by James Rosen
At that, Walter Bonner, Stans’s lead attorney, leapt to his feet. “I object to this,” Bonner shouted. “Sustained,” Gagliardi replied. “I have indicated to the jury what an indictment is, that it is nothing more than an accusation.” He turned to the jurors themselves: “That is the only weight and credit to be given to the indictment in this case. The defendants have denied the charge. Now proceed.” Rayhill completed his opening statement a few minutes later, and Gagliardi sent the jury out for lunch.
“I move for a mistrial,” Bonner declared, “because it was stated by Mr. Rayhill…that because people just like this petit jury had indicted these two men, that they should draw a natural inference from that fact that these men were guilty.” Mitchell’s attorney Peter Fleming joined in Bonner’s motion. The judge deferred a ruling, but added: “I’m very seriously considering a mistrial,” and recessed for ninety minutes.
After lunch, the jury still absent, Gagliardi told the lawyers: “I am gravely concerned over the apparent excess on the part of the prosecutor in bringing into his opening statement…references to the grand jury and its functions and bringing to it his personal conclusions, as though he were a witness in the matter.” Then he brought the jurors back in, instructed them anew that an indictment did not confer guilt, and adjourned for the day.
The prosecution’s case had barely begun—and was now in serious trouble. Yet the following Monday, Gagliardi chose to continue the trial, finding the reference by Rayhill “brief and ambiguous.” Moreover, the jurors had been instructed five separate times on the difference between their role and that of the grand jury.50
Where Rayhill stumbled, Peter Fleming was brilliant. Six-foot-six, rakish gray hair flopped over his collar, the heavy-lidded, chain-smoking Fleming, educated at Princeton and Yale, looked like Robert Mitchum and sounded like Gregory Peck. He had spent twelve years as a federal prosecutor and reportedly “never lost a case.” His ring savvy, theatrical flair, and comic touch (asked once how long his cross-examination would take, Fleming replied, “It depends on how quickly he cracks, Your Honor”) made him one of New York’s most sought-after defense lawyers.51
In his opening statement, Fleming earned every cent of the $300,000 Mitchell paid him that year (nearly $1.2 million in current figures). He recounted Mitchell’s service in World War II, his self-made success on Wall Street and reluctance to become attorney general. “Mr. Mitchell didn’t want that eminence, didn’t want that lofty position,” Fleming told the jurors, “but took it for his friend and for his president.” Fleming also heaped doubt on the coming parade of government witnesses—Sears, Richardson, Dean—saying each was buying leniency with his testimony.
Then Fleming executed his masterstroke, a bit of rhetorical genius that cleverly, and decisively, recast the charges against his client. “That’s a big number,” Fleming acknowledged of the $200,000 in cash Rayhill had repeatedly mentioned; but where his own client was concerned, Fleming said, “it didn’t go to him…in four years of public service John Mitchell never got a red cent himself.” Moreover, Vesco’s money represented only a tiny fraction of the $60 million Stans and company had raised—less than one-third of 1 percent of all of the money contributed to reelect the president:
It is as if, in an election costing $100,000, Vesco had contributed $300. It is as if, in an election costing $100, Vesco had contributed, I think, thirty-three cents. So we just ask you to think of $200,000, which didn’t go to him but went into a campaign fund…whether, in essence, John Mitchell would sell his life for thirty-three cents.52
The prosecutors’ problems continued with their first witness. Harry Sears spent seven days on the stand, recounting his wretched existence as Vesco’s emissary to Mitchell. But which side benefited more from Sears’s testimony was often difficult to discern. Again and again, CBS News correspondent Robert Schakne reported, Sears “found it hard to recollect some important events; and on cross-examination, he seemed delighted to defend his old friend, John Mitchell.”53
“And so it went for the prosecution—one step forward and another backward,” Time reported. William Casey reprised his drinks at Mitchell’s Watergate apartment, the fateful call he received from Mitchell on April 10, 1972, his own meetings with Sears. Like Sears, however, William Casey proved a thorny government witness. Where prosecutor Wing wanted to prove that Mitchell had improperly passed to Sears one of Casey’s internal memos, Casey steadfastly maintained the memo in question always remained in his, or his trusted assistant’s, hands.54
Central to the case against Mitchell was the charge that he had sought to delay or quash subpoenas against Vesco and his ICC employees, and that to enlist Casey’s assistance in this effort, Mitchell had used John Dean as his agent. Consequently, the prosecutors realized that where Casey’s testimony had failed to establish Mitchell’s criminal intent, Dean had to hit the mark. They had little to fear on that score; unlike their previous witnesses, Dean’s motive to testify against Mitchell was unquestionable, almost palpable. For where Sears enjoyed immunity from prosecution, and Casey was never charged with wrongdoing, Dean was awaiting sentencing in the Watergate case, and—as the youthful former White House counsel openly admitted during cross-examination—he hoped his testimony at the Mitchell-Stans trial would earn him a lenient sentence. The stage was set, then, for the government’s star witness to take the stand.
Mitchell savored what happened next for the rest of his life. “Peter Fleming got Dean on the witness stand and destroyed him,” Mitchell exulted to an interviewer in August 1988, ninety days before his death. “Absolutely destroyed him.”55
Indeed, after the Mitchell-Stans jurors rendered their verdict, a determined effort was made to minimize Dean’s importance to the outcome, and for obvious reasons: Those most heavily invested in his success as a witness in the Watergate case—Dean himself, the prosecutors, the media—could ill afford for Richard Nixon’s chief accuser to be branded unbelievable in a trial as important and high-profile as Mitchell-Stans. Dean grumbled after the verdict that he didn’t know anything about the case and couldn’t understand why anyone considered him its star witness. Wing tried to reassure Dean, only thirty-five, that the unsophisticated jury was the problem, not his poor performance under Fleming’s withering cross; the jurors, Wing said, were used to policemen and judges receiving cash under the table, and were probably impressed that Mitchell and Stans had never taken Vesco’s money for their own use.56
“Dean was definitely not the central witness,” Wing recalled; Rayhill remembered Dean’s role as “small.” However, in the days leading up to Dean’s testimony, Wing and Rayhill sang a different tune. So crucial was Dean to their case that they delayed opening the trial because of uncertainty over whether Dean would be permitted to testify about his taped conversations with Nixon. The prosecutors even told Judge Gagliardi: “We cannot risk trying this case without Mr. Dean’s testimony.”57
First the prosecutors had Dean recap his brief government career: his time as minority counsel to the House Judiciary Committee in the 1960s, his service under Mitchell at Justice, and his transfer, in July 1970, to the White House. Then they led him through his phone calls and meetings with Mitchell in the summer and fall of 1972, building their case that Mitchell used Dean as his instrument to block the SEC’s subpoenas. To buttress that notion, Rayhill asked the witness if he was known as “Mitchell’s man in the White House.” “Yes, I was,” Dean answered, pliant.58
Then it was Fleming’s turn. His performance later became—literally—a model used in legal textbooks. To cross-examine Dean, excerpts from his tape-recorded conversations with Nixon were read aloud—the first time contents of the Nixon tapes were made public (the White House’s edited transcripts were released a month later, and are still circulating in paperback form). Given the widespread—and erroneous—belief that the tapes completely vindicated Dean’s memory and testimony in the Watergate case, it is ironic that the tapes were first used to discredit him.59
Exce
rpts from Dean’s taped meetings with Nixon also undermined the prosecution’s central thrusts. Wasn’t that Dean himself telling the president no one had done anything for Vesco? The disparities led even Judge Gagliardi to question, outside the jury’s presence, whether “something in those tapes may be inconsistent with something that [Dean] said on the stand.” Fleming also skillfully exploited the changes in Dean’s testimony, not only from grand jury to trial, but from day to day within the trial. To attack Dean’s character, Fleming posed a series of razor’s-edge questions—most of them stricken by Gagliardi—reprising allegations about Dean’s unethical conduct in private legal practice and embezzlement of campaign funds, his ownership of a Mercedes-Benz, and negotiations to write a book.60
The circumlocutory, evasive, often nonresponsive answers that had served Dean so well at the Senate Watergate hearings the previous summer found no quarter with Fleming. At one point the defense lawyer asked Dean if he had previously testified that a certain telephone call had taken place on December 8, 1972. “I did use that date, yes,” Dean answered. “Not ‘use that date,’” Fleming shot back. “You answered that that was the date.” “Yes, that’s correct,” Dean agreed. So accustomed had Dean grown to answering questions as he saw fit that Judge Gagliardi was forced—repeatedly—to admonish him, a distinction unique to Dean among the trial’s fifty-nine witnesses: “Mr. Dean, I don’t want to reprimand you again, sir.”61
The jurors took note. Interviewed after the trial, foreman Sybil Kucharski said the jury found Dean “often unbelievable,” in contrast with those “credible men,” Mitchell and Stans. “We didn’t feel that they had any reason to lie or to perjure themselves,” she said. “John Dean we didn’t feel the same way about.” Even a dispirited John Wing acknowledged after the trial “these twelve people didn’t believe [Dean] beyond a reasonable doubt as to some things he said about facts in this case.”62
By the time the government rested, few thought Wing and Rayhill had established Mitchell’s guilt beyond reasonable doubt. “Every prosecution witness who takes the stand somehow turns into a defense witness,” reported Newsday’s Joe Treen. Winning the case now depended on the prosecutors’ ability to rattle defense witnesses—primary among them, Mitchell himself. To the reporters who crowded him each night, Fleming kept coy about whether his client would testify in his own defense. “It’s a surprise,” he would say. Years later, he acknowledged otherwise: “[Mitchell] was going to testify and we always knew he was going to testify.” Fleming was a strong believer in defendants taking the stand. “That’s all a jury wants to hear, is a defendant’s testimony,” he said.63
Getting the client to cooperate was another matter. It was as if Mitchell’s original slowness to acknowledge his peril was followed by a stubborn refusal to prepare for his testimony in any normal sense; his confidence in his own legal acumen, the foundation of his life for four decades, never buckled. Two days before Mitchell was to testify, Fleming tried to go over the areas they would address on direct examination. “I ask him about four questions,” Fleming recalled, “and he says, ‘Ah, I’m tired of this.’ So I say, ‘Fuck it, we’ll do it tomorrow.’ He comes down Tuesday. I ask three questions and he says, ‘Forget it. I’ll just testify.’” Fleming couldn’t believe Mitchell’s insouciance. “Fuck you!” he spat. “We’ve been breaking our ass for you for ten weeks with this trial, and you can’t even let us ask you questions to prepare?” “Oh, get out of here,” Mitchell replied. Stymied by his own client, Fleming drew up on yellow legal paper a two-and-a-half-page outline of topics he planned to cover on direct examination, and had it delivered to Mitchell the night before he was to take the stand. The next morning, Fleming picked Mitchell up and headed for Foley Square. Inside the car, Mitchell handed back the outline and said simply: “Let’s go.”64
Shortly after 2:00 p.m. on April 10, 1974, Mitchell took the stand, the first attorney general in such straits in a half century. Fleming began by having Mitchell recap his life story, especially his reluctance to join the Nixon administration. “There were [sic] a series of re-approaches,” Mitchell cracked, “and finally, after the twenty-fifth or twenty-sixth—I forget how many there were—I relented and accepted his appointment.” Fleming also emphasized Mitchell’s financial sacrifice, contrasting the attorney general’s salary—initially $42,500—with what Mitchell had earned the year prior to his appointment (“somewheres in excess of $300,000”).65
Soon it was the prosecution’s turn. “Mr. Mitchell,” Wing began, “how did it come about that Vesco’s $200,000 cash contribution was listed under your initials on April 10?” “I have no idea, Mr. Wing,” Mitchell replied. When did you first learn of it? About the time Stans testified before the grand jury in 1973, Mitchell answered. Was it about that time or precisely that day? “In my recollection,” Mitchell said, “it was precisely that day, but Mr. Stans told me that he had advised me a few weeks in advance of that; if he did, it made no impression on me. But it certainly came home to me after he had testified up here in March of ’73 before the grand jury, and we had lunch and he told me about it.” In this first confrontation, the prosecutor flailed. Wing repeatedly asked if Mitchell was sure of his version of events, and Mitchell held fast; when Wing revisited Mitchell’s grand jury testimony on the matter, it matched what he was saying now.
When Wing next rolled out Mitchell’s grand jury testimony, it was designed to show Mitchell was either mistaken or lying when he claimed, at trial, that he had never reviewed his logs prior to his grand jury appearance, to check when he had met with Sears. “I have looked at my diaries,” Wing quoted Mitchell as saying in his first grand jury appearance, “with respect to the meetings I had with Sears…” “Now is that a fact, Mr. Mitchell,” asked Wing, “that you did review your logs, looking for meetings with Mr. Sears during the—” Mitchell cut him off. “Mr. Wing, you have mixed up the diaries with the logs. That [grand jury testimony] refers to the diaries, which are personal appointments.” Now the old Wall Street legend was schooling the younger lawyer. You weren’t referring to your logs at that time? Wing asked. “I said ‘diaries,’” Mitchell replied tartly.66
Since Mitchell’s grand jury appearances consumed hundreds of pages, it was inevitable that discrepancies would arise between his testimony in that forum and at trial. But Wing never got Mitchell anywhere close to admitting he was party to corruption.
WING: It never occurred to you that Mr. Vesco was looking for anything as a result of giving a sum of money in that amount, is that correct, Mr. Mitchell?
MITCHELL: It never occurred to me in any form, shape or manner, because if Mr. Vesco in my opinion thought he was going to get a favor, he would have been looking for something more than a meeting with the chairman of the Securities and Exchange Commission, just a meeting.
WING: […] Do you think, Mr. Mitchell, that Casey’s treatment of this particular case would be somewhat affected by the fact that you were the one calling up asking for him to meet with Sears?
MITCHELL: No, Mr. Wing, I wouldn’t flatter myself to that extent.67
Nothing shook Mitchell from his account of the Swiss jailing incident, nor elicited from him, on the Beirut bank episode, anything more than an acknowledgment of forgetfulness where the meetings with Mark Felt were concerned—acknowledgments Fleming had already wisely elicited on direct examination. Nor did Wing budge Mitchell on the contents of his meetings with Harry Sears, or on whether Mitchell had ever given Sears, or received from him, any documents. Similarly, Mitchell held fast in his denials that he discussed Vesco with Dan Hofgren, or did anything to delay or quash the SEC’s subpoenas.
Frustrating Wing’s task was Mitchell’s masterful facility, honed over a lifetime of practice, with the peculiar language of the law—and, too, his instinct for knowing when to abandon it. To one repetitive thrust he exasperatedly replied: “Mr. Wing, I have answered that three different ways. I will try it again.” At another point, when Wing referred to his interview of Mitchell in the latter�
��s law office in February 1973, Mitchell corrected his questioner: “Mr. Wing, I think you took very bad notes at that meeting.” Asked if he was “responsible in part” for Casey’s nomination as SEC chairman, Mitchell turned Socratic: “When you say ‘in part,’ would you describe it for me, or would you like me to describe my part in connection with it?”68
Among those who came away from Mitchell’s testimony with newfound respect for him were his tormentors, the prosecutors. “I was impressed with Mitchell, the way he dealt with the case,” Wing recalled. Rayhill agreed, calling Mitchell “a stand-up guy” and a “very strong human being.” Rayhill said he came to believe Mitchell genuinely “did not feel he had done anything wrong…in connection with the Vesco investigation…that he thought he was doing what an average American would do.”69
For Fleming’s summation, Mitchell angled himself toward the jurors, one hand cupping his chin, the other draped over his chair. In a five-hour closing argument, Fleming derided the government’s case as “a joke,” “a dream,” “a creation,” “a fairy tale,” “an Easter egg hunt,” “Christmastime,” “Alice in Wonderland,” “Wizard of Oz,” “Mulligan stew,” “mush,” and “chicken hash.”
Fleming choked back tears extolling his client and assailing Mitchell’s accusers. “Had Harry Sears not sought the golden calf of Robert Vesco,” he said, “none of us would be here.” The prosecutors “bought [Sears’s] testimony. He’s bought and paid for. You measure it…. Is [John] Dean Saint Paul on the road to Damascus, who is struck by the lightning of God and becomes a Christian? Or is John Dean struck by the letter of [Watergate burglar] James McCord to Judge Sirica?” He said the case boiled down to one simple question: Who do you believe? 70
