Page 56 - ACTL Journal Win24

The roller-coaster nature of the father-daughter collabora- tion related in significant part to the matter of the per- ceived parallels between the early 1970s Watergate prose- cutions and the aftermath of the insurrection at the United States Capitol on January 6, 2021, and to the evolution in United States policies and protocols precipitated by the earlier events and tested during the second.
Leslie explained that Earl was deeply troubled as to how to handle the matter of “leaks” within the Department of Justice in the course of investigating and preparing the cases. It had become increasingly obvious that someone within the DOJ was providing information directly to the Oval Office. This was problematic, not simply because it gave rise to a particular White House spin and concerns of witness interference, but because there was a protocol, but no written rule, prohibiting such conduct. The nature of the information leaked suggested that its genesis was within the small group of prosecutors with whom Earl worked. When Archibald Cox was appointed as Special Prosecutor by the Attorney General, Cox’s frustration with the leaks and the failure to identify the culprit resulted in new prosecutors being assigned and reassigning the former cohort, including Earl, to matters other than Watergate. Although Earl believed on the basis of strong circumstan- tial evidence that he knew the identity of the leaker, and al- though he never fully resolved his own disappointment at being moved aside, he steadfastly refused to acknowledge his suspicions, believing that the rules on communications between DOJ prosecutors and the White House were too vague. Fifty years later, Leslie, the product of a new and different generation, strongly disagreed but sadly lost her father before she could persuade him to change his mind.
In the years that followed the Watergate era, rules were formalized enshrining the former protocols as enforceable
prohibitions on providing investigative information to anyone outside the Department of Justice. Earl nonethe- less stood firm. He would not taint the legacy of his former colleague in the face of uncertainty surrounding the his- toric rule, regardless of the impact that silence may have had on him and his colleagues who – in the eyes of some
– probably proceeded under a shadow that should have af- fected only one among them. As Leslie recalls it, this was the subject of tears on her part and raised voices on the part of both of them, during a period when, unbeknownst to her, little time would remain for their collaboration.
Perhaps most compellingly, Leslie noted that she hopes to see the book through to publication, in part so that she can disclose that Earl was the principal researcher and author of the DOJ’s legal memorandum on the issue of indicting a President for actions undertaken during his presidency. Not surprisingly, the memorandum has been resurrected in recent months because of federal indictments relating to the January 6 insurrection. Leslie indicated that the senior DOJ official who directed Earl to prepare the memoran- dum – now a federal judge – has confirmed that Earl was indeed the author.
Even with the publication of the book, an act of love on multiple levels for Earl and Leslie Silbert, we will remain deprived, perhaps permanently, of solving the mystery of the Watergate leaks. But, our already considerable admi- ration for Earl is now enhanced in two respects: We have learned once again that integrity was one of Earl’s defining characteristics, irrevocably insisting on protecting some- one else even to his own detriment. We have also learned that the notion that history repeats itself is as viable today as it has been throughout history.
And, on a note of particular import to trial lawyers, we are reminded that the products of our legal efforts, including the research memoranda that are so often critical to the outcome of our cases, may remain of great value even half a century later.
Joan Lukey Boston, MA
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