The Nixon Defense: What He Knew and When He Knew It (35 page)

As they probed this topic, the president finally said he was worried about Colson, who out of the White House could not be protected by executive privilege. But Ehrlichman was not concerned. “Colson will handle himself beautifully. He’s righteously indignant. He’s been on the Elizabeth Drew show. He’s taken the
Today Show
questions, and he says, hell, I haven’t anything to hide, and I’m fine, I’m clean and all the rest of it.

“Right, right, right,” Nixon said, and added, “Except he’ll perjure himself.” But Ehrlichman was not sure it was perjury, and the president harkened back to the Hiss case, and then noted, “Whether it’s against Mitchell or Colson, it’s a hell of a hard rap to prove. Don’t you agree? As a trial lawyer?”
When Ehrlichman described their situation as “very circumstantial,” Nixon added, “I don’t believe you can convict a person on circumstantial evidence of perjury. I don’t believe it can be done.” Ehrlichman posed a hypothetical: “Let’s suppose we said, as a matter of long-standing policy back seven generations, the president’s immediate staff does not testify, regardless of what the matter is. And so in effect we take the Fifth Amendment, and we sit here, and we just sit it out. Is that worse?”

“Yeah, it’s a cover-up. It’s a cover-up, and I think that’s worse than what’ll come out, in my opinion,” the president said. “Well, I think so, too,” Ehrlichman agreed. “I’d like to do that from a personal standpoint,” Nixon said, “but believe me, I’ve been through this. The cover-up is worse than whatever comes out. It really is. Unless somebody is going to go to jail. I’m not going to let anybody go to jail. That, I promise you. That is the worst.” The conversation that followed did not resolve what kind of executive privilege statement might be appropriate nor was there additional discussion about who might go to jail because of Watergate. As Ehrlichman left the Oval Office, Attorney General Dick Kleindienst was ushered in.

At the outset of their conversation the president offered his attorney general advice about big-time law firms, which he knew well.
²³
He had spoken the day before with John Connally, who wanted to hire Kleindienst. “First, you should not go with Mitchell. You must not do that,” Nixon stated adamantly, without explaining why. Kleindienst had, in fact, already reached that same conclusion. “Second, you should not go with former [Florida Democratic senator George] Smathers, because [of the type of practice, although] you’d make twice as much money at Smathers, but you had to deal with a lot of Jews and other people that Smathers said [are] bad people. Third, Connally’s a decent man and, and, I’ve had business with his firm. Since he would make you one of the managers of the firm, it’s a big firm, you’d have your voice in things. And since he would not be pushing you to get in business, it means you wouldn’t have to sell your soul, very few get that as well. You’d be tremendously valuable to them. He likes you, that’s the key for the guys who are running that firm. You’d make a hell of a lot of money. And you’d live in Washington and, if you want to go the law way, that’s infinitely better than New York firms. New York firms are selfish, horrible bastards. Texans would be selfish, too, but there is decency about them, and Connally would be good. Connally also is going to be in on a lot of good international stuff, and you could have a lot of fun with, if you want to do it, you know,
you’d enjoy moving around the world and so forth. You’d be a very good asset to him, which I told him, and I think you could, you have something to bring to him that you can’t bring to Mitchell.”

Adjusting his position in his chair, the president continued. “The other possibility you have in law is to go in for yourself. The difficulty with that is that then everybody’s going to be coming to you, frankly, for influence peddling. See, the Connally firm is big, established. They’ve got clients already, and they wouldn’t say, well, they came because of [your arrival]. The main thing I found when I went into a firm in New York, they were very nice about it, but I felt an obligation to get out and try to hustle some business for them, and of course, people did come to us. God, in the long range, it was embarrassing. You should never be out feeling that you’ve got a rod in your back to get out and, you know, to hustle business. You’ll do it anyway, but you must always be in a position, Dick, to be able to turn down something that doesn’t smell good. There it is. How does it sound? Now, you just think about it.” Kleindienst, somewhat overwhelmed by the president’s thoughtful analysis and candid counseling, replied only, “My goodness.”

Nixon raised a few more points, based on his chat with Connally, while Kleindienst reminded him that federal law prohibited him, while in office, from negotiating for a job outside government. So he was not having any conversations with the Connally folks. They discussed the practice of law for a while, until the president turned to the reason he wanted to visit.

“Now, the other thing I wanted to get into, obviously, is Watergate, and I want to talk to you candidly about it, and this affects your plans. You were talking about staying on through July or August or something like that,” the president began. “I’ll stay on as long as you want,” Kleindienst volunteered. “I’d like to ask you to stay, and I want you to tell Connally this, until [the Watergate committee issues its] reports.” The president estimated that would be through the year. “You’ll lose a hundred thousand dollars, let’s face it, but if you could stay through the year, I would appreciate it.” “I want to stay there as long as you want me, Mr. President,” Kleindienst repeated.

Nixon now wanted to be sure the attorney general was onboard to assist with the Senate’s Watergate investigation hearings. The president reported that he had met with Baker but wanted Kleindienst to deal with me at the White House. “Very bright young fellow,” my former boss at the Justice Department added, and the president continued, “I would like for you to use him exclusively on Watergate. Now, I don’t want you to talk to anybody else,
okay? I don’t want you to talk to Ehrlichman. I don’t want you to talk to Haldeman. I don’t want you talking to Colson, or anybody else, just Dean. Fair enough?” Kleindienst said it was, but he thought that only he should deal with Baker.

Nixon agreed, but mentioned that Baker had it all wrong on Maury Stans, so Kleindienst should correct that misinformation. “Now that brings us, however, to the fellow that I really think is the greatest problem, and that is Mitchell. Now, on Mitchell, he has laid the line, you know. I’ve forgotten, so let me tell you what I understand.” After a brief recounting of his experience with perjury on the Hiss case, Nixon said, “Now, John [Mitchell], I don’t know this, but I can’t help but believe, [so I] assume that John must have known about these activities.” Kleindienst agreed.
²⁴

The president continued, “The point is that John has denied it categorically, and so what I’m concerned about is the perjury.” Then the president said, “But now, with that in mind,” he raised the situation with Baker, who he told to cross-examine Mitchell and to bring out the facts about his “horrible domestic problem. I said, Martha, you know, is very sick. And John wasn’t paying any attention, and these kids ran away with it. Now that’s the line I’ve taken, and that’s the one I want you to take. John Mitchell is a pure, bright guy who would have never done such a thing, but the kids ran away with it. And if John did lie, it was simply because he’d forgotten. Now, whether that will wash or not, I don’t know, but I just want you to know that [is what] I consider the Mitchell problem.” Nixon thought Mitchell would survive. “But I can’t have John run the possibility of a charge of perjury.”

Kleindienst agreed, and the president proceeded. “Alright. Now, let’s come to the White House staff. I think you should know about it. Dean is conducting an investigation. I figure, Gray is conducting an investigation and so forth. And I’m thinking of putting Gray’s name up [for nomination].” The president paused to tell Kleindienst, “When they ask about Watergate, Gray can say that he conducted a hell of an investigation,” and then he continued, “Ehrlichman didn’t know a God damned thing, that’s for sure.” Colson worked with Hunt on the ITT matter, which created an inference, but “Colson totally denies it. Now, the other is Haldeman. The problem with Haldeman’s case, frankly, is Magruder. Magruder did work for Haldeman.” Kleindienst now interrupted, revealing more knowledge of the matter than might be expected, given that he had let Henry Petersen run the investigation: “Magruder’s got the same problem Mitchell has. It’s possible that he
and Mitchell both might have known.” Nixon pulled back slightly, “Well, that’s what people assume. Now, with Magruder you’ve got the problem that if you go to him, he’s not a very strong personality, and Magruder—” The president stopped midsentence and simply said, “I don’t know.” Again, Kleindienst clearly read the situation, noting, “I think he probably knows.” Nixon completed the speculation, noting, “Magruder will probably turn on Mitchell rather than Haldeman, that’s my guess. He’s Haldeman’s man.”

“I don’t think he’ll turn on anybody,” Kleindienst offered. “You don’t?” Nixon asked, surprised. “No, I think he’s [that sensitive].” When the president expressed doubt, Kleindienst affirmed, “I really do.”

This rather frank exchange was followed by Nixon’s raising his favorite potential defense, the allegation that his campaign plane had been bugged in 1968. Kleindienst candidly told the president that he did not think it would make any difference whatsoever in the Senate’s Watergate investigation. This was true but was not what Nixon wanted to hear. The president then explained Baker’s suggested strategy of calling the major players early and asked whether the Watergate committee should be given raw FBI files, and Kleindienst said, summaries only. The remainder of the conversation was largely a bull session, but the president had accomplished what he set out to do. Kleindienst would remain in place and be the liaison to the Senate Watergate committee, and he was sensitized to Mitchell’s and Magruder’s situations, not to mention the problems of the Watergate investigation’s embarrassing the president.

A
s February was coming to an end, with Magruder still content and under control at a high-level appointment in the Department of Commerce, none of the Watergate investigators were content or under control. Nonetheless, Nixon was ready to risk Gray’s nomination, based on the logic that Gray would be forced to testify about the FBI’s Watergate investigation whether or not he was sent up for confirmation. To lighten the load on Ehrlichman and Haldeman, who were still very busy with the organization and staffing of the second administration, the president decided to deal with me directly, so I could deal with others for him.

Eight months after the arrests at the DNC’s offices I had become what I later described as the “desk officer” of the cover-up, in which role I monitored ongoing activities and passed information from Haldeman and Ehrlichman to Mitchell, and vice versa, occasionially adding my thoughts. I spoke regularly to the Justice Department and the lawyers representing the reelection committee, who in turn collected information from the lawyers representing the Watergate defendants. Contrary to the president’s statement to Kleindienst, and at his August 29, 1972, press conference, I had never investigated anything relating to the Watergate break-in other than the Segretti matter, which I first reported on verbally to Haldeman and Ehrlichman and later in a written summary and which Haldeman had reported to Nixon. On February 27, quite unexpectedly, my secretary, Jane Thomas, told me that the president wanted to see me immediately in the Oval Office. It was the first of what would become almost daily meetings that would continue from the end of February through two thirds of March, as the Watergate cover-up largely unraveled.

From having almost no contact whatsoever, I was now seeing or hearing
from the president several times a day, about Watergate. The historical record shows that I had a total of thirty-seven Watergate-related talks with Nixon, of which thirty-one were recorded, starting with the first, on September 15, 1972 (when the Watergate indictments had been handed down) and the remainder beginning on February 27, 1973; the last occurred on April 16, 1973.
¹
When I wrote
Blind Ambition
in 1975 I had access to transcripts of ten of those discussions.
²
My description of those meetings in my earlier book remains valid: “Three themes dominated my conversation with the President until mid-March: his desire to launch a counter-scandal against the Democrats, his reminiscence of the Hiss case, and his determination to find a strategy to handle the upcoming Ervin hearings.”
³
To this depiction I would add that these early conversations were about process rather than the substance; considerations of who had done what and why arose only later. In this book I have not repeated my earlier characterizations from
Blind Ambition
of those conversations, but only added insights after hearing them in context or upon learning new information.

When later appearing before the Senate, I testified I thought I had been taped during an April 15 conversation, and suspected that may also have been the case during other discussions, but that I did not really know for certain. I tried to remember the gist of all the talks, and any specific details I could recall. But I certainly appreciated how imperfect our memories are in reconstructing actual conversations.
⁴
When the tapes later became available I discovered I had been unable to separate events from one day to the next, and I conflated events or put one event I thought had occurred on one date on another day. Our memories are not date-stamped, a fact I tried to make clear when testifying. While I felt I did (and blessedly still do) have a good memory, I made clear to the Senate that it was not perfect.
⁵

During my Oval Office conversation on the afternoon of February 27 the president instructed me to step forward and start dealing with Kleindienst regarding the Senate’s Watergate hearings.
⁶
I mentioned my doubts about Baker’s selection of Fred Thompson as his minority counsel: “Well. I can’t knock age, he’s thirty years of age (only two year younger than me), but he doesn’t know a thing about Washington.” When the president wanted to
know how much detail I had given Kleindienst, I explained, “I’ve braced Kleindienst in the past about, you know, the potential implications of what this whole investigation the Bureau conducted, what the U.S. Attorney’s Office was doing. Things I thought could haunt us if it gets out of hand. I didn’t want to get into a lot of specifics. At our last meeting, I just sat with him and said, ‘Dick, I don’t think I ought to brief you on everything I know. I don’t think that’s the way to proceed. But if I see you going down the wrong track, I’m going to have to tell you why.’’’ Nixon approved, and wanted to know Kleindienst’s reaction. “He said, ‘I agree, that’s the way it should stand.’”

We discussed the president’s executive privilege statement, my thoughts on its timing, and whether he should issue it separately versus making a statement during a press conference. We talked about the recent
Time
magazine leak of national security wiretaps and my conversations with Bill Sullivan, who had given me information about how Lyndon Johnson had used the FBI. At one point the president asked me about Mark Felt’s leaking: “Do you believe the
Time
magazine lawyer? Is Felt up to it, is he capable of this sort of thing?” Rather than sharing my misgivings about Felt, I explained I had received this information about Felt from Henry Petersen. I also reported that Kleindienst thought, if the leaker was Felt and they pushed him out, it would only create more problems, given his knowledge.

“You take the responsibility for Kleindienst, I’m going to keep Ehrlichman and Haldeman out of any relationship with Kleindienst. You should have it only, but you’ve got to watch him and brace him,” Nixon instructed. The conversation turned to Pat Gray’s confirmation hearings, and I gave him my thoughts about Gray. The president already sensed that he had made a mistake in nominating him, telling me, “Pat Gray is a little naive.” When Haldeman arrived, this twenty-five-minute meeting came to an end, and Nixon requested that I keep him posted on executive privilege and Kleindienst. That evening he dictated for his diary, “The talk with John Dean was very worthwhile. He is an enormously capable man. Dean went through quite an amazing recitation as to how Johnson had used the FBI. Apparently he had the FBI to bugging or at least intelligence work on even the New Jersey Democratic convention [in 1964].”
⁷

The next morning, February 28, I was summoned back to the Oval Office for a conversation that ran over an hour.
⁸
It had not proceeded very far before I realized it was not unlike our September 15 discussion, and was more of a rambling bull session than anything else. Soon I found myself sharing
stories about Lyndon Johnson’s White House, and we further speculated on Mark Felt’s leaking, with the president considering his removal. He did not think Felt could leave and reveal what he knew: “He couldn’t do it unless he had a guarantee from somebody like
Time
magazine saying, ‘Look we’ll give you a job for life.’ Then what do they do? They put him in a job for life, and everybody would treat him like a pariah. He’s in a very dangerous situation. These guys, you know, the informers. Look what it did to Chambers,” he said regarding his key witness in the Hiss case. “Chambers informed because he didn’t give a God damn. But then, one of the most brilliant writers according to Jim [
unclear
] we’ve ever seen in this country, probably the best writer in this century. They finished him. Either way, the informer is not wanted in our society. Either way, that’s the one thing people do sort of line up against. They say, well that son of a bitch informed, I don’t want him around. We wouldn’t want him around, would we?” Never conceiving that one day I would find myself in that very role, I agreed, “That’s right.”

“What is the situation, incidentally, with regard to the sentencing of our people, the seven? When the hell is that going to occur?” When I answered most likely in a week or so, he asked, “Why has it been delayed so long?” I responded that I understood the judge was awaiting a presentence report, based on background reviews by probation officers. More pointedly, the president wanted to know if Judge Sirica was “trying to work on them to break them.” which he believed was the case. “Well, there’s some of that,” I replied, and told the president we had learned (from Hunt’s lawyer, who had informed the CRP attorneys) that Judge Sirica was using the court’s probation office for more than a normal probation report, since they were undertaking a mini-Watergate investigation for Sirica.

“You know, when they talk about a thirty-five year sentence,” the president began, with a tone of outrage in his voice, thinking about how Sirica was treating the Watergate defendants, “here’s something that does not involve weapons, right? There were no injuries, right? There was no success—” then corrected himself “—well, success maybe, I don’t know.” He paused, and then continued, saying what was being done to the Watergate defendants was ridiculous when compared to “these blacks, you know, who goes in and holds up a store with a God damned gun, and, they give him two years and then probation after six months.” I added, “And they let him out on bond during the time that he is considering his case. These fellows cannot get out—”

“Aren’t they out? Have they been in jail?” All but one was in jail, I explained. “Hunt made the bond. Everybody else is in jail. They’ve got a hundred-thousand-dollar surety bond, which means they have to put up actual collateral, but none of these people have a hundred thousand dollars. The Court of Appeals has been sitting for two weeks, or better now, on a review of the bond issue. They’re not even letting these people out to prepare their case for appeal.”

My mention of the U.S. Court of Appeals for the District of Columbia Circuit touched a nerve with Nixon, and he spoke of how he wanted to turn that court from its far-left leanings. This discussion, in turn, led to one about the U.S. Supreme Court, where the president had appointed Chief Justice Warren Burger (1969) along with three associate justices: Harry Blackmun (1970), Lewis Powell (1971) and William Rehnquist (1971).
*
He was hoping for additional vacancies, and we shared rumors about the health of the five Democratic appointees still sitting on the Court. Nixon was aware of the fact that Justice William Douglas had a pacemaker. He asked me if William Brennan was in good health, and I said he was, as far as I was aware, but when the president said Brennan was over seventy, I corrected him, for at the time Brennan was only sixty-seven. “Thurgood Marshall?” the president asked. “Marshall’s in bad health,” I reported. “Well, they say that, but is he really?” I shared the information I had gotten from a former Supreme Court law clerk now working in my office, who had told me that Marshall was in conspicuously bad shape, a “weak man and not in good health.” The president added, “Marshall, of course, is a black.” Nixon added caustically, “He is so God damn dumb. We can get one that is as bad as he is.” He continued: “Well, I was thinking, for example, if we take this fellow [William H.] Brown,
*
the one at the Equal Opportunities thing,” for the president thought “he’d be very good. The other [black], of course, is taking Jewel over here,” he said, referring to Jewel Lafontant. “Why not kill two birds with one stone, get a black woman.”
*
“Make it an historic appointment,” I noted with enthusiasm.

Nixon continued, “She’s a good woman. When they say she isn’t a towering figure, well, who the hell is a towering figure on that Court? I’ve don’t have to say that Douglas hasn’t got a brain; Brennan’s a boob; Thurgood Marshall’s a boob; Whizzer White is better than ordinary, and he’s above average; Potter Stewart is a weak man, Potter’s a nice fellow but weak and not strong, for something’s happened to him since he’s been here. Our own people, Blackmun is slightly above average; Burger is way above average, because of his administrative abilities; Powell is way above average. And that’s the bulk of it.” He had missed one, so I asked, “And Rehnquist?” Nixon quickly declared, “Rehnquist is the top.”

The president told me he was reading, and recommended, “a fascinating little book, not well written, by Malcolm Smith, Jr., on Kennedy’s thirteen great mistakes,” which critiqued his foreign and domestic policy practices. “They are great mistakes,” Nixon added, “and one of them had to do with the Bay of Pigs.” As the conversation progressed, Nixon turned philosophical about the Watergate defendants, and he spoke about the cover-up as if he were very aware of what was happening.

“Well, you can follow these characters to their Gethsemane. I feel for those poor guys in jail, I mean, I don’t know—” He hesitated for a moment, then said, “Particularly for Hunt. Hunt with his wife dead. It’s a tough thing.” “There is every indication that they’re hanging in tough right now,” I reported. Then the president asked, “What the hell do they expect, though? Do they expect to get clemency within a reasonable time?” I answered candidly, “I think they do.” He asked, “What would you say? What would you advise on that?” I was noncommittal, wondering about how he was feeling, “I think it’s one of those things we’ll have to watch very closely.” He then said, “You couldn’t do it, say, in six months?” I said, “No.” “No,” the president echoed, wistfully. “No, you couldn’t. This thing may become so political as a result of these hearings that it is more—” I was about to tell him he might never be able to employ clemency when he asked, as I was looking for a way to express it, “—a vendetta?” I could not disagree with his assessment. “Yeah, it’s a vendetta. This judge may go off the deep end in sentencing and make it so absurd that it’s clearly an injustice,” I submitted. Nixon asked, “Is there any kind of appeal left?” I responded that Liddy and McCord, who had
gone through the trial, were both appealing. “And there is no telling how long that will last. I think this is one of these things we’ll just have to watch,” I said.