The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (27 page)

                
M
R
. W
ILSON
[Haldeman’s defense counsel]: I would like, through you, to ask Mr. Neal is the government withholding from the defense, documents which might be helpful to us in the cross-examination of Mr. Dean or that might be relevant to that cross-examination?

                
J
UDGE
S
IRICA
: Mr. Neal looks like he is itching to answer that question.

                
M
R
. N
EAL
: May it please the court; I am too cautious to answer something like that. I don’t know what would be helpful to Mr. Wilson in cross-examining Mr. Dean. All I am saying, Your Honor, we have turned over everything that we are obligated to turn over.
³²

The prosecution compounded its violation of the Brady doctrine on the subsequent appeal when Rient and Denny, the members of the Watergate Task Force responsible for the memorandum about Dean’s evolving story, both signed the appellate brief, which asserted that “the prosecution thoroughly reviewed and voluntarily produced all documents and other materials even remotely relevant to the issues to be tried.”
³³

Not alerting defense counsel to the existence of this memo or of the handwritten notes, which could have raised reasonable doubt as to the credibility of key aspects of Dean’s testimony on behalf of the prosecution, was a violation of the Brady doctrine. This omission alone, if known at the time, could have been the basis for reversing the convictions and remanding for a new trial.

THE BRADY DOCTRINE AND JEB MAGRUDER

The WSPF prosecutors’ handling of Jeb Magruder, its other principal witness, raises a separate set of questions about the ethics and conduct of the prosecution.

Handsome and engaging, Magruder joined the Nixon White House staff in mid-1969 as deputy director of communications. He left that position in May 1971, one of the first people assigned to help organize the Committee to Re-Elect the President. He functioned as acting chief of staff until John Mitchell’s arrival the following March.

When Gordon Liddy showed up at CRP talking about spending a million dollars or more on a campaign intelligence plan, Magruder responded that only Mitchell had the authority to approve expenditures at that level—and he was still attorney general. Thus Mitchell’s involvement in the two fateful meetings, on January 27 and February 4, 1972, in which Liddy presented his campaign intelligence plans to Dean, Magruder, and the attorney general, was, ironically enough, the result of Magruder’s
budgetary
concerns.

Magruder knew a great deal about the events that led to the Watergate break-ins:

          
•
    
Magruder had not only been at the planning meetings of January 27 and February 4, he had also presented Liddy’s wiretapping plan at the third meeting—with Mitchell on March 30 in Key Biscayne—the meeting at which, Magruder later asserted, Mitchell had approved the Liddy plan.
³⁴

          
•
    
Magruder had authorized the funds that had been disbursed to Liddy to effectuate his plan.

          
•
    
Magruder had received the fruits of the one Watergate wiretap that worked.

          
•
    
Magruder was the one who allegedly ordered Liddy to take his team back in to repair the wiretap that was not operating correctly.
³⁵

The trouble was that he didn’t know much about any possible involvement of Haldeman or Ehrlichman in the cover-up itself. His main
involvement was in covering up his own criminal conduct, including his having given perjured testimony (with coaching from Dean) on two occasions. When the cover-up collapsed, Magruder was desperately eager to be helpful to the prosecutors, but he had little of substance to offer. His primary role, as the WSPF prosecutors saw it, was to support Dean’s lead testimony. Magruder, however, could not corroborate anything Dean said about Dean’s meetings with Haldeman and Ehrlichman, since Magruder had not been present, at least not after the June 17th break-in, and Dean’s own recollections kept evolving.

In the thirty-month period between Magruder’s first grand jury testimony and his testimony at the Watergate cover-up trial, he had offered sworn testimony before Watergate grand juries on at least five occasions and had been subjected to in-depth interviews by prosecuting attorneys on at least sixteen separate occasions. He had told and retold his story so many times, each time with slight variations, that he may not have been able to remember with any precision what had actually happened. He only knew that he wanted to please the prosecutors, the ones who held his fate in their hands. He appears to have adopted the protective posture of telling them whatever he thought they then wanted to hear.

It would not be odd for Magruder’s various re-tellings to contain minor variances, but the situation was far worse than that. James Neal, the lead prosecutor in the cover-up case, once shared his concern with President Nixon’s own Watergate defense lawyer, J. Fred Buzhardt, saying that he was not at all sure that the prosecutors could put Magruder on the witness stand in good faith, since they had substantial doubts about his veracity. Magruder, Neal explained, was so scared of going to prison that he was liable to say anything that he felt the prosecutors wanted.
³⁶
It was an ethical issue, as well as a question of possible prosecutorial misconduct, since lawyers are not allowed to put witnesses on the stand when they know they are going to lie.

There is a hint of this same concern in Dean’s book:

          
Neal looked disgusted. “I’ll be honest with you. [Magruder’s] a crybaby. All he does is bitch, bitch, bitch. I don’t like him
very well. Any man who slants his testimony to satisfy a prosecutor is weak, and I don’t have much respect for your friend Jeb.”

                
I had already known that Jeb’s testimony had vexed the prosecutors; Jill Volner [another attorney on the Watergate Task Force] had complained often about his eagerness to tailor his story to the prosecutors’ needs.
³⁷

The material discrepancies in Magruder’s various recollections were laid out in an internal memorandum prepared for WSPF counsel to use in guiding him through his testimony in the cover-up trial. The undated and unsigned forty-four-page document is titled “Jeb Stuart Magruder—Direct Testimony” and is contained in the special prosecutor’s Magruder file at the National Archives.

The memo identifies fifty-seven topics to be covered during Magruder’s direct testimony and provides summaries of what Magruder is expected to say with regard to each topic.
³⁸
The memo helpfully identifies the source for each expected response—particularly when it comes from earlier sworn testimony, either before the Senate Watergate Committee or the grand jury. It also notes where Magruder’s expected testimony might conflict with the sworn testimony of another government witness. The trouble for the prosecutors is that the memo identifies some
four dozen
potential discrepancies.

For example, Magruder met with Mitchell and his assistant Fred LaRue in Key Biscayne on March 30, 1972. Magruder had prepared thirty action memos for discussion, the last of which concerned Liddy’s scaled-down intelligence plan. Magruder contended that Mitchell approved the plan at this meeting, but his previous testimony differed as to how or in what form the plan was presented. The memo describes Magruder’s expected testimony about this meeting:

          
Liddy plan memo was last: it was a $250,000 budget on plain paper, probably on several sheets,* with operational figures and it clearly indicated the intended purchase of electronic
surveillance equipment and called for wiretapping and photographing documents and entry.

The asterisk, however, points to problems with Magruder’s current story:

          
* It was not in the orginary [sic] action memo form because there was no notation typed on it for “approve, disapprove, comment.” Magruder has waivered [sic] as to whether there was a new budget typed for $250,000 or the old $500,000 was just verbally altered (he now thinks there was a new $250,000 budget and says he waivered due to [Robert] Reisner’s [Magruder’s assistant at CRP] testimony that he told R to tell Liddy “First half approved.” Since Reisner and Sloan saw a paper with a $250,000 total and Mason says she typed a budget on plain paper around 3/17 for $100,000, there probably was a new budget for $250,000, but query whether it was one or several pages (Reisner says one; Sloan and Mg several).

Magruder was then to be asked about the specifics of Mitchell’s approval of Liddy’s plan. About a third of Mitchell’s testimony at the cover-up trial was devoted to contending that he had not approved the plan at this meeting and therefore had nothing to cover up. LaRue, another government witness, also testified that Mitchell had not approved money for Liddy’s plan at this meeting. Magruder’s testimony was to the contrary, but again Magruder was uncertain as to the details. The memo notes some of the problems:

          
Magruder recalls that LaRue was negative. . . . Magruder’s memory was jogged by LaRue’s Senate Select Committee testimony and [now] does remember that Mitchell was initially inclined to delay approving the budget, as was Mitchell’s wont in some cases. It was in that context that Mitchell
orally and reluctantly approved the plan and said, “Well, let’s give him this much and see what he can do with it,” or words to that effect*

                
* But see [this portion is redacted, probably because it refers to non-public grand jury testimony—but clearly indicates the prosecution is aware of contrary or conflicting testimony by Magruder or some other government witness.]

                
Magruder has no recollection of LaRue being there or not being there when budget approved. LaRue may have gotten up to take a phone call in the other room, as he had done once or twice during the day. Omit?

                
Mg goes back to hotel. Tries unsuccessfully to call Liddy. Calls GS* [Gordon Strachan, Haldeman’s assistant] and tells him all results of KB [Key Biscayne] mtg, including JM’s approval and targets selected. Calls Reisner and tells him (1) to have Liddy contact Mg in Florida or (2) tells him to tell Liddy his project is approved.**

                
* Hotel Records show 2 calls to WH on 3/30—1 for 16 minutes and 1 for 29 minutes. But SS 1983 [Magruder’s Senate Watergate Committee testimony] and [reference redacted, which must be Magruder’s grand jury testimony] says Mg spoke to GS after return to D.C. SS 2036 says call may have been from Key Biscayne.

                
** [redacted reference, again probably to Magruder’s grand jury testimony] Mg said was (2). Reisner’s testimony is that Mg told him to tell Liddy it was approved in person and he’s not sure it was after KB, but, says it is only logical that it was. R’s diary is consistent with possibility Mg tried calling Liddy or having R tell Liddy to call him and having failed to reach him from Florida, then telling R to give message to L after he had returned from Florida.

Despite the obscurities here, it is clear that Magruder had sworn that he called Strachan to inform him of the results of all thirty action items,
either before he left Key Biscayne or after he returned to Washington. This would have been a rather long call, and Magruder’s failure to remember when he had made it did not help his credibility. Similarly, Magruder’s testimony differs from Reisner’s as to whether he instructed Reisner to have Liddy call Magruder or instructed Reisner to tell Liddy that the plan had been approved. Magruder now seems insistent that he instructed Reisner not to use the phone but to talk to Liddy in person once they had returned from Key Biscayne.

One more example should suffice to illustrate the thicket of contradictions from which the prosecutors had to extract Magruder. What really undermined Mitchell’s denial of having approved Liddy’s plan was a call that he had subsequently received from Maurice Stans, chairman of CRP’s finance committee, questioning the large sums of money that Liddy was requisitioning, which Mitchell then approved. Here, too, Magruder’s testimony changed as to the specific circumstances. The memo reads:

          
Shortly thereafter Mitchell asked Magruder to explain Liddy’s request, which Magruder did. Magruder said that the disbursement was “front money” for equipment and personnel for the intelligence plan which Mitchell had approved. JM said he’d tell Stans. [JM in Mg’s presence told Stans it was ok to give L $] (NEW! Omit if possible)

Here Magruder has suddenly and for the first time recalled that he was present in Mitchell’s office when Mitchell called Stans to approve the disbursement to Liddy. He had never made such an assertion before, and if it came out at this late date, it would further undermine Magruder’s credibility with the jury. Hence, the advice to omit any reference to this if possible.

The WSPF memo goes on, working its way through dozens of such discrepancies, which—if defense counsel had but known of them—could have been devastating to Magruder’s credibility. Prior inconsistent statements are a godsend to defense counsel, who don’t really care which
statement is correct. They simply point out the inconsistency and ask, “Were you lying then or are you lying now?” One or two inconsistencies can be enough to severely undermine a witness’s credibility before the jury; four dozen would be like shooting fish in a barrel.