The Strong Man: John Mitchell and the Secrets of Watergate
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Most historians have ignored U.S. v. Mitchell, dismissing it as an anticlimactic coda to the far more urgent and dramatic story of Nixon’s resignation and pardon. Only in the early 1990s did a handful of scholars begin to notice the changes, subtle and astonishing, that the chief accusers of Nixon and Mitchell wove into their stories in the different forums. Even then, no extensive account of U.S. v. Mitchell, a kind of Nuremberg trial for the Vietnam/Watergate era, has ever been published.
Not surprisingly, little attention was paid to the flurry of legal motions the former attorney general filed in late 1974: to dismiss his indictment; to disqualify Judge Sirica for bias; to relocate the trial to a different venue; to sever Mitchell’s case from the others’ to challenge the admissibility of Nixon’s tapes; to correct errors in the tape transcripts; and, most notably, to halt the trial so Nixon’s deposition could be taken—all denied by Sirica. Unseen outside the confines of federal district court, the Mitchell motions revealed the tenacity with which the former attorney general fought, in vain, for his freedom.
Most curious was Mitchell’s use of the phrase “forced resignation.” In implying Nixon’s wounds were other than self-inflicted, the motion suggested, at least on the surface of things, that the former attorney general remained unwaveringly loyal to his old law partner. Yet elsewhere Mitchell’s court filings betrayed a surprising willingness to trade on the widely presumed guilt of the ex-president for whatever legal advantage it might bring. “By accepting the pardon,” Mitchell’s defense team argued on September 12, four days after President Ford granted it, “Richard Nixon has unavoidably implied that he had engaged in certain illegal acts.” Mitchell even cited the statement Nixon issued in accepting the pardon.
I was wrong in not acting more decisively and more forthrightly in dealing with Watergate, particularly when it reached the stage of judicial proceedings…. I know many fair-minded people believe that my motivations and actions in the Watergate affair were intentionally self-serving and illegal. I now understand how my own mistakes and misjudgments have contributed to that belief and seemed to support it.
On December 4, with the trial under way, Mitchell escalated his attacks on Nixon—muted, since they were buried in legal briefs, but attacks nonetheless—to their highest pitch. The former attorney general requested that Sirica adjourn the proceedings for a month, until January 6, 1975. That was the date by which a court-appointed panel of physicians had predicted the ex-president, bedridden from a nearly fatal case of phlebitis, would be well enough to withstand deposition. First the December 4 motion recited a lengthy list of events on which Nixon’s testimony would be relevant to the defense: the “smoking gun” and “cancer on the presidency” meetings, among others. Then came the assault, the closest John Mitchell ever came to testifying against Richard Nixon.
Since the Government has contended, and the evidence now shows, that Mr. Nixon was intimately involved in the allegedly illegal activities that form the basis of the charges against the defendants, and since Mr. Nixon, a named co-conspirator, is possessed with a great deal of information material to this case…his testimony must be published to the jury in order to prevent a failure of justice…. The evidence shows that, rather than participating in a conspiracy with Mr. Mitchell, Mr. Nixon may have participated in a conspiracy which carefully excluded Mr. Mitchell’s membership, and which was designed to have an extremely adverse effect on Mr. Mitchell’s well-being. Mr. Nixon’s testimony is, therefore, essential to support Mr. Mitchell’s contention that he was a victim or object of the conspiracy and not a member of it.
Here, then, at last, was—Mitchell’s revenge! Here was evidence Mitchell understood the White House tapes’ central revelation, which was not legal in nature, but personal: that Nixon turned on Mitchell so easily, so cruelly set up his old law partner and campaign manager, the man he considered most responsible for his election to the presidency. “Why don’t you just gear it up?” Nixon had responded, excited when Ehrlichman offered to wire his office for the tête-à-tête with Mitchell. “Do you have a way to gear it up? Well, go gear it!” Here, in the December 4 motion, was the clearest sign that Mitchell recognized Nixon’s centrality in the White House effort to frame him, that although the ex-president was badly misinformed by aides, he was also undeniably capable, under the right circumstances, of destroying the man who had made him.8
On October 1, 1974, Sirica banged his gavel to open the trial. Over the preceding two months, he had, with metronomic regularity, shot down every defense motion he saw. “The publicity has already died down,” Sirica said on August 19, rejecting calls for a delay or change in venue. The firestorm that erupted twenty days later, with Nixon’s pardon, did nothing to change his mind. To a plea for more time to study Nixon’s tapes—to which even the WSPF prosecutors agreed—Sirica snapped: “I’m not impressed. I don’t think it’s going to take too long to listen to those tapes.” On that issue, however, Sirica eventually yielded, bowing to a unanimous appellate court and giving the defendants another month to prepare.
By the time it started, the trial, expected to last through Christmas, was reduced to five defendants. That June, Charles Colson pleaded guilty to one count of plotting to defame Daniel Ellsberg and his lawyers; as part of the deal, Colson was to testify in Mitchell and related proceedings. More curiously, the case of Gordon Strachan was severed from the others’—at the government’s request. The special prosecutors concluded that the former Haldeman aide had lied to the grand jury and to the Ervin committee, among other crimes, but that his unusual immunity deal, negotiated with the original prosecutors, made his conviction unlikely. The WSPF had other good reasons to leave Strachan alone. “Strachan’s testimony so far seems on balance to be more damaging than helpful in proving charges against target defendants Mitchell and Haldeman,” wrote WSPF lawyer Gerald Goldman, in a previously unpublished memorandum, in September 1973. “Strachan significantly discredits Magruder’s trustworthiness or the fundamental question of whether Mitchell in fact gave his approval at Key Biscayne.” The Goldman memo is another “smoking gun”: irrefutable evidence the WSPF knew Magruder’s testimony against Mitchell on the authorization of the break-in was false, but went ahead and used it anyway.9
Richard Ben-Veniste delivered the government’s opening statement. After noting that the indictment in the case did not charge anyone with planning or participating in the Watergate break-in, he proceeded to give an account of the operation’s origins that squarely blamed Mitchell for its authorization. Recapping the three Gemstone meetings, Ben-Veniste said Mitchell had “reject[ed]” Liddy’s plan the first time, “deferred” consideration the second time (“still too much money,” Ben-Veniste said), and “okayed” it the third time, in Key Biscayne, “after some discussion.”
From this Mitchell could easily tell how the rest of the play would unfold. To make its case, the government would blithely ignore inconvenient testimony from its own witnesses, such as Magruder, who said Mitchell’s opposition to the second Liddy plan was based not on cost, but on the stated view that the plan was “still too broad in scope” or LaRue, whose unwavering testimony about Key Biscayne exonerated Mitchell of having “okayed” the Gemstone plan there. As for the doomed June 17 break-in, that came about, Ben-Veniste said, because Mitchell had been unhappy with the results of the DNC wiretaps and therefore “another entry would have to be made.” Of the cross-continental scheming that sent Liddy racing out to Burning Tree, Ben-Veniste, keenly aware of the timeline problems, reverted to vagueness and passive tense, saying only that the discussions “resulted in Liddy being dispatched.”
When he came to the destruction of evidence, Ben-Veniste told a flat-out lie. This concerned the materials in Howard Hunt’s safe, which John Dean and his deputy, Fred Fielding, had cleaned out two days after the arrests. “So some material went directly to the [FBI] director,” Ben-Veniste said, “and the rest of it went to the FBI agents.” This assertion was, as the prosecutor knew, flatly untrue: It omitte
d the three notebooks Hunt had kept, chronicling Gemstone’s crablike progress, and which Dean—only after completing his plea deal—had belatedly admitted destroying.
On it went: the evening session at Mitchell’s apartment, the “smoking gun” meeting, the appeals to CIA, the subornation of perjury, the payments of hush money and offers of executive clemency. At all points Ben-Veniste’s skewed version of history implicated the former attorney general above all others: It was Mitchell who hatched the plan to have CIA block the FBI investigation; Mitchell who told Dean to enlist Kalmbach and to get Haldeman’s and Ehrlichman’s approval; Mitchell who told Dean to utilize the White House fund; Mitchell who told LaRue to pay the final $75,000 to Hunt. Summing up, Ben-Veniste vowed the government would prove beyond reasonable doubt not only that Mitchell had committed all these crimes, but that he was driven by a powerful motive to do so: his desire to “suppress the fact that he was aware of, and indeed authorized, Liddy’s Gemstone plan.”
Bill Hundley waived his opening statement. On the trial’s second day, Mardian’s lawyer, David Bress, unloaded on Jeb Magruder, “the confessed perjurer.” The defense strategies of Mardian and Mitchell both required exposing the falsity of Magruder’s testimony on Burning Tree: the repeated changes in his story as to what time he learned about the arrests, and his claim that Mardian, acting on Mitchell’s orders, had called Liddy and dispatched him to find Attorney General Kleindienst. With Liddy silent in prison, his memoir six years away from publication, the truth of the matter—that it was neither Mitchell nor Mardian who gave Liddy his orders that morning, but Magruder himself—could only be established by impeaching Magruder’s credibility and timeline of events. Bress told the jury it was “not physically possible” for Mardian to have made the call to Liddy, because by the time Mitchell and his entourage in California first heard about the break-in, Liddy “had already been to see” Kleindienst at Burning Tree.
Finally, on the fourth day, with opening statements concluded, Hundley moved anew for a separate trial. The other defendants were clearly mounting defenses “legally antagonistic” to Mitchell, who was bound to “catch a lot of fall-out” along the way, Hundley said. A separate trial would also better enable Mitchell to “meet head-on” the charge that he authorized the Watergate operation and “establish who did it.” Sirica’s consideration consisted of two brusque words: “Motion denied.”
The trial moved to the government’s case, and the calling of the WSPF’s first witness: John Dean. As the thirty-six-year-old former White House counsel strode to the stand, ready to bear false witness against the man he once counted a mentor, he saw in Mitchell’s face no emotion or expression whatsoever; it was as if the two had never met.10
By 1970, the year before seniority made him the District of Columbia’s chief judge, John Sirica was reportedly the most reversed federal judge in Washington. That dubious achievement, along with his sloppy, biased conduct of U.S. v. Liddy, the original Watergate break-in trial, fueled Mitchell’s hopes for securing an acquittal on appeal.
At the outset of the Liddy trial, Sirica ordered sealed a portion of the record showing he had, through staggering incompetence, allowed on the jury a man who barely spoke English. The juror was dismissed only when marshals learned he had improperly communicated with his wife. Things only went downhill from there. Civil liberties advocates—hardly sympathetic to Gordon Liddy—winced when the judge, seeing the defendant conferring with his lawyer, Peter Maroulis, snapped that he was glad to see Maroulis “getting some good advice from [your] client, the former attorney.” Liddy had not yet been convicted, let alone disbarred.
Sirica’s conduct of U.S. v. Mitchell was no better. He approved the seating of a juror who had a close friend on the WSPF staff. Another juror, Marjorie Milbourn, told the judge that while the defendants may be innocent on legal grounds, “in moral terms, [their actions] might not have been everything that is acceptable.” Asked if she could still render a fair verdict, Milbourn conceded she could not “guarantee it.” Over defense objections, Sirica seated her on the jury; after the trial began, she wrote an admiring note to Leon Jaworski. A third juror admitted he had “probably” expressed an opinion about the guilt of the defendants, and that it varied from moment to moment.
“I can’t keep track of everything going on,” Sirica complained during the trial. Indeed: At various points, he forgot to excuse a witness; forgot key dates in the case’s chronology; permitted forms of cross-examination he later barred, without ever admitting error; proposed, unfathomably, that a witness be cross-examined outside the presence of the jury, then withdrew the idea; admitted he “maybe” allowed the prosecution to pose leading questions to a witness on redirect examination, a flagrant violation of courtroom procedure; admitted he “may” have improperly allowed the prosecution to make a closing argument to the jury during the questioning of a witness; admitted he “probably” gave the prosecution “too much latitude” in questioning a witness; admitted he couldn’t always discern the speakers on the Nixon tapes, the trial’s most important evidence; mocked Nixon from the bench; and shrugged “when you have a situation like we have, that has been highly publicized, you just can’t have a perfect trial.”
Most egregiously, Sirica bent the hearsay rules, even by the lax standards of conspiracy cases, to allow John Dean to relate to the jury what had been told him by individuals who were neither defendants in the case nor unindicted coconspirators. Sirica accepted the government’s novel contention that Dean’s discussions with these individuals, normally inadmissible in a court of law, were admissible in this case because the discussions had allegedly been “set in motion” by one of the defendants, Ehrlichman. David Bress, the former U.S. attorney representing Mardian, reeled from the implications. “I’ve just heard a new theory of exception to the hearsay rule,” he sneered. “The set-in-motion theory. I’ve never seen it in any law books. There is no law to support it. It is a violation of the hearsay rule.” Once again, Sirica disposed of the matter in two words: Let’s proceed.
The worst was still to come. On the trial’s eighteenth day, the seventh of Dean’s testimony, Ehrlichman’s defense attorney, William Frates, was completing his cross-examination. An accomplished verbal fencer with uncommon gifts for evasion, deflection, and filibuster, the “boyish-faced” witness had held up well under the onslaught, remaining “calm and unruffled,” an observer reported, bloodied more on “his character rather than his credibility.” He had help, of course: Unlike in the Vesco trial, where Judge Gagliardi had refused to let Dean get away with dodging questions, Sirica had freely allowed the witness to indulge his penchant for circumlocution and even offered the jury a generous endorsement of his candor (“He has told what he knows”).
Now, however, with the jury and witness excused for lunch, Sirica abruptly interrupted a dialogue with Frates, over a line of inquiry the lawyer was seeking permission to pursue with Dean, and began to attack the lead defendant. “Maybe I shouldn’t say what is in my mind,” Sirica said, in a fit of restraint he quickly overcame. “I will tell you what was in my mind.”
It is too bad that Mr. Mitchell didn’t say, “Throw them out of here, get them out fast,” and you wouldn’t even be in this courtroom today. It is too bad it didn’t happen that way. Anyway, it is not for me to say what should have been done. The jury hasn’t heard that and no harm can be done.
From the lips of the purportedly neutral umpire presiding over his trial, a defendant could scarcely imagine hearing a more prejudicial remark. Convinced he had just witnessed the crystalline example of reversible error he had been counting on Sirica to make all along, Hundley shrewdly said nothing; only after lunch did Mitchell’s lawyer rise to make “an objection in the record” to this shocking lapse in judicial propriety. Sirica seemed to anticipate the moment, immediately setting forth his defense for any appellate court to see. “Yes,” he said wearily, “it was out of the presence of the jury.”11
From lead prosecutor Jim Neal, at least, Mi
tchell knew better than to expect impartiality, and Neal’s grueling daylong cross-examination of the former attorney general lived up to all expectations. Looking back on the trial almost two decades later, Neal recalled Mitchell as “a thoroughly delightful man.” The two even had their photograph taken together during the trial, posing alongside a Tennessee ham; at bottom Mitchell inscribed: “Which one is the ham?” “I got along very well with John Mitchell,” Neal said. “He understood what my job was and, in a sense, he understood what his role was…. He knew that he was going to prison and he took it with grace and stoicism.”
By the time the former attorney general took the witness stand, on November 26, 1974, the first of the five defendants to do so, twenty-six Nixon tape recordings had been played for the jury. The tapes’ introduction into evidence was unprecedented in the annals of criminal law, for they raised thorny questions of foundation (were these the actual tapes or copies, and who would so vouch?); chain of custody (the WSPF had previously complained that tape logs were kept haphazardly by the Secret Service men responsible for them, including on scraps of brown paper bags); and basic constitutional fairness (Sirica had barred all efforts to secure testimony from Nixon, a key participant in the discussions; moreover, there was no way for defense counsel to cross-examine a tape recording, even though the tapes “spoke” to the jury as dramatically as any live witness).
Not until the trial’s sixth day, and its seventh tape, did the jury hear Mitchell’s voice; characteristically, it was the first heard to address Nixon as “Mr. President.” Bill Hundley worried about the unswerving deference Mitchell showed Nixon. The former attorney general had “insisted” on testifying—it had helped in the Vesco trial—but he was otherwise loath to discuss the case with his lawyer. As he had done in the Vesco case, Mitchell left the small matter of conferral with counsel for the morning of his appearance in the witness box. “Do you have any last-minute advice, coach?” Mitchell asked. “I said two things to him,” Hundley recalled.