‘Justice Ultimately Prevails’
Mark Cummings defended Mark Felt before the world learned he was Deep Throat
Published in 2018 Virginia Super Lawyers magazine on April 17, 2018
When Mark Cummings was at Leonard, Cohen, Gettings & Sher in 1978, his boss, Brian Gettings, represented William Tucker.
Tucker was one of the FBI agents being investigated as a fallout of 1972’s warrantless searches on the terror group Fatah, and on Weather Underground, a homegrown group that bombed numerous government offices.
Cummings, Gettings and Tucker were at the DOJ awaiting Tucker’s grand jury appearance when former FBI Associate Director Mark Felt showed up.
“The DOJ was basically planning to indict the agents and hopefully do a sequential indictment, working their way up the FBI,” Cummings says. “Mr. Gettings said, ‘Mr. Felt, what are you doing here?’ Felt said, ‘I’ve got to tell this grand jury that the street agents were taking direction from FBI headquarters. It is immoral that they are being investigated. We had White House approval.”
After Felt’s testimony, the grand jury released the agents and instead indicted Felt, FBI Director L. Patrick Gray and Edward Miller, a deputy assistant director. Cummings was on the defense team.
He got to examine or cross-examine almost 40 witnesses. But the best part? Watching Gettings question former President Richard Nixon.
“Nixon testified that going back to Roosevelt, the FBI was authorized to use warrantless searches in counterespionage cases with presidential or attorney general authority,” Cummings says. “These were generally blanket approvals, which was a critical part of our case. Problem was, Nixon didn’t recall authorizing Weather Underground. He said, ‘If they’d asked me, I would’ve authorized it.’ We thought that was strong evidence to support our good-faith belief that they had authority based on presidential fiat.”
Gray denied involvement, but Felt and Miller testified that they’d authorized 13 entries, and that the signed memos were sitting in the director’s safe.
The prosecution aimed to suggest that Weather Underground was just an antiwar group of U.S. citizens. Cummings’ team sought to prove otherwise. “It was a legitimate counterintelligence, counterespionage investigation,” he says. “The issue at Felt’s trial was the [FBI’s] good-faith belief that this was a legitimate foreign-connected group advocating a violent overthrow of the government.”
The defense presented a summary of Weather Underground’s various foreign connections; the jury did not find that the president or attorney general had approved each individual entry, rendering a guilty verdict. Instead of prison, Felt and Miller were fined; in 1981, President Ronald Reagan pardoned them. “That took the burden off their shoulders, which was wonderful,” Cummings says.
When news broke in 2005 that Felt was the Deep Throat source in the Watergate scandal, Cummings wasn’t that surprised.
“[During the case] I was working out of a conference room, and Mr. Felt was there every day,” he says. “We talked about [Watergate] and he said, ‘If I was the informant, I would’ve picked a better name.’ He intended to go to the grave with that secret. … If he’d announced himself as Deep Throat during that jury trial, I think there would’ve been a different verdict, a ‘Get out of jail free’ card.”
The ironic twist? While Felt was the FBI source nudging reporters toward Nixon’s 1972 take down; years later, Nixon spoke on Felt’s behalf at the trial. After the pardon was announced, Nixon sent Felt and Miller a bottle of champagne with a note: “Justice ultimately prevails.”
“I’m often asked what I think about Felt being a whistleblower,” Cummings says. “Felt saw the FBI being reined in by a political type [Director Gray] trying to thwart an investigation. Felt did what he had to. I consider him a hero.”