Leak: Why Mark Felt
Became Deep Throat
By Max Holland
University Press of Kansas, 2012
Review by Joseph C. Goulden
The who of the Deep Throat mystery that captivated Washington for decades was not resolved until Mark Felt, the former number two man at the Federal Bureau of Investigation (FBI), revealed in 2005 that he was the unnamed source who fed information to Washington Post reporter Bob Woodward during the Watergate investigation. But left dangling was why he chose to breach the bureau’s code of silence and give a journalist inside information on one of the more sensitive criminal investigations of the century.
In their first book on Watergate, All the President’s Men, published in 1974, Woodward and Post colleague Carl Bernstein depicted Deep Throat (who they did not name) as a selfless, high–ranking official intent on exposing the lawlessness of the Nixon White House. Deep Throat, they wrote, “was trying to protect the office [of the presidency] to effect a change in its conduct before all was lost.” A secondary goal was to prevent the FBI from being corrupted by being drawn into a White House cover–up.
That statement turns out to be 100 percent false, according to Max Holland, whose exhaustively researched work is a must-read for any person interested in the tangled scandal that drove President Nixon from office. (And let me admit it: As did uncountable thousands of other Washingtonians, I delighted in “wallowing in Watergate” during the months in 1972–73 when the story unfolded. And despite the flaws pointed out by Holland, I continue to admire Woodward and Bernstein for keeping the story alive when it received scant media attention elsewhere.)
As Holland authoritatively establishes, Felt (who died in 2008) turns out not to be an altruistic hero, but a scheming bureaucrat who yearned to replace J. Edgar Hoover as FBI director, and did so by staging a smear campaign in an attempt to discredit rivals for the job.
His targets were L. Patrick Gray, named acting director after Hoover’s death in May 1972, and eventual successor, William D. Ruckelshaus. (Another aspirant to the position, William Sullivan, already had self–immolated by leaking material derogatory of Hoover to columnists Bob Novak and Rowland Evans in 1971.)
Further, contrary to public perceptions nurtured by Woodward and Bernstein (and by extension, The Post itself) that they “uncovered” Watergate, the truth is somewhat different. Actually, as Holland writes (and documents), “the newspaper essentially tracked the progress of the FBI’s investigation, with a time delay ranging from weeks to days, and published elements of the prosecutors’ case well in advance of the trial.”
Because of his position, Felt received frequent briefings from agents directing the investigation, as well as transcripts of grand jury testimony. Thus, he was in an ideal position from which to slip morsels of information to Woodward.
Holland has written frequently about intelligence matters, first as Washington correspondent for The Nation, and now on his blog, Washington Decoded. He used what he calls “tried and true” counterintelligence analytical techniques to reveal Felt’s role as a de facto double agent. He writes, “When counterintelligence officers suspect a person of being a double agent, they fashion a ledger of everything that person knew, and when, and how the person acted on the information. In the end, there is a final tally, and that is supposed to reveal in whose interests the suspected double agent was genuinely working all along.”
The identity of Deep Throat was a popular Washington guessing–game for decades, evoking wild guesses as to the name of Woodward’s source (he did not reveal the secret even to his partner, Bernstein). Persons such as John W. Dean III, a counsel to Nixon, were convinced at one point that the term Deep Throat was a literacy device contrived to add an aura of mystery to The Post’s coverage. Any number of names floated around Washington’s active rumor circuit.
But persons in the FBI, following the same matrix as did Holland years later, concluded early on that Felt was the leaker. H. R. “Bob” Haldeman, the White House chief of staff, so informed Nixon just before the 1972 election. Acting FBI Director Gray asked Felt point-blank if he was Deep Throat. The answer: a denial.
Nonetheless, the U.S. Department of Justice started a criminal investigation of Felt, who decided the time was ripe to get out of the bureau. Ruckelshaus permitted him to “retire” on the false pretext of taking advantage of a special bonus program.
But should Felt have been charged criminally? That possibility was strongly considered in the upper levels of the Justice Department. Despite his across–the–board denials, field agents decided to confront Felt directly. To spare Felt the ignominy of being interrogated in an FBI office, agents picked him up at his Virginia home and took him to a motel. A hostile and shaken Felt denied ever telling Woodward or any other reporter anything of substance, saying “he was not the individual known as Deep Throat.” But he did not deny outright that he had contacts with Woodward and Sandy Smith, a dogged investigative reporter who covered Watergate for Time magazine and who benefited from a string of Felt leaks.
Agents felt that Felt spoke cautiously because he knew another team was interviewing his long–time secretary, Carol Tschudy, at the same time, and that she would tell the truth, rather than lie to protect him. Tschudy told agents, “There were several conversations between Woodward and Mr. Felt….” She could not recall the dates of the talks but noted that the “frequency of Woodward’s calls seemed to depend upon various developments in the Watergate case.”
A lawyer, Felt knew quite well that he would put himself in the prosecutors’ gun sights should he admit being Deep Throat. Much of the information he gave to Woodward (and to Smith) had been developed through grand jury proceedings. Justice Department lawyers ultimately concluded that they did not have “smoking gun evidence” that Felt gave any certain piece of evidence to Woodward. Hence the prosecution was not pursued.
Through the vision of hindsight, Felt seemed an unlikely person to try to keep the FBI on high moral grounds. In 1979, long after Watergate had run its course, Felt and FBI colleagues Gray and Edward S. Miller, former head of the bureau’s Domestic Intelligence Division, were indicted for reviving the FBI practice of “black bag jobs,” which supposedly had ended when Hoover died. The targets were Weather Underground fugitives wanted for terrorist bombings and other felonies. Felt and Miller confessed to authorizing some of the illegal break-ins. Gray denied any knowledge, and he was not indicted.
Ironically, none other than the disgraced Nixon testified—as a prosecution witness, to be sure, who said although he did not authorize the break-ins, he defended the behavior of both Felt and Miller. Both were convicted in short order. No matter. One of the first things Ronald Reagan did upon entering the White House was to start machinery moving for pardons, which came in April 1981.
Woodward has received just praise from other news reporters because he, as a rank rookie, took over the “story of the century” and milked it for weeks, while other media outlets looked the other way. But I could not help but note what seemed to be a beginner’s lapse in his account.
Concurrent with Watergate, Woodward’s Post colleague, Sanford Ungar, was researching a book published in 1976 titled simply FBI. Ungar soon learned of a major power struggle that had the FBI in turmoil—the jockeying for who would win Hoover’s job in what insiders called “The War of the FBI Succession.” Felt was one of a number of ranking bureau officials who vied for the position, and as Ungar wrote, the combatants in the war employed every dirty trick they had learned in their careers in the FBI to shove aside their rivals.
In retrospect this succession battle stands out as a key explanation of why Felt acted as he did. He found as an outlet for his leaks a talented reporter, but one relatively unschooled in the way bureaucratic wars are waged in Washington. Quite naturally, Woodward took full advantage of his windfall, both financially and to advance his career (Holland reports that paperback rights to All the President’s Men sold for $1,050,000, or about $5.4 million in today’s dollars).
But one cannot help but wonder whether a few words with Ungar would have given him a different insight into the motivation of Deep Throat. Nonetheless, Woodward and Bernstein brought home the sort of scalp that remains the trophy sought by succeeding generations of journalists.
Joe Goulden’s latest book is The Dictionary of Espionage: Spyspeak into English.
Crime (2011)
Guilt (2012)
By Ferdinand von Schirach
Translated by Carol Brown Janeway
Alfred A. Knopf
Review by Ronald Goldfarb
“Legal history abounds with the unimaginable.”
Once in a while a notable book from abroad, translated into English for American sales, finds an audience in the United States. These two books of short stories by a German trial lawyer should particularly interest Washington Lawyer readers. Crime and Guilt are collections of a defense attorney’s ruminative short stories about fictional cases that raise provocative questions about the criminal justice system, crime, and punishment.
They were acclaimed in Germany where Ferdinand von Schirach was compared to F. Scott Fitzgerald, Truman Capote, and Gustave Flaubert by reviewers who applauded his superb storytelling and brilliant precision of language. His works were deemed a dazzling masterpiece that, in one reviewer’s apt words, deals with “flawed people” strewn by life into “unbearable positions, leading them to abhorrent acts.”
In the first book, Crime, von Schirach quotes Werner Heisenberg: “The reality we can put into words is never reality itself.” The quote underscores the theme of von Schirach’s collected stories, all of which relate the backgrounds of bizarre crimes and unusual criminals as viewed through the eyes of their defense attorneys. The defendants are portrayed as “human beings—their failings, their guilt, and their capacity to behave magnificently.” They prove the accuracy of the perception that von Schirach’s uncle, a judge, passed on to the author: “Most things are complicated, and guilt always presents a bit of a problem.” That moment when people fall through the thin ice of life is what interests the author, and his stories presenting such moments will intrigue and perplex readers.
A pacific, mild–mannered husband suddenly and violently slays his unbearable wife of many years because divorce would have been a dishonorable betrayal of his youthful undertaking. What should be done to him? What is the meaning and purpose of punishment? A young man is bullied by a tough boxer at a party in Berlin. They step outside and he kills his antagonist. He is sentenced by the judge to attend an antiviolence seminar. A cellist and her crippled brother live a weird life together, supported by their distant but wealthy father. The mercy killing of her beloved brother leads to her imprisonment, and eventually her and their father’s suicide. Underlined in a book in her cell is the famous quote from The Great Gatsby about beating against the current, “borne back ceaselessly into the past.”
A self–made man is crushed by a senseless justice system, a victim of fortuitous events, but he survives. Another man outsmarts the system; he “defeated justice.” An exploited woman, a refugee from Eastern Europe, is frightened when a man dies while paying her for sex. Her protective lover dismembers the man’s body, an act ruled by the court later as “a public nuisance caused by love” because no one could prove the man died at the hands of a criminal. In a Dominique Strauss–Kahn–like event in a hotel room, “parallel universes” of law and fact meet, and differences between police work (the assumption is that nothing happens as a result of chance) and defense lawyers’ work (finding holes in the structures of proof and disrupting reliance on apparent truth; providing “brakes on the vehicle of justice”) are analyzed.
When provocative ruffians hassle a small, quiet man on a lonely platform in a railway station, he ruthlessly defends himself and kills the attackers. Readers will root for him. He is released. Later, a similar violent crime seems to have been committed by that same man, who then disappears. A paranoid schizophrenic doesn’t want to kill, but does. What is society to do with him? Or with a pathological kleptomaniac? Or a young rape victim who destroys her newborn baby? “[S]he was in a state in which she could no longer distinguish right and wrong.”
A man dutifully works for many years as a museum guard, then inexplicably crushes a valuable sculpture he has obsessed over. Who should judge him? By what standard? What is a just conclusion? A young lover commits an act of cannibalism on his lover, inexplicably. A virtuous man commits a crime, but his history pleads for mercy. “Had he not done what all of us are capable of? Would we have behaved differently if we had found ourselves in his place?”
Years after a panicked act results in a homicide, model citizens are implicated by DNA evidence. What should be society’s position toward them? How do they cope with their guilt? Is there a different standard for judging responsibility for an offense committed against a bad person (a vicious wife beater, for example) than an innocent one? The story of a man hired to transport a briefcase filled with gory pictures raises the question of what constitutes a criminal offense. The final, very short story in Guilt, “Secrets,” concludes the book with a wry O. Henry ending that will amuse readers.
In one story from Guilt, “The Illuminati,” trial lawyer von Schirach becomes a psychoanalyst—as we lawyers do occasionally—observing here the insanity of a client’s childhood. This story will remind readers of how amazing it is that we survive childhood, and of the scars left on people’s lives by the bizarre behaviors that occur to children in their developmental days. It is an eerie and perceptive story about the development of people’s personalities.
In “Anatomy,” von Schirach manages to raise in three pages the question of how to properly adjudge liability for an offense to an offensive person. In a story he titles “Children,” a married man, wrongfully accused by a young schoolgirl and her friend of improper sexual offenses, is convicted and imprisoned, his life ruined. Years later, the now grown girl confesses that she made up the story. “It was a little girl’s fantasy.” When he made the arrest, the cynical policeman told his wife, “Most wives had no idea.” Von Schirach tells this story in seven pages, but the conundrum it raises about child abuse charges takes the reader’s breath away.
One story raises this jurisprudential question: In a criminal trial for attempted murder, judges want to know “why people do what they do. And only when they understand, can they punish the defendant in a way that is commensurate with his guilt.” But, can they ever know? Von Schirach explains how “things that go on inside people at such moments are too complicated.”
Readers will be haunted by von Schirach’s stories, told in compelling, sparse prose. The stunning lead story in Guilt, “Funfair,” raises in nine pages elusive issues that law professors might use to explore important facets of legal ethics. It describes an instantaneous, abhorrent act by a group of model citizens at a small town event. The place was “blessed” and “sheltered . . . . Everything radiated dignity and upright behavior.” Eight respectable men—parents, taxpayers, and average citizens—playing in a brass band suddenly and viciously attacked an innocent 17-year-old waitress. A sudden, momentary action in the backstage area, “and later nobody could explain anything.”
A young defense attorney who represented one of the defendants tells the story of how the system works, and in doing so, calls into question all that we lawyers do—fighting the war of defense. The lawyer “didn’t want to know” what happened. “No one had to do anything. If the prosecution didn’t have the required proof, the defendants could remain silent, and the case would be over.” But the reality of that predicament provokes “the fury of the policemen, the fury of the DA, the fury of the doctors. None of it did any good.” Von Schirach ends his story:
[T]he judge asked once again if the man wished to remain silent. He asked quietly, with no inflection in his voice, while he folded up his reading glasses and waited. The judge knew the answer, but he asked the question. And all of us in the cool air of the courtroom knew that the legal proceedings would end here and that guilt was another matter entirely.
. . . . The men were released. They left by a rear exit and went back to their wives and children and their lives. They paid their taxes and kept their credit good, they sent their children to school, and none of them spoke of the matter again.
We all understand what the young lawyer knew: “we’d lost our innocence and that this was irrelevant . . . . [W]e thought about the girl and the respectable men, and we didn’t look at each other . . . . [W]e knew that things would never be simple again.” Readers will find it difficult to deal with such a moral dilemma, raised so subtly and profoundly in this short story. But lawyers need to ponder its message.
Ronald Goldfarb is a Washington, D.C.– and Miami–based attorney, author, and literary agent who reviews regularly for Washington Lawyer. He can be reached at rlglawlit@gmail.com.
