James Davey Third Interview

The check for the meal at which the break-in was planned, from Trial Exhibits 148 and 149, 6
is attached at Tab 2.
58
Interview of James F. Mr. Davey
Session #3 – June 10, 2008
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is James F. Davey. The interviewer is
Steven P. Hollman. This interview was conducted by telephone on June 10, 2008, commencing
at 4:00 p.m.
Mr. Hollman: Good afternoon, Jim.
Mr. Davey: Good to hear from you again, Steve. Sounds like we have an interesting topic for
this afternoon.
Mr. Hollman: I think we do, yes. So I’ve asked that we try to address the entirety of the
Watergate incident in this afternoon’s session. So that takes us back all the way
to 1971, just after you became Clerk of the Court.
Mr. Davey: Does it take us back that far?
Mr. Hollman: I think so, at least, you know, the first —
Mr. Davey: The break-in was June of ‘72. 6
Mr. Hollman: Right. And actually, I guess in the minds of some, the break-in was precipitated
by the Pentagon Papers leaks which caused the White House to create its
Plumber’s Unit.
Mr. Davey: You’re right.
Mr. Hollman: And that apparently lead to the bugging of the Democratic National Committee
headquarters in ‘72 and then the burglary in June of ‘72.
Mr. Davey: Yes, you’re right.
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Mr. Hollman: So my first question is, you must have received news reports or read news reports
of the burglary, and what was your reaction?
Mr. Davey: Well this was real soon after I took over. I can’t give you a reaction at the time. I
just don’t remember. I was so darn busy in those days with the administrative
mess that we were tying to straightly out. I told you in the last interview that
administratively in the late ‘60s and early ‘70s, the court was a mess and there
was no modern management techniques, there was nobody looking at the whole
picture. And our court study had identified a number of areas where efficiencies
could be made, and I was working hard as a young man trying to straighten that
out. And I hadn’t made a lot of friends during the study working in the court.
And, you know, when you’re consolidating offices and eliminating offices, that’s
kind of tough business. So I was really focused more on the administration
aspects of my job than individual cases. And we had gone to an individual
assignment system in ‘69 for criminal cases, and so I didn’t have an immediate
reaction, other than it will be a case coming to us. And at that point it was just a
break-in. Certainly it wasn’t anything like, you know, when Haldeman and
Ehrlichman and Mitchell got involved later on as a result of that. So no big
reaction.
Mr. Hollman: Can you recall when Watergate sort of entered your consciousness as anything
more than a garden variety break-in?
Mr. Davey: It was during the course of the trial, and it was not so much from what was
happening in the court, because you know they were arraigned and all, and there
was not much going on. But Woodward and Bernstein were certainly active, and
it was through those reports that we knew that we had more than the garden
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variety of case. In fact, I remember talking to a Judicial Conference, I believe it
was in May of ’73, and I was giving some statistical summary of the cases, and I
said, you know, statistics can be very misleading. For example, we only had one
burglary last year; it happened to be Watergate. [Laughter]
And so, you know, as it continued and then when the trial started and there
was, obviously, by then people knew there were more than just these burglars
involved, and the question was how to find out the full story. And so as it went
along, as Woodward and Bernstein — it was every day in the paper, and, you
know, you had the Leslie Stahls and the Connie Chungs in their younger days,
and I think even Charlie Gibson, but I can’t remember for sure about him.
And they were nosing around, and they knew when they got to my office
that they weren’t going to get anything, that wasn’t, you know, there was no
background information and there was no scoops. So I can remember telling
Leslie one day, it must be a slow day for you, your down my way, ‘cause you
know you’re not going to get anything. But when they started snooping around
— not snooping around, doing their job, although Woodward and Bernstein,
Bernstein went beyond, he conned my courtroom deputy into releasing jurors’
names, and that didn’t set well. The courtroom deputy couldn’t give him a copy
of anything with the jurors’ name but he, I don’t know how he got the rationale,
he was an excellent courtroom deputy, and he served Judge Sirica very well, and
we gave him a reprimand, but that was about it. It was Bernstein who conned him
into letting him look at the card. But I’m deviating.
So, you know, it just kind of grew, and then when the trial ended, there
was no, none of them would talk, implicate higher-ups. My recollection is that
Christine Habeeb of Hogan & Hartson did background research on Watergate and participated 7
in the interview.
A copy of the March 19, 1973, letter from James W. McCord, Jr., to Judge Sirica is attached 8
at Tab 3.
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Judge Sirica purposely put off the sentencing as long as possible and, you know,
hung over the largest possible sentences. And my recollection is — and one of
the things, Steve, that I’m hampered with in all of this is that we’re talking about
30 years ago, and without having any documents, my recollection isn’t as good as
it otherwise might be. I’m mentally still as sharp, and I went two-for-three last
night, so I can still hit the ball, but time takes it’s toll. But my recollection is that
the original trial — and Chris , maybe, or Steve, you can help me — of the 7
burglars ended in ’72. Do either one of you know for sure?
Mr. Hollman The trial started in January of ’73 for the Watergate Seven, which is the five
burglars along with Hunt and Liddy, and then Barker, Gonzalez, Martinez and
Sturgis pleaded guilty on January 15 and Liddy and McCord were convicted on th,
January 30 of ’73. th
Mr. Davey: All right. So I do recall, and you can correct me on this one, that they were all
pending sentencing, and still nobody would implicate anybody. And finally
McCord wrote a letter to Sirica in March of ’73 saying there were some people up
on top, or to that I mean that was the link that eventually led to Haldeman,
Ehrlichman and Mitchell, as I recall it.
Mr. Hollman: Your memory actually is terrific; that’s exactly right. I actually have a copy of
the McCord letter in front of me which has a file stamp on top of it. It’s stamped
as filed March 23, 1973, James F. Davey, Clerk. 8
Mr. Davey: Uh huh.
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Mr. Hollman: And so one of the questions I have for you — I understood that the letter came to
the court under seal and that Judge Sirica opened it before FBI agents, among
others, and I wondered whether you know — I wondered how it got stamped?
Mr. Davey: It would only have been, well, Cappy could do that. He had my stamp. And it
would have been Cappy, the courtroom deputy, if it didn’t come, you know,
through the normal over-the-counter. He would file it. And did he keep it under
seal?
Mr. Hollman: That I’m not sure of. I think there was tremendous precaution surrounding the
opening of the letter.
Mr. Davey: Yes, that sounds like Judge Sirica. But I don’t remember — so they gave it a file
stamp, but you know, once they give it a file stamp it’s supposed to appear in the
docket. So I’m not sure just when the public became aware of it.
Mr. Hollman: It’s also, it’s stamped as a true copy by Hugh E. Kline, Clerk.
Mr. Davey: That would have been the Clerk of the Court of Appeals.
Mr. Hollman: Oh yes; it says that. The Clerk of the Court of Appeals for the D.C. Circuit.
Mr. Davey: He didn’t do anything. The Clerk of the District Court did all the work.
[Laughter]
Mr. Hollman: Do you recall the reaction within the courthouse when the letter was opened, or
were you made aware of its contents?
Mr. Davey: I remember that there was just general excitement. I mean, I remember where I
was when Kennedy was shot, but I don’t remember where I was when this letter
was opened. You know what I mean?
Mr. Hollman: Any discussion between your office and Judge Sirica’s chambers regarding the
content of the letter?
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Mr. Davey: No. Judge Sirica wouldn’t communicate with the Clerk’s office other than
through Cappy, his courtroom deputy, and there wouldn’t have been any — I just
don’t remember the specifics on this one. I do remember the day John Dean came
down my hallway. This was later after he started singing and was concerned
about his wellbeing and wanted to lodge a copy of all his documents with the
prosecutor and with the court that would support the testimony he would be
giving.
Mr. Hollman: So did you actually handle John Dean’s documents?
Mr. Davey: I did. And my recollection is that he tendered them to — tried to tender them to
Judge Sirica, and yeah, this would have been the batch, because he had already
been to the prosecutor and lodged them with him, and then he went to Sirica.
And Sirica says no, that’s why we have clerks of court. He came down and —
Sirica came down, and they were only gonna have Judge Sirica have the
combination to a safe in my personal office. I remember Judge Sirica couldn’t
figure out — it’s a three to the right, two to the left, one to the right, and they
tried it a number of times. And I remember the FBI agent saying the prosecutor
didn’t have a problem with this. [Laughter] I said to myself, that’s not the right
thing to tell the judge. [Laughter]
So Sirica ended up getting frustrated and said leave them with Davey and
let him have the combo, and let my law clerk — his name’s escaping me right
now — Christofferson, Todd Christofferson, let him have the combination, too.
So it was Todd that would come down and open the safe when the judge needed
to see that stuff.
Mr. Hollman: Did you get to index or categorize the documents?
A copy of the subpoena issued by Archibald Cox to the president on July 23, 1973, and filed 9
with the Clerk the following day is attached at Tab 4.
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Mr. Davey: I never saw them. They came to me under seal, and early in my career I got so
much sealed stuff in so many different cases, CIA and FBI and — in fact, a short
story: before I got there when they had a sealed document they put a red seal and
wax on it, you know, and the judge would sign it and whatever. And they had
this big stamp, the Clerk’s office stamp, like a big anvil. And the Clerk would
carry this big anvil up to the judge with the wax and the seals, and man, they’d
make that damn thing official. And some of them had ribbons. And I made the
conversion from that to hand stamps, which the Clerk told me was a terrible thing
because they could get lost, and I began using scotch tape instead of wax — I
remember Judge Corcoran saying, “Hey, Davey, are these things really sealed
with all that other stuff not being there?” [Laughter] But my point was, I made a
point very early in my career that I would never ever look at anything that was
lodged with me under seal because I wanted to be able to go up and testify that I
had never seen it and it’d been in my possession. So I have no knowledge of
anything that was — all I know is what the envelopes looked like and that some
were bulkier than others. So I don’t know what John Dean had.
Mr. Hollman: Well, the McCord letter, I guess, got to Sirica, and then sometime after that, some
months after that, we have in our file here a copy of a subpoena issued by your
office to the President of the United States. 9
Mr. Davey: Yep. Is that the one that led to the Saturday Night Massacre?
Mr. Hollman: The July 24th, 1973, subpoena signed by Archibald Cox.
Mr. Davey: Okay. There was a July 23 one. You said July 24 ?
rd th
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Mr. Hollman: Yes. Actually, it’s signed July 23 by Cox and stamped as filed on July 24 by rd th
your office.
Mr. Davey: Okay. So that’s the one.
Mr. Hollman: So were you actually involved in the issuance of that subpoena?
Mr. Davey: No. Who was the — I was not. I don’t have that subpoena in front of me. Who’s
the deputy that signed it?
Mr. Hollman: It looks like Robert Line.
Mr. Davey: Robert Line! Yea. You know, I might have been. In fact, yeah, because
normally Bob wouldn’t do that because he was my secretary. I never pronounced
that word right; I’m glad they changed it to administrative assistant. Secretary, I
always say secretary. Robert Line was my administrative assistant, and I
remember that this may sound self-serving, but it’s my recollection for what it’s
worth — I knew that this was going to be significant, and it’s normally signed by
a deputy clerk, and I thought I’d give Robert Line a chance to sign that. I think
it’s the one and only subpoena he ever signed. So I do vaguely recall them
coming to my office rather than through the courtroom deputy.
Mr. Hollman: And it’s signed in the Marshal’s return section as having been received by J. Fred
— I can’t make out the last name — as Special Counsel to the president on behalf
of the president on July 23 and then must have come back to the court for filing.
rd,
And any reactions at the time to a pretty significant document being issued out of
your office?
Mr. Davey: Not really. There may have been, but you know, I wish I could remember all of
it, but no. I’m sure it was played up in the papers once it was filed, and we knew
we were onto something big, but that whole — there were so many different
A copy of the president’s July 25, 1973, letter to Judge Sirica declining to obey the command 10
of the Cox subpoena on separation of powers grounds is attached at Tab 5.
President Nixon’s Executive Order abolishing the Office of Watergate Special Prosecution 11
Force is attached at Tab 6.
66
developments in all the cases. And I was, as Judge Gesell reminded me, Sirica’s
only one judge, and Watergate’s only one case. You got other people to take care
of. So can’t give you anything hot on that.
Mr. Hollman: The next significant document that we have, which I think you provided, actually,
is a copy of a letter that Richard Nixon sent to Judge Sirica on July 25 , the day th
after the return of service on the subpoena was filed by the court. That one also 10
has your stamp and signature on it and is shown as having been filed with the
court on July 26 in which he, in essence, says that based on separation of powers th
concerns he won’t be complying with the subpoena.
Mr. Davey: Right.
Mr. Hollman: Any commentary at the courthouse regarding that letter?
Mr. Davey: You know that was an interesting time because it was, you know, it was as the
president said in his letter, we’d never had to do this before, and we’re not gonna
do it now. And I’m sure the court was buzzin’, buzzin’, buzzin’ over it. But 11
I’m sure judges were talking among themselves as to whether or not “Maximum
John” had gone too far or whether he had — was well within his rights.
I remember, you know, Judge Sirica wasn’t noted for his judicial intellect,
as somebody like Judge Gesell. He was more of a — well they called him
“Maximum John” for the tough sentences he handed out. But he wasn’t — he’d
never be a court of appeals judge, let’s put it that way. And there were some that
questioned his overall ability. I wasn’t one of them. I never — I didn’t get into
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that kind of business. But I’m sure there was some doubts as to whether or not he
had the authority to do this, and, in fact, I believe in his own book he, in reflecting
upon this, wondered whether he could enforce that subpoena. And he was
questioning, jeez, if I’m just one federal judge and if other federal judges feel that
they can compel the executive branch to turn over documents, you know, this
could open the floodgates, and he really worried about that. But I think he finally
concluded that if he had the authority to issue the subpoena, which we did, then
he had the authority to enforce it. And the rest is history, as they say.
Mr. Hollman: Was your office interfacing at all with Archibald Cox around that time?
Mr. Davey: Only to the extent that we would — the prosecutors, you know, we’re really
ministerial, you know, the Clerk’s office. Not active, wouldn’t be actively
involved in anything, other than we developed a system, because of Watergate,
that was mutually beneficial for the prosecutor, whoever they might be, to clue us
in before they filed something that was going to be on the public record so that
they would provide multiple copies, and so that the press — just thinking about
the logistics, if only one member of the press gets to see and they get a scoop, you
know, they’re way ahead of everybody. We tried to work out a system that any
significant document that was going to be filed, we’d have extra copies made and
available as soon as it was filed. So to the extent we had those administrative
conversations, we had a number of those, and we had numbers of conversations
over space, and then we had to provide space for the special prosecutor and the
defendants and all that administrative stuff, but nothing dealing with the merits of
the litigation.
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Mr. Hollman: How did you deal with press inquiries, and with the concern about each member
of the press wanting to scoop everybody else, and about making sure that all
facets of the press were treated fairly?
Mr. Davey: Well, the first thing we did, we set up a — we created a position within our office.
Clara Harris was the Watergate press liaison. And there was a pressroom set up
in the courthouse. And this system evolved over time and my recollections are
that we did have organization meetings with the press, especially not only over
access to documents, but also once we got into the trials, how many seats
allocated to the press and who within the press would get those, and we had an
advisory committee from the press representing the print media, the TV and
whatever, and we let — I remember letting them — I’d say Judge Sirica let them
have half the courtroom. I forget what that was, sixty seats or so, there’s
something in one of my other documents, and they could let them allocate it
among themselves and come up with a formula, and that worked to everyone’s
advantage.
The other thing about the papers is that until we got everybody on board,
the prosecutors and all, that they would provide extra copies from the file we had
a member of the press designated as a rep that would get whatever was filed and it
was up to that person to take care of the distribution to the rest of the press, and if
he didn’t do his job then it was him, not us. So we worked it out that I don’t think
we had many, if any, complaints that we were — I know that we were never
intentionally giving out scoops. Although, as I indicated before, we were giving
out a scoop letting Bernstein look at jurors’ names. But, so we had a pressroom
The trial referred to is United States v. Mitchell, Criminal No. 74-110. A transcript of the 12
indictment is attached at Tab 7.
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in the courthouse, and they had their own copy and copier, and they had a
designated person. So it worked out pretty good.
Mr. Hollman: Can you talk about how you were able to empanel a jury for the major coverup
trial? 1
2
Mr. Davey: Well I didn’t have much to do with it. It was Sirica and, well, the logistics, you
know, were — jeez I wish I’d kept my notes. I don’t know how many we
summoned, but we always summoned more than we needed. And I think I told
you before that we had, for the cover up trial — Judge Sirica wanted to send a
questionnaire out in advance to the jurors and worked it up, Todd and the lawyers,
so that they could prescreen jurors. It’s a common technique now. I’m not so
sure it wasn’t the first time it had been used, but I do remember them finally
getting something they wanted to send out, and the judge asking the lawyers if
they were all set with it, and I think I may have mentioned earlier a conversation
that John Wilson, who was Haldeman’s attorney, said that he would reserve the
right to object at some future time, but we sent all that out and got all these back,
and two weeks before the trial was going to start, Wilson challenged the process
saying it tainted the potential jurors, so we had to send a whole bunch of other
summons out just cold. So we ended up with a big pile of people, and we brought
them, not all of them, but as many as could fit into the ceremonial courtroom as
we could. And Judge Sirica — right behind the ceremonial courtroom is the
Judge’s Executive Session Room, a big long table that 25 people or more could
sit around, and Judge Sirica sat at the end of that table, and seated next to him was
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the court reporter, and then there was a blank seat available for prospective jurors.
And around the table sat the defendants, Haldeman, Mitchell, Ehrlichman,
Parkinson and Mardian and their attorneys and then we would bring in individual
jurors who were sitting out in the big courtroom, and Judge Sirica would question
them. And I can’t recall now whether, well the transcripts would reveal this, but I
can’t recall now whether Judge Sirica would then let the attorneys ask additional
questions. In any event, once he had completed the round of questioning, then the
juror would be excused and the judge would ask the lawyers if they, what they
thought, you know, they had so many challenges for cause, and he’d ask them
what do you think, and they’d either say bring this person, bring this person for
questioning.
[End of TAPE 1, side A; begin TAPE 1, side B]
John Wilson who was 70 years old at the time, maybe 80, he seemed like 80 but
that was before I was 70. [Laughter] He said this guy’s a deadbeat, the juror
we’re talking about. He retired at the age of 50, he doesn’t have a job now, he
doesn’t have any hobbies, he sits around and watches TV all day. We don’t need
a deadbeat on the jury. So Judge Sirica called him back and started asking him
about this: “You’re 50 — you retired at 50; how come?” He said, “Well I was a
cop and I hadn’t stopped a bullet by then and I was eligible for retirement and I
didn’t want to extend my chances.” So he had a good reason to retire at 50, and
he didn’t have any hobbies because he was taking care of his wife who had a
disabling disease, and she had just passed away three or four months ago. And
you get an altogether different picture of the guy. So this was the benefit of
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questioning and then letting them go and then bringing them back in. It turned
out he ended up being the foreman of the jury.
But I have a lot of funny stories about jurors coming in — one with six
kids; and Sirica said, “You wouldn’t want to serve.”
But she said, “Oh, I’d love to be away from them for three or four
months.”
But the funniest one in my notes is this one gal just couldn’t get calmed
down, and she said, “I’m just a normal person, and here are all of these, you
know, Haldeman, Ehrlichman, Mitchell and these people around the room, all of
these people that run Washington.” And Bill Hundley, who was Mitchell’s
attorney, reached in his pocket, and he pulled out a whole bunch of pills, and he
says, “Which color pill would you like? You think you’re the only one that’s
nervous around here?” [Laughter] I don’t know if she was ever accepted. But
that’s how the process went, and it was conducted in secret, and the transcripts
weren’t made available. And the press got a little bit antsy about what was going
on behind closed doors. But they eventually got a large enough panel so that they
can — and I forget how many days this took, but I do remember getting in trouble
with Judge Sirica. It was clear to me that with the pace of the questioning — and
this backs up — when the courthouse was built, the top two floors were devoted
to bedrooms and waiting areas and bathrooms for jurors so when they were
sequestered — you know, they couldn’t go home — they would be sequestered in
the courthouse. And for the first time since they knew in this case that this was
going to be a long, drawnout one, we arranged for a hotel, which is much more
expensive but much more friendly to the jurors. And I remember cancelling —
Mr. Davey’s “Watergate Funnies” document is attached at Tab 8. 13
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seeing how the questioning was going and cancelling the reservation that we had
for this weekend because we weren’t going to get around to it. And Sirica found
that out and just blasted the hell out of me. That would be a leak showing that
we’re not making progress, whatever. Judges didn’t always think of financial
implications. [Laughter] Remind me to mention that when we get to Harold
Greene and AT&T.
Mr. Hollman: He was concerned that someone would find out that the rooms set aside for jurors
had been canceled?
Mr. Davey: Yes. He also — in the first couple of days, I would be the reporters’ lone link to
what was going on, and at the end of the day I would meet with them out in the
corridor outside the pressroom, and I would tell them how many jurors were
questioned and how many were accepted. And after two days of that and the
Washington Post saying that the juror process looked like it was bogged down,
Judge Sirica got mad again and said don’t talk to the press anymore. So the day I
appeared and told them I didn’t have any statistics, they tried to make a story out
of that: “Why not? You’ve been giving them to us before. What’s going on?”
[Laughter] He was very — he didn’t want anything indicating that anything
might be going wrong or having difficulty.
Mr. Hollman: You provided among the materials that you sent a document that’s labeled
Watergate Funnies and it wasn’t clear — some of those related to personal 13
experiences you seemed to have had and others refer to you in the third person, so
I wasn’t sure whether that was something you had created or something someone
else created.
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Mr. Davey: I created it. Like which one is in the third person?
Mr. Hollman: It says [Dec. 4] “Ehrlichman to Davey ‘Never believed in Letters to the Editor
before (re seats for those waiting in line).’”
Mr. Davey: Ah yeah. I guess I got used to the judges calling me Davey. Yeah, somebody had
written a letter to the editor. We didn’t have a very good system. People had to
wait in line outside the courthouse for the spaces that were available for
individual members of the public, and somebody wrote a letter to the editor and
said, you know, if you just handed out, if you only got 20 and you handed out
pieces of paper 1 through 20, they could get them and then they could go home or
the rest of the people could go away. You follow me?
I said, well wish I’d thought of that. [Laughter] So that’s what he was
referring to, and we went ahead and implemented the suggested system.
Mr. Hollman: You have a note about a comment that Mitchell’s attorney Hundley made just
about three days before jury selection started [Oct. 16]. Can you tell me what you
recall about that?
Mr. Davey: Yeah, that was the Friday before the jury selection was to begin and the judge —
after we had been working on this for a long time nobody had thought about the
actual day of the trial, and who was gonna sit where in the courtroom. So Judge
Sirica asked me to get the attorneys in and work out a seating arrangement and
get the attorneys to agree on it. So at that point we only had five left. I think we
started with a seven. I know we had Gordon Strachan who was indicted along
with these other guys, but he went off separate. In any event, that day we were
down to five. And they were, I called them, I said we had three big fish and two
little fish. The big fish were Mitchell, Haldeman and Ehrlichman, and the little
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fish were Parkinson and the guy from Arizona, Mardian. So Bob Line and I set
the thing up so there was a big fish and then a little fish and a big fish at their own
tables, and it turned out that everybody liked it. But then Hundley, just before we
were breaking, my recollection is he also had indicated that — well it was a little
bit different than this but I do remember him cracking a joke saying, Hey, you
know, I don’t have much time left; I’d better come up with a defense. And he
was the guy throughout the trial when things would get tense, you could count on
him to come up with something. Wilson would be fun, too, but you had to break
the tension, and Hundley was a good one to do that.
Mr. Hollman: You mentioned in connection with jury selection that one of the juror’s only news
outlet was watching Warner Wolf.
Mr. Davey: [Laughter] You remember Warner don’t you? He ended up in New York, didn’t
he?
Mr. Hollman: Yes he did.
Mr. Davey: That whole thing — too bad we couldn’t tape that juror process. People were
trying to be honest for the most part. I think there’s also, in juries, there’s always
the tendency to try to get on. Some people, you just think they want to be on this
case. But I didn’t sit in on it all because I had Judge Gesell and other judges to
serve. I was just going in and out from time to time. I’m sure there were a lot of
other interesting exchanges.
Mr. Hollman: So was that guy impaneled? The Warner Wolf guy?
Mr. Davey: I doubt it. [Laughter]
Mr. Hollman: You have a note here about John Mitchell’s chauffer parking where he ought not
to have.
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Mr. Davey: Oh yeah, yeah. He came down; he parked in Judge Bazelon’s — Chief Judge
Bazelon — Chief Judge of the Court of Appeals Bazelon. [Laughter] And he
wasn’t even supposed to be down there, I don’t think. And I remember, it was
funny because that even made the newspaper.
Mr. Hollman: I can imagine. Any reaction from Judge Bazelon’s chambers?
Mr. Davey: [Laughter] There might have been to Hugh Kline, but I think the only time I
talked to Judge Bazelon was that story I gave you about him and Judge Gasch.
Mr. Hollman: Tell me, were you present when the first tape was played?
Mr. Davey: Let’s see. Yes. I wanted to say yes because any time there’s a first, there’s a
chance for a problem, and I wanted to be there. And we did have a problem.
Sirica, I mean you know we had tested it all out. We — that was the special
prosecutor’s responsibility. He brought in all that stuff. That wasn’t court stuff,
and I was relieved that we didn’t have to mess with that. But I was there when
they tested it out before we tried it, and everything was working. And I forget
who we had sitting up in Sirica’s spot, but it was working up there. But then
when the time came, Judge Sirica couldn’t get the safe open, and they couldn’t
get the earphones to work. He was mechanically challenged. [Laughter] In any
event, we did get things finally working.
Mr. Hollman: And what was the reaction in the courtroom when that —
Mr. Davey: Oh, there was some laughter. I remember some snickering laughter that —
whatever. But that also reminds me that before they played the tape, we had
those tapes, and the tape machines — they had been subpoenaed and turned over,
and we had them in the vault up on the third floor. And prior to any of the people
coming in, Haldeman, Ehrlichman, Mitchell and anybody else that was testifying,
The letters are attached at Tab 9. 14
76
they’d go up into that vault, and we had it set up so that they could refresh their
recollection looking at or listening to what they had said before. So, in fact we
had a phone up there, and I remember being up there one day with Judge Sirica
and one of those guys and Cappy and the phone rang, and I answered it, and
somebody was looking for the Department of Interior. I said, “No this isn’t the
Department of Interior, but would you like to talk to Judge Sirica who’s handling
the Watergate case.” [Laughter] And they didn’t talk.
Mr. Hollman: Tell me about Johnny Cash and his wife visiting?
Mr. Davey: Oh, that was funny. He was — Sirica, I don’t know how that worked because I
had — Judge Sirica gave me two passes inside the well of the court that I could
give to anybody I wanted. And so, but Johnny didn’t get them through me. I
guess he got them through the judge’s staff. And I forget who told me, I think it
was Cappy, because the judge’s immediate staff, Todd, his law clerk and his
second law clerk who I can’t recall, and his secretary were very protective of the
judge. So you’d never find out anything from them. But I guess it was Cappy
mentioned that he was ticked that Cash didn’t come by. And it just happened to
be coincidental it was the tape that led to Nixon’s resignation.
Mr. Hollman: You included in the materials you sent down, Jim, copies of letters that your
daughter Lynn wrote to some of the Watergate defendants? 1
4
Mr. Davey: Yeah, wasn’t that something?
Mr. Hollman: Yeah, what prompted her to do that? Did she actually attend the trial?
Mr. Davey: Yeah, that was funny. They came in — Lynn was born in ’64, February of ’64,
and Scott was born in December of ’62, so this would have been, Scott would
77
have been 12, and she would have been 10. And I let them sit in my seats, and I
told them, I said when you get bored, come on down. They were down in about
15 minutes. But Lynn, she just on her own said I’m gonna write these people and
wish them Merry Christmas and see if I get a note back. And she’d always been a
little aggressive. And that’s the story behind that. And I thought Ehrlichman was
wonderful: “Sorry for being late but I was tied up.” [Laughter] So Lynn has the
originals.
Mr. Hollman: I thought it was sort of a nice reflection that the humanity of these criminal
defendants, that even while all of this was swirling along around them, they were
able to stop and send Christmas greetings to you and your family.
Mr. Davey: Wasn’t that neat?
Mr. Hollman: Were you in the court when the sentencing occurred?
Mr. Davey: I was. I had some — I thought I sent you a copy of that, but I was in the
courthouse that day. And it reminds me of another story just quick. We were —
when Aubrey was Chief Judge — maybe, if I told you this stop me — and we
knew there was a big snowstorm coming. And whether to close the courthouse
was always a close call or no call. So I said, “Hey, Chief.” It was his call, but he
had to have somebody relay it. I said, “I’ll go into the courthouse tonight. And
when you make your decision in the morning just give me a call.” [Laughter]
I was in my office, and I slept right through his call. He had to get
somebody else to make the calls to everybody. I tried to tell him I was there, and
he said, “Yeah, Davey, come on!” In any event, I was in there in the jury room
Davey’s notes from the date of the verdict are attached at Tab 10. 15
78
watching the football game when Cappy announced they have a verdict. In fact
I’m reading from my notes. Did I send you those notes? 1
5
Mr. Hollman: I think you did because I remember seeing them although I’m not sure —
Mr. Davey: Okay. I was there, and it was quite an emotional moment. Unlike a lot, well I
won’t say unlike a lot. Judge Sirica got the verdict forms, and then he let Cappy
read the verdict. This compared with, say, Judge Parker in the Hinckley case. He
would read the verdict.
In any event, they announced they had a verdict, and I made it a point just
to observe both the defendants and their families because it was quite a historic
moment, and I had a perfect position to do so because I was right inside the well
of the court and standing next to the defendants, and whatever.
But as my notes indicate, Jimmy Breslin was there. But it was very quiet
and hushed, and then Cappy started reading the verdict. There were multiple
counts and it just kept coming down. Guilty, guilty, guilty.
It got to Parkinson who I still to this day think was guilty but he had such
a small part — his attorney was Jake Stein — and they had a very little case
against Parkinson. In fact, his testimony took less than a day. He was accused of
— I forget what it was but it was copying something, whatever, he was an
attorney. And not guilty. And as my notes indicated, I looked at Parkinson and
his attorneys, his wife, and I felt back then happy and warm for him even though I
thought he was guilty and getting off. And importantly, Mrs. Haldeman and the
others I think congratulated Parkinson’s wife. That shows you some of the
humanity that was present. And none of the defendants indicated any — one way
79
or the other except Mitchell who as I indicated flushed and sagged a bit. The only
one that cracked was Mrs. Mardian. Mrs. Haldeman and Mrs. Ehrlichman held
up. She cracked at the end sticking her tongue out at the jury and approaching
Ben-Veniste and Neal when it was over, and saying we’re gonna get you.
And that overlooks the one thing that I think was interesting — is during
the closing arguments, I always try to get to the closing arguments of big cases.
What the hell, if I’m the Clerk I might as well get the prime time, you know.
James Neal for the prosecution was in the midst of closing, and it got awful hot in
the courtroom. You know, it was packed, and I don’t know whether we had let
additional people in. But I’m sitting in one of the two seats, and Sirica looks at
me, and you know, I gotta get GSA — the General Services Administration — to
cool the courtroom down. So I leave the courtroom and make the call to GSA,
and I say, Hey, you know, no ifs ands or buts — it’s gotta get cooler in Judge
Sirica’s courtroom. I don’t know what it takes, but you’ve gotta do it.
So I go back in the courtroom, and Neal resumes his — maybe he never
interrupted it — well anyway, he was still in his closing argument, and then you
hear this terrible banging and you could hardly hear. It was the damn GSA up
above the courtroom trying to get some vents open. [Laughter] And Neal says, “
… and to this day, the cover-up is continuing.” It was a classic case of an
attorney thinking on his feet. But that was my recollection of that.
Mr. Hollman: You mentioned also that Hundley had a comment when the Post misidentified
Strickler as Parkinson. Do you remember that?
Mr. Davey: I do.
Mr. Hollman: You said in your notes that he commented —
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Mr. Davey: They don’t know — Stein “has done the best job of all defendants’ counsel —
They (the press) don’t even know who his client is.” And I’m sorry but you’ve
got to put up with some of this deviation. When I decided to run for political
office after I retired, I sent a funding request to some of these defense attorneys
and other attorneys I had run into. And I got a note back from Jake Stein saying:
“Good luck. A gypsy tells me you’re gonna win.” But no money. And I felt like
sending him a note back saying thanks for the note, Jake, but seems to me the
gypsies stole the money. [Laughter] I didn’t — turns out I didn’t need his
money. So, sorry about that.
Mr. Hollman: But that was good. I think we’re coming to the end of our tape so I’m trying to
rush through the rest. Did you get to speak with the jury after they handed down
the verdict?
Mr. Davey: I would not have been the one to do that. Again, you gotta remember, strictly
ministerial. Not involved in any substantive aspects of the case. I do remember
there had been a good editorial about them during the course of their service, and
they were sequestered and they wouldn’t have seen that. So I sent them a note to
their home addresses after, I think it was right after the verdict, and sent along a
copy of that complimentary editorial, you know, and telling them their checks
would be in the mail soon. But no, I did not. I never would talk to a juror under
any circumstances.
Mr. Hollman: Tell me about your office’s involvement after the trial and sort of the tension
between confidentiality of the witness testimony and the evidence, and the
demand of the public and the press for access to that information.
81
Mr. Davey: Not our call. We would — and the lawyers knew and the press knew it wasn’t the
Clerk’s office making any decisions. That’s the judge’s call. So we wouldn’t
have been getting any heat down in the Clerk’s office.
Mr. Hollman: How about your role in sort of implementing the decisions once they were made
by the court?
Mr. Davey: Well, they knew I’m strictly ministerial, and it wasn’t anything that I could
change. So the knowledgeable ones wouldn’t waste their time, you know, talking
to me about anything like that. And the un- is that a word? — unknowledgeable?
The unknowledgeable wouldn’t know enough. [Laughter]. So yeah, whenever
it’s something sealed, there’s always discussion and whatever, but it wasn’t a big
factor with the Clerk’s office. Other than we have one hell of a lot of stuff under
seal, not only in the Watergate but many other cases. I sometimes thought they
went too far with that stuff.
Mr. Hollman: It did look, though, from the files we reviewed that Nancy had given us that the
judge sometimes made you responsible, for example I think it was Gesell made
you responsible for what got turned over to the Senate Committee?
Mr. Davey: Steve, I can just say this. I can’t conceive of Judge Gesell giving me any
discretion. [Laughter] You’d have to really refresh my recollection on that. My
recollection — you’re talking about the Oliver North case, right?
Mr. Hollman: No, I think this was earlier. It might relate to the Watergate case.
Mr. Davey: Hhhm. Davey has discretion in what’s turned over to the Senate Select
Committee?
Mr. Hollman: I think the comment was, I’m gonna leave this to you, you can turn them over just
so long, if you feel comfortable, just so long as you know that you’re responsible.
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It’s a note on the bottom of a letter from May 16, ‘73. The memo is from Chief
Judge Bazelon and Chief Judge Sirica giving authorization for transmittal of
exhibits to the Select Committee on Presidential Campaign Activities, and below
is a handwritten note which you signed. It says, “Judge Sirica orally authorized
me to turn these exhibits over to the custody of Mr. Hamilton, a member of our
Bar.”
[End TAPE 1, Side B; begin TAPE 2, Side A only]
Mr. Davey: You know it’s, if there’s any problems, it falls on you. Yep, now that rings bells.
Now I’m back in the arena of the ballgame that I’m familiar with, Gesell. You
had me, you threw me a curve there, young man.
Mr. Hollman: Didn’t mean to confuse you.
Mr. Davey: That reminds me of another story which is relevant. Some of them aren’t. One
night I picked up —
Mr. Hollman: They’re all entertaining by the way, whether relevant or not, so go ahead.
Mr. Davey: I came back from a — one night I picked up a lawyer. I can’t think of his name
now, but he was from Florida. And he was waiting for a cab, and I offered to
give him a ride. God, I can’t think of his name. But he had appeared before
Judge Sirica and Judge Gesell. And being curious and knowing he was an out-oftown attorney, I thought I might get some kind of response. So I threw out the
question. I says, “Hey, what’s the biggest difference between appearing before
Judge Gesell and Judge Sirica?” And, without any hesitation he said, “In Judge
Gesell’s courtroom, there’s only one lawyer. His name is Judge Gesell. In Judge
Sirica’s courtroom, he let’s you be a lawyer.” Interesting. Can’t think of the guys
name, but — so he let me turn stuff over to Hamilton in my judgment, but if
83
there’s any hell to pay, it comes back to me. I don’t recall having any problems
with that.
Mr. Hollman: Do you remember an incident involving a camera which was an exhibit going
missing?
Mr. Davey: Ooh —
Mr. Hollman: — and resulting in the transfer of the exhibits to a different vault?
Mr. Davey: Jeez, I vaguely remember that, Steve, but there was a camera that was missing,
and it was probably missing from the big vault and transferred down to the vault
in my office, but I’d have to get more recollection on that.
Mr. Hollman: It’s referring to a memo to the file that appears in the materials that Nancy gave
us. It’s handwritten on yellow paper. It says:
“Began inventory of 1827-72 exhibits on 6/13/79. I had moved these exhibits
from the second floor vault to the financial vault several weeks ago for two
reasons. One, the impending move of second floor vault to first floor, and two, I
noticed one of the Minolta cameras — Exhibit 24(b), a government exhibit, 24(b),
was apparently missing when I was in vault a month or so ago. It had been in a
gym bag on top of the file cabinet. I can’t be positive, but I’m almost certain that
it would have to have been taken in the last few months. I have been up to the
vault on a number of occasions and recalled seeing the two Minoltas within the
last few months.”
Mr. Davey: Hmm. I’ll be damned. That was me, right?
Mr. Hollman: It looks like your handwriting, but I’m not a hundred percent.
Mr. Davey: Yes, that would have been, which reminds me of another time we had a fire in the
vault and it wasn’t that vault, and all the inventory, every copy of the inventory
was in the vault. So we adopted a new procedure, that one copy of the inventory
went outside of the vault, too.
Mr. Hollman: That probably was sensible.
84
Mr. Davey: I do remember a case where we had some missing cocaine — or a drug of the
sort, and we never were able to pin that down. I think it was one of my courtroom
deputies that I inherited. Whatever.
Mr. Hollman: Well look, I think that’s a convenient place for us to stop this afternoon.
Mr. Davey: Very good.
Mr. Hollman: So I’ll be back to you in the next couple days to set up our next session.
Mr. Davey: Okay, Steve.
Mr. Hollman: Jim, I neglected to mention that I definitely want to include a little postscript from
your post retirement activities, including your run for office and your service in
the Rhode Island state legislature.
Mr. Davey: Oh yeah, I’ll be happy to tell you the one thing that I got accomplished.
Mr. Hollman: I think it’s more than one from the news articles I reviewed.
Mr. Davey: Yeah, I was a pain in the butt. I got the Chief Justice of Rhode Island to take
down a personal Web site. The Chief Justice — how about that? He was
advertising, he’s a Lincoln scholar, and for a fee, he’d appear and give you some
talks. But my biggest claim to fame was, they now actually have to be there to
vote. Before, you could have somebody push your buttons for you. And I didn’t
think that was right.
Mr. Hollman: Well, I’m with you.
Mr. Davey: And I didn’t even get any support from my Republicans on that one. They said
they wouldn’t stand in my way, but they wouldn’t line up behind me either.
Mr. Hollman: That would seem like a politically dangerous one to vote against.
Mr. Davey: You’d think so. You’d think so, but you don’t know Rhode Island. I gotta tell
you one story. One of Connie’s aunts came down to Virginia one time and she
“Nattering nabobs of negativism” is one of the most popular turns of phrase associated with 16
U.S. Vice President Spiro T. Agnew, who served under Richard Nixon until resigning in October
1974, after pleading no contest to charges of tax fraud. Agnew, who had a particularly
acrimonious relationship with the press, used this term to refer to the members of the media,
whom he also deemed “an effete corps of impudent snobs.”
According to the Congressional Record, this term was first used during Agnew’s address to the
California Republican state convention in San Diego on September 11, 1970. In context, it was
used together with another well-known Agnew alliteration: “In the United States today, we have
more than our share of the nattering nabobs of negativism. They have formed their own 4-H
Club — the ‘hopeless, hysterical hypochondriacs of history.’”
Additional materials pertaining to the Watergate cases are attached as indicated below: 17
85
had a new boyfriend. She was a widow, and over a couple glasses of wine, he
learned I was in the federal court system and he says — the new boyfriend, he
says, “Jimmie, the law is the law, but in Rhode Island, you gotta pay the judge,”
and I thought he was kidding. Okay.
Mr. Hollman: I’m going to let that pass without comment except to say that we’re fortunate to
have a long history of public integrity in the State of Maryland.
Mr. Davey: You do?
Mr. Hollman: Well, sort of.
Mr. Davey: I remember a guy who’s name began with A and ended up with almost the last
letter in the alphabet, but not quite.
Mr. Hollman: Careful, Jim, because that might make you a “nattering nabob of negativism.” 1
6
Mr. Davey: Good quote. Okay.
Mr. Hollman: Well, thank you for this afternoon.
Mr. Davey: Okay.
Mr. Hollman: We’ll look forward to talking to you again next week. 1
7
Subpoena dated April 16, 1974, in United States v.
Mitchell, Criminal No. 74-110, directed to Richard M.
Nixon for White House Tapes
11
Memorandum dated August 27, 1974, from James F.,
Clerk, RE: Historic Subpoenas Issued to President
Nixon Directing Him to Give Testimony and Produce
Documents and Other Records (Including Tapes) for
Use in a Criminal Prosecution
12
List of Exhibits in Criminal No. 1827-72 13
Memorandum dated December 18, 1974, from James F.
Davey, Clerk, RE: Miscellaneous 74-128 concerning
disposition of tapes
14
Memorandum to the Watergate Trial Jurors dated
January 2, 1975, from James F. Davey, Clerk, attaching
October 13, 1974, Washington Post editorial
15
86