Monday, Jun. 17, 2002

Precisely thirty years ago, as many readers will be all too well aware, a bungled burglary at the Watergate offices of the Democratic National Committee gave name to the worst presidential scandal in American history. That break-in on June 17, 1972 would later prove to be only one of many illegal activities sponsored by the Nixon White House.

It was The Washington Post - and, more specifically, the work of cub reporters Bob Woodward and Carl Bernstein - that kept the Watergate story alive in Washington. The national media virtually ignored it until long after Richard Nixon's November 1972 reelection.

The Post, however, continuously reported an unfolding story of illegal political campaign activities - notwithstanding denials by former attorney general John Mitchell, who was running the President's reelection campaign, and the President himself. It was more than the aggressive digging and reporting by Woodward and Bernstein that gave Post managing editor Ben Bradlee confidence to stick with the story and his young reporters. Woodward also had a source.

The source, known around the Post's newsroom simply as "Woodward's friend," would only talk to Woodward periodically, and only on "deep background." However, he had what seemed to be remarkable information. This source, as Ben Bradlee would later explain, was soon tagged with title of "the year's most successful pornographic movie, starring [in Ben's words] the awesome sodomist Linda Lovelace," - "Deep Throat." The moniker stuck.

Deep Throat Sleuthing: The Various Candidates

Other than Deep Throat himself, and Woodward, only Carl Bernstein and Ben Bradlee know Throat's real name. During Watergate, Bradlee did not request Throat's identity. Rather, based on the quality of his information, he agreed to Woodward's desire to tell his editor only Throat's "job, experience, access, and expertise."

Not until after Woodward and Bernstein's second book, The Final Days, was published in 1976, did Bradlee ask and learn Throat's name. Bradlee has remarked, "The fact that his identity has remained secret all these years is mystifying, and truly extraordinary."

Countless people have tried to figure out Throat's identity, including me. The list of those named as possible Deep Throats runs a wide gambit - from former National Security Adviser (later Secretary of State) Henry Kissinger to former Nixon press office aide (now ABC News anchor) Diane Sawyer. I have been named as a suspect, as well.

Deep Throat was a true profile in courage during Watergate. Yet he has remained hidden, holding Bob Woodward to his pledge of confidentiality. Woodward has described Throat as a high government official who had a "sensitive" position in the Executive Branch. As such, he was one of the few persons with intimate knowledge of Watergate who acted properly.

The code of ethics for all government employees and officials, adopted in 1958 by Congress and still in full force to this day, requires that corruption whenever and wherever found in government is to be reported. There is no specification as to how it is to be reported. Deep Throat did exactly what the code required.

It was with these thoughts in mind that I commenced my latest effort to find Deep Throat. It seemed to me that the 30th anniversary of Woodward's first conversation with Throat about Watergate - which occurred on June 19, 1972, two days after the arrests of the burglars at the DNC - was an appropriate occasion to pay tribute to this valiant fellow.

What If Deep Throat Was A Lawyer?

Since my earlier searches for Deep Throat, in 1978 and 1982, much more information has become available. For example, I was able to locate a copy of the unedited original manuscript of All The President's Men, where I found clues about Throat that had not been included in the book. Years ago, I was able to establish that Throat worked at the Nixon White House - which meant, for me, that he was a former colleague, a fact I believe I can irrefutably establish today.

How many non-lawyers talk about "corroboration"? Or talk about how prosecutors build white-collar conspiracy cases from the bottom up, closing the noose around the top conspirators? If he wasn't a lawyer, he certainly knew intimately how they thought and talked.

I pulled together my clues, assembling a more detailed profile of Deep Throat than I had ever seen. As it happened, my radar fell directly upon a former colleague, who previously had been seen as having, at best, a remote possibility of being Deep Throat. He was a lawyer.

More specifically, he had been a presidential aide with a law degree, and a member of the bar, but he did not really practice law at the White House. He was not in the counsel's office, with me.

However, his father (now deceased) was a prominent Washington attorney and long-time Nixon supporter who assisted in the President's defense beginning in April 1973. Accordingly, my candidate could have acquired some of the most closely held information that Deep Throat provided Woodward - like the fact that there was an erasure on one of the Nixon tapes.

If Deep Throat Was Indeed A Lawyer, Did He Violate Ethical Rules?

As I explained, the code of ethics for government employees did and does require that corruption be reported. Accordingly, if Deep Throat was a government employee, he had an affirmative duty to report Watergate misdeeds. But if he was also a lawyer, did he also have conflicting duties - deriving from attorney-client privilege or bar rules - to keep the information he provided to Woodward and Bernstein confidential? Not likely.

Again, my candidate, while trained as a lawyer, did not work as a lawyer in the White House. And, as far as I could tell, Deep Throat never obtained any of the information he had provided Woodward in the course of attorney-client communications. In fact, contrary to popular belief, much of Throat's information was pure gossip and dead wrong. (The crucial fact of the erased tape was an exception in its accuracy.)

Moreover, if Deep Throat had overheard his father talking about privileged matters without his father's knowledge, his passing on the information would not, of course, have been a breach by his father, who would not have known of the leak. Or, even if Deep Throat's father had passed on the information, he might have been taking advantage of the crime-fraud exception to the privilege - acting, that is, to prevent an ongoing criminal cover-up.

What about a possible breach, not of the attorney-client privilege, but of bar rules? When it became clear that the aforementioned lawyer was the most likely candidate (for almost all the clues pointed toward him), I called the recently retired District of Columbia bar counsel, who was now teaching ethics to law students, and explained what I was doing.

As I talked about it with a legal ethics expert, I could find no ethical violation - under bar rules, attorney-client privilege, or government ethics rules - by this attorney, if he was indeed Deep Throat. After additional research, I concluded that if Throat was a lawyer, he did nothing improper. To the contrary, he fulfilled his duty to comply with the code of conduct governing federal employees.

Threat Of A Defamation Lawsuit: The Lawyer-Candidate Suggests He May Sue

With overwhelming circumstantial evidence suggesting that my former colleague, now a senior partner in a prominent Washington law firm, was Deep Throat, I called him.

At first, he laughed it off. He couldn't explain why so many clues pointed at him. The only discrepancy I came up with, in talking with him, was that he said he was a bourbon drinker while Throat drank scotch.

When I asked if he felt it would somehow impugn his reputation to be named as Deep Throat, he thought for a moment. "Yes, as a lawyer. I believe that if Deep Throat was a lawyer he violated his ethical obligation to keep information confidential. I don't believe a lawyer should leak information to the news media." The conversation ended on a friendly note.

While I was carefully considering his denial, he sent me a followup email, a day later. If I named him as Deep Throat, he told me, he would file a lawsuit for libel against me. He had decided that it was per se libel to name any attorney Deep Throat.

The over-reaction caused me to pause - indeed, it made me reconsider his denial, which I had found convincing. He really hadn't provided me with a scintilla of evidence to counter the overwhelming case. Now he was going to file a lawsuit.

When I told my editor at Salon.com, the lawyer I had vet the manuscript, and several news organizations with whom I was talking, all had a similar reaction. Nothing stirs a journalist like an effort to stop him or her from telling a story he or she feels is important.

Salon.com made it clear that they were ready to go to the mat, if and when I was ready to proceed. Before deciding, I wanted to go through the entire manuscript and make certain my facts were as solid as I believed.

Deep Throat is a former public official. So was my former colleague. Accordingly, he falls under the First Amendment standards for plaintiffs established by New York Times Co. v. Sullivan, and its progeny. This means that he must show that he was defamed by a statement that was published with "actual malice."

"Actual malice" is a vague and confusing term even for many attorneys not familiar with this esoteric body of law. It has, over the past three and a half decades, been interpreted to mean that the offending statement not only must be defamatory, but also have been published knowing it was false, or with reckless disregard to whether is was true or false. In turn, "reckless disregard," which continues to be defined, generally means that person who publishes the statement had some doubt about its truthfulness, or reason to have such doubt. (One case, St. Amant v. Thompson, describes what is necessary as a subjective "awareness of probable falsity.")

Because of the actual malice standard and other legal rules that favor media defendants, it is very difficult for a present or former public official or public figure to prevail as a defamation plaintiff. This body of law is stacked against public people, in order to assure free and open discussion of matters of public interest, particularly matters related to the business of government.

Moreover, the statement at issue must be both false and damaging, tending to lower the subject's reputation in the community. I had nothing of a negative nature to say about my former colleague, or Deep Throat - to whom I was actually trying to pay tribute.

Reviewing my manuscript, I felt confident that it was bulletproof from any litigation standpoint. But I still began to worry about publishing, for reasons of courtesy, not legality. This situation was too reminiscent of an experience my wife and I had undergone, and I didn't want to do someone else what had been done to us.

Reexamining My Decision To Name Deep Throat

When you have been defamed, I promise it heightens your sensitivity. While many - probably most - people feel that Deep Throat did a great thing, a few do think all whistle-blowing and leaking is bad. I approached this, however, based on a very personal experience.

In 1991, as the 20th anniversary of Watergate approached, I learned that two unknown authors had come up with a revisionist history of Watergate. They claimed to have new evidence that the Watergate break-in at the DNC was actually a sex scandal, although no one knew it. The FBI, the U.S Attorney's Office, the Watergate Special Prosecutor's Office, the Senate Watergate Committee, the House of Representatives' impeachment inquiry of Richard Nixon, not to mention countless journalists and historians, had all somehow missed the real story.

A retired liquor salesman in Tampa, Florida with a tape recorder - which he used to secretly and illegally record hundreds of unsuspecting people whose faded memories he helped reconstruct - uncovered what St.Martin's Press heralded as the true story of Watergate. What they claimed had actually occurred was that the Democrats were running a call girl operation at the DNC, and Watergate was really a sex scandal.

Next they falsely claimed that I secretly took over G. Gordon Liddy's Watergate operation and cut him out of what was really taking place, so I could get sexual information on the Democrats. Liddy said this all made sense to him, and now he understood the true story of Watergate.

When I learned of this book, Silent Coup: The Removal of a President, I contacted St. Martin's Press. They refused to talk to me; they refused to provide me a copy of the book. So I told them their book was a fraud, and I would take appropriate legal action if they published it.

Rather than find the truth, they relied on every trick in the defamation lawyer's bag to make their book bulletproof, even substantially upping their insurance coverage just before publishing it. After publishing, they spent $15 million tying to make our lawsuit go away, but after eight years they realized that was not going to happen, and that they were in trouble. So they settled.

If St. Martin's Press had been interested in the truth, they would not have proceeded at they did. I was interested in the truth about Deep Throat, so I decided I had no interest in publishing merely to meet my self-imposed deadline. Although I was confident that I could not be successfully sued, I nevertheless decided to wait.

The Reward Of Waiting: A Solid Denial, A Narrow List of Candidates

It was time to move on. I returned to my other remaining candidates. While I would not be able to complete the time-consuming process of reviewing each by June 17, 2002, I decided I would report on my years of digging.

There was much to be told: my parsing of all the clues, the new information I'd uncovered, the narrowing of the field of potentials to only four who could have know what Deep Throat knew at the time it was provided by Throat to Woodward. Since I was not naming one person, it was clear I had not resolved the matter. I hoped others might join me in the final undertaking, with the help of the new information and analysis I had decided to make available

Meanwhile, while working on this report, I received word from a highly reliable - indeed, impeccable - source that enabled me to confirm the denial of my former colleague, the lawyer. Accordingly, to make certain no one will assemble the same material about him again, I have attempted to take him out of play as a Deep Throat candidate, by reporting this story in full - including his denial, and the confirmation of it. My source is impeccable, and he pledged to his impeccable source never to reveal his identity. But I have no question that I have correctly removed one of the remaining few candidates, and the only lawyer in the group.

Even before I received the definitive word about my former colleague, as I tested his denial against my evidence, I realized how easy it is to reach a conclusion based on circumstantial evidence - and be wrong. How many times has a journalist - knowing he can survive a lawsuit under the current defamation law for public people - built a circumstantial case that was wrong? More importantly, how often do prosecutors, with jurors agreeing, and no DNA, do the same? Too often, I believe, in all these situations.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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