The Nixon Defense: What He Knew and When He Knew It (113 page)

16
G. Gordon Liddy,
Will: The Autobiography of G. Gordon Liddy
(New York: St. Martin’s Press, 1997), 237. Note: Liddy wrote that Magruder called him to his office on June 12, 1972, and instructed him to go back into the DNC. This conflicts with all of Magruder’s
contemporaneous explanations, at a time when he had no motive to lie, and with the testimony he gave when he agreed to assist the government.

17
Conversation No. 38-31.

18
When Ehrlichman later understood this, he omitted the key fact that Kalmbach was involved in order to keep the Watergate defendants on the reservation; rather, he would claim it was to raise attorney fees. Senate testimony of John Ehrlichman, 6 SSC 2569. Also, Ehrlichman later denied that Kalmbach had asked him if he had to be involved in this project, notwithstanding the fact Ehrlichman had told him it was of the upmost importance. See count twelve
U.S. v. Mitchell et al.
indictment,.

19
Richard Nixon,
RN: The Memoirs of Richard Nixon
(New York: Grosset & Dunlap, 1978), 821–24. The April 14, 1973, entry noted the irony of the White House correspondents awarding the “libelous”
Washington Post
coverage of Watergate their top prize at the time he had discovered the significance of Watergate “for the first time.” He recorded that he had mentioned to Ehrlichman the idea of “Haldeman and Dean taking a leave of absence.” But Ehrlichman thought that would not work “because as it turns out Dean has ways he could implicate both Haldeman and Ehrlichman, [and] it would be in effect [Dean] admitting his guilt.” Nixon noted Magruder’s going to the U.S. attorney had been “a terrible load lifted off him.” And added that Colson was now “a major target of the U.S. Attorney, [but if] Dean cracks, Colson will have had it.” The president recorded that he had learned both Colson and Mitchell had been interested in “material on O’Brien.” The president recorded that while Haldeman did not want to resign, he had mentioned it as potentially necessary, but he was inclined to circle the wagons around Haldeman to protect him, because he was only tangentially involved. He found Kleindienst was “the strange actor” in his disengagement from it all. The only good news for his diary was the forthcoming Gallup poll that showed he had 60 percent approval and 33 percent disapproval ratings.

20
Archibald Cox interview of Henry Petersen, May 29, 1973, NARA, Records of the Watergate Special Prosecution Force. See www.archives.gov/research/investigations/watergate/index.html.

21
Conversation No. 38-34.

22
Conversation No. 38-37.

23
Haynes Johnson and Jules Witcover, “‘New Majority’ Growing Disillusioned With Nixon,”
The Washington Post
, April 15, 1973, A-1.

24
Ehrlichman was correct that I never made such a statement. It was not necessary. Together we had listened to Hunt’s recorded conversation with Colson shortly after the election, in early November 1972, and I had told him of Hunt’s demands for money in mid-March 1973. Hunt made it very clear if he and the others were not paid, they were going to talk, not only about Watergate but about the break-in at Ellsberg’s psychiatrist’s office.

25
Conversation No. 428-36.

26
Nixon,
RN
, 826.

27
Nixon wrote of this period in his memoir that he understood the payment of money to the defendants had become the biggest problem: “When it came to the question of motive the real answer lay in each man’s mind and each man’s conscience.” Thus, if everyone said the payments were for humanitarian purposes, Nixon believed there would be no obstruction of justice. Not only would such a spin of the facts have been a lie, but it still would have been an obstruction of justice. Take Ehrlichman’s claim that he was concerned that Hunt would write an article. Why would Ehrlichman care if he wrote an article other than that it would have incriminated Ehrlichman in criminal activity. It was an absurd contention. When Mitchell, Haldeman and Ehrlichman attempted this defense against the criminal charges against them, it failed. See
U.S. v. Haldeman, et al.,
559 F.2d 31 (1976), in which the matter of Haldeman’s, Ehrlichman’s and Mitchell’s criminal intents was litigated at length. In fact, the jury did not buy the claim that these defendants acted for humanitarian reasons. See also Nixon,
RN
, 825, and Philip A. Lacovara, “Relevance of Defendants’ ‘Good’ Motives for Engaging in Burglary, Warrantless Electronic Surveillance and Cover-up Activities,” Memorandum by the Counsel to the Special Prosecutor, September 19, 1973. This memo,
and the underlying material by Robert L. Palmer, noted that good motive is no defense for violations of the prohibitions of a statute. As for good motive negating specific intent, the memo specifically addressed the same situation as Nixon. When, as Ehrlichman outlined to the president, there was a dual motive, the bad motive was sufficient under the law for conviction.

28
I reject the claim by the White House that the Secret Service had not anticipated that the office would be used over the weekend so they did not change the tape reel. A second machine began recording when the first ended, and they switched back and forth. While the Watergate special prosecutors could not prove that Haldeman disposed of the tape, all the evidence certainly points in that direction. The box with the recording that was available for the April 15, 1973, EOB conversations is marked “Part 1.” But Part 2 disappeared. The hearings undertaken by the Watergate special prosecutor in October and November 1973 show one person with unique access and motive to simply toss the recording in the trash: Bob Haldeman. Haldeman was given some twenty-two boxes of tapes on two occasions. The first time, in late April 1973, was before there was any real record keeping noting which ones he was given. And on a second occasion, during July 10 and 11, 1973, just before the existence of the system was revealed on July 16, 1973, the Secret Service records indicate he was given another batch that included “the EOB from April 11 through April 16, 1973.” Recording keeping was so loose and sloppy (until discovery of the missing tapes in October 1973) that it would have been unnoticed had Haldeman simply disposed of the reel that ended during the president’s conversation with Kleindienst on April 15, 1973. See Hearings on Missing Nixon Tapes, U.S. District Court for the Distict of Columbia, November 8–9, 1973.

29
Conversation No. 38-42.

30
Nixon,
RN
, 827.

31
Ibid.

32
April 15, 1973, Haldeman notes, Nixon library, NARA.

33
Nixon,
RN
, 828.

34
Because it was speculative, I did not include it in the first draft of my testimony for the Senate. But when reading my draft I added it, because I believed it highly likely when I learned the president was claiming he had recorded our conversation and that I had told him I had been granted immunity, which I had not. My testimony, however, caused Senate Watergate committee minority counsel Don Sanders to ask Alex Butterfield on July 13, 1973, after I had testified if it was possible, as I believed, that Nixon had recorded me. Butterfield’s honest answer changed the entire dimension of the Watergate investigation, which became a fight by the prosecutors for the tapes to determine if I was telling the truth, and Nixon was involved, or whether Nixon was telling the truth, that he knew nothing of the cover-up until March 21, 1973, when I told him.

35
Dean Senate testimony, 3
SSC
1015–17. Regarding my belief that I was being taped by Nixon, see 3
SSC
1016, 1019–20, 1031, and 4
SSC
1373, 1434, 1558, and 1576–77.

36
April 15, 1973, Haldeman notes, Nixon library, NARA.

37
Nixon,
RN
, 828–29.

38
See generally, John W. Dean,
Blind Ambition: The White House Years
(New York: Simon & Schuster, 1976), 258–63.

39
Conversation No. 897-3.

40
Dean Senate testimony, 3
SSC
1314–15.

41
Conversation No. 897-4.

42
Conversation No. 897-9

43
Conversation No. 897-11.

44
Conversation No. 897-16.

45
Petersen testimony before impeachment inquiry, Testimony of Witnesses, Hearings Before the Committee on the Judiciary, House of Representatives, 93rd Congress, 2nd Session, Book III (Washington, D.C.: Government Printing Office, 1974), 81.

46
Congress had only a few of Nixon’s edited transcripts, which nevertheless, along with some testimony, established that Nixon provided false and misleading information to Petersen
regarding Haldeman and Ehrlichman and personally urged Petersen to deny me immunity in order to make it more difficult to develop the criminal cases against Haldeman and Ehrlichman. While Nixon was feeding Petersen misinformation, the unwitting Petersen was providing information that Nixon passed on to Haldeman and Ehrlichman, which enabled them to distort or alter what had occurred by twisting and manipulating others to provide incorrect corroborating information. Petersen’s meetings with Nixon would become a cornerstone for article I of the bill of impeachment against Nixon.

47
April 16, 1973, Henry Petersen notes, Exhibit No. 147, 9
SSC
3875–76.

48
Conversation No. 427-2.

49
Conversation Nos. 427-5 and 427-6.

50
Conversation No. 427-10.

51
Conversation No. 427-12.

52
Conversation No. 38-82.

53
Conversation No. 38-84.

54
Conversation No. 898-4.

55
Conversation No. 898-6.

56
Conversation No. 898-12.

57
Haldeman appears to be referring to information he was given by a former attorney general, Bill Rogers, suggesting that Petersen had become a coconspirator. When Watergate special prosecutor Archibald Cox was fired by Nixon, and I was working with the prosecutors, Henry Petersen was temporarily placed back in charge of the case. Assistant Watergate special prosecutor Richard Ben-Veniste asked me at that time if Petersen had been compromised. I said I did not believe he had been unless he had become a coconspirator. Given my dealings with Petersen, it was a close question. But given Petersen’s dealings with Nixon after I departed, as revealed in the recorded conversations, a strong argument can be made that Petersen became as foolish as everyone else and unwittingly entered the Watergate cover-up conspiracy. Although he, along with many others, became coconspirators, he was never so named. Dick Moore and Ron Ziegler, along with others who would later join the Nixon defense, were all active coconspirators who were never named.

58
For purposes of illustration, there were three general levels at the Nixon White House: the top level of presidential assistants, which included, for example, Haldeman, Ehrlichman and Kissinger, along with a few others; a middle level, which included deputy assistants, special counsel and counsel to the president, where you found Len Garment, Dick Moore, former aides Chuck Colson, Dwight Chapin, Jeb Magruder and the like; and then the lower level of staff assistants, where you found Strachan, Higby and others. Thus, the president was going to call anyone from the middle level up “a top White House official,” although they reported up through others and had no direct access to the president.

59
Conversation No. 38-86.

60
Conversation No. 898-20.

61
During their earlier conversation on April 16, Petersen had told the president about Liddy: “This man is crazy, Mr. President. He’s burning his arms. He showed the prosecutor and said, ‘I will stand up to anything. I’ve made myself endure this to prove to myself that I can take anything. Jail will not break me,’ and what have you. You’ve got to be a crazy man to sit there and burn yourself to see if you can withstand the pain.” See Conversation No. 427-2.

62
Conversation No. 898-23.

63
As it turned out, Gordon Strachan would corroborate my testimony when he appeared before the Senate Watergate committee on matters such as: Haldeman instructing him to destroy possible Watergate-related evidence in their files; his role in taking White House funds to the reelection committee; and his involvement in the Segretti matter. Haldeman had a number of small-bore people on his staff who would do as asked without asking questions. Strachan was not one of them. To my knowledge there was no significant conflict in our testimony.

64
Conversation No. 899-4.

65
Conversation No. 429-3. Note: The president’s daily diary is incorrect in stating that Haldeman and Ehrlichman attended this discussion from the outset, at 5:20
P.M.
, for the recorded conversation reveals that they joined it approximately twenty-seven minutes after it started.

66
The question of who is the client of the White House counsel would not be resolved until after Watergate, and today, according to the American Bar Association’s Model Rules of Professional Conduct, the client is the Office of the President, not the current occupant or his staff. The attorney-client privilege has never protected criminal behavior, and federal courts now have rules that government attorneys have a limited attorney-client privilege. See, e.g. Nancy Leong, “Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys,”
Georgetown Journal of Legal Ethics
20:163 (2007).

67
Ehrlichman was not telling the president that he had personally met with Kalmbach on July 26, 1972, to give him instructions—“a directive,” according to Kalmbach—to carry out his secret mission of raising and delivering money for those involved in Watergate. When Kalmbach said that he was troubled by the secrecy, Ehrlichman told him it was necessary; otherwise, Ehrlichman said, “Herb, they would have our heads in their laps.” In early August 1972, Kalmbach reported to Ehrlichman that he had raised an additional seventy-five thousand dollars from a Nixon contributor for this effort. On April 6, 1973, they met again on this subject in the parking lot of the Bank of America, in San Clemente, California. Ehrlichman requested that if Kalmbach was called upon to testify about his activities that he say he had been directed by me. Kalmbach, knowing that was not true, reminded Ehrlichman that it had been at his direction as well. See testimony of Herbert Kalmbach,
U.S. v Mitchell et al.
(November 12, 1974) 6332–95.