The task of wisdom was to replace Gray; still, his nomination went forward. Gray was a disaster waiting to happen. His lack of any constituency, the hostility of old FBI hands, and his vulnerabilities as a witness given his early attempts to stall the Watergate investigation clearly foreshadowed difficulty for an Administration already besieged with troubles. Perhaps Gray’s Watergate ties gave the President no alternative. Dean observed that Gray offered “no choice”; the Administration, he said, could not “afford an angry Pat Gray loose on the streets.” The only thing worse than nominating Gray, Dean concluded, was not nominating him.2
The President’s incessant concern for finding a new, pliant FBI Director curiously yielded nothing except to bring him back to Gray. Was Nixon concerned about the danger of not nominating him? Perhaps; but equally likely, the President stubbornly remained fixated on appointing subordinates absolutely loyal and dedicated to Richard Nixon. Gray fit the mold perfectly.
He had substantial credentials. Fifty-seven years old, from a railway worker’s family, Pat Gray had attended Rice University on scholarship during the Depression. He then received another four-year grant to attend Annapolis and served as a submarine commander during World War II. The Navy selected Gray to attend George Washington University Law School, and he graduated with honors in 1949. As a legal officer, he served both the Joint Chiefs of Staff and the Secretary of the Navy. He had met Nixon in 1947, admired him greatly, and worked in the 1960 campaign. Shortly thereafter, Gray moved to Connecticut to join a law firm, but he left in 1968 to move into the new Nixon Administration as Executive Assistant to Robert Finch, whom Gray had met in 1960. In 1970 Gray transferred to Justice, where he became Assistant Attorney General for the Civil Division and later Deputy Attorney General. Most notably in this period, he directed efforts to prosecute antiwar protesters in Washington.
“The world’s original patriot, with a strong boy scout tendency,” a close friend and aide of Gray recalled. Nixon knew he would be loyal. Ex-submarine-commander Gray was a man trained to accept uncritically decisions of superior officers; those of the Commander-in-Chief, of course, were particularly beyond question. But Gray also had a conscience, a conscience that the Nixon people apparently never measured properly, if at all. He had been concerned over the propriety of the Justice Department’s mass arrests of antiwar demonstrators and repeatedly expressed worry to friends about the effects of prosecution on the young defendants. Gray may never have fully fathomed the motives and ambitions of such presidential aides as Ehrlichman and Dean. Although he realized that he had been used by them since the break-in had occurred, he naively asked his own aide, a man with longstanding ties to Nixon himself, if such men would knowingly violate any laws.3
John Mitchell had first suggested Gray’s name for the FBI post in the summer of 1971, amid the Administration’s growing disenchantment with J. Edgar Hoover. Mitchell thought that Gray should be sent from his Justice Department post to the FBI as Hoover’s deputy for about six months and then be nominated as Director. Ehrlichman and Nixon further discussed Gray at a meeting on October 25, 1971, both apparently believing that Hoover might agree to Gray as his successor.4
No doubt, Gray was the President’s man. Nixon wanted changes in the Bureau; it had grown too ossified, too rigid, and above all, too much into a personal fiefdom. He wanted a Director and a Bureau more responsible to his own wishes, a laudable goal given Hoover’s almost total unaccountability. Gray was the right man. Shortly after he became Acting Director, a White House operative suggested that Gray speak to the prestigious City Club in Cleveland during the forthcoming political campaign because of Ohio’s electoral importance. Neither Nixon nor any president would have approached J. Edgar Hoover with such a “request.” But there was a side to Gray that the President may not have anticipated; he opened the FBI’s windows for the winds of change. Women, blacks, and Hispanics were actively recruited; younger people received more rapid advancement as older hands were encouraged to retire early; family wishes became a consideration in what once had been a capricious transfer system for agents; and Gray even explored the possibility of an FBI oversight board.5
Gray’s positive achievements were quickly disregarded once the Judiciary Committee hearings disclosed that he had regularly submitted FBI investigative reports to Dean. He contended that Hoover had made a practice of providing reports of ongoing investigations; further, he thought that he was merely supplementing Dean’s own investigation. In a conciliatory move, Gray offered to make the Watergate files available to the senators—an offer later vetoed by the White House. But more was to come. The committee learned that Dean took a week to turn over the contents of Howard Hunt’s White House safe to the FBI (Gray thought nothing was “irregular” about this: “the President’s got a rather substantial interest as to what might be in those papers,” he said on March 6). The Judiciary Committee also secured affidavits from CREEP employees who had cooperated with the investigation, stating that their superiors knew almost immediately about their statements to the FBI. By March 13 the committee had heard enough and voted unanimously to invite Dean to testify. The Democrats indicated that Gray’s nomination might be held hostage pending Dean’s appearance. The next day, however, Dean declined to appear, although he agreed to accept written interrogatories.6
The President invoked executive privilege and adamantly opposed any public testimony by his aides. Speaking at his March 2 press conference, Nixon insisted that “no President” could ever allow his Counsel to testify before a congressional committee. Ten days later, he found an enlarged sanctuary in the separation-of-powers doctrine. He transformed separation and independence into unbridled autonomy, maintaining that the manner of exercising assigned executive powers is not subject to questioning by other branches. The fig leaf of executive privilege carried with it high moral purpose. Any questioning of presidential aides in effect impaired the President’s “absolute confidence in the advice and assistance offered by the members of his staff.” At another press conference several days afterward, Nixon conjured up a whole new doctrine of “double privilege” for John Dean: executive privilege plus lawyer-client privilege. In typical contradiction, Nixon insisted that Dean would be “completely forthcoming,” unlike officials in “other Administrations.” Watergate itself, he maintained, was a trifle—merely “espionage by one political organization against another.” But in his memoirs, the President recalled that at that press conference, he suddenly realized: “Vietnam had found its successor.”7
Gray kept in close touch with the White House throughout his nomination hearings. When he learned that the American Civil Liberties Union had submitted a statement to the Senate committee, protesting that the inquiry threatened the rights of potential defendants, the nominee was ecstatic. But he told John Ehrlichman in a taped March telephone conversation that “John Wesley”—Gray appropriated an almost reverential name for Dean—must “stand awful tight in the saddle and be very careful about what he says.” Dean must say that he delivered everything developed by the White House investigation of the break-in to the FBI, Gray warned. All this he put on a note of knowing conspiracy: “I’m being pushed awfully hard in certain areas,” he reminded Ehrlichman, “and I’m not giving an inch and you know those areas.” In another conversation, Gray was bitter and sarcastic. He believed that Dean’s claims for privilege were protected by “your god damn constitution,” and then went on to complain because such protesters as the Berrigan brothers (Catholic priests active in the antiwar movement) had received kid-glove treatment. Finally, Gray assured Ehrlichman that he would tell the committee nothing more of their relationship than that they discussed “procedural” aspects of the investigation. Gray’s records show that the two had had five telephone calls and two meetings. Ehrlichman was relieved to hear that no one asked whether he had initiated the meetings.
The Ehrlichman conversations confirmed Gray’s instinct that he was in an adversarial position with the White House. What he did not bel
ieve then, and had great difficulty believing later, was that his good friend and patron, Richard Nixon, had ordered that relationship. But he did remember that John Dean had told him twice on June 21, 1972, at the outset of the investigation, that he, Dean, was reporting directly to the President. Dean, of course, exaggerated, but he was keeping Haldeman informed.8
The devious Ehrlichman quickly called Dean, and the two snickered about Gray’s alleged toughness. His testimony, Dean said, “makes me gag.” Ehrlichman wondered if Gray had called to “cover his tracks.” He contemptuously dismissed Gray. Ehrlichman wanted Gray to just hang there; “let him twist slowly[,] slowly in the wind.” Dean responded that those were exactly the sentiments of “the boss.” The President, he claimed, had questioned Gray’s ability to lead the Bureau, given the way he had conducted himself before the committee. The President himself decided that Gray was useless and expendable. Nixon told Dean on March 13 that Gray “should not be head of the FBI”; because of the hearings, Nixon added, “he will not be a good Director, as far as we are concerned.”9
The low opinion of Gray within the President’s immediate circle reflected frustration with his unwillingness to follow blindly White House directives. Dean complained to Nixon that too often Gray made “decisions on his own as to how to handle his hearings. He has been unwilling all along to take any guidance, any instruction.” The President seemed mournful that not even Gray would give him the blind obedience he so desperately wanted. “He’s stubborn,” the President said, and “also he isn’t very smart.” In the next breath, however, Nixon allowed, “he’s smart in his own way.”10
If there were any doubts about Gray’s fate, they were resolved on March 20 when he informed the Senate committee conducting hearings on his nomination that he had been ordered not to discuss the Watergate case any further. The White House sorely misgauged the determination of the senators, and Gray confronted an impossible situation.
Senator Robert Byrd, the Democratic Whip, bluntly warned the White House on March 19 that if Dean did not testify, Gray was doomed. Byrd proved to be a formidable antagonist, a rather ironic twist given his previous friendly relations with the President. On March 22, Byrd challenged Gray: was his first duty to the FBI or to the President?—a “tough question,” as Gray characterized it. But he could not “evade” the fact that he took orders from the President. Gray even admitted he would continue to give Dean FBI reports if the President requested them. Byrd then elicited Gray’s frank charge that Dean had lied when he had told FBI agents that he did not know whether Hunt had an office in the White House. Gray had broken contact with Dean by then, sensing that Dean had pushed beyond the bounds of propriety—and foolishly believing that the White House Counsel was an independent authority. Byrd’s questions were devastating. They involved Gray’s political speeches; his political uses of the FBI; his relations with the President, Dean, and other White House staff members; his conduct of the Watergate investigation; and his personal handling of evidence from Howard Hunt’s safe.11 The performance was a model of congressional interrogation—so incisive, in fact, that Byrd’s substantive material and questions bore the mark of having originated in the FBI itself.
The White House’s troubles were written all over the congressional walls. On March 27, three leading conservative Republican senators—James Buckley (NY), Norris Cotton (NH), and John Tower—implored the President and Dean to speak out and clarify matters. More liberal Republicans were alarmed. Minority Leader Hugh Scott (R–PA) complained that he was “deeply disturbed,” and Marlow Cook (R–KY) thought the whole affair cast a “severe stigma on the Republican party.” Gray’s friend, Senator Lowell Weicker, the maverick Republican from Connecticut, demanded that Haldeman speak out. The Democrats, on the other hand, could afford a low profile. The President meanwhile authorized Scott to say in his name: “I have nothing to hide. The White House has nothing to hide.”
But there was much to hide, and to borrow a favorite Nixon phrase, “losses had to be cut.” The end mercifully came for Gray on April 5 when he asked that his name be withdrawn. This scenario had been contrived by the President. On March 27, Nixon had told Ehrlichman that Gray should come to the White House and say that lacking Senate unanimity and widespread trust, the President should withdraw his name and send another nominee in the same day. On April 4, the White House congressional liaison reported that Gray could not be confirmed. The Democrats, William Timmons warned, were anxious to vote out an unfavorable report on Gray in order to string out a floor debate and “kick him and the President around.”
The next day the President directed Ehrlichman to have Gray make the public suggestion that his name be withdrawn. Suspecting that Gray had been sabotaged from within the Bureau, Nixon ordered it “cleaned out” at the top. Gray did his part, and the President’s spokesman in San Clemente reported that Nixon had “regretfully” agreed to withdraw Gray’s name. The presidential statement vigorously defended Dean’s role and Gray’s cooperation with the President’s Counsel. When the President withdrew the nomination, he again obliquely assumed responsibility because of his orders to Dean to “conduct a thorough investigation.” The President predictably lamented that Gray had been unfairly exposed to “innuendo and suspicion,” thus unduly tarnishing his “fine record” and “promising future.” A week later, Nixon instructed Ehrlichman to determine whether Supreme Court Justice Byron White might be interested in the FBI directorship. Perhaps he sensed that he would have to nominate a prestigious man, one independent of the President’s will.
Gray was gone, the victim of the President’s machinations and those of his aides, victimized also by Hoover loyalists in the FBI who eagerly leaked word of his activities. One of Hoover’s closest retainers told the President’s secretary that Pat Gray “was never the man for the job.”12
On April 4, the day before Gray withdrew his nomination, Ehrlichman met with Judge Matthew Byrne, of the Federal District Court in Los Angeles. Kleindienst enthusiastically recommended Byrne, a Democrat, for the FBI directorship. Nixon liked the idea, and all agreed that Byrne should visit the President in San Clemente. At the moment Byrne was presiding over Daniel Ellsberg’s criminal trial, but according to Ehrlichman the judge did not think it improper for him to discuss the FBI position while the trial was in progress. Kleindienst claimed that he warned Ehrlichman not to talk to Byrne. Ehrlichman’s contemporary notes reveal that the President asked him to meet Byrne but not to discuss the pending case. Kleindienst did not believe that Ehrlichman fully informed Byrne of the purpose of the visit, and apparently no one else did either. Several weeks later, Byrne used the event as a basis for declaring a mistrial in the Ellsberg proceedings.13 Byrne dropped out of contention for the FBI post, but once again, appearances of Administration wrongdoing dominated public memory.
The creation in early February of the Senate Select Committee investigating the 1972 campaign had caused barely a ripple of public attention. Reporters waited until near the end of the President’s March 2 press conference to raise a rather polite Watergate question. But as John Dean’s “containment” policy disintegrated against the backdrop of revelations unveiled in the Gray hearings, “Watergate” rapidly became a meaningful—and loaded—political term that spread across the nation, raising far-reaching political concerns. During March, White House reporters posed 478 questions to Press Secretary Ron Ziegler, who often seemed on the verge of tears or hysteria in his responses. “You don’t have to accept this rationale,” he snapped. “You can giggle if you like.”14
The Rockford (IL) Morning Star, a Republican newspaper in America’s heartland, in an April 2 editorial recognized the transformation of Watergate from an “imbecilic bugging” to “more and more a case of high level government dishonesty.” The Roanoke Times, a prominent voice of Southern conservatism, had enthusiastically supported Gray’s nomination on February 23, but as his role in a Watergate cover-up emerged, the newspaper concluded on March 22 that Gray was “not his own man; he is Mr.
Nixon’s, for that is what the White House insists on.” That was enough for the newspaper to call for Gray’s rejection.
No one better understood the shifting sands of public opinion than John Dean. He had determined that it was time for a direct, thorough discussion with the President of the United States. The President and his men had to confront their past—and their future.
Meanwhile the President had created a new layer to the cover-up. On March 12 he issued a blunt statement asserting the nature and broadening the power of executive privilege. Cloaking himself in precedents dating back to George Washington, Nixon argued that executive privilege was sanctioned by the Constitution’s separation-of-powers doctrine and was necessary to protect internal communications of the executive branch regarding vital national concerns. He insisted that revelations of such communications threatened the candor of discussion and decision making. He pledged that executive privilege would not be invoked to prevent disclosures of “embarrassing information” but only to prevent disclosures harmful to the public interest.15 The next day, however, the Senate Judiciary Committee challenged the President by “inviting” John Dean to testify at the Gray hearings.
Shortly after noon on March 13, Nixon met Dean and Haldeman to discuss new measures to divert attention from the Watergate affair. Dean described how potential witnesses might fare before the Ervin Committee, then scheduled to begin public hearings in two months. The three discussed asking William Sullivan to exploit his FBI connections for information on Democratic presidents’ abuses of the FBI; they also speculated about a public-relations campaign to provide an appearance of openness and cooperation in any Watergate inquiry. The question of the President’s cooperation—or pretense at cooperation—ran like a red thread throughout this meeting and the ones that followed over the next weeks. “I better hit now,… as tough as it is,” Nixon told Dean. While it would be easier to “bug out,” he preferred to “let it all hang out.” The President knew he had to answer questions yet deny any White House complicity.
The Wars of Watergate Page 40