It was a Tuesday; the stench of Watergate hung heavy over the nation as the ball dropped in Times Square signaling that 1974 had turned into 1975. The very next day, the former president’s closest advisors would ring in the new year with guilty verdicts from a jury of their peers. One of them, John Ehrlichman, remarked that evidentiary rulings interfered with the fairness of the trial, that history would view Watergate differently - kind of as no big deal - and that he anticipated a complete exoneration at the end of the process.
That vindication never happened.
As a side note, this lack of vindication happened in part due to the politics of one of the co-defendants in the case along with his unindicted co-conspirator. At Attorney General John Mitchell's insistence, Nixon had nominated and then appointed many "law and order" judges to the federal bench. Four of the Supreme Court Justices, including the Chief Justice, were Nixon appointees; they had recently instituted “harmless error” review. That is, no longer was it essential to simply aver a constitutional error at trial. If there was a considerable amount of other evidence of guilt, the constitutional error would be deemed "harmless" and therefore would not require reversal. That meant that even the mistakes that the defendants were citing - such as not permitting a continuance to obtain certain testimony (from Nixon which would have been...interesting) which interfered with their Sixth Amendment right to compulsory process for obtaining favorable witnesses - the evidence of guilt in this case was so overwhelming that it would likely be deemed harmless.
As the Watergate investigation ensued in the years leading up to the New Year's Day verdict in 1975, Congress was in the last few tosses of the football of codifying rules of evidence for federal courts. Indeed, not only is this time a fifty-year anniversary of the first Watergate convictions, but it is also the fifty-year anniversary of the introduction of the Federal Rules of Evidence. A few states had codified their evidentiary rules by the 1970’s, but the federal government had not. (Fun fact: Massachusetts still has not - we have a "proposed Guide to Evidence" but no codification.) The process for doing so began during the leadership of Earl Warren on the Supreme Court in the 1960's. The Court approved the proposed rules in 1972 and submitted them to Congress on February 5, 1973.
But, Congress sat on them. The changes made during these delays between November, 1972 (when the Court first approved the proposed rules) and January,1975 (when President Ford signed them into law) are yet another lingering effect of the Nixon White House and its arrogant abuse of power. The biggest reason for the delay in getting the rules to the president to sign into law involved evidentiary issues specific to Watergate.
Two misguided changes to the Federal Rules of Evidence continue to influence integrity of the courts as arbiters of truth and our seeming inability to establish trust in government. The first of these involves FRE 801(d)(2)(A) involving prior inconsistent testimony. In the original proposed rules, to be admitted substantively, prior inconsistent testimony had to have been made under oath and subject to cross examination at a hearing or other proceeding. That was in keeping with previous Supreme Court decisions. The change made by the Senate and ultimately adopted into the new rules included grand jury testimony as well which, notoriously, is far less reliable and never subject to cross-examination.
Both the House and the Senate were controlled by Democrats in the early 1970's as the fiasco of Watergate unfolded. Both chambers created investigatory committees regarding the scandal and held public hearings. There was also a criminal investigation occurring where a grand jury would be convened. It is possible that members of the Senate had concerns that some witnesses who testified before the grand jury would not be available for trial or would alter their testimony. Because the members of Congress wanted all of the evidence of guilt ultimately to be made public, they may have decided to include prior inconsistent statements to be used substantively. Whatever the reason, it was ill-informed, shortsighted and has been highly prejudicial to criminal defendants.
Further, given the watershed ruling in the much later case of Crawford v. Washington, 541 U.S. 36 (2004), this Watergate inspired change to the evidentiary rules may violate the Sixth Amendment right to confront witnesses if the witness does not appear at trial or if their trial testimony is discarded in some way by the trial court. The analysis is fairly simple: without any question at all, statements before a grand jury are “testimonial” in nature under the construct of Crawford. Testimonial statements must be subject to cross-examination in order to be admissible under the Sixth Amendment. Grand jury testimony is not subject to cross examination. Ergo, they are only admissible substantively through a live witness declarant on the stand. It suggests that the use should only be to challenge the veracity of the trial testimony through impeachment rather than to disavow the trial testimony deeming the prior inconsistent statement to be more reliable (Crawford negated the idea of "reliability", afterall.) This understanding of the Confrontation Clause was not the rule in 1975. While it is rare to use prior inconsistent statements substantively at all, let alone grand jury testimony, it does happen sporadically but FRE 801(d)(2)(A) has not been decided by the Supreme Court on this point.
More importantly, the proposed Federal Rules of Evidence contained outlines regarding evidentiary rules regarding privilege. This issue must have irked members of Congress because they eliminated all of them; it is unclear why. But, as it stands, FRE 501 does not delineate what is and what is not privileged in federal court. It refers to prior decisional law. Although the entire point of the federal rules of evidence was to create uniformity in proceedings, this rule defers to common law. In order to claim any kind of privilege – or to state that such a privilege does not apply – federal litigators must comb through all decisional law in the state and the federal district where the proceedings occur to determine applicability.
This last piece – the failure to define certain privileges – opened the door to the most recent Supreme Court case regarding privilege. Not only was Trump v. United States, Docket No. 23-939 absurd, especially in light of actual, literal insurrection on the Capitol resulting in death and destruction at the behest of the sitting president, it was preventable.
Nixon had argued that his aides need not testify before Congress due to executive privilege (but he was not called before Congress and he never faced criminal charges so his own privilege or immunity was never in question). But, in the end, Nixon did not prevent their testimony. Ultimately, dozens were prosecuted, several businesses admitted to illegal contributions, and the nation collectively squirmed in its seat wondering about the future. Congress enacted some rule changes. The country decided to take a chance on a governor from Georgia as its next president. Neither of those reforms lasted. And - to this day - no one revisited the rules about privilege or defining how far a president or the executive staff could go in pursuing personal grudges or influencing corporations or protecting the people from corruption.
One of the original proposed privileges involved secrets of state and other official information. The proposed rule required that a court determine that the information would jeopardize national security if exposed to be considered privileged. It did not create a privilege for the executive to be immune from criminal prosecution. Indeed, that entire idea is antithetical to the nation's founding where we turned away from notions of kings. By declining to adopt the proposed rules regarding privilege, Congress deferred to the various courts to create, interpret, and modify at will all non-constitutional privileges in federal court. Some of the problems with this patchwork are outlined here and are worth a read.
Now, fifty years after the first Watergate verdicts, maybe Ehrlichmann was right. Maybe we do view those crimes in a kinder light, but only because of the extraordinary abuse of power that followed. At least it is fair to say that, despite bravado and soul-sucking blind ambition, Nixon's cohorts had, at times, been public servants. Mostly, they were drunk on power, but at least they actually did respect the law and the court rulings enough to be respectful throughout their trials (with one exception) and they served their time in federal prison.
There is an odd flex in this country to reduce the study of what was once called the "humanities" including non-monetizing subjects such as history. But, we do this at our peril. Even just a glance at the history of the Federal Rules of Evidence invites us to question how deeply we permit the power of political concerns to influence even how evidence is introduced in court. The proposed federal evidentiary rules sought to equalize proceedings in federal courts rather than leave them to the whim of the state or the common law of the federal district courts. Largely that did occur. But, not as to any universally accepted notion of privilege, executive or otherwise. And so, fifty years after Watergate's first convictions and fifty years after President Ford signed the Federal Rules of Evidence into law, here we are at the precipice of a second term of another self-centered man as president and his flunkies focused on protecting him and not the people of this country. If anyone loses their temerity and calls this unchecked power into question, we have no idea what is and is not privileged information and, therefore, how much we can actually ever know.
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