The circumstances under which Judge Byrne’s secret visits with Ehrlichman took place and the circumstances under which news of these visits leaked out have yet to be adequately explored. But enough is now known to demonstrate that this covert attempt to interfere with impartial trial ought not to go unexamined and unpunished.
The sequence of events is itself eloquent. On April 26, after a still unexplained delay, Judge Byrne was given documentary evidence that Hunt and Liddy, working directly under the supervision of Ehrlichman, had burglarized the safe of Ellsberg’s psychiatrist in Los Angeles. The judge seems to have angered the government when he read the memorandum about the burglary in open court. Shortly afterward as if in retaliation someone leaked the news of the judge’s visit to the San Clemente White House. It appeared in the Washington Star-News April 30, just four days after the news of the burglary was made public.
The leak must have come from the White House itself. It was made to the only one of Washington’s two newspapers with which the Administration is still on speaking terms, though the conservative Star-News and its staff columnists have been as critical as the Washington Post of the Watergate affair. The reporter who wrote the story, Jeremiah O’Leary, is a veteran capitol journalist. The visit by Byrne to San Clemente seems to have been entirely a White House affair. “The Star-News learned,” O’Leary wrote, “that Judge Byrne was brought to the San Clemente White House by the Secret Service from Los Angeles with instructions to take care that the press not learn of the visit.”
No mention was made in the story of Ehrlichman. The way it was written, if not the way it was leaked, pointed the finger directly at the President. Indeed the story speculated on Nixon’s impropriety. “The secret meeting with Nixon,” as O’Leary wrote, “also prompted some question about the propriety of the judge in the Ellsberg-Russo case conferring while the trial was underway with a President who made little secret of his distaste for the turning over of the Pentagon Papers to several newspapers for publication.”
The day that story appeared in the Star-News happened also to be the day on which the White House announced it had accepted the resignations of Haldeman and Ehrlichman. If the leak was Ehrlichman’s, it would have been one of his last acts as the President’s top aide for domestic affairs.
The repercussions at the trial were immediate: The first edition of the Star-News, an evening paper, hits the streets about 9:30 AM, or 6:30 AM Los Angeles time. Someone must have called defense counsel about it well before 10:00 AM Los Angeles (or 1:00 PM Washington) time when court was scheduled to open. Defense Counsel Charles Nesson phoned Judge Byrne that morning to let the judge know that questions would be asked him about the story in the Star-News. The judge arrived twenty minutes late with a prepared statement which he read as soon as court convened. He said he was doing so in response to a telephone inquiry to his chambers from Defense Attorney Nesson. With the jury out of the courtroom, the judge said he was reading the statement because he wanted “no misunderstanding” about the meeting.
Judge Byrne said the meeting took place on April 5 as the result of a phone call from Ehrlichman at the Western White House. He said the latter asked “me to talk with him regarding a subject he said had nothing remotely to do with the Pentagon Papers case.” Byrne said Ehrlichman “suggested the possibility of a future assignment in government. During this meeting I was briefly introduced to the President, for one minute or less. We merely exchanged greetings.” Byrne said his “initial reaction” to Ehrlichman’s offer “was that I could not and would not give consideration to any future position” while the case was pending.
The judge went on to say that he estimated at the time that the trial would last another month. Why make the estimate if the job offer was not left open for consideration later? And was it in accord with judicial ethics to preside over a trial while secretly harboring the possibility of an attractive offer from one of the contestants? Byrne added that he had another brief conversation with Ehrlichman in which he confirmed his initial reaction.36 Where, when, and how this second conversation took place was not then disclosed.
Not until two days later, and then only in response to a question from defense counsel, did Byrne reveal that he had had not one but two meetings with Ehrlichman about the job offer. This is how the second disclosure came about. On May 1, the day after the San Clemente meeting was admitted by the judge, the defense moved for dismissal, in part because the job offer could be interpreted as a bribe. Defense Counsel Leonard Boudin put the matter with the utmost tact:
Given the extraordinary interest the White House has shown in this case we would, were we to use blunt language, characterize this as an attempt to offer a bribe to the court—an event made in the virtual presence of the President of the United States—which was frustrated only because the Judge refused to listen to the offer.
To be less tactful but more accurate, the offer was not frustrated. It was only postponed. The judge did not “refuse to listen.” He only refused to answer until the trial was over. A cynical observer might conclude that this put the White House in the advantageous position of not having to deliver on the offer if the judge’s performance in the Pentagon Papers case should prove unsatisfactory, as it did.
The judge seems to have felt uneasy. When court opened next morning and before the jury was brought in he made a further revelation. He said, “Having gone through your motion yesterday…there are a couple of areas…that I want the record to be clear on.” He then disclosed that the job discussed was the head of the FBI. The second conversation took place on April 7, and “it was at that conversation [italics added] that I confirmed my initial reaction.” Then the judge began to bring in the jury. But Defense Counsel Leonard Weinglass stood up and asked:
Q. Was that [conversation] personal or by telephone?
Judge Byrne: That was a direct conversation.
This was how defense counsel and the press first learned that there had been a second meeting with Ehrlichman. It was later learned that this took place in Santa Monica, but how or where or why was never disclosed.
Who asked for the second meeting? What led the judge at that meeting to “confirm” his “initial reaction”? Was the rejection at the first meeting less than firm? Why was the offer left open for later consideration?
As Leonard Weinglass pointed out to the press, defense counsel would be in jail if it had offered a prize job to the judge during the trial. Had Ehrlichman been a private party instead of the President’s top domestic aide, it would have been obvious to the judge that the offer had the earmarks of a bribe and that his duty was not just to turn it down but to turn Ehrlichman in.
In the court on May 1, Defense Counsel Boudin, arguing the formal motion to dismiss, put the matter directly on the White House doorstep, as an impeachment inquiry would do:
We do not see how the effect of the San Clemente incident can be mitigated. The conduct of the President (who made it clear yesterday that he takes responsibility for the actions of his subordinates) has compromised the judiciary to the point where a fair trial is impossible now or in the future. It would have been infinitely wiser if the Judge had refused to visit San Clemente in the midst of what may be the most important political trial in our time….
That no disclosure was made before the issue was raised by the defense is perhaps an indication that judges, like the rest of us, have human failings. But it is these very human failings which make it improper for this case to proceed. No human being can possibly erase from his consciousness past events which may influence future conduct. The White House, by initiating this meeting, has irretrievably compromised the court.
On May 4, the defense submitted a memorandum of points and authorities to support the argument that the San Clemente visit and the job offer alone were enough for dismissal, but Judge Byrne ruled that same day against this part of the motion. He simply claimed that he had not been biased by the offer.
On May 7, newspaper accounts from Los Angeles carried the news that the defense was preparing to challenge the judge’s decision by an appeal on mandamus to the Ninth Circuit Court of Appeals. The Ninth Circuit, if favorable to such a motion, could have ordered a hearing on the San Clemente visit and the job offer. It might have ruled that these cast such a cloud over the Ellsberg-Russo trial that it must be suspended for an immediate hearing on this issue. Ehrlichman could have been called as a witness. The President might have been asked for a deposition, or even been supoenaed.
Such action was rendered moot when Judge Byrne, on May 11, dismissed the case. But he did not cite his visits to San Clemente and Santa Monica to discuss the offer of the top job in the FBI among “the bizarre events” which the judge said in his final ruling had “incurably infected the prosecution.” Byrne as a judge and Nixon as a lawyer could hardly have been unaware of the professional ethics the offer violated.
But the fuller significance of these two secret meetings with the judge did not become apparent until several weeks after the trial was over. On May 22, then Secretary Richardson, at the Senate Judiciary Committee hearings on his nomination to be Attorney General, stated that the President had been informed about the Ellsberg break-in “in late March.”
It was also “in late March” when the roof began to cave in on the White House. It was on March 20 that McCord sent a letter to Judge Sirica informing him that perjury was committed at the first Watergate trial, and that pressure had been applied to him to remain silent. Dean on that same day asked Nixon for a private interview and next day told him that he, Haldeman, and Ehrlichman had to “tell all” in order to save the Presidency. It was on March 21 that Nixon says he began his own investigation.
By the end of March, therefore, Nixon was on notice that news of the Ellsberg break-in might soon be disclosed either by McCord or Dean, or by both, and that this information might have to be produced in Judge Byrne’s court in Los Angeles. (Indeed, Dean told the story to Federal Prosecutor Silbert on April 15, confronting Nixon with the alternative of ordering the submission of this information to Judge Byrne or suppressing evidence. It was the latter course that Nixon seemed to favor, until pressure was applied by Kleindienst and Petersen.)
So when Nixon met Judge Byrne on April 5, the President knew but the judge did not that there had been a break-in, that its disclosure to the judge might lead to a mistrial and dismissal of the case, and that if the judge disclosed the break-in in open court it would be another black eye for the Administration.
Secretly to dangle the offer of a high post before the trial judge while all these decisions were pending was to taint justice irremediably. When the Goldwater-Cranston letter included Ehrlichman’s communication to the judge among the “serious questions” left by the Ellsberg-Russo trial, it called for them “to be viewed and uncovered as a totality from start to finish.” Such an investigation would have to determine whether the offer to the judge by Ehrlichman constituted an attempt to bribe the judge and obstruct justice.37 Such an investigation would inescapably confront the question of whether Ehrlichman could take such serious steps without Nixon’s prior knowledge and approval.
Had so sharp a lawyer and crafty a politician as Nixon, running the most centralized and closely controlled Administration in history, watchful over the slightest delegation of authority, so suddenly become an absentee landlord in the White House? Was he so stratospherically elevated beyond all mundane matters that at the summer White House on April 5 he could find Ehrlichman in conference with the presiding judge of the Pentagon Papers trial, shake hands with the judge, and not know, not ask, what was going on? Could he have been so unaware, so incurious? Only an idiot could believe it. But in this as in other aspects of Watergate only trial by impeachment is likely to be able to get at the truth of the President’s complicity.
IT ALL DEPENDS ON WHO’S HIGHER UP
“…The Attorney General has concluded that new weapons and tools are needed to enable the Federal government to strike both at the Cosa Nostra hierarchy and the sources of revenue that feed the coffers of organized crime…. First, we need a new broad general witness immunity law…. With this new law, government should be better able to gather evidence to strike at the leadership of organized crime and not just the rank and file.”
Nixon’s Message to Congress on Organized Crime, April 23, 1969
“I have expressed to the appropriate authorities my view that no individual holding, in the past or at present, a position of major importance in the Administration should be given immunity from prosecution.”
Nixon’s Watergate statement of April 17, 1973
Los Angeles Times, May 1, 1973.↩
American Jurisprudence (1964), vol. 12, p. 752: "It seems that a bribe must involve something of value that is used to influence action or nonaction. Value, though, is determined by the application of a subjective, rather than an objective, test, and the requirement of value is satisfied if the thing has sufficient value in the mind of the person concerned so that his actions are influenced. A bribe need not be anything of a pecuniary or intrinsic value"; and on page 755: "The difference between an attempt to bribe and the actual passage of money or property as a bribe is of little practical significance where the definition of the crime includes an attempt to commit it. This was true at common law ." Since "bribery" is written into the Constitution without further qualification, it must be read in the light of the common law at the time.↩
Los Angeles Times, May 1, 1973.↩
American Jurisprudence (1964), vol. 12, p. 752: “It seems that a bribe must involve something of value that is used to influence action or nonaction. Value, though, is determined by the application of a subjective, rather than an objective, test, and the requirement of value is satisfied if the thing has sufficient value in the mind of the person concerned so that his actions are influenced. A bribe need not be anything of a pecuniary or intrinsic value”; and on page 755: “The difference between an attempt to bribe and the actual passage of money or property as a bribe is of little practical significance where the definition of the crime includes an attempt to commit it. This was true at common law .” Since “bribery” is written into the Constitution without further qualification, it must be read in the light of the common law at the time.↩