Understanding Watergate: The Key Nixon Tapes

8/14/19

Detailed Outline

Introduction

The facts themselves are easily summarized: President Nixon wanted a record of the behind-the-scenes workings of his Presidency—not for publication, but for later reference when he planned to write books about his time in the Oval Office. Note taking and staff memoranda didn’t seem to work, so a White House taping system was secretly installed in February, 1971—two years into his presidency.

The taping system functioned precisely as intended–recording the behind-the-scenes workings of his Presidency—but it recorded so much more, something like the legislative sausage that is best left unexamined: President Nixon comes off as petty, vengeful, vain and quarrelsome. In short, Nixon came across as all too human– and certainly not presidential.

This didn’t matter much while the the taping system’s existence remained a secret. But, when it became public in July of 1973, it set off a battle royal that culminated in the historic Supreme Court decision in US v Nixon just over a year later.

The dramatic release of one tape led directly to the President’s resignation, litigation over the tapes continued for years thereafter. The public has been assured, time and again, that key conversations prove Nixon and his henchmen were in on the Watergate cover-up from its very outset. The trouble is that the public has been misled; these assurances are in error. Careful analysis and understanding of these key tapes will show precisely the opposite of what the public has been told.

Part One: Installation, Use and Preservation

  1. Prior Presidential Systems
    1. Each President, beginning with FDR, utilized a taping system. Its use expanded with improvements in technology. [From John Powers paper, done in connection with conference at JFK Library]
  1. Nixon’s System
    1. They pulled LBJ’s; then thought better of it when had troubles keeping accurate record of what was said and LBJ re-emphasized how helpful his had been. Purpose was for RN to write books
    2. Installed in February, 1971. Detailed description of system and its shortcomings
    3. Problems with tapes running out, gaps, sound activation, quality (especially in EOB)—
      1. Take from earlier manuscript
      2. Detail GCS personal experiences
      3. Three versions of John Dean tapes,
        1. Blue Book (April 30, 1974)
        2. WSPF (received after SNM, used in petition for certiorari in US v Nixon). Query when transcribed, but clearly used as basis for application for writ of certiorari filed on May 24, 1974.
        3. House Judiciary (June 25, 1974)

Would be interesting to compare, if Supreme Court record is ever unsealed. There is an FBI transcription in WSPF files, but they used the House Judiciary version in US v Mitchell prosecution.

  1. Butterfield’s Disclosure
    1. Circumstances surrounding Alex Butterfield’s disclosure on Monday, July 16, 1973 before Ervin Committee
      1. Alex says they showed him transcript when interviewing.
      2. Nixon’s people knew over the weekend that Butterfield had spilled the beans and yet did nothing to prevent him from testifying
  2. Why Didn’t Nixon Destroy the Tapes?
    1. Really good stuff here from Pack, pp. 19-20 on EBW’s advice on destroying the tapes.
    2. Detail various theories
      1. Had pneumonia and didn’t think it through
      2. Didn’t know how
      3. Worried about duplicate set (particularly Haldeman)
      4. Believed he owned them and would never have to turn them over
      5. Believed they would clear him
      6. Got conflicting political advice
      7. Got conflicting legal advice
        1. Garment: Tapes were evidence, if destroyed he’d have to denounce and quit
        2. Buzhardt: Why take the chance?
      8. Shepard’s view: They were his pension (from my Q&A in Draft 4)

Part Two: The Battle over the Tapes

  1. Early subpoenas from WSPF and Ervin Committee
    1. Emphasize timeline
    2. Ambiguity over whether 8 or 9, effect on 18 Minute Gap
    3. Sirica rulings
  2. The Circuit Court’s Decision: Nixon v Sirica
    1. Note that this was grand jury subpoena, not WSPF subpoena duces tecum as in US v Nixon.
    2. Circuit court really appeared to be torn
    3. Cox suggestion of verified transcripts
  3. The Stennis Compromise and the Saturday Night Massacre
    1. Great material from Doyle’s book
      1. Check earlier Draft 4 for material
      2. It was Cox’ idea
      3. Cox changed his mind because of phone call with daughter and visit from Anthony Lewis of NYT.
    2. Add effect of Dean’s plea that morning
  4. Dean testimony and April 30, 1974 release of the Blue Book
    1. Primary WH purpose was to undermine Dean’s testimony and credibility
      1. Nineteen inconsistencies—by WH and WSPF count [both memos in file].
      2. Haig on release of Blue Book, p. 452; Mollenhoff too, p. 344.
      3. Effort was a total failure, since the press had no interest in pursuing it. As quoted in Mollenhoff’s book:
      4. The Special Prosecutor also contradicted the White House and Senator [Hugh] Scott on the credibility of John Dean. Although Scott had said that he had been given documents by Nixon and Haig demonstrating that Dean had perjured himself, Jaworski said he and his staff had reviewed all available White House tapes and documents, as well as Dean’s testimony, and could find no reason to believe that Dean had lied. Mollenhoff, p. 333

        Obviously the federal grand jury and the special prosecutor’s office did not agree with the claim by Nixon, Haldeman, Haig and Scott that the tapes proved John Dean was a liar. In fact, all indications were that John Dean was firmly corroborated by the tapes. Mollenhoff, p. 337

      5. Regardless, the press moved the goal posts by simply changing the subject and pouncing on RN’s non-presidential demeanor.
  5. The Supreme Court’s Decision: US v Nixon, 418 U.S. 683 (1974)
  6. –WSPF brief filed on 6/20/74; St. Clair reply on 6/21. See CQ, pp. 678-680 for summaries.

    –Given attitudes documented in The Brethren, it is easy to see why the Supremes cast aside any Separation of Powers concerns as easily as the original Supremes arrogated the power of judicial review to themselves in Marbury v Madison.

    –WSPF as proxy for House Judiciary is detailed in Doyle, pp. 277-280.

    1. Overview: The Watergate grand jury’s original subpoena for nine tapes was upheld by the DC Circuit Court of Appeals (US v Sirica), but not appealed further. In mid-April, some six weeks after the cover-up indictments in US v Mitchell were handed down by the grand jury on March 1 (supposedly the government’s assertion that it had enough evidence to make its case), the Special Prosecutor sought Sirica’s permission to obtain sixty-four additional tapes and Judge Sirica issued a subpoena duces tecum. It is this subpoena that was upheld by the Supreme Court in US v Nixon. The public release of one of those tapes, known popularly as “the Smoking Gun” led directly to the total collapse of Nixon’s defenders on House Judiciary and to President Nixon’s resignation on August 9, 1974.
    2. Profile the Supremes
      1. Warren Burger
      2. William Brennan
      3. William Douglas
      4. Thurgood Marshall
      5. Potter Stewart
      6. Harry Blackmun
      7. Lewis Powell
      8. Byron White
      9. Bill Rehnquist (recusal)
    3. Just in case they had any doubt as to his views, former Chief Justice Earl Warren wrote an article in April, 1975, that signaled his own views of our 37th President:
    4. the most despicable President this nation ever had. He was a cheat, a crook, and a liar, and he brought my country, which I love, into disrepute. Even worse than abusing his office, he abused the American people.“Richard M. Nixon”, Esquire Magazine, April, 1975

    5. Conventional Wisdom holds that the case turned on a question of executive privilege—which was badly mangled in the actual opinion.
      1. See Ball generally, also The Brethren.
      2. But note Bork, pp. 73-74:

      “Executive privilege” is a poorly named doctrine that enables units of the government to preserve secrecy in important matters. It’s poorly named because all units of government, not just the executive, claim that privilege. For example, if a litigant attempted to discover the contents of the judicial process to show that the Supreme Court’s deliberations wer somehow improper, he would be rebuffed by the Court’s claim of immunity from disclosing such deliberations. Similarly, an attempt to subpoena the contents of legislative deliberations would also be rejected. The term “executive privilege” makes the claim sound as if the executive branch alone claims the right of confidentiality and thereby arouses hostility to the claim.

      Without some form of privilege, the deliberations of the branches of government and their agencies would be entirely artificial. People who know their thoughts and words may be made public will not speak with the freedom and candor they otherwise would. We are left to imagine politicians and bureaucrats striking poses appropriate to statutes and uttering noble sentiments for public consumption. Someone with a sardonic frame of mind and the gift of turning a phrase would be fortunate to escape discharge or impeachment. A more accurate name for the claim of confidentiality might be “governmental privilege.”

    6. Three things seem settled law at the time:
      1. A sitting president cannot be indicted for a crime; Congress’ only recourse is impeachment (which was pending at the time);
      2. A subpoena under Rule 17 cannot be used at all for discovery, nor (specifically) for a fishing expedition; and
      3. The separate but co-equal structure of our Constitution precluded the Congress from obtaining copies of the White House tapes on its own. Indeed, this is what Article III of the impeachment resolutions was all about (failure to comply with House subpoenas).
        1. Ben-Veniste has good quote about WSPF being the only ones who could obtain the tapes.
    7. The critical question is whether the Special Prosecutor really needed these tapes to prosecute US v Mitchell or was using this subpoena as a discovery device against President Nixon himself and on behalf of the House Judiciary, who could not otherwise obtain them because of the constitutional doctrine of separation of powers, as claimed in St. Claire’s brief. [NB: Neither the Ervin Committee nor the House Judiciary Committee had prevailed in court in their attempts to subpoena the tapes.]
    8. Need for Further Research:
      1. How and when RN’s indictment became public. Woodward says it was a leak by defense counsel; Ball says it leaked from the House, who had received the Roadmap. Haig says Jaworski threatened on May 5, 1974 to leak it to pressure WH compliance on tape subpoena. It appears to have leaked shortly after Jaworski sought cert. on May 24th.
      2. How did House Judiciary come into possession of the 7 tapes they issued public transcripts on June 25, 1974? Did this impact the Court’s consideration?
      3. Note the US v Mitchell defendants took conflicting positions on the subpoena—detailed in Ball.
    9. Issues to be Explored:
      1. [Query if this one is worthwhile] Why the issue of whether the Special Prosecutor had “standing” to bring this case was never raised or argued before the Court—even recognizing that issues of jurisdiction and justiciability were so argued. This keys off of Larry Silberman’s speech noting that Jaworski had approached him at DOJ, requesting the Department to instruct St. Claire that he could not raise that issue (which Silberman declined to do).
        1. Re-read oral argument in light of The Brethren to see if “standing” is ever discussed
      2. Whether the Special Prosecutor’s use of a subpoena duces tecum was proper under Rule 17(c) of the Federal Rules of Criminal Procedure, under which it is universally agreed that it cannot be used for purposes of discovery. It should be noted that the basis for this section of the Court’s decision—that the requirements of Rule 17(c) had been met—was based on a record the remains—even today—under seal (supposedly because it consisted of transcripts of the seven tapes already turned over to the Special Prosecutor and, perhaps portions of grand jury transcripts—but we will never know, since that material remains under seal).
      3. The inclusion of President Nixon as an unindicted co-conspirator was essential to the Special Prosecutor’s introduction of the White House tapes in US v Mitchell, which might otherwise have been disallowed as hearsay—yet the Supreme Court withdraws cert on this issue as improvidently granted, supposedly because it was a political question and not appropriate for a Supreme Court ruling.
        1. Supreme Court opinion in US v Nixon seems to assert this (Get quote from The Brethren)
        2. It is certainly clear from the DC Circuit’s later opinion in US v Mitchell:
        3. “Mitchell contends that a number of out-of-court declarations recorded on the tapes are inadmissible because they contain expressions of opinion or statements not based upon the declarants’ firsthand knowledge. The simple answer to this contention, as the Government notes in its brief, is that these rules are inapplicable to declarations admissible under the co-conspirator exception to the hearsay rule.”

        4. Note Appellate Court’s summary of the conspiracy, that any discussion of what was happening was evidence of the conspiracy itself—and was admissible under the co-conspirator exception to the hearsay rule:

        Mitchell next contends that numerous excerpts on the tape recordings constitute mere narratives of past events, rather than statements made in furtherance of the conspiracy, and hence fall outside the co-conspirator exception to the hearsay rule. We agree with the point that mere narratives of past events are not admissible hearsay statements. But as applied to the facts in this case, the argument is of limited value to Mitchell.

        The conspiracy at issue required the coordination and control of a large number of individuals who had knowledge of the events that were being covered up. It also required the conspirators to make regular strategic decisions on how best to proceed to prevent the full story of “Watergate” from becoming known to the press, prosecutors, Congress, and the public. The tape recordings thus contain discussions of many aspects of Watergate strategy: what would happen if particular individuals were to talk, how much knowledge those individuals possessed, who was likely to volunteer or be compelled to talk, what individuals could be dissociated from any responsibility for reprehensible or illegal activity, whether certain officials should assert executive privilege, whether public statements should be issued and what they might contain, whether it was feasible to raise and distribute hush money, whether promises of money or aid had been extended to particular persons.   

        As the threads of the cover-up began to unravel, it became increasingly important to review what had taken place in order to identify and shore up the loose ends. It became critical for the conspirators to try to ensure that any story they wished to present would not ring false and that any action they were considering would not backfire, a strategy whose success required total familiarity with the facts.

        In a conspiracy in which consideration of alternative strategies played so central a role, statements which narrate past events are not necessarily “mere narratives” in the usual sense of that phrase. Rather, they can constitute activity that is plainly and importantly “in furtherance of” a conspiracy, and thereby be admissible under the co-conspirator exception to the hearsay rule.

      4. Key Issue: The really troublesome argument is St. Clair’s point that what was really going on was that the Special Prosecutor was improperly using his authority to prosecute Nixon’s aides in order to undertake discovery against Nixon, on behalf of the House Judiciary Committee, which could not require production of such evidence on its own, due to the separation of powers structure dictated by our Constitution.  It seems apparent that St. Clair made quite a telling point, but one that went completely unaddressed in the Court’s opinion—or in subsequent scholarly analysis. Indeed, the entire introduction to the St. Clair brief (pp. 13-15) is devoted to this one issue:
      5. At its core, this is a case that turns on the separation of powers.

        It would do justice neither to the parties nor to the issues if this were treated as just another case or simply as an appeal from a discovery procedure in a criminal action against private individuals.  It is, in fact, an extraordinary proceeding intrinsically related to the move now pending in the Congress to impeach the President of the United States.

        In effect, court process is being used as a discovery tool for the impeachment proceedings—proceedings which the Constitution clearly assigns to the Congress, not to the courts.  This is so because of the particular relationship which has evolved among the Special Prosecutor, the district court, and the House Judiciary Committee, and because of the impact which any presidential action with regard to the subpoenas issued would inevitably have on the impeachment proceedings. As a result of the history of the so-called Watergate cases in the district court, the Special Prosecutor is well aware that the district court feels obligated to turn over to the Judiciary Committee any information that might bear on the pending congressional action.  Thus the effect, whatever the intent, of the discovery procedures being pressed by the Special Prosecutor would be to produce evidence for the Congress that the Congress could not obtain by its own procedures.

        As a result, there has been a fusion of two entirely different proceedings:  one, the criminal proceeding involving various individual defendants, and the other the impeachment proceeding involving the President.  The first lies in the courts; the second lies in the Congress.  The Special Prosecutor strengthens his fusion by utilizing an unsubstantiated, unprecedented and clearly unconstitutional device of naming the President as an unindicted co-conspirator in the criminal cases, with the apparent purpose of strengthening his claim to recordings of presidential conversations as potential evidence in the criminal cases.

        Two processes—each with an entirely different history, function and structure—have become intertwined, and the resulting confusion, both conceptual and procedural, is manifestly unfair to the President as an individual and harmful to the relationship between his office and the legislative branch.

        To place the present events in perspective, it is useful to reflect on how this case would have been viewed in normal times.  If there were no impeachment pending, and if the Special Prosecutor used the device of naming the President as an unindicted co-conspirator in order to obtain recordings of private presidential conversations, on which the President had interposed a claim of executive privilege, the Special Prosecutor’s request would be given short shrift.

        If this procedure were allowed to go forward, inevitably affecting the impeachment inquiry, it would represent an expansion of the Court’s jurisdiction into the impeachment process that the Constitution assigns solely to the House of Representatives.  Whatever the combination of circumstances producing it, the result would be clear:  an expansion of the Court’s jurisdiction into a realm that the Constitution clearly prohibits.  It follows necessarily that the courts may not be used, either deliberately or inadvertently, as a back-door route to circumvent the constitutional procedures of an impeachment inquiry, and thus be intruded into the political thicket in this most solemn of political processes.

        Yet, no further mention of this argument is made in the remainder of the St. Claire brief.

        As I understand it from Malcolm Howard, St. Claire’s deputy, Charles Allen Wright (of Wright on Federal Courts)—who had argued the earlier tapes case before the DC Circuit Court (Nixon v Sirica)–was brought back in at the last minute to consult on this Supreme Court brief.  Perhaps this line of argument was only introduced at the last minute and there was no time to integrate it into the full brief.  It is featured more prominently in the St Clair reply brief.  In retrospect, it seems startlingly clear that this is precisely what the Special Prosecutor was up to.  [NB: Copies of WSPF’s brief and the oral argument are in my files, but not WSPF’s reply brief which should be key.]

        Ben-Veniste seems to have statement that recognizes that only WSPF has legal claim on the tapes. Haig says they were after RN all the time, p. 449

        [Re-draft in light of discussion in The Brethren, pp. 287-347]

        The point, but based on Woodward’s disclosures, is that:

        • Supremes all pre-judged the case before hearing any evidence: They felt that RN was guilty as hell and they weren’t going to be the ones to be blamed for concurring in his non-disclosure.
        • Their conversations suggest they treated it as it was, an investigation of President Nixon on behalf of House Judiciary, rather than a quest for evidence for cover-up trial, which is how it was framed by Jaworski and the only way they could have ruled.
        • They sidestepped difference between a grand jury subpoena and Sirica’s subpoena duces tecum.
        • They sidestepped question of whether grand jury had the authority to name RN as a co-conspirator, yet seem to have relied on that action as the basis for their decision.
        • The opinion appears to have been rushed in order to assist the House Judiciary Committee in its deliberations (See Ball and Woodward)
        • It’s a hodge-podge opinion that is of no precedential value—which may be what they intended all along. Executive privilege has constitutional underpinnings, but not in Nixon’s case.
        • Case shows the same political maneuvering in the Supreme Court—working toward a pre-determined outcome–that essentially corrupted the Circuit Court’s consideration of all the Sirica appeals.
          • For example, it is settled law that a President cannot be indicted while in office, that a subpoena duces tecum cannot be used for discovery, that hearsay evidence cannot be introduced at trial, and that a co-equal branch cannot get the Court to enforce its efforts to compel the production of documents.
          • Yet, the Supreme Court held 8-0 that Nixon had to produce these tapes for Jaworski’s supposed use in prosecuting people already indicted for the cover-up.
          • What really happened is that the disclosure that followed dramatically certified his impending impeachment.
    10. In sum, there is this nagging feeling that something was going on behind the scenes in all the legal wrangling that was not addressed directly by the Court in Chief Justice Burger’s opinion. Was it some sort of subterfuge, about something that could not be addressed directly?  Is US v Nixon still good law?  Has the opinion withstood the test of time?  Might it have been better, in retrospect, for these issues to have been first considered at the Circuit Court level (as was the subpoena for the original eight tapes—in Nixon v Sirica)?  Is this more of an example of a court bending before the political firestorm that Watergate had become?
      1. Eisler’s book on Justice Brennan contains a chapter on how Brennan influenced Berger’s opinion on the case.
      2. Compare with Woodward’s The Brethren.
      3. Compare with Bork, pp. 109-110:

    It is possible to have some sympathy for the Court’s lawless assumption of jurisdiction. Every other means of getting the White House to produce the tapes had failed. It was Jaworski’s subpoena or nothing. Had the Court announced that it had no jurisdiction on a point that 99 percent of the population would not understand, the reaction would have been explosive. The episode is a useful reminder that all too often the Court cannot or will not stand in the way of an impassioned public.

    NB: a decent number of the 64 subpoenaed conversations were subsequently introduced into evidence in the cover-up trial. Query, however, how great a role they played in the prosecution’s case itself. This may just have been the prosecution covering their tracks.

    I have a FOIA request pending at National Archives seeking release of all materials related to Nixon’s being named as an unindicted co-conspirator and the preparation of the report to the House of Representatives by Watergate Grand Jury I (“the roadmap”), which may be addressed in the not-to-distant future.

  7. Fight over possession and preservation
    1. Buzhardt initiative to “pack up and move out” (Haig describes how Jaworski was kept in the loop on all this.
    2. Compromise with GSA (of which National Archives was a part)
    3. Congressional reaction: Presidential Materials and Recording Act of 1974
    4. Litigation followed, for decades
    5. Ultimate Resolution
      1. Nixon Foundation donates building and grounds to NARA
      2. NARA moves papers and copies of tapes to Yorba Linda
  8. The Lingering Challenge: Transcription Issues

So the tapes are public and widely available today, but at least one issue still lingers – and that is what precisely do they say?

[There also remains substantial controversy over various efforts to transcribe the conversations that are on the tapes. Installed for a different purpose entirely, they are of exceptional poor quality. This difficulty is compounded various transcribers hearing only what they want to hear—they are political animals, too.

  • Compare Blue Book with House Judiciary versions with WSPF versions
    • CQ has line by line comparison
  • Kutler controversy from February 2011 NYT
  • Reston book on Frost/Nixon, Nixon Convicted
  • Refer to Luke’s website, NARA article by Samuel Rashay,

Part Three: Seven Critical Conversations

    1. Introduction
      1. Importance of actually listening to the tapes themselves.
        1. See Sam Rushay’s article on studying the tapes
        2. Point about witness demeanor as integral to juror evaluation
      2. Knowing the people and the circumstances surrounding each particular conversation
      3. I was there and I should have some credibility
    2. The Critical Week Following the Break-in Arrests

Early scrambling to find out what had happened

      1. RN, HRH and JDE had no advance knowledge
      2. Dean placed in charge, but didn’t disclose prior involvement
      3. The CRP cover-up started Monday night, June 19th, at the meeting in Mitchell’s apartment.
    1. The Eighteen Minute Gap (Tuesday, June 20, 1973)
      1. Background and significance
        1. First recorded conversation following RN and HRH return from Florida
        2. By this time, Dean knew it was a Liddy operation and had been to meeting in Mitchell’s apartment. We can assume he had told Haldeman some of the background.
        3. Haldeman’s notes say “Watergate” and don’t contain much else—but when you are talking, you don’t have to take notes.
        4. Consider obtaining NARA investigation of HRH notes
      2. Rose was transcribing, but original subpoena did not appear to include this tape; later clarified, but Buzhardt had not reviewed it (or, if he had, the gap was not present)
      3. Discovery, including my role
      4. Aftermath (Evidentiary Hearing)

From 2006 Manuscript:

Sirica’s Evidentiary Hearing, convened on October 31, 1973 and not closing until January 18, 1974 remains one of the most incredibly one-sided Star Chamber proceedings in American jurisprudence. The focus was the 18½ Minute Gap that had been discovered on one of the subpoenaed tapes. In actuality, the tape in question was not a part of the original subpoena for eight presidential conversations, but the subpoena had later been ‘clarified’ to include it. The gap first came to Buzhardt’s notice as copies were being made in preparation for turning over the original tapes, as agreed, following the Saturday Night Massacre. Buzhardt was appalled at the missing 18½ Minutes and could think of no innocent explanation. He informed Jaworski and begged for time to ascertain its cause, but Jaworski felt Sirica needed to be informed at once—and Sirica felt the public’s right to know was more important than discovering the cause. But let’s hear it from Jaworski’ own book:

Fred Buzhardt surprised me. He called and said he wanted to see me at my office. My first thought was that he was bringing me some material in advance of the ten-day promise [to turn over the tapes]. The staff also was surprised. Buzhardt has never been in the office before; Cox had always gone to the White House to see him….

Buzhardt said that he had discovered that one of the nine subpoenaed Watergate tapes had a substantial “gap” in it, one of a little more than eighteen minutes. He had run tests on the recording machine, he said, and had been unable to determine how such a gap could have occurred unintentionally. He said he understood that the gap had occurred at a time when Rose Mary Woods, the President’s private secretary, was transcribing the recording….[There follows a discussion on why that particular conversation, occurring within three days of the Break-in arrests, was rather important.]

Judge Sirica had to know about this new development immediately. I told Buzhardt, “We’ll see the Judge as quickly as we can.”

No, said Buzhardt; he wanted to conduct some additional investigation. It would take several days.

I told him it wasn’t possible. The tapes had not been requested, the Judge had ordered them turned over after a legal process. It was necessary that he know about the gap today.

Running through my mind was the fear that other gaps might appear in other tapes. I put an end to the discussion and made arrangements for us to see Judge Sirica that afternoon, in camera. “Please bring Haldeman’s notes to court with you [containing the word Watergate in the midst of the missing recording],” I said to Buzhardt. He said he would. [Jaworski, pp. 25-26]

Now we switch to Sirica’s recounting of that afternoon’s meeting in his chambers, which comes at the outset of his chapter entitled, The Eighteen-Minute Gap:

Fred Buzhardt was as pale as a ghost. He was obviously extremely nervous and very troubled…

Buzhardt got right to the point. “Judge, we have a problem,” he said.

He told me that in the process of preparing their own analysis of the subpoenaed tapes before submitting them to me for review, they had discovered an eighteen-minute gap on a tape of a conversation between the president and his two top aides, Haldeman and Ehrlichman. Strangely, he called the gap an “obliteration of the intelligence,” and he added quickly, “it doesn’t appear from what we know at this point that it could have been accidental.”

[There follows roughly the same explanation of the significance of the gap occurring where Haldeman’s notes say Watergate]

Buzhardt pleaded for a few more days to investigate the question before having to make the gap public. “Announcement of this type of thing could have a devastating effect,” he said. Jaworski, pointing out the potential criminal charges that could result from the gap, urged that the matter be disclosed quickly.

“I always find it better to bring these things out as fast as you can,” I told Buzhardt. “I am for full disclosure as soon as possible. I just can’t help it. It is a sad thing to have to report.” I asked the lawyers to be in my courtroom at 4pm [for the announcement, which was made by putting Buzhardt on the witness stand and letting Ben-Veniste appear to drag the information out of him.] [Sirica, pp. 189-191]

The Gap was a very serious and threatening development.

      • Describe Buzhardt’s concerns; Rose’s reactions, before and after testimony; use of NSA expertise
      • Shepard on the tape recorder
      • WSPF also sprung surprise, coordinated interviews with WH legal secretaries at night, in their homes.
      • Note also the early memos from the tape experts (in Jaworski’s files) that they could reproduce the buzz, but it didn’t come from the typewriter or the tensor lamp. The implication was that there was possibly an innocent explanation. What then happened?

The inquiry was included as a part of the Evidentiary Hearing, which lasted from October 31, 1973 to January 18, 1974 and produced some 2800 pages of testimony by twenty-three separate witnesses and nearly 200 exhibits.   

That the gap was suspect remains unquestionably true. What seems lost is any understanding that Sirica’s “hurried disclosure” ended virtually any possibility of investigation to determine if actual wrongdoing had occurred. He opted for a media circus rather than case resolution. In fact, Sirica allowed the Special Prosecution Force to fan the flames of public discontent by allowing wild accusations and questions during public court sessions. Positively reveling in his media exposure, Sirica showed no interest in bringing the matter to conclusion, but instead enjoyed presiding in the spotlight’s glare. Only when interest began to fade did he refer matter to the grand jury, where it should have gone in the very first place.

To get a flavor of the hearings, let’s hear from James Doyle:

Ben-Veniste had been pawing at the ground like a thoroughbred horse since he arrived in July. Bright, brash, abrasive with witnesses, he had been used to his share of the action as a prosecutor in New York….Now Neal was gone and Ben-Veniste was the head of a team of young lawyers who were to put together a withering cross-examination of White House witnesses.

The format was a fact-finding hearing, not a trial. That meant the prosecutors needn’t worry about the fine points of the rules of evidence or the possibility that some judge would reverse a conviction because of their brashness. They did not need to tailor their facts or limit their case. This was simply an exercise to find out what happened to the subpoenaed evidence.

Yet it was a trial, of Richard Nixon’s credibility. The jury consisted of the reporters who sat in the spectators’ seats, who listened closely, took it all down, and broadcast it to the world. Ben-Veniste and his colleagues delivered body blows to the Nixon Administration.

It became a comic tennis match, with the testimony bounding from Secret Service agents scared for their jobs; to Steve Bull, the successor to Alex Butterfield, who wanted to ease the situation as best he could; to Fred Buzhardt, now in the uncomfortable position of witness for the defense, and not doing very well. [Doyle, p. 231-232]

Many Watergate watchers mark the Evidentiary Hearings as having an even greater devastating impact on the Nixon presidency than Dean’s testimony—which by this time had become largely irrelevant in the public’s mind. Others see it more as an opportunity for Ben-Veniste to audition for life membership in the Get Nixon Squad.

Interestingly, the grand jury never indicted anyone for the 18½ Minute Gap. The issue just sort of faded away without resolution. Knowing a little more than most about it, I would offer up the following observations: (i) when Rose Woods was fingered as the suspect, she pitched such a hissy-fit back at the White House that Buzhardt asked NSA experts (who had discovered the gap when making tape copies) to examine the Uher 5000 recorder that she had begun using to transcribe the tapes. (2) They concluded its shorting out had certainly caused the hum on the tape and perhaps the gap itself. (3) The White House also got at least one letter from a Hi-Fi club saying their Uher 5000 had created the same sort of gap. (4) A technical analysis prepared by the Stanford Research Institute on Wood’s behalf reached similar conclusions. (5) When the so-called tape experts had first obtained the Uher recorder for analysis, they concluded it was broken (shorting out), they proceeded to replace the faulty bridge rectifier (which was tossed out) and have the machine cleaned and serviced. Once fixed, the hum could no longer be reproduced. In short, Sirica’s activism precluded effective investigation and the approach taken by the panel of experts destroyed critical evidence—and that is why no indictments could ever have been returned.

Any Judge but Sirica, even if first announcing the existence of the gap itself, would have referred the matter forthwith to the grand jury—which may well have been able to reach a rather quick conclusion. Instead, Sirica got his desired face time in the national spot light—and Ben-Veniste got to posture and strut—and to ask questions for which there were no answers—just headlines. As was the case with the Ervin hearings, one can only wonder at the prejudicial pretrial publicly that resulted.

    1. The Smoking Gun (Friday, June 23, 1972)

In US v Nixon, the Supreme Court upheld the Special Prosecutor’s subpoena duces tecum for tapes of sixty-four additional conversations. Their decision was handed down on July 24, 1974, but the White House was granted some delay so that the recordings could be transcribed before being turned over.

The White House chose to release selected transcripts to the public, rather than to have them leak out on a piecemeal basis. That release occurred on the evening of August 5th and included the tape of a conversation between the President and H.R. “Bob” Haldeman of June 23, 1972, but a few days after the June 17th arrests of the Watergate burglars.

The conversation, soon infamous as the “smoking gun,” appeared to contained irrefutable proof that President Nixon had concurred in his staff’s recommendation that the CIA be asked to request that the FBI not pursue its intended interrogation of two individuals who were thought to have knowledge of the origins of the $100 bills found in the possession of the Watergate burglars.

Knowledge of this tape not only panicked President Nixon’s defense counsel, its release led directly to a total collapse of any remaining Nixon supporters on the House Judiciary Committee—and to President Nixon’s August 9th resignation.

Conventional wisdom has it that this tape proves that President Nixon was in on the Watergate cover-up from the very outset—perhaps even directing it. The truth is precisely the opposite: The actions of Nixon and his senior aides were motivated by solely by Mitchell and Stan’s understandable desire to keep the names of prominent Democratic donors out of the investigation.

      1. Following the Money

Prior to the April, 1972 effective date of new campaign disclosure legislation—coupled with the nearly certain re-election of Richard Nixon—CRP had raised $10 million in campaign funds, much of which came from businessmen usually thought of as Democrats or by other large contributors not eager to have the amount of their support for Nixon made public.

Two campaign contributions are key to understanding the significance of the Nixon-Haldeman conversation of June 23, 1972, the smoking gun tape:

        • A $25,000 cash contribution from Dwayne Andreas, then Chairman of Archer-Daniels-Midland and a long-time Humphrey supporter.

          • Senator Hubert Humphrey, Johnson’s vice-president, had been Nixon’s opponent in the 1968 campaign and was thought to still be thinking about challenging him again in 1972.
          • Andreas had not only been finance chairman of Humphrey’s 1968 campaign, he was sole trustee of the blind trust established by Humphrey when he became vice-president.
          • It would be difficult to find a person more closely connected with Democrats in general or with Humphrey in particular. Yet, with Nixon’s re-election looking quite certain, Andreas apparently decided to make a sizable financial contribution to CRP, but only under the condition that it not be publicly disclosed.
          • For that reason, Andreas made his contribution in cash, through Ken Dahlberg, the Republican National Committee’s Midwest regional fund-raising chairman. Andreas left the cash his Florida apartment, prior to the April 7 reporting deadline, the effective date of the new campaign financing law. Dahlberg, however, did not actually retrieve the contribution until several days thereafter. He used the cash to purchase a cashier’s check, made out to himself, from First Bank and Trust Company of Boca Raton; he then sent the cashier’s check to Maury Stans at CRP on April 10.
        • Four checks totaling $89,000 from Texas oil barons.
          • Robert Allen, CEO of Gulf Resources and Chemical Corporation, was a CRP fund-raiser in Texas. Today, he would be known as a bundler. Allen had convinced several prominent Southern Democrats to make sizable contributions, but they were equally concerned that these not become publicly known.
          • Allen hit upon the idea of routing the funds through the law firm used by his company’s subsidiary in Mexico.
          • Thus, he arranged for four cashier’s checks totaling $89,000, drawn on Banco Internacional of Mexico City, to be issued to Manuel Ogarrio Daguerre, a well-known Mexican lawyer.   
          • On April 5, Allen forwarded these checks to CRP.

It was Liddy, in his new role as counsel to the CRP finance committee, who was providing legal advice concerning the newly-enacted Federal Election Campaign Act of 1971. Since all five cashier’s checks raised questions as to disclosure and origin, as well as whether they had been timely received so that they were not subject to the new disclosure requirements, they were given to Liddy for his legal review.

Liddy decided the easiest way to handle them was to launder them by converting them to cash. To achieve this, Liddy traveled to Miami and gave the five checks, totaling $114,000, to Bernard Barker, who he had met through Howard Hunt and their work on the Plumbers break-in into the offices of Dr. Lewis Fielding, Daniel Ellsberg’s psychiatrist. Barker, in turn, deposited them in the bank account of his real estate firm, Bernard Barker Associates, at the Republic National Bank of Miami.

Barker then made cash withdrawals, in hundred dollar bills. Perhaps understandably, the bank did not have that much cash on hand and had to request that some be transferred from the Federal Reserve Bank in Miami, which supplied blocks of newly printed, nicely counted and stacked $100 bills, all uncirculated and with sequential serial numbers. Barker gave the $114,000 back to Liddy, who returned it to CRP’s treasurer, minus some $3,000 that he kept for expenses.

A large portion of this cash was kept in CRP’s safe. Weeks later, when Liddy withdrew substantial funds for use in connection with his campaign intelligence plan, much of it consisted of these same uncirculated, sequentially numbered $100 bills.

When Barker and the other Cubans were caught that night in the Watergate office building, they had almost $5,000 in crisp, new $100 bills. The FBI quickly traced these through the Fed to its Miami branch, where they had kept a record of its disbursal to Barker’s bank account, into which he had deposited the five cashier’s checks, four of which were drawn on a Mexican bank.

It is no little wonder that the FBI wanted to question Kenneth Dahlberg and Manuel Ogarrio about the origins of these checks—and little wonder that Mitchell and Stans were very concerned about possible leaks about the origins of these monies. There was no question but that the money could be traced to CRP; their concern was that its origins would be embarrassing to prominent contributors—and devastating to Duane Andreas.

      1. Maurice Stan’s Reconstruction

A fuller explanation of how all this came to be was set forth in the 1978 book by Maurice Stans, Chairman of CRP’s finance committee. It is worth reading in full, since the level of detail is impressive and convincing:

Once the Watergate entry had occurred on June 17 and the culprits bad been arrested on the premises with $5,300 in $100 bills, the obvious question was where the money had come from. The attention given to this subject by the investigators and the press was unfortunately diverted to the wrong conclusion because of several remote coincidences. These coincidences centered on two early contributions, one of $25,000 and a second of $100,000 (of which $89,000 was in Mexican bank checks and $11,000 was in cash). All this unfolded in a series of disclosures that came as much of a revelation to me as they did to the public.

Six days after the burglary, the first surprise occurred. Fred LaRue, an assistant to Mitchell on the campaign side, phoned and asked me whether I knew Kenneth Dahlberg. Certainly I knew Ken Dahlberg. He had been Minnesota chairman for our finance committee for a time and now was a regional chairman, responsible for supervising the raising of money in six midwestern states. “Well,” La Rue said, “his check for $25,000 has shown up in the bank account of Bernard Barker, one of the fellows arrested in the Watergate.” When this news became public a month later it set off some wild conjectures: Dahlberg was the one who had financed the Watergate bugging; Dahlberg represented Cuban interests who wanted the Democratic campaign disrupted; and so on. His explanation that he had purchased the check with a $25,000 campaign contribution in currency from a legitimate but undisclosed giver and then turned the check over to the finance committee wasn’t believed; it merely whetted the appetite for speculation. Who was the donor? Why was it secret? Why did it show up in Barker’s bank account?

The storm of charge and conjecture ran for weeks until Dahlberg was forced, improperly, by a state’s attorney in Florida, Richard Gerstein, who had served a subpoena upon him at the Republican convention, to disclose that the contributor was Dwayne Andreas of Minneapolis. Andreas was a close friend and financial supporter of Hubert Humphrey, and his reason for wanting secrecy was obvious: at the time of his contribution to the President. Humphrey was still a candidate for the: Democratic nomination, and Andreas did not want his support of the President to be publicized as a defection from Humphrey, to whom he had earlier given a larger amount. Andreas believed that either man would have made a good President for the country. Later when Humphrey lost out in the Democratic punning and Nixon formally received his party’s nomination, Andreas increased his contribution to Nixon substantially.

The Dahlberg-Andreas development had a companion that was even more of a surprise. The FBI also had learned and the press next discovered that $89,000 in Mexican bank drafts payable to our committee had similarly been deposited in the Barker bunk account. This revelation brought on multiple demands, as in the Dahlberg case, for disclosure of the source, and it increased geometrically the speculations about the financing of the Watergate affair: this was illegal money from a foreign principal; it was illicit corporate money; it was only a small part of a “laundering” operation by which the Nixon committee raised money in the United States, sent it to Mexico to disguise its identity, and then brought it back. The universal assumption then was that these checks, and the one from Dahlberg, had been deliberately given to Barker by my committee to finance the burglary.

The charges were off the mark, but our denials were ignored because we were not allowed at the time to tell publicly the unfolding facts that we were learning as to how the Watergate gang had financed their venture. Counsel for our committee, including John Dean, insisted all along that any premature public disclosures along these lines could prejudice the rights of the Watergate defendants and even result in their acquittal, regardless of the evidence against them. We did, of course, give all the information we had to the FBI.

There were simple and valid explanations for the receipt and handling of the Dahlberg and Mexican checks, but they ran into new coincidences that complicated the stories, and these in turn multiplied the critical publicity. Dahlberg, a wholly innocent conduit for the $25,000 Andreas contribution, was grilled by the FBI, buffeted by reporters, quizzed by the politically ambitious state’s attorney in Miami, forced to make a senseless trip down there for several days for a minor trial, and was otherwise embarrassed and annoyed for months. No one could have deserved it less, as the facts plainly showed. But his innocence in the whole matter became obscured by another issue that surfaced—why hadn’t the $25,000 been publicly reported by our committee, since Dahlberg’s check was dated April 10, three days after the new law went into effect, and had not been delivered by him to the committee until April 11?

The facts given to the General Accounting Office, the official government inquisitor under the new law, by Andreas, Dahlberg, and me and others answered that question, too, and should have cleared all the parties at once. Andreas had promised the contribution to Dahlberg as early as January and had confirmed his commitment in February; he arranged with Dahlberg to give him the money at a meeting of a bank board of directors on March 15; to have it ready, he drew out the funds in cash from a tax-paid account on March 12. When Dahlberg was required at the last minute to miss the March 15 meeting, Andreas placed the money in an envelope in Dahlberg’s name and held it for him; on April 5, realizing that the money had still not been delivered, he phoned Dahlberg and asked that it be picked up before the 7th; when Dahlberg said he couldn’t get to Florida on time, Andreas took a lock box in his hotel in Dahlberg’s name, placed the money in it, and called and told him “the money is the committee’s; title has passed”; and when Dahlberg then phoned me and recited the story, I authorized him to accept it over the telephone as of that date, April 5, alter checking with our counsel for assurance that this legally completed the transaction.

Dahlberg arrived in Florida on the evening of April 7 and went directly to the hotel to pick up the money, but couldn’t do so because the hotel’s vault was already closed for the day. The next morning he called Andreas and arranged a golf date with him for the following day at Andreas’s country club, at which time, as planned, Andreas handed the money to Dahlberg. Being unwilling to carry that much currency all the way to Washington, Dahlberg purchased a cashier’s check the next day, the 10th, payable to himself, and handed it to me at a meeting in Washing-ton on the 11th, endorsed by him. Within a few minutes, I handed it to Sloan, our treasurer, recited the events of April 5, called his attention to the date on the check, and suggested he determine how to handle the contribution in the committee’s records.

There was nothing sinister at all to this point. But there were still two persisting questions: why wasn’t the contribution reported, and how did the check get into the bank account of Bernard Barker?

Both the election law in effect before April 7 and the law after that date had a similar definition of a political contribution. They said that a “contribution” included not only an outright gift in money or anything of value, but also “a promise, pledge or commitment to make a contribution, whether or not legally enforceable.” With the long history of Andreas’s commitment, his efforts to make delivery, and the documented evidence of his using the safe deposit box in Dahlberg’s name, it was clear to us that his contribution qualified as having legally occurred before April 7, quite apart from the separate point that a constructive delivery had taken place on April 5 when he took several steps to see that “title has passed.” Simply, it was his intent to make the gift before April 7, and he had done everything possible to do so, and it was the conclusion of our counsel that in this situation the contribution had occurred before April 7 and was therefore not publicly reportable as a gift after that date. So we did not report it. (Months later, early in 1973, the Department of Justice agreed that our position was valid.)

Because I left Washington on a several-week vacation immediately after April 11, it was not until late in the month that Sloan told me that he had promptly given the Dahlberg check to Liddy, as committee counsel, and asked for his advice as to how to handle it in the committee’s accounts. In order that the contribution could be divided into amounts of less than $3,000 each to various committees to avoid causing the contributor to pay a gift tax, Liddy decided to convert the check back to cash, and he thereupon gave Sloan the $25,000 proceeds early in May. Not until after the June 17 episode of the Watergate did anyone learn that Liddy had on his own initiative cashed the check through the bank account of Barker, who apparently was his friend and an earlier associate in FBI activities.

The Mexican checks are a much simpler story. On April 3, I took a phone call from William Liedtke, who was then the Texas chairman for our committee. He said he had a prospective contribution of $100,000 and wanted to know if it was proper to take that amount from an American citizen “who had the money in U.S. funds in Mexico.” He did not mention who the individual was. I checked with our counsel and called him back, saying that this was perfectly legal.

The next I heard about this was in the latter part of April, when Sloan told me that he had received the money on April 5 from Liedtke’s associate, Roy Winchester, who had delivered it as part of about $700,000 in Texas contributions. There was nothing unusual about that total amount, even though it was large, because Liedtke had accumulated all the Texas gifts from several months of solicitation so they could be delivered at one time.

I learned after June 17, the Watergate dale, that 589,000 of the Mexican money had been in bank drafts and $11,000 was in United States currency. I never found out whose idea this division was, nor did I learn the identity of the contributor until December 1072, when we agreed, at his request and on advice of counsel, to return the money. The contributor was Robert Allen, a Texas businessman and a member of our finance team in that state, who confirmed in a letter at that time that “your committee did not participate in that [Mexican] arrangement in any way” and that “I have not until recently informed you that I was the donor.” In this instance, there was no contention that the contribution had to be reported because it had been delivered to the committee before the April 7 date that reporting began.

Sloan told me late in April that he had not been sure how to handle Mexican bank drafts and, again properly having in mind the avoidance of gift taxes for the giver, had handed them to Liddy for advice. In any event, Liddy concluded (as he had with the Dahlberg check) that the best course was to convert the checks to currency so it could be divided among committees, and this he did by running them through the bank account of his friend Barker. Sloan later reported to me in mid-May that he had just received the proceeds of the Dahlberg and Mexican checks from Liddy, after some delay and prodding. Shortly thereafter, on May 25, at my direction he included the total of S 125,000 from the two contributors in a deposit of $350,000 in cash in the committee’s bank account.

That’s all there was to the saga of the Dahlberg and Mexican checks. They were valid campaign contributions. Both qualified under the law as contributions completed before the date that required reporting. They had carefully been given by our treasurer to our counsel for advice as to handling, and he in turn had cashed the checks and given the proceeds back to the treasurer who deposited them in the bank. There was nothing at all unwarranted in these actions. They had no connection whatever with the plot to break into Democratic offices in the Watergate.

Stans, pp. 207-212

      1. John Dean’s Ervin Committee Testimony

Stan’s explanation above parallels precisely with John Dean’s June testimony before the Ervin Committee:   

To the best of my recollection, it was during this June twenty-first meeting, with Gray, that he informed me that the FBI had uncovered a number of major banking transactions that had transpired in the account of one of the arrested Cubans, Mr. Barker. He informed me that they had traced a $25,000 check to Mr. Kenneth Dahlberg, and four checks totaling $89,000 to a bank in Mexico City.

I do not recall whether I first learned about the Dahlberg check from Mr. Gray, or whether I learned about it in a meeting in Mitchell’s office, by reason of the fact that the FBI was trying to contact Mr. Dahlberg about the matter, and Mr. Dahlberg had called Mr. Stans. At any rate, the fact that the FBI was investigating these matters was of utmost concern to Mr. Stans when he learned of it. Stans was concerned about the Dahlberg check, I was informed, because it was in fact a contribution from Mr. Dwayne Andreas, whom I did not know, but I was told was a long-time backer of Senator Hubert Humphrey. Neither Stans nor Mitchell wanted Mr. Andreas to be embarrassed by disclosure of the contribution. The concern about the Mexican checks was made a little less clear to me. I was told it was a contribution from a group of Texans who had used an intermediary in Mexico to make the contribution.

Mr. Stans also explained that he had checked with Sloan to find out how this money had ended up in Mr. Barker’s bank account, and Sloan reported that he had given the checks to Liddy and requested that he cash them. He said he had no idea how Liddy had cashed them, but surmised that he had obviously used Barker to cash them. I was also told—and I do not recall specifically who told me this—that the money had nothing to do with the Watergate; it was unrelated and it was merely a coincidence of fact that Liddy had used Barker to cash the checks and Liddy had returned the money to Sloan.

I was told that the investigation of this matter, which appeared to be connected to Watergate but wasn’t, was unfounded, and would merely result in an unnecessary embarrassment to the contributors. Accordingly, Mitchell and Stans asked me to see if there was anything the White House could do to prevent this unnecessary embarrassment.

I, in turn, relayed these facts to both Haldeman and Ehrlichman. On June twenty-second, at the request of Ehrlichman and Haldeman, I went to see Mr. Gray at his office in the early evening, to discuss the Dahlberg and Mexican checks, and determine how the FBI was proceeding in these matters. Mr. Gray told me that they were pursuing it by seeking to interview the persons who had drawn the checks. It was during my meeting with Mr. Gray on June twenty-second that we also talked about his theories of the case, as it was beginning to unfold. I remember well that he drew a diagram for me, showing his theories. Ata that time, Mr. Gray had the following theories: It was a set-up job by a double agent; it was a CIA operation because of the number of former CIA people involved; or it was someone in the reelection committee who was responsible.

Keep in mind that Dean’s testimony occurred before the existence of the WH taping system was even known and certainly before Dean had any inkling that Haldeman had discussed his idea with the President in any detail.    

All Dean knew was that he had been presented with the problem of possible disclosure of Democratic donors, discussed it with Pat Gray, and had come up with something of a solution. His proposed initiative—getting the CIA to ask the FBI to back off these two interviews—seemed easily accomplished, since Gray already suspected that they had stumbled into a CIA operation.

      1. Special Prosecutor’s Understanding

Frampton’s 7/22/74 draft of Dean’s Anticipated Trial Testimony states at p. 20:

Concern About the Dahlberg and Ogarrio Checks

On or about June 21, Dean learned from Gray that the FBI had discovered that large checks from Ogarrio and Dahlberg had moved through Barker’s bank account. Stand and Mitchell both told Dean that they were concerned about the Dahlberg check because it might be revealed publicly that Dwayne Andreas, a prominent Democratic contributor, had actually been the source of the contribution to CRP. Stand did not explain his concern about the Mexican checks, but Dean was told the origin of the money and understood that there was a fear that the contribution was from corporate sources and consequently illegal. Mardian was present during some of these conversations. Stans also told Dean Stans had checked with Sloan about how these checks showed up in Barker’s bank records, and had learned that Sloan had Liddy cash them.

      1. The Smoking Gun Conversation Itself

In the first week following the burglars’ arrests, neither President Nixon nor his top two aides (Bob Haldeman and John Ehrlichman) had any real grasp of their predicament, but they were certainly smart enough to realize that they could not stop the FBI’s investigation into the burglary—or prevent its connection to CRP. After all, John Dean had confirmed in his meeting with Gordon Liddy on Monday, June 19th, that it was his operation that had gone sour.

But their intent was not to interfere with the Watergate investigation, it was to prevent disclosing contributor’s names. This is clear from the transcript itself:

[Quote relevant section of transcript]

        1. Dean’s Follow Through

The next thing Dean knew, Haldeman and Ehrlichman had met with CIA officials and made his recommended request, which was conveyed to the FBI.

Dean also followed through: Pat Gray’s book, In Nixon’s Web, confirms Dean’s follow-up call to Gray to be sure these two—and only these two–were not being interviewed.

At 10:30 the next morning [June 28th], John Dean called. Again it was about leaks. Again I told him the leaks had to be coming from somewhere else. He then wanted to be sure we were still holding off interviewing Ogarrio and Dahlberg. . . . Gray, p. 77

This again confirms there was no wider instruction or obstruction from this one incident.

            • Even so, when Gray complained to RN on July 7th about WH interference with his investigation, he was instructed to conduct the investigation as he saw fit

Mr. President, there’s something I want to speak to you about. Dick Walters [Deputy Director of the CIA] and I feel that people on your staff are trying to mortally wound you by using the CIA and the FBI and by confusing the questions of CIA interest in or not in people the FBI wishes to interview.

There was perceptible pause. Than Nixon said, “Pat, you just continue your aggressive and thorough investigation.” That was the end of the call. Gray, P. 90.

            • The next day, the FBI proceeded with the interviews. They had been delayed for two weeks.
            • Once the interviews had been completed, federal prosecutors concluded that no crimes had been committed by these two individuals or by the donors in question.

That Dean’s recommendation might constitute an obstruction of justice does not appear to have even occurred to him—or to anyone else at the White House. And this is fully understandable, since there was no intent to interfere with the FBI’s Watergate investigation itself. Their only goal was to prevent several major Democratic donors from being embarrassed—which was in no sense a criminal act.

        1. Earl Silbert’s Analysis

Silbert’s prosecutive memorandum to Petersen of 9/13/72, at pp. 9-10 describes the incident and specifically dismisses it as unconnected to Watergate, as well as at pp. 18-19.

        1. Buzhardt’s Reaction (following US v Nixon)

No background or understanding; appaulled and suddenly worried about his own legal exposure—“I am willing to defend the President, but I am not willing to go to jail in doing so.”

Buzhardt background and nimble withdrawl of support. Check Memoirs for timing of George Wallace flip to compare w/ decision in US v Nixon.

        1. Treatment at Cover-up trial
          1. Sirica, in his book, dumps on Haldeman for claiming the Smoking Gun conversation was only about protecting the sources of political contributions.

The most incriminating incident of all, the ordering of Walters of the CIA to call the FBI off its investigation of the money trail to the Miamians, Haldeman tried to explain as stemming from a political concern about the origins of that contribution. Sirica, p. 286.

          1. Stonewall Quote:

It is extremely rare for a defendant in any type of case to confess guilt under cross-examination. Haldeman did not less than that. Part of the conspiracy charged in the indictment was the defrauding of the United States through the misuse of the CIA and the FBI. In defending his actions, Haldeman admitted that he had sought to manipulate the CIA for “political” reasons (to avoid embarrassment to secret CRP financial contributors, he claimed) in the same breath in which he denied manipulating the CIA to cover up responsibility for the Watergate bugging. However dubious was this explanation, Haldeman could not escape the fact that he was admitting to obstruction of justice. Ben-Veniste, p. 372.

          1. Interim Observation

In point of fact, the smoking gun conversation had nothing to do with covering-up CRP involvement in the break-in itself—at least by Nixon, Haldeman or Ehrlichman. Oh, a cover-up was already well underway, but it was not known to these individuals—and this conversation did not involve them in it.

Dean’s ill-conceived White House approach to the CIA, along with the involvement of Haldeman and Ehrlichman, was already widely known before the Supreme Court’s decision—and had been fully explored by the Ervin Committee and by federal prosecutors. While embarrassing, it was not seen as all that critical.

What the release of the tape did on August 5th, however, was to put Nixon into that initiative—without further explanation or context, since anyone knowing the real background on what had transpired had already left the staff.    

Here is Stan’s take on the result of that release:

[I]t is possible to select the most ironic of all the cynical events of Watergate. The final act of Richard Nixon’s downfall came when he was forced to release the White House tape of June 23, 1972, the “smoking gun” which in his own words tied him to the cover-up, something of which he had denied knowledge all along. The specific act was his attempt to thwart the FBI investigation of the Mexican money by directing the CIA to block the path of the probers. We know now that all the FBI could have done, and did do, about the Mexican money was to trace it back to Robert Allen, who had chosen that circuitous route for his own reasons. Allen withstood a long inquiry and a grand jury investigation. Nixon had euchred himself out of the Presidency by the action of trying to prevent, and then denying, a probe of what turned out to be a wholly innocuous transaction, unrelated to the Watergate crime. Stans, P. 212

Admittedly, this was the straw that broke the camel’s back—and it did result in the President’s downfall. But it does not remotely prove that Nixon was in on, much less directing, the cover-up from the outset.

What is also so striking, in retrospect, is that virtually nothing has emerged in the intervening four decades, either on the tapes themselves or in later disclosures in the many Watergate books, to show any direct Nixon involvement in the cover-up until March of 1973—when Dean’s efforts began to come apart at the seams.

The Smoking Gun tape marks the end of the critical first week of the Watergate scandal—and the pieces were already in place that led to the President’s demise: Dean had been tasked with responsibility for monitoring the situation and keeping the White House out of the scandal, but the June 23rd tape showed that it was already deeply into it. While it took over two years for the tape to become public, it is still fascinating that the actions themselves all occurred within the first seven days.

One other early action, however, deserves mention: On July 1st, John Mitchell resigned as head of CRP. Everyone thought it had to do with his wife, Martha, who had become something of a press sensation with her late night, alcoholic calls to reporters. But it is much more likely that Nixon demanded the truth and was told that the trail, if pursued diligently, might well end up at Mitchell’s doorstep. It meant firing his best friend, but it was done swiftly and without hesitation. Indeed, if the White House had had any idea that John Dean also shared a risk of possible prosecution, he would have been forced out even more quickly.

It now seems clear that Nixon was telling the truth when he claimed that he didn’t learn much about specifics of the cover-up itself until Dean’s “cancer on the presidency” meeting of March 21, 1973, analyzed infra, when Dean finally started to come clean with the President.

    1. The Critical Week of March 19th
      1. Scene Setting

Nothing In-Between

One of the things that jumps right out from any detailed review of the Nixon tapes is that there are two critical time periods: that right after the break-in arrests of June 17, 1972 and the period of almost a year later, when the cover-up collapses—and there is virtually nothing in-between. Meetings go on among the principal cover-up defendants, the tape records whirl, but nothing of any culpability is said. Oh, they talk about developments in the Watergate case—when the burglars are indicted, when they are convicted as they approach sentencing—but there is no indication of involvement in a cover-up.

It’s like the dog in Arthur Conan Doyle’s Silver Blaze—the one who didn’t bark.

If, indeed there had been a cover-up going that was being run out of the White House by Nixon and his most senior aides, evidence of it would certainly be on these tapes—but it’s not and that’s significant.

Discussion of March, 1973 Recordings

White House recordings of four conversations during the critical week of March 19th, the week that culminated with Judge Sirica’s reading the letter from James McCord on sentencing day for the Watergate burglars, undermine any idea that a comprehensive criminal cover-up existed from the outset of the Watergate scandal—at least one that included Nixon, Haldeman and Ehrlichman.

Background

The Watergate break-in took place on June 16th 1972; the burglars were indicted on September 15th; the trial began on January 8th of the following year.

Shortly thereafter, in Judge Sirica’s courtroom, E. Howard Hunt and the four Cubans pled guilty. McCord and Liddy were the only ones to go to trial and were found guilty by the jury on January 23rd. Sirica set March 23rd as the sentencing date for all defendants.

The prosecutors, well aware that some kind of cover-up was in effect, adopted the standard approach of counting on the prospect of spending considerable time in prison to start changing minds and loosening tongues. The fact that Judge Sirica was nicknamed “Maximum John” because of the severity of his sentences could only help in this regard.

From the time the burglars were arrested, the Committee to Re-elect the President (CRP) had arranged to pay their attorneys’ fees and to provide support for their families. The lawyers were paid directly and the amount of family assistance was relatively modest. In the two months following the guilty verdicts, however, Howard Hunt’s demands increased beyond reimbursement for these items and were seen by some as blackmail.

Watergate burglar James McCord, having been convicted on all counts, was facing a substantial prison sentence. With his CIA and law enforcement background, he was worried about how he would fare on the wrong side of prison bars. So he drafted a letter to Judge Sirica. This was exactly the kind of break that the prosecutors had been counting on.

McCord wrote:

—There was political pressure applied to the defendants to plead guilty and remain silent.

—Perjury occurred during the trial in matters highly material to the very structure, orientation, and impact of the government’s case and to the motivation and intent of the defendants.

—Others involved in the Watergate operation were not identified during the trial, when they could have been by those testifying.

—The Watergate operation was not a CIA operation. Others may have misled the Cubans into believing it was a CIA operation. I know for a fact that it was not.

On Monday morning, March 19th, the letter was delivered to Judge Sirica, who chose not to make it public until the end of that week.

It is conventional wisdom that Sirica’s reading of this letter in open court on Friday, March 23rd, led directly to the collapse of the cover-up. Haldeman, Ehrlichman and Mitchell were later indicted and convicted of conspiracy to obstruct justice—with Dean as the principle government witness testifying to the existence of such a conspiracy. It is conventional wisdom that all of them were in a conspiracy that included President Nixon that began immediately after the break-in arrests.

If such a conspiracy existed, it should certainly have been evident from conversations that were taped in the critical week before its collapse. Yet in the only meetings involving all five principal parties (Nixon, Haldeman, Ehrlichman, Mitchell and Dean), neither their words nor their demeanor suggest such a conspiracy even existed.

    1. Nixon/Ehrlichman Status Recap–March 19, 1973 (Monday evening).

The evening of the same Monday that McCord’s letter was delivered to Judge Sirica (it would not be publicly released until Friday), and unaware of that ticking time bomb, Richard Nixon and John Ehrlichman had an end-of-day conversation that included a discussion of where the Watergate matter currently stood. Several things are clear from listening to it today. They were both aware of the impending sentencing coming at the end of the week, and of John Dean’s concerns, expressed earlier to Ehrlichman, that something might “blow” because of it. They speculate on whether McCord will be the one to blow, because Dean has characterized him as out of touch with the defense team and absolutely terrified of going to prison. It is clear that Nixon and Ehrlichman are more curious than concerned about this question, because they are confident that whatever McCord does, it can only impact officials at the CRP. The president also notes that he can’t be seen as supporting any “stonewalling”—that his role must be one of wanting full disclosure.

They are clearly unaware of Dean’s own vulnerability—or of the multitude of criminal acts that Dean has committed in his desperate attempt to orchestrate the cover-up. They certainly believe he has been acting as their legal representative in protecting White House interests, but they are blissfully unaware of his specific actions. They know he is concerned, but they have no idea that his concern stems from fear of being prosecuted for his own criminal conduct.

[expand on what was not in this conversation; allude to Sherlock Holmes observation in Silver Blaze:

Gregory ( Scotland Yard detective): “Is there any other point to which you would wish to draw my attention?”

Holmes: “To the curious incident of the dog in the night-time.”

Gregory: “The dog did nothing in the night-time.”

Holmes: “That was the curious incident.”

If they were actively involved in the cover-up, if they had any idea of Dean’s overtly criminal acts, the conversation would have been quite different.]

    1. Dean’s Cancer on the Presidency Meeting –March 21, 1973, (Wednesday morning):

Yet, from Dean’s point of view, his increasingly desperate attempts to keep Watergate under control behind the scenes had not been successful; and his ability to remain out of the public eye was about to come to an end. He had to do something. What he did was ask for a private meeting with President Nixon.

Just after ten o’clock on Wednesday morning, March 21 st — a fateful day in any Watergate chronology—Nixon met alone with John Dean in the Oval Office. Dean opened the meeting, which had been arranged at his request, by saying that he thinks it’s important for Nixon to learn about some things that he clearly doesn’t know. He outlines some aspects of the cover-up and tells the President that Howard Hunt’s recent demands for money can only be described as blackmail.

Here’s the opening excerpt:

DEAN: Uh, the reason I thought we ought to talk this morning is because in, in our conversations, uh, uh, I have, I have the impression that you don’t know everything I know

PRESIDENT: That’s right.

DEAN: …and it makes it very difficult for you to make judgments that, uh, that only you can make…

PRESIDENT: That’s right.

DEAN: …on some of these things and I thought that—

PRESIDENT: You’ve got, in other words, I’ve got to know why you feel that, uh, that something…

DEAN: Well, let me…

PRESIDENT: …that, that we shouldn’t unravel something.

DEAN: …let me give you my overall first.

PRESIDENT: In other words, you, your judgment as to where it stands, and where we go now—

DEAN: I think, I think that, uh, there’s no doubt about the seriousness of the problem we’re, we’ve got. We have a cancer—within, close to the Presidency, that’s growing. It’s growing daily. It’s compounding, it grows geometrically now because it compounds itself. Uh, that’ll be clear as I explain you know, some of the details, uh, of why it is, and It basically is because (1) we’re being blackmailed; (2) uh, people are going to start perjuring themself [sic] very quickly that have not had to perjure themselves to protect other people and the like. And that is just—and there is no assurance—

PRESIDENT: That It won’t bust.

DEAN: That, that won’t bust.

PRESIDENT: True.

[NB: be careful, this next section may have been taken almost verbatim from first book]

This is John Dean’s pivotal “cancer on the presidency” speech, in which he later claimed to have made a full disclosure of all wrongdoing—but it was hardly the comprehensive review he later would claim in his Ervin Committee testimony. In fact, it was a highly selective account. And, as we have seen, far from being motivated by a guilty conscience and the desire to make a clean breast of things, the meeting was triggered by Senator Edward Kennedy’s Subcommittee’s investigations and by Pat Gray’s disastrous confirmation hearings to become permanent Director of the FBI—two events that had suddenly threatened to put John Dean directly in the firing line for disclosures that would lead to criminal prosecution.

Dean’s purpose, now that he could no longer keep all the balls in the air on his own, was to bring the President at least partially into the loop. He had no intention whatever of fessing up and informing Nixon that he had been running the cover-up out of the White House counsel’s office. He only went as far as describing how the break-in came about. It was too little and too late, but for the very first time he revealed that he had been present with Mitchell when Liddy’s plan was first presented. It was almost as if he were rehearsing his story for the prosecutors he would meet with less than three weeks later.

Dean’s expressed concern was also based on an incorrect statement of facts. At the time of this meeting, he was unaware that Fred LaRue had approached John Mitchell the day before and obtained his concurrence in paying the legal expense portion of Hunt’s monetary demands. Although that payment was not actually made until the evening of March 21st, there is no further discussion of Hunt’s demands because the decision had already been made.

What he chose to tell Nixon, he soon realized, hadn’t been enough for the President to grasp the immensity and complexity Watergate had by now assumed. When Dean later described the March 21st conversation to federal prosecutors, he told them that “Nixon just didn’t get it.”

The one thing Nixon got very clearly was the concept of blackmail. He is riveted by that news and clearly toys with the idea of meeting Hunt’s latest demands, but it is also very clear that the only reason he even considers it is to buy time–to control how the story will get out. It is very clear that he does not even flirt with the idea that the story can be suppressed; he knows it will come out—and his focus is on how to get out ahead of it. Ultimately, Nixon decides that Hunt’s blackmail demands would never end and the discussion moves on, but the idea that aggressive action must be taken is what stays behind. Their conversation concludes with the understanding that Dean will get together with Haldeman and Ehrlichman to decide, along with John Mitchell, what they are going to do. The principal question for all of them is how to influence the manner in which these unpleasant disclosures will now have to be made.

      1. WSPF discovered that LaRue didn’t actually deliver the money to Hunt, the reduced amount that only covered his legal expenses which had been authorized by Mitchell on 3/20 until the evening of 3/21. They then incorrect assumed that this had been authorized not by Mitchell, but by Nixon—after this meeting—but somehow not on tape. While they had no cooberation whatsoever—especially from Dean (who had already testified before the Ervin Committee, they used this incident as the basis for naming Nixon as an unindicted co-conspirator in the cover-up indictments finally handed down on March 1, 1974.
        1. This version of events is confirmed in Ben-Veniste’s book and, to a lesser extent, in Jaworski’s statement that he told Haig that Nixon should retain the best criminal defense lawyer possible.
      2. Cox had declined to name Nixon as such, saying that it was unethical to do so, since he would stand indicted but never brought to trial, so he couldn’t clear himself.
      3. NB: So naming Nixon is really the unannounced basis for the Court’s decision in US v Nixon, it allows many of the tapes in as an exception to the hearsay rule, and was the basis for really destroying the President.
      4. Need:
        1. Access to WSPF and grand jury records to see how this was accomplished
        2. Unsealing of Supreme Court record to show both WSPF transcripts of the Dean tapes and any other evidence that the Court used that was sealed from public review.    
    1. Nixon’s Decision: Call for a New Grand Jury– March 21, 1973 (Wednesday afternoon) 

Several hours later, at five o’clock on the afternoon of the 21st, the President met with Dean, Haldeman, and Ehrlichman in his EOB office. The three advisors have hashed the situation out and are now making recommendations about what to do. They must have learned from Mitchell or LaRue that Hunt’s monetary demands have been partially met (in a phone call to Mitchell, LaRue got the go-ahead to pay that portion of Hunt’s demand that constituted his legal bills) because the idea of meeting Hunt’s blackmail demands is never mentioned again.

The issue now is how the White House can trigger a renewed investigation of CRP wrongdoing. Thus, well before they are aware of McCord’s letter, Nixon has reached the decision to lance the boil and call for another grand jury to initiative further investigation of Watergate. This is not argued, it is not something that his staff had to impose on the President. It is a presidential decision and presented as such. The focus of the discussion is how to bring this about.

Please note that what the President wanted – witnesses to go before the grand jury and perhaps to court as a part of the criminal justice process – as opposed to facing a legislative trial before the Senate’s Ervin Committee – was the constitutional way things should have been done. It is not what happened, of course, but that cannot be blamed on our 37th President.

Their real question is how to handle John Mitchell, whom they have asked to come down from New York the next day. They clearly believe that calling for a new Watergate grand jury—along with the President’s waiving of any claim of executive privilege—will amount to forcing his best friend, the former Attorney General, to walk the plank.

The meeting ends with the idea that Dean will prepare a report on everything he has found to have been going on at the CRP. The President can then cite this report as the reason for requesting a renewed investigation—even calling for a new Watergate grand jury. It is quite apparent that the President, as well as Haldeman and Ehrlichman, have no qualms about their own involvement—and persist in their belief that any fallout from fuller disclosure will only affect people at CRP.

    1. Nixon Informs Mitchell of His Decision –March 22, 1973 (Thursday afternoon)

John Mitchell flew down on the shuttle the next day. At two o’clock that afternoon, he met with the President, Dean, Haldeman, and Ehrlichman, again in the President’s EOB office. It is essentially a repeat of the discussion the day before, but now with Mitchell present. Listening to the tape today seems almost surreal. Here they are discussing Nixon’s call for a new grand jury, not remotely aware that McCord’s letter already has been delivered to Sirica and will be made public the very next day.

Dean says very little at this meeting, other than to confirm that he can and will write the report about what his investigations have uncovered, that the President can use as the basis for his call for another grand jury—to which his staff will be called, without the ability to claim executive privilege.

Strangely, at one point Dean urges the President to grant immunity to everyone concerned. He even offers to go with Attorney General Kleindienst to Congress to explain why such presidential grants of immunity have been deemed necessary. The reaction to Dean’s suggestion was immediately and unanimously negative. Granting immunity to White House staff would send exactly the wrong signal; if no one in the White House had been involved, why should people in the White House be granted immunity?

Because none of the other participants understand Dean’s personal stake in gaining immunity, the notion seems to come out of left field and is dismissed out of hand. History might have been very different if they had had enough information to appreciate this odd and ostensibly unnecessary proposal.

Dean’s report was now central to any further action, and the President suggests that he retire to the calm and seclusion of Camp David as a way to hasten its completion.

    1. Nixon’s Departing Advice: The Save the Plan Quote (March 22, 1973)

But it is a comment made by Nixon in a private confidence to Mitchell that comes at the end of this meeting that garnered all the headlines when its transcript was released. We will treat it as a separate conversation.

Indeed. one of the proofs cited by those who would have you believe that Nixon was in on the cover-up from the very start is a segment of the John Dean meeting of March 22, 1973, but occurs after Dean left the President’s EOB office.

Since Dean had left, this segment was not included in the transcripts released by the White House on April 30, 1974. It is, however, included in the transcripts released by the House Judiciary Committee on June 25, 1974. Let’s reproduce their version here:

I don’t give a shit what happens.

I want you all to stonewall it,

let them plead the 5th Amendment,

cover-up or anything else,

if it’ll save it—save the plan. 

That’s the whole point.

Well, there you have it! President Nixon—with his own words—has indicated a full knowledge of a plan that needs to be protected at all costs. This is perhaps the most famous segment of the tapes—proof of Nixon’s guilt for all to see. It is featured on the frontispiece of Ben-Veniste’s book and has been on the cover of Newsweek Magazine. It was also introduced into evidence at the CRP cover-up Trial. What could possibly be clearer proof of Presidential knowledge of and involvement in the cover-up plan?

Unfortunately–for Nixon, his aides and the Nation–this is a demonstrably inaccurate transcription of what the President said. The transcript contains at least two critical errors that may or may not have been intentionally included by the House Judiciary Committee.

To understand what is being said, you have to look at the whole thrust of the conversation, what comes before that famous admonition, as well as what follows: Coming before, and according to the Judiciary’s own version:

Now let me make this clear. I, I, I thought it was, uh, very, uh, very cruel thing as it turned out—although at the time I had to tell [unintelligible]—what happened to Adams. I don’t want it to happen with Watergate—the Watergate matter. I think he made a, made a mistake, but he shouldn’t have been sacked, he shouldn’t have been—And, uh, for that reason, I am perfectly willing to—

The critical quote, then, falls in the middle of another thought, so let’s put the whole thing in context:

–Note the President is talking to his best friend, John Mitchell, whom he already has had to remove from head of CRP and whom he believes to be irretrievably guilty of approving the Watergate break-in. He is attempting to apologize, in a painful and private conversation, for his decision to throw him under the bus.

–Second, note the reference to Sherman Adams, Eisenhower’s chief of staff, who stood accused of accepting gifts coat from someone who had pending business before two regulatory agencies. Nixon, Vice President at the time, knew a little more about that than did most of the public, including:

–While there was no indication of actual wrongdoing (Adams admitted he accepted the gift, but stoutly denied taking any action in response), he was never given the opportunity to defend himself before being unceremoniously sacked in September of 1958.

–From the moment Eisenhower decided the growing controversy had become a distraction, he refused to see his own chief of staff. On that final day, when they went out the door of the White House, before the press, for Eisenhower to say good-bye, they entered the lobby from separate rooms and only fell into step to exit the door together—without a word being spoken between them.

“Good for Ike!” you might say—and I’d agree with you. But Nixon, who was really there as Vice President, is telling Mitchell that he didn’t think Adams got a fair shake at all, in that he was never given the chance to defend himself. Nixon, then, is saying to John: “I know I may be sending you to your doom when I call for another grand jury, but I cannot and will not use my office to protect those that have engaged in wrong doing.”

Now, read the rest of the conversation again, especially the second paragraph—because Nixon goes on to say, that while White House and CRP staff will have to appear before the grand jury (Mitchell, included, of course), Nixon doesn’t particularly care what they decide to say in their own defense, since each is going to have to do what is best for themselves:

I don’t give a shit what happens. Go down and sto-, stonewall it; Tell ’em, ‘plead the 5th Amendment, cover-up’ or anything else, if it’ll save ‘em—save it for ’em. That’s the whole point.

On the other hand, I would prefer, as I said to you, that you do it the other way [have everyone tell the truth]. And I would particularly prefer to do it that other way if it’s going to come out that way anyway.

And that my view, with the number of jackass people that they’ve got that they can call, they’re going to. The story they get out through leaks, charges, and so forth, and innuendos, will be a hell of a lot worse than the story they’re going to get out by just letting it out there.

“But, wait! What have you done? You’ve changed several critical parts. First, you changed his direct order “I want you to’ to a much more ambiguous “Go down and”. Most importantly, if you use the words ”save it for ’em [them]” instead of “save the plan”, you change the whole meaning of the quote: He’s not telling Mitchell to lie; he’s telling him that it would be better for everyone if his people tell the truth. You have the President saying exactly the opposite of what we have been told that he said. By what authority do you change the transcript?”

Well, my friends, I transcribed this part, too—even though the White House decided not to publish it, since Dean had left the room (and the subpoena was only for the Nixon/Dean conversation). Now, I grant you the tape is not crystal clear—in fact, it may be among the most difficult of the tapes to understand or transcribe. But, in my opinion—and from my very own notes at the time, as well as using the more sophisticated electronic filters now available, my transcription is the more accurate. It also makes the most sense in the overall context.

I submit that what at that time was released to the world by the House Judiciary on June 25, 1974 as proof positive of Presidential knowledge of a cover-up plan turns out to say precisely the opposite of what was supposed. Whoever prepared this transcript on the Inquiry Staff of House Judiciary went much further than an objective transcript. In lots of cases where the tapes were unclear and they couldn’t make out the words with any precision, they simply invented them—and wrote down what they wanted to have heard rather than only what they really could hear.

In the midst of the Watergate fray—what with the House saying we had not produced accurate transcripts—and that they had—the House Judiciary transcript was of immense importance—and the public was left with the clear, but completely erroneous, impression that Nixon knew and participated in a cover-up plan, just as Dean was alleging.

Interestingly, this quote is used for the frontispiece for Ben-Veniste’s Stonewall book, as justifying his title and sort of crystallizing all of Watergate. Perhaps worse, this flawed transcription was introduced into evidence by the special prosecutor in the CRP cover-up trial, in lieu of the transcript prepared by the FBI for that use.    

[NB: Sirica quotes Neal’s cross examination of Mitchell on this very point at p. 284 of his book]

[NB: Ben-Veniste also quotes Neal’s cross-examination of Mitchell on this point, in a most telling way: p. 369,

[FN: Even to this day, this one quote remains the single most notorious part of the tapes. It was again cited by Ben-Veniste (now described as “chief of the Watergate Task Force”) in a column appearing in the Houston Chronicle on June 13, 1997, the 25th anniversary of the Watergate burglary, whose primary thrust was to defend Clinton and dispute any comparison of his situation to Nixon’s, saying

“Nixon’s explicit tape-recorded order to “stonewall” has helped create an environment in which there is always a suspicion that the president is not being forthcoming—no matter how onerous, invasive or novel the demand for information. This dragnet approach, now routinely applied, was never attempted in Watergate, nor would it have been countenanced by the courts.”

Given Ben-Veniste’s role in both scandals—prosecuting one and defending the other, I find his comments delightfully ironic: As everyone else in the world now knows, Clinton, indeed, was not forthcoming with the American people–and the courts did, indeed, condone incredible demands for information by the Watergate special prosecutor.]

Part Four: Conclusions

    1. Aftermath from This Critical Week

Why didn’t this come to pass? Why didn’t the matter end then and there with everyone going before a reconvened grand jury? Let’s go back to our story:

Dean took the President’s suggestion and—accompanied by his wife Maureen– went to Camp David to draft his promised report. Nixon’s idea in offering the bucolic retreat was to get Dean’s report completed as quickly as possible. That report, after all, was to be the basis- -the action-forcing event—for Nixon’s call for reinvestigation and for another grand jury.

But something intervened: The very same day that Dean left for Camp David, Friday, March 23 rd , Judge Sirica was scheduled to sentence the Watergate break-in defendants. Only the Judge knew about the bombshell he was about to drop. Earlier that week he had received a letter from James McCord, quoted earlier.

After flamboyantly unsealing the official envelope into which he had placed McCord’s letter after previously reading it, Judge Sirica proceeded to read it aloud in open court. His dramatic flair was not without effect. There was pandemonium as reporters ran to find the nearest phones.

With order restored, the Judge announced that he would take McCord’s letter under advisement and postpone his sentencing for another week. He then proceeded to throw the book at the other defendants: everyone would serve the maximum prison time allowed by law. He sentenced Hunt to up to 35 years and Liddy to a term of 6 to 20 years; the hapless Cubans received only somewhat lesser sentences.

As he had hoped it would, Sirica’s disclosure of McCord’s letter seemed to blow the lid off the Watergate cover-up, reinvigorating the prosecutor’s investigation, and soon leading to almost daily disclosures in the Washington Post, as potential targets started scrambling to make their own deals with the prosecutors and to spin the story to their benefit.

Yet, even after the release of the McCord letter, the White House still didn’t know any specific details of the cover-up or anything at all of Dean’s own criminal involvement. They were still waiting for the report he had promised to write, which they expected to use as the basis for Nixon’s own cleansing initiatives.

McCord was immediately hauled back in front of the grand jury (which was still sitting), but without great effect: McCord had no specifics or evidence to present, it was all suspicion and supposition. The jurors did not find him credible.

Outside the jury room and behind the scenes, however, the effect was quite different. When the McCord letter suddenly burst on the public, those most intimately involved in the illegal acts (especially Dean and Magruder) realized their vulnerability to prosecution far sooner than those not nearly as familiar with what had really been going on (Nixon, Haldeman, Ehrlichman and Mitchell). Magruder panicked first and set off a chain reaction—but the White House itself remained in the dark.

After a few days it began to dawn on them that no “Dean Report” was going to be forthcoming. Haldeman recalled him Washington on Tuesday; and on Thursday Dean was relieved of responsibility for overseeing the White House response to the Watergate situation and replaced by John Ehrlichman. In between, Dean had his first secret meeting with criminal defense counsel.

Now, after all the months of scrambling and dissembling—and just plain hoping that somehow things would work out—John Dean saw his cover-up crashing down around him. Nothing if not a survivor, he now fixed his eye firmly on one single overriding goal: To avoid prosecution for his criminal misdeeds by obtaining personal immunity.

As we have seen he had already raised the possibility of immunity—for everyone—on March 22nd, before agreeing—or pretending to agree—to go to Camp David to write his long-awaited and much-promised Report. Not realizing that Dean’s reason for raising the notion of immunity, it was quickly passed over as irrelevant and inappropriate. Dean also raised it in several subsequent phone calls to Haldeman—who, still steeped in Dean’s earlier assurances that no one on the White House staff had been involved in the planning for the break-in and unaware of what had really been going on during Dean’s cover-up, continued to be puzzled as to why the President’s own counsel was so concerned about his personal exposure.

We don’t know precisely when, or the process by which, Dean decided to switch sides. But his options were clearly narrowing. He realized that his own potential criminality would soon be discovered; and Magruder had told him that he had already decided to retain a lawyer—even asking Dean for a recommendation. On March 28 th , the same day that he was recalled— report less—from Camp David, John Dean formally retained criminal defense counsel and was soon negotiating with federal prosecutors and the Ervin Committee for immunity in exchange for his testimony against his former colleagues. [FN: On April 17th, the President did announce that members of the White House staff would be available to testify before the grand jury—and without any claim of executive privilege—but the announcement came too late to be of any real significance.]

    1. Observations About that Critical Week:

Several overall observations are in order at this point:

First, there is nothing illegal per se about a policy of political containment—of limiting the damage from an adverse event, as Haldeman described it—or even of paying defense costs or family support for defendants. Indeed, one is hard pressed to recall any political scandal—including those of President Carter’s Bert Lance and President Clinton’s Webb Hubbell—where efforts were not undertaken to help with finances. The question is if and when such actions cross the line into criminal acts and paying for support becomes paying for silence.

Second, there’s no question that Nixon, Haldeman and Ehrlichman—and everyone else on the White House staff for that matter—did not want to know the details of what their counsel, John Dean, was doing to contain the Watergate problem. They clearly knew that money for legal fees and family expenses was being given to the original Watergate defendants. But it is reasonable to assume that they thought Dean—who was acting in a legal capacity and would be conscious of the kind of conduct expected from the White House Counsel—wouldn’t do anything that was actually illegal or even publicly indefensible. Lawyers frequently cut corners; sometimes they look the other way; but they know when a cut corner or an overlooked action crosses the line from omission to commission. Every day, all across America, lawyers defend criminals without themselves becoming guilty of any crime, and this is what his White House colleagues would have expected Dean’s role to be in sorting out CRP’s responsibility for Watergate.

Third, at the same time, it is quite possible that John Dean felt that he was doing precisely what his White House superiors wanted him to do—including the commission of illegal acts in furtherance of the goal of containing the Watergate problem. He certainly was confident that he was doing the right thing to save John Mitchell, his mentor and father figure, and the others at the CRP with whom he shared the risk of prosecution for the original Liddy intelligence plan. It also seems reasonable to assume that he deliberately chose not to inform his White House superiors of any specifics so that they would not become tainted with guilty knowledge. This is precisely the approach he had articulated in Mitchell’s office during Liddy’s second plan presentation: “This needs to be done, but without the specific involvement of higher ups”. The approach provides something termed “plausible deniability”. It is likely, then, that Dean orchestrated the cover-up under the same premise and felt he knew what “they” wanted and that he was carrying out “their” plan, without ever having discussed any specifics with “them”.

This lack of a “meeting of the minds” among the alleged co-conspirators explains some subsequent reactions by all the parties. Haldeman, Ehrlichman and Nixon, for example, were clearly appalled to learn of Dean’s conflict of interest and of what Dean had been doing with his White House authority. And Dean was equally appalled —with a fury not unlike like that of a jilted lover—to learn that they now claimed he had been doing everything of his own volition.

Fourth—and perhaps worse from the White House perspective—is that after Dean’s departure in late April, no one remaining on the staff, or arriving later, had any idea of the full extent of the cover-up or of Dean’s leadership and participation in it. As selective as the information he gave them was, it was, essentially, the only information they were getting. It wasn’t until some three months later, in late June, that the President and his new team of senior advisers (Al Haig, Fred Buzhardt, Mel Laird, Bryce Harlow, Dean Burch, and others), along with the rest of the nation, began to learn from the newspapers, the TV, and the Ervin hearings, specific details of John Dean’s handiwork.

Finally, and most importantly of all, it is clear that these four conversations –occurring at the very height of the alleged cover-up— completely undermine the conventional wisdom that President Nixon and his top lieutenants were in on the cover-up from the outset: Nixon didn’t know the specifics of what had been going on—and when informed of Hunt’s blackmail demands, Nixon immediately determined that he needed to get out front of the coming disclosures and to call for a renewed investigation and a new grand jury—and so instructed his staff.

    1. Parting views on the tapes:
      • WSPF launched criminal investigation following 1/1/75 cover-up convictions. Cite their Report.

Judge Carl McGowan’s oral history on Adeli Stevenson: He had this curious capacity of being indecisive about a lot of things of small moment, and he also had a very bad habit of talking out loud too much in the presence of other people, sort of trying out ideas on them, you know, but these gave rise to the feeling that this fellow doesn’t know what he wants to do. It was a very bad habit, he did it too much in the presence of a lot of people. With us, I mean, I used to laugh at him when he’d get into one of these indecisive phases, and walk out, knowing it didn’t amount to anything. But newsmen, people like that, they’d go back and write the story, “Why, this man can’t make up his mind whether to tie his shoes.”

  1. Lessons Learned—TBA
    1. Hire carefully, trust no one;
    2. Pat Moynihan’s point about politics attracting strange people: You cannot prevent it, what matters is how you react and what you do when you discover something is amiss.
    3. There’s always a cover-up, at least by those involved in the wrong-doing. The challenge for superiors is to get to the truth sooner rather than later.
    4. Early news and easy dismissals are not always the most accurate
    5. Nixon knew all these things, but was still consumed. He was an experienced and knowledgeable man who had spent his life swimming in the shark infested waters of national politics.
    6. We were badly out-lawyered, but it also could be argued that Nixon was betrayed by the terrible judgment and advice of four of his top lawyers: John Dean, Len Garment, Elliott Richardson and Fred Buzhardt.   
  2. What if Watergate had not happened?
    1. He would be seen as the towering figure of the 20 th century
      1. RN as statesman
        1. Vietnam would not have fallen
      2. RN domestic initiatives
      3. Political realignment before Reagan, RN political initiatives
    2. Was Odle’s column ever published?