TN: And we'll start with a little bit of
background information about you. Hi, I'm Tim Naftali. I'm director of the Richard Nixon Presidential Library Museum in Yorba Linda, California. I'm here today with Earl Silbert.
It's September 17th 2008. We're in Washington DC, and I have
honor and privilege to be interviewing Mr. Silbert for the Richard Nixon Oral
History Program. Mr. Silbert, thank you for participating. ES: Happy to do so. TN: When
did you become a US Attorney? ES: Assistant or US Attorney? TN: Assistant. ES: I became an assistant US
attorney for the first time in 1964. TN: Um. Tell us a little bit about, tell us about the highlights of your career before 1972, things that, you know, we want to put
on the record to give people a sense of who you were. ES: Well, I'd come to the Tax
Division and then that was my first job out of law school in 1960, and it gave me
an exciting opportunity to handle cases in the courts of appeals all around the
country. Then, a friend of mine suggested that I come down to the US Attorney's
Office to try some cases at the trial level, rather than at the appellate level,
and I did, I applied, and I was very fortunate to be granted an opportunity
to serve as an Assistant US Attorney and I did that for five years, and that was a
wonderful experience. In fact, colleagues of mine, former colleagues of mine and I continue, consider that to be maybe the highlight of our professional career. It
was really a wonderful job and you felt that you were providing a genuine
service for victims of crimes and others in the course of performing your
responsibilities as a prosecutor. So, I stayed there five years, and got to try
both misdemeanor cases and some serious felony cases, and then I went over to
the Department of Justice to work for a year and a half in a deputy attorney
general's office, working on, primarily on proposed legislation, but some other
matters as well, and then, at the request of the US Attorney, I returned to the
office, that is the United States Attorney's Office in
the District, to serve first as the executive Assistant US attorney, the
principal Assistant US attorney, and ultimately, then as the United States
Attorney, but that was, I became US Attorney after the Watergate case, my involvement in the Watergate investigation and prosecution. TN: Tell us where you were when you heard about the Watergate break-in. ES: The first one? TN: The
second one. The first one you didn't hear about. The one on June 17. ES: Oh, the June 17! I heard about the break-in early on a Saturday morning. I received a call from
Chuck Work, who was an Assistant US Attorney and head of our Superior Court
operations, who was calling to tell me that they had a unusual case that
involved five persons being arrested for burglary in the office of the Democratic
National Committee headquarters, and all five were wearing suits and ties. Very
unusual attire for those that ordinarily, you know, engage in burglaries,
housebreaking, and the like, and initially, they thought that there was a bomb that
was recovered as well, and the police, the special unit that deals with that was
called and determined it wasn't a bomb but an oral bug and they
were probably going to explore some search warrants and ideas, and I came
into that. I got up very quickly. The call was around 6:30 in the morning on
Saturday. I got up quickly and went in to the office to work on the
case including getting search warrants, which turned out to produce very
important information, and then we had to go to court when the defendants
were arraigned or presented before the presiding judge. So, that was on Saturday.
The break-in was early. The arrest was early morning, Friday night - Saturday
early morning, and then I was in there early on Saturday morning and throughout
the rest of the day. TN: Those search warrants that brought you in to the Howard Johnson's? ES: No, wasn't, no, because we didn't know about the Howard Johnson
right then and there. On that day, we went to the hotel room of those who'd
been arrested, because they had room keys, and they also had rented a car.
So, we got a search warrant for the car and some very valuable information and
lots of hundred dollar bills and address books and all were recovered in the
execution of that search warrant, and those search warrants, yeah. TN: This is when you recover Bernard Barker's address book, I assume. ES: Yes. You know, we're talking about
events 35 years old. TN: I know, I know. It was certainly was an address book. I
think it was Mr. Barker's but, you know, I'm not about to say a hundred percent, but
it was a very valuable address book that we received with lots of names in it. TN: Tell us what you recall of seeing references to Hunt and the White House in these documents. ES: Well, he was one of the persons whose name was in the address books,
and the FBI, you know, pursued that lead very promptly,
in fact, I think, over that weekend and by that time he was out of town and he had
gone, I believe my recollection is, he had gone to California as had, as we
later learned, Gordon Liddy. TN: And how was it that you were assigned this case? Was it... ES: That's not altogether clear. I recall, I mean, I specifically recall a
discussion with the then-US Attorney Harold Titus about how to handle this
case - not that we really knew the nature, you know, had a sense of, you know,
where the case was going, what its nature was. It was very early probably the
following Monday morning and we agreed or he decided that I would be the person
in charge of the investigation for the office on that day. Now, somewhere,
somehow, in the back of my mind, I was once told that Henry Petersen, who was the Assistant Attorney General in charge of the Criminal Division, asked that I be
put on the case. I had worked with Mr. Petersen on some matters when I was both at the Department and in the US Attorney's Office. Whether that's true or
not, I, I don't know. I remember someone told me that, who appeared to know what he or she was saying, but I have no knowledge of that. As far as I was concerned, I was working on the case at the direction of the then-US Attorney
Harold Titus. TN: As you were collecting information, how did your theory of the case evolve? ES: Well, that went over a long period of time. When we got into the case,
what we had were four persons from Cuba and Mr. McCord, the security person in
charge of security for the Committee for the Re-election of the President, who had
been in charge of security or had a significant position at the CIA with
respect to security, and that was all. And, you know, who else was involved, whether there were others involved, if so, who they were, where the chain of command went, we had no idea. We were absolutely starting from, starting from scratch. The investigation soon led to Hunt, as we've already discussed, based on
information in the address book. And so, he was identified as someone that was, you know, potentially, had potential involvement. It also, in a few days, led to
Gordon Liddy, because when the lawyers for the
Committee for the Re-election of the President were interviewing persons
at the Committee for the Re-Election of the President to determine if they
had any knowledge, what if anything they knew about this, he
asserted his 5th Amendment rights, and when he did that that, of course, you know, caused the focus, there to be focus on him.
In addition, very shortly we were led to the the Howard Johnson's, which was
across from the Democratic National Committee headquarters and their folios
and all records were checked, and we were led to a former FBI agent by the name of
Alfred Baldwin up in Connecticut, and that turned out to be an important development in the investigation because he's the first one that identified for us Hunt and Liddy as being, you know, on the scene. You know, he didn't know all the facts but he put
them on the scene that particular evening of June 17th,
particular morning of June 17th, evening of June 16th, and that was an
important, you know, a significant development in the, in the investigation,
and he became a witness. So, within, I would say, less than a month, it's really
hard for me to remember precisely, we had the five persons who were arrested and
we had developed a strong case against Hunt by this time, and in terms of
just quantity of evidence, what I would call a medium case involving
Liddy, and, you know, and that's where the investigation focused. Though we had a
lot going up. The FBI were in, you know, conducting numerous interviews. We had a
lot of people in the grand jury particularly from the Committee for the
Re-election of the President, but whether it went above Hunt, who was serving as a
consultant in the White House, and Liddy, who was general counsel for the
Committee for the Re-election, we didn't have any witnesses, we didn't have
any documents that establish that. We certainly had our suspicions, you know,
and beliefs but in terms of whether it stopped with Liddy, and
Liddy and Hunt were kind of trying to ingratiate themselves
with the administration by showing they had some special information and were
able to obtain information relating to the Democratic National Committee
headquarters, we really, you know, or whether it went higher and, if so, where.
We didn't have any what, as a prosecutor, I would consider to be evidence, you know,
a witness you can put on the stand or documents that you can produce to the
court. So, we were really in, in... There were some factors that
suggested maybe it ends here, there were other factors that suggested hey it
didn't end there it went on, but our strategy, and we developed a strategy
fairly early in the case and that was to try indict and then bring to trial the
seven persons against whom we had a case, and then using a procedure that is
common now in the prosecutorial law enforcement world but at that time was
not, but based on a recent case of Court of Appeals case down in the Fifth
Circuit which is down in the South, it was in New Orleans. There was a case
that said that if a person went to trial and was convicted, you could then put
that person in the grand jury, grant him a what they call a "use immunity,"
immunity under a use immunity statute, that had only been enacted in 1970, so
it's a very, you know, comparatively recent statute, and compel
them to testify about what they knew, and since no one was talking, I mean, none of
the seven were talking. Our strategy was to try them and, hopefully, to convict
them, and then, based on that immunity, compel them to answer our questions,
which would focus on whether or not there were others involved, other
participants, and if so, who they were, and that strategy I personally
communicated. I told the lawyers for McCord and Hunt and Liddy what we were
going to do, that is that their clients would be indicted, you know,
that was up to the grand jury, but I thought they would be indicted, that we
would try them, we would, and again, we would hope the trial jury, we thought, you
know, we would succeed in the trial jury, would convict, and then we would put them
in the grand jury under a grant of immunity,
and have the, you know, compel their clients to testify about who if anyone
else was involved. TN: Would that have affected the sentencing if they... This use immunity would come after they were convicted. ES: After the trial.
TN: After the trial. ES: But not necessarily before the sentencing. That would be up to the judge, and our plan was to proceed,
you know, expeditiously with the granting, you know, the granting of
immunity. TN: Did you communicate distress... Unknown: Guys, can I stop you there for one second. Unknown: We're rolling again. TN: Did Judge Sirica... perhaps,
I'm not a lawyer so this is perhaps improper, so you'll tell me if this would never happen, but did you know Judge Sirica's strategy of giving them hard sentences
in order to compel them to talk? ES: I don't. I didn't know that, that, you
know, that, I never discussed that with with the Judge certainly that that would
be his strategy. I was aware because I'd tried cases before Judge Sirica and I'd
been in the court in which he tried, you know, he presided over a number of
trials. I knew that he was a tough sentencer and that it was clear that he
considered, you know, this conduct to be very serious conduct and would treat it
consistent with his overall approach, and as I said, he was a tough, he had a
reputation and was a tough sentencer, but again, I, in terms of, to the extent if the judge had his own strategy, no. In one way, in approaching the
defendants and their counsel to get them to cooperate, we thought that the
pressure from an immunity to cooperate, if they were convicted, if they were
indicted, tried, and convicted, would be greater because of the potential, the
risk to them that the judge would impose a heavy sentence on them if they were
convicted. TN: Had you thought of offering immunity, use immunity before convicting them? ES: Yes. We, well, yes and no. We certainly had considered the subject and my concern, or our concern, was that if you grant immunity before conviction and you
don't know where you're going, you don't know what the truth is, you lose
control with respect to that particular person that is immunized,
because then it becomes very difficult to convict that person. There was a
Supreme Court case, believe it had come down from that time, but once you grant
use immunity, the burden is very heavy on the government to show that if it
subsequently wants to try these, you know, charge and then go to trial, it's very
difficult to show that the evidence you have is in no way connected with the
evidence that the person gave you through the grant of use immunity. So, our
suggestion, our position was certainly as to Hunt and Liddy and McCord, try them
and convict them, and then follow that procedure. Because once you have them
convicted they're awaiting sentence, then they grant use immunity, you don't have
the problem of what happens if, you know, that you have to go to trial, 'cause there's
not going to be a trial, they've been convicted. Now, actually, with respect to
the Cubans, it was a little different and there were some holes in our, you know,
not major holes, I mean, they were all caught on the scene and arrested so
that's a very powerful case, but there was an interlude of time that was unclear
to me and, in thinking about it, I thought well, why not, since they were caught
inside, immunize one or more of them and compel him to testify and see if
there are things that he might have, and if the person is not convicted, it's not the
end of the world. One of the persons from Cuba, and because
he was arrested inside and we already had that information, we might be able to
show independent source of evidence. So, I suggested to Mr. Petersen that we might
consider, we wanted to consider granting immunity to Gonzalez, who was the
locksmith, I believe, and what I almost, the person I considered the lowest on
the hierarchical ladder, and Mr. Petersen did not want to do that. So, we did not
grant him immunity, and as I said, with respect to Hunt, Liddy, and McCord,
there was no, we thought about it, you know, passed through our minds, but
it would have been a very unwise thing, in my view, to do. TN: Could you please explain
to us the relationship between your office and the Justice Department and
the FBI. ES: Well, the relationship between our office and the Department of
Justice, the United States Attorney's Office is like a field office for the
Department of Justice. The Department of Justice is headquarters. There are 93 or
94 US Attorneys Offices all over the country, the District of Columbia has one
office, and that's the office in which, you know, I was working. We had
jurisdiction over the District of Columbia. Technically, the US attorney is appointed by the President, confirmed by the Senate,
and has, you know, considerable independence. Technically, the US
Attorney is answerable to the Department of Justice, the Attorney General, the
Deputy Attorney General, whether or not answerable to an Assistant Attorney
General, I'm not sure. I mean, there might be some differing views about that. As it
worked out in this case, I kept the US Attorney General
generally informed of the progress of the investigation, and obviously solicited
his, you know, thoughts and recommendations and
suggestions. He was a very experienced trial lawyer and prosecutor.
On a more day-to-day basis, I reported to Henry Petersen who was the Assistant
Attorney General in charge of the Criminal Division. Now, the FBI is like
the investigative arm for the Department of Justice. Its agents, they're not
prosecutors but they're, you know, educated and experienced and they
conduct the investigation. What they did in this case and consistent with their
practice is to assign a case agent to be, kind of, be in charge of the field office
investigation by the FBI. In this case, the field, the case
agent was Angie, Angelo Lano whom I had not known before but whom I thought was
terrific. In fact, I thought the Washington field office and the agents
that worked most closely with Angie Lano, they did everything we ever
asked them to do and they did it promptly and well. I thought they did a
great job. The FBI has taken some knocks, you know,
ultimately, and deservedly so, but that was at the very top, at the case agent
level the agents did, you know, they wanted to get to the bottom of this as
much as we did. TN: Did Angie Lano tell you about their difficulties getting the top
to okay some of their operations? ES: There was only, there was one and this turned out, actually, to be very important later on, not that I knew it at the time, but
shortly after the arrest of the five persons and as we were conducting an
investigation, there was an investor, there was also an investigation being
conducted by the DA in Dade County, Florida, which includes Miami, and there
appeared in the newspaper some checks out of Bernard Barker's bank account that I'm assuming the Dade County
prosecutor had subpoenaed, and then he released them to
the news media, which was, you know, a practice that I certainly would not have
favored or supported, but nevertheless, it came out in the public. There were
some checks and about eight, up to as I recall, it four checks totaling eighty-nine thousand dollars, and then there was another check of twenty-five thousand
dollars. It went through his bank account and we were trying to trace those. We had
no knowledge that they were significant to this particular, our particular
investigation, but they were released, and I asked the FBI to
see if they could, you know, trace them to their source, that is, who were the
writers of the checks, and that investigation took us down into Mexico,
and then I was asking, you know, "How we coming?" and he said, There's a hold put on it," and our investigation. I said, "Well, why?" and Angie told me that the reason was
that they thought there was some CIA connection down there and before they
proceeded, they just wanted to check it out. That was, you know, that wasn't off,
that was not an off-the-wall explanation from a case agent, you know, to a
prosecutor. That, that could be. And so, and in fact, you know, I asked them two or
three times and within about a week or maybe eight, nine days, it was cleared up.
He said, "Hold's off," you know, "we can go forward," and we went forward. We got the
checks and we got the ultimate source and the payers of the checks
and the like. So, while that took on some significance, you know, down the line, at that time, it just didn't seem to be that out of the ordinary that, you know,
an investigation could run into some CIA issue, there'd be a, you know, a hold just to
investigate it, investigated it, no problem, go ahead, and everybody went ahead. I mean the FBI went ahead. TN: The FBI. Sure. Well, that, um, the "Smoking Gun" tape explains later on. ES: Excuse me? TN: The "Smoking Gun" tape... ES: Yes, yes, oh yeah. Right. TN: Explains this hold. Did you ever include Segretti in your investigation? ES: We... I can't, I can't remember exactly how we ran across him but we certainly ran
across him, interviewed him, met with him, talked with him, and I'm sure we talked
with one or two other people that are some associated, you know, with him,
because I think he told us he was recruited by Chapin, so I think we
talked to Chapin but I didn't see any connection between what Segretti was doing, you know, as you know, as troublesome as it was, and the investigation that we
were conducting, and there's a special section, or there was a special section
in the Criminal Division of the Department of Justice that handled
election law type violations. So, you know, from my perspective, they took on, that
was within their bailiwick. We had enough, you know, on our plate at
that time because we were trying to return an indictment as soon as we
responsibly could, you know, on the charges that we were investigating.
So, the matter was, you know, from my perspective, just turned over to the
Department for it to pursue as it saw fit, and by department I mean
Department of Justice. TN: What role, if any, did the discovery of Hunt's safe and the contents thereof play in your case? ES: Well, it... First of all, the
discovery that Hunt had a safe was important in the White House, because
it established some connection to the White House, and he was, you know, one of our top suspects. So, that was a reason to think maybe this, you know, case
when went further than just Hunt because of the fact he had been, had
a responsible position at the CIA and now he was serving as a consultant in
the White House. And so, we asked the FBI to look into as much as they could what
his duties were in the White House, and, you know, we came across the fact that
both he and Liddy had obtained false identifications from the CIA, it was a
rather startling discovery, and that they had traveled across the country, and in
many parts of the country using these false names and identifications, and we
had the FBI track them down everywhere they went as best we could again to see, you know, with whom they were associating, and what if anything they were doing, you know. The more information we had about them in and their activities, the more,
you know, we would know, and maybe get a sense of whether or not they were, you
know, who if anyone else was involved. Now, the safe, I remember John Dean was involved with
that safe, and he was involved with the search of that safe, and at some point in
time, Hunt's lawyer was a very skilled lawyer who's now deceased, Bill
Bittman, said his client, you know, he wanted to know what the contents of the
safe were too - and claimed that there are a couple of notebooks that
were in that safe, but when the government, we had to, you know, allow
him to see what was in that safe, there were no notebooks, and I remember
him saying they were Hermès notebooks, which I've never heard of. I didn't know
what a Hermès notebook was but there was a reference to Hermès notebooks, and we
interviewed Dean and, among other things, we're getting him ready possibly for
trial, to testify at trial, and we asked about those Hermès notebooks, but and
then we had FBI agents trying to find samples of notebooks that, you know, fit
the description, and we were never really able to accomplish that, and it was just
kind of somewhat of an unknown, it just was something that we questioned Dean
about it, and, you know, we just got so far and then we didn't get any further. Until,
of course, we... Unknown: I'm sorry, the tape is running out. TN: Okay.
