The Strong Man: John Mitchell and the Secrets of Watergate (39 page)

Mitchell took his seat, a green leather armchair, and rested his chin in his hand. He watched as Stans’s attorney, John Diuguid, introduced a motion to dismiss the charges based on pretrial publicity. The Watergate case was unrelated in substance, but the media’s saturation coverage of it could potentially be turned to Mitchell’s and Stans’s advantage. Diuguid submitted a five-inch stack of clippings and broadcast transcripts, along with curio items like “The Watergate Coloring Book,” and drew especial attention to a February 14
New York Daily News
article headlined: “Watergate Staff Claim Solid Case Against Mitchell.” “Now, under the circumstances,” Diuguid said, “it is hard to know how any literate person in New York could be impartial as he approaches this trial.”
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The judge did not agree, and he told them so: The only way to determine whether a fair jury could be impaneled, he ruled, was to try. Thus began the trial’s decisive phase, completed even before the first scrap of evidence was in: jury selection. Concerned about the pretrial atmosphere, Gagliardi ordered an unusually large pool of 1,500 prospective jurors. Of these, 196 were examined, producing a voir dire record that ran 2,000 pages. Prospective jurors were questioned about the hardships of sequestration, their knowledge of Watergate, and their media consumption habits.

Gagliardi also allotted the defense twenty-three peremptory challenges against undesirable jurors, the government eleven. Prosecutors left two of their challenges unused, while lawyers for Mitchell and Stans exercised all of theirs. This was pivotal. Later studies of the jury’s composition at each stage of selection showed Mitchell’s and Stans’s lawyers were far more adept at winnowing the panel down to an advantageous profile. Where 45 percent of the original panel had some college education, only 8 percent of the final jury did. Likewise, the percentage of Republicans on the final jury jumped from 15 to 25 percent, while the percentage of jurors “well informed” about Watergate decreased from 32 percent to a mere 8 percent.
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Once the jury was seated, thirty-six-year-old Jim Rayhill, his certificate of appointment as a federal prosecutor signed by Attorney General Mitchell, began delivering the government’s opening statement. “This case,” Rayhill said, “is about a contribution of $200,000 in cash, a briefcase full of $100 bills, to buy the political influence of John Mitchell and Maurice Stans. It is a case about fraud, about deception and about deliberate lies under oath. It is about the concealment by Mitchell and Stans of the $200,000 cash contribution by Robert Vesco, a man under investigation. It is about the illegal attempts by Mitchell, Stans, [and] a lawyer by the name of Harry Sears to help Robert Vesco by influencing, or even stopping, a federal investigation of Vesco and his companies.”
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Rayhill described how Mitchell had contacted William Casey on Sears’s behalf, and supposedly used John Dean to try to delay or quash the SEC’s subpoenas against Vesco and his employees. The prosecutor depicted Mitchell and Stans as supremely smooth operators, past masters in the dark arts of influence peddling. “The means used by these defendants in committing these crimes were neither crass nor crude,” said Rayhill. “Everything was underplayed.” The defendants then lied about it all before the grand jury, Rayhill argued. “The perjury charges…are the heart of this indictment, for…if their acts were perfectly innocent, there would have been no reason to lie about them in the grand jury.”
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Then the prosecutor crossed the line:

As you sit through this case listening to the testimony and observing how the witnesses behave, consider how essential it is that a jury be given truthful testimony under oath…and as you listen to the witnesses testifying before you,
put yourself in the place of the grand jurors who investigated this case, citizens like yourselves
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At that, Walter Bonner, Stans’s lead attorney, leapt to his feet. “I object to this,” Bonner shouted. “Sustained,” Gagliardi replied. “I have indicated to the jury what an indictment is, that it is nothing more than an accusation.” He turned to the jurors themselves: “That is the only weight and credit to be given to the indictment in this case. The defendants have denied the charge. Now proceed.” Rayhill completed his opening statement a few minutes later, and Gagliardi sent the jury out for lunch.

“I move for a mistrial,” Bonner declared, “because it was stated by Mr. Rayhill…that because people just like this petit jury had indicted these two men, that they should draw a natural inference from that fact that these men were guilty.” Mitchell’s attorney Peter Fleming joined in Bonner’s motion. The judge deferred a ruling, but added: “I’m very seriously considering a mistrial,” and recessed for ninety minutes.

After lunch, the jury still absent, Gagliardi told the lawyers: “I am gravely concerned over the apparent excess on the part of the prosecutor in bringing into his opening statement…references to the grand jury and its functions and bringing to it his personal conclusions, as though he were a witness in the matter.” Then he brought the jurors back in, instructed them anew that an indictment did not confer guilt, and adjourned for the day.

The prosecution’s case had barely begun—and was now in serious trouble. Yet the following Monday, Gagliardi chose to continue the trial, finding the reference by Rayhill “brief and ambiguous.” Moreover, the jurors had been instructed five separate times on the difference between their role and that of the grand jury.
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Where Rayhill stumbled,
Peter Fleming was brilliant. Six-foot-six, rakish gray hair flopped over his collar, the heavy-lidded, chain-smoking Fleming, educated at Princeton and Yale, looked like Robert Mitchum and sounded like Gregory Peck. He had spent twelve years as a federal prosecutor and reportedly “never lost a case.” His ring savvy, theatrical flair, and comic touch (asked once how long his cross-examination would take, Fleming replied, “It depends on how quickly he cracks, Your Honor”) made him one of New York’s most sought-after defense lawyers.
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In his opening statement, Fleming earned every cent of the $300,000 Mitchell paid him that year (nearly $1.2 million in current figures). He recounted Mitchell’s service in World War II, his self-made success on Wall Street and reluctance to become attorney general. “Mr. Mitchell didn’t want that eminence, didn’t want that lofty position,” Fleming told the jurors, “but took it for his friend and for his president.” Fleming also heaped doubt on the coming parade of government witnesses—Sears, Richardson, Dean—saying each was buying leniency with his testimony.

Then Fleming executed his masterstroke, a bit of rhetorical genius that cleverly, and decisively, recast the charges against his client. “That’s a big number,” Fleming acknowledged of the $200,000 in cash Rayhill had repeatedly mentioned; but where his own client was concerned, Fleming said, “it didn’t go to him…in four years of public service John Mitchell never got a red cent himself.” Moreover, Vesco’s money represented only a tiny fraction of the $60 million Stans and company had raised—less than one-third of 1 percent of all of the money contributed to reelect the president:

It is as if, in an election costing $100,000, Vesco had contributed $300. It is as if, in an election costing $100, Vesco had contributed, I think, thirty-three cents. So we just ask you to think of $200,000, which didn’t go to him but went into a campaign fund…whether, in essence, John Mitchell would sell his life for thirty-three cents.
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The prosecutors’ problems continued with their first witness. Harry Sears spent seven days on the stand, recounting his wretched existence as Vesco’s emissary to Mitchell. But which side benefited more from Sears’s testimony was often difficult to discern. Again and again, CBS News correspondent Robert Schakne reported, Sears “found it hard to recollect some important events; and on cross-examination, he seemed delighted to defend his old friend, John Mitchell.”
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“And so it went for the prosecution—one step forward and another backward,”
Time
reported. William Casey reprised his drinks at Mitchell’s Watergate apartment, the fateful call he received from Mitchell on April 10, 1972, his own meetings with Sears. Like Sears, however, William Casey proved a thorny government witness. Where prosecutor Wing wanted to prove that Mitchell had improperly passed to Sears one of Casey’s internal memos, Casey steadfastly maintained the memo in question always remained in his, or his trusted assistant’s, hands.
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Central to the case against Mitchell was the charge that he had sought to delay or quash subpoenas against Vesco and his ICC employees, and that to enlist Casey’s assistance in this effort, Mitchell had used John Dean as his agent. Consequently, the prosecutors realized that where Casey’s testimony had failed to establish Mitchell’s criminal intent, Dean had to hit the mark. They had little to fear on that score; unlike their previous witnesses, Dean’s motive to testify against Mitchell was unquestionable, almost palpable. For where Sears enjoyed immunity from prosecution, and Casey was never charged with wrongdoing, Dean was awaiting sentencing in the Watergate case, and—as the youthful former White House counsel openly admitted during cross-examination—he hoped his testimony at the Mitchell-Stans trial would earn him a lenient sentence. The stage was set, then, for the government’s star witness to take the stand.

Mitchell savored what happened
next for the rest of his life. “Peter Fleming got Dean on the witness stand and destroyed him,” Mitchell exulted to an interviewer in August 1988, ninety days before his death. “Absolutely
destroyed
him.”
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Indeed, after the Mitchell-Stans jurors rendered their verdict, a determined effort was made to minimize Dean’s importance to the outcome, and for obvious reasons: Those most heavily invested in his success as a witness in the Watergate case—Dean himself, the prosecutors, the media—could ill afford for Richard Nixon’s chief accuser to be branded unbelievable in a trial as important and high-profile as Mitchell-Stans. Dean grumbled after the verdict that he didn’t know anything about the case and couldn’t understand why anyone considered him its star witness. Wing tried to reassure Dean, only thirty-five, that the unsophisticated jury was the problem, not his poor performance under Fleming’s withering cross; the jurors, Wing said, were used to policemen and judges receiving cash under the table, and were probably impressed that Mitchell and Stans had never taken Vesco’s money for their own use.
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“Dean was definitely not the central witness,” Wing recalled; Rayhill remembered Dean’s role as “small.” However, in the days leading up to Dean’s testimony, Wing and Rayhill sang a different tune. So crucial was Dean to their case that they delayed opening the trial because of uncertainty over whether Dean would be permitted to testify about his taped conversations with Nixon. The prosecutors even told Judge Gagliardi: “We cannot risk trying this case without Mr. Dean’s testimony.”
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First the prosecutors had Dean recap his brief government career: his time as minority counsel to the House Judiciary Committee in the 1960s, his service under Mitchell at Justice, and his transfer, in July 1970, to the White House. Then they led him through his phone calls and meetings with Mitchell in the summer and fall of 1972, building their case that Mitchell used Dean as his instrument to block the SEC’s subpoenas. To buttress that notion, Rayhill asked the witness if he was known as “Mitchell’s man in the White House.” “Yes, I was,” Dean answered, pliant.
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Then it was Fleming’s turn. His performance later became—literally—a model used in legal textbooks. To cross-examine Dean, excerpts from his tape-recorded conversations with Nixon were read aloud—the first time contents of the Nixon tapes were made public (the White House’s edited transcripts were released a month later, and are still circulating in paperback form). Given the widespread—and erroneous—belief that the tapes completely vindicated Dean’s memory and testimony in the Watergate case, it is ironic that the tapes were first used to discredit him.
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