by James Rosen
“Number one, don’t try to take on every government witness. And number two, and this is more important, I know you love Nixon, but when you’re up there just defend yourself. I’m not asking you to say anything bad about Nixon, just leave him out of it.” His testimony on direct was okay. Then it was Jim Neal’s turn…. Within ten minutes of cross-examination he had Mitchell eulogizing Nixon. The D.C. jury was ready to leap out of the box and strangle Mitchell. After we finished I was slouched in the back of his limo and Mitchell said, “What’s the matter with you, coach?” “You know what’s the matter. Within ten minutes, Neal had you eulogizing Nixon.” He said to me, “What difference does it make?” I laughed and said, “You’re probably right.”
“He was just saying, in essence: ‘There ain’t no way we’re going to win this trial; I might as well go down with my colors flying,’” Hundley said, years later, laughing.
Mitchell’s defense began with a cogent and impassioned statement by Hundley, in which he portrayed his client as the innocent victim of a White House conspiracy, led by Nixon, to make the former attorney general the fall guy in Watergate. Hundley conceded that his client had kept to himself what he knew about the White House horrors, but argued that that was not a crime. Mitchell, he said, had made “a conscious decision that he would not run to the police…[but] he did not perjure himself. He did not obstruct justice.”
At the close of the day’s testimony, Sirica dismissed the jury a few minutes early and, “with obvious skepticism,” went to work on Mitchell himself, declaring: “I have not yet, frankly, gotten satisfactory answers.” When Hundley objected to his client being interrogated outside the jury’s presence, the judge turned to Mitchell himself for support, as if they were uniquely accomplished brethren in the legal fraternity. “I think Mr. Mitchell will be the first one to agree with me, as a former attorney general, that every federal judge has the right, or any judge, if he has anything in his mind that has not been developed, or he has a question, as long as it doesn’t interfere with the defendant’s defense in the case—” “There is no question, Your honor,” Mitchell interjected agreeably, having little choice but to join Sirica in opposition to his own lawyer.
Although he framed his queries poorly, what Sirica searched for, in a half hour of questioning, was Mitchell’s explanation to a single question: Why had men like Fred LaRue kept coming back to the former attorney general, looking for money for the Watergate burglars, if CRP had no responsibility for the break-in and Mitchell himself had already rejected making any payments on those grounds? “I just can’t see there was any other obligation for [Dean and LaRue] to pay anything,” Sirica said. “I would like to be enlightened on that subject.” “I can’t enlighten you, Your Honor,” Mitchell replied. “I didn’t start it. I didn’t make the decision.” As for LaRue, Mitchell surmised he was simply “asking me for my advice as a friend.” Then, he gave a hint that there were better witnesses for Sirica to quiz: “Dean…had directed these operations during a long period of time—”
Neal leapt to his feet, “arms chopping the air,” angrily pointing at Mitchell. “Your Honor, there was testimony today that he started [the hush-money scheme].” The accusation drew Mitchell’s sharpest words of the trial. “Mr. Neal, that is about the third cheap shot you have had at me and I resent it. That was not the testimony…. You know very well that Mr. Kalmbach never mentioned me at all in connection with…the origin of this particular plan.”
On cross-examination, Neal pummeled the witness for sitting through the Gemstone pitches by Liddy, “a one-man crime wave,” and for failing to order his arrest. You were the highest law enforcement officer in the country? Neal asked. “Yes sir, that is correct,” Mitchell replied, poker-faced. Hadn’t Liddy’s first presentation included plans to kidnap radical leaders to Mexico? Mitchell questioned whether the court should “place the legal definition of kidnapping on it,” suggesting instead it was a matter of “segregating out radical leaders and keeping them from [their] activities.” Was it contemplated these radical leaders would agree to this segregation? Neal asked with undisguised sarcasm. “I wouldn’t presume so,” Mitchell answered. And hadn’t Liddy proposed to use prostitutes to compromise Democrats? “I don’t have a specific recollection of it,” Mitchell testified, “because we didn’t get into those details….” Hadn’t Mitchell based his rejection of Liddy’s plan on cost, not constitutionality? “That is not a fact,” Mitchell testified.
Then Neal moved to Count Three of the indictment, which charged Mitchell with lying to FBI agents when he claimed, in July 1972, that he had no knowledge of the Watergate break-in other than what he read in newspapers. “What I said was the materials that I had information of had been in the newspapers,” Mitchell testified. Did you hear the FBI agents testify that you did make that statement to them? Neal asked. Yes, Mitchell said, he had heard one of the agents so testify. And he is not telling the truth? “In my opinion, no.” Mitchell then asked for a chance to explain the circumstances surrounding the FBI interview. “If you feel some urge to explain the circumstances, Mr. Mitchell, please do,” Neal snapped. “I have an urge, Mr. Neal,” Mitchell shot back, “to get to the truth.” The former attorney general recalled how the two FBI agents were “scared to death” when they came to his office. “They asked a couple of questions,” Mitchell said, “and we discussed what my knowledge was, and what had been in the paper, and they left.” Neal oozed disdain: Your urge to get to the truth, as you expressed it, didn’t cause you to tell these agents about the three meetings when the Liddy plan was discussed, did it? “I did not volunteer it for obvious reasons,” Mitchell replied. Asked what those were, he stated firmly: “The re-election of the president of the United States.”
On December 19, Neal began his closing argument, a four-hour affair replete with Shakespearean recitals from the tapes and laughter-provoking sarcasm. Here was the official history of the scandal, “the first real telling of the Watergate story from start to finish,” in which John Mitchell naturally played the central, and most culpable, role. While noting the case was not about who authorized the break-in, Neal still charged Mitchell with having done so at Key Biscayne. When it came to the hush money, Neal relied on a form of guilt by hierarchical association. “Dean, Hunt, and LaRue all admitted this money was hush money,” the prosecutor said. “These people don’t have the capacity to understand [the larger picture] that a Mitchell, Haldeman, or Ehrlichman have. If they knew it was hush money, so did Mitchell, Haldeman, and Ehrlichman.”
A week later, on December 30, after the conclusion of closing arguments and Neal’s rebuttal—as well as two and a half hours of instruction from Judge Sirica, who reminded them “neither the pardon of President Nixon nor any other cases or extraneous matters” should affect them—the jurors were sent to deliberate. Most of the defense lawyers objected to another element in Sirica’s jury instruction: his concluding statement to the jury that its duty was “to ascertain what the truth is.” This reflected the inflated vision of the court, and of himself, that had long pervaded Sirica’s work on Watergate; the job of the jury, the defense pointed out, was not to ascertain the truth of Watergate but merely to decide the guilt or innocence of the defendants based on the evidence and testimony presented. It was no use; Sirica overruled them. At that point, when the case went to the jury, Ken Parkinson placed his hands on the shoulders of his fifteen-year-old son, Tony, and said: “It’s in the hands of the gods now, son.”12
On New Year’s Day 1975, as a dewy rain fell in Washington, Judge Sirica received word at 4:25 p.m. that the jury had reached a verdict. Marshals entered the small waiting room off the court where Mitchell had been watching a football game and hustled him and the other defendants and their lawyers into the courtroom. Next came the press and the seven spectators who would witness the historic event, followed, at last, by Neal and Henry Ruth, the special prosecutor who had succeeded Jaworski. Finally Sirica took the bench and summoned the jury. Slowly shuffling in, the jurors ave
rted their eyes. They had taken fifteen hours and five minutes, over three days, to decide the fate of Nixon’s elite.
Have the jurors reached a verdict? asked Court Clerk James Capitanio. “Yes, they have,” said foreman John Hoffar, his voice quavering. He produced a manila envelope and handed it to a marshal, who gave it to Capitanio, who turned it over to Sirica. “Absolute silence” blanketed the courtroom while the judge reviewed the contents. Then he returned the envelope to Capitanio and ordered him to read the verdicts aloud. Mitchell and the others rose at their adjoining tables, the scraping of their chairs the courtroom’s only sound.
For the Watergate cover-up defendants, the moment of reckoning had finally come, and it had to be a surreal one, most especially for Mitchell. Haldeman, Ehrlichman, Mardian, and Parkinson were, to be sure, men of prominence and power, upright Christians for whom the present circumstance represented a reversal of fortune simply too fantastical to fathom. This was certainly true for Mitchell as well, but among the men now standing before judge and jury, only he had enjoyed unparalleled standing before the bar, both in the private practice of law and as the nation’s chief law enforcement officer.
Now Clerk Capitanio began reading: As to defendant Mitchell, Count One: Guilty. As to Count Two: Guilty.…It continued on like that, five times in all for Mitchell, and likewise on all counts for the others—except for Parkinson, at whose acquittal the courtroom let out an audible gasp. Mitchell’s face flushed, and he exhaled loudly. Then he turned to his crestfallen lawyer, Bill Hundley, and said: “Don’t take it so hard.” Next Mitchell reached over to shake the hand of the jubilant Parkinson—whose entire strategy had rested on vilification of Mitchell—and whispered, with a smile: “Congratulations. Good, Ken.”
Haldeman’s face stiffened. His daughter, Susan, a law student who had attended every day of the proceedings, burst into tears. Ehrlichman sat impassively while his wife draped her arms around him. Mardian took it hardest. He slumped forward, head in hands, shoulders atremble. “He appeared stunned and unable to move,” the Times reported. Mitchell walked over and said quietly: “Come on, Robert,” but to no avail. Even his wife’s touch failed to budge Mardian from his paralysis. After he finally stood up and trudged back to his hotel room, dogged the entire way by an unfeeling reporter, Mardian exploded in rage, lashing out at the reporter with a torrent of four-letter words not even heard on the Nixon tapes. It fell to Mitchell to calm his former aide and send the reporter away.
“Mitchell was the trial’s mystery man,” said CBS News’ Fred Graham that night, “puffing his pipe, cracking occasional jokes, refusing to attack Richard Nixon—even after the tapes proved that Mr. Nixon betrayed him—and saying little else. Tonight, after the verdict, his style hadn’t changed much.” Asked if he had any reaction, Mitchell kept walking and, smiling faintly, mocked his questioners: “Can’t you guesstimate? Do I have to tell you?” Do you plan to appeal? “You’d better believe it.” Are there strong grounds for an appeal? “I have about fifty.” What are you going to do now? Are you going to take a vacation? “I’m going to the moon, I think. That’s the best place.” With that, the convicted men scattered: Haldeman back to Los Angeles, Ehrlichman to Seattle, Mardian to Arizona, and Mitchell to parts unknown. The media missed his departure, likely to New York. In their absence, official Washington returned to the drearier business of budgets and arms control, stagflation and the Middle East. After a few days, there was, for the first time in years, no more talk of Watergate.
CBS News’ John Hart delivered the most insightful postmortem. “Haldeman, the public relations man, is not in the habit of self-examination; he will simply examine his greatest ad campaign over and over, looking for reasons why it failed,” Hart said. “John Ehrlichman will never understand why a pious man may have to spend many of his declining years in prison. John Mitchell will understand; it was a big game for him, played by rules he understood, and he lost it.”13
MAXWELL
Only our concept of time makes it possible for us to speak of the Day of Judgment by that name; in reality it is a summary court in perpetual session.
—Franz Kafka, 19201
SHORTLY AFTER THE verdicts in U.S. v. Mitchell were handed down, the New York Times carried a brief item buried on The Heavyweight, beneath a small, inconspicuous headline: “Magruder Says Prisoners Might Try to Kill Mitchell.” This dark premonition came within days after Magruder and two other Watergate felons—John Dean and Herb Kalmbach—won early release from prison. In rewarding the men for their cooperation at trial, Judge Sirica commuted their sentences to time served: For Magruder that meant seven months; for Kalmbach, six; Dean, only four. “I think there is no question that…as far as many convicts are concerned, he is the one that put them away,” Magruder said of Mitchell; he added some inmates “might feel very comfortable in becoming famous by eliminating the ex–attorney general.”
Such fears, along with the desire to clear his name and resume the practice of law, gave Mitchell ample incentive to pursue the appeals process to overturn his conviction. But it was a process in which the former attorney general never placed much faith. The first measure of the mercy Mitchell was to receive, now that he belonged to the criminal justice system he once headed, was to come with his sentencing by Sirica. Asked if the clemency given Dean, Magruder, and Kalmbach was a sign the cover-up convicts would receive like leniency, Sirica said no. “I don’t think it has any bearing,” he snapped.
On February 21, 1975, a large crowd of spectators gathered for the sentencing, many of them camping out the night before to ensure their admission. At 9:29 a.m., Sirica took the bench. He asked the convicted men and their lawyers to rise and form a line before him. Once again, the sound of scraping chairs filled the room. Then the judge began reading a short statement explaining how he had arrived at the sentences he was imposing—before pausing in recognition of his breach of protocol: “The defendants and their counsel will first be given the opportunity to make any statements they wish for the record.” The convicts returned to their seats.
Each of the lawyers said a few words. Ehrlichman’s attorney asked that his client be permitted, in lieu of prison, to perform legal work for a tribe of Pueblo Indians in New Mexico, leading Mitchell to stage-whisper to Hundley: “If they offer us Indians, turn ’em down!” Sirica, not amused, returned to his prepared statement. The judge professed to have spent “many days” giving “careful and serious thought” to the question of “proper” sentences for the men. Now it was time for the grim business at hand. Mr. Mitchell, would you mind stepping in front of the lectern? The former attorney general rose and approached the bench, alone. “In Criminal Case Number 74-110,” Sirica read, “the Court sentences the defendant John N. Mitchell on each of Counts One and Two to be incarcerated for a period of not less than twenty months and not more than five years.”
Sirica droned on about Counts Four, Five, and Six, sentencing the defendant to “not less than ten months and not more than three years” on each charge, terms to be served concurrently with each other, but consecutive to those for Counts One and Two—meaning a minimum punishment of two and a half years. “Just one further thing,” Sirica said. “The Court recommends to the director of the Bureau of Prisons that he study this case”—meaning Mitchell’s—“from the standpoint of a suitable place of confinement in a federal institution.” Clearly Sirica shared in the fears about Mitchell’s fate behind bars.
The rest of the “brief, somber, and tense proceeding,” fifty minutes in all, must have been a blur for Mitchell. Haldeman got the same sentence, and so did Ehrlichman. Each of the Big Three now faced a maximum of eight years in prison. Mardian got ten months to three years. Afterward, Mitchell was the only one of the four to comment. On the elevator ride down, he cracked to reporters: “It could have been a hell of a lot worse. They could have sentenced me to spend the rest of my life with Martha.”2
A few months earlier, a fifty-five-year-old widow named Mary Gore Dean was relaxing at Ma
rwood, her family’s lush estate in Potomac, Maryland, reading a newspaper article about Watergate. The article reminded her of how long it had been since she had laid eyes on John Mitchell: fifteen years, at least, sometime before the summer of 1958, when her husband, Gordon E. Dean, the former chairman of the Atomic Energy Commission, died in an airplane crash off Nantucket. The Deans adored Mitchell. The late Gordon Dean—in between his stints as a reporter, professor, Nuremberg prosecutor, senior vice president at General Dynamics, and head of the AEC—had worked at Lehman Brothers and retained Mitchell for a bond deal in Florida. Now, her eyes fixed on the newspaper, Mrs. Dean grew increasingly disturbed by the “character assassination” to which she saw Mitchell being subjected. Impulsively, she reached for the phone. “I just told him that…my husband would certainly want me to be his friend if he needed a friend right now,” she recalled in 1992. “And of course, he said he did, so that was it.”
From that phone call blossomed the long-dormant friendship that would see Mitchell through the worst, and last, of his days. In press accounts, Mary Gore Dean was usually described as Mitchell’s “companion,” but this failed to describe the depth of the bond the two established and the extraordinary support she provided him. Mrs. Dean was, a friend observed in 1977, “the light of John’s life.” She gave Mitchell a home, a large and comfortable town house in Georgetown that he kept till the day he died and, equally important, the sense of having a large family in Washington, where, at this point, Mitchell had only his teenage daughter, Marty.
