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

by John W. Dean

  35 Dean Senate testimony, 3 SSC 1015–17. Regarding my belief that I was being taped by Nixon, see 3 SSC 1016, 1019–20, 1031, and 4 SSC 1373, 1434, 1558, and 1576–77.

  36 April 15, 1973, Haldeman notes, Nixon library, NARA.

  37 Nixon, RN, 828–29.

  38 See generally, John W. Dean, Blind Ambition: The White House Years (New York: Simon & Schuster, 1976), 258–63.

  39 Conversation No. 897-3.

  40 Dean Senate testimony, 3 SSC 1314–15.

  41 Conversation No. 897-4.

  42 Conversation No. 897-9

  43 Conversation No. 897-11.

  44 Conversation No. 897-16.

  45 Petersen testimony before impeachment inquiry, Testimony of Witnesses, Hearings Before the Committee on the Judiciary, House of Representatives, 93rd Congress, 2nd Session, Book III (Washington, D.C.: Government Printing Office, 1974), 81.

  46 Congress had only a few of Nixon’s edited transcripts, which nevertheless, along with some testimony, established that Nixon provided false and misleading information to Petersen regarding Haldeman and Ehrlichman and personally urged Petersen to deny me immunity in order to make it more difficult to develop the criminal cases against Haldeman and Ehrlichman. While Nixon was feeding Petersen misinformation, the unwitting Petersen was providing information that Nixon passed on to Haldeman and Ehrlichman, which enabled them to distort or alter what had occurred by twisting and manipulating others to provide incorrect corroborating information. Petersen’s meetings with Nixon would become a cornerstone for article I of the bill of impeachment against Nixon.

  47 April 16, 1973, Henry Petersen notes, Exhibit No. 147, 9 SSC 3875–76.

  48 Conversation No. 427-2.

  49 Conversation Nos. 427-5 and 427-6.

  50 Conversation No. 427-10.

  51 Conversation No. 427-12.

  52 Conversation No. 38-82.

  53 Conversation No. 38-84.

  54 Conversation No. 898-4.

  55 Conversation No. 898-6.

  56 Conversation No. 898-12.

  57 Haldeman appears to be referring to information he was given by a former attorney general, Bill Rogers, suggesting that Petersen had become a coconspirator. When Watergate special prosecutor Archibald Cox was fired by Nixon, and I was working with the prosecutors, Henry Petersen was temporarily placed back in charge of the case. Assistant Watergate special prosecutor Richard Ben-Veniste asked me at that time if Petersen had been compromised. I said I did not believe he had been unless he had become a coconspirator. Given my dealings with Petersen, it was a close question. But given Petersen’s dealings with Nixon after I departed, as revealed in the recorded conversations, a strong argument can be made that Petersen became as foolish as everyone else and unwittingly entered the Watergate cover-up conspiracy. Although he, along with many others, became coconspirators, he was never so named. Dick Moore and Ron Ziegler, along with others who would later join the Nixon defense, were all active coconspirators who were never named.

  58 For purposes of illustration, there were three general levels at the Nixon White House: the top level of presidential assistants, which included, for example, Haldeman, Ehrlichman and Kissinger, along with a few others; a middle level, which included deputy assistants, special counsel and counsel to the president, where you found Len Garment, Dick Moore, former aides Chuck Colson, Dwight Chapin, Jeb Magruder and the like; and then the lower level of staff assistants, where you found Strachan, Higby and others. Thus, the president was going to call anyone from the middle level up “a top White House official,” although they reported up through others and had no direct access to the president.

  59 Conversation No. 38-86.

  60 Conversation No. 898-20.

  61 During their earlier conversation on April 16, Petersen had told the president about Liddy: “This man is crazy, Mr. President. He’s burning his arms. He showed the prosecutor and said, ‘I will stand up to anything. I’ve made myself endure this to prove to myself that I can take anything. Jail will not break me,’ and what have you. You’ve got to be a crazy man to sit there and burn yourself to see if you can withstand the pain.” See Conversation No. 427-2.

  62 Conversation No. 898-23.

  63 As it turned out, Gordon Strachan would corroborate my testimony when he appeared before the Senate Watergate committee on matters such as: Haldeman instructing him to destroy possible Watergate-related evidence in their files; his role in taking White House funds to the reelection committee; and his involvement in the Segretti matter. Haldeman had a number of small-bore people on his staff who would do as asked without asking questions. Strachan was not one of them. To my knowledge there was no significant conflict in our testimony.

  64 Conversation No. 899-4.

  65 Conversation No. 429-3. Note: The president’s daily diary is incorrect in stating that Haldeman and Ehrlichman attended this discussion from the outset, at 5:20 P.M., for the recorded conversation reveals that they joined it approximately twenty-seven minutes after it started.

  66 The question of who is the client of the White House counsel would not be resolved until after Watergate, and today, according to the American Bar Association’s Model Rules of Professional Conduct, the client is the Office of the President, not the current occupant or his staff. The attorney-client privilege has never protected criminal behavior, and federal courts now have rules that government attorneys have a limited attorney-client privilege. See, e.g. Nancy Leong, “Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys,” Georgetown Journal of Legal Ethics 20:163 (2007).

  67 Ehrlichman was not telling the president that he had personally met with Kalmbach on July 26, 1972, to give him instructions—“a directive,” according to Kalmbach—to carry out his secret mission of raising and delivering money for those involved in Watergate. When Kalmbach said that he was troubled by the secrecy, Ehrlichman told him it was necessary; otherwise, Ehrlichman said, “Herb, they would have our heads in their laps.” In early August 1972, Kalmbach reported to Ehrlichman that he had raised an additional seventy-five thousand dollars from a Nixon contributor for this effort. On April 6, 1973, they met again on this subject in the parking lot of the Bank of America, in San Clemente, California. Ehrlichman requested that if Kalmbach was called upon to testify about his activities that he say he had been directed by me. Kalmbach, knowing that was not true, reminded Ehrlichman that it had been at his direction as well. See testimony of Herbert Kalmbach, U.S. v Mitchell et al. (November 12, 1974) 6332–95.

  68 Conversation No. 38-90.

  69 Conversation No. 38-92.

  70 Conversation No. 38-95.

  71 Conversation No. 900-1.

  72 Conversation No. 900-4. Note: The audio of this conversation is very poor.

  73 Conversation No. 38-100.

  74 Conversation No. 900-26.

  75 Ehrlichman was oblivious to the fact that he had created, with the blessings of the president, a criminal conspiracy when he wiretapped syndicated columnist Joseph Kraft’s home and office in Georgetown, and although the wiretap failed, the conspiracy was complete when Jack Caulfield’s assistant climbed a ladder and tried to intercept the phone lines into Kraft’s home. It was the problem of the criminal conspiracy that I had raised with the president.

  76 Haldeman, Diaries, 648.

  77 Petersen, Watergate grand jury testimony, Testimony of Witnesses, Hearings Before the Committee on the Judiciary, Book IV, 1474–75.

  78 Haldeman recorded in his diary, regarding Nixon’s conversation with Petersen, that Nixon ordered Petersen “not to get into testimony on what Hunt was involved in with national security. Petersen told the P Dean had already told him about the Hunt break-in in California.” Haldeman, Diaries, 648. It appears Petersen had just learned about it. My attorney, Charlie Shaffer, reported it to the prosecutors on April 15, 1973, to avoid my becoming part of another obstruction of justice relating to the then ongoing trial of Daniel Ellsberg.

  79 Haldeman,
Diaries, 648–49.

  80 Conversation No. 902-1.

  81 This was a reference to Patricia Marx, whose father was Louis Marx, who allegedly was a friend of J. Edgar Hoover. But this explanation has never made much sense. Journalist Ronald Kessler writes in his look inside Hoover’s FBI, The Bureau: The Secret History of the FBI (New York: St. Martin’s Press, 2002), on page 162, that during the FBI investigation of the leak of the Pentagon Papers they became aware that Ellsberg was married to Patricia Marx, so they wanted to interview her father, Louis Marx, about his son-in-law, Dan Ellsberg. Kessler reports that, following standard FBI procedure, because Louis Marx was an acquaintance of Hoover’s, clearance was sought for the interview. Hoover wrote no on the bottom of the request memo. But it was mistakenly read as ok. So Marx was interviewed. Bill Sullivan noticed that Hoover had said no and told Bob Mardian at the Justice Department. This tip became the principal rationalization for the FBI’s setting up its own investigation, along with G. Gordon Liddy’s, speaking as a former FBI agent, claiming that the FBI was not treating the investigation with sufficient seriousness.

  82 Conversation Nos. 902-2 and 902-3.

  83 Conversation No. 902-5.

  84 The statement read:

  To date I have refrained from making any public comment whatsoever about the Watergate case. I shall continue that policy in the future because I believe that the case will be fully and justly handled by the grand jury and by the Ervin select committee.

  It is my hope, however, that those truly interested in seeing that the Watergate case is completely aired and that justice will be done will be careful in drawing any conclusions as to the guilt or involvement of any persons until all the facts are known and until each person has had an opportunity to testify under oath in his own behalf.

  Finally, some may hope or think that I will become a scapegoat in the Watergate case. Anyone who believes this does not know me, know the true facts, nor understand our system of justice.

  85 Conversation No. 38-107.

  86 Conversation No. 902-9.

  87 Conversation No. 429-15.

  88 Conversation No. 429-18.

  89 Ehrlichman apparently thought he was absolving himself by telling the president he had not raised the money for the defendants; he seemingly could not imagine that a conversation like this—when the taping system was revealed—showed his solid participation in the conspiracy to obstruct justice. He was recounting his agreement with these actions, even if he was not what he described as an “efficient actor.” Conversations like this would later provide proof beyond a reasonable doubt of his deep involvement in the cover-up conspiracy.

  90 Dr. Samuel Mudd was convicted and imprisoned for his role in assisting John Wilkes Booth assassinate President Lincoln. On June 29, 1865, Mudd along with others, was convicted of conspiring with Booth to help him escape; he splinted Booth’s broken leg and built him crutches. On February 8, 1869, Mudd was pardoned by President Andrew Johnson and released from prison on March 8, 1869. Dr. Mudd tried to get his conviction expunged but failed. His descendants took up the cause, but like Nixon, all subsequent presidents had problems with the matter, as did the army, which had tried and convicted him. Both Presidents Carter and Reagan were sympathetic to the claim that Dr. Mudd had been improperly tried on dubious evidence. There is no comparison, however, between the overwhelming evidence that would convict Bob Haldeman and that upon which Dr. Mudd was convicted. See, e.g., Gregg S. Clemmer, “The Case for Dr. Samuel A. Mudd,” The Washington Times (February 2, 1982), C-3.

  91 Of course, both men would later be convicted of multiple counts of perjury. See U.S. v. Haldeman, et al., 559 F.2d 31.

  92 Imagine how the dynamics of Watergate might have changed if Liddy had talked at Nixon’s request, for he could then have truly taken credit for breaking the case. Liddy, who pretended to remain silent out of loyalty to the president and his men, was actually only protecting himself. Liddy did not wish to talk because, not only had he bungled everything he had been involved with, but he had consistently exceeded his authority, falsely claiming to have acted in the name of others. In addition, he had spent a substantial amount of money (over $45,000—today’s value over $250,000) that he could not provide an accounting for. See Liddy v. Commissioner of Internal Revenue, 808 F. 2d 312 (1986). Had Liddy come forward, he would have been uncovered for his duplicity and the self-serving sociopathic behavior that provided the catalyst for the destruction of the Nixon presidency. This is not to say that the Nixon White House had not welcomed his lawless behavior before discovering he was also totally incompetent.

  93 Conversation No. 123-2.

  94 Conversation No. 903-4.

  95 Conversation No. 903-6.

  96 Conversation No. 38-129.

  97 In fact, I was busy exploring being a witness at the Senate Watergate hearings with or without immunity, and I had just started having secret discussions with Sam Dash to prevent this information from leaking. See Dean, Blind Ambition, 270–71.

  98 Conversation No. 903-14.

  99 See Nixon, RN, Soviets in Cienfuegos Bay, 485–89; Syrian invasion of Jordan, 484–85; and Cambodian bombing, 446–55.

  100 Nixon, RN, 836.

  101 Conversation No. 903-19.

  102 Charlie and I had privately concluded that the U.S. Attorney’s Office would never be able to successfully unravel the Watergate cover-up, because the top coconspirator, Richard Nixon, probably could never be indicted. As for the person Ehrlichman referred to, Bob McCandless, I had no idea at the time what post he had had with the Humphrey campaign. Bob had been married to the sister of my first wife, and he volunteered his legal service to help with the Senate, where he had once worked for Senator Robert Kerr (D-OK) and had many friends and associates, and he had later worked as a lobbyist. I signed him on as a part-time cocounsel with Charlie, but he was to have nothing to do with my representation in any criminal matters, only regarding Capitol Hill. I had no relationship whatsoever with Democrats and thought Bob could quietly help out through his friends on the Hill. Not until 2010, when I was visiting Washington and had not seen Bob in decades, did he join me for dinner to tell me what he had primarily done during Watergate. He told me some four decades after the fact that he mostly worked the press, leaking stories and trying to prevent news organizations from buying the false stories that the White House and Nixon supporters were putting out to try to discredit and destroy me. Neither Charlie nor I knew what he was doing, and only infrequently saw Bob; rather, we figured that information he was giving Democratic friends was, in turn, getting leaked to the news media. I certainly had no idea he was privately meeting with editorial boards, Woodward and Bernstein, and others covering Watergate—and now wish he had kept a diary. It would be interesting, if not informative.

  103 Conversation No. 903-20.

  104 The log of the president’s activities make this scene impossible, for he spoke on the telephone three times with Ziegler from the Key Biscayne compound swimming pool (at 5:29 P.M. to 5:41 P.M., 6:00 P.M. to 6:01 P.M. and 6:03 P.M. to 6:03 P.M.) before returning to his residence for dinner with his family (wife, daughters and son-in-law) and Bebe Rebozo, and called Ziegler again after dinner (7:30 P.M. to 7:39 P.M.). Next the president and his family watched the movie Some Came Running, from 7:43 P.M. until 10:00 P.M. These details are only of interest because I have always been curious about when, where and how Nixon made his decision to fire Haldeman and Ehrlichman, along with me. Sunset was not until approximately 7:50 P.M., and Ziegler had not been to the presidential compound. The PDD contains the president’s schedule, and those times were noted by his Secret Service detail; the calls were logged by the White House operators. The Web site www.timeanddate.com has the sunrises and sunsets for Key West, Florida, back to 1974, which would be very close to what happened on April 20, 1973, in Key Biscayne.

  105 Nixon, RN, 836.

  106 Ibid., 837.

  107 Conversation No. 38-137.

  108 Conversation No. 904-6.
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br />   109 Conversation No. 904-8.

  110 When Haldeman and Ehrlichman were later on trial for violating 18 USC § 1503, Judge Sirica explained the meaning of the word “corrupt” when charging the jury: “The word ‘corruptly’ as used in this statute simply means having an evil or improper purpose or intent.” Being more specific, the judge explained, “If you find, for example, that a Defendant participated in the payment of money to the original Watergate defendants for the purpose of keeping them quiet, you would be justified in finding that a corrupt endeavor to obstruct the due administration of justice occurred.”

  111 In fact, I was anything but desperate; rather, I was very much at peace for the first time in a long time. I had not been comfortable as their desk officer for the cover-up. At this time I was fully prepared to admit and pay for my mistakes, and to testify honesty, and fully. Anything less would only continue the cover-up. Higby was my last channel of communication to Haldeman, and that information I knew would go to Ehrlichman and the president. I was still hopeful that if they realized I was not going to crumble under their effort to rewrite the facts, they would appreciate that only the truth would end this nightmare, and they would proceed honorably accordingly. What the president, Haldeman, Ehrlichman and the Justice Department did not know was that, while I had offered to testify before the Senate Watergate committee without immunity, Sam Dash had offered me immunity from the outset of our secret meetings, and Charlie thought Senate immunity would make it nearly impossible for the Justice Department to ever prosecute me. In short, I was not engaging in the desperate struggle for immunity the White House envisioned; rather. I was merely trying to get them to do the right thing to save the Nixon presidency.

  112 Conversation No. 430-1.

  113 Conversation No. 430-4.

  114 Mitchell, along with Maurice Stans and longtime fugitive Robert Vesco, would be indicted for obstruction of justice by the U.S. attorney for the Southern District of New York on May 10, 1973. They struck me at the time, and still do, as trumped-up charges by a U.S. Attorney’s Office that loved to grab headlines, and they did so by indicting two former Nixon cabinet officers as Watergate was exploding. A year later, on April 27, 1974, Mitchell and Stans were acquitted. I was dragged into this case, about which I really knew almost nothing, as a witness. Assistant Watergate special prosecutor Jim Neal later told me that calling me as a witness in the Vesco case had been “a mistake,” and the case against Mitchell and Stans was not one he would have allowed when he served as the U.S. attorney for Tennessee.