The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (26 page)

Dean or his criminal defense counsel Charles Shaffer met or talked with one or more of the career prosecutors from the U.S. attorney’s office—Earl Silbert, Seymour Glanzer, and Donald Campbell—more than fifteen times in the days and weeks following the cover-up’s collapse (between April 2 and May 5, 1973), and before the appointment of the Watergate special prosecutor. In these negotiations, everyone knew that Dean would not testify against his former colleagues without the promise of immunity from prosecution. While immunity was never formally granted, they agreed informally that the prosecutors would not bring charges against Dean for what was revealed during the course of these meetings.

Dean’s initial offer, through his counsel, was to testify against Mitchell and Magruder, but the prosecutors were not impressed with the value of such testimony. They countered that they already had enough testimony against Mitchell from Magruder. Dean then removed exceptionally sensitive information from the files in his counsel’s office and presented these files to prosecutors as bargaining chips.
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When this failed to secure his desired immunity, Dean’s own lawyer, Charles Shaffer, told him that since the prosecutors were targeting him on the break-in, he had to enhance the importance of the cover-up and make himself indispensable to their case. Dean describes the conversation in
Blind Ambition
:

                
D
EAN
: Goddammit, Charlie. I don’t want to meet with those bastards.

                
S
HAFFER
: Listen, John, we don’t have any choice. The cat’s out of the bag. We’ve got to pump them full of the cover up now. I’ve got to up the ante with them to have a shot at immunity. That’s your only chance not to be the fall guy.

                
[Two paragraphs later:]

                
D
EAN
: I think your strategy of getting immunity is more important than ever now.
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Thus, toward the end of their series of meetings, Dean began to make accusations against Haldeman and Ehrlichman. In May, following his termination, Dean first began to make accusations against President Nixon himself. Silbert later characterized Dean’s somewhat fluid story as having “escalated” over the course of this critical month.

The career prosecutors were never willing to grant Dean the immunity he sought, since they remained concerned with the seriousness of his own criminal culpability. Dean nevertheless agreed to appear before the Watergate grand jury on May 5, but it turned out that he and Shaffer had also been negotiating for immunity from the Ervin Committee. That grant of immunity seemed to be within his grasp, and on May 4, the evening before Dean’s scheduled grand jury appearance, Shaffer called Glanzer at home to say that Dean had changed his mind and would not appear before the grand jury as previously agreed.

The prosecutors from the U.S. attorney’s office took careful notes during their lengthy interviews with Dean and Shaffer (available today for review at the National Archives). But those prosecutors, who had secured the burglary convictions and broken the cover-up, were removed from the Watergate case upon the appointment of the special prosecutor and creation of his independent office. The original prosecutors’ first-hand knowledge of what had happened up to that point was then lost to the prosecution.

Those meetings from April and May 1973 between the career prosecutors and Dean took on new importance in the fall, when
Watergate Task Force attorneys were trying to formalize their plea deal with Dean. As the negotiations progressed, WSPF prosecutors became concerned that Silbert, Glanzer, and Campbell might have extended an informal offer of immunity to Dean that could preclude his actual prosecution under any circumstances. They decided, therefore, to meet with the career prosecutors to find out more about their spring interviews with Dean and Shaffer. The meetings with which we are concerned are those with Seymour Glanzer and Donald Campbell, conducted by Peter Rient and Judith Denny of the Watergate Task Force in Glanzer’s office on September 18 and October 10, 1973. They asked Glanzer and Campbell about each of their April and May meetings, pressing them for details about the scope of the discussions—what was said, when, and by whom. Rient and Denny took extensive notes, which they memorialized in a joint memo to the files dated November 15, 1973 (see
Appendix O
).
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The following excerpts from that memo present troubling issues regarding the WSPF’s compliance with the Brady doctrine in the prosecution of Haldeman and Ehrlichman:

                
April 6: Shaffer talked only about Dean’s knowledge of Mitchell and Magruder. There was nothing said about Ehrlichman, Haldeman, Colson or Nixon.

                
April 8: Dean did not mention his subsequent meeting with Haldeman at this time.
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He gave no information at all about Haldeman or Ehrlichman.

                
April 9: Dean never acknowledged a cover-up or conspiracy or paying the defendants for silence until after he was fired (April 30, 1973).

                
April 9: Dean said that at some time Parkinson and LaRue had come to Dean’s office with a sheet of paper with money requests from Hunt on it, but Dean never said that the money was for Hunt’s silence.

                
April 9: Dean mentioned the McCord letter complaining about a CIA defense being contemplated. Ehrlichman told
Dean to “stroke” McCord. Also Bittman visited Colson and discussed clemency. Again the response by Ehrlichman and Haldeman was that Colson should “stroke” Bittman, but make no promises.

                
April 9: Campbell remembers that Dean told of the March 21 meeting where Dean attempted to tell the President about the situation, but that the President didn’t understand.

                
April 23: Glanzer says that by this time, the discussions had turned into a political game. Dean was bargaining with the Senate for immunity and the prosecutor’s attempts at agreeing on a plea were in vain.

                
April 29: By the end of April, Dean had become much more antagonistic toward Haldeman and Ehrlichman in his discussions with the prosecutors and also in public, issuing the “scapegoat” statement. Before that, the impressions he gave of Haldeman was of a “great devoted public servant,” clean and hard working. He had been restrained in his praise of Ehrlichman.

                
May 2: [Dean] said Colson could corroborate the meeting on June 19th where Ehrlichman gave the order to tell Hunt to leave the country. (Dean became antagonistic toward Colson when Colson did not corroborate).

                
May 3: On May 3, Dean began focusing on Presidential involvement, thus changing dramatically from his previous stance.
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May 3: Dean was somewhat concerned about being arrested for turning over the documents since he never had control of them.
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May 3: Months before Dean’s March 21 conversation with Nixon, Dean had discussed the cover-up with [White House special counsel] Dick Moore. Although Moore suggested going to Nixon then, Dean did not do so.

                
End of Memo: Glanzer thinks the prosecutors’ effort was neutralized by the appointment of a special prosecutor and
the Senate Committee coming into being, and that they began to lose control over the case.

These portions of Rient’s and Denny’s memo, reflecting the views of the original Watergate prosecutors—the career prosecutors from the U.S. attorney’s office who met with Dean when he first approached them in pursuit of immunity—contained evidence that would have raised substantial doubts about the special prosecutor’s case against Haldeman and Ehrlichman (as well as any case against President Nixon). In short, the contents of this memo were—and remain—critically damaging to Dean’s credibility as a witness.

Dean mentioned no conspiracy early on. He said nothing about the payment of money’s being for silence. He did not allege the involvement of Haldeman and Ehrlichman in the course of over a dozen meetings and phone calls with prosecutors. It was not until a full month after the meetings began—and only after he had been terminated from his job as counsel to the president—that Dean first began to mention these matters or to accuse President Nixon of any wrongdoing.

It seems clear from the quoted portions of this memo from the special prosecutor’s own files that Dean’s story changed considerably during his month-long pursuit of immunity. It would be difficult to imagine a more devastating document, especially in the hands of defense counsel seeking to raise reasonable doubts about the consistency and credibility of Dean’s accusations against their clients. Dean was the principal accusatory witness, and Rient’s and Denny’s memorandum undercut his story.

The WSPF ought to have revealed the Rient-Denny memorandum to the defense under the Brady doctrine. It unquestionably raises reasonable doubts about Dean’s story. The memo was not attorney work product, which might arguably have been exempt from disclosure. These career prosecutors were interviewed as witnesses about what had happened during their early meetings with Dean and Shaffer. Withholding this memo from defense counsel was a clear violation of the due process of law guaranteed to the defendants.

But the conduct of the Watergate Task Force appeared even more troubling when I found (in the National Archives) and reviewed Rient’s and Denny’s original handwritten notes from their two meetings with Glanzer and Campbell. It became clear that WSPF prosecutors had altered Glanzer’s and Campbell’s recollections when they summarized them in the memorandum of November 15, 1973.

The typed memo reads:

          
By the end of April, Dean had become much more antagonistic toward Haldeman and Ehrlichman in his discussions with the prosecutors and also in public, issuing the “scapegoat” statement. Before that, the impressions he gave of Haldeman was of a “great devoted public servant,” clean and hard working. He had been restrained in his praise of Ehrlichman.

The handwritten notes from the October 10th meeting read as follows (see
Appendix P
):

          
5/2—5/3 Silbert, Glanzer & Campbell meeting with Dean & Shaffer—

                
Situation in state of flux because of Senate Committee & Cox after 4/15. Dean becomes antagonistic toward E & H, whereas before he had given the impression that H was clean & was restrained as to E’s involvement. This was around time of “scapegoat” statement by Dean.

It is clear from a comparison of these two documents that someone in the prosecutors’ office re-interpreted the plain meaning of the handwritten notes, changing “H was clean and was restrained as to E’s involvement” to read “Haldeman was a ‘great devoted public servant,’ clean and hardworking. He had been restrained in his praise of Ehrlichman.” This constitutes the deliberate alteration of evidence in the possession of the prosecution. Altering the records of witness testimony normally would get an attorney fired and perhaps even disbarred.

It might be objected that the omission of these documents—both the handwritten notes and the finalized typewritten memo—from material turned over to defense counsel was mere oversight by the Watergate Task Force, but even if true it makes no difference. It is clear from the Supreme Court’s opinions discussed above that the prosecutor’s intent doesn’t matter. It is a denial of due process whether the omission is intentional or unintentional.

Besides, it is highly unlikely that the Rient-Denny memo was kept from defense counsel accidentally. On the concluding page of handwritten notes from the Glanzer and Campbell interviews are four “Additional Question[s] for Glanzer & Campbell,” including “Escalation by Dean.” Silbert first used the term in his eighty-seven-page briefing memo of May 25, 1973, to Cox, describing how Dean’s testimony gradually “escalated” to include President Nixon and his two top White House aides.

The deliberate change in wording from the handwritten notes to the typed version suggests that the authors—and possibly others—appreciated how important these observations were. It seems unlikely, moreover, that both Rient and Denny, having conducted the interviews and signed the final memo, would have overlooked this information or the applicability of the Brady doctrine.

WSPF prosecutors were clearly alert to the possibility of a challenge to Dean’s testimony on the grounds that it had changed over the course of his early meetings with the prosecutors from the U.S. attorney’s office. On the opening day of the cover-up trial, James Neal of the Watergate Task Force wrote an internal memo asking for an immediate and thorough review of Dean’s statements to the career prosecutors in case the defense counsel raised questions about how Dean’s story “escalated” as the series of interviews progressed.
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Even after this concern was raised, the prosecution insisted on the opening day of trial that it had turned over all that was required:

                
M
R
. N
EAL
: May it please the court; as we have said time and time again both in court and out to Mr. Hall [counsel for
John Ehrlichman], we have turned over volumes of materials relating to each witness. We have turned over to defense counsel months ago each and every document, and at the same time those matters that we believe we are obligated to turn over under 18 U.S.C. 3500 [the Jencks Act], and under the doctrine of Brady versus Maryland, we have turned over more than we think we are obligated to do, and as far as we are concerned, that is all we are going to do.
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