Renata Adler - After the Tall Timber

For the moment, almost as a housekeeping matter, just two relatively minor instances of dishonesty, corruption, incompetence — instances where they seem to overlap. In the matter of voir dire : Judge Sirica, having promised, at the request of both prosecution and defense, to interview prospective jurors individually, and in chambers, did not do so. As a result, when one juror was reported, at a crucial moment in the trial, to have violated the sequestration rules and spoken at length by telephone with his wife, Sirica interviewed that juror to ascertain whether he had obtained information from the outside world, and perhaps communicated it to other jurors. It turned out that the juror had in fact obtained such information. It also turned out that the juror knew only Spanish, and neither spoke nor understood English. To cover for this error — the juror could understand neither the testimony about the burglary nor instructions in the law — Sirica dismissed the juror and simply sealed this embarrassing portion of the record. The incident involved incompetence, surely, followed by a substantial lapse of integrity.

More serious was his use of “provisional sentencing” and outright dishonesty in at least one instance of it. Having imposed “temporary sentences” of unprecedented severity on the five defendants who pleaded guilty, Sirica told them that their actual sentences might depend on their cooperation with subsequent investigations. This was, in itself, a highly improper use of provisional sentencing — widely criticized, as “extortion,” “abuse of power,” and “the torture rack,” by two presidents of the American Bar Association and scholars ranging from Monroe Freedman to Philip Kurland. Provisional sentencing is a procedure to make sentences contingent on reports about the defendants’ character, and not a device for judges to coerce testimony when the adversary system (which is, after all, the American system) has already run its course. Far from demonstrating the bromide that no man, not even the President, is above the law, Judge Sirica proceeded as though one man, the judge himself, were above it.

The outright falsification was as follows. On March 23, 1973, Judge Sirica said that the sentences for the five defendants who had pleaded guilty would depend on their cooperation in implicating people higher up.

Other factors will of course be considered but I mention this one because it is one over which you have control and I mean each one of the five of you.

By 1975, the President had resigned. John Dean, John Mitchell, Bob Haldeman, and John Ehrlichman, government officials higher up than any of the first seven Watergate defendants, had all been tried, convicted, and sent to jail. In denying an appeal for reduction of sentence by a defendant who had not pleaded guilty, had not received a provisional sentence, and was not one of the original five, Sirica simply “quoted” the last sentence of his March 23, 1973, Memorandum of Opinion and Order, as follows:

Other factors will, of course, be considered but I mention this one because it is one over which you have control and I mean each and every one of you.

— 397 F. Supp. pp. 949 and 963

There is no doubt that Judge Sirica altered this passage deliberately. About “you have control,” he even notes “italics added.” The key alteration, however, is from “I mean each one of the five of you” to “I mean each and every one of you.” The latter would have included the defendant, G. Gordon Liddy, among those who had pleaded guilty and whose sentences were contingent on their “cooperation.” Liddy was never one of them, and Liddy’s sentence was never contingent on any cooperation. The falsification was crucial. It enabled Judge Sirica to keep Liddy in jail, in worse conditions and for a far longer term than any other Watergate defendant, including those far higher up in the administration — on the pretense that Liddy had not accepted an offer that Sirica never made to him. The D.C. jail to which Sirica sent him was ancient, dirty, overcrowded, rat-infested, with temperatures that reached 104 degrees. Liddy was for a long time the only white prisoner there. (The D.C. jail has since been closed.) On April 12, 1977, when President Jimmy Carter commuted Liddy’s twenty-year sentence to eight “in the interests of justice,” Judge Sirica complained to the press.

Why, then, was the Times so heavily committed to the received idea that Sirica was “an authentic hero,” “by seemingly unanimous agreement an honest man,” even “a great scholar,” and so forth. Part of the reason is that the Times itself has said so, in its obituary — an accretion of myth, clichés, received ideas, and self-serving fables recounted by the subject himself, unusually fulsome even for obituaries. Partly because a relatively recent, complacent kind of sloth on the part of many reporters — sitting at a desk, phoning around, either repetitively badgering or, more commonly, passively receiving quotes from anonymous, self-interested, possibly lying, or even nonexistent sources — tends to welcome and to perpetuate every sort of conventional wisdom and cliché. Partly because the Times is committed most profoundly to a certain notion of itself. In the past, this commitment took a highly honorable form. The publisher and his family, one knew, were devoted, financially and in almost every other way, to the quality of the newspaper. Now, much of the paper is devoted to itself in quite another sense — as a bureaucracy, a complacent, unchallenged, in some ways totalitarian institution, convinced of its own infallibility.

As for what it was that made the Times so very cross about my sentence, nothing could be clearer than that it was not concern about Judge Sirica’s reputation. The most distinguished First Amendment lawyer I know said that the Times did more damage to Sirica’s reputation in three days than I could ever do. The reputation they were concerned with was, oddly, mine. Virtually every sentence in Ms. Barringer’s piece gave that much away: “You could say this is a churlish, lowdown thing Renata Adler has done,” for example, and “You could take the position that it says more about the writer than about what she’s writing.” There it is. These, and other examples of prose in this series of pieces—“smear,” “cheaply smearing,” “off-handed evisceration of various literati” (imagine, if you will, an off-handed evisceration), “veering from her literary prey,” “cavalier,” “even more irresponsible,” elsewhere “despicable,” “Iago,” “lacking a conscience and a soul”—were not, whatever else they may have been, the prose of journalism.

I have friends who have said jokingly, and some not so jokingly, that they fear retaliation from the Times . As well they might. I am not entirely lacking in experience in the writing of polemical pieces. I have always found that it is not that easy. It requires some thought, and some familiarity with the material under review. On the other hand, honorable polemic, I would have thought, does not call in reinforcements, attacks rather than joins mob journalists. Here we find almost a parody — journalists not addressing underlying fact but interviewing one another about what they “heard” or “smelled.” The Times editorial said that my “charges” had “startled some of the nation’s best investigative journalists who had covered Watergate and found Judge Sirica to be a principled jurist.” “Startled” them! The herd, advancing bravely not as single spies but in battalions, thinks the real world consists of received ideas they share with colleagues.

It is true I had criticized, sometimes directly, sometimes by implication, not just Mr. McGrath and the Book Review but the Times . I had written a book, Reckless Disregard , that was largely a criticism of the press. There may even have been implicit criticism, in pieces I wrote over the years. In recent articles, for example, in Vanity Fair and the Los Angeles Times , I had found, in writing about the Starr Report and its accompanying volumes, proof that Linda Tripp had not required, as the Times kept reporting, a set of “elves,” under the direction of the literary agent Lucianne Goldberg, to make her way, surreptitiously and at the last minute, to the Special Prosecutor’s office. She had, in fact, been working for that office for almost four years.