The Nixon Defense: What He Knew and When He Knew It

by John W. Dean

  When they returned to the discussion of Ehrlichman’s action plan, the president said he was not certain that my removal from the staff would make any difference in whether I was given immunity, because I was the witness they needed to make their cases. He asked his aides if they had “given any thought to what the line out to be, I don’t mean lie but line, on raising the money for these defendants. Because both of you were aware of that, right?” After they acknowledged that they had been, Nixon said, “You can’t go in and say, I didn’t know what in hell he wanted the three fifty for.” When Haldeman said he had prepared a statement, the president explained, in a tone of disbelief, “I’m concerned about the legal thing, Bob. You say that our purpose was to keep them from talking to the press?” “Well, that was my purpose,” Ehrlichman said. “And before I get too far out on that, I want to talk to an attorney and find out what the law is, which I have not yet done.” Haldeman indicated that he, too, wanted to check with an attorney, and said his statement was merely a draft.

  The president, noting that other people were involved, wanted to know what Kalmbach had been told. “Mr. President,” Ehrlichman told him, “when the truth and fact of this is known, that building next door is full of people who knew that money was being raised for these people.” Nixon, incredulous, asked, “EOB?” Ehrlichman assured him that was the case. Nixon could understand that many people might have been aware of the situation but doubted that many of them were actually involved in it: “In other words, there’s a difference between actors and observers.” Ehrlichman, however, thought otherwise: “Well, apparently not, because I’m not an actor,” he asserted, with Haldeman agreeing, “Neither am I.” Ehrlichman, who now began lecturing the president, said, “I want you to think very critically about the difference here between knowledge of the general transactions going on, on the one hand, and being an affirmative actor on the other, because that’s the difference between Dean and me.”*

  Ehrlichman, realizing he was not swaying Nixon, tried another approach. “Now, on this business of whether Dean should have immunity, I think you have to ask yourself, really, the basic question: whether anybody in the White House who does wrong ought to get immunity, no matter how many other people he implicates.” When the president asked whether that would be true for Strachan, Ehrlichman insisted, “Anybody,” and continued, “I just question whether, in the orderly administration of justice, if it looks right for anybody in the White House to get immunity.” Over the course of the next hour Ehrlichman succeeding in convincing the president, who finally agreed to privately inform Petersen that he wanted no immunity granted to anyone at the Dean level of the White House and above (which meant former White House aide Strachan was not included but anyone at Magruder’s level, the president noted of his former middle-level aide, who had been at a similar level to me, would be).58

  Notwithstanding a sustained effort (asserting that I was a direct pipeline to the U.S. Attorney’s Office and had removed documents from the White House, neither of which was true), however, Ehrlichman could not convince the president to fire me just yet. Nixon was apprehensive about the consequences of such a decision, though Ehrlichman claimed he had not the slightest concern. Although I had reminded Ehrlichman of the parts he had played—in everything from the decision to not hire a lawyer with criminal experience to his role in activating Kalmbach to his involvement in the Ellsberg operation—none of it fazed him. As he described these charges to the president: “He’s brought in a bunch of silly garbage about me which doesn’t add up to a nickel’s worth of a lawsuit. He’s come in and told you that he’s been involved in all kinds of stuff. It seems to me a very different qualitative kind of problem.” As the discussion continued, he resumed his case for denying me immunity: “Dean getting immunity, or anybody in the White House getting immunity, is in itself treatable as a cover-up. And obviously, if we are put in a position of defending ourselves, the things that I’m going to have to say about Dean are that basically Dean was the sole proprietor of this project. And he reported to the president. He reported to me only incidentally.”

  “Reported to the president?” Nixon asked. Ehrlichman replied that he would have to say that, but before he could explain, the president asked, “When?” Ehrlichman did not know, and again the president cut him off. “The problem you’ve got there is that Dean,” the president began, and then turned to a new thought. “Dean does have a point there, which you’ve got to realize. He didn’t see me when he came out to California [referring to the August 29, 1972, announcement of the Dean report]. He didn’t see me until the day you said, ‘I think you ought to talk to John Dean.’”

  Ehrlichman agreed, adding, “But the point is that basically he was in charge of this project.” The president countered, “He’ll say he reports to the president through other people.” This was Ehrlichman’s argument, as he explained: “Then you see what you’ve got there is an imputation.” The president did not like this situation, so he asked Ehrlichman, “Who the hell did he report to?” Notwithstanding the fact that Ehrlichman and Haldeman had been telling the president I was reporting to them, Ehrlichman now asserted, “Well, he in many cases, to no one. He just went ahead and did things.” Haldeman again chimed in, confirming, “That’s right.”

  At one point, deep in this conversation, as Ehrlichman was urging the president to instruct Petersen and, in turn, Silbert to “not go into matters of national security importance,” he explained that Colson had raised the question of “this caper in California, for instance.” When the president asked which caper he was referring to, Ehrlichman replied, “This thing of Hunt out there, the national security thing connected [with] Ellsberg.” The president agreed that “anything in the leak thing, the plumbing thing, was national security.”

  The press plan for the executive privilege statement was coming down to blaming everything on me, effectively elevating me from a message carrier to the mastermind of the cover-up. Because I was asking others what they remembered, Haldeman thought I was now “playing the Magruder game, flying from flower to flower, planting [my] pollen.” He described me as “an unbelievable disaster for us” and tried to understand my motivation: “He’s not un-American and anti-Nixon. I’ll tell you what he did, I’ll tell you during that period he busted his ass trying to work this out, and it wore him to a frazzle, and I think it probably wore him past the point of rationality. I think he may now be in a mental state that’s causing him to do things that, when he sobers up, he’s going to be very disturbed about with himself.”

  “Also, he’s probably got a very, very clever new lawyer named Shaffer. I think that’s part of the problem,” the president observed. “Could very well be,” Haldeman agreed. “But John, I can’t believe is a basically dishonorable guy. I think there’s no question John is a strong self-promoter, self-motivated guy for his own good.”

  They now turned to an attempt to rewrite my conversations with the president, and later Haldeman, on March 21, with Haldeman claiming the president had never said it would not be a problem to raise a million dollars for the defendant. Instead, the president had said it was blackmail by Hunt, and it was wrong. The meeting ended with the president asking if he should call me into his office to say that he was issuing a statement but that it would make no mention of me. Ehrlichman thought it a good idea, but Nixon never followed up on it.

  Shortly after this conversation ended, it was so unclear exactly what had and had not been agreed upon that the president called Ehrlichman to clarify matters before he met again with Henry Petersen.59 “I just wanted to be sure to check the points you want [raised] with Petersen. He’ll be [here] in five to ten minutes. So one, no immunity from any of the top three?” Ehrlichman confirmed that and, gathering his notes, told the president the points he had written down were, first, that he would issue a statement regarding his policy on suspension and firing: Anyone indicted would be suspended and anyone convicted would be fired. Ehrlichman said that that would be in the statement he was dr
afting, and Nixon told him he wanted Ehrlichman to brief the press on this point; he would privately inform Petersen that there would be no immunity for “any top person, like Dean or up.”

  Petersen arrived in the Oval Office at 2:40 P.M. and remained for an hour.60 “Anything new I need to know?” Nixon asked after a few friendly quips. “No, sir,” Petersen replied. Obviously still thinking about Haldeman and Ehrlichman’s attack on Petersen, not to mention the concern that Petersen might be a friend of mine who had violated the law somehow in passing me information, the president said, “I don’t want you really to tell me anything out of the grand jury unless you think I need to know it.” Being very careful, the president added, “I guess it would be legal for me to know?” Sounding less than certain, Petersen replied, “Well, yes, I think it is legal for you to know.”

  After establishing that Petersen admired Bill Rogers, Nixon told Petersen that Rogers’s “views are somewhat different from yours.” The president continued, “I think you have to know that Dean has talked very freely to Mitchell. Whether he has talked to others about [Watergate], I do not know.” When Petersen said he was aware of my relationship with Mitchell, Nixon explained that the point was that I was sharing information with Mitchell, which I had obviously received from Petersen and “from the grand jury.” Nixon assured him that he did not want “the Department of Justice, and you particularly, to get embarrassed,” but Petersen was not worried about that. Nixon pressed, saying Rogers “was greatly concerned about the leaks from the grand jury” during the preceding summer, “during June, July, August, September and so forth, that is the point.”* Without stating it directly, the president was referring to the period during which Petersen was keeping me advised of the grand jury’s activities. Again, Petersen dismissed his argument: “I don’t think that is critical.” But before he could explain his position, the president told him that he didn’t want the case to fall apart “after all this agony,” because the man he was now “relying on”—meaning Petersen—might find himself in some untenable position. “Mr. President,” Petersen protested, “I don’t want to be in that position.” Again Nixon continued the offensive: “Well, now, you’ve got your life and career ahead.“ And again Petersen did not back down. Nixon finally put forward the ultimate potential threat for Petersen, telling him that Rogers “is recommending a special counsel. He’s very much afraid that anybody who has been handling this damn thing up to this point” was going to have problems. “How do you feel about that?”

  No one ever said Richard Nixon was not clever, and at that point he had Petersen in a position where he had to defend himself and the ability of the Department of Justice to continue with the Watergate case. Petersen claimed his conversation with me had “touched on three things: One, leaks,” which he said he did not take very seriously, for they were part and parcel of Washington business; “second was Dean’s personal involvement,” relating to the handling of the records from Hunt’s safe; and “third was status reports.”*

  Petersen was vague enough about those status reports to cause the president to ask if this was a potential problem area. “No, sir,” Petersen responded. “I can disclose to an attorney for the government in the course of my work. Dean was, in addition to counsel to the president, obviously an attorney for the government, and there is nothing improper in that.” The president was pleased to hear this remarkably broad interpretation of Rule 6(e) of the Federal Rules of Criminal Procedure. But then Petersen raised the real-world consequences: “Now, politically, if someone wants to say, as they said to Pat Gray, you shouldn’t have been talking to John Dean, well, there’s no way out of that.” But Petersen effectively dismissed such potential claims as “demagoguery,” which he did not take seriously.

  When the president turned to what he called “a basic command decision with regard to what you do about the White House people,” he began giving Petersen a spin on the facts that made both Haldeman and Ehrlichman appear less culpable, which Petersen, who did not have a firm grasp on the situation, accepted without questions. Nixon then returned to his chief objective, which was to make certain I did not receive immunity. He claimed Bill Rogers had told him that immunity could not be given to “the guy that sunk Pat Gray.” Petersen accepted this interpretation of Gray’s failure to be confirmed and told Nixon that he, too, did not want me to have immunity. When Petersen asked if the president had decided to accept my resignation, Nixon replied that no, he was going to treat everyone the same, an approach Petersen supported. At another point in the conversation the president offered what he claimed were his motives: “Let me say I am not, I guess my point on Dean is a matter of principle, it is a question of the fact that I am not trying to do Dean in. I would like to see him save himself, but I think find a way to do it without, if you’re going the immunity route, I think we are going to catch holy hell for it.” Since the public thought I was a major figure, Nixon argued, this was appropriate. “Well, what the hell, he can talk without any immunity can’t he?” Then, in the next breath, he answered his own question, “Oh, I guess if he is a defendant, he wouldn’t talk to you?” “That’s right,” Petersen replied.

  This conversation included a lengthy discussion of “unindicted coconspirators,” a term that refers to an individual who was part of a conspiracy but has not been indicted, usually because the government wants him to testify. “Let me ask you this, Mr. President,” Petersen said. “What would you do if we filed an indictment against Magruder, hypothetically, and—” The president hastened to add “or Dean,” but Petersen kept to Magruder and continued, “—to which he’s going to plead guilty, and we name as unindicted coconspirators everybody but Haldeman and Ehrlichman.” The president interrupted again to ask about Colson, but Petersen felt he was peripheral. When the president questioned if he would name “Dean, for example?” Petersen said he would name everyone but Haldeman and Ehrlichman: “Now one of the things we had thought about leaving them out was to give you time and room to maneuver with respect to the two of them.” Nixon reacted, “Let me ask you, can I ask you, talking in the president’s office,” Nixon began, and after a brief interruption to sign some papers, continued, “You mean if Haldeman and Ehrlichman leave, you will not indict them?”

  “No sir, I didn’t say that,” Petersen stated clearly. “That would be a strange [thing to do],” the president noted. “No, it was not a question of that,” Petersen explained. “It was a question of whether or not they were publicly identified in that pleading at that time. And, well, for example, as a scenario that comes out, and you say, this is a shocking revelation, as a consequence of that I have consulted and I have just decided to clear out everybody here who might have [been involved], and as a consequence Mr. Ehrlichman and Mr. Haldeman are going. Thereafter, we would proceed with the evidence wherever it took us. That’s what we were thinking about, to be perfectly honest with you.”

  “Well, you really ought to include them [unclear], if you include the others,” the president acknowledged, and then quickly added, “Oh, you don’t want names in the indictment of Magruder.” “That’s right,” Petersen confirmed, “unless we were able to go forward.” Petersen then added, “Well, I don’t want to belabor the point. I have made it clear that, in my view, that I think they have made you very, very vulnerable. I think they have made you wittingly or unwittingly very vulnerable to rather severe criticism because of their actions, at least in public forums, they’ve eroded confidence in the office of the presidency by their actions.”

  They then discussed the difficulty that Judge Sirica was causing by acting as both prosecutor and judge with his unwillingness to accept pleas that the government was willing to accept, which was now affecting Magruder and others who were hesitant to plead before Sirica, given the outrageous sentences he was handing down. Petersen reported that LaRue had broken down and cried when he came in to testify about John Mitchell, which prompted the president to proclaim that, as president, he was “just trying to do the right thing,” to
which Petersen responded, “Mr. President, if I didn’t have confidence in you, I wouldn’t be here.”

  “Did we do any good on the Liddy call?” Nixon asked. Petersen said that Liddy’s lawyer, Peter Maroulis, had flown down from New York, and they arranged for Liddy to be transported to the cell block of the D.C. Court to meet with him. But Petersen did not know the results of that meeting. “I am sure Liddy is thinking it over, but we’ll see. That man is a mental case,” Petersen said.61

  They now turned to Ehrlichman’s draft on executive privilege, with the president reading key parts aloud. Petersen indicated that he did not like the language in the draft regarding immunity, which read: “No person in past or present positions of importance can be given immunity from prosecution.” “I don’t think you ought to say that, Mr. President,” Petersen said and, explaining that he was effectively nullifying the immunity statute and giving potential defendants the right to invoke the Fifth Amendment, which could deny the prosecutors the use of their testimony. “Even if we never utilize immunity,” Petersen said, “the fact that it is there and can be used to strip them of the Fifth Amendment rights is a terribly important tactic to have available. That phrase in there takes that tactic away from us.” While Nixon could not say it, if he could silence everybody behind the Fifth Amendment, it would solve many of his problems. He accordingly suggested modifying the language: “Say ‘major government employees,’ how’d that be?” “I would prefer that we not say it,” Petersen persisted. “Well, I’m just trying to cover my tracks on the Dean thing,” Nixon finally admitted. They tried various phrases that might silence me while not making a nullity of the immunity statute, should they wish to use it.