My 1998 Wall Street Journal article drew no response of interest from Geoff Shepherd.
This 1998 article in The Wall Street Journal puts in proper perspective the 1974 decision of the U.S. Court of Appeals decision in U.S. v. Liddy.
The Wall Street Journal
Editorial Page
March 24, 1998
WHAT IF JUDGE SIRICA WERE WITH US TODAY?
By Douglas Caddy
(Mr. Caddy is a Houston lawyer)
The Clinton scandals, with all the claims of coverup and executive privilege, are certainly reminiscent of Watergate. But there is a crucial difference: This case lacks a John Sirica, the chief judge of the U.S. District Court for the District of Columbia who played such a crucial role in Watergate. The untold historical record reveals that the early actions of Sirica, who assigned the Watergate case to himself, helped spur the subsequent coverup and obstruction of justice that ultimately led to the resignation of President Nixon and the criminal convictions of many Watergate figures.
The Watergate scandal began at 2:30 a.m. on June 17, 1972, when Washington, D.C. police arrested five men on burglary charges at the Watergate office building. At 3:05 a.m. E. Howard Hunt phoned me from his White House office and asked if he could come immediately to my Washington residence. I had been Hunt’s personal attorney for several years.
Hunt arrived half an hour later and informed me what had transpired earlier at the Watergate. He retained me to represent him in the case and then called G. Gordon Liddy, who also hired me. At that time, about two hours after the burglary, both Hunt and Liddy requested I also represent the five people arrested, four Cuban-Americans and James McCord, who were then incarcerated in the D.C. jail.
On June 28 – 11 days later – while working on the case in the federal courthouse in Washington, I was served with a subpoena bearing the name of Chief Judge Sirica, to appear “forthwith” before the federal grand jury investigating the case. Assistant U.S. Attorney Donald Campbell grabbed me by the arm and pulled me into the grand jury room.
From June 28 until July19 I was to appear before the grand jury on six occasions and answer hundreds of questions. I drew the line, however, on the advice of my own legal counsel, at answering 38 questions we felt invaded my clients’ Sixth Amendment right to counsel and the attorney-client privilege. A typical question: “Between the hours of Friday at midnight, June 16, and 8:30 a.m. Saturday, June 17, did you receive a visit from Mr. Everett Howard Hunt?” We believed answering such questions would incriminate Hunt and Liddy, who had not been arrested, and would violate their constitutional rights.
Judge Sirica, rejecting such arguments out of hand, threatened to jail me for contempt of court. When I went before the grand jury on July 13, I refused to answer the 38 questions. Within an hour I was back before Judge Sirica, who immediately held me in contempt of court and ordered me to jail. Five days later, on July 18, the U.S. Court of Appeals upheld the contempt citation and ordered me to testify under threat of being jailed again. The opinion, which I found gratuitously insulting, declared: “Even if such a relationship does exist, certain communications, such as consultation in furtherance of a crime, are not within the privilege.”
In his July 19, 1972, Oval Office tape, Nixon is recorded as expressing dismay to John Ehrlichman: “Do you mean the circuit court ordered an attorney to testify?”
Ehrlichman replied, “It [unintelligible] me, except that this damn circuit that we’ve got here, with [Judge David] Bazelon and so on, it surprises me every time they do something.”
Nixon then asked, “Why didn’t he appeal to the Supreme Court?”
The answer is that my attorneys and I believe we had built a strong enough court record that if Hunt, Liddy and the five arrested individuals were found guilty, their convictions could be overturned on appeal because of Sirica’s and the appeals court’s abuse of me as their attorney.
However, Judge Sirica’s actions had an unintended consequence. Hunt and Liddy, seeing their attorney falsely accused by Judge Sirica of being a participant in their crime, realized early on that they were not going to get a fair trial, so they embarked on a coverup involving “hush money.” As Hunt has written: “If Sirica was treating Caddy – an Officer of the Court – so summarily, and Caddy was completely uninvolved in Watergate – then those of us who were involved could expect neither fairness nor understanding from him. As events unfolded, this conclusion became tragically accurate.”
Liddy appealed his conviction to the U.S. Court of Appeals, claiming that my being forced to testify denied him his Sixth Amendment right to counsel. The court upheld his conviction: “The evidence against appellant...was so overwhelming that even if there were constitutional error in the comment of the prosecutor and the instruction of the trial judge, there is no reasonable possibility it contributed to the conviction.” Neither Judge Sirica nor the appeals court acknowledged that their assault on the attorney-client privilege helped spur the ensuing coverup and obstruction of justice.
I was never indicted, named an unindicted co-conspirator, disciplined by the Bar or even contacted by the Senate Watergate Committee or the House Judiciary Committee, whose staff included a young lawyer named Hillary Rodham.
Now the issue of the attorney-client privilege is again being raised, this time by Monica Lewinsky’s first lawyer, Francis D. Carter, who has been subpoenaed to appear before the grand jury and bring the notes he took while representing Ms. Lewinsky. Mr. Carter got involved when Vernon Jordan referred Ms. Lewinsky to him in January. On March 4, Mr. Carter’s attorney, Charles Ogletree, argued before Chief Judge Norma Hollaway Johnson that the subpoena should be quashed: “Once you start to allow the government to intrude on the attorney-client relationship and allow them to pierce the attorney-client privilege, clients will no longer have a sense of confidence and respect that lawyers should have.”
Coming days will reveal how Mr. Carter fares in his fight to protect Ms. Lewinsky’s constitutional rights and what effect this will have on the case’s ultimate outcome. To date, at least, Judge Johnson has shown a restraint that her predecessor Judge Sirica did not.
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