The Nixon Defense: What He Knew and When He Knew It (99 page)

While Nixon considered this matter on July 16, Haig later wrote—and undoubtedly the others also worried—what if Nixon did order them to destroy the tapes? To do so after a subpoena had been issued they would be knowingly engaging in a criminal conspiracy to obstruct justice. Garment noted, “We also talked about various technical means for destroying the tapes (by electronic erasure, for example) and about who, other than Nixon himself, might undertake the deed.” Garment adds he “made everyone slightly edgy by noting that, even if Nixon could not be indicted, conspirators who facilitated a nonindictable felony, including lawyers and ex-generals, could.”
¹²⁶
Haig wrote, “The awful thought occurred to me that he might even order me to return to the White House and burn the tapes myself. I knew I could not do this; I would resign first. The tapes were not my property or my responsibility. Only the president could destroy them or order them destroyed by someone who was completely outside his inner circle, such as a member of the Secret Service.”
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The Watergate special prosecutor’s office was as stunned as everyone else but thought the revelation of the tapes was almost too good to be true. Assistant prosecutor James Neal, a seasoned veteran who had left his highly successful private practice to assist Cox, said, “It’s bound to be a ruse.” Neal wondered if the cunning Nixon might be leading them into a cul-de-sac. Nonetheless, they felt they had to move quickly to subpoena the tapes, particularly those of Nixon’s conversations with me, which they concluded were “certain to make or break John Dean’s testimony. Probably they would determine the outcome of our case against Haldeman and Ehrlichman. In the bargain, the tapes, if legitimate, would undoubtedly tell us a good deal about the extent of the president’s own involvement.”
¹²⁸
The prosecutors felt “[o]nce under subpoena” the tapes could be tampered with only at the risk of criminal liality so, given the uncertainty of the law, they moved quickly and delivered a letter to Buzhardt early on the morning of July 17, informing him that a subpoena was forthcoming.

That same morning Nixon, who had had only a few hours of sleep, told Haig he had made his decision: “Al, I’ve thought about this all night. Maybe Alex Butterfield has done us a favor. These tapes will be exculpatory. I know I never said anything to anybody that could be interpreted as encouragement to cover things up. Just the opposite.”
¹²⁹
A surprised Haig asked Nixon to consider his decision carefully. Later that day Haig tried to persuade him to change his mind, and had Vice President Agnew visit him, for Agnew strongly believed he should destroy the tapes—as did John Connally, Henry Kissinger and Pat Buchanan. Nixon had someone (probably Ziegler or Haig) contact Haldeman for his thoughts. Haldeman’s advice was to claim executive privilege and not give them anything. He opposed destruction of the tapes, for he felt they were the president’s best defense.

While I was very worried that Nixon would destroy the tapes, which I knew would not only corroborate my testimony but establish the depth of the president’s involvement in the cover-up, that clearly would have been a fatal decision for his presidency. Had he destroyed the tapes he would have survived, tarnished but intact. For that reason, his explanation of his ultimate choice is not unimportant. Nixon said he made the decision not to destroy the tapes for three reasons.

First, he believed “they indisputably disproved Dean’s basic charge that I had conspired with him in an obstruction of justice over an eight-month period.” This is fundamentally a straw-man argument, for I had never made
such a charge: I testified that I had the strong “impression” that he had been involved in the cover-up from the outset. As the conversations transcribed for this book show, my impression was well founded, and had Nixon made the slightest effort to verify what he had actually said and done, it is clear his tapes provide overwhelming evidence that he was involved in the cover-up from the earliest stages.

Second, Nixon says he was persuaded by “Haig’s reasoning that destruction of the tapes would create an indelible impression of guilt.” He did not think anything he had, in fact, “actually done would be as bad as that impression.” To support this notion he cites and quotes notes he made when he returned from the hospital, when he wrote: “If I had discussed illegal action, I would not have taped. If I had discussed illegal action and had taped, I would have destroyed the tapes once the investigation began.” In February 1971 the president was told the taping system was installed in the Oval Office; in April of that year he was informed it was working in his EOB office. By June of 1971 Nixon was giving repeated orders to break into the Brookings Institution and “rifle the files” for copies of the Pentagon Papers. In the March 21 conversation, during which I repeatedly told him that paying Hunt would be an obstruction of justice, he insisted this obstruction go on a little bit longer. He clearly knew he was discussing illegal activities that were being recorded, so this second reason appears to be a reconstructed rationalization for his memoir.

Third, he claims “the tapes were my best insurance against the unforeseeable future.” Accordingly, he found this “would give me at least some protection” in the event that Haldeman, Ehrlichman or Colson turned on him. In fact, as time and the special prosecutor’s subpoenas proved, they had as much if not more to lose, but this argument is more credible than his two prior claims. Without their notes, however, Haldeman and Ehrlichman were also having difficulties in reconstructing the past, so Nixon was making it difficult for them as well. While Ehrlichman did eventually turn on Nixon, Haldeman remained mostly loyal, other than being upset with Nixon’s comments about him during the Nixon/Frost interviews suggesting that he had bad judgment when, in fact, he had been carrying out Nixon directives, while he was in prison. As a result, he became very candid, noting, for example: “The president was involved in the cover-up from Day One, although neither he nor we considered it a cover-up at that time.” Keeping the tapes proved to be the higher risk, while Haldeman’s and Ehrlichman’s turning on
him was a low one. Indeed, they did not turn until he departed office, having ignored their pleas for pardons, which was very telling. Because they could no longer do anything for him, he was not about to do anything for them.

The decision to keep the tapes changed Nixon’s defense only slightly. Notes in his files that he prepared the day after he returned from the hospital have a heading: Tapes, under which he wrote as follows: “These tapes were not for public disclosure: (1) None have been transcribed—or will be. (2) Only [a few] hours have been listened to [by] me personally or for me under my specific direction and control.” Beside this note he has placed a little box, clearly containing the names of the others he has authorized to listen: Buzhardt, Haldeman, Bull. “(3) Only notes are in my personal possession and available to me only. (4) No one can use as basis for testimony.” Nixon drew two lines across his legal pad after these notes on the tapes, and beneath them added further thoughts: “My statement of May 22 stands and is fully corroborated by the tapes. Nothing in any way questions any of the statements of May 22.”
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In short, he intended to keep his core defense in place, and its entire thrust would now be on preventing anyone’s gaining access to that material. The way he would handle the matter of the tapes would only provoke further outrage regarding his behavior. He had locked himself into his April 30 defense as refined by his May 22 statement—the claim of no knowledge of a cover-up before March 21—and in the coming months of his presidency, which would last just over another year, he would remind Americans that only I had accused him of involvement in the cover-up, and he would continue his efforts to discredit me. Haldeman and Ehrlichman, more out of self-protection than on Nixon’s behalf, would testify before the Senate Watergate committee, and like Mitchell, would commit perjury, for which all three would later be charged and convicted. Nixon’s defense after the revelations of his taping system, and the filing of subpoenas by the Watergate special prosecutor and the Senate Watergate committee, shifted principally to the federal courts, where they would be resolved. Charles Alan Wright was wrong, and a unanimous Supreme Court (Justice Rehnquist recused himself) ruled that Nixon had to turn over the tapes that the special prosecutor had requested on behalf of the Watergate grand jury. I have highlighted the events that followed in an epilogue. When the Nixon defense finally failed, impeachment was a certainty. On August 8, 1974, Nixon announced his resignation, effective the following day. A Gallup poll immediately after
Nixon’s speech revealed that 79 percent thought Nixon did the best thing by resigning, with only 13 percent believing he should have remained in office.
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While in the hospital with pneumonia, Nixon made a note: “Should have destroyed the tapes after April 30, 1973.”
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Had he done so, his presidency and its history would have ended much differently.

F
ollowing the revelation of the White House secret taping system, the president and his Watergate advisers decided that no tapes could or should be released. Nixon’s defense quickly became focused on protecting the tapes, which kept his statements of April 30 and May 22, 1973, viable. Because no secret recordings exist of this final chapter of Watergate, and this period has been well reported by others, I offer here only a chronological summary of the events that brought the Nixon presidency to an end.
¹

July 18
Special prosecutor Cox sends a letter to Nixon requesting eight taped conversations based on my testimony before the Senate Watergate committee, arguing that since Cox is part of the executive branch, there can be no separation of powers (executive privilege) issue. On this date the White House taping system is fully dismantled.

July 20
Cox writes Buzhardt to make certain the tapes are being preserved intact and their integrity protected as possible evidence and requests that Buzhardt put in place procedures to protect the recordings. Buzhardt now has to be prepared to go to jail if he allows the destruction of the tapes.

July 22
Harris Poll: 60 (versus 30) percent think that Nixon was more wrong than right in refusing to turn over documents to the Senate Watergate committee; 50 (versus 30) percent now believe my Senate testimony that Nixon knew of the cover-up.

July 23
Nixon rejects the request of the Senate Watergate committee for copies of the tapes and informs Judge Sirica that he will not provide the eight tapes requested by Cox, based on executive privilege. Cox subpoenas nine tapes, six from conversations with me and three from the first week after the arrests at the DNC.

July 25
Pat Buchanan sends a memo to the president recommending he burn the tapes that might be damaging to him. John Connally resigns as a part-time presidential adviser and is soon indicted, tried and acquitted of taking a ten-thousand-dollar bribe to raise federal milk-price supports for the dairy industry.
Buzhardt writes to Cox to assure him the tapes are intact and under Nixon’s sole personal control, with access to them carefully controlled and documented.

July 26
Senate Watergate committee votes unanimously to go to court to enforce its subpoena against the president for his tapes. Judge Sirica grants Cox’s request for a “show cause” order that requires Nixon to explain by August 7 why he should not compel the president to provide the nine requested tapes to Cox. The White House press office announces that the president will “abide by a definitive decision of the highest Court” regarding his tapes. When Cox, the following day, states that all Supreme Court rulings are “definitive,” the Nixon press office responds that some Supreme Court rulings were “less than definitive.” This discussion did not escape the attention of the Supreme Court justices.
²

July 30
In his testimony to the Senate Watergate committee, Haldeman says he listened to the tapes of my conversations with the president on September 15, 1972, and March 21, 1973, and claims that Nixon did say “there is no problem raising a million dollars” for the Watergate defendants, but “it would be wrong.” (The fact that Haldeman heard the recordings after he left the White House on April 30, 1973, offends many both in and out of government, since a private citizen being investigated for criminal conduct was given access while government investigators were being denied.) Harris Poll: 22 percent think Nixon should resign; 65 percent believe he has not been honest regarding Watergate.

August 9
Senate Watergate committee files an action in federal district court in Washington seeking Nixon’s tapes.

August 15
Nixon addresses the nation from the Oval Office. He repeats his no knowledge of the break-in or cover-up defense and embraces his May 22 statement, adding: “As for the cover-up, my statement has been challenged by only one of the thirty-five witnesses who appeared—a witness who offered no evidence beyond his own impressions and whose testimony has been contradicted by every other witness in a position to know the facts.” He proceeds to name me as the person who had failed to give him information before March 21, but when I did, it prompted his investigation. As for his tapes, the “principle of confidentiality of presidential conversations is at stake in the question of these tapes. I must and I shall oppose any efforts to destroy this principle, which is so vital to the conduct of this great office.” Nixon issues another detailed statement of his defense, again attributing blame to me and reinforcing the May 22 statement.

August 16
Magruder pleads guilty on a one-count indictment for conspiracy to obstruct justice and the unlawful intercept of wire and oral communications by eavesdropping at the DNC. Sirica postpones sentencing until he can evaluate Magruder’s assistance to the government.

August 20
Harris Poll: 67 percent believe that Nixon had failed to give “convincing proof” that he was not part of the cover-up; 71 percent think he is withholding important information about Watergate.

August 22
Cox and Nixon’s special counsel Charles Wright argue their respective cases before Judge Sirica regarding the tapes. Wright tells Sirica that one of the subpoenaed tapes of Nixon’s conversations with me contains such sensitive
national security information that the president could not even hint to Wright of its contents. Sirica says he will rule within a week. Nixon also holds a press conference on this day, and the second question concerns the tapes: “You have said that disclosure of the tapes could jeopardize and cripple the functions of the presidency. Two questions. If disclosure carries such a risk, why did you make the tapes in the first place, and what is your reaction to surveys that show three out of four Americans believe you were wrong to make the tapes?” Nixon replies that his advisers recommended taping for national security reasons. As for the second question, he says that Kennedy and Johnson taped their presidential conversations, but Nixon says he actually preferred dictating notes at the end of the day. When asked why he allowed Haldeman to listen to tapes, Nixon claims (falsely) that he only allowed him to listen to September 15 to be certain they would be accurate in responding. When asked about the March 21 conversation, Nixon asserts that Haldeman’s testimony (for which he would later be indicted and convicted) is accurate.

August 29
Sirica orders Nixon to produce the eight tapes subpoenaed on July 23 by Cox. In turn the White House issues a statement that Nixon will not comply and is considering an appeal, which they would do on September 6. The White House also files papers denying the Senate Watergate committee’s tapes request, charging the committee with conducting a criminal trial that exceeds its authority.

September 4
A Los Angeles grand jury returns a secret indictment against Ehrlichman, Liddy, Krogh and Young for conspiracy to commit burglary of Ellsberg’s psychiatrist’s office, and also charges Ehrlichman with perjury. (At the request of the Watergate special prosecutor, these charges will be dropped when he files his actions involving the same individuals.)

September 5
While Nixon has earlier been reluctant to publicly attack me, at his second news conference in two weeks he claims that he personally ordered me on March 21 to undertake an investigation, and when I could not write a report, he turned to Ehrlichman. He refuses to explain what he meant by a “definitive” Supreme Court ruling and admits that confidence in the president has been “worn away” by the “leers and sneers of commentators.”

September 6
Nixon’s attorneys appeal Sirica’s August 29 ruling to produce the tapes to Cox, claiming the court does not have power to deal with his private records. The following day Cox petitions the Court of Appeals to order Nixon to deliver the requested tapes.

September 10
The White House and Cox both file lengthy briefs with the Court of Appeals regarding production of the subpoenaed tapes. Nixon’s lawyers argue that under executive privilege the courts have no power to require a president to reveal information about the presidency. Cox argues that enforcing the criminal law outweighs presidential privacy. On the following day, September 11, they have a three-hour argument before the court. Wright claims that even if Nixon did engage in a conspiracy to obstruct justice, he cannot be indicted, only impeached by Congress.

September 13
The Court of Appeals (with seven judges sitting on the case) unanimously adopt a six-hundred-word memo urging an out-of-court resolution to
the tape issue. The court suggests allowing Cox to examine the tapes with the president’s lawyer and jointly decide which portions can properly be given to the grand jury. Cox approves of the proposal; the White House will consider it.

September 19
In response to the Court of Appeals proposal White House lawyers file a brief that states that Nixon will not “tear down the office of the American presidency” for Watergate. The following day the White House lawyers, with Cox, file a joint letter that states that after three meetings, they have not been able to agree on an out-of-court settlement regarding the tapes.

September 23
Gallup Poll: 61 percent to 32 percent believe Nixon should release the White House tapes to Judge Sirica.

September 24
Senate Watergate committee hearings resume, and White House lawyers file papers with Sirica asking that he reject the committee’s request for a summary judgment to provide them the tapes. Cox tells Richardson that Haldeman and Ehrlichman are preventing him from subpoenaing documents by placing them with Nixon’s presidential papers. (As long as Nixon remains in office, the strategy works.)

September 28
Nixon, who has been considering a compromise on the tapes requested by Cox, instructs Rose Woods to begin transcribing the subpoenaed tapes at Camp David in order to provide transcripts to his lawyers. But he tells Haig he did not want to listen to the tapes personally.

September 29–30
During this weekend, Nixon is told by Steve Bull that he cannot locate the June 20, 1972, conversation between Nixon and Mitchell or the April 15, 1973, conversation between Nixon and Dean. (See
Appendix B
.)

October 1
Using a new Uher 5000 tape-deck recorder purchased that day, Woods continues transcribing the June 20, 1972, conversation with Ehrlichman. As she progresses she discovers a gap, a shrill buzzing noise, and informs Nixon, believing she was responsible for it. (See
Appendix B
.)

October 4
Harris Poll: 54 percent to 34 percent believe Congress would be justified to begin impeachment proceedings if Nixon refuses to turn over his tapes.

October 10
Vice President Agnew resigns and pleads nolo contendre (no contest) to negotiated charges of failure to pay federal income taxes (on kickbacks from state contracts while serving as governor of Maryland).

October 12
Court of Appeals upholds Sirica’s ruling requiring Nixon to produce the subpoenaed tapes and calls for Sirica to do an in camera review. Nixon nominates Michigan congressman Gerald Ford, the House minority leader, to be vice president. (Ford will be confirmed by the U.S. Senate on November 27 and by the U.S. House of Representatives on December 6.)

October 17
Sirica denies the Senate Watergate committee’s effort to obtain the tapes on the grounds that the court could not invoke jurisdiction in a congressional civil suit. Richardson sends a White House proposal to Cox that, rather than have Sirica do an in camera review, transcripts of the tapes could be verified by Senator John Stennis—the so-called Stennis compromise.

October 18
Cox tells Richardson he cannot accept the Stennis compromise. The transcripts prepared by the White House, and verified by Stennis, would not
have been admissible in court, not to mention that it was well known that Senator Stennis was partially deaf and a strong Nixon supporter.

October 19
Notwithstanding the fact that Nixon knows it is unacceptable to Cox, he announces he will not appeal the Court of Appeals ruling on the tapes to the Supreme Court, but instead publicly proposes the Stennis compromise. The Senate Watergate committee accepts the proposal; Cox refuses it.

October 20
Cox defends his decision not to comply with the president’s proposal during an afternoon televised news conference and asserts that he can be fired only by the attorney general, for Cox was well aware of Nixon’s earlier threats. At an 8:25
P.M
. news conference the White House announces that Attorney General Richardson and Deputy Attorney General Ruckelshaus have both resigned rather than fire Cox. Solicitor General Bork, as acting attorney general, is responsible for dismissing Cox. Television networks interrupt regular programming to announce this action by Nixon, which becomes known as the Saturday Night Massacre.

October 23
Following a tumultuous weekend in the aftermath of the Cox firing, eight impeachment resolutions are introduced in the House of Representatives, and within days the House Judiciary Committee commences a serious impeachment inquiry.

October 26
In response to nationwide public pressure, the White House announces that Nixon will give the tapes to Sirica, and the Stennis plan is canceled. In a press conference Nixon announces that acting attorney general Bork will appoint a new Watergate special prosecutor.

October 30
The White House publicly discloses that two of the subpoenaed tapes are missing: Mitchell’s conversation on June 20, 1972, and mine on April 15, 1973.

November 1
Leon Jaworski is appointed as the new Watergate special prosecutor. Both Haig and Nixon believe that in Jaworski they have a conservative Democrat and an establishmentarian who will not cause trouble and go after the president as had Cox.

November 12
In a statement from his lawyers to Judge Sirica, Nixon claims neither the June 20, 1972, conversation with Mitchell nor the April 15, 1973, conversation with me was recorded.