by James Rosen
And, as Haldeman predicted, Mitchell’s departure did nothing to slow the Watergate investigation. On July 5, 1972, two FBI agents appeared at the Mudge Rose offices to interrogate the former attorney general. After several parries—including a few answers at slight variance with his later testimony—Mitchell joked he hoped the interview would end soon “so that we could get some work done.” But the session didn’t end without a serious misstep. Asked what he knew about the origins of the break-in, Mitchell replied he had “no knowledge…other than what he has read in newspaper accounts” of the incident—a remark that later formed the basis of Count Three in his indictment.6
The agents’ questions showed the FBI was on to Gordon Liddy. There Nixon’s men hoped, in vain, the investigation would rest; the moment authorities ascended up the next rung of the CRP ladder, to Jeb Magruder, spelled real trouble, for it was Magruder who represented, as an observer later described him, “the key link between the political figures such as Haldeman and Mitchell and the operational types, notably G. Gordon Liddy and E. Howard Hunt.” Within a month of the arrests, John Dean had privately begun clamoring for Magruder to be served up to the U.S. attorney. “Dean feels that [the authorities] are going to move on Magruder and that the only thing we can do is have him take the rap that they’ll hit him with,” Haldeman recorded in his diary July 18.7
Around this time, Magruder later claimed, he approached Mitchell and offered to “take the heat”—tell the prosecutors the whole thing had been his idea—but Mitchell supposedly rejected the idea. Magruder recognized that if investigators ascended any higher than Liddy, they would scarcely pause to dwell on Magruder before moving to Mitchell himself—a development that would leave the scandal at the doorstep of the president himself. The same day the FBI quizzed Mitchell, Magruder made his first appearance before the grand jury. “Don’t volunteer,” the former attorney general counseled Magruder. The session proved brief and harmless: Neither the prosecutors nor the grand jurors had a firm grasp of the case, and they excused the witness after a short series of questions about CRP’s organizational structure. The picture changed considerably by mid-August, when Earl Silbert officially informed Magruder he was a “target” of the investigation, and summoned him for a second grand jury appearance on August 16.8
On August 14 Mitchell returned to the Oval Office for the first time since the Watergate arrests, attending a meeting with the president, Haldeman, and Mitchell’s successor at CRP, former congressman Clark MacGregor. Nixon shrewdly reckoned that if the imminent indictments in the burglary and wiretapping of the DNC did not extend beyond the five arrested men to “others like Magruder, Sloan and so forth,” the scandal would live on. “There will be immediately an outcry for: ‘What are the facts with regard to the others? What are they covering up?’” “I think we have to be very careful to know what the facts are going to be and what’s going to come out of that grand jury,” Mitchell advised. This was not what Nixon had in mind at all. He proposed “to say Mitchell has hired this high-powered firm of investigators…. These grand jury proceedings take a long time. We want to know what the facts are.” A Mitchell Report! This would ensure they “cut the losses on the damn thing,” as Nixon put it.9
Given his recurring doubts about Mitchell’s culpability, the president’s proposal for a Mitchell Report served only one purpose: To set Mitchell up to take ultimate blame in the likely event his “report” was contradicted by the grand jury. To agree to this idea Mitchell was far too smart; and he cannot have left this meeting—his last in the Oval Office—under any delusion that his friend, the president, still had his best interests at heart.
At 4:30 that afternoon, Mitchell welcomed Magruder into his office at Mudge Rose. Two weeks earlier, when Mitchell had resigned from CRP, the younger man was moved to tears, and volunteered to leave, too. Now Magruder had a story to share: the false one he had been concocting for the grand jury. He later wrote that the basic ingredients of the cover story were cooked up in a series of meetings in Mitchell’s law office in the month following the arrests. Magruder’s descriptions of these meetings—unlike his accounts of most other points in the Watergate saga—rang true, for they comported with what the Nixon tapes later showed about the cover-up sessions in the Oval Office and elsewhere. In all cases, the conspirators maintained a refined, outwardly cool posture, speaking in vague, distinctly bureaucratic, even corporate, terms, unable to admit, even to each other, that they were engaged in a criminal conspiracy.10
Now, Magruder sat in Mitchell’s office for a half hour and rehearsed his false story about Sloan giving Liddy $250,000 for convention security expenses. Though no reference to this meeting appeared in Mitchell’s indictment, the prosecutors cross-examined him harshly on it, and the quiet encouragement he gave Magruder during his recitation of planned perjury bespoke Mitchell’s complicity in the cover-up. In his Senate testimony, Mitchell effectively admitted guilt on this count.
SENATOR ERVIN: You were also informed by Magruder that he, Magruder, was prepared to commit perjury when he went before the grand jury in August [1972] rather than to reveal what he knew about these matters?
MITCHELL: That was correct, sir.
ERVIN: Now did you agree that that was the proper course of action to take?
MITCHELL: It was a very expedient one, senator. At that time in the campaign, so close to the election, we certainly were not volunteering any information.11
Mitchell still sought to protect himself against future indictment, distinguishing between knowledge of perjury and subornation of it: “Magruder would seek an audience to review his story that he was going to tell, rather than somebody was trying to induce him to do so.”
But why did Mitchell participate in the cover-up at all, even to this limited extent, if he did not order the break-in? Answering this question is central to understanding Mitchell’s conduct in Watergate, and his ultimate fate. Mitchell’s paramount concern in the affair, aside from Nixon’s reelection, was that the three meetings at which the Gemstone plan was presented to him should never be disclosed—even though he had rejected Liddy’s plans all three times. Who, after all, would believe that the attorney general who had publicly clamored for expanded wiretapping powers would have privately rejected the bugging of Democratic headquarters?
In preparing his perjury, Magruder received even greater assistance from John Dean. On August 15, one day before Magruder’s return to the grand jury, the White House counsel spiritedly cross-examined the CRP deputy for two hours, probing for weaknesses in his cover story.
Of all the president’s men, Dean enjoyed by far the most thorough knowledge of where the authorities stood in their investigation. “I was totally aware of what the Bureau was doing at all times,” he once boasted. “I was totally aware of what the grand jury was doing.” How? Preying on the misguided solicitousness of L. Patrick Gray III, the acting FBI director, Dean between June 30 and October 12 obtained eighty-three FBI investigation reports, along with two thick folders containing Bureau teletypes, raw interview summaries, known as “302s,” and other documents compiled by the Washington Field Office.
Here again, Dean cast himself as merely carrying out Mitchell’s orders; accordingly, as the twelfth overt act in the U.S. v. Mitchell indictment, the WSPF prosecutors accused Mitchell of having “advised” Dean, at some unspecified point in “mid-July” 1972, to obtain the FBI reports. Once again, Mitchell denied the charge, but was convicted. Yet this allegation, too, was based on constantly shifting testimony that the special prosecutors’ own records showed they had good reason to disbelieve. In his executive session testimony before the Senate, previously unpublished, Dean claimed it was Mardian who was “pushing so hard to see the 302s,” and that Mitchell merely “agreed” with him. Eleven days later, in public session, Dean claimed the idea came “initially…from Mr. Mitchell.” Finally, under cross-examination at U.S. v. Mitchell, the witness was forced to admit that when he had appeared before the grand jury, in November 1973,
he had not only cited Mardian as the instigator, but—Gordon Liddy! Testimony by other witnesses—Kleindienst, Gray, and Petersen before the Senate, Liddy in his memoir—showed Dean asked senior DOJ officials for access to the FBI records as early as June 19.
In fact, Dean needed no prodding from others to recognize the value of the FBI reports in his successful effort to monitor the Bureau’s investigation. Among the exhibits Dean himself turned over to the WSPF prosecutors—previously unpublished and never made available to defense counsel at U.S. v. Mitchell—was a memorandum he had written back in September 1970 to then deputy attorney general Kleindienst. The White House counsel had inquired about news reports suggesting the FBI was investigating Bebe Rebozo, the president’s friend. “We ought to have as much information concerning this situation as possible,” Dean wrote, before concluding: “Could you discreetly obtain the FBI report connected with the investigation for my review? A little precautionary work often avoids getting caught flat-footed.”
Dean’s fleetness of foot served Magruder well. In his second appearance before the grand jury, on August 16, the prosecutors swallowed his cover story—but warily. The next day, Dean, after consulting with Assistant Attorney General Petersen, phoned Magruder with the good news: He had survived the interrogation “by the skin of his teeth” and would not be indicted. Magruder celebrated by repairing with Fred LaRue to Billy Martin’s, a legendary Georgetown pub, where the two got “roaring drunk.”12
On September 14, nine days after enduring a harrowing deposition at the hands of the era’s premier trial lawyer, Edward Bennett Williams—the power broker who represented both the Democratic Party and the Washington Post—it was Mitchell’s turn to appear before the grand jury. There to greet him was Earl Silbert, the assistant U.S. attorney whose certificate of office bore Mitchell’s signature. Though the proceedings were theoretically to be held in strictest secrecy, leaks were commonplace; Mitchell was reported to have denied any prior knowledge of Gordon Liddy’s covert activities. One exchange became public in 1974—when it formed the basis of a perjury charge.
QUESTION: Was there any program, to your knowledge, at the committee, or any effort made to organize a covert or clandestine operation, basically, you know, illegal in nature, to get information or to gather intelligence about the activities of any of the Democratic candidates for public office or any activities of the Democratic Party?
MITCHELL: Certainly not, because if there had been, I would have shut it off as being entirely non-productive at that particular time of the campaign.
QUESTION: Did you have any knowledge, direct or indirect, of Mr. Liddy’s activities with respect to any intelligence-gathering effort with respect to the activities of the Democratic candidates or its party?
MITCHELL: None whatsoever, because I didn’t know there was anything going on of that nature, if there was. So I wouldn’t anticipate having heard anything about his activities in connection with it.
Technically, Mitchell’s answers here—calculated to prevent disclosure of the Gemstone meetings—were true. After he rejected Liddy’s plan for the third time, at Key Biscayne, his dealings with Liddy were extremely limited. The Gemstone pitches had, of course, contemplated illegal plans to gather intelligence about the Democrats; but having turned those schemes down, Mitchell had no knowledge such a “program” or “effort” was thereafter undertaken. In Mitchell’s eyes, the pitch for the project should not be mistaken for the actual project. At his trial two years later, Mitchell used this very line of defense.
Likewise, Mitchell’s answer to the second question was predicated on the view that since he had not bothered, after Key Biscayne, to keep abreast of Liddy’s activities, covert or otherwise, he could truthfully swear he had no “knowledge” of the intelligence-gathering “effort” Liddy thereafter mounted. To conclude Mitchell lied in these answers required believing either that he actually did approve Liddy’s plans—a claim belied by the testimony of Fred LaRue—or that notwithstanding his rejection of those plans, Mitchell still reviewed the fruits of the DNC surveillance, a proposition that defied logic: Who would calmly digest data from a wiretap he quashed? But the jury in U.S. v. Mitchell entertained no such fine distinctions when it convicted the former attorney general of perjury.13
For the moment, however, the dam held. “Mitchell’s public image was cold and severe,” Silbert recalled in 1992. “But in front of the grand jury he was warm and charming, and seemed to be very cooperative.” The day after his appearance, the grand jury, as expected, handed down indictments against Liddy, Hunt, and the five burglars. At the White House and CRP, there was elation that the criminal charges were confined to the operational figures. That evening, Nixon welcomed John Dean into the Oval Office for the first of their infamous recorded meetings about Watergate. Nixon sneered he had never used the power of the Justice Department against his enemies, “all those who tried to do us in,” during the last three years—Mitchell’s tenure as attorney general—but “things are going to change now.” “What an exciting prospect,” Dean replied.
The vengeful jubilation was interrupted by a phone call from the very man who had prevented Nixon from using the power of Justice against his enemies: John Mitchell. “Are you still alive?” Nixon joked into the receiver. He tried to buck up his old law partner, telling Mitchell not to let Watergate keep him from “concentrating on the big game.” This was one of those side issues, Nixon said, where a month later everyone would wonder what all the shooting was about. “Get a good night’s sleep,” the president ordered, adding, “And don’t bug anybody without asking me, okay?”14
Restful nights were not in Mitchell’s future. Shortly before midnight on September 28, he was jolted out of a sound sleep in Room 710 of the Essex House, on New York’s Central Park South, by the shrill clanging of the telephone. Groggily he picked up the receiver to hear a young man identify himself as Carl Bernstein, reporter for the Washington Post. After apologizing for calling so late, Bernstein announced that the Post’s morning edition, due to hit newsstands in a few hours, would be carrying a story alleging Mitchell had maintained an illegal slush fund used to spy on Nixon’s political opponents. “JEEEEEEESUS!” Mitchell gasped, periodically repeating his astonished blasphemy as Bernstein read aloud the story’s opening paragraphs.
John N. Mitchell, while serving as U.S. attorney general, personally controlled a secret Republican fund that was used to gather information about the Democrats, according to sources involved in the Watergate investigation.
Beginning in the spring of 1971, almost a year before he left the Justice Department to become President Nixon’s campaign manager on March 1, Mitchell personally approved withdrawals from the fund, several reliable sources have told the Washington Post.
Those sources have provided almost identical, detailed accounts of Mitchell’s role as comptroller of the secret intelligence fund and its fluctuating $350,000–$700,000 balance.
Mitchell unleashed a torrent of venom on his cheeky young interlocutor. “All that crap, you’re putting it in the paper? It’s all been denied.” Then Mitchell blasted the Post’s imperious, socially prominent publisher. “Katie Graham’s gonna get her tit caught in a big, fat wringer if that’s published. Good Christ! That’s the most sickening thing I ever heard.” Bernstein kept pressing, in the manner of the reluctant, yet dutiful messenger—“I’d like to ask you a few questions about the specifics”—which only made Mitchell angrier. “Call my law office in the morning,” he snapped before hanging up.
Adding to the insult of Bernstein’s late-night intrusion was the fact that the Post’s story was dead wrong. Clearly the Republicans maintained a fund to bankroll the activities of Ulasewicz and Donald Segretti, head of CRP’s “dirty tricks” campaign; and it was also true that Mitchell, while serving as attorney general in 1971, had acted as a de facto campaign manager for the nascent reelection operation, authorizing large expenditures and making executive decisions about the location of the ’72 convention,
state chairmen for the Nixon-Agnew ticket, and the like. But Mitchell never knew about, let alone “controlled,” any secret fund used to finance “intelligence operations” against the Democrats.
Mitchell’s scrape with Bernstein underscored the disturbing reality that, notwithstanding the limited scope of the indictments, the Watergate story was beginning to spiral out of control. A Harris poll released October 19 found more than 60 percent of voters dismissing Watergate as “mostly politics” and disbelieving charges Nixon was involved. But as Election Day drew nearer, the three television networks began joining the Post and the Times in heavy coverage of the story, specifically of the charges swirling around Mitchell. Despite the mounting turmoil, Nixon swept to reelection by one of the largest landslides in American history, capturing over 60 percent of 78 million votes cast and the electoral votes of every state save Massachusetts.15
