The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (13 page)

Alexander Butterfield, a deputy assistant to the president, revealed the existence of the White House taping system in testimony before the Senate Watergate Committee on July 16, 1973. A week later, relying on Dean’s testimony, prosecutors obtained a grand jury subpoena for
recordings of eight (later clarified to be nine) presidential conversations. Judge Sirica upheld the grand jury subpoena at the end of August, announcing that he would first review the recordings for relevance to the grand jury’s criminal investigations. The court of appeals, sitting en banc, upheld the subpoena on October 12 and ordered the tapes turned over for Sirica’s review.

The White House offered a compromise in which it would turn over transcripts, rather than the tapes themselves, which Senator John Stennis, a conservative Democrat from Mississippi, would authenticate by listening to the actual tapes. When Archibald Cox refused the compromise, Nixon had him removed as Watergate Special Prosecutor in the “Saturday Night Massacre” of October 19, 1973.

In the days that followed, the White House agreed to turn over the subpoenaed tapes themselves but soon informed the court that two of the conversations at issue had not been recorded and that the tape of June 20, 1972, contained an unexplained eighteen-and-a-half-minute gap. In late November and early December 1973, Sirica reviewed the seven surrendered tapes himself and arranged for copies to be turned over to WSPF prosecutors. On December 12, according to Richard Ben-Veniste, the prosecutors first listened to the tape of March 21, 1973—Dean’s “cancer on the presidency” meeting with Nixon—in which the president was informed of Howard Hunt’s blackmail demands. The prosecutors’ reaction was immediate and unambiguous: this was evidence that President Nixon had committed a series of criminal offenses.

In his Watergate memoir, Leon Jaworski, who had taken over as special prosecutor on November 5, described his own reaction to hearing that tape:

          
I was badly shaken, so shaken that I didn’t want anyone to notice it. I left Carl Feldbaum’s office that mid-December morning and made my way back to my own. I closed the door behind me. I needed to be alone.

                
My brain was acting like a ticker-tape. My thoughts were clear, but they ran through my mind without break, one becoming another and then quickly another. But one thought
kept coming back, hammering its way through the others: The President of the United States had without doubt engaged in highly improper practices, in what appeared to be criminal practices. I had heard the evidence. I had listened to that voice . . . as the President plotted with his aides to defeat the ends of justice.
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The White House would argue four months later, when they made this recording available to the House Judiciary Committee and released transcripts to the public, that while the president did toy with the idea of meeting Hunt’s blackmail demands, it was only for the purpose of buying time so that the White House could get its story out ahead of his. The president’s aim was, in essence, to defeat Hunt’s ability to blackmail them by disclosing that information themselves. In any event, the White House would assert, no decision was made during that meeting with Dean to take any such action. Instead, the president had announced to his aides that same day that he had decided to require his staff to appear before the Ervin Committee without claim of executive privilege in exchange for closed, non-public hearings. Besides, the White House argued, the question of Hunt’s blackmail demand became moot the following day, when Mitchell indicated that he thought that the matter already had been addressed.

But to Jaworski and his staff the March 21st tape was damning, in and of itself, simply because the payment of blackmail was given serious consideration. Of course, this tape was at the time the only evidence of any presidential involvement that they had, so it should come as no surprise that they chose to view it in its worst possible light.

The second development that re-focused the WSPF prosecutors’ sights on the president occurred on or about December 27, when they concluded that they had circumstantial evidence that President Nixon himself had ordered that Hunt’s blackmail demands be met.

This was the date when they were first able to pinpoint the time at which the last “hush money” payment was made to Hunt’s attorney, William Bittman. It was already known that this payment had occurred
sometime during the week ending on Friday, March 23, when Hunt was scheduled to be sentenced and taken into custody. While none of the government’s witnesses—including Fred LaRue, who had made the payment, and Bittman, who had received it—had kept detailed records, they all seemed to think that this last delivery had occurred on the evening of Tuesday, March 20.

When WSPF prosecutors determined that the delivery had actually occurred on Wednesday evening, March 21, however, everything changed—at least from their perspective. Wednesday was the very day that Dean had first informed Nixon of Hunt’s blackmail demand. If the money had been delivered that very evening, it might be possible to show that President Nixon himself had authorized and directed that final payment.

This possibility, which I call the “Frampton Supposition” (after George Frampton, who authored the memorandum that laid this all out),
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allowed the prosecutors to think they could show Nixon’s active involvement in the payoff scheme—an unambiguous and overt obstruction of justice. You can see why they found this idea so enticing.

The following facts, which supported the Frampton Supposition, were already established:

          
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Dean had learned of Hunt’s monetary demands—seventy-five thousand dollars for legal fees and sixty thousand dollars for future financial needs—from CRP attorney Paul O’Brien on Monday morning, March 19.

          
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Dean had informed LaRue of Hunt’s demands on either Tuesday evening or Wednesday morning and had suggested he might seek John Mitchell’s approval before making payment.

          
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LaRue had spoken to Mitchell by phone and obtained approval for payment of the legal fees. The timing of this call, however, would be crucial to the prosecutors’ theory.

          
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Dean’s March 21st meeting with Nixon ran from about 10:00 a.m. until noon. Haldeman joined them for the last half hour.

          
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Shortly after that meeting concluded, Haldeman called Mitchell. There was no recording of their conversation, and the White House maintained that the sole purpose was to invite Mitchell to a meeting the following day, but it was uncontroverted that such a call had occurred.

          
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Haldeman, Ehrlichman, Dean, and the president met at 5:00 that Wednesday afternoon to continue their discussions of how to respond to Hunt and how to handle the next day’s meeting with Mitchell.

          
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At 10:00 that same Wednesday evening, LaRue made a seventy-five-thousand-dollar payment to William Bittman, Hunt’s attorney.

All that was necessary for the Frampton Supposition to work was for the phone call between LaRue and Mitchell to have occurred
after
Haldeman’s call to Mitchell. If that were the case, the prosecution could argue that, after Dean had departed from his morning meeting with the president, Nixon (who in the tape had clearly displayed an inclination to meet Hunt’s demands) must have directed Haldeman to contact Mitchell and tell him to instruct LaRue to make the payment to Bittman, as LaRue had done that very evening.

It mattered little that Haldeman and Mitchell (and even Nixon, if it ever came to that) would stoutly deny that this was Nixon’s instruction or that the purpose of Haldeman’s phone call to Mitchell was to arrange the payment to Hunt. After all, they were soon going to be indicted, and the House Judiciary Committee and the cover-up trial jury could be expected to disregard their denials.

WHAT DID THE PROSECUTORS DO AND WHEN DID THEY DO IT?

The beginning of the WSPF’s focus on this beguiling possibility is best illustrated by two internal memoranda. The first is the 128-page draft Prosecutive Report on President Nixon prepared by George
Frampton of the Watergate Task Force and dated January 7, 1974. It details, in the midst of a much longer analysis of possible presidential culpability, the facts summarized above. That section of the report was probably inserted into a draft already under preparation. The second illustrative memo is from Philip Lacovara to Jaworski, bearing the same date (see
Appendix I
) and accompanying a more detailed analysis by a staff member, explaining how a defendant joining an ongoing conspiracy (which they were now certain that Nixon had done on March 21) could be held equally culpable for that conspiracy. It concluded:

          
Thus, D [for Defendant] could expect that failure of the conspiracy to continue successfully would jeopardize his ability to continue in office and to discharge his obligations effectively. The course of action he advised and which was, in fact, followed was plainly intended to ensure that the conspiracy did not fall apart. Accordingly, it is only fair to conclude that D knowingly, deliberately, and for his own benefit adopted and promoted the unlawful venture, thereby making it his own.
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As we will see, WSPF efforts to prove President Nixon’s involvement in the last Hunt payoff quickly merged with their work on the comprehensive cover-up indictment. I will address this convergence in the remainder of this chapter but break it into several separate topics for ease of explaining the significance of each: the internal battles within the WSPF, their secret consultations with Sirica, the decision to transmit a sealed grand jury report to the House Judiciary Committee, and the secret naming of President Nixon as an unindicted co-conspirator in the cover-up indictment.

WSPF’S INTERNAL BATTLES: JAWORSKI VS. COX’S ARMY

When Jaworski was appointed special prosecutor on November 5, 1973, his first challenge was to gain the confidence of the staff he had been appointed to lead. He never gained actual control, of course,
because their investigatory work was well under way when he arrived. All he could hope to achieve was an uneasy truce in the tug of war over how to handle their intended prosecutions.

It seems clear that the Frampton Supposition occasioned any number of battles within the WSPF, primarily because the staff prosecutors were unsure how best to exploit evidence of their new-found belief in Nixon’s personal involvement. Jaworski decided to consult secretly with Sirica—at least that is the logical conclusion from a fascinating section of the book by James S. Doyle, WSPF’s communications director. After several pages describing the WSPF lawyers’ certainty that Nixon had become an active participant in the cover-up conspiracy and the obligation they felt to so inform the House of Representatives, Doyle writes:

          
Toward the end of January a consensus began to emerge from the non-stop discussions and arguments. From the beginning one option had been clear. The grand jury could make a presentment to the judge which would lay out the case against Nixon and note that the grand jury was not issuing a formal indictment only because he was a sitting President. It seemed to carry with it all of the problems and disadvantages of an indictment and none of the legal virtues.
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Not happy with this approach, Doyle then describes how Jaworski had been discussing their options and various approaches with Sirica:

          
Jaworski met with Judge Sirica privately during this period, and while he never disclosed any discussions he might have had with the judge on this subject, his final, irrefutable argument against an indictment or other accusation against Nixon was, “Judge Sirica will not allow this. He will condemn the grand jury for overreaching, and he will condemn us for condoning or inspiring it. And he will dismiss the action out of hand.”
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The objections that Jaworski here attributes to Sirica are materially different from the judge’s concerns about a grand jury report that were detailed in Jaworski’s February 12th memo discussed earlier. It seems clear that Sirica’s two sets of concerns were conveyed to Jaworski in different discussions with the judge.

It is possible that Doyle, who is not a lawyer, did not appreciate the significance of his casual disclosure of the meetings between Jaworski and Sirica. In any case, his is the only book that mentions such a series of consultations between these two supposedly independent figures.

These same internal WSPF discussions also triggered a most interesting exchange of memos between Jaworski and Henry Ruth, the deputy special prosecutor. Originally hired by Cox, Ruth was now having second thoughts about the staff’s initial conclusions concerning how to handle President Nixon. These memos are also a part of the materials that have only recently come to light as a result of the author’s FOIA requests.

Ruth wrote to Jaworski on January 2, 1974, to reiterate his view that, even if criminal charges might be brought against the president, he and Cox had concluded that the proper avenue was the impeachment process, not indictment or naming the president as an unindicted co-conspirator. Ruth urged, however, that WSPF prosecutors immediately share with the House Judiciary Committee all of the evidence and findings of their grand jury with regard to the president. He believed that the committee staff were in substantial need of the WSPF’s assistance and, without the WSPF’s help, would fail in their high purpose of building a strong case against the president. If that cooperation did not achieve the desired result (i.e., Nixon’s impeachment), Ruth continued, then WSPF prosecutors should reconsider the idea of naming Nixon in a subsequent indictment.