I will be seventy-one in August, a fifth generation American of Chinese descent whose ancestors landed in San Francisco in the late 1840s or early 1850s. Growing up in Oakland, California, I attended public schools and then attended UC Berkeley in 1964. That first semester coincided with the Free Speech Movement (FSM). It was a timely protest movement coming when the civil rights and anti-Vietnam War movements were in their infancy and struggling for nationwide attention. The FSM movement galvanized young college educated students to question the existing social norms of the post war generation such as segregation, gender inequality and economic deprivation for peoples of color. The participation of college educated white students gave critical support to both the civil rights and anti-war movements.
I was one of the few from my community involved in these movements and it was a transformative experience – fighting for social justice would become a dominant force in what I would do throughout my life.
By 1969, I was one of the leaders of the Third World Strike. We struck for the right to have the history and culture of communities of color discussed as part of the college curriculum. The UC Berkeley Ethnic Studies Department was one of the first at any college or university campus to do this.
I graduated in 1971 with AB degrees in Zoology, Sociology and Asian American Studies and was elected student body president of UC Berkeley as a law student in 1972. I served as both the local campus student leader and chair of the Student Body Presidents Council comprised of the student presidents of the then nine campus UC Berkeley system. In 1973 I was chosen by the coalition of student organizations of various colleges and universities nationwide to speak before Congress on the issue of financial support for students from low income families. This was how I ended up in Washington DC in the early summer of 1973.
I had finished testifying before the Senate education subcommittee on the issue of financial support for students and had been sitting in Senator Inouye’s office waiting to lobby his staff whilst watching the televised hearings of the Watergate Committee.
There and then I knew I wanted to be part of the Watergate investigation. But how?
That evening, my girlfriend very intuitively said, “your best bet is Senator Inouye, not only is he on the Committee but he is ASIAN!”
For several days, I sat in the reception area of the Senator’s office, I had no appointment with the person in charge of Watergate and the receptionists at the Committee were trained to tell people without appointments to go away. The only way to get the Watergate Committee’s attention was to camp out daily in the reception of Hawaiian Senator Daniel K Inouye until I forced the issue.
Eventually, Eiler Ravenholt, the Chief of Staff for Senator Inouye, became curious about my presence and invited me into his office.
Why was I in Washington? I told him that as Student Body President at U.C. Berkeley, I was in town to testify before the Senate subcommittee on Education. That after testifying, I was making the rounds of Senator’s offices, lobbying for changes to the Pell Grant legislation.
Busy as he was, he only asked one further question. He asked me what I wanted to do. I recall telling him that since there was the recent revelation of tape recordings in the Oval Office, as a law student, I was sure there would be a legal struggle between The Watergate Committee and the Special Prosecutor for access to the tapes and resistance from The White House to that access. I told him that litigation was not contemplated in The Watergate Committee budget and I was available as an unpaid law clerk since my law school had just started a pilot program for students to spend a semester away for credit if the situation was out of the ordinary. At that point, he picked up the phone and called Sam Dash, Chief Counsel for the Committee. “Sam, I got a live one,” Eiler, said over the phone. He cupped the receiver and said, “Go to Room 308 in the Old Senate Office Building…. ask for Jim Hamilton.”
James (Jim) Hamilton was the assistant chief counsel of the Senate Watergate Committee.
A man of few words, Jim asked where I went to school, contemplated my response, told me, Jerry Brown was a fellow classmate at Yale Law School and asked if I could start that afternoon. I think being a student at Berkeley Law was validation that I was qualified. I was excited that I had a position with The Watergate Committee.
I was processed, given an ID card, briefed on the rules and reported to Ron Rotunda, the assistant majority counsel.
Ron introduced me to other members of the team, to the best of my recollection this included other assistant majority counsels; Bill Mayton, Don Burris and, I think Barry Schochet and Dennis Sommers.
Space was tight; I had a chair in Ron’s cubicle. Next to our cubicle and directly across, were members of Terry Lenzer’s group; Mark Lackritz, Mary DeOreo, Bob Muse, Jim Moore and Scott Armstrong. On the other side of the aisle were the cubicles of Don Burris and Bill Mayton in one and Barry Schochet and Dennis Sommers in the other.
My first assignment was preparing for executive session a summary of facts respecting the cashier’s check drawn by Kenneth H. Dahlberg, the President’s campaign finance chairman for the Midwest and how it ended up financing the burglary of the DNC offices in the Watergate Complex.
I became the go to guy on money laundering. This would include a monotonous amount of time standing at the copy machine flanked by two FBI agents copying each and every bill comprising the one hundred thousand dollars in possession of Bebe Rebozo, allegedly the bag man of covert payments for Nixon.
When Alexander Butterfield testified that there was a taping system in the Oval Office and The President’s office in the Old Executive Office Building, everyone knew the significance of that admission. Up to that time, there was only the testimony of John Dean, fired White House Counsel, that Nixon was involved in the cover-up. The tapes could shed light on the question frequently asked by Senator Baker: “What did the President know and when did he know it”. Up to this point, it was Dean’s word against The President. Both the Committee and the Special Prosecutor wanted the tapes, The Committee to fulfil its obligation under Senate Resolution 60 to fully investigate presidential campaign activities, and the Special Prosecutor to see if any criminal behavior had occurred within the White House. When Nixon refused to turn over the tapes, citing executive privilege and separation of powers, both the Committee and the Special Prosecutor subpoenaed the White House on the same day, July 23, 1973. When the White House announced it would not honor the subpoenas, both the Special Prosecutor and The Committee filed actions with the court. Thereafter, the litigation team at The Watergate Committee went full throttle.
Having joined the committee shortly after the revelation of the taping system meant that our unit was given the responsibility to take legal action. Short staffed, I had little time to get to know many of the other staffers. At this point, a classmate, Martha Talley joined and it was really with Martha and Ron that I had the most interaction.
For several weeks, Martha and I spent most of our time in the Senate Law Library where Jim, the Law Librarian graciously gave us latitude to conduct our work. I never ate so much junk food as I did drafting pleadings.
I was assigned the threshold question of whether the jurisdictional amount in controversy was met. For a Federal Court to accept jurisdiction of a case, the plaintiff must prove that the amount in controversy meets a minimum threshold level, which at this time was $10,000. Therefore, the Committee had to prove that the value of the tapes was greater than $10,000 in order to even argue that their subpoena should be enforced so they could get the tapes. This issue presented a challenge as the actual value of the nine tapes sought in the subpoena, if measured by the physical cost of the tapes, did not amount to $10,000. I was responsible for drafting the argument that it was the historic and unique value of the recordings which should be the measure of value and took them over the threshold of $10,000. If I didn’t succeed then the Committee’s lawsuit to obtain the tapes would be dismissed.
Chief Judge Sirica would handle both the Committee’s case and The Special Prosecutor’s case for the tapes. The Special Prosecutor had a more compelling reason to be provided with the tapes as it was seeking them for a grand jury investigation of criminal activities. The Watergate Committee, on the other hand, had no authority to pursue criminal activity so it’s need for the tapes was civil in nature. This difference as to why the tapes were desired would determine who would ultimately get them; evidence needed in a criminal matter takes precedence over that needed in a civil matter.
I was privileged to watch two masters of the courtroom argue the case respecting the Watergate Committee. Sam Dash argued for the Committee and Charles Alan Wright argued for the President. Dash argued that the President was not above the law and must be required to honor the subpoenas while Wright argued granting the relief the Committee sought was tantamount to undermining the concept of Executive Privilege and would set bad precedents for future presidents.
In the end the Court dismissed The Watergate Committee’s lawsuit on a procedural technicality, declining to address the substantive issues raised by The Committee.
The procedural technicality that led to the dismissal of the Watergate Committee’s suit was on the very point of law I researched and drafted, the $10,000 threshold in order to have jurisdiction to plead. I was crestfallen when the lawsuit was dismissed. In chambers after the ruling, Sam bade me to step forward and introduced me to Judge Sirica as the drafter of the point of law on which the suit was dismissed. Judge Sirica complimented the thoroughness of my work and with a nod and wink to Sam, said, “In any other situation, your argument would have been sufficient…Professor Dash will explain it to you later”.
As we returned to our offices, Sam explained what the judge could not say: “sometimes reality will require a different result; this was one of those times”. Sam was a master of conveying a meaning in a few carefully chosen words.
At the same time that our case was dismissed, the Special Prosecutor prevailed and Judge Sirica ordered the White House to produce the tapes for the court to determine if the grand jury should hear them. The dismissal of our case meant that the Special Prosecutor would have a clear field to pursue the evidence.
The opportunity to learn from Sam, Jim and Ron during the prosecution of the Presidential Tapes Suit were invaluable for me as a litigator in my later years, they taught me how to organize my thoughts and arguments in pleadings as well as in court. To this day, I shun the use of the word “regarding” in favor of “respecting”, a bit of grammar legacy from Jim.
After the long and intense days working on the tapes suit, a return to normalcy was welcomed. I was able to return to California to deal with the administrative details of organising my stay in DC over the fall semester. I met with Dean Hill, informing him that both Martha and I had secured clerkship with the Watergate Committee. Dean Hill was delighted that he could report to a sceptical law faculty that the first two interns were clerking for the Watergate Committee and he took care of all administrative matters for us enabling as to return.
In the meantime, the Committee had voted to file an appeal, the drama quickly shifted to the fight for the tapes between the Special Prosecutor, Archibald Cox and the President. In October, Cox issued a subpoena for the tapes. On October 20, a day after Cox rejected the “Stennis Solution” – that hard of hearing Senator Stennis would listen to the tapes, Nixon ordered Attorney General Eliot Richardson to fire Cox. Richardson refused, as did Deputy Attorney General Ruckelshaus who both resigned. Solicitor General Bork then fired Cox prompting the media to characterize the matter as the “Saturday Night Massacre.”
At this point I suspected that the tapes would support Dean’s testimony that Nixon knew of the botched burglary a few days after and was involved in the cover up.
When I returned to DC our group, the litigation team, was busy handling among other legal matters, immunity orders and the lawsuits file by Nixon’s friend, Bebe Rebozo and ardent Nixon supporter, Rabbi Korff. All of this work could be done in the Committee offices rather than the Senate Law Library.
As a result, I was able to interact more with other Committee staffers through occasionally assisting staffers in Dave Dorson’s and Terry Lenzer’s group, working on the dirty tricks and the milk fund investigations.
I recall sitting in on interviews of counsel connected to the White House Domestic Council headed by John Ehrlichman. They were abusive and arrogant, refusing to answer any question posed to them and responded generally in a sneering manner, questioning who we thought we were.
Everyone will have personal memories to contribute so I will dwell on two which involve the Committee staffers as a whole. The first was a party whose theme was, Who will succeed Agnew as Vice President? I think Julie Smith, among others, organized the event in someone’s apartment the night of Nixon’s announcement. Everyone was invited to bring their favorite liquid refreshment and to bet who would be chosen. What I wore, what music, what conversations, what predictions, who won the pool…all hazy memories. I remember clearly that you had to go into the bathroom to retrieve your booze which sat chilled in a bathtub filled with ice. Everyone was fairly lubricated and in high spirits that night. I could have sworn that Daniel Schorr, a respected newsman and one of the original twenty on ‘Nixon’s Enemies List’ was there as was a young Leslie Stahl. There may have been other members of the media but I just don’t remember.
I also remember an event which took place in the rotunda of the Capitol. It was the special pre-screening for the Committee of a documentary on Watergate by Bill Moyers. It was well received and noteworthy in that when Moyers said, “I’m standing in the great rotunda…”. Ron Rotunda jumped on a chair, yelled and pumped his fist!
There were too many good memories but as time slips by, so does the clarity of those memories.”
I left the Committee in January 1974 to return to law school. Between the continuing media coverage and updates from Ron, I followed the increasingly tense situation in DC. Legislatively, the focus of the constitutional crisis had shifted from the Senate to the House as the tapes, now in the hands of the Special Prosecutor, revealed possible criminal activity by the President’s closest aides.
When the House Resolution was passed establishing the Judiciary Committee on Impeachment, given all that had come to light at this point, I suspected that the tapes held evidence of a cover up involving the President, that he was guilty of obstruction of justice and other misdemeanor crimes and would be possibly impeached. Since, at the time, only one other President had been the subject of impeachment proceedings, this was a constitutional crisis. The media was closing in on the question that Senator Baker had ominously repeated during our Committee hearings…”What did the President know and when did he know it?” The House Judiciary began hearings on possible impeachable offenses by the President. John Doar was appointed Special Counsel to lead the House Judiciary Committee on Impeachment investigation. As a historic note, Hillary Rodham Clinton was a staffer on that committee. As their investigation now dominated the headlines, the Watergate Committee’s work was winding down and staffers, particularly those in counsel positions were leaving for their next job. Left behind was the unfinished work of closing up the Committee responsibilities under Senate resolution 60 and issuing a final report. Sometime in the Spring of 1974, Sam Dash called me, inquiring about my plans for the summer. I told him I was interviewing for a traditional third year summer clerkship with law firms, he instead offered a paid clerkship to help with wrapping up the work of the Watergate Committee. That summer, I returned to the Committee offices, now mostly empty with many staffers gone, my days were spent in relative solitude. Much of the time, I reviewed documents to help prepare a draft of the Watergate break in and cover up portion of the final report.
The political atmosphere in Washington was now at a fever pitch. The Special Prosecutor had gotten the tapes, it was increasingly apparent that the House Judiciary Committee, led by Peter Rodino D-NJ, would likely vote out Articles of Impeachment of the President as some of the Republicans would break rank and I was glad to be back for a front row seat on the unfolding constitutional crisis.
One day, like a bolt of lightning from above, Sam called me in with an unusual request. “Senator Ervin would like to speak with you in his office”. Never having met him, I was in awe and more than nervous. I went home, put on a coat and tie and by the time I reached his office I was completely soaked from the walk back in the sweltering heat. I was ushered into Senator Ervin’s office. He was sitting at his desk and motioned me to sit in one of the chairs across from him. I quickly looked at the area around him, at the photos of him with well-known public figures. I was nervous but excited. With his eyebrows dancing like puppets on a string, he got to the point, “Senator Mansfield believes that the House will approve Articles of Impeachment. The Senate must prepare for a trial. Sam Dash has recommended you to serve as Custodian of Records for the trial. Are you interested?”
I was excited to be offered the position of Custodian of Records which meant I would be responsible for maintaining and providing the documents for the Senate Trial. My heart leapt to my throat, choking my response, “Absolutely,” I responded weakly.
Shortly afterwards, by a vote of 27-11, the House Judiciary Committee approved articles of impeachment. In early August 1974, I returned home, as I had done the August of the year before. But this time, to delay finishing law school for a place in history. Celebrating my good fortune a bit too vigorously on my birthday on August 7th, I was awakened in the late afternoon of the next day and to my dismay told “your fifteen seconds of fame just vanished…President Nixon resigned!” I pulled the covers over my head and went back to sleep.
I would graduate with my LLB in law the following year. Professionally, I did not use being part of Watergate for a future position. Instead I chose to return to the San Francisco Bay Area to work on issues of environmental law.
The Watergate Committee experience was a learning one in which I gained valuable experience from excellent mentors like Jim Hamilton and Ron Rotunda on the law and Sam Dash who took me under his wing in the summer of 1974 and taught me about politics as well as social justice.
The biggest difficulty in investigating and uncovering facts was the arrogance of the White House and administration officials. The biggest roadblock was, in my opinion, the attempt to block the progress of the investigation by some senators, including the leaking of information to the White House by the Minority Chief Counsel. I don’t think there was ever a doubt that the full story would eventually come out. Unfortunately, few of the recommendations of The Watergate Committee were adopted and those that were, have been eroded by partisan politics.
The most important lesson that can be learned from Watergate is that no one is above the law.
Can it happen again? It is happening now with Trump and Russia, the firing of the FBI director and the appointment of a special prosecutor.