Foreword

This book will complete my Watergate trilogy.  The first book, The Secret Plot to Make Ted Kennedy President (New York:  Penguin Sentinel, 2008), described the political maneuvering behind the successful exploitation of the Watergate scandal to destroy a presidency and undo the outcome of the 1972 election.  It detailed how key players in the Ervin Committee, the Watergate Special Prosecution Force and the House Judiciary Committee’s Impeachment Inquiry all had worked together in the Kennedy/Johnson Department of Justice.  Not surprisingly, many returned to power in the Clinton administration. 

The second book, The Real Watergate Scandal (Washington, D.C.:  Regnery History, 2015), documented how judges and prosecutors secretly colluded to drive Nixon from office and to secure convictions of his senior aides, in flagrant violation of their Fifth and Sixth Amendment rights to due process.

This third book will focus on the Plumbers trial, the prosecution for their botched effort to discover what, if anything, Daniel Ellsberg might have told his psychiatrist regarding his leaking of the Pentagon Papers.

My goal throughout has been to influence understanding of events culminating in the Watergate scandal – and to repay in some small way the debt of honor I owe President Nixon and many of my former colleagues on his White House staff.

Introduction

The purpose of this book is not to re-fight the Vietnam War, nor is it to condemn or condone domestic intelligence activities by the FBI, CIA, DIA and NSA.  It is to place the prosecution of Nixon administration officials for the Plumber’s break-in into the context of those times. 

The facts themselves are simple: Daniel Ellsberg’s leak of a massive, top secret study culminated in the publication of the Pentagon Papers by The New York Times, beginning in June of 1971.  But Ellsberg had access to 54,000 more pages of classified information through his work for the Rand Corporation.

A newly-formed White House investigative unit, known as the Plumbers, decided it needed to learn more about Ellsberg’s interests and intent.  In an effort to determine who else Ellsberg might be working with and what else he might leak, they broke into the offices of his psychiatrist and searched his files.  When their burglary became known seven months later, in the course of the burgeoning Watergate scandal, not only was the Ellsberg prosecution for leaking government secrets thrown out of court, these White House officials and their superiors were prosecuted, convicted and imprisoned. 

Just months later, hearings before the Senate’s Church Committee disclosed that these sorts of highly questionable “black bag jobs” had been undertaken almost routinely against American citizens — in the name of national security and without court authorization — by the FBI, the CIA and military intelligence agencies since as far back as 1936.

It is the interplay of these three events – the leak of the Pentagon Papers, the prosecution of the Plumbers, and the subsequent Church Committee disclosures– that has never been explored and forms the basis for this book.

Indeed, upon closer review, the Plumber prosecution by the Watergate Special Prosecution Force seems every bit as constitutionally abusive as the break-in itself: 

  • Those responsible for the prosecutions were well aware of the history of prior break-ins, later so vividly revealed by the Church Committee.  They had served in senior positions in the same Department of Justice that had committed and condoned these practices for decades – yet they did not inform the trial court of their prior actions. 
  • The actual prosecutions were redundant and completely unnecessary, since everyone involved had already been convicted or was under indictment and about to be tried for the far more serious Watergate cover-up. 
  • Seemingly, the primary reason for the Plumbers prosecution was to change practices of the intelligence community.  While the defendants could have been prosecuted for the burglary itself (and, indeed, had already been indicted for this crime by a Los Angeles County grand jury), the federal prosecution was deliberately framed to create new law, designed to foreclose any national security defense to future Fourth Amendment violations.  A laudable goal, perhaps, but one more properly achieved through regulation or legislation than through an individual criminal prosecution of questionable legitimacy.
  • Even at that, WSPF prosecutors were so eager to prevail that they secretly conspired with the judges, brow-beat witnesses, and suppressed exculpatory evidence which flagrantly denied defendants the due process of law guaranteed by the Fifth and Sixth Amendments.

When viewed in light of what is known today, it was the same people, the Democrat elites who had brought us the Vietnam War, who then brought us the Watergate Special Prosecution Force.  In spite of their lofty platitudes and reformist agendas, they also undermined our constitutional form of government and broke new ground in violating the guarantees of our Bill of Rights.

Of course, none of this was realized at the time — which is why this book needs to be written.

Part One:  The Historical Context

Part I will be presented in chronological fashion, setting the stage and enabling the reader to appreciate the confluence of events that culminated in massive opposition to the Vietnam War and the corresponding response of federal security agencies.  It thus integrates the descriptions of developments contained in the Church Committee Report with those of the Pentagon Papers. 

Only after establishing this interplay, can the twin impacts of the leak of the Pentagon Papers (June 13, 1971) and the Church Committee disclosures (April 26, 1976) be put into context.

Chapter 1:  The Development of Domestic Intelligence

This chapter will track the ongoing tension between the Fourth Amendment’s protections against unreasonable search and seizure and nation’s interests in national security over the three decades from 1936 to 1963.  Based largely on the background developed by the Church Committee, it will detail how President Roosevelt’s establishment of a domestic intelligence structure was expanded during the Cold War. 

Chapter 2:  U.S.–Vietnam Relations

The term “Pentagon Papers” usually refers to the dramatic reactions to the leak of this classified material, rather than to its actual content.  This chapter will focus on content, tracking its descriptions of the deteriorating relations between the U.S. and Vietnam from 1948 forward. 

It covers our support for the French in their desire to maintain Indochina as a colony after WWII (in spite of our general support for the end of colonialism), the division of Vietnam into two parts and our reneging on the promise of a unifying election the following year, our complacency in President Diem’s assassination, to the growth of U.S combat troops on the ground, supposedly justified by the Gulf of Tonkin incident.  The chapter will conclude, as did the Pentagon Papers, with the end of the Johnson Presidency.

Chapter 3:  Intelligence and Domestic Dissent (1964-1968)

Having traced the growth of U.S. involvement in Vietnam, this chapter will detail the parallel growth of anti-war dissent – and the full flowering of domestic intelligence activities in response. 

The chapter will culminate with the chaos at the DNC’s Chicago convention, and the campaign that led to Nixon’s election as a law and order candidate, pledged to end the war.  It will also discuss the infamous October Surprise (Johnson’s bombing halt just days before the 1968 election).

Part Two:  The Enduring Poison of the Vietnam War

Vietnam was easily the most unpopular foreign war in American history.  The swelling opposition — heightened by vivid television coverage, a corruptly applied draft system, and growing questions of legitimacy – drove Lyndon Johnson from office and dominated the first term of his successor. 

Studies later becoming public, particularly David Halberstam’s best-selling book, The Best and the Brightest, and the Pentagon Papers themselves, documented how the folks who brought us that war came to doubt its legitimacy of purpose, as well as the misrepresentations to the American public that got us so deeply involved in the first place. 

The Democrats’ remorse for the war they started was then unleashed on the

Nixon Presidency, which had been elected with the promise of ending it.

Chapter 4:  Macbeth Stalks the Pentagon:  Compilation of the Pentagon Papers

This chapter will review how Robert McNamara’s seemingly off-hand concurrence in the idea of a study came about — and how its preparation was carefully kept secret from other DOD officials, the Johnson White House and his Department of State. 

It will describe the Papers compilation under the auspices of three ardent anti-war officials:  Paul Warnke, Les Gelb and Morton Halperin.

It also will reveal, perhaps for the first time, how the unfinished report was improperly secreted at the Rand Corporation, just days before Nixon took office.  There, it was completed by three former Pentagon officials during the first six months of the new administration. 

Chapter 5:  Nixon’s Initial Efforts to End the War

Presidential counselor Daniel Patrick Moynihan advised Nixon early on that the American people did not hold him responsible for the Vietnam War, but added that they would begin to do so if he hadn’t made dramatic progress toward extracting us within six months. 

This proved highly prophetic, but even Moynihan didn’t anticipate the dramatic change in Democrat views regarding the War.  While they were grudgingly content to allow their Democrat colleague, President Johnson, some room to maneuver, they had lost the White House because of the War and were not of a mind to help Johnson’s replacement with any such tolerance. 

Chapter 6:  Suspicions Confirmed:  The Papers’ Dramatic Publication

This chapter will recount Ellsberg’s efforts to find someone, anyone, willing to publicize his top secret study – finally culminating in a front page series by The New York Times, beginning June 13, 1971.  It will evaluate the response by the Nixon White House; first, to try stop publication (ultimately resembling a “whack-a-mole” game as more and more newspapers carried segments) and then to create the Plumbers unit to try to stop further leaks and to punish the leakers.

Chapter 7:  Jumping the Shark:  the Fielding Break-in

It wasn’t the idea itself; it was its execution.  This chapter will detail how an overly-aggressive response (the break-in of Ellsberg’s psychiatrist’s office) became the seminal event that doomed the Nixon Presidency.  Since the author was on Nixon’s staff throughout this period, working for the head Plumber and knowing everyone involved, his inside story (also derived from documents at the National Archives) will be both bitingly candid and newly revealing.

The author will argue that it was the decision to “go operational” and use non-government personnel to conduct the break-in (rather than domestic intelligence officers) that was the fatal mistake – even though Watergate prosecutors later argued that no such “surreptitious entry” was proper under any circumstances. 

Part Three:  Troublesome Precedents:  Revelations of the Church Committee

On January 27, 1975 (just four weeks following the conviction of President Nixon’s senior aides in the Watergate cover-up trial), the Senate created a Select Committee to Study Governmental Operations with respect to Intelligence Activities (the Church Committee), whose investigations uncovered far more previous wrong-doing by the intelligence community (the CIA, the FBI, and various military agencies) than was ever anticipated. 

Chapter 8:  The Church Committee’s Quest for a Mission

Drawing on insider accounts published after Senator Church’s death, this chapter will review the Committee’s fights over formation, jurisdiction and approach, as well as its quest for information and how – with Richard Helms replaced at the CIA, J. Edgar Hoover’s death at the FBI, and the newly ensconced Ford Administration’s reluctance to go to the mat to prevent its investigation – the Church Committee documented truly massive invasions of privacy of American citizens.

Chapter 9:  Sunshine as a Disinfectant:  Choosing Publicity over Reform

This chapter will document how, with reform already well underway, the Committee nonetheless chose to publicize in dramatic fashion what it had learned from the various agencies.  Every Committee member was well aware of how the Senate Watergate Committee’s (the Ervin Committee) prior televised hearings in the same cavernous Senate Caucus Room had generated personal fame and national publicity.  They longed for their fair share.  Most tellingly, Senator Church was running for President, which made his posturing as “viewing with alarm” far more important to his personal agenda than achieving any actual reform.

There is a reason, the author will argue, why the revelations of the Church Committee back in 1976 are felt by many to be at least partially responsible for the intelligence lapses that resulted in the terrorist attacks of 9/11 in 2002.

Part Four:  The Hypocrisy of the Plumbers Prosecution

The same Democrat elites who had served in senior positions in the Kennedy and Johnson Department of Justice, were returned to power (illegitimately the author will argue) as leaders of the Watergate Special Prosecution Force.  There, they set about bringing prosecutions, not so much to punish the wrong-doers, as to create new law to achieve newly-espoused policy positions.

Drawing on insider accounts and WSPF documents uncovered by the author at the National Archives, this segment will reveal a series of serious violations by the highly politicized prosecutors.

Chapter 10:  Creation of the Plumber Task Force

A non-partisan prosecution it was not:  This chapter will reveal how William Merrill, unsuccessful Congressional candidate and former head of the Michigan’s RFK for President campaign, became head of the Plumber Task Force, with the intent (much like Senator Church) of using the position to gain the personal notoriety to return to Michigan to run for the Senate.  It also will reveal the internal search for precedent-setting charges to bring against the two key Plumber defendants, Charles Colson and John Ehrlichman.

Chapter 11: Indictment and Early Maneuvering

This chapter will reveal, for the first time, how WSPF prosecutors improperly shaped their indictment, secretly conspired to get the case assigned to a favorable judge, and then colluded with that judge to have the case heard in a manner that was highly prejudicial to the defendants. 

Chapter 12:  Trial and Appeal

This chapter will reveal how plea-bargains were reached and witnesses were brow-beaten to achieve never-before-existent precedents, which were preserved on appeal by stacking the appellate deck.  It was not convictions for perjury or burglary that these elite prosecutors were after, it was new case law designed to alter existing tensions between national security and Fourth Amendment protections against unreasonable search and seizure.

Part Five:  The Cycle of History

Since the founding of the Republic, tensions have existed between the government’s desire to protect its citizens from terrorists – both foreign and domestic – and its citizens’ desire for privacy from that very government – as set forth in the Fourth Amendment’s strictures against unreasonable search and seizure. 

While certainly a proper subject for public debate, resolutions over the years seem as temporary as the shoreline, as the tides of war and fear of terrorism rise and fall with America’s sense of personal security. 

This segment will attempt to address, in somewhat philosophic terms, the dangers from individual government officials who are certain that they alone have divined the correct solution.

Chapter 13:  The Elasticity of “Unreasonable” Search and Seizure

This chapter will trace the Church Committee’s segmented concerns, seeking to classify intrusions based on particular presidencies, as contrasted with the intelligence agencies’ perceived threats – almost to the point where, after winning a particular war, it becomes time to punish those who took extraordinary steps designed to assure domestic security – which then tends to expose ourselves to future aggression.

Given the precedents of the infamous “Palmer Raids” and the WWII internment of the Japanese, it would not be surprising to see calls for rounding up of Muslims suspected of being jihadist sympathizers should more domestic acts of terrorism occur.

Chapter 14:  Beware the Messianic Reformers

From Aaron Burr to Private Bradley Manning and Edward Snowden, individuals have taken it upon themselves to seek to alter history by revealing U.S. secrets.  Daniel Ellsberg fit within the same genre.  But the author will argue, so also do the actions of Senator Church and WSPF prosecutor William Merrill. 

It is, after all, Messianic reformers who sometimes make history, but perhaps not in the manner in which they intended.