by John W. Dean
The 40th anniversary of the Watergate scandal is fast approaching. 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
When I retired from business to start
writing books a few years ago, 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
Woodward’s take was correct when he wrote those words late in
1999. He nicely summed up the post-Watergate atmosphere. But today, nearly 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
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
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-40th 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
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
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-optionbackdating scandal, have come to grief by assuming that what they
said to company lawyers in a company investigation would be held in
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 40th 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