The Nixon Defense: What He Knew and When He Knew It (115 page)

118
Conversation No. 38-146. (Not transcribed; merely listened to it.)

119
Conversation No. 430-22.

120
Nixon writes in his memoir that around this time that he had a recurring thought: “Before long a disturbing thought occurred to me; I couldn’t get it out of my mind: what if Dean had carried a tape recorder at our March 21 meeting, a small tape recorder, concealed in his jacket but capable of catching every word. He would be able to use parts of the conversation in a very damaging way.” This thought simply did not occur to him, but it appears that he had forgotten why he had this thought. On April 17, 1973, in a meeting with Len Garment,
I told him I had reason to believe that there were audio recordings of one or more of my conversations with the president. I had come to believe this (as I later testified at the Senate) because of Nixon’s behavior during our meeting on April 15, 1973, not to mention the fact that he had told Henry Petersen he had a record of my saying that I had immunity, when, in fact, I had made no such statement. I told Len because he was a gossip, so I knew he would spread the story. Years later he said he had done just that, and when he read the transcripts of Nixon worrying about it, felt he had done a disservice to Nixon. See Nixon,
RN
, 842, and Dean Senate testimony 3 SSC 1016, 1019–20, 1031; 4 SSC 1476–77, 1558.

121
Conversation No. 430-23.

122
Conversation No. 38-150.

123
What, in fact, happened was that Shaffer told them that if they wanted to engage in prosecutorial misconduct and keep this activity secret that was their business. What was our business was disclosing it, because it was an obstruction of justice, and Charlie said neither he nor I were interested in obstructing justice. Nixon, Kleindienst and Petersen decided to read this as blackmail.

124
Conversation No. 38-151.

125
Conversation No. 38-153.

126
Conversation Nos. 38-154 and 38-155.

127
Not until many months later, in late 1973 when Ehrlichman was under investigation in several criminal cases, did he retain new and separate counsel, William Snow Frates, who was something of a buffoon, who was nicknamed and called behind his back “W. C. Frito” by attorneys in the Watergate Special Prosecutor’s Office. Frates represented Bebe Rebozo in a number of civil lawsuits.

128
While I was unable to find this statement in the Petersen and Nixon conversation—Conversation No. 430-23—earlier that day, it could not have been a more distorted interpretation; that appears to be the way Nixon was thinking. Charlie provided this information to the prosecutors, because he told them we were moving on, since it was obvious to him we could not do business. But he needed to clear up this ongoing obstruction of justice and potential prosecutorial misconduct. He made no threat. He asked for nothing in return for the information. He merely told them that they had the information in their files, and under the leading U.S. Supreme Court case on the subject, they were duty-bound to act appropriately. It was their choice, and his farewell gift to them. It was our last dealings with the U.S. Attorney’s Office, and the information was even given to them in such a manner that neither Charlie nor I could be charged with leaking classified information.

129
Conversation No. 38-156 and 38-157.

130
Conversation No. 38-159.

131
Conversation No. 38-161.

132
Conversation No. 905-8.

133
John Ehrlichman,
Witness to Power: The Nixon Years
(New York: Simon & Schuster, 1982), 311.

134
At the time I was not aware that the warning I had sent him through Len Garment about the immunity statement (during the same conversation in which I had told Len I believed I had been recorded) had gotten through. But the conversations with Petersen reveals that Nixon quickly pulled back on immunity and told Petersen it was his decision alone.

135
Conversation No. 905-12.

136
Conversation No. 45-3.

137
Conversation No. 431-9.

138
Apparently Haldeman’s attorneys had not yet explained the way criminal conspiracies work, that once you agree with another to undertake an illegal action, all coconspirators become liable for the actions of the others. Throughout these recorded conversations, particularly in April 1973, Haldeman (and Ehrlichman) openly acknowledge their participation in the conspiracy but appear to believe that, because they were not passing the money themselves to the Watergate defendants, particularly Hunt for his silence, they have no criminal exposure. This was why my attorney, Charlie Shaffer, told me not to deal with any of the
potential defendants other than to confront them as I did, with their criminal problems, hoping to get them to step forward and take responsibility.

139
Conversation No. 45-15.

140
Conversation No. 906-1.

141
Carl Bernstein and Bob Woodward, “Dean Seen Asking Full Bug Disclosure,”
The Washington Post
, April 27, 1973, A-1. The story reported that I had told Nixon that “to save the presidency” Haldeman, Ehrlichman and I would have to disclose all [we] knew about the Watergate bugging case and face the possible consequences of going to jail. Hopeful that Haldeman and Ehrlichman would follow suit at the president’s urging, Dean on April 6 told federal prosecutors all he knew about the bugging and a subsequent White House cover-up, according to three reliable sources. But Haldeman and Ehrlichman apparently balked at the idea of incriminating themselves, leading to the current state of confusion and warfare between individuals inside the White House, the sources reported.

While the date of the meeting with the president and Haldeman and Ehrlichman is wrong—it was March 21, 1973—the gist of the
Post
story is correct, and this is information I had discussed with both Len Garment and Dick Moore. As of April 27, 1973, I had not discussed anything with my lawyers regarding my dealings with the president.

142
According to Ehrlichman’s office schedule he met with Haldeman and me from 3:45
P.M.
to 6:00
P.M.
on March 21, 1973.

143
John Herbers, “Mississippi Crowds Cheer Nixon at ‘Stennis Day’ Fete,”
New York Times
, April 28. 1973, 17.

144
Haldeman,
Diaries
, 667.

145
Conversation No. 906-8.

146
Conversation No. 45-34.

147
Conversation No. 45-36.

148
Conversation No. 906-12.

149
Conversation No. 906-16.

150
Conversation No. 906-17.

151
Conversation No. 906-23.

152
Ehrlichman and Haldeman will claim it was done in a clandestine fashion because of the political situation, but they were unsuccessful in selling this bogus argument to a jury in
U.S. v. Mitchell et al
. Petersen at this time is unaware that Hunt had made clear following the November election that the continued silence of the Watergate defendants could only be assured if payments were forthcoming, and while this was implicit in his conversation with Colson, it became explicit in his demand for money in March 1973, when he said that if payments were not forthcoming, he would have seamy things to say about his work for Ehrlichman. Nixon did not discuss with Petersen this quid pro quo element in Hunt’s blackmail demand.

153
Conversation No. 906-24.

154
Conversation No. 906-25.

155
Conversation No. 432-1.

156
Conversation No. 164-2.

157
For example:
The Washington Post:
“Gray Resigns; Ruckelshaus Heads FBI; Hunt, Liddy Linked to Ellsberg Case”; “After Big Day, Nixon Retreats to Camp David”; “Case Role Ill Defined for Lawyer: John J. Wilson”;
New York Times:
“Gray Says He Destroyed Files from Hunt Given Him When He Met Ehrlichman, Dean”; “Haldeman and Ehrlichman Reported Fighting Ouster”; “Dean Is Reported Asking Immunity: White House Counsel Says He Will Not Testify If He Runs Risk Of Prosecution”; “Grand Jury Nears End of Investigation on Tangled Vesco Case.”

158
Conversation No. 164-4.

159
Conversation No. 164-6.

160
Charlie Shaffer understood this law perfectly. Congress had adopted a so-called use immunity statute that allowed the government to collect independent evidence of criminal conduct,
then grant limited immunity that forced the person to testify or be in contempt of court, yet still prosecute that person on independent evidence. The Supreme Court decision that Petersen was referring to was
Kastigar v. United States
406 U.S. 441 (1972), which cast a long shadow over the use immunity statute. Although I assured Sam Dash I would testify with or without immunity before the Senate Watergate committee, Charlie said that if he was going to represent me he would insist on my having immunity. Sam Dash, a professor of criminal law, understood exactly what Shaffer was doing. For this reason, Dash and I were meeting secretly, going over my potential testimony so he could tell Chairman Sam Ervin that I must have immunity and Ervin would make it happen. With the appointment of a special prosecutor, and notwithstanding the fact that I understood it was likely Archibald Cox would be fired, I knew that when I pled guilty to conspiracy to obstruct justice that Nixon would never get a new attorney general without a special prosecutor. As Shaffer later told me, I had Oliver North’s case before Oliver North every dreamed he would have to take
Kastigar
to the next level: that Congress could not compel your testimony and then allow the executive branch to prosecute you with witnesses who had heard that testimony. See
North v. United States
920 F.2d 940 (DC Cir., 1990).

161
Conversation No. 164-10.

162
Conversation No. 164-13.

163
Nixon,
RN
, 846.

164
Conversation No. 164-18.

165
On Monday, March 26, 1973, Ehrlichman’s secretary had requested that David Young pull together his files on the Pentagon Papers investigation and send them over to Ehrlichman’s office. Young placed them in an attaché case and sent Ehrlichman the files. On Tuesday, March 27, Ehrlichman requested that Young come to his office, and they discussed the Ellsberg break-in. During this meeting, Ehrlichman told Young, “My present recollection is, I didn’t know about this until afterward. What about you?” Young replied, “Yes, I do. I not only recall it, I knew about it beforehand; and my clear recollection is you also were aware of it beforehand. And the memoranda in the file, in the briefcase,” which Young pointed at and which was in front of Ehrlichman’s desk, “the memoranda reflect that fact that you did.” Ehrlichman responded, “Well, there is no question about what actually happened. But I have taken those out, because they are too sensitive, and they show too much forethought.” Young commented, “Well, somebody also might have copies, Hunt and Liddy.” Ehrlichman replied, “Well, that’s a chance we will have to take.” In fact, David Young had copies of the memoranda showing Ehrlichman had approved the Hunt-Liddy Ellsberg operation in writing. Ehrlichman also met with Young on this subject on April 30, 1973, so it was clearly fresh in Ehrlichman’s mind when giving Nixon a false account. Testimony of David Young,
U.S. v. Ehrlichman
(July 1, 1974), 1048–52.

166
Conversation No. 164-21.

167
Conversation No. 164-24.

168
Conversation No. 164-28.

169
Conversation No. 164-30.

170
Conversation No. 164-32.

171
Ibid.

172
Conversation No. 164-38.

173
Conversation No. 164-39.

174
Nixon,
RN
, 847–48; Haldeman,
Diaries
, 671–73; H. R. Haldeman with Joseph DiMona,
The Ends of Power
(New York: Times Books, 1978), 287–96; Ehrlichman,
Witness to Power
, 389–90.

175
Conversation No. 164-44.

176
Conversation No. 164-48.

May 1 to 10, 1973

1
National Archives and Records Administration (NARA) Conversation No. 45-41.

2
Conversation No. 45-48.

3
Conversation No. 45-65.

4
Richard Nixon,
RN: The Memoirs of Richard Nixon
(New York: Grosset & Dunlap, 1978), 849.

5
Ibid., 850.

6
Having personally transcribed hundreds of these conversations, I know that there was no way Bob Haldeman, as able as he was, could begin to obtain an accurate account of a conversation with as much nuance as the one Nixon and I had during the first hour, as well as the different tone when Haldeman arrived for another forty minutes. Haldeman’s twenty pages of legal pad notes merely track the gist of the conversation.

7
Nixon’s speech, along with the information I was sure had been leaked by Ehrlichman and Colson for Jack Anderson’s April 26 column, left no doubt where I stood. It would be my word against Mitchell, Colson, Ehrlichman, Haldeman and the president of the United States. On May 1, I had my first conversation with Charlie Shaffer about my knowledge of Richard Nixon’s role in the Watergate cover-up. As I talked with Charlie—and about the Nixon White House for the first time with anyone other than Nixon’s aides and enablers—I began to understand that I had been working in something of a criminal cabal, with well-meaning and intelligent people who had placed expediency and accomplishing the president’s goals above the legal rules we all might otherwise agree are essential for our way of life. That realization, not to mention the fact that I would be the target of an even tighter criminal conspiracy to protect Nixon’s presidency, certainly altered my thinking and actions.

8
Conversation Nos. 908-1, 908-2 and 908-3.

9
Conversation No. 123-3.