The Strong Man: John Mitchell and the Secrets of Watergate (40 page)

Excerpts from Dean’s taped meetings with Nixon also undermined the prosecution’s central thrusts.
Wasn’t that Dean himself telling the president no one had done anything for Vesco?
The disparities led even Judge Gagliardi to question, outside the jury’s presence, whether “something in those tapes may be inconsistent with something that [Dean] said on the stand.” Fleming also skillfully exploited the changes in Dean’s testimony, not only from grand jury to trial, but from day to day within the trial. To attack Dean’s character, Fleming posed a series of razor’s-edge questions—most of them stricken by Gagliardi—reprising allegations about Dean’s unethical conduct in private legal practice and embezzlement of campaign funds, his ownership of a Mercedes-Benz, and negotiations to write a book.
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The circumlocutory, evasive, often nonresponsive answers that had served Dean so well at the Senate Watergate hearings the previous summer found no quarter with Fleming. At one point the defense lawyer asked Dean if he had previously testified that a certain telephone call had taken place on December 8, 1972. “I did use that date, yes,” Dean answered. “Not ‘use that date,’” Fleming shot back. “You answered that that
was
the date.” “Yes, that’s correct,” Dean agreed. So accustomed had Dean grown to answering questions as he saw fit that Judge Gagliardi was forced—repeatedly—to admonish him, a distinction unique to Dean among the trial’s fifty-nine witnesses: “Mr. Dean, I don’t want to reprimand you again, sir.”
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The jurors took note. Interviewed after the trial, foreman Sybil Kucharski said the jury found Dean “often unbelievable,” in contrast with those “credible men,” Mitchell and Stans. “We didn’t feel that they had any reason to lie or to perjure themselves,” she said. “John Dean we didn’t feel the same way about.” Even a dispirited John Wing acknowledged after the trial “these twelve people didn’t believe [Dean] beyond a reasonable doubt as to some things he said about facts in this case.”
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By the time the
government rested, few thought Wing and Rayhill had established Mitchell’s guilt beyond reasonable doubt. “Every prosecution witness who takes the stand somehow turns into a defense witness,” reported
Newsday
’s Joe Treen. Winning the case now depended on the prosecutors’ ability to rattle defense witnesses—primary among them, Mitchell himself. To the reporters who crowded him each night, Fleming kept coy about whether his client would testify in his own defense. “It’s a surprise,” he would say. Years later, he acknowledged otherwise: “[Mitchell] was going to testify and we always knew he was going to testify.” Fleming was a strong believer in defendants taking the stand. “That’s all a jury wants to hear, is a defendant’s testimony,” he said.
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Getting the client to cooperate was another matter. It was as if Mitchell’s original slowness to acknowledge his peril was followed by a stubborn refusal to prepare for his testimony in any normal sense; his confidence in his own legal acumen, the foundation of his life for four decades, never buckled. Two days before Mitchell was to testify, Fleming tried to go over the areas they would address on direct examination. “I ask him about four questions,” Fleming recalled, “and he says, ‘Ah, I’m tired of this.’ So I say, ‘Fuck it, we’ll do it tomorrow.’ He comes down Tuesday. I ask three questions and he says, ‘Forget it. I’ll just testify.’” Fleming couldn’t believe Mitchell’s insouciance. “
Fuck
you!” he spat. “We’ve been breaking our ass for you for ten weeks with this trial, and you can’t even let us ask you questions to prepare?” “Oh, get out of here,” Mitchell replied. Stymied by his own client, Fleming drew up on yellow legal paper a two-and-a-half-page outline of topics he planned to cover on direct examination, and had it delivered to Mitchell the night before he was to take the stand. The next morning, Fleming picked Mitchell up and headed for Foley Square. Inside the car, Mitchell handed back the outline and said simply: “Let’s go.”
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Shortly after 2:00 p.m. on April 10, 1974, Mitchell took the stand, the first attorney general in such straits in a half century. Fleming began by having Mitchell recap his life story, especially his reluctance to join the Nixon administration. “There were [
sic
] a series of re-approaches,” Mitchell cracked, “and finally, after the twenty-fifth or twenty-sixth—I forget how many there were—I relented and accepted his appointment.” Fleming also emphasized Mitchell’s financial sacrifice, contrasting the attorney general’s salary—initially $42,500—with what Mitchell had earned the year prior to his appointment (“somewheres in excess of $300,000”).
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Soon it was the prosecution’s turn. “Mr. Mitchell,” Wing began, “how did it come about that Vesco’s $200,000 cash contribution was listed under your initials on April 10?” “I have no idea, Mr. Wing,” Mitchell replied.
When did you first learn of it?
About the time Stans testified before the grand jury in 1973, Mitchell answered.
Was it about that time or precisely that day?
“In my recollection,” Mitchell said, “it was precisely that day, but Mr. Stans told me that he had advised me a few weeks in advance of that; if he did, it made no impression on me. But it certainly came home to me after he had testified up here in March of ’73 before the grand jury, and we had lunch and he told me about it.” In this first confrontation, the prosecutor flailed. Wing repeatedly asked if Mitchell was sure of his version of events, and Mitchell held fast; when Wing revisited Mitchell’s grand jury testimony on the matter, it matched what he was saying now.

When Wing next rolled out Mitchell’s grand jury testimony, it was designed to show Mitchell was either mistaken or lying when he claimed, at trial, that he had never reviewed his logs prior to his grand jury appearance, to check when he had met with Sears. “I have looked at my diaries,” Wing quoted Mitchell as saying in his first grand jury appearance, “with respect to the meetings I had with Sears…” “Now is that a fact, Mr. Mitchell,” asked Wing, “that you
did
review your logs, looking for meetings with Mr. Sears during the—” Mitchell cut him off. “Mr. Wing, you have mixed up the diaries with the logs. That [grand jury testimony] refers to the diaries, which are personal appointments.” Now the old Wall Street legend was schooling the younger lawyer.
You weren’t referring to your logs at that time?
Wing asked. “I said ‘diaries,’” Mitchell replied tartly.
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Since Mitchell’s grand jury appearances consumed hundreds of pages, it was inevitable that discrepancies would arise between his testimony in that forum and at trial. But Wing never got Mitchell anywhere close to admitting he was party to corruption.

WING:
It never occurred to you that Mr. Vesco was looking for anything as a result of giving a sum of money in that amount, is that correct, Mr. Mitchell?

MITCHELL:
It never occurred to me in any form, shape or manner, because if Mr. Vesco in my opinion thought he was going to get a favor, he would have been looking for something more than a meeting with the chairman of the Securities and Exchange Commission, just a meeting.

WING:
[…] Do you think, Mr. Mitchell, that Casey’s treatment of this particular case would be somewhat affected by the fact that you were the one calling up asking for him to meet with Sears?

MITCHELL:
No, Mr. Wing, I wouldn’t flatter myself to that extent.
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Nothing shook Mitchell from his account of the Swiss jailing incident, nor elicited from him, on the Beirut bank episode, anything more than an acknowledgment of forgetfulness where the meetings with Mark Felt were concerned—acknowledgments Fleming had already wisely elicited on direct examination. Nor did Wing budge Mitchell on the contents of his meetings with Harry Sears, or on whether Mitchell had ever given Sears, or received from him, any documents. Similarly, Mitchell held fast in his denials that he discussed Vesco with Dan Hofgren, or did anything to delay or quash the SEC’s subpoenas.

Frustrating Wing’s task was Mitchell’s masterful facility, honed over a lifetime of practice, with the peculiar language of the law—and, too, his instinct for knowing when to abandon it. To one repetitive thrust he exasperatedly replied: “Mr. Wing, I have answered that three different ways. I will try it again.” At another point, when Wing referred to his interview of Mitchell in the latter’s law office in February 1973, Mitchell corrected his questioner: “Mr. Wing, I think you took very bad notes at that meeting.” Asked if he was “responsible in part” for Casey’s nomination as SEC chairman, Mitchell turned Socratic: “When you say ‘in part,’ would you describe it for me, or would you like me to describe my part in connection with it?”
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Among those who came away from Mitchell’s testimony with newfound respect for him were his tormentors, the prosecutors. “I was impressed with Mitchell, the way he dealt with the case,” Wing recalled. Rayhill agreed, calling Mitchell “a stand-up guy” and a “very strong human being.” Rayhill said he came to believe Mitchell genuinely “did not feel he had done anything wrong…in connection with the Vesco investigation…that he thought he was doing what an average American would do.”
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For Fleming’s summation,
Mitchell angled himself toward the jurors, one hand cupping his chin, the other draped over his chair. In a five-hour closing argument, Fleming derided the government’s case as “a joke,” “a dream,” “a creation,” “a fairy tale,” “an Easter egg hunt,” “Christmastime,” “
Alice in Wonderland
,” “
Wizard of Oz
,” “Mulligan stew,” “mush,” and “chicken hash.”

Fleming choked back tears extolling his client and assailing Mitchell’s accusers. “Had Harry Sears not sought the golden calf of Robert Vesco,” he said, “none of us would be here.” The prosecutors “bought [Sears’s] testimony. He’s bought and paid for. You measure it…. Is [John] Dean Saint Paul on the road to Damascus, who is struck by the lightning of God and becomes a Christian? Or is John Dean struck by the letter of [Watergate burglar] James McCord to Judge Sirica?” He said the case boiled down to one simple question:
Who do you believe?
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Fleming’s emotionalism, coupled with that of Stans’s lawyer, Walter Bonner, who alternately preached, shouted, pleaded, and cried in asking the jurors to give Stans back his good name, contrasted starkly with the coolly reasoned approach John Wing adopted. “This isn’t a ‘fix’ case,” he said, using Fleming’s preferred word. “It is a case of men
trying
to use their political power to influence the officials in the SEC…. These men don’t call a fix a fix—it would be
gauche
. They call a fix a ‘request for help.’”

John Mitchell took the stand and deliberately lied to you to get out of this…. Ladies and gentlemen, John Mitchell has no right to lie under oath any more than you or I or anyone else has, and if you find that John Mitchell lied under oath and if he gets away with it, what man in the country shall have respect for law?
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Stans remembered himself and Mitchell reacting differently to Wing’s summation. “John Mitchell was a tower of strength,” Stans recalled in 1992. “There were times when my confidence would flag because of the manner in which the prosecutor was demonstrating bravado…. It bothered me particularly when I heard Wing give his closing address to the jury. Mitchell had to firm me up, [saying] ‘Maurice, this is just part of the show they’re putting on. It’s not going to affect the jury in any way. Just relax and we’ll see.’ He was confident of acquittal…. I took a lot of consolation from being in with him rather than being alone, I’ll tell you.”
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The nine men and three women on the jury deliberated for twenty-eight hours over three days. Inside the jury room, foreman Sybil Kucharski later told the
New York Times
, it was her “impression” that the jury was initially inclined to vote eight-to-four for conviction. But no formal vote was taken. In fact, in the first voice vote, on the indictment’s first count—a conspiracy charge against Mitchell—the jury split evenly, five for conviction, five for acquittal, and two undecided. “We were off in little groups and screaming and yelling,” Kucharski said. “Some of us were emotional.”
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