The Nixon Defense: What He Knew and When He Knew It (63 page)

Ehrlichman had come up on the learning curve regarding obstruction, so he gave a perfectly legal explanation of the motives: “Well, you had defendants who were concerned about their families, and that’s understandable. You had lawyers who were concerned about their fees, and that’s less understandable. You have, well, I mean in terms of the end result, you had a campaign organization that was concerned about the success of its campaign and didn’t want these fellows to say anything in public that would disrupt the campaign.” “Is that legitimate to want people not to say it out in public?” the president asked. Ehrlichman thought it was but admitted, “Alright, but at the same time, a lot of those same people who had that legitimate motive had an illegitimate motive, because they were involved in protecting their own culpability, and here we’re talking about LaRue, Magruder, Mitchell possibly.” “[You mean] they wanted the defendants to shut up in court?” the president asked bluntly. “Certainly,” Ehrlichman replied.

“Let’s take Dean as a case in point,” Nixon said, wanting to know if, in the framework of Ehrlichman’s analysis, I could get out of it somehow. Ehrlichman, who had yet to grasp the full implication of the conspiracy law, replied, “Well, see, Dean’s problem is that he was in touch with these committee people who could to Dean express a benign motive and at the same time have had a corrupt motive. If I were Dean I would develop a defense that I was being manipulated by people who had a corrupt motive for ostensibly a benign motive.” As for himself, he was only concerned that Hunt had written forty books, and he could see “Hunt writing an inside exposé of how he broke into the Democratic National Headquarters at the request of the Committee to Re-elect the President.” Ehrlichman assured the president, “Oh, I didn’t care what Howard Hunt said to the prosecutors. He could have said anything he wanted to the prosecutors in a secret session, that didn’t hurt us. The grand jury was secret.” Ehrlichman soon added, “I can say in truth and candor that Dean never explained to me that there was any kind of a deal to get these guys to lie or change their stories or refuse to testify to the trial of the action or anything of that kind. That was just never discussed. So I don’t feel too uncomfortable with this.”
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Following the White House church service, the president had Kleindienst ushered to his EOB office for a meeting that lasted a little over an hour.
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While much of what Kleindienst and Petersen had learned from their U.S. attorneys had left them startled and unsettled, it came as no news to Nixon. The president later noted that “Kleindienst was highly emotional, and his voice choked periodically,” and “his eyes were red with fatigue and tears.”
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Although Kleindienst was surprised that I was talking to the U.S. Attorney’s Office, I had told my colleagues that I was doing so, so it did not surprise Nixon. Kleindienst did report that what my lawyer and I were telling the prosecutors was off-the-record unless we made a deal and that my lawyer was seeking immunity for me. Kleindienst also informed the president that I had, off the record, implicated Haldeman and Ehrlichman in the cover-up. When the president told Kleindienst that he had asked Haldeman and Ehrlichman if they had any complicity, and they denied it, Kleindienst soft-pedaled the little information I had received from the prosecutors, suggesting it was about merely moral indiscretions, not crimes. Nonetheless, he said both should resign.

They then had a broad, if not confused, discussion of obstruction of justice, with Kleindienst explaining that it all depended on motive.
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When the president pressed for information on what I had told the U.S. attorney, Kleindienst replied that I had reported to Haldeman on the meetings in Mitchell’s office with Magruder and Liddy and thought that I had turned it off. He also mentioned my discussion of the $350,000 being used to pay defendants as it related to Haldeman. As for Ehrlichman, Kleindienst told Nixon that I had said that Ehrlichman had instructed me to tell Hunt to get out of the country on June 19, 1972, which I had done, although I had quickly retracted the message I had sent Hunt through Liddy, who was not sure he could reverse it. In addition, Ehrlichman had told me to “deep six” the material found in Hunt’s safe, which I had refused to do. This information about Ehrlichman was new to the president.

Approximately fifty-one minutes into this conversation with Kleindienst the tape abruptly ends, and the last nineteen minutes are missing. In fact, the rest of the day’s conversations in the EOB office are missing. The next reel on the recording machine was supposed to have automatically started when the first machine had recorded for six hours, but that did not happen. Although this was one of the more dramatic Watergate days at the White House, it went largely unrecorded. Shortly after two o’clock on the afternoon
of April 15, 1973, the EOB office recording system stopped working,
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which was a far more important loss than the infamous 18½-minute gap of June 20, 1972. If there was ever any day for which Nixon, and Haldeman in particular, might want the recordings to disappear, it was this day, and that was exactly what happened: They simply disappeared.
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Nonetheless, the highlights of this day can be reconstructed, and the telephone recording system, which continued to function, provides a few additional clues as to what transpired.

When Kleindienst departed, Ehrlichman was summoned to the EOB office. It is not clear how much of Kleindienst’s report the president shared—he initially told Haldeman little when he called him after this meeting with Ehrlichman. This telephone call was recorded,
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and it was well into the conversation before Nixon even mentioned Kleindienst’s visit. Nixon reported that the attorney general thought it would take four or five years to sort out John Mitchell’s guilt, because Mitchell would fight it all the way to the Supreme Court. Nixon then turned to the Johnson/Witcover piece in
The Washington Post
, characterizing it by noting, “We are so low now we can’t go any lower. What do you think of that?” Haldeman did not know, but the mention of Kleindienst had not slipped by him. “So what does Kleindienst think now?” Haldeman asked.

Rather than tell Haldeman that Kleindienst had called for his and Ehrlichman’s resignations, the president answered, “Well, he’s for a special prosecutor.” Nixon added that he had come to that conclusion as well. While he would leave Silbert in charge of running the case, he would place a special prosecutor in the U.S. Attorney’s Office to supervise it all, avoiding any charge of a cover-up, and to sort out who was and who was not guilty of criminal offenses. The president did report that “Kleindienst also comes in with the idea that I should, he thinks, sometime I’ve got to go out and make a Checkers Speech at nine o’clock at night.”
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“Oh, Jesus,” Haldeman said, and Nixon told him that he had rejected the
suggestion, for that would only elevate Watergate in the public consciousness. Haldeman agreed, and the president continued. “But when the shit hits the fan I’m going to have to say it’s correct [to handle it] in the judicial system. The special prosecutor thing helps in another way, that it gets one person between me and the whole thing.” The president noted that his nonexistent Dean report was now discredited, which caused him to chuckle, since I was taking the hit in the press rather than he.

At 4:00
P.M.
Kleindienst returned to the EOB office with Henry Petersen in tow, whom he had found cleaning his boat. Petersen, still wearing a dirty T-shirt, jeans and sneakers, was making his first command performance before the man who had appointed a Democrat and career Justice Department employee to head the Criminal Division. Petersen repeated the loose charges I had made about Haldeman and Ehrlichman and said that he also thought they should resign. The president said he would defend them, because he did not have proof of their guilt. According to Nixon, Petersen responded, “What you have said, Mr. President, speaks very well of you as a man. It does not speak well of you as a president.”
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After trying unsuccessfully to reach Ehrlichman, who had gone home, the president joined Bebe Rebozo, who had come up from Florida, for a drive to the Washington Navy Yard and then a dinner cruise on the
Sequoia
down the Potomac. During dinner the president asked Bebe how much money he had in his savings at his bank, because he was thinking of giving it to Haldeman and Ehrlichman to help with their legal expenses. Rebozo rejected this notion and said that he and Bob Abplanalp could raise two or three hundred thousand for them in cash. Nixon said he dreaded going back to the White House because of the growing problems.
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He returned there at 7:40
P.M.
and went directly to his EOB office to meet with Haldeman and Ehrlichman, who had come at his request.

During this unrecorded meeting, which ran almost an hour and a half, the president told Haldeman and Ehrlichman of his meeting with Petersen, and that I was “in all day” with the prosecutors. (Petersen would give Nixon a report the following day, April 16, on what I had told them.) Petersen had said that the combined testimony of Dean and Magruder meant that both Haldeman and Ehrlichman would be going to the grand jury. “They told Dean,” the president reported, referring to the prosecutors, that they “would do the best they could for him,” offering me their “good offices if I cooperated.” The president said to Ehrlichman and Haldeman that I had told the
prosecutors that: Ehrlichman had instructed me to “deep six” material from Hunt’s safe; he had ordered Hunt out of the country; and he had given the material from Hunt’s safe to Pat Gray. Kleindienst had reported that Liddy had not talked, contrary to the information Shaffer and I had been given by the prosecutors. They had nothing on Colson. The president thought “Petersen was crusading.”

Ehrlichman said that he had been trying to reach me all day. (When Shaffer and I learned the prosecutors had broken their confidentiality agreement, he strongly urged me not to continue to talk to Ehrlichman or Haldeman. I did, however, pass word to the president that I would speak with him if he wished.) At 8:15
P.M.
, while still meeting with Haldeman and Ehrlichman, the president called Petersen for an update, but Petersen had no additional information. Petersen liked the idea, which had been suggested by Colson and Ehrlichman, of the president’s sending Liddy a signal that he wanted Liddy to talk. At 8:25
P.M.
the president received the note from me indicating my willingness to speak with him.
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Soon I received a message from Nixon that he would like to meet me at 9:15
P.M.
, and I headed for the White House. When Nixon ended this meeting just minutes befor my arrival by telling Haldeman and Ehrlichman that both Kleindienst and Petersen felt they should resign, they “were stunned.”
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My meeting with the president in his EOB office lasted for just under an hour. I explained to him that I had been quietly but actively trying to end the cover-up without destroying his presidency. Naive as it seems now, at the time I really believed that my going to the prosecutors, plus having Shaffer encourage Magruder’s attorney to have him speak to them as well, would result in Mitchell, Ehrlichman, Haldeman and Colson joining us in admitting the errors that had been made, and the affair would finally come to an end with the president left standing. I had no idea at that time that the president himself had been so deeply involved in the cover-up, principally through Haldeman, but not without Ehrlichman from time to time, as was clearly revealed by the conversations that began on June 20, 1972.

This conversation is not important so much for what was said as for the way it was said, and for what I learned. From the outset Nixon seemed different than he had been in our previous conversations. Clearly he had been drinking, and while not drunk, he seemed exhausted, slurring his words and looking remarkably rumpled in contrast to his usual crisp appearance. Three things made the conversation unforgettable. First, he took
me though a series of leading questions involving distorted facts about Haldeman, Ehrlichman or himself. But they made me wonder (as I later testified) if he was recording me.
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Second, he was clearly and deeply concerned about his own actions with regard to our March 21 conversation, because at one point he asked me if I recalled his mentioning that it would be no problem to raise a million dollars for the Watergate defendants. When I told him that I did, he said that he had of course been joking. He then got out of his easy chair, crossed the office and asked me in hushed tones about his conversations with Colson about clemency for Hunt, telegraphing not only his concern with personally being involved in obstruction, but that he did not want his question recorded. Third, I had to muster considerable fortitude to advise the president of the United States that I was concerned that if he did not handle this problem correctly it could result in his impeachment. He assured me he would do so.
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When I departed, Haldeman and Ehrlichman returned, and the president repeated almost everything I had told him about their activities while it was fresh in his memory. Based on Haldeman’s notes summarizing the key points of that meeting, Nixon told them that I had “no knowledge of the bugging, [but] on obstruction, both Haldeman and Ehrlichman are involved.” I had described their involvement in the obstruction as a “conspiracy by circumstances, whether or not intended.” I did not think Kalmbach “knew the reason for [the] money,” which was followed by some of the details about when and how the money was transmitted. I reported that I had “briefed Ehrlichman and Haldeman every inch of the way.” Then Nixon asked me about Petersen’s providing grand jury information to me, and I felt he had not given me anything “improper.” I had told the prosecutors of meeting with Ehrlichman and Colson regarding clemency for Hunt, and that Ehrlichman had told Colson to “make no commitments.” Haldeman’s notes end with Ehrlichman’s calling Pat Gray to inform him that I had told the prosecutors we had given him materials found in Hunt’s safe rather than hand them over to the FBI agents. Gray at first said he would deny receiving them. Ehrlichman called him back and told him it would be best for him to tell the truth, because Ehrlichman knew better. Gray then admitted he had destroyed the material.
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