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 Sept. 6 in Keene, New Hampshire. 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, Maryland, and had a vacation home in Jaffrey, New Hampshire.

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.

Earl Silbert, who was then the principal assistant U.S. 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 FBI on the investigation.

The case, in Silbert’s view, was limited to the seven defendants. He did not see it as a forum to go after higher-ups like John Mitchell, the former attorney general who headed Nixon’s reelection campaign, or John Ehrlichman, Nixon’s domestic policy chief. Both men ended up going to prison for their roles in the scandal.

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. Sirica, in his 1979 memoir, “To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the Pardon,” described Silbert as “naive and somewhat inexperienced.”

In his book “Watergate: A New History” (2022), journalist Garrett M. Graff wrote that in confining his attention to the burglary, Silbert brought “the narrowest case possible.” That decision, 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.

Dean’s testimony would expose illegal White House efforts to cover up the burglary and other crimes.

For 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 Hunt pleaded guilty, leaving two defendants, Liddy and McCord, to be tried.

Liddy was convicted of conspiracy, second‐degree burglary, wiretapping, attempted wiretapping and attempted bugging. McCord was convicted of the same charges, and of two others: possessing wiretapping and bugging equipment.

At that point, however, Silbert did not see the case leading to 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, 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 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.

Silbert and his team began to meet secretly with Jeb Stuart Magruder, the former deputy director of the Committee for the Re‐election of the President, and with Dean, who, during explosive Senate hearings that June, testified that Nixon knew about the cover-up of the break-in.

“They were the ones who blew open the cover-up by coming in to meet with us secretly,” 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.”

Magruder pleaded guilty in August 1973, and Dean followed two months later. By that time, Archibald Cox had been appointed the Watergate special prosecutor, and Silbert and his colleagues had withdrawn from the case.

But Silbert prepared a summary of their investigation that he handed over to Cox, including the names of 27 targets for possible indictment. One of them was Nixon.

Earl Judah Silbert was born 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.

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.

Silbert was nominated for the permanent post by 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 Silbert, in developing cases, had not granted more potential defendants immunity. He was also criticized for his decision to let some Nixon aides testify privately and not before a grand jury.

The nomination was confirmed by the Senate in October 1975, by a vote of 84-12.

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 retired 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; former White House chief of staff Erskine Bowles, during independent counsel Ken Starr’s investigation of President Bill Clinton; and Kenneth Lay, the former chair and CEO of bankrupt energy firm Enron. Silbert persuaded Lay not to answer questions at a hearing of the Senate Commerce Committee in 2002.

In addition to his daughter Leslie, Silbert is survived by his wife, Patricia (Allott) Silbert; another daughter, Sarah Silbert; and three grandchildren.

This article originally appeared in The New York Times.