The 45th anniversary of the Watergate scandal is almost here. The events marking this historic episode first unfolded when the Metropolitan Police of the District of Columbia arrested five men in the Watergate offices of the Democratic National Committee. The four burglars were wearing business suits and surgical gloves while carrying electronic surveillance equipment and more than $1,000 in new $100 dollar bills. Once in custody, it was discovered that those arrested had ties to the Central Intelligence Agency. It was not a typical burglary. In truth, the operation was so botched and amateurish that at first it seemed to be the work of double agents or saboteurs, since Richard Nixon’s presidential reelection campaign was going full-speed. The date was June 17, 1972.
Stuck in the middle
It was quickly discovered, however, that the masterminds of this disastrous business were G. Gordon Liddy and E. Howard Hunt. Both men had once worked at the Nixon White House, and I soon learned that they had previously engaged in what former U.S. Attorney General John Mitchell would call “the White House horrors”—all types of skullduggery, from trying to frame President Kennedy with forged documents to another botched break-in at Daniel Ellsberg’s psychiatrist office. Covering up this activity had worked through the election. But on Aug. 8, 1974, two years, two months and two days after the arrests at the Watergate Hotel, Richard Nixon was forced to resign or be removed by impeachment. What began as a bungled burglary not really involving the President ended by revealing impeachable abuses of power throughout his presidency. Most strikingly, when it was all over, some 20 lawyers found themselves on the wrong side of the law. That reality had consequences. Watergate forever changed the practice of law in the United States.
As Nixon’s White House counsel when the arrests occurred, I found myself in the middle of this unfolding and growing disaster. At the time, I was in my early-30s with no real knowledge of or experience in criminal law. When Liddy and Hunt dumped their debacle on the White House, first demanding financial help and later pardons, I was overwhelmed. I discovered I was not alone. When I suggested that we needed an experienced criminal lawyer, my predecessor and superior, John Ehrlichman, scoffed at the suggestion. Rather, he instructed that I talk to my old boss who had just become attorney general, Richard Kleindienst. I did. Kleindienst informed me (but not his prosecutors or anyone else) that Liddy had tracked him down at his golf club over the weekend of the arrests and confessed that his men were in the D.C. jail. He claimed that John Mitchell wanted Kleindienst to get the arrested men released. Kleindienst was as overwhelmed as I was and told me that he would resign before he would prosecute his mentor, John Mitchell. He proceeded to do his best to ignore and avoid the problems that followed.
Kleindienst directed me to Henry Petersen, the career prosecutor whom Mitchell and Kleindienst had elevated to be the assistant attorney general in charge of the criminal division, the man who was actually in charge of the Watergate investigation. Petersen was overwhelmed as well. Years later, Kleindienst told a British journalist that Petersen had said to him, “Boss, if we get out of this thing without going to jail, we’re going to be lucky.” Luck may best describe how they escaped my fate and that of others.
This is how it all started to unfold that first week after the arrests. These first days foreshadowed all that would follow. Nixon and my colleagues at the White House, Kliendienst and Petersen at the Justice Department, and the team of attorneys hired by the re-election committee made fatal mistakes that should not have been made at that level of government, nor at any level of government or within any organization for that matter. Rather than resolve and eliminate the disaster Liddy and Hunt had created, we compounded it.
When I retired from business to start writing books, I had no intention of returning to the subject of Watergate. As far as I was concerned, that topic had been exhausted. Nonetheless, I now find myself drawn back into this subject. What happened during Watergate is well-known. Why it happened remains largely unexplored and unknown, and that is what I am examining.
I have found that during his lifetime, former President Nixon was remarkably successful in keeping his papers and secret recordings from the American public, and only since his death in 1996 has significant new material started to become available. I can also report that Nixon- and Watergate-related archival material is both massive and telling. For example, I thought Prof. Stanley Kutler’s book,
Abuse of Power: The New Nixon Tapes (1997), which followed a lawsuit forcing the National Archives to release all of the key conversations relevant to Watergate, contained all of the significant material. Kutler has transcribed some 320 Watergate-related conversations for his book, but because it would have doubled his volume, he excluded some 80 transcripts prepared by the Watergate special prosecutor’s office. And even these 400 transcribed conversations (Kutler and the special prosecutor’s combined) are anything but complete. No one has ever catalogued all of the Watergate conversations. I have discovered another 1,200 conversations, which it seems no one other than those processing the tapes for the National Archives has ever heard. In short, hundreds of hours have been overlooked.
When the files of the Watergate prosecutor’s office were opened a few years ago, I discovered literally thousands and thousands of pages of material that gives understanding to these events. (So far I have culled more than 30,000 pages as background for my work-in-progress.) Digging through this material is providing answers about why this all went so very wrong during the Nixon presidency. It has also made me think about how the consequences of Watergate have been so relatively short-lived.
Watergate produced a wide range of new laws, from the Independent Counsel Act to investigate the president, vice president and high-level presidential appointees, to strict campaign finance and disclosure laws. In addition, rather than allow Nixon to retain possession of his papers and tapes, Congress enacted a law giving all his presidential records to the government, and later adopted a similar law for all presidents, making their papers the property of the American people. Because the mainstream news media, with the exception of the
Washington Post, missed the Watergate story until the cover up fell apart of its own weight, Watergate had a significant impact on the news media, which for a time was collectively determined to never let that happen again or to miss such a significant story. Investigative journalism became a new and widespread post-Watergate norm at the local, state and national level, holding public officials accountable.
Washington Post reporter Bob Woodward, who with Carl Bernstein led the investigation of Watergate, paused to look back at Watergate’s impact some 25 years afterward and observed that,
I am still surprised that [Nixon’s] successors did not fully comprehend the depth of distrust left by Nixon. New ethics laws, a resurgent Congress and a more inquiring media altered the prerogatives and daily lives of presidents. Congress, made up of men and women whose lives are largely politics, was determined to play a more prominent, inquisitorial role. The media was going to dig deep and incessantly because much had been hidden before. And quite naturally, prosecutors and ethics investigators were more and more determined. The habit of deception and hedging practiced by presidents would no longer be acceptable.
Woodward’s take was correct when he wrote those words late in 1999. He nicely summed up the post-Watergate atmosphere. But today, more than four decades after Watergate, with one primary exception, the attitude, laws and institutions designed to prevent another Watergate have, for one reason or another, literally expired. Accordingly, the top recommendation of the Senate Watergate Committee, the creation of the office of an independent counsel, has expired. The post-Watergate campaign reform laws have lapsed. Presidents have weakened the Presidential Records Act through executive orders, preventing most of their records from being available for historical study. Most recently, the U.S. Supreme Court has ruled that prohibiting corporate contributions is unconstitutional, although prosecuting corporate contributors was probably the most pervasive activity of the Watergate special prosecutor’s office.
Attitudes about the presidency have changed since the terror attacks of 9/11. During Watergate, U.S. District Court Judge John Sirica, a conservative Republican, aggressively pursued a sitting Republican president who was fighting a war in Southeast Asia. Today, conservative jurists have turned 180 degrees from such activist and interventionist roles, and give almost total deference to presidential decisions. Today, presidents can invoke the magic words “state secrets” and no judge will question government actions, such as intercepting thousands of telephone calls of American citizens or literally kidnapping suspected terrorists and sending them off to be tortured. Had Richard Nixon used these talismanic words, it is difficult to imagine they would have changed anything.
Today, investigative journalism is much different and not as pervasive given the changing economics of the news business, which is far more diverse, with news cycles that are much shorter. The
New York Times and three television networks no longer dominate. A variety of ideological media platforms exist now that did not exist in the Watergate era, when conservative voices that might have worked to defend Nixon were without an effective platform.
Impact on the legal profession
Yet there is one institution whose attitude and vigilance regarding the appropriate conduct of its profession was deeply affected by Watergate—and that achievement has remained unchanged. The impact of Watergate on the legal profession has been lasting. The organized bar responded to Watergate with a collective reform movement that has persisted during the past four decades. While I did not return to the practice of law, I began following the activities of the bar after my friend, the late Robert Kutak, an Omaha attorney I met when we worked together on Capitol Hill and an irrepressible advocate for reform, took on the task of developing and implementing new standards for the American Bar Association (ABA).
In 1974, the ABA began requiring law schools to teach legal ethics, in direct response to the ethical lapses of the many lawyers involved in the Watergate scandal. The states began to mandate continuing legal education for lawyers, including an ethics or professional responsibility component. (Today, some 40 states require such continuing ethics training.)
As a consequence of this direct relationship, it occurred to me that the nearly-45th anniversary is a good time to talk about Watergate. To boot, sufficient time has passed to largely drain partisan feelings out of these events, and given the new information available in recent years, there is much to talk about regarding the light that Watergate sheds on our lawyer conduct rules.
There are many aspects of the ABA Model Rules, now adopted in whole or major part by most states, that are a direct response to the issues involved in Watergate. They come to mind when I think about that first week following the arrests at the Watergate. For example, one key ethics inquiry raised by Watergate is: Who does the lawyer represent? Who is the client? The special circumstances of Watergate gave birth to a debate about whether White House counsel represents the person of the president or the office of the president. (The best view is that the client is the office, and that White House counsel owes his or her loyalty to the U.S. government itself, not the individual office-holder.)
But more important to most lawyers (as few of us get the opportunity to represent the president), when a lawyer represents an entity, the client is the entity itself—not any individual connected with the entity. Model Rule of Professional Conduct 1.13 (adopted in Ohio effective in 2007 as part of the Ohio Rules of Professional Conduct) makes clear that it is the entity to which the lawyer owes his or her loyalty. In addition, Rule 1.13 was amended by the ABA House of Delegates in 2003, partly in response to the Enron scandal. The amendment added a “reporting up” requirement for corporate lawyers, in an attempt to ensure that lawyers would adhere to their duty of loyalty to the entity.
Therefore, under Rule 1.13(b), if a lawyer for an organization knows or reasonably should know of a legal violation that is likely to result in substantial injury to the organization, then the lawyer shall “report up” by referring the matter up the ladder, including to the highest authority able to act for the organization.
But Rule 1.13 and its mandatory reporting-up requirement is not just for typical “corporate lawyers.” I have discussed this with a leading ethics authority, Professor Ronald Rotunda, who observes it applies to “corporations, unions, trade associations, general and limited partnerships, government agencies [because] they are all ‘entities’ for purposes of the ethics rules governing the practice of law.” (Ron was a staff attorney for the Senate Watergate Committee, and he opens his
Legal Ethics Deskbook by pointing out Watergate’s influence on the Model Rules.)
Rule 1.13 also has resonance for lawyers conducting corporate investigations because of the potential for confusion and conflicts of interest. When asked to assist in conducting an internal corporate investigation on behalf of the corporation, a corporate board or a special board committee, lawyers usually need to interview individuals who are connected with the corporation. The potential conflict of interest between the employee and the corporation, and the question of to whom the attorney-client privilege extends has led to the development of the “corporate Miranda warning,” or “Upjohn warning.” By whatever name, such a warning clarifies that the lawyer represents the entity only, and not the individual being interviewed as part of the investigation, and that anything the employee says is not covered by any privilege except the company’s own attorney-client privilege, which only the company may waive. Some high-profile corporate executives, including in the Broadcom stock option backdating scandal, have come to grief by assuming that what they said to company lawyers in a company investigation would be held in confidence.
Another attorney ethics issue highlighted by Watergate is the question of the duty to disclose a crime or fraud that the client is committing. Such a duty obviously is in tension with the lawyer’s general duty of confidentiality set out in Model Rule 1.6, under which a lawyer is prohibited from revealing any information relating to the representation of a client without client consent. The important exception to the pre-eminent rule of confidentiality is disclosure under Rule 1.6(b), when it is necessary to thwart the client’s continuing or future crime or fraud that is involving or will involve the lawyer’s services. (In contrast, the ability to disclose client confidences to address a client’s past crimes or frauds is more limited.)
A special rule of candor, however, applies under Model Rule 3.3 when the lawyer is involved in a matter before any tribunal (which includes binding arbitration proceedings and adjudications before administrative agencies). In proceedings before a tribunal, a comment to Rule 1.6 states, the requirement of candor and the prohibition against assisting the client in criminal or fraudulent conduct in connection with a judicial proceeding trump the confidentiality duty of Rule 1.6. The lawyer must reveal client crimes and frauds even in derogation of the duty of confidentiality.
A third ethics issue that can be considered in connection with Watergate is the duty of competence set out in Model Rule 1.1, requiring a lawyer to provide competent representation to a client, by bringing to bear “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I would certainly have benefitted from having my own lawyer or ethics consultant as I tried to navigate my way through the ethical quicksand of Watergate. I was totally confused about the boundaries of national security, not to mention hampered by inexperience in criminal law. In fact, as I have written before, it never occurred to me that we were obstructing justice, until I began reading the annotations to Title 18 of the U.S. criminal code, long after we had crossed the line.
Learning from mistakes
Watergate’s 45th anniversary year strikes me as an appropriate time to again learn from that national disaster, for doing so can only strengthen the resolve of lawyers to continue to practice ethically wherever your practice may be—whether at the White House or in-house, the boardroom or the courtroom. We wrote the book on what not to do, and all is not a waste if others can learn from it.
I appreciate the assistance of
Frank R. DeSantis and
Karen E. Rubin in preparing this article. DeSantis is a partner, and Rubin is counsel at Thompson Hine LLP in Cleveland. Both have far more expertise than do I with the Model Rules of Professional Conduct.
John W. Dean was the White House counsel for President Richard Nixon. Dean was charged with obstruction of justice and spent four months in prison for his role in the Watergate cover-up. He is the author of the Watergate memoirs
Blind Ambition and
Lost Honor, as well as a book on former Supreme Court Chief Justice William Rehnquist.