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

by John W. Dean

  115 Conversation No. 38-145.

  116 Conversation No. 430-16. Note: I discovered when I was writing this portion that I had somehow not assigned this conversation to my transcribers. Thus, in this instance I relied on the almost full transcription of this conversation, and the summary of it, in Stanley Kutler’s Abuse of Power (New York: Free Press, 1997), 329–34.

  117 Kleindienst was clearly not informed, for this information had been imparted ten days earlier, when Shaffer had ended our working relationship with the U.S. Attorney’s Office. Since the Ellsberg break-in was a driving force for the White House cover-up and the last payment to Hunt was made in response to his demand lest he reveal it, Charlie had given this information to make certain neither his client nor he was part of an obstruction of justice that was associated with this information. None of the details associated with the matter, and its relationship to the Watergate cover-up, were provided—only the fact of it. The Justice Department has in its files pictures from the CIA, which were developed in 1971, when Hunt and Liddy cased Ellsberg’s doctor’s office in preparation for the effort to obtain his psychiatric files.

  118 Conversation No. 38-146. (Not transcribed; merely listened to it.)

  119 Conversation No. 430-22.

  120 Nixon writes in his memoir that around this time that he had a recurring thought: “Before long a disturbing thought occurred to me; I couldn’t get it out of my mind: what if Dean had carried a tape recorder at our March 21 meeting, a small tape recorder, concealed in his jacket but capable of catching every word. He would be able to use parts of the conversation in a very damaging way.” This thought simply did not occur to him, but it appears that he had forgotten why he had this thought. On April 17, 1973, in a meeting with Len Garment, I told him I had reason to believe that there were audio recordings of one or more of my conversations with the president. I had come to believe this (as I later testified at the Senate) because of Nixon’s behavior during our meeting on April 15, 1973, not to mention the fact that he had told Henry Petersen he had a record of my saying that I had immunity, when, in fact, I had made no such statement. I told Len because he was a gossip, so I knew he would spread the story. Years later he said he had done just that, and when he read the transcripts of Nixon worrying about it, felt he had done a disservice to Nixon. See Nixon, RN, 842, and Dean Senate testimony 3 SSC 1016, 1019–20, 1031; 4 SSC 1476–77, 1558.

  121 Conversation No. 430-23.

  122 Conversation No. 38-150.

  123 What, in fact, happened was that Shaffer told them that if they wanted to engage in prosecutorial misconduct and keep this activity secret that was their business. What was our business was disclosing it, because it was an obstruction of justice, and Charlie said neither he nor I were interested in obstructing justice. Nixon, Kleindienst and Petersen decided to read this as blackmail.

  124 Conversation No. 38-151.

  125 Conversation No. 38-153.

  126 Conversation Nos. 38-154 and 38-155.

  127 Not until many months later, in late 1973 when Ehrlichman was under investigation in several criminal cases, did he retain new and separate counsel, William Snow Frates, who was something of a buffoon, who was nicknamed and called behind his back “W. C. Frito” by attorneys in the Watergate Special Prosecutor’s Office. Frates represented Bebe Rebozo in a number of civil lawsuits.

  128 While I was unable to find this statement in the Petersen and Nixon conversation—Conversation No. 430-23—earlier that day, it could not have been a more distorted interpretation; that appears to be the way Nixon was thinking. Charlie provided this information to the prosecutors, because he told them we were moving on, since it was obvious to him we could not do business. But he needed to clear up this ongoing obstruction of justice and potential prosecutorial misconduct. He made no threat. He asked for nothing in return for the information. He merely told them that they had the information in their files, and under the leading U.S. Supreme Court case on the subject, they were duty-bound to act appropriately. It was their choice, and his farewell gift to them. It was our last dealings with the U.S. Attorney’s Office, and the information was even given to them in such a manner that neither Charlie nor I could be charged with leaking classified information.

  129 Conversation No. 38-156 and 38-157.

  130 Conversation No. 38-159.

  131 Conversation No. 38-161.

  132 Conversation No. 905-8.

  133 John Ehrlichman, Witness to Power: The Nixon Years (New York: Simon & Schuster, 1982), 311.

  134 At the time I was not aware that the warning I had sent him through Len Garment about the immunity statement (during the same conversation in which I had told Len I believed I had been recorded) had gotten through. But the conversations with Petersen reveals that Nixon quickly pulled back on immunity and told Petersen it was his decision alone.

  135 Conversation No. 905-12.

  136 Conversation No. 45-3.

  137 Conversation No. 431-9.

  138 Apparently Haldeman’s attorneys had not yet explained the way criminal conspiracies work, that once you agree with another to undertake an illegal action, all coconspirators become liable for the actions of the others. Throughout these recorded conversations, particularly in April 1973, Haldeman (and Ehrlichman) openly acknowledge their participation in the conspiracy but appear to believe that, because they were not passing the money themselves to the Watergate defendants, particularly Hunt for his silence, they have no criminal exposure. This was why my attorney, Charlie Shaffer, told me not to deal with any of the potential defendants other than to confront them as I did, with their criminal problems, hoping to get them to step forward and take responsibility.

  139 Conversation No. 45-15.

  140 Conversation No. 906-1.

  141 Carl Bernstein and Bob Woodward, “Dean Seen Asking Full Bug Disclosure,” The Washington Post, April 27, 1973, A-1. The story reported that I had told Nixon that “to save the presidency” Haldeman, Ehrlichman and I would have to disclose all [we] knew about the Watergate bugging case and face the possible consequences of going to jail. Hopeful that Haldeman and Ehrlichman would follow suit at the president’s urging, Dean on April 6 told federal prosecutors all he knew about the bugging and a subsequent White House cover-up, according to three reliable sources. But Haldeman and Ehrlichman apparently balked at the idea of incriminating themselves, leading to the current state of confusion and warfare between individuals inside the White House, the sources reported.

  While the date of the meeting with the president and Haldeman and Ehrlichman is wrong—it was March 21, 1973—the gist of the Post story is correct, and this is information I had discussed with both Len Garment and Dick Moore. As of April 27, 1973, I had not discussed anything with my lawyers regarding my dealings with the president.

  142 According to Ehrlichman’s office schedule he met with Haldeman and me from 3:45 P.M. to 6:00 P.M. on March 21, 1973.

  143 John Herbers, “Mississippi Crowds Cheer Nixon at ‘Stennis Day’ Fete,” New York Times, April 28. 1973, 17.

  144 Haldeman, Diaries, 667.

  145 Conversation No. 906-8.

  146 Conversation No. 45-34.

  147 Conversation No. 45-36.

  148 Conversation No. 906-12.

  149 Conversation No. 906-16.

  150 Conversation No. 906-17.

  151 Conversation No. 906-23.

  152 Ehrlichman and Haldeman will claim it was done in a clandestine fashion because of the political situation, but they were unsuccessful in selling this bogus argument to a jury in U.S. v. Mitchell et al. Petersen at this time is unaware that Hunt had made clear following the November election that the continued silence of the Watergate defendants could only be assured if payments were forthcoming, and while this was implicit in his conversation with Colson, it became explicit in his demand for money in March 1973, when he said that if payments were not forthcoming, he would have seamy things to say about his work for Ehrlichman. Nixon did not discuss wit
h Petersen this quid pro quo element in Hunt’s blackmail demand.

  153 Conversation No. 906-24.

  154 Conversation No. 906-25.

  155 Conversation No. 432-1.

  156 Conversation No. 164-2.

  157 For example: The Washington Post: “Gray Resigns; Ruckelshaus Heads FBI; Hunt, Liddy Linked to Ellsberg Case”; “After Big Day, Nixon Retreats to Camp David”; “Case Role Ill Defined for Lawyer: John J. Wilson”; New York Times: “Gray Says He Destroyed Files from Hunt Given Him When He Met Ehrlichman, Dean”; “Haldeman and Ehrlichman Reported Fighting Ouster”; “Dean Is Reported Asking Immunity: White House Counsel Says He Will Not Testify If He Runs Risk Of Prosecution”; “Grand Jury Nears End of Investigation on Tangled Vesco Case.”

  158 Conversation No. 164-4.

  159 Conversation No. 164-6.

  160 Charlie Shaffer understood this law perfectly. Congress had adopted a so-called use immunity statute that allowed the government to collect independent evidence of criminal conduct, then grant limited immunity that forced the person to testify or be in contempt of court, yet still prosecute that person on independent evidence. The Supreme Court decision that Petersen was referring to was Kastigar v. United States 406 U.S. 441 (1972), which cast a long shadow over the use immunity statute. Although I assured Sam Dash I would testify with or without immunity before the Senate Watergate committee, Charlie said that if he was going to represent me he would insist on my having immunity. Sam Dash, a professor of criminal law, understood exactly what Shaffer was doing. For this reason, Dash and I were meeting secretly, going over my potential testimony so he could tell Chairman Sam Ervin that I must have immunity and Ervin would make it happen. With the appointment of a special prosecutor, and notwithstanding the fact that I understood it was likely Archibald Cox would be fired, I knew that when I pled guilty to conspiracy to obstruct justice that Nixon would never get a new attorney general without a special prosecutor. As Shaffer later told me, I had Oliver North’s case before Oliver North every dreamed he would have to take Kastigar to the next level: that Congress could not compel your testimony and then allow the executive branch to prosecute you with witnesses who had heard that testimony. See North v. United States 920 F.2d 940 (DC Cir., 1990).

  161 Conversation No. 164-10.

  162 Conversation No. 164-13.

  163 Nixon, RN, 846.

  164 Conversation No. 164-18.

  165 On Monday, March 26, 1973, Ehrlichman’s secretary had requested that David Young pull together his files on the Pentagon Papers investigation and send them over to Ehrlichman’s office. Young placed them in an attaché case and sent Ehrlichman the files. On Tuesday, March 27, Ehrlichman requested that Young come to his office, and they discussed the Ellsberg break-in. During this meeting, Ehrlichman told Young, “My present recollection is, I didn’t know about this until afterward. What about you?” Young replied, “Yes, I do. I not only recall it, I knew about it beforehand; and my clear recollection is you also were aware of it beforehand. And the memoranda in the file, in the briefcase,” which Young pointed at and which was in front of Ehrlichman’s desk, “the memoranda reflect that fact that you did.” Ehrlichman responded, “Well, there is no question about what actually happened. But I have taken those out, because they are too sensitive, and they show too much forethought.” Young commented, “Well, somebody also might have copies, Hunt and Liddy.” Ehrlichman replied, “Well, that’s a chance we will have to take.” In fact, David Young had copies of the memoranda showing Ehrlichman had approved the Hunt-Liddy Ellsberg operation in writing. Ehrlichman also met with Young on this subject on April 30, 1973, so it was clearly fresh in Ehrlichman’s mind when giving Nixon a false account. Testimony of David Young, U.S. v. Ehrlichman (July 1, 1974), 1048–52.

  166 Conversation No. 164-21.

  167 Conversation No. 164-24.

  168 Conversation No. 164-28.

  169 Conversation No. 164-30.

  170 Conversation No. 164-32.

  171 Ibid.

  172 Conversation No. 164-38.

  173 Conversation No. 164-39.

  174 Nixon, RN, 847–48; Haldeman, Diaries, 671–73; H. R. Haldeman with Joseph DiMona, The Ends of Power (New York: Times Books, 1978), 287–96; Ehrlichman, Witness to Power, 389–90.

  175 Conversation No. 164-44.

  176 Conversation No. 164-48.

  May 1 to 10, 1973

  1 National Archives and Records Administration (NARA) Conversation No. 45-41.

  2 Conversation No. 45-48.

  3 Conversation No. 45-65.

  4 Richard Nixon, RN: The Memoirs of Richard Nixon (New York: Grosset & Dunlap, 1978), 849.

  5 Ibid., 850.

  6 Having personally transcribed hundreds of these conversations, I know that there was no way Bob Haldeman, as able as he was, could begin to obtain an accurate account of a conversation with as much nuance as the one Nixon and I had during the first hour, as well as the different tone when Haldeman arrived for another forty minutes. Haldeman’s twenty pages of legal pad notes merely track the gist of the conversation.

  7 Nixon’s speech, along with the information I was sure had been leaked by Ehrlichman and Colson for Jack Anderson’s April 26 column, left no doubt where I stood. It would be my word against Mitchell, Colson, Ehrlichman, Haldeman and the president of the United States. On May 1, I had my first conversation with Charlie Shaffer about my knowledge of Richard Nixon’s role in the Watergate cover-up. As I talked with Charlie—and about the Nixon White House for the first time with anyone other than Nixon’s aides and enablers—I began to understand that I had been working in something of a criminal cabal, with well-meaning and intelligent people who had placed expediency and accomplishing the president’s goals above the legal rules we all might otherwise agree are essential for our way of life. That realization, not to mention the fact that I would be the target of an even tighter criminal conspiracy to protect Nixon’s presidency, certainly altered my thinking and actions.

  8 Conversation Nos. 908-1, 908-2 and 908-3.

  9 Conversation No. 123-3.

  10 Conversation No. 908-15.

  11 Conversation No. 45-93.

  12 See H. R. Haldeman with Joe DiMona, The Ends of Power (New York: Times Books, 1978), 296. See also Conversation No. 908-24. Nixon told Ziegler to apologize to the FBI agent, explaining, “The guy was standing out there in the hall blocking my path. As I came walking up, I said ‘Who are you?’ He said, ‘FBI.’ I said, ‘You sit inside that door. Get out of here.’ Can you imagine that? Stand out in front of Haldeman’s office.”

  13 Conversation No. 120-1.

  14 Conversation No. 909-2.

  15 Conversation No. 909-11.

  16 Conversation No. 909-6.

  17 Conversation No. 909-26.

  18 Trial transcript, U.S. v. Ehrlichman (July 11, 1974), 2341.

  19 Conversation No. 909-27.

  20 Conversation No. 909-29.

  21 Seymour M. Hersh, “6 MAY BE INDICTED: Promises of Clemency in Break-in Called Part of Scheme,” New York Times, May 2, 1973, 1. In fact, the gist of this story, and the parts that Ehrlichman reported to Nixon, were highly accurate. Hersh was getting solid information, but not from me.

  22 Conversation No. 910-3.

  23 Conversation No. 45-149 (Haldeman) and Conversation No. 45-151 (Ehrlichman).

  24 Conversation No. 911-2. Ehrlichman, and Krogh for a brief while, were totally confusing information I had given them. Months earlier, when in Henry Petersen’s office, he had shown me photographs the CIA had developed for Hunt and Liddy when they worked at the White House. They were pictures made of the office building of Ellsberg’s psychiatrist in Beverly Hills, California. Because Liddy had told me of his break-in operation on June 19, 1972, following the arrest of his men at the DNC, I immediately figured out that these were pictures they had taken when scouting the job and casing the offices. Remarkably, one picture included Liddy standing in the parking space under the sign: Dr. Lewis Field
ing. Beside Liddy were cars with California license plates. I said nothing to Petersen but returned to the White House and told Ehrlichman about them. In doing so, I made very clear that I had no indication whatsoever that Henry Petersen knew what to make of them. All Petersen told me was that he had shown them to Earl Silbert and asked Pat Gray about them. I also told Ehrlichman it would probably not take an investigator a half-day to put together what had happened by contacting Dr. Fielding, who was Ellsberg’s psychiatrist.

  When at Shaffer’s instruction (and to make certain we were not obstructing justice) I told Earl Silbert, on April 15, 1973, about the Ellsberg break-in, I did so by telling him about the pictures in Petersen’s files. After the Department of Justice revealed this to Judge Byrne, and it became public, Ehrlichman began telling Nixon that I had told both him and Krogh that Henry Petersen had been aware of the Ellsberg break-in because of these pictures. That was untrue. Until April 15, 1973, neither Silbert nor Petersen had any idea what the pictures from the CIA involved. Ehrlichman, in this May 2, 1973, conversation, again told the president that in “late November, early December” I had told Krogh “that Petersen, Pat Gray and Earl Silbert all had seen those pictures.” That was true, except none of them knew what the pictures involved, as Ehrlichman was now claiming.

  25 Conversation No. 911-16.

  26 Alexander M. Haig, Jr., with Charles McCarry, Inner Circles: How America Changed the World: A Memoir (New York: Warner Books, 1992), 332–35.