U.S. v. Nixon: Is the President Above the Law?

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Forty years ago tomorrow, the Supreme Court heard arguments in United States v. Nixon, the landmark case that ultimately defined the limitations on the power of the president.

These were the issues:

1. Should the president be required to turn over the records of 64 conversations to Watergate prosecutors?

2. Did the grand jury act properly in naming Richard Nixon as an unindicted co–conspirator?

Underlying it all, though, was the real question: Is the president above the law? The prosecutors argued that the president was not above the law. Nixon's defense was, as it had been all along, that the chief executive is above the law — via the principle of executive privilege.

More than a year earlier, in fact, in February 1973, Nixon's own tapes showed that Nixon and two of his subordinates, H.R. Haldeman and John Dean, had discussed using executive privilege fraudulently — not to protect others but to protect themselves.

The executive privilege concept, while not addressed specifically in the Constitution, is based on the principle of separation of powers. A level of confidentiality is understood to be extended to a president and his aides in certain circumstances, particularly in matters involving defense and national security.

Then–Associate Justice William Rehnquist recused himself because he had served in the Nixon administration (in the Justice Department) prior to his appointment to the Supreme Court, leaving eight justices to rule on the matter.

They heard arguments from Watergate special prosecutor Leon Jaworski and Nixon's lawyer, James St. Clair, after which they reviewed the facts of the case and returned to hand down their decision two weeks later.

"Jaworski seemed nervous," Bob Woodward and Carl Bernstein wrote. "He spoke awkwardly as he slowly recited the history of the grand jury's proceedings. He noted that the grand jury had named the president an unindicted co–conspirator, and then he moved haltingly to the heart of the matter. Who is the arbiter of the Constitution?"

"'Now, the president may be right in how he reads the Constitution,' Jaworski said. 'But he may also be wrong. And if he is wrong, who is there to tell him so? And if there is no one, the president, of course, is free to pursue his course of erroneous interpretations. What then becomes of our constitutional form of government?'"

The defense argued that executive privilege was absolute, but the prosecution said it was not and that any confidentiality that was extended to the president had to yield to the needs of the legal system in a criminal case. If the president were given absolute executive privilege, Jaworski said, it would be an unchecked power that could subvert the rule of law.

St. Clair argued that, under the doctrine of the separation of powers, the case shouldn't be heard in the courts at all because it involved a dispute within the executive branch of the government. He also contended, as I have said, that the president deserved absolute executive privilege and should not be forced to turn over his tapes.

Jaworski took issue with St. Clair's assertion about the matter being an internal dispute within the executive branch. "Jaworski cited the assurances of [Al] Haig, [Robert] Bork and Attorney General William B. Saxbe ... as to his indisputable right to take the president to court on the question of executive privilege," wrote Woodward and Bernstein. "It was up to the court, he said, to decide who was right, on the merits."

The justices retired to review the facts of the case — and, 16 days later, they handed down a judgment that would influence the course of history.

Nixon's Turning Point

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Forty years ago today, it became much more difficult for Richard Nixon's defenders to argue against the barrage of Watergate–related charges he faced.

In my opinion, it was the point of no return for Nixon.

Through most of 1973, the Watergate story progressively ensnared Nixon, but, in those days, the talk was not so much about which illegal acts he might have committed but rather how and whether his presidency would be affected. I don't recall anyone suggesting, even in jest, that Nixon might not serve his full term.

That changed on this day in 1973.

Until this day, it had been relatively easy for Nixon to maintain plausible deniability, even after the existence of his taping system was revealed in the Senate Watergate hearings. It had been largely his word against former White House counsel John Dean's.

Naturally, those who were investigating the case wanted to have access to the tapes. After all, they could verify who was telling the truth and who wasn't. But Nixon refused, insisting the tapes were protected under the principle of executive privilege and because subjects involving national security were discussed in the conversations — and his defenders supported him as long as they could.

One of Nixon's solutions to the standoff over the tapes was to offer transcripts of the conversations to investigators. He would explore that option in greater public detail in the spring of 1974, but the job of transcribing subpoenaed tapes for that purpose began in 1973 shortly after the recording system's existence had been revealed. Transcribing the tapes was a task to which White House secretaries were assigned, including Nixon's longtime personal secretary, Rose Mary Woods.

It was while transcribing one of the tapes in late September 1973 that Woods claimed to have accidentally erased a portion of it while answering a phone call. Her original estimate was that roughly five minutes of a June 20, 1972, conversation had been erased.

Woods later amended her statement, saying that she might have accidentally erased as much as six minutes of the tape, but she strongly denied being responsible for the rest of the erasure.

H.R. Haldeman's notes (consisting of two legal pads of paper) suggested that the conversation, which was between Nixon and Haldeman, was at least in part about Watergate.

Nixon's lawyers had been told of the erasure before they sat down on Nov. 14, 1973, to listen to the tape, and they expected to find an erasure. But it went on longer than five minutes — many minutes longer, not seconds. Eventually, it was determined that 18 minutes and 15 seconds of the conversation had been erased — and the gap appeared to be the result of not one but several erasures. This could be determined by changes in pitch.

The inescapable conclusion was that the gap was not accidental.

This had been suggested earlier in the month by "Deep Throat," Bob Woodward's secret source in the early days of the investigation. Deep Throat told Woodward there were "gaps" in some of the tapes, implying they were the result of deliberate erasures.

At the time, there was some doubt among Nixon's lawyers whether the conversation was even covered in the subpoena. But, by the time they reported their findings to Al Haig, the White House chief of staff, the lawyers had determined that the conversation was, in fact, included in the subpoena.

The lawyers discussed their options and finally decided that, if they didn't tell the judge what they knew and the special prosecutor found out about it some other way, they could be suspected of destroying evidence.

Thus it was that, on this day in 1973, Nixon's lawyers informed the judge in the Watergate trials, John Sirica, of their discovery, which, in turn, was made public.

Sirica appointed an advisory panel of experts (nominated by Nixon's lawyers and special Watergate prosecutor Leon Jaworski) to examine the tapes. An "index and analysis" of the existing tapes was given to him five days later. The clamor for the tapes grew louder, not softer.

Nixon's defense was starting to fall apart — irretrievably.

Richard Nixon's S.O.B.

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"Every president needs an S.O.B. — and I'm Nixon's."

H.R. Haldeman

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My family was still out of the country when former White House chief of staff H.R. Haldeman took the witness stand at the Senate Watergate Committee's hearings 40 years ago today so I didn't see him testify, but I'm sure he was quite a sight.

He always was in those days. He was kind of a Mephistopheles with a crewcut, I guess; with the German surname, he always seemed more sinister than the rest — to me, anyway. Maybe it was the influence of those World War II movies I watched as a child.

Haldeman and former White House aide John Ehrlichman were known as Richard Nixon's "Berlin Wall" because of their Germanic surnames and their tendency to restrict access to the Oval Office.

They also had the shared trait of unquestioned loyalty to their leader — even when that leader had forced them to resign only a few months earlier.

Haldeman's testimony had been eagerly anticipated because of his special position in the Nixon White House as chief of staff. The job was still new and evolving when Haldeman became chief of staff, but he appeared to relish its reputation as a presidential "gatekeeper."

It was said Haldeman was closer to Nixon than anyone else in the White House (with the possible exception of Nixon's wife). The word around Washington was that he was the first person to see Nixon each morning and the last to see him each night — and, because of the nature of his job, he saw Nixon many, many times in between.

It was to be expected, therefore, that he would be a Nixon defender on the stand. And he was.

"I have full confidence," he told the Watergate committee 40 years ago, "that when the entire truth is known, it will be clear to the American people that President Nixon had no knowledge of or involvement in either the Watergate affair itself or the subsequent effort of a 'coverup' of the Watergate."

Ironically, the Watergate figure with whom Haldeman probably had the most in common 40 years ago today — at least on the surface — was John Dean, who had testified a month earlier.

Both men delivered lengthy statements on their first days on the witness stand and answered questions on the other days. But that was where the similarities ended. Their stories were quite different.

In his statement 40 years ago today, Haldeman insisted that he and Richard Nixon had no knowledge of the Watergate break–in and that Dean had "badly misled" them. He also said he had listened recently to the tape of the March 21, 1973 meeting between Nixon and Dean in which Dean warned Nixon that there was a "cancer ... close to the presidency."

Haldeman observed that he had participated in part of that meeting but had missed the first hour — and the edited transcripts that Nixon released the following spring confirmed that.

Dean, Haldeman told the committee, "[had], in a number of instances, misinterpreted the intent or implications of things that might have been said."

Haldeman went on to say that "[h]aving observed the president all those years, in many different situations, it was very clear to me on March 21 that the president was exploring and probing; that he was surprised; that he was trying to find out what in the world was going on; he didn't understand how this all fit together, and he was trying to find out."

However, "It is impossible," wrote Theodore H. White, "to misinterpret the flow of [Dean's and Nixon's] conversation; the president [had] ordered Dean to buy time for him ..."

On the stand the next day, Haldeman vigorously denied participating in a coverup, then he wrapped up his testimony on the third day by describing his proposal to link Communist protests to the campaign for the Democrats' nominee, Sen. George McGovern of South Dakota.

But as each member of the committee took his turn questioning Haldeman, it was increasingly clear that Haldeman knew little (or said he knew little) of the important details of key events that other witnesses had described.

For example, Haldeman — a man known for taking meticulous notes on large legal pads — said he could not recall when he first heard of the Watergate burglary. Even Haldeman admitted that was "incredible."

Haldeman's opening statement may also have included the public unveiling of one of the most noxious justifications for Watergate that was offered by the Nixon White House. In an almost offhand kind of way, Haldeman alleged that the Democrats engaged in far more serious sabotage during the 1972 campaign than the Republicans.

Lowell Weicker, a Connecticut Republican (and an unsuccessful candidate for his party's presidential nomination in 1980) who loathed the Nixon White House and considered its behavior a betrayal of GOP principles, challenged Haldeman on that point. He produced a memo from Haldeman to Dean suggesting that Dean spread a story linking Communists to protests in which McGovern supporters also participated.

The inescapable conclusion — for anyone who had been paying attention to the hearings — was that the memo confirmed what Dean had said about paranoia in the White House in general and in Nixon's and Haldeman's minds specifically.

Perhaps the most astonishing revelation came when Haldeman spoke of the White House tapes.

In just a couple of weeks since they learned of the tapes' existence, the senators on the committee had clearly come to regard the tapes as crucial to their investigation, but they had been denied access to them. However, Haldeman spoke almost nonchalantly about keeping several of the tapes at his home in a 48–hour period earlier that month and listening to a specific tape at the president's request.

This was only a few months after Nixon had asked for and received Haldeman's resignation.

Haldeman's lawyer read into the record a White House letter instructing Haldeman not to discuss the contents of the tapes, but Haldeman seemed oddly eager to speak about them, anyway. He asserted that the tapes proved that Nixon did not know as much about the coverup as Dean had claimed.

Committee chairman Sam Ervin was skeptical, contending that the White House and Haldeman had done some "canoodling together" to leak a sanitized version of the tapes in the hearings while keeping the originals from the committee's scrutiny.

Weicker wondered aloud how the White House could justify letting Haldeman listen to the tapes while denying that privilege to Dean and the others.

Sen. Daniel Inouye was skeptical that anyone could be sure the tapes had not been tampered with while they had been unguarded in Haldeman's possession.

And majority counsel Sam Dash pondered the question of how Nixon could claim the tapes were confidential when he allowed Haldeman — a private citizen at that point — to keep some in his home.

There were no answers from Richard Nixon's S.O.B.

Spilling the Beans

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A pretty convincing case can be made that what happened 40 years ago today was what marked the beginning of the end for Richard Nixon.

Three weeks earlier, Nixon's claim to have been uninvolved in — in fact, to have been unaware of — either the planning of the Watergate burglary or its coverup took a severe (but hardly lethal) blow when his former counsel, John Dean, spent a week testifying before the Senate Watergate Committee.

Nixon's defenders insisted that it was the word of only one man against the words of everyone else. Had it remained that way, Nixon might well have weathered the storm and limped through his second term. I'm sure there would have been lingering suspicions about Nixon's guilt or innocence — but no evidence to elevate those suspicions from whispered rumors to criminal accusations.

But what happened 40 years ago today changed things.

I'm speaking of Alexander Butterfield's revelation of the existence of a White House taping system that had been recording all of Nixon's meetings and phone conversations. Butterfield was a deputy assistant to Nixon, having gotten that position through an old college friend of his, Bob Haldeman, the president's chief of staff.

(I always thought that was historically significant, but the only mention I have seen of it — other than an opinion piece that, appropriately, ran in the Washington Post a month ago — has been in the form of rather brief entries in "Today in History" type columns.)

Butterfield's job in the White House never struck me as being particularly glamorous — but his duties did differ from those of his colleagues in at least one important regard. He was responsible for maintaining the taping system, and very few people knew about that.

But everyone knew about it on this day in 1973.

Butterfield was called in to testify in public after undergoing pre–testimony questioning from the committee's staff three days earlier.

In his testimony three weeks earlier, Dean had suggested that Nixon's behavior had led him to believe conversations might have been recorded, and the committee had been following up on that in routine pre–testimony questioning of witnesses. Butterfield later said that he had decided not to voluntarily disclose the existence of the system, but he would truthfully answer any direct question that was put to him.

It turned out that Butterfield was asked a direct question in that pre–testimony session — by the counsel for the minority, Donald Sanders — and he confirmed that such a system did exist. This put him at the head of the line for witnesses who would be called the following Monday — when the chief counsel for the minority, Fred Thompson, asked him the now–famous question, "Are you aware of the installation of any listening devices in the Oval Office of the president?"

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Butterfield replied that, when he was working at the White House, he had been aware of the presence of listening devices and that they had been installed about three years earlier.

After describing the extent of the taping system and identifying who had knowledge of its existence, Butterfield was asked if either John Ehrlichman or John Dean would have known about it.

"It would be very unlikely," Butterfield replied. "My guess is they definitely did not know."

As I have written here before, my family was out of the country in the summer of 1973 so I do not have any firsthand knowledge of what the atmosphere was like on that Monday in July. But my guess is that, after watching extensive testimony from the former attorney general and the former counsel to the president, viewers couldn't have been enthusiastic when Butterfield, the former deputy assistant to the president, was called to testify.

He sounded like something of a nuts and bolts guy when he described his duties in the White House.

"I was in charge of administration," Butterfield told the committee, "that is to say that the staff secretary, who is the day–to–day administrator at the White House, reported directly to me. And, of course, I reported to Mr. Haldeman, as did everyone.

"I was responsible for the management and ultimate supervision for the Office of Presidential Papers and the Office of Special Files ... I was in charge of security at the White House insofar as liaison to the Secret Service and the Executive Protection Service is concerned and insofar as FBI background investigations for prospective presidential appointees is concerned."

Even after hearing a rundown on his duties, viewers had to wonder who this guy was and what he could possibly contribute to the discussion. They were about to find out.

It was a critical moment in the evolution of the Watergate scandal. Of that, there can be no doubt.

But it seems appropriate at this point to mention something.

I have heard some people complain that it is an urban myth that Bob Woodward and Carl Bernstein, the Washington Post reporters responsible for the early coverage of the scandal, brought down the Nixon presidency. I'm willing to concede that point to a certain extent.

Woodward and Bernstein alone did not bring down the Nixon presidency. It was the accumulated weight of the various investigations, like the proverbial snowball rolling downhill, that brought Nixon down — along with his own hubris and paranoia.

Woodward and Bernstein kept the story alive when virtually no one else in the Fourth Estate was willing to take the chance. Nixon, after all, enjoyed approval ratings in the upper 50s, even lower 60s, in the summer of 1972, and he wielded enormous power. No one wanted to offend him. No one wanted to challenge him. The existence of the "enemies list" was not acknowledged publicly until after Dean testified, but many in the press had long suspected that there was such a thing — if not on paper, certainly in the minds of Nixon and his minions.

By this day in 1973, plenty of questions had been raised but practically no answers had been given. In the minds of most — and in spite of mountains of apparent evidence to the contrary — it was still seen as one man's word against another's.

But when Butterfield told the Senate Watergate Committee 40 years ago today that a taping system had been recording every Oval Office meeting and conversation that involved the president, everyone knew that there was a witness, a silent witness, that would verify whether Nixon or Dean was telling the truth.

In short, it was now possible, everyone knew, to get an answer to Sen. Howard Baker's memorable question: "What did the president know and when did he know it?"

This witness was not vulnerable to accusations of faulty memory, but it could be tampered with — as America would discover in a few months.

The Empire Strikes Back

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"You will be better advised to watch what we do instead of what we say."

John Mitchell
July 1969

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John Dean had wrapped up his testimony about a week and a half earlier, and Congress had adjourned for its July 4 recess.

When the Senate Watergate Committee resumed its business 40 years ago today, the former attorney general of the United States and former manager of Richard Nixon's re–election campaign, John Mitchell, was scheduled to testify. He testified for three days.

Mitchell and Nixon were friends before Nixon became president. They had been friends since 1946, and they were colleagues on the same law firm before Nixon launched his second campaign for the presidency. Mitchell managed Nixon's successful 1968 bid and Nixon's re–election campaign in 1972 as well.

For whatever reason, Mitchell had Nixon's full confidence. Many Americans did not realize this 40 years ago, but Mitchell seemed to understand Nixon's personality — and, as a result, occupied a unique role among Nixon confidantes.

He might have been better suited to be Nixon's chief of staff, but I suppose Nixon was drawn to Mitchell's accomplishments in the legal field.

When Mitchell joined Nixon's New York law firm in 1967, he occupied the office adjacent to Nixon's, Theodore White wrote in "Breach of Faith." The men had several things in common, White wrote — born only eight months apart, they were of the same generation, and both had been veterans of World War II.

"Nixon was lonely in New York," White wrote. "[H]e enjoyed visits to Mitchell's country home ... where he could pound the piano. Tart–tongued, bald–headed, Mitchell had an almost roguish charm — and an air of tough, unruffled calm. Smoking his pipe, he would sit at a conference table, almost always speak last, then speak with apparent good sense."

In his book about the 1972 campaign, White wrote that Mitchell was the "[h]ardest of all the hard men around the president, by far," and that truly was something in the Nixon White House. "[H]e was as charming a conversationalist as one could meet," White wrote, "and at the same time as cold a personality as one ever encounters in politics."

I didn't see Mitchell's testimony when it happened, but I saw clips from it many times after. And I would agree with White's assessment. Mitchell's cold public persona came across loud and clear.

When Mitchell began his testimony 40 years ago today, he was almost surely the most well–known representative of the Nixon administration to appear. Dean had made an instant splash because he was the first to point the finger at Richard Nixon. For that reason, more than any other, there had been much anticipation of his appearance. But he was virtually unknown before his testimony.

Two big names who would follow Mitchell into the witness chair in July 1973 — Bob Haldeman and John Ehrlichman — were highly placed Nixon loyalists, too, but they were not as well known. Like so many other things that summer, the relative anonymity of Haldeman and Ehrlichman would soon be things of the past, but, on this day in 1973, Mitchell was probably the most effective witness to make the case for Nixon in the aftermath of Dean's testimony.

And he took a bullet for Nixon 40 years ago today. He accused Magruder of lying in his testimony, and he disputed what Dean had said.

(Mitchell had a way with words. He was the one who labeled administration activities "White House horrors." It was a phrase members of the committee used when questioning Mitchell — sometimes incorrectly, in Mitchell's view. When Sam Dash, counsel for the majority, used the phrase in a reference to the Watergate break–in, Mitchell corrected him: "Those are not the White House horrors, Mr. Dash." The distinction? The planning of such an operation was a "White House horror;" the actual carrying out of the plan was not.)

But Mitchell's smug, often arrogant attitude, which may have been appropriate for a courtroom, made it hard for anyone, even Nixon's defenders on the Senate committee, to like him.

Dash asked Mitchell at one point about a meeting he had with G. Gordon Liddy at which illegal activities were discussed, "[W]hy didn't you throw Mr. Liddy out of your office?"

"Well, I think, Mr. Dash," Mitchell replied, "in hindsight I not only should have thrown him out of the office, I should have thrown him out of the window."

The remark drew a smattering of apparently sympathetic — and somewhat nervous — laughter.

"Well, since you did neither ..." Dash said as the committee room erupted in loud laughter, refusing to be diverted from his point, " why didn't you at least recommend that Mr. Liddy be fired from his responsible position at the [president's re–election] committee since obviously he was presenting to you an irresponsible program?"

To which Mitchell replied, "Well, in hindsight I probably should have done that, too."

Folks became more familiar with Haldeman and Ehrlichman when Mitchell testified for a second day.

After he returned to the stand, Mitchell said that Haldeman and Ehrlichman did participate in a coverup, but they did so to protect Nixon.

But first, he had to answer a question from Hawaii Sen. Daniel Inouye, who observed that Mitchell had testified that he regarded Nixon's re–election to be so important that he was "willing to engage in activities which have been well described as being irregular."

"To what length are you now willing to go to deceive in an effort to avoid further implication of the president in the activities under investigation by this panel?" Inouye asked. "More specifically, are you willing to lie to protect the president?"

"I do not have to make that choice," Mitchell answered, "because, to my knowledge, the president was not knowledgeable."

After being grilled by the committee chairman, Sen. Sam Ervin, on decisions he had made following the Watergate break‐in, Mitchell remarked, "It is a great trial being conducted up here, isn't it?"

On his third day of testimony, Mitchell was questioned about conflicts in his testimony and vigorously defended his credibility.

I have often wished that I could have seen Mitchell's testimony when it was happening because I get the feeling, from seeing brief video clips and reading transcripts of his testimony, that he wasn't persuasive.

If anything, he struck me as being evasive. I always thought he was a weaselly sort.

"[Y]ou enjoy the distinction ... that it was your purpose not to volunteer anything," Dash said at one point. "Is there a distinction between your not volunteering anything and lying? If you do not volunteer an answer to a direct question, you might say you do not volunteer anything, but actually you are lying."

Mitchell's reply? "I think we would have to find out what the specifics are, what the particular occasion and ..."

See what I mean?

The Peaks in a Scandal Investigation

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"Somewhere between my ambition and my ideals, I lost my ethical compass."

Jeb Magruder

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More than a quarter of a century passed between our births, and I was still a boy when he appeared before the Senate Watergate Committee 40 years ago today.

It's fair to say I didn't completely understand what was happening. Nevertheless, I understood enough that I must say I kind of empathized with Jeb Magruder. I couldn't really help it.

He had had a meteoric rise. He started out as a salesman, then, when he was 34, he was appointed to the White House staff. For one so young, it must have been mind–boggling.

It also led him to do things in his service to Richard Nixon that he almost certainly never imagined he would do. But I always admired the fact that he never tried to pass the buck.

After informing the senators of his work for the Committee to Re–Elect the President (in which he participated in Nixon's 49–state triumph, at the time the second–largest electoral vote margin in history), he said, "Unfortunately, we made some mistakes in the campaign ... For those errors in judgment that I made, I take full responsibility. I am, after all, a mature man, and I am willing to face the consequences of my own acts."

In hindsight — and even at the time — most people would say they were more than errors. But perhaps that is semantic quibbling. Magruder did confess to his own guilt when he testified before the Senate Watergate Committee — which is more than can be said of Nixon.

Magruder's testimony was the first, really, to put the coverup conspiracy inside the walls of the White House, but he was careful not to implicate Nixon when he did so. (He reversed that in a PBS documentary in 2003, nearly a decade after Nixon's death.)

"These mistakes were made by only a few participants in the campaign," Magruder insisted 40 years ago today. "Thousands ... assisted in the campaign to re–elect the president, and they did nothing illegal or unethical. [A]t no point ... did the president have any knowledge of our errors in this matter."

Magruder did assert, however, that John Mitchell, John Dean and Bob Haldeman were involved. That wasn't exactly news in June 1973 — but now it was on the record. That was an important legal step.

In his book "Breach of Faith," Theodore H. White wrote of how the committee's investigation had moved slowly at first and likened its progress to hiking up a trail and reaching peaks along the way.

With his testimony, White wrote, "Magruder made the first peak — publicly, under oath, he said the authority to burglarize Democratic headquarters had been given him directly by the former attorney general, John Mitchell."

Magruder went on to write a book titled "An American Life: One Man's Road to Watergate," but he followed a rather different path to his testimony before the Watergate Committee.

In "All the President's Men," Washington Post reporters Bob Woodward and Carl Bernstein wrote that Magruder, initially reluctant to say anything, had been regarded as a "super–loyalist" — but he went to the prosecutors in April of 1973 when the house of cards that was the coverup was collapsing around him.

One of Woodward's sources within Nixon's re–election campaign organization told him Magruder would be "the next McCord" — a reference to Watergate burglar James McCord's letter to Judge John Sirica in early 1973 just before the burglars were to be sentenced. It prevented the sentencing from being that last act in the Watergate drama — and was, in White's words, a "peak" in the Watergate scandal.

Much like Magruder's testimony 40 years ago today — although I don't think I would call it a game changer.

The Nixon White House had kept the Watergate scandal under wraps for nearly a year — until McCord began talking about things like perjury and hush money — and they managed to keep a lid on things for awhile longer.

But the peaks in the investigation were coming more frequently now. The next one would come within two weeks when John Dean took the stand.

When Nixon and Dean Conferred

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From the day in July 1973 when their existence was publicly revealed until the Supreme Court ruled against him a year later, Richard Nixon fought to keep the tapes of his Oval Office meetings and his telephone conversations private.

In the end, of course, he wasn't entirely successful. But none of that was known 40 years ago today.

My memory of the summer of 1972 is that very little was known by a public that, by and large, really didn't seem to care. Perhaps it was too obsessed with the war in Vietnam.

But, occasionally, I heard the word Watergate, and, from time to time, I saw articles in the newspaper that had been picked up from the Washington Post — which was, for the most part, out there by itself in practicing the art of shoe–leather journalism, the hallmark of the early investigation.

Most of the folks in the media of 1972 did not care for Nixon — although most of their employers either endorsed him or took a pass — but they tended not to make their feelings known, and many columnists did not challenge the president.

Perhaps they were intimidated by his big (and consistent) leads in the polls — and the knowledge that he was virtually certain to win a second term.

But the truth was that Watergate really didn't receive the kind of attention in 1972 that it did the following year. If it had, it might have been dismissed as politically motivated — and might not have gained traction until 1973, anyway.

(I don't really think it would have made much difference. The "dirty tricks" of the Nixon operatives had succeeded in sabotaging the candidacies of most of the Democrats, and George McGovern was well on his way to the Democratic nomination by the time of the Watergate break–in.

(Replacing McGovern as the nominee would have been a major headache that dwarfed the logistical nightmare created by the scandal that necessitated dropping McGovern's running mate, Tom Eagleton.)

Nevertheless, Nixon and Dean were aware of negative reporting from some journalists. In his testimony to the Senate committee in 1973, Dean seemed to be blaming Nixon for the toxic atmosphere in the White House.

With the benefit of hindsight and the knowledge that almost nothing was done in the Nixon White House without the president's knowledge, that is a proposition that is easy to accept.

Their conversation, Dean said, "turned to the press coverage of the Watergate incident and how the press was really trying to make this into a major campaign issue. At one point ... I recall the president telling me to keep a good list of the press people giving us trouble."

Meanwhile, the wheels of justice were turning that summer — often silently, often slowly, but they were turning — and it was 40 years ago today that E. Howard Hunt, G. Gordon Liddy and the five Watergate burglars were indicted by a federal grand jury.

In hindsight, that was an important turning point in the Watergate investigation. If there had been no initial indictments, the legal basis for continuing with the investigation would have been completely undermined.

And the hope at 1600 Pennsylvania Avenue was that the matter would stop there. History, of course, tells us it did not.

At the end of that Friday, White House counsel John Dean participated in a White House meeting dedicated to strategy on Watergate–related investigations. It was, Dean would later tell the Senate select committee chaired by Sen. Sam Ervin, the first time he spoke to Nixon about Watergate.

Indeed, Dean claimed, it was the first meeting he had with Nixon.

It's still unclear to me, after all these years, whether Nixon and Dean discussed the matter before Sept. 15, 1972, but the evidence is clear — via the president's own recordings — that they had access to the same sources for information.

At the time, the existence of the voice–activated recording system was known only to a select group — those who needed to know — and, in 1972, Dean was not among them.

Consequently, it was ironic when, the following year, Dean memorably told Republican Sen. Ed Gurney, a member of the so–called "Watergate committee," that "my mind is not a tape recorder."

Dean did not know until after his own testimony, when Alexander Butterfield revealed it under direct questioning, that a system for recording Oval Office conversations had been installed in 1971 — and it ultimately would confirm the credibility of his memory.

The recordings also proved Dean's memory was not flawless. But it was good enough that it earned the respect of investigators, even those whose loyalties were to the Nixon White House.

Dean said it was the very fact that he had been asked in to talk with Nixon that made the conversation so vivid in his memory. Even though he worked in the White House counsel's office, it was hardly routine for him to be invited to the Oval Office.

It's almost spooky now to read the transcript of the Sept. 15 conversation — as submitted by the White House in the spring of 1974 in a futile attempt to satisfy the subpoenas from congressional Democrats — knowing that the recording system was silently preserving everything.

As I re–read the transcript recently, I was struck, as always, by the casual way — visible even in the clearly doctored version — Nixon treated decisions that were intended to keep a lid on things. And by the anger — the raw sense of entitlement — that often flared when he believed others had not responded appropriately.

"You had quite a day today, didn't you?" Nixon said to Dean. "You really got Watergate on the way, didn't you?"

"We tried," Dean replied.

When Dean said that "some apologies may be due" — implying that further action could be avoided if such apologies were offered — chief of staff Bob Haldeman snorted, "Fat chance," and Nixon snarled, "Get the damn," the rest of which was labeled inaudible, although it doesn't take much imagination to complete the thought.

"We can't do that," Haldeman admonished the president.

But the rest of the 50–minute conversation focused on what they could do.

One such strategy revolved around the possibility of providing proof that a bugging device that had been found in a telephone in the DNC office had been "planted" by the DNC.

If such evidence could be found, Dean speculated, it could "reverse" the Watergate story.

When Dean testified before the Senate Watergate Committee the following year, he remembered that Nixon's primary concern was whether the trials would begin before the upcoming election.

Nixon also instructed him, Dean told the senators in June 1973, to "keep track" of those who tried to make Watergate a campaign issue "because we will make life difficult for them after the election."

According to the transcript of the conversation, which was released by the White House in April 1974, Dean was the one who first mentioned keeping a list of the president's critics in the press.

"[O]ne of the things I've tried to do," Dean was quoted as saying, "I have begun to keep notes on a lot of people who are emerging as less than our friends because this will be over someday, and we shouldn't forget the way some of them have treated us."

Knowing the lengths to which Nixon went to cover up his complicity in Watergate, it's certainly possible that the White House manipulated the transcript to make Nixon appear innocent — the transcripts were famously edited to delete the presumably off–color adjectives Nixon and his associates used in their conversations, and it was revealed after Nixon resigned two years later that roughly 17 minutes of the Sept. 15 conversation (during which Nixon was said to have threatened to fire Treasury Secretary George Shultz if he attempted to prevent the White House from using the IRS for political purposes) were missing from the White House transcripts.

(In the transcript, the absence of the remainder of the conversation was dismissed as being "unrelated to Watergate.")

But Nixon's dark side came through, in spite of any whitewash efforts that may have been made.

In the transcript, Nixon responded that "I want the most comprehensive notes on all those who tried to do us in. ... [T]hey were doing this quite deliberately, and they are asking for it, and they are going to get it. We have not used the power in this first four years ... but things are going to change now."

That strikes me as being pretty dark as it is. But what if that portion of the dialogue actually occurred before Dean spoke about keeping notes?

Wouldn't that suggest that Nixon gave Dean an assignment and Dean, in an attempt to butter up the boss in their first meeting, responded with, essentially, "Oh, yes, I'm ahead of you on that."

In the transcript, Dean certainly seems eager to occupy a spot on the president's good side. After Nixon spoke about using "the power" in his second term, Dean responded, "What an exciting prospect."

One can only imagine what might have been.

The Smoking Gun

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In an historical context, it's ironic that Barack Obama should claim executive privilege this week.

For two years, Richard Nixon got away with telling the American people that he was not involved in the Watergate coverup.

As time passed, fewer and fewer Americans believed what Nixon said, but his story (until he was forced to acknowledge otherwise) was that he hadn't known of the involvement of high–ranking White House officials until long after the break–in — and he stuck by that story.

Until the summer of 1973, when the existence of Nixon's White House recording system was revealed, it was Nixon's word against former White House counsel John Dean's. The knowledge that there were tapes of Oval Office conversations meant there was evidence that could prove which one was telling the truth.

Nixon resisted all attempts to force him to relinquish the tapes; he insisted they were protected by the principle known as executive privilege. But, in August 1974, the matter was before the Supreme Court, which ruled that Nixon had to turn over recordings of Oval Office conversations that Congress had been demanding and that Nixon had been trying to keep confidential.

The tapes included a conversation Nixon had with his chief of staff, Bob Haldeman, 40 years ago today — less than a week after the break–in — that clearly showed Nixon's complicity.

Earlier in 1974, Nixon agreed to release edited transcripts of certain conversations that had been subpoenaed — and those transcripts included conversations that occurred long before the one in which Nixon claimed to learn of the involvement of the higher–ups, but the earliest conversation in those transcripts had taken place in September 1972.

But as I wrote a few days ago, taped evidence of the first known conversation about Watergate in which Nixon participated was tampered with. No one will ever know what was really said on that occasion.

The tape of the June 23, 1972, conversation came to be known as "the smoking gun" because it proved that Nixon was an active participant in the coverup long before he acknowledged learning the details.

But it revealed more than that. It exposed aspects of Nixon's personality that had been hidden from public view.

In fact, the real smoking gun may have been destroyed in the mysterious "18½–minute gap" in a tape of a conversation between Nixon, Haldeman and John Ehrlichman three days earlier. Nixon's secretary, Rose Mary Woods, took the fall for that one, claiming to have erased it by mistake while working on the transcription, but it remains suspicious.

The meticulous notes that Haldeman always took at such meetings suggested that the conversation dealt primarily with Watergate, and electronics experts concluded that the gap was the result of at least four separate erasures — not one long one.

Consequently, the conversation that took place 40 years ago today may not have been the first time that Nixon and Haldeman spoke about the matter. But it's the first one of which evidence is known to exist.

Nixon's "initiating personal crime" came about "casually," wrote Theodore H. White in "Breach of Faith," when Nixon blithely "authorized use of the CIA to halt the FBI in its investigation of the Watergate break–in."

That was what always struck me as ironic about the Watergate scandal — a decision that had such profound repercussions on people's lives and careers, not to mention a nation's relationships with its leaders, was made in such an offhand fashion.

It's hard to tell just from the transcript of the conversation, but my best guess is that the Watergate–related exchange couldn't have taken more than five or 10 minutes, then it was on to something else.

Discussing what he called the "Democratic break–in thing," Haldeman told Nixon that "we're back in the problem area because the FBI is not under control, because [FBI director] Gray doesn't exactly know how to control it ... and their investigation is leading into some productive areas — because they've been able to trace the money ... through the bank source."

That was certainly a telling comment.

As anyone who ever read Bob Woodward and Carl Bernstein's account of the Watergate investigation knew, the money was what their source, known as Deep Throat, advised them to follow. The money would lead them to the heart of the conspiracy, he said, and it did.

Nixon and Haldeman conversed for an hour and half that day. They had been away from Washington at the time of the break–in and in the days immediately following, when the president's lieutenants tried to control something that was already beyond their control.

Yet the transcript of their June 23 conversation suggests, as I say, that they spent little time on Watergate. Nixon instructed Haldeman to "Play it tough. That's the way they play it, and that's the way we're going to play it."

And it was on to other business. When I read the transcript of that conversation, I could imagine them speaking as casually as they would have if they were talking about sports.

In retrospect, maybe it was treated more as one item on the agenda for a single day — of no more significance and no more memorable than selecting the menu for a state dinner.

"Therefore," wrote White, "the matter had become an administrative matter for the underground, which successfully contained the scandal until after the election."

That was, after all, the supreme objective — the re–election of the president. No real thought ever seemed to be given by the conspirators to what they would do after they won the election and Nixon was inaugurated for a second time.

Those involved seemed to believe — at least, at this point — that Watergate would go away and cause no more trouble for them.

And, for awhile, it didn't seem they needed to worry about it. When the nation prepared to go to the polls in 1972, surveys indicated that a majority of Americans knew little or nothing about Watergate. To anyone who was paying attention, it seemed that Nixon and his co–conspirators would get away with it.

But that would change.

Rose Mary's Boo-Boo

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Rose Mary Woods re–enacts the "Rose Mary Stretch" for photographers.

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The official accounts of the Watergate break–in and its subsequent coverup all say that the Oval Office conversation in which the so–called "smoking gun" was found to be in Richard Nixon's hand occurred 40 years ago Saturday.

But it's possible — if not probable — that the gun had been smoldering for a few days.

Actually, all the evidence and testimony suggest that the Nixon White House's damage control machine was humming the day of the break–in, but Nixon and his chief of staff, H.R. Haldeman, were in Florida. There were things that could not be done until they returned.

On this day 40 years ago, the men who were ultimately held accountable for the coverup conspiracy held a series of meetings that were dedicated to damage control. The first newspaper story that linked White House operative Howard Hunt to the Watergate burglars had been published that day, and the president's men were determined that culpability for the break–in would stop with Hunt.

In mid–morning that day, Nixon had a phone conversation with his campaign director and former attorney general, John Mitchell, then he met for an hour with Haldeman and John Ehrlichman, a top adviser. The burglary was only three days old at that time, but Ehrlichman already had met with just about all of the principals by that time.

Nixon and Haldeman, as I say, had been out of Washington at the time of the break–in. On Tuesday, June 20, 1972, they were back in the White House and allegedly being brought up to speed on what had happened in their absence — and there may have been no one else who knew as much about Watergate at that point as Ehrlichman did.

Consequently, it made sense to many observers that Nixon learned many of the details of the break–in from Ehrlichman on that occasion, but the evidence that might support that theory was incomplete.

There was a recording of that conversation, and investigators subpoenaed the tape when the existence of the White House taping system was revealed in the summer of 1973, but, in November, it was learned that a portion of the tape had been mysteriously erased before Nixon's lawyers first listened to it.

The White House's position was that Nixon's secretary, Rose Mary Woods, who had been with Nixon for more than two decades and was decidedly loyal to her boss, had accidentally erased about five minutes of the tape.

According to her account, Woods had been transcribing the tape when the phone rang and she reached to answer it. Her feet controlled basic functions like stop, play and record with pedals that left her hands free for typing; she insisted that, somehow, while she was answering the phone and then carrying on a five–minute conversation, she stepped on the record pedal, erasing that section.

Her side of the story was met with quite a bit of skepticism. A rather short woman, there was no conceivable way that Woods could comfortably pull off the maneuver that she described (dubbed the "Rose Mary Stretch") — even if she was a contortionist.

But things were considerably worse than that.

The actual gap turned out to be more than three times as long as the one for which Woods claimed responsibility, and she denied that her erasure was anything like the 18½ minutes it turned out to be.

Because the pitch of the buzzing noise that was made by the erasure changed several times, the unavoidable conclusion was that several separate erasures had been attempted.

Privately (and, in some cases, not so privately), it was suggested that the tape had been deliberately erased. Alexander Haig, Nixon's chief of staff at the end of his presidency, openly suggested Nixon may have erased it himself, either accidentally or intentionally.

Nixon, he said, was never comfortable with mechanical devices, and he might well have erased a portion of the tape when he was trying to listen to it.

That provided a possible, unintentional explanation, but unless that can be proven, the alternate possibility — that someone, possibly Nixon himself, deliberately destroyed evidence — cannot be dismissed.

The tape of the June 20 conversation has always intrigued me. Of all the tapes of White House conversations, it is the only one that was destroyed — at least in part.

Ultimately, it was a tape of a conversation between Nixon and Haldeman on June 23, 1972, that came to be known as the "smoking gun." That was the tape that caused Nixon's base in Congress to crumble — and led him to conclude that resignation was his only option.

What must Nixon and Haldeman and Ehrlichman have said to each other 40 years ago that prompted whoever it was to repeatedly record over the tape until that portion of the conversation was entirely erased rather than risk having it revealed to the public?

Was it worse than anything else that was revealed in those tapes?

Could it have done any more damage to the relationship between the American people and their government?

Twenty years ago, in a TV program that commemorated the 20th anniversary of the Watergate break–in, I heard Woodward talking about the 18½–minute gap.

With all the evidence of a huge criminal conspiracy that went deep into the White House, Woodward said, Nixon would have needed something like an 18,500–minute gap to successfully conceal his involvement.

I believed that when I heard it. Twenty years later, I am even more convinced that is true.