Earl J. Silbert, Lead Prosecutor of Watergate Break-In, Dies at 86
Earl J. Silbert, who led the federal prosecution of the botched Watergate burglary, which secured the convictions of all five burglars and two of the break-in’s planners, E. Howard Hunt and G. Gordon Liddy, died on Sept. 6 in Keene, N.H. He was 86.
His death, at a hospital, was confirmed by his daughter Leslie Silbert, who said the cause was an inoperable aortic dissection. He lived full time in Chevy Chase, Md., and had a vacation home in Jaffrey, N.H.
The break-in at Democratic National Committee headquarters at the Watergate office complex in Washington on June 17, 1972, set off a chain of events that led to the resignation of President Richard M. Nixon two years later.
Mr. Silbert, who was then the principal assistant United States attorney for the District of Columbia, prosecuted the case with two other assistant U.S. attorneys, Donald Campbell and Seymour Glanzer, and collaborated with the F.B.I. on the investigation.
The case, in Mr. Silbert’s view, was limited to the seven defendants. He did not see it as a forum to go after higher-ups like John N. Mitchell, the former attorney general who headed Nixon’s re-election campaign, or John Ehrlichman, Nixon’s domestic policy chief. Both men ended up going to prison for their roles in the scandal.
Mr. Silbert’s strategy was criticized by members of Congress and by Judge John J. Sirica, who, overseeing the trial in U.S. District Court, questioned witnesses from the bench and urged prosecutors to be more aggressive. Judge Sirica, in his 1979 memoir, “To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the Pardon,” described Mr. Silbert as “naïve and somewhat inexperienced.”
In his book “Watergate: A New History” (2022), the journalist Garrett M. Graff wrote that in confining his attention to the burglary, Mr. Silbert brought “the narrowest case possible.” That decision, Mr. Graff said, was “a near total strategic victory for the White House.”
But Leslie Silbert, who collaborated with her father on the book, “Watergate: The Missing Story,” to be published this winter, said in a phone interview that he had been focused on the job at hand, prosecuting a burglary, and that he felt that once he had those convictions he would have leverage over higher-level actors.
Indeed, she said, after one of the convicted burglars, James W. McCord Jr., said in a letter read at his March 1973 sentencing that the White House had covered up its connection to the break-in, John Dean, the White House counsel, began lengthy negotiations with the prosecutors to plead guilty and become a cooperating witness.
Mr. Dean’s testimony would expose illegal White House efforts to cover up the burglary and other crimes.
For Mr. Silbert, who later became a respected white-collar defense lawyer, the Watergate trial was the most prominent case of his career.
As a young prosecutor, he found himself obligated to be nonpolitical while handling a “monumentally political prosecution,” he recalled in his book.
Soon after the trial began in January 1973, four of the burglars and Mr. Hunt pleaded guilty, leaving two defendants, Mr. Liddy and Mr. McCord, to be tried.
Mr. Liddy was convicted of conspiracy, second‐degree burglary, wiretapping, attempted wiretapping and attempted bugging. Mr. McCord was convicted of the same charges, and of two others: possessing wiretapping and bugging equipment.
At that point, however, Mr. Silbert did not see the case leading to President Nixon. The Watergate break-in, he told The New York Times in 1975, was incompetent and imprudent, the markings of a low-level job.
“You’d expect it to be a more sophisticated operation the higher up it went,” he said. “You’d think they’d have a good motive. If the White House was going to be into it, they wouldn’t run an enormous risk for something with little gain. You always assume — and maybe that was a mistake — an underlying rationality.”
At home, Mr. Silbert’s wife, Pat, “loathed President Nixon and was convinced he was involved from the start,” he wrote. “She frequently proclaimed him guilty, and my stock response — ‘Show me the evidence’ — infuriated her.”
At trial, he told the jury that Mr. Liddy was “the boss” of the break‐in, and that he and his colleagues “were off on an enterprise of their own.”
But he soon had his own suspicions. In May, he asked another assistant U.S. attorney for an opinion about whether a sitting president could be indicted by a grand jury if he had not been impeached by the House of Representatives and convicted by the Senate.
The answer was no, but he could be named as an unindicted co-conspirator — as Nixon was the next year, for his role in covering up the burglary.
What happened after the trial was almost certainly of greater significance to the unraveling of the Watergate scandal than the trial itself.
Mr. Silbert and his team began to meet secretly with Mr. Dean — who, during explosive Senate hearings that June, testified that Nixon was involved in the cover-up of the break-in — and with Jeb Stuart Magruder, the former deputy director of the Committee for the Re‐election of the President.
“They were the ones who blew open the cover-up by coming in to meet with us secretly,” Mr. Silbert said in an interview with the Historical Society of the District of Columbia Circuit in 1992. “But it was McCord’s cooperation and the publicity surrounding it that helped persuade Dean and Magruder that they should come in.”
Mr. Magruder pleaded guilty in August 1973, and Mr. Dean followed two months later. By that time Archibald Cox had been appointed the Watergate special prosecutor, and Mr. Silbert and his colleagues had withdrawn from the case.
But Mr. Silbert prepared a summary of their investigation that he handed over to Mr. Cox, including the names of 27 targets for possible indictment. One of them was President Nixon.
Earl Judah Silbert was born on March 8, 1936, in Boston. His father, Coleman, was a lawyer and a member of the Massachusetts House of Representatives. His mother, Lillian (Rosenberg) Silbert, was a social worker and homemaker.
Mr. Silbert, who once aspired to be a teacher, earned a bachelor’s degree in history from Harvard University in 1957 and graduated from Harvard Law School in 1960. He joined the Justice Department after graduation, arguing tax appeals around the country until 1964, and then spent five years as an assistant U.S. attorney in Washington before returning to the Justice Department in 1969.
He rejoined the U.S. attorney’s office in Washington in 1970, and in 1974 he became the interim U.S. attorney, replacing Harold Titus, who had stepped down because of illness.
Mr. Silbert was nominated for the permanent post by President Nixon, and twice by Nixon’s successor, Gerald R. Ford. But the Senate Judiciary Committee held up the nomination for 21 months amid criticism that Mr. Silbert did not grant more potential defendants immunity to develop cases, and of his decision to let some Nixon aides testify privately and not before a grand jury.
The nomination was finally confirmed by the Senate in October 1975, by a vote of 84 to 12.
Mr. Silbert stayed on as U.S. attorney until 1979, when he left for private practice, first with Schwalb, Donnenfeld, Bray & Silbert, then with the firm now known as DLA Piper. He developed a national reputation for his defense of white-collar clients.
“He was particularly respected as a lawyer’s lawyer,” Sheldon Krantz, a former partner at DLA Piper, said in a phone interview. “He represented lawyers when there were issues about their ethics. He was the go-to person when a lawyer got into trouble.”
His clients included former Attorney General Griffin Bell, when he was accused of defaming an E.F. Hutton branch manager in an investigative report on a check-kiting scandal; the former White House chief of staff Erskine Bowles, during the independent counsel Ken Starr’s investigation of President Bill Clinton; and Kenneth Lay, the former chairman and chief executive of the bankrupt energy firm Enron. Mr. Silbert persuaded Mr. Lay not to answer questions at a hearing of the Senate Commerce Committee in 2002.
In addition to his daughter Leslie, Mr. Silbert is survived by his wife, Patricia (Allott) Silbert; another daughter, Sarah Silbert; and three grandchildren.