The Strong Man: John Mitchell and the Secrets of Watergate (68 page)

After more than a day in the House dock, Mitchell departed through one of the long corridors of the Rayburn Building. “Walking with his lawyers, he simply ignored the press,” one representative observed. “To me it was a terrible shame to see him, a former attorney general of the United States…walking silently down halls where he had once been greeted with high praise and admiration.”
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Nothing is known about
what reaction Mitchell had, if any, to the eerie sight, on August 9, 1974, of Richard Nixon smiling as he boarded Marine One, the first president of the United States to resign, leaving the White House in disgrace with the specter of criminal prosecution hovering over him. Mitchell issued no public comment—save for one small reference, almost an aside, buried in a legal motion his attorneys filed with Judge Sirica on August 12. Seeking a postponement of the cover-up trial, due to pretrial publicity, Mitchell, through his lawyers, argued Nixon’s “
forced
resignation” had unfairly lent credence to the belief that the ex-president “and his close associates, i.e., Mitchell, were criminal conspirators in Watergate.”

Most historians have ignored
U.S. v. Mitchell
, dismissing it as an anticlimactic coda to the far more urgent and dramatic story of Nixon’s resignation and pardon. Only in the early 1990s did a handful of scholars begin to notice the changes, subtle and astonishing, that the chief accusers of Nixon and Mitchell wove into their stories in the different forums. Even then, no extensive account of
U.S. v. Mitchell
, a kind of Nuremberg trial for the Vietnam/Watergate era, has ever been published.

Not surprisingly, little attention was paid to the flurry of legal motions the former attorney general filed in late 1974: to dismiss his indictment; to disqualify Judge Sirica for bias; to relocate the trial to a different venue; to sever Mitchell’s case from the others’ to challenge the admissibility of Nixon’s tapes; to correct errors in the tape transcripts; and, most notably, to halt the trial so Nixon’s deposition could be taken—all denied by Sirica. Unseen outside the confines of federal district court, the Mitchell motions revealed the tenacity with which the former attorney general fought, in vain, for his freedom.

Most curious was Mitchell’s use of the phrase “
forced
resignation.” In implying Nixon’s wounds were other than self-inflicted, the motion suggested, at least on the surface of things, that the former attorney general remained unwaveringly loyal to his old law partner. Yet elsewhere Mitchell’s court filings betrayed a surprising willingness to trade on the widely presumed guilt of the ex-president for whatever legal advantage it might bring. “By accepting the pardon,” Mitchell’s defense team argued on September 12, four days after President Ford granted it, “Richard Nixon has unavoidably implied that he had engaged in certain illegal acts.” Mitchell even cited the statement Nixon issued in accepting the pardon.

I was wrong in not acting more decisively and more forthrightly in dealing with Watergate, particularly when it reached the stage of judicial proceedings…. I know many fair-minded people believe that my motivations and actions in the Watergate affair were intentionally self-serving and illegal. I now understand how my own mistakes and misjudgments have contributed to that belief and seemed to support it.

On December 4, with the trial under way, Mitchell escalated his attacks on Nixon—muted, since they were buried in legal briefs, but attacks nonetheless—to their highest pitch. The former attorney general requested that Sirica adjourn the proceedings for a month, until January 6, 1975. That was the date by which a court-appointed panel of physicians had predicted the ex-president, bedridden from a nearly fatal case of phlebitis, would be well enough to withstand deposition. First the December 4 motion recited a lengthy list of events on which Nixon’s testimony would be relevant to the defense: the “smoking gun” and “cancer on the presidency” meetings, among others. Then came the assault, the closest John Mitchell ever came to testifying against Richard Nixon.

Since the Government has contended,
and the evidence now shows
, that Mr. Nixon was intimately involved in the allegedly illegal activities that form the basis of the charges against the defendants, and since Mr. Nixon, a named co-conspirator, is possessed with a great deal of information material to this case…his testimony must be published to the jury in order to prevent a failure of justice…. The evidence shows that, rather than participating in a conspiracy with Mr. Mitchell,
Mr. Nixon may have participated in a conspiracy which carefully excluded Mr. Mitchell’s membership, and which was designed to have an extremely adverse effect on Mr. Mitchell’s well-being
. Mr. Nixon’s testimony is, therefore, essential to support Mr. Mitchell’s contention that he was a victim or object of the conspiracy and not a member of it.

Here, then, at last, was—
Mitchell’s revenge!
Here was evidence Mitchell understood the White House tapes’ central revelation, which was not legal in nature, but personal: that Nixon turned on Mitchell so easily, so cruelly set up his old law partner and campaign manager, the man he considered most responsible for his election to the presidency. “Why don’t you just gear it up?” Nixon had responded, excited when Ehrlichman offered to wire his office for the tête-à-tête with Mitchell. “Do you have a way to gear it up? Well, go gear it!” Here, in the December 4 motion, was the clearest sign that Mitchell recognized Nixon’s centrality in the White House effort to frame him, that although the ex-president was badly misinformed by aides, he was also undeniably capable, under the right circumstances, of destroying the man who had made him.
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On October 1, 1974, Sirica
banged his gavel to open the trial. Over the preceding two months, he had, with metronomic regularity, shot down every defense motion he saw. “The publicity has already died down,” Sirica said on August 19, rejecting calls for a delay or change in venue. The firestorm that erupted twenty days later, with Nixon’s pardon, did nothing to change his mind. To a plea for more time to study Nixon’s tapes—to which even the WSPF prosecutors agreed—Sirica snapped: “I’m not impressed. I don’t think it’s going to take too long to listen to those tapes.” On that issue, however, Sirica eventually yielded, bowing to a unanimous appellate court and giving the defendants another month to prepare.

By the time it started, the trial, expected to last through Christmas, was reduced to five defendants. That June, Charles Colson pleaded guilty to one count of plotting to defame Daniel Ellsberg and his lawyers; as part of the deal, Colson was to testify in
Mitchell
and related proceedings. More curiously, the case of Gordon Strachan was severed from the others’—at the government’s request. The special prosecutors concluded that the former Haldeman aide had lied to the grand jury and to the Ervin committee, among other crimes, but that his unusual immunity deal, negotiated with the original prosecutors, made his conviction unlikely. The WSPF had other good reasons to leave Strachan alone. “Strachan’s testimony so far seems on balance to be more damaging than helpful in proving charges against target defendants Mitchell and Haldeman,” wrote WSPF lawyer Gerald Goldman, in a previously unpublished memorandum, in September 1973. “Strachan significantly discredits Magruder’s trustworthiness or the fundamental question of whether Mitchell in fact gave his approval at Key Biscayne.” The Goldman memo is another “smoking gun”: irrefutable evidence the WSPF
knew
Magruder’s testimony against Mitchell on the authorization of the break-in was false, but went ahead and used it anyway.
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Richard Ben-Veniste delivered the government’s opening statement. After noting that the indictment in the case did not charge anyone with planning or participating in the Watergate break-in, he proceeded to give an account of the operation’s origins that squarely blamed Mitchell for its authorization. Recapping the three Gemstone meetings, Ben-Veniste said Mitchell had “reject[ed]” Liddy’s plan the first time, “deferred” consideration the second time (“still too much money,” Ben-Veniste said), and “okayed” it the third time, in Key Biscayne, “after some discussion.”

From this Mitchell could easily tell how the rest of the play would unfold. To make its case, the government would blithely ignore inconvenient testimony from its own witnesses, such as Magruder, who said Mitchell’s opposition to the second Liddy plan was based not on cost, but on the stated view that the plan was “still too broad in scope” or LaRue, whose unwavering testimony about Key Biscayne exonerated Mitchell of having “okayed” the Gemstone plan there. As for the doomed June 17 break-in, that came about, Ben-Veniste said, because Mitchell had been unhappy with the results of the DNC wiretaps and therefore “another entry would have to be made.” Of the cross-continental scheming that sent Liddy racing out to Burning Tree, Ben-Veniste, keenly aware of the timeline problems, reverted to vagueness and passive tense, saying only that the discussions “resulted in Liddy being dispatched.”

When he came to the destruction of evidence, Ben-Veniste told a flat-out lie. This concerned the materials in Howard Hunt’s safe, which John Dean and his deputy, Fred Fielding, had cleaned out two days after the arrests. “So some material went directly to the [FBI] director,” Ben-Veniste said, “and
the rest of it
went to the FBI agents.” This assertion was, as the prosecutor knew, flatly untrue: It omitted the three notebooks Hunt had kept, chronicling Gemstone’s crablike progress, and which Dean—only after completing his plea deal—had belatedly admitted destroying.

On it went: the evening session at Mitchell’s apartment, the “smoking gun” meeting, the appeals to CIA, the subornation of perjury, the payments of hush money and offers of executive clemency. At all points Ben-Veniste’s skewed version of history implicated the former attorney general above all others: It was Mitchell who hatched the plan to have CIA block the FBI investigation; Mitchell who told Dean to enlist Kalmbach and to get Haldeman’s and Ehrlichman’s approval; Mitchell who told Dean to utilize the White House fund; Mitchell who told LaRue to pay the final $75,000 to Hunt. Summing up, Ben-Veniste vowed the government would prove beyond reasonable doubt not only that Mitchell had committed all these crimes, but that he was driven by a powerful motive to do so: his desire to “suppress the fact that he was aware of, and indeed authorized, Liddy’s Gemstone plan.”

Bill Hundley waived his opening statement. On the trial’s second day, Mardian’s lawyer, David Bress, unloaded on Jeb Magruder, “the confessed perjurer.” The defense strategies of Mardian and Mitchell both required exposing the falsity of Magruder’s testimony on Burning Tree: the repeated changes in his story as to what time he learned about the arrests, and his claim that Mardian, acting on Mitchell’s orders, had called Liddy and dispatched him to find Attorney General Kleindienst. With Liddy silent in prison, his memoir six years away from publication, the truth of the matter—that it was neither Mitchell nor Mardian who gave Liddy his orders that morning, but Magruder himself—could only be established by impeaching Magruder’s credibility and timeline of events. Bress told the jury it was “not physically possible” for Mardian to have made the call to Liddy, because by the time Mitchell and his entourage in California first heard about the break-in, Liddy “had already been to see” Kleindienst at Burning Tree.

Finally, on the fourth day, with opening statements concluded, Hundley moved anew for a separate trial. The other defendants were clearly mounting defenses “legally antagonistic” to Mitchell, who was bound to “catch a lot of fall-out” along the way, Hundley said. A separate trial would also better enable Mitchell to “meet head-on” the charge that he authorized the Watergate operation and “establish who did it.” Sirica’s consideration consisted of two brusque words: “Motion denied.”

The trial moved to the government’s case, and the calling of the WSPF’s first witness: John Dean. As the thirty-six-year-old former White House counsel strode to the stand, ready to bear false witness against the man he once counted a mentor, he saw in Mitchell’s face no emotion or expression whatsoever; it was as if the two had never met.
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