The Nixon Defense: What He Knew and When He Knew It

by John W. Dean

  Haig claimed that he did not learn of Butterfield’s disclosure until Monday, July 16, when Butterfield testified before the Senate. Haig says Nixon was incorrect in his account that Haig telephoned him early Monday morning to warn him of Butterfield’s disclosure and forthcoming testimony.120

  Nixon wrote in his memoir that he was informed early Monday morning, July 16, when “Haig called me to tell me that Haldeman’s former aide Alex Butterfield had revealed the existence of the White House taping system to the Ervin Committee staff and that it would become public knowledge later that day.”121

  Nixon said he was “shocked” by the news; everyone else was shocked either by the fact that Nixon taped himself or that it had been disclosed, or both. Many on the White House staff thought the exposure of the system had been engineered by Nixon himself: “There were expressions of relief. At last there was something definitive. The tapes had been deliberately exposed. They would prove that John Dean was lying.”122 There was an almost universal consensus that Nixon’s tapes would provide a near indisputable way to answer the question Howard Baker had asked me during my testimony: “What did the president know and when did he know it?”123

  The revelation created a very delicate problem for Nixon’s staff, for they, too, understood that the recordings could establish his innocence or his guilt. While many secretly believed he was guilty, such thoughts had to be suppressed in order to remain loyal and work for him. Based on Butterfield’s testimony that the Secret Service had installed the system, Al Haig had his deputy call them to “immediately” dismantle it and secure all the existing recordings. Haig made this decision without consulting the president, but then went to the hospital to discuss this situation. “Mr. President, it seems to me that you have two options. You can either keep the tapes or you can destroy them.” Nixon wanted to know the consequences of each option. “If you keep the tapes and refuse to make them public, you’ll spend the remainder of your presidency beating off the prosecutors, the Congress and the news media. In the end, you may very well have to give them up.” And if he destroyed them? “You will be violently attacked. Some will describe it as an admission of guilt. Others will admire your common sense. You will take a tremendous amount of heat, but, whatever happens, it will be over fairly quickly.” Haig noted if he did not destroy them, the disclosure process would last forever, and reach into history.124

  Nixon wanted to know what the lawyers thought of the legal implications. Garment reported that upon learning of the situation he had sent his associate Doug Parker to the law library, where he soon found U.S. v. Solow, a ruling with a similar fact pattern to Nixon’s tapes and an obstruction of justice under federal criminal law.* Because a president cannot be indicted while in office, but a presidential “felony” could be the basis for impeachment, Garment said the question of destroying the tapes was a matter of “virtually nonstop discussion among Haig, Buzhardt, Parker and [himself]” for the next two days.125 Both sides were presented to the president at the hospital: by Garment, who argued it would be an obstruction of justice under federal law, and the president should not destroy the tapes; and by Buzhardt, who said the tapes were his property and had not been subpoenaed, so he could do with them as he wished. Buzhardt did not believe Congress would impeach him if he did destroy the tapes. Nixon was also told that Charles Alan Wright had given them a “near categorical opinion” that the president had a powerful executive privilege argument, which the Texas law professor believed he could win should the case go to the U.S. Supreme Court.

  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.”127

  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 or
ders 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.”130

  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.131

  While in the hospital with pneumonia, Nixon made a note: “Should have destroyed the tapes after April 30, 1973.”132 Had he done so, his presidency and its history would have ended much differently.

  Epilogue

  Following 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

  1973

  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.