Transcript: Elder D. Todd Christofferson at the University of Oxford

Reflections on Watergate: Integrity and Public Service
By Elder D. Todd Christofferson

Christ Church, University of Oxford
June 15, 2017

Also the following University of Oxford co-sponsors: Rothermere American Institute, Faculty of Law, Programme for the Foundations of Law & Constitutional Government

After graduating from law school in 1972, it was my good fortune to serve as the law clerk for the Honorable John J. Sirica, then-chief judge of the U.S. District Court in Washington, D.C. The U.S. federal judicial system has three levels: the district courts, which are the trial courts; the appeals or circuit courts; and finally the Supreme Court. Judges have law clerks, usually recent law school graduates, who work with them for a year or two. Each clerk then moves on to whatever legal practice or career he or she chooses, and the judge hires a new one. Law clerks assist a judge in analyzing the legal issues and cases he or she must decide, and they help the judge draft orders and opinions setting out the reasoning for decisions or judgments made.

I worked as a law clerk from August 1972 to the end of 1974. My term of service coincided with the Watergate trials and proceedings handled by Judge Sirica. This gave me a “ringside seat” for a little over two years to a unique epoch in U.S. history that enabled me to learn some crucial life lessons at the outset of my career. And in these remarks, I will share some of that hoping you will find it helpful.

Let me give a word of explanation to those of you for whom Watergate is a musty piece of history. In the last century, Watergate was a scandal’s scandal, so prominent that almost every other scandal in the United States since then has had “gate” attached to its name to give it added gravitas. Even here in the UK one can hear of “Smeargate” or “Taxigate.” Sometimes I wonder if that biblical passage—“Wide is the gate … that leadeth to destruction”[1]—didn’t have our time in mind.

Watergate derives from the name of a hotel, apartment, and office complex in Washington, D.C., located at the edge of the Potomac River. In 1972 the Democratic National Committee, or DNC, had its offices there. It was an election year, and President Richard M. Nixon was running for a second term. Some ethically challenged employees of Nixon’s reelection committee led by a man named G. Gordon Liddy devised a sinister plan for thwarting the Democrats. This plan (labeled “Project Gemstone” by its creators) included, among other things, breaking and entering and planting electronic listening devices—electronic “bugs”—in the DNC’s Watergate offices, as well as in the campaign office of the putative Democratic nominee for president, Senator George McGovern. The scheme was so elaborate it even included proposals for strategic kidnappings and mail intercepts designed to disrupt the Democratic Party convention that year, plans that, as far as I know, were never actually carried out. The electronic intercepts at the DNC Watergate offices, however, were carried out and were in place for some two or three weeks. A team located in a Howard Johnson hotel across the street from the Watergate recorded and then made transcripts of conversations they intercepted. When some of the electronic bugs stopped working properly, the team that had originally planted them—consisting of a former CIA agent and four Cuban-Americans who had been recruited for what was described to them as a patriotic mission—went back on the night of June 16–17 to replace the defective devices. They were caught and arrested by District of Columbia police.

The ensuing investigations by the police, the FBI, two grand juries, special prosecutors, a specially appointed Senate Select Committee, and the House of Representatives eventually revealed who was responsible for the initial crime, as well as what had been an extensive effort to cover up who was responsible. President Nixon’s attorney general, White House legal counsel, and closest aides were implicated, and in the end, so was Nixon himself. In early 1973, those who perpetrated the Watergate break-in went on trial and were either convicted or pleaded guilty. In 1974 a trial of those implicated in the cover-up took place. In that case, President Nixon was named an unindicted co-conspirator.

With the distance of time it may be hard to remember the intensity of the public interest in these two trials. But this was riveting stuff. It consumed the news hour every evening. Television trucks and reporters surrounded the courthouse every day. It was painful for Americans to see the office of the president dragged into the mud in such a public fashion.

In between these two trials, in questioning before the Senate Select Committee, White House aide Alexander Butterfield revealed that President Nixon had arranged to tape record virtually all the meetings that took place in the Oval Office and in the president’s office in the Executive Office Building next door, plus a White House phone line. Some of those recordings, thought to include meetings dealing with Watergate, were subpoenaed, and an unprecedented legal battle followed over the question of whether the president of the United States was subject to such a subpoena.

The issue was argued before Judge Sirica on August 22, 1973, in the large ceremonial courtroom of the federal courthouse at the foot of Capitol Hill in Washington. Archibald Cox, the Harvard Law professor serving as the independent special prosecutor, represented himself and the grand jury, arguing for enforcement of the subpoena for nine White House tapes. Charles Alan Wright, a distinguished law professor at the University of Texas, represented President Nixon. As a newly minted lawyer fresh out of school, they seemed to me two titans of the law, and both were very persuasive on opposite sides of the question—is a sitting president of the United States subject to an evidentiary subpoena from a federal trial court?

Judge Sirica and I, aided by a law student who was acting as a part-time law clerk to the judge, Richard Azzaro, had, of course, researched the issue in advance, including a thorough study of the legal briefs submitted by both sides. After completion of the oral arguments, Judge Sirica asked Richard and me to draft two opinions, one supporting a ruling to require the president to obey the subpoena and the other declining to enforce the subpoena. We didn’t get too far into drafting these opposing opinions before Judge Sirica, Richard, and I all concluded that the case for enforcing the subpoena was clearly the strongest. So we stopped work on the other draft and concentrated on completing the opinion in support of what would be the judge’s order requiring President Nixon to produce the tapes.

Judge Sirica’s approach was to study the briefs submitted by the lawyers; discuss them in advance whenever possible with his law clerk; sometimes ask him to draft memoranda exploring in greater depth issues or questions the judge might have; discuss the motion or issue again with his law clerk after oral arguments in court; make his decision; have the law clerk draft an order and a legal opinion whenever he thought it was needed; discuss and edit the order and opinion; and then sign and release them. That was what we did in this case.

There was precious little legal precedent to draw upon in reaching a conclusion. The most directly comparable situation had arisen during the presidency of Thomas Jefferson in connection with the treason trial of Aaron Burr, Jefferson’s first vice president. As an aside, I note that President Jefferson was subpoenaed almost exactly 210 years ago to the day, on June 13, 1807. Chief Justice John Marshall insisted that Jefferson produce a letter in his possession bearing on the trial, but Jefferson resisted. In the end, a compromise was reached with Jefferson producing a redacted version of the letter, so a final adjudication of the legal issue was never had. Chief Justice Marshall, however, appeared to indicate that in a criminal case at least, evidence did not acquire a protected or privileged status simply by virtue of being in the possession of the president.

In the end, Judge Sirica decided that Nixon’s claim of executive privilege could not bar the production of evidence (the tapes) in his possession. But he took that decision with great trepidation. In writing about his feelings at the time, the judge said, “‘Suppose I’m wrong in my decision,’ I would think. I could see the criticism that I had overreached my authority. I could hear people saying that I was trying to get publicity by confronting the president, that I had adopted a sensationalist approach and taken advantage of my office as a judge. I felt like hell.”[2]

I remember clearly the moment in his chambers on August 29, the judge sitting at the table, his order and opinion enforcing the tapes subpoena before him. He was about to make the order public. I stood beside him as he paused, pen in hand, for what seemed a long, dramatic moment, then he said out loud, “It is right,” and signed the order. We both felt that indeed the chances were about even that he would either be lionized for his courage in standing up to the president or rebuked by a higher court as an overreaching would-be prosecutor, but I was proud of him for his integrity and commitment to follow his conscience.

President Nixon tried to evade the subpoena by firing the special prosecutor, but the public outcry that followed what was dubbed the “Saturday Night Massacre” forced him to deliver the tapes to Judge Sirica and appoint a replacement for Archibald Cox, Leon Jaworski, who proved equally tenacious. As the investigation into the cover-up continued, a second round of White House tapes were subpoenaed, and this time Nixon pursued a formal appeal. Eventually the Supreme Court upheld Judge Sirica’s decision that the president was obligated to produce evidence in his possession. Judge Sirica appeared as Time magazine’s “Man of the Year” on its January 7, 1974, cover.

Judge Sirica and I listened to all the subpoenaed tapes in camera, meaning in chambers or in private. The judge was determined that there would be no leak of the tapes’ content from his office, so we listened in an interior room with no outside exposure, a room that had been checked for electronic eavesdropping devices. In addition, he insisted that we use headphones, but the recorder we were using (which incidentally, we had borrowed from the White House) had only one port for a headphone jack. So we asked a technical expert to fashion a “splitter” with a cable that on one end plugged into the recorder and on the other end was split and connected to two cylindrical ports that we could plug our headphones into. This homemade apparatus was taped to a piece of cardboard for stability—very “high-tech.”

After we listened to and discussed each taped conversation, the judge determined what was relevant to the investigation. Although President Nixon had claimed that the tapes needed to remain confidential because they included national security matters, not surprisingly we found nothing involving national security in those parts of the recordings dealing with Watergate, and those were the only conversations we reviewed. Judge Sirica provided copies of all relevant portions of the tapes to the special prosecutor and grand jury. Portions of the tapes were played as evidence in the 1974 cover-up trial. For the sake of listening clarity, everyone in the courtroom donned headphones as depicted in this reporter’s sketch of the scene.

The tapes showed President Nixon’s complicity in the illegal cover-up, but no definitive evidence that he was in any way involved with the initial break-in. With the threat of impeachment imminent, Nixon resigned as president on August 9, 1974—the only U.S. president to have resigned his office.

Nixon was never a “media darling.” He typically did not get the benefit of the doubt, as we say, and some commentators and media outlets talked about him as if he were pure evil. But such a critique is too easy, as if only those who are inherently bad make serious mistakes, not us “normal people.” The rest of us don’t have to worry, the thinking goes, and if we do make mistakes, we should be forgiven because we are basically good. To me, this is a false view of Watergate and draws the wrong lessons. The reality is much more challenging for all of us. Aleksandr Solzhenitsyn, a survivor of the Soviet Gulag, agrees: “If only it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being.”[3] Here’s how that applies to Watergate.

Nixon and others were, as best I could judge, basically decent men. For example, Nixon’s chief assistant, H. R. (Bob) Haldeman, had a daughter who was a law school student. She received permission to assist her father’s attorneys in his defense during the “cover-up” trial. I was able to observe the interaction between father and daughter, and I had a casual conversation or two with her during court recesses. It was clear to me that she loved and respected her father and that those feelings were reciprocated by him.

Similarly, once while reviewing the White House tapes, Judge Sirica and I heard a snatch of a telephone conversation between President Nixon and his daughter Julie. Calls made on one of the White House phones were recorded. These and the office conversations I mentioned earlier were on reel-to-reel tapes. Everything recorded during a particular day in the Oval Office, for instance, was on one reel that was then stored under that date. Judge Sirica and I had to run the reels back and forth, spot-checking, to find and listen to the specific meeting or conversation that had been subpoenaed. It was in that spot-checking process that we caught this bit of conversation between the president and his daughter Julie.

The voice of the White House operator came on, saying, “Mr. President, it’s your daughter Julie.” Immediately we heard a bright voice saying, “Hi, Daddy,” and an excited response, “Julie!” I stopped the tape at that point, since obviously this was not the Watergate conversation we were looking for, but the emotions in that simple, short exchange stayed with me. Here was a wonderfully normal, affectionate father talking with his daughter. His position as president of the United States was irrelevant; they were just family—and by the expressions, tone, and feelings reflected in their voices, a seemingly happy, normal family. The public picture of Nixon the crook jarred with the private picture of Nixon the doting father.

So, if Nixon, Haldeman, and probably most of the Watergate defendants were basically decent people, probably good husbands and fathers, some were church-goers, competent, and in some cases exceptional professionals, what is it that caused or permitted such persons to go seriously off-track? They were political animals intent on victory, no doubt, but they didn’t begin this process as criminals. Many even served in the military and philanthropic organizations. Why did they do what they did, and what protects you or me, in our lives, our marriages, our families, and our educational and vocational endeavors, from tragically destructive errors or even criminal conduct?

The answer to these questions lies in the critical role of what we call conscience. Let me take a few minutes to explain what I mean.

In my view, conscience is a defining personal imperative that stirs deep in the soul of each person. “To assert that invisible space in the heart and mind where right and wrong are decided is what makes us human beings. Conscience has its most visible impact in public life. We find our mettle as we bring our deepest held beliefs into society.”[4] Not all consciences come to the same conclusion on every matter—personalities, perspectives, histories, and circumstances are too diverse for that—but they tend to promote the greater good, not serve personal interests or the demands of blind ideology. Authentic conscience is self-effacing and accepts civil rules of engagement. And though expressions of conscience may be bold, even blunt, in confronting injustice, they do not harm people or silence competing voices. Conscience should never be a cloak to hide hurtful behavior or an excuse to gain privilege. When we deploy our beliefs in this way, fellow citizens see through the agenda. The people who perpetrated the Watergate scandal may have asserted their own interest, but no one would say they asserted their conscience.

The arrests at the Watergate offices of the DNC occurred on June 17, 1972. Within three days, chief of staff Bob Haldeman and White House counselor John Erlichman informed President Nixon that the burglars and the money they were carrying (including $100 bills) were linked to his reelection committee. In the same conversation, Nixon agreed to a stratagem proposed by Haldeman and Erlichman to hide these facts from FBI investigators. From hearing the tape recording of that meeting, I am persuaded that the motive of these three at the time was simply to avoid the political embarrassment of a disclosure that people at the Nixon reelection committee were involved. There was no hint of conscience, no suggestion that Project Gemstone and the break-in were wrong, that they should be acknowledged as such, and that those responsible should be held responsible. This initial cover-up effort didn’t work for long, so they took another step, and this approach of hiding rather than addressing the illegality became a pattern. There was no cover-up blueprint being followed, just one ultimately futile step after another to try to keep a wrap on the growing scandal.

It seemed to me that there were many points along the way when Nixon, with an awakened conscience, could have called a halt saying “This is not right, we will not continue, let the chips fall where they may,” and he might well have outlived the inevitable criticism and finished his term. But he never did say stop. Instead, he got deeper into the cover-up conspiracy himself. The low point for me was when Judge Sirica and I listened to the recording of a conversation that took place on March 21, 1973, between the president and White House legal counsel, John Dean.

Dean had been managing the cover-up within the White House, and he felt it was beginning to unravel. Now he had come to ask Nixon for direction. In this recorded conversation, Dean laid out what had been done during the preceding several months, including arranging for money to be delivered to the families of the Cuban-Americans who had pleaded guilty to the Watergate break-in. The money was given to buy their silence regarding higher-ups at the Committee to Reelect the President who had planned and ordered the break-in, but now they were threatening to talk because the money for their families was not forthcoming or was not as much as they felt had been promised.

Judge Sirica and I were shocked as we heard Nixon calmly ask, “How much money would it take?” By his tone of voice, Dean himself seemed surprised at this response, and with what felt like a number plucked out of the air he answered, “a million dollars.” Nixon responded that it would be no problem to raise that amount, but worried how it could be distributed without being traced. The judge and I couldn’t believe, didn’t want to believe what we were hearing, and he passed me a note suggesting we rewind the tape and listen again. Up to this point we both still hoped that the president was not really involved, but this was indisputable. I felt sick at heart, and Judge Sirica, who in years past had wanted to be a boxer, felt as if he had suffered a strong punch to the gut. We finished listening to the conversation and then, without saying much to each other, put the tape away and went home early. Even now, I remember the sense of disillusionment and sadness. This was some months before Nixon’s resignation, but we knew then that the president would be impeached if he did not resign first.

I wondered at the time, and have since, why Nixon allowed this scandal to grow and fester. I still feel surprise that over time his conscience could become sufficiently numbed that even the attempted blackmail of the president of the United States by the Watergate burglars did not arouse any indignation in him. The life lesson I took away from his experience was that my hope for avoiding the possibility of a similar catastrophe in my own life lay in never making an exception—always and invariably submitting to the dictates of an ethical conscience. Putting one’s integrity on hold, even for seemingly small acts in seemingly small matters, places one in danger of eventually losing the benefit and protection of conscience altogether. I’m sure that some have “gotten away with it,” in the sense that they acted dishonestly or illegally in business, professional, or political life and have never been made to account (in this life at least). But a weak conscience, and certainly a numbed conscience, opens the door for “Watergates,” be they large or small, collective or personal—disasters that can hurt and destroy both the guilty and the innocent.

There are forces in play today that would dilute the influence of conscience in our society and culture by seeing it more as granting license than as imposing duties. Writing in a U.S. publication called National Affairs, Professor Robert P. George of Princeton University quoted 19th-century Oxford theologian John Henry Newman on this subject. Newman, by the way, was ordained an Anglican priest here in the Christ Church Cathedral. He gave up his fellowship at Oxford upon his conversion to Catholicism. Cardinal Newman, says George, “had already identified in the 19th century the trend in thought about rights, liberty, and conscience that would become the secular liberal orthodoxy in the late 20th [century].” He quotes Newman as follows:

“Conscience has rights because it has duties; but in this age, with a large portion of the public, it is the very right and freedom of conscience to dispense with conscience. … Conscience is a stern monitor, but in this century it has been superseded by a counterfeit, which the eighteen centuries prior to it never heard of. … It is the right of self-will.”

Professor George continues: “Conscience as ‘self-will’ is a matter of feeling or emotion, not reason. It is concerned not so much with the identification of what one has a duty to do or not to do, … but rather … with sorting out one’s feelings. Conscience as self-will identifies permissions, not obligations. It licenses behaviors by establishing that one does not feel bad about engaging in them—or at least does not feel so bad about them that one prefers to refrain. … If there is a phrase that sums up the antithesis of Newman’s view of conscience as a stern monitor, it is the imbecilic slogan that will forever stand as a verbal monument to the ‘me’ generation: ‘If it feels good, do it.’”[5]

This naked self-will derives from moral relativism, which is the enemy of conscience. By moral relativism, I mean the belief that no moral claim can be verified as objectively true or false or better than any other. What results is a chaos of truth claims, a quagmire on which no one has moral confidence to act. This may sound liberating to individuals, but a society can’t run on it. The book Lost in Transition, authored by Notre Dame sociologist Christian Smith and others, describes the kind of confusion and paralysis that arises when we do not hearken to the still, small voice of conscience. Interviews of young adults by Smith and his team were the subject of a September 2011 New York Times editorial by David Brooks, who stated:

“The default position, which most of [the interviewees] came back to again and again, is that moral choices are just a matter of individual taste. ‘It’s personal,’ the respondents typically said. ‘It’s up to the individual. Who am I to say?’

“Rejecting blind deference to authority, many of the young people have gone off to the other extreme: ‘I would do what I thought made me happy or how I felt. I have no other way of knowing what to do but how I internally feel.’

“Many were quick to talk about their moral feelings but hesitant to link these feelings to any broader thinking about a shared moral framework or obligation. As one put it, ‘I mean, I guess what makes something right is how I feel about it. But different people feel different ways. So I couldn’t speak on behalf of anyone else as to what’s right and wrong.’”[6]

Conscience, on the other hand, requires faith in fixed moral concepts and values such as justice, mercy, love, honesty, generosity, self-restraint, and integrity that exist apart from personal preference. In the public arena, how can right and wrong be granted equal validity at the same time? The men who broke into the Watergate complex in 1972 believed that their concept of patriotism superseded laws against breaking and entering and electronic eavesdropping. How can those burglars and the law both be right, as moral relativism would seem to require?

“Well,” someone might say, “you are talking about things that are generally accepted as crimes. There are some values that inhere in human existence that are the basis for laws against murder, rape, theft, slavery, and other actions that injure people or interfere with their legitimate pursuit of happiness. These are essential and universal human rights, the clear and obvious things, that negate any individual right to the contrary, and it is only beyond these acknowledged human rights that moral relativism applies, where each individual may make up his or her own right and wrong.” I would respond that this line of reasoning only serves to make my point that there are moral absolutes, whether one calls them human rights or something else. And the only debate really is what they are and how far they extend. Truth and moral concepts cannot be based on whim or personal preference.

These matters receive further clarity from Vaclav Havel, a dissident under communist rule who later became the first president of the Czech Republic. In his writings and civic leadership he constantly emphasized “the moral origin of all genuine politics.” We cannot escape the moral in the political. “It helps the weak and the strong, the quiet and the loud, the minority and the majority.”[7] Otherwise, politics becomes the realm of raw power. In this extreme, moral zealots can be just as troubling as moral relativists. Those, whether religious or secular, who enforce rigid codes of conduct and intimidate or harass anyone who disagrees, are doing their own damage. We see it in electoral politics, on campuses, and in our various media environments. Such care more about winning than collaborating. They spend their energy humiliating opponents instead of creating solutions. “People need to hear,” urges Havel, “that it makes sense to behave decently or to help others, to place common interests above their own, to respect the elementary rules of human coexistence.” That foundation, he explains is tied to transcendence. “Genuine conscience and genuine responsibility are always, in the end, explicable only as an expression of the silent assumption that we are observed ‘from above,’ that everything is visible, nothing is forgotten.”[8]

It is important to establish that a widely shared understanding of basic right and wrong underlies the moral framework and laws that govern conduct in society. We cannot say there is complete unanimity, but there is consensus on the standards and values that matter most. For example, speaking truth is right—perjury and lying are wrong; honoring a trust is right—betraying a trust is wrong; respecting another’s property is right—theft is wrong; protecting children is right—abusing children is wrong; fidelity is right—adultery is wrong; and so on. Underneath the diversity of human experience, we somehow find a way to agree on what it means to be good—loving your neighbors, caring for the poor, protecting the most vulnerable, keeping family obligations, controlling selfish appetites, serving a higher purpose than mere survival, and much more. Virtually every culture, religion, and civilization recognizes the Golden Rule as a principle that holds society together. All life has worth. We cannot violate these truths and then expect things to work out just fine in the end.

The general acceptance of so many common standards suggests they derive from a common source. Some call it a moral sense; others might describe it as common sense or practical wisdom. For me, this universal instinct is confirmed by statements in scripture. I quote two examples: the declaration of Jesus, “I am the true light that lighteth every man that cometh into the world.”[9] Also: “It is given unto you to judge, that ye may know good from evil; and the way to judge is as plain . . . as the daylight is from the dark night. For behold, the Spirit of Christ is given to every man, that he may know good from evil.”[10] Fortunately, truth is scattered liberally across the globe. My religion teaches me to “get all the good in the world.”[11] “Receive truth, let it come from whence it may.”[12]

Conscience endures when populations generally seek to discover and build on moral principles that exist independently, that are not simply one’s own invention. Over the generations, religion has served to identify and deepen understanding of fundamental (I would say divinely ordained) moral laws. My colleague Elder Jeffrey R. Holland made this observation:

“The great conflict between good and evil, right and wrong, the moral and the immoral—conflict which the world’s great faiths and devoted religious believers have historically tried to address—is being intensified in our time and is affecting an ever-wider segment of our culture. And let there be no doubt that the outcome of this conflict truly matters, not only in eternity but in everyday life as well. Will and Ariel Durant[13] put the issue squarely as they reflected on what they called the ‘lessons of history.’ ‘There is no significant example in history,’ they said, ‘of [any] society maintaining moral life without the aid of religion.’”[14]

Of course, I am not arguing that any particular religion or faith tradition should have a right to dictate the moral values and obligations on which a pluralistic society is founded. And a person does not have to be religious to be moral. But for just societies to endure, religious and ethical voices must be heard.

My plea is that we all maintain a conscience that is a robust guide and “stern monitor,” in John Henry Newman’s words. And may I leave you with one suggestion of something practical that I am convinced will strengthen your conscience. A life devoted to service to others allows conscience to flourish. Service provides a natural barrier against the ills that flow in the wake of self-will and self-interest. A focus outside ourselves and beyond personal autonomy and personal pleasure will protect and strengthen conscience. As Jesus said to His Apostles, “Whosever will be great among you, shall be your minister: and whosoever of you will be the chiefest, shall be servant of all.”[15]

May your life find real purpose in the service you render and the good you achieve. May your voice for abiding moral principles be persuasive in establishing a strong, communal conscience in our society. May your own conscience grow increasingly firm and refined. And may there never be a Watergate in your professional or personal history.