former CIA agent, had been recruited for employment by Charles Colson, special counsel to the President. Liddy, a former FBI agent, had been recruited by Hunt. The purpose of the break-in was to obtain derogatory information about Daniel Ellsberg, a former patient of Dr. Fielding. Three months earlier, Ellsberg had been indicted for having unauthorized possession of classified government documents—documents which had been published in the Pentagon Papers. Any derogatory information obtained was to have been leaked to the press by Colson in order to discredit Ellsberg. The break-in appeared to have been recommended by Hunt and Liddy to Egil Krogh and David Young, who had been placed in charge of what was called the Special Investigations Unit by John Ehrlichman, the President's advisor for domestic affairs. The Unit operated out of Room 16 in the basement of the Executive Office Building, and as such was part of what was loosely referred to as the White House. It also appeared that Krogh and Young had obtained Ehrlichman's approval for the break-in, and that funds for the operation had been obtained by Colson in cash from a private individual and not government funds.

I found the file intriguing and challenging—it involved two of the President's top advisors, a possible violation of Ellsberg's right to a fair trial, the possible violation of Dr. Fielding's right to be free from unreasonable search and seizure as protected by the Fourth Amendment to the Constitution, and a potential test of the claim of national security as against the provisions of the Fourth Amendment. So on July 2, I agreed to be responsible for the investigation and the prosecution if it developed that we had a provable case. I was appointed head of a task force that also had responsibility for investigating any other break-ins by the Special Investigations Unit; evidence of possible abuse by the White House of the Internal Revenue Service, the FBI, and the CIA; and evidence of wiretaps authorized by the White House on certain newspaper reporters and others. Some time later, my task force was given responsibility for investigating any illegality in connection with the President's income-tax returns. The members of the task force were Nate Akerman (26), Phil Bakes (25), Charles Breyer (32), Henry Hecht (27), Jay Horowitz (30), and Frank Martin (26). Bakes and Breyer worked with me on the Fielding break-in; Horowitz was responsible for the other matters. Only two had prior prosecutorial experience—Breyer as an assistant prosecutor in San Francisco, and Horowitz as an assistant United States attorney in New York.

(Continues...)

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Excerpted from Watergate Prosecutor by William H. Merrill Copyright © 2008 by William H. Merrill. Excerpted by permission of Michigan State University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Foreword by Charles R. Breyer....................ix
Prologue by Pat Shellenbarger....................xiii
1. Beginning of the End for Nixon....................3
2. Appointment as Associate Watergate Special Prosecutor....................5
3. Determining My Role....................9
4. Investigation of the Fielding Break-In....................15
5. Scene of the Crime....................27
6. The Grand Jury....................33
7. The Saturday Night Massacre....................43
8. Krogh Pleads Guilty....................49
9. The Indictment....................55
10. Preparing for Trial....................69
11. Colson Pleads Guilty....................83
12. The Trial....................91
13. Appeals....................135
14. A Look Back....................145
Epilogue by Pat Shellenbarger....................149
Appendix: The Wiretap Law....................153
Index....................181