Special Prosecutor Danger Signs: A Response to NBC News Exclusive

June 24, 2017

On June 20th, NBC offered up a breathless “News Exclusive”:  Memo Shows Watergate Prosecutors Had Evidence Nixon White House Plotted Violence.  Their text read:

Watergate prosecutors had evidence that operatives for then-President Richard Nixon planned an assault on anti-war demonstrators in 1972, including potentially physically attacking Vietnam whistleblower Daniel Ellsberg, according to a never-before-published memo obtained by NBC News.

The document, an 18-page 1973 investigative memorandum from the Watergate Special Prosecution Force, sheds new light on how prosecutors were investigating attempts at domestic political violence by Nixon aides, an extremely serious charge.

NBC News is publishing the memo, and an accompanying memo about an interview prosecutors conducted with GOP operative Roger Stone, as part of special coverage for the 45th anniversary of the Watergate break-in.

NBC followed up with a live interview with the memo’s author, Nick Ackerman, who was a twenty-five year old Watergate prosecutor when he wrote the memo.  Here’s the link to NBC’s program, as well as to the memo in question:  http://www.nbcnews.com/politics/politics-news/nbc-news-exclusive-memo-shows-watergate-prosecutors-had-evidence-nixon-n773581.

This is a situation where you have to read the memo to appreciate its real significance.

As a member of President Nixon’s Watergate defense team, I see the situation quite differently from NBC.  What you have is an 18 page memo detailing the extensive Watergate Special Prosecution Force’s efforts to connect Colson to the counterdemonstration violence which occurred on May 3, 1972, while J. Edgar Hoover’s body lay at the Capitol.

It illustrates, in exquisite detail, the due process problems presented by a special prosecutor, whose highly partisan staff could devote hundreds of hours of investigatory effort into a relatively insignificant event – solely because they wanted to nail one of President Nixon’s top aides, Charles Colson.

The sad truth, which emerges from Special Prosecutor Leon Jaworski’s own confidential Watergate files, is that prosecutors were so unsure of their cases that they met secretly with trial judge John Sirica on numerous occasions, in order to work out issues in advance of trial.  Memos I uncovered from our National Archives and reproduced in my recent book detail such secret (and highly improper) meetings occurred on December 15, 1973, February 11, 1974 and twice on March 1, 1974.  Notes from the special prosecutor’s staff meetings allude to several other secret meetings that Jaworski held with Sirica.

The NBC memo presents a different abuse:  it details the full time efforts of two or three WSPF prosecutors, Nick Ackerman, Jay Horowitz and Jill Volner, operating under the supervision of Associate Special Prosecutor Phil Heymann.  As the memo details, they interviewed dozens and dozens of witnesses — bringing many of them before the grand jury – and instructed the FBI to interview dozens more.

They leaned hard on lesser members of Colson’s staff, particularly William Rhatican and Richard Howard, in their attempts to get them to turn on their real target, Charles Colson.

“The other problems we had [in indicting Rhatican for perjury] were Rhatican’s ‘I don’t recall’ responses to the questions instead of flat denials and the fact that we could only prove that Rhatican lied about organizing a lawful counterdemonstration.” (Page 9)  Having leaned as hard as they could on Rhatican, without success, they ultimately decided not to proceed:  “Because of problems inherent in any perjury case and because of the primary interest in Colson, Rhatican was granted immunity.” (Page 12)

“We had hoped to use the threat of possible prosecutions on his testimony about the demonstration and his involvement in the mailings and leaflets as leverage to convince Howard to testify against Colson on matters surrounding the assault.”  (Page 14).  Ultimately, however, the threats didn’t work:  “On May 21, 1974, Horowitz and I met with Jude O’Donnell, Howard’s attorney, to tell him that this Office was considering an indictment of Howard for his testimony on the demonstration and that we might possibly refer the Section 610 violations to the local United States Attorney for prosecution.  Both of these threats were somewhat hollow since our perjury case was not that strong and the mailing and leafletting violations were not that significant.  On May 30th, O’Donnell reported back to us that Howard had nothing to add to his testimony but continued his claim of ignorance about the demonstration.”  (Page 14)

“You can sense the young prosecutor’s disappointment when Colson, who also had been named in the comprehensive indictments for the Watergate cover-up and the Plumber’s break-in (respectively, on March 1st and March 7th, 1974), entered into a plea bargain on May 31st.  With Colson seemingly now out of reach, “we basically lost all interest in Howard after Colson pled.”  (Page 15)

But wait!  Hope springs eternal in the author’s mind, since Colson’s plea bargain excluded possible perjury in subsequent grand jury appearances – and Colson had “denied any recollection of the demonstration, counter-demonstration and assault and the substance of any conversations testified to by Rhatican and Magruder”, consideration was given to indicting him for perjury.  But alas, disappointment again prevailed:  “the problems with a perjury prosecution are two-fold.  First, there is no proof of Colson’s motive to lie [especially once he had reached his plea bargain].  Although it may be reasonably conjectured that Colson lied to protect Richard Howard from indictment and Richard Nixon from impeachment, there is no way to prove it.  Second, there is still no clear way to link Colson to the assault which is muddled by his efforts to organize a lawful counterdemonstration.”  (Page 18)

Only after reading the full memo can one begin to appreciate the amount of time and effort devoted to this particular investigation, egregious prosecutorial abuse which would never have occurred under normal circumstances.  Just imagine what might have been uncovered, should even one-tenth of the same effort have been devoted to investigating the dozens of efforts to disrupt campaign rallies sponsored by Donald Trump’s campaign in the last election.

Ackerman’s memo, by the way, was not uncovered at the National Archives, where all WSPF documents are now stored.  If it had been, it would bear a NARA stamp and the names of people still living (including Roger Stone, Karl Rove and Ken Khachigian) would have been redacted – a standard practice to protect individual privacy.  No, this memo was deliberately and improperly leaked, one assumes by Nick Ackerman, as sort of a going away present, some forty-five years later.

But the tale it tells is the opposite of what was intended.

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