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92d Congress, 2d Session 


House Document No. 93-339 


House Calendar No. 426 


93d Congress 
2d Session 


HOUSE OF REPRESENTATIVES 


Report 
No. 93-1305 


IMPEACHMENT OE RICHARD M. NIXON 
PRESIDENT OF THE UNITED STATES 


REPORT 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 

Peter W. Rodino, Jr., Chairman 



August 20, 1974. — Referred to the House Calendar and ordered to be printed 


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WASHINGTON : 1974 


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COMMITTEE ON THE JUDICIARY 

PETER W. RODINO, Jr., New Jersey, Chairman 


HAROLD D. DONOHUE, Massachusetts 
JACK BROOKS, Texas 
ROBERT W. KASTENMEIER, Wisconsin 
DON EDWARDS, California 
WILLIAM L. HUNGATE, Missouri 
JOHN CONYERS, Jr., Michigan 
JOSHUA EILBERG, Pennsylvania 
JEROME R. WALD IE, California 
WALTER FLOWERS, Alabama 
JAMES R. MANN, South Carolina 
PAUL S. SARBANES, Maryland 
JOHN F, SEIBERLING, Ohio 
GEORGE E. DANIELSON, California 
ROBERT F. DRINAN, Massachusetts 
CHARLES B. RANGEL, New York 
BARBARA JORDAN, Texas 
RAY THORNTON, Arkansas 
ELIZABETH HOLTZMAN, New York 
WAYNE OWENS, Utah 
EDWARD MEZVINSKY, Iowa 


EDWARD HUTCHINSON, Michigan 
ROBERT McCLORY, Illinois 
HENRY P. SMITH III, New York 
CHARLES W. SANDMAN, Jr., New, Jersey 
TOM RAILSBACK, Illinois 
CHARLES E. WIGGINS, California 
DAVID W. DENNIS, Indiana 
HAMILTON FISH, Jr., New York 
WILEY MAYNE, Iowa 
LAWRENCE J. HOGAN, Maryland 
M. CALDWELL BUTLER,. Virginia 
WILLIAM S. COHEN, Maine 
TRENT LOTT, Mississippi 
HAROLD V. FROEHLICH, Wisconsin 
CARLOS J. MOORHEAD, California 
JOSEPH J. MARAZITI, New Jersey 
DELBERT L. LATTA, Ohio 


Impeachment Inquiry Staff 
John Doar, Special Counsel 
Albert E. Jenner, Jr., Associate Special Counsel 
Joseph A. Woods, Jr., Senior Associate Special Counsel 
Richard Cates, Senior Associate Special Counsel 
Bernard W. Nussbaum, Senior Associate Special Counsel 
Robert D. Sack, Senior Associate Special Counsel 
Robert A. Shelton, Associate Special Counsel 
Samuel Garrison III, Special Counsel to the Minority 


Fred H. Altshuler, Counsel 
Thomas Bell, Counsel 
W. Paul Bishop, Counsel 
Robert L. Brown, Counsel 
Michael M. Conway, Counsel 
Rufus Cormier, Special Assistant 
E. Lee Dale, Counsel 
John B. Davidson, Counsel 
Evan A. Davis, Counsel 
Constantine J. Gekas, Counsel 
Richard H. Gill, Counsel 
Dagmar Hamilton, Counsel 
David Hanes, Special Assistant 
John E. Kennahan, Counsel 
Terry R. Kirkpatrick, Counsel 
John R. Labovitz, Counsel 
Lawrence Lucchino, Counsel 
R. L. Smith McKeithen, Counsel 


Alan Marer, Counsel 
Robert P. Murphy, Counsel 
James B. F. Oliphant, Counsel 
Richard H. Porter, Counsel 
George Rayborn, Counsel 
James Reum, Counsel 
Hillary D. Rodham, Counsel 
Stephen A. Sharp, Counsel 
Jared Stamell, Counsel 
Roscoe B. Stabek III, Counsel 
Gary W. Sutton, Counsel 
Edward S. Szukelewicz, Counsel 
Theodore Tetzlaff., Counsel 
Robert J. Trainor, Counsel 
J. Stephen Walker, Counsel 
Ben A. Wallis, Jr., Counsel 
William Weld, Counsel 
William A. White, Counsel 


Committee Staff 
Jerome M. Zeifman, General Counsel 
Garner J. Cline, Associate General Counsel 
Daniel L. Cohen, Counsel 
Franklin G. Polk, Counsel 



House Calendar No. 426 

93d Congress ) HOUSE OF REPRESENTATIVES j Report 
2d Session J ( No. 93-1305 


IMPEACHMENT OF RICHARD M. NIXON, PRESIDENT OF 
THE UNITED STATES 


August 20, 1974 — Referred to the House Calendar and ordered to be printed 


Mr. Rodino, from the Committee on the Judiciary, 
submitted the following 

REPORT 

together with 

SUPPLEMENTAL, ADDITIONAL, SEPARATE, DISSENT- 
ING, MINORITY, INDIVIDUAL AND CONCURRING VIEWS 

The Committee on the J udiciary, to whom was referred the consid- 
eration of recommendations concerning the exercise of the constitu- 
tional power to impeach Richard M. Nixon, President of the United 
States, having considered the same, reports thereon pursuant to H. 
Res. 803 as follows and recommends that the House exercise its con- 
stitutional power to impeach Richard M. Nixon, President of the 
United States, and that articles of impeachment be exhibited to the 
Senate as follows : 

RESOLUTION 

Impeaching Richard M. Nixon, President of the United States, of 
high crimes and misdemeanors. 

Resolved , That Richard M. Nixon, President of the United States, 
is impeached for high crimes and misdemeanors, and that the follow- 
ing articles of impeachment be exhibited to the Senate : 

Articles of impeachment exhibited by the House of Representatives 
of the United States of America in the name of itself and of all of 
the people of the United States of America, against Richard M. Nixon, 
President of the United States of America, in maintenance and 
support of its impeachment against him for high crimes and 
misdemeanors. 

Article I 

In his conduct of the office of President of the United States, 
Richard M. Nixon, in violation of his constitutional oath faithfully 

(l) 



2 


to execute the office of President of the United States and, to the best 
of his ability, preserve, protect, and defend the Constitution of the 
United States, and in violation of his constitutional duty to take care 
that the laws be faithfully executed, has prevented, obstructed, and 
impeded the administration of justice, in that : 

On June 17, 1972, and prior thereto, agents of the Committee for 
the Re-election of the President committed unlawful entry of the 
headquarters of the Democratic National Committee in Washington, 
District of Columbia, for the purpose of securing political intelligence. 
Subsequent thereto, Richard M. Nixon, using the powers of his high 
office, engaged personally and through his subordinates and agents, in 
a course of conduct or plan designed to delay, impede, and obstruct the 
investigation of such unlawful entry ; to cover up, conceal and protect 
those responsible ; and to conceal the existence and scope of other un- 
lawful covert activities. 

The means used to implement this course of conduct or plan included 
one or more of the following : 

(1) making or causing to be made false or misleading state- 
ments to lawfully authorized investigative officers and employees 
of the United States ; 

(2) withholding relevant and material evidence or information 
from lawfully authorized investigative officers and employees of 
the United States ; 

(3) approving, condoning, acquiescing in, and counseling wit- 
nesses with respect to the giving of false or misleading statements 
to lawfully authorized investigative officers and employees of the 
United States and false or misleading testimony in duly instituted 
judicial and congressional proceedings; 

(4) interfering or endeavoring to interfere with the conduct of 
investigations by the Department of Justice of the United States, 
the Federal Bureau of Investigation, the Office of Watergate Spe- 
cial Prosecution Force, and Congressional Committees; 

(5) approving, condoning, and acquiescing in, the surreptitious 
payment of substantial sums of money for the purpose of obtain- 
ing the silence or influencing the testimony of witnesses, potential 
witnesses or individuals who participated in such unlawful entry 
and other illegal activities; 

(6) endeavoring to misuse the Central Intelligence Agency, an 
agency of the United States; 

(7) disseminating information received from officers of the De- 
partment of Justice of the United States to subjects of investiga- 
tions conducted by lawfully authorized investigative officers and 
employees of the United States, for the purpose of aiding and as- 
sisting such subjects in their attempts to avoid criminal liability; 

(8) making false or misleading public statements for the pur- 
pose of deceiving the people of the United States into believing 
that a thorough and complete investigation had been conducted 
with respect to allegations of misconduct on the part of personnel 
of the executive branch of the United States and personnel of the 
Committee for the Re-election of the President, and that there was 
no involvement of such personnel in such misconduct ; or 

(9) endeavoring to cause prospective defendants, and indi- 
viduals duly tried and convicted, to expect favored treatment and 



3 


consideration in return for their silence or false testimony, or 
rewarding individuals for their silence or false testimony. 

In all of this, Richard M. Nixon has acted in a manner contrary to 
his trust as President and subversive of constitutional government, 
to the great prejudice of the cause of law and justice and to the mani- 
fest injury of the people of the United States. 

Wherefore Richard M. Nixon, by such conduct, warrants impeach- 
ment and trial, and removal from office. 

Article II 

Using the powers of the office of President of the United States, 
Richard M. Nixon, in violation of his constitutional oath faithfully 
to execute the office of President of the United States and, ito the best 
of his ability, preserve, protect, and defend the Constitution of the 
United States, and in disregard of his constitutional duty to take 
care that the laws be faithfully executed, has repeatedly engaged in 
conduct violating the constitutional rights of citizens, impairing the 
due and proper administration of justice and the conduct of lawful 
inquiries, or contravening the laws governing agencies of the execu- 
tive branch and the purposes of these agencies. 

This conduct has included one or more of the following : 

(1) He has, acting personally and through his subordinates 
and agents, endeavored to obtain from the Internal Revenue 
Service, in violation of the constitutional rights of citizens, con- 
fidential information contained in income tax returns for pur- 
poses not authorized by law, and to cause, in violation of the 
constitutional rights of citizens, income tax audits or other in- 
come tax investigations to be initiated or conducted in a discrimi- 
natory manner. 

(2) He misused the Federal Bureau of Investigation, the Secret 
Service, and other executive personnel, in violation or disregard 
of the constitutional rights of citizens, by directing or authoriz- 
ing such agencies or personnel to conduct or continue electronic 
surveillance or other investigations for purposes unrelated to 
national security, the enforcement of laws, or any other lawful 
function of his office ; he did direct, authorize, or permit the use 
of information obtained thereby for purposes unrelated to na- 
tional security, the enforcement of laws, or any other lawful 
function of his office; and he did direct the concealment of cer- 
tain records made by the Federal Bureau of Investigation of 
electronic surveillance. 

(3) He has, acting personally and through his subordinates 
and agents, in violation or disregard of the constitutional rights 
of citizens, authorized and permitted to be maintained a secret 
investigative unit within the office of the President, financed in 
part with money derived from campaign contributions, which 
unlawfully utilized the resources of the Central Intelligence 
Agency, engaged in covert and unlawful activities, and attempted 
to prejudice the constitutional right of an accused to a fair trial. 

(I) He has failed to take care that the laws were faithfully 
executed by failing to act when he knew or had reason to know 
that his close subordinates endeavored to impede and frustrate 



4 


lawful inquiries by duly constituted executive, judicial, and legis- 
lative entities concerning the unlawful entry into the headquarters 
of the Democratic National Committee, and the cover-up thereof, 
and concerning other unlawful activities, including those relating 
to the confirmation of Richard Kleindienst as Attorney General of 
the United States, the electronic surveillance of private citizens, 
the break-in into the offices of Dr. Lewis Fielding, and the cam- 
paign financing practices of the Committee to Re-elect the 
President. 

(5) In disregard of the rule of law, he knowingly misused the 
executive power by interfering with agencies of the executive 
branch, including the Federal Bureau of Investigation, the Crimi- 
nal Division, and the Office of Watergate Special Prosecution 
Force, of the Department of Justice, and the Central Intelligence 
Agency, in violation of his duty to take care that the laws be faith- 
fully executed. 

In all of this, Richard M. Nixon has acted in a manner contrary to 
his trust as President and subversive of constitutional government, to 
the great prejudice of the cause of law and justice and to the manifest 
injury of the people of the United States. 

Wherefore Richard M. Nixon, by such conduct, warrants impeach- 
ment and trial, and removal from office. 

Article III 

In his conduct of the office of President of the United States, 
Richard M. Nixon, contrary to liis oath faithfully to execute the office 
of President of the United States and, to the best of his ability, pre- 
serve, protect, and defend the Constitution of the United States, and 
in violation of his constitutional duty to take care that the laws be 
faithfully executed, has failed without lawful cause or excuse to pro- 
duce papers and things as directed by duly authorized subpoenas 
issued by the Committee on the Judiciary of the House of Representa- 
tives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, 
and willfully disobeyed such subpoenas. The subpoenaed papers and 
things were deemed necessary by the Committee in order to resolve by 
direct evidence fundamental, factual questions relating to Presidential 
direction, knowledge, or approval of actions demonstrated by other 
evidence to be substantial grounds for impeachment of the President. 
In refusing to produce these papers and things, Richard M. Nixon, 
substituting his judgment as to what materials were necessary for the 
inquiry, interposed the powers of the Presidency against the lawful 
subpoenas of the House of Representatives, thereby assuming to him- 
self functions and judgments necessary to the exercise of the sole 
power of impeachment vested by the Constitution in the House of 
Representatives. 

In all of this, Richard M. Nixon has acted in a manner contrary to 
his trust as President and subversive of constitutional government, 
to the great prejudice of the cause of law and justice, and to the mani- 
fest injury of the people of the United States. 

Wherefore Richard M. Nixon, by such conduct, warrants impeach- 
ment and trial, and removal from office. 



CONTENTS 


Page 

Committee Consideration 6 

The Organization of the White House and Its Relationship to the Com- 
mittee to the Committee for the Re-Election of the President 12 

Article I : 

Introduction 27 

Adoption of a Political Intelligence Plan Including the Use of Elec- 
tronic Surveillance 35 

The Implementation of the Political Intelligence Plan 40 

President Nixon’s Response to the Arrests 42 

Containment — July 1, 1972, to Election 55 

Payments 66 

Favored Treatment of Defendants and Prospective Defendants 75 

Deception and Concealment 82 

The President’s Interference with the Department of Justice in 

March and April, 1973 98 

The President’s Interference with the Senate Select Committee on 

Presidential Campaign Activities 116 

April 30, 1973 to the Present 121 

Conclusion 133 

Article II: 

Introduction 139 

Paragraph 1 141 

Paragraph 2 146 

Paragraph 3 157 

Paragraph 4 171 

Paragraph 5 177 

Conclusion 180 

Article III : 

Introduction 187 

The Committee Supoenas and the President’s Response 191 

Justification of the Committee’s Subpoenas 197 

Untrustw T orthiness of Edited Transcripts Produced by the President.. 203 

The Claim of Executive Privilege 206 

Conclusion 213 

Other Matters: 

Proposed Article on Concealment of Information about Bombing 

Operations in Cambodia 217 

Proposed Article on Emoluments and Tax Evasion 220 

Api)endixes : 

Appendix A — Analysis of the Technical Report on the 18 V 2 Minute 

Gap 227 

Appendix B — Subpoenas Issued to President Richard M. Nixon by 

the Committee on the Judiciary and Justification Memoranda 233 

Supplemental, Additional, Separate, Dissenting, Minority, Individual and 
Concurring Views 281 


( 5 ) 



COMMITTEE CONSIDERATION 


The Constitution provides in Article I, Section 2, Clause 5, that 
“the House of Representatives shall have the sole power of impeach- 
ment.” Article II, Section 4 provides, “The President, Vice President 
and all civil officers of the United States shall be removed from Office 
on Impeachment for, and Conviction of, Treason, Bribery, or other 
high Crimes and Misdemeanors.” 

Resolutions to impeach President Richard M. Nixon were intro- 
duced by members of the House in the last session of Congress and re- 
ferred to the Committee on the Judiciary. On November 15, 1973, the 
House adopted H. Res. 702 to provide additional funds for the Com- 
mittee for purposes of considering these resolutions. On December 20, 
19 f 3, special counsel was employed to assist the Committee in its 
inquiry. 

On February 6, 1974, the Committee recommended that the House 
explicitly authorize the Committee’s investigation to determine 
whether the House should exercise its constitutional power to impeach 
President Nixon. 

On February 6, 1974, the House of Representatives, by a vote of 
410 to 4, adopted H. Res. 803. That resolution authorized and directed 
the Committee on the Judiciary 

to investigate fully and completely whether sufficient grounds exist for the House 
of Representatives to exercise its constitutional power to impeach Richard M. 
Nixon, President of the United States of America. The Committee shall report 
to the House of Representatives such resolutions, articles of impeachment, or 
other recommendations as it deems proper. 

As part of the resolution the Committee was granted the power of 
subpoena for its investigation. In its report to the House on H. Res. 
803, the Committee had stated : 

The Committee’s investigative authority is intended to he fully coextensive 
with the power of the House in an impeachment investigation — with respect to 
the persons who may be required to respond, the methods by which response may 
be required, and the types of information and materials required to be furnished 
and produced. 

On February 21, 1974, the Committee received a report from its 
impeachment inquiry staff entitled, “Constitutional Grounds for Presi- 
dential Impeachment.” The report reviewed the historical origins of 
impeachment, the intentions of the framers of the Constitution, and the 
American impeachment cases. The report also addressed the question 
whether grounds for impeachment, “high crimes and misdemeanors,” 
must be crimes under the ordinary criminal statutes. The report con- 
cluded as follows : 

Impeachment is a constitutional remedy addressed to serious offenses against 
the system of government. The purpose of impeachment under the Constitution 
is indicated by the limited scope of the remedy (removal from office and possible 
disqualification from future office) and by the stated grounds for impeachment 
(treason, bribery and other high crimes and misdemeanors). It is not controlling 

(6) 



7 * 

whether treason and bribery are criminal. More important, they are constitu- 
tional wrongs that subvert the structure of government, or undermine the in- 
tegrity of office and even the Constitution itself, and thus are “high” offenses in 
the sense that word was used in English impeachments. 

The framers of our Constitution consciously adopted a particular phrase from 
the English practice to help define the constitutional grounds for removal. The 
content of the phrase “high Crimes and Misdemeanors” for the framers is to be 
related to what the framers knew, on the whole, about the English practice — 
the broad sweep of English constitutional history and the vital role impeach- 
ment had played in the limitation of royal prerogative and the control of abuses 
of ministerial and judicial power. 

Impeachment was not a remote subject for the framers. Even as they labored 
in Philadelphia, the impeachment trial of Warren Hastings, Governor-General 
of India, was pending in London, a fact to which George Mason made explicit 
reference in the Convention. Whatever may be said on the merits of Hastings’ 
conduct, the charges against him exemplified the central aspect of impeachment — • 
the parliamentary effort to reach grave abuses of governmental power. 

The framers understood quite clearly that the constitutional system they were 
creating must include some ultimate check on the conduct of the executive, par- 
ticularly as they came to reject the suggested plural executive. While insistent 
that balance between the executive and legislative branches be maintained so 
that the executive would not become the creature of the legislature, dismissible 
at its will, the framers also recognized that some means would be needed to deal 
with excesses by the executive. Impeachment was familiar to them. They under- 
stood its essential constitutional functions and perceived its adaptability to the 
American contest. 

While it may be argued that some articles of impeachment have charged con- 
duct that constituted crime and thus that criminality is an essential ingredient, 
or that some have charged conduct that was not criminal and thus that criminal- 
ity is not essential, the fact remains that in the English practice and in several of 
the American impeachments the criminality issue was not raised at all. The 
emphasis has been on the significant effects of the conduct — undermining the 
integrity of office, disregard of constitutional duties and oath of office, arrogation 
of power, abuse of the governmental process, adverse impact on the system of 
government. Clearly, these effects can be brought about in ways not anticipated 
by the criminal law. Criminal standards and criminal courts w’ere established to 
control individual conduct. Impeachment was evolved by Parliament to cope 
wfith both the inadequacy of criminal standards and the impotence of courts to 
deal with the conduct of great public figures. It would be anomalous if the 
framers, having barred criminal sanctions from the impeachment remedy and 
limited it to removal and possible disqualification from office, intended to restrict 
the grounds for impeachment to conduct that was criminal. 

The longing for precise criteria is understandable ; advance, precise definition 
of objective limits would seemingly serve both to direct future conduct and to 
inhibit arbitrary reaction to past conduct. In private affairs the objective is the 
control of personal behavior, in part through the punishment of misbehavior. 

In general, advance definition of standards respecting private conduct works 
reasonably well. However, where the issue is presidential compliance with the 
constitutional requirements and limitations on the presidency, the crucial factor 
is not the intrinsic quality of behavior but the significance of its effect upon our 
constitutional system or the functioning of our government. 

It is useful to note three major presidential duties of broad scope that are 
explicitly recited in the Constitution : “to take Care that the Laws be faithfully 
executed,” to “faithfully execute the Office of President of the United States” 
and to “preserve, protect, and defend the Constitution of the United States” to 
the best of his ability. The first is directly imposed by the Constitution; the 
second and third are included in the constitutionally prescribed oath that 
the President is required to take before he enters upon the execution of his office 
and are, therefore, also expressly imposed by the Constitution. 

The duty to take care is affirmative. So is the duty faithfully to execute the 
office. A President must carry out the obligations of his office diligently and 
in good faith. The elective character and political role of a President make it 
difficult to define faithful exercise of his powers in the abstract. A President 
must make policy and exercise discretion. This discretion necessarily is broad, 
especially in emergency situations, but the constitutional duties of a President 
impose limitations on its exercise. 



8 


The ‘‘take care” duty emphasizes the responsibility of a President for the 
overall conduct of the executive branch, which the Constitution vests in him alone. 
He must take care that the executive is so organized and operated that this 
duty is performed. 

The duty of a President to “preserve, protect., and defend the Constitution” to 
the best of his ability includes the duty not to abuse his powers or transgress 
their limits — not to violate the rights of citizens, such as those guaranteed by the 
Bill of Rights, and not to act in derogation of powers vested elesewhere by the 
Constitution. 

Not all presidential misconduct is sufficient to constitute grounds for impeach- 
ment. There is a further requirement — substantiality. In deciding whether this 
further requirement has been met, the facts must be considered as a whole in the 
context of the office, not in terms of separate or isolated events. Because 
impeachment of a President is a grave step for the nation, it is to be predicated 
only upon conduct seriously incompatible with either the constitutional form 
and principles of our government or the proper performance of constitutional 
duties of the presidential office. 

On February 22, 1974, the full Committee on the Judiciary unani- 
mously adopted a set of procedures governing confidentiality for the 
handling of material gathered in the course of its impeachment 
inquiry. The purpose and effect of these rules was that the Committee 
as a whole deferred, until the commencement of the initial presentation 
on May 9, its access to materials received by the impeachment inquiry 
staff. Only the Chairman and the Ranking Minority Member had ac- 
cess to, supervised and reviewed the assembly of evidentiary material 
and the preparation of transcripts of the President's recorded 
conversations. 

In a status report to the Committee on March 1, 1974, the Inquiry 
staff reported on investigations in six principal areas : 

A. Allegations concerning domestic surveillance activities conducted by or at 
the direction of the White House. 

B. Allegations concerning intelligence activities conducted by or at the direc- 
tion of the White House for the purpose of the Presidential election of 1972. 

C. Allegations concerning the Watergate break-in and related activities, 
including alleged efforts by persons in the White House and others to “cover 
up” such activities and others. 

D. Allegations concerning improprieties in connection with the personal fi- 
nances of the President. 

E. Allegations concerning efforts by the White House to use agencies of the 
executive branch for political purposes, and alleged White House involvement 
with election campaign contributions. 

F. Allegations concerning other misconduct. 

In anticipation of the presentation of evidentiary material by the 
Inquiry staff, the Committee on May 2, 1974, unanimously adopted a 
set of procedures for this presentation. These procedures were con- 
sistent with four general principles : 

First, the Committee would receive from the staff and consider initially all 
reliable material which tended to establish the facts in issue. At the time that 
the evidentiary proceedings began, the Committee would give the President the 
opportunity to have his counsel present and to receive such documents and 
materials as the staff presented to the Committee Members for their con- 
sideration. 

Second, during the presentation of this evidentiary material, whether in execu- 
tive or in open session subject to the rules of the House, the Committee would 
give the President the opportunity to have his counsel present and to hear the 
presentation. 

Third, at the end of this presentation, the Committee would give the President 
the opportunity to have his counsel make his position known, either orally or 
in writing, with respect to the evidentiary material received by the Committee. 



9 


At that, time, President's counsel would be given the opportunity to recommend 
to the Committee names of witnesses to be called and to advise the Committee 
as to the witnesses' expected testimony. 

Fourth , if and when witnesses were called, the Committee would give the 
President the opportunity to have his counsel ask such questions of the witnesses 
as the Committee deemed appropriate. 

From May 9, 1974 through June 21, 1974, the Committee considered 
in executive session approximately six hundred fifty “statements of 
information” and more than 7,200 pages of supporting evidentiary 
material presented by the inquiry staff. The statements of information 
and supporting evidentiary material, furnished to each Member of 
the Committee in 36 notebooks, presented material on several subjects 
of the inquiry : the Watergate break-in and its aftermath, ITT, dairy 
price supports, domestic surveillance, abuse of the IRS, and the activi- 
ties of the Special Prosecutor. The staff also presented to the Commit- 
tee written reports on President Nixon’s income taxes, presidential 
impoundment of funds appropriated by Congress, and the bombing 
of Cambodia. 

In each notebook, a statement of information relating to a particu- 
lar phase of the investigation was immediately followed by supporting 
evidentiary material, which included copies of documents and testi- 
mony (much of it already on public record), transcripts of presiden- 
tial conversations, and affidavits. A deliberate and scrupulous absten- 
tion from conclusions, even by implication, was observed. 

The Committee heard recordings of nineteen presidential conversa- 
tions and dictabelt recollections. The presidential conversations were 
neither paraphrased nor summarized by the inquiry staff. Thus, no 
inferences or conclusions were drawn for the Committee. During the 
course of the hearings, Members of the Committee listened to each re- 
cording and simultaneously followed transcripts prepared by the in- 
quiry staff. 

On June 27 and 28, 1974, Mr. James St. Clair, Special Counsel to the 
President made a further presentation in a similar manner and form 
as the inquiry staff’s initial presentation. The Committee voted to make 
public the initial presentation by the inquiry staff, including substan- 
tially all of the supporting materials presented at the hearings, as well 
as the President’s response. 

Between July 2, 1974, and July 17, 1974, after the initial presenta- 
tion, the Committee heard testimony from nine witnesses, including all 
the witnesses proposed by the President’s counsel. The witnesses were 
interrogated by counsel for the Committee, by Special counsel to the 
President pursuant to the rules of the Committee, and by Members of 
the Committee. The Committee then heard an oral summation by 
Mr. St. Clair and received a written brief in support of the President’s 
position. 

The Committee concluded its hearings on July 17, a week in advance 
of its public debate on whether or not to recommend to the House that 
it exercise its constitutional power of impeachment. In preparation for 
that debate the majority and minority members of the impeachment 
inquiry staff presented to the Committee “summaries of information.” 

On July 24, 25, 26, 27, 29, and 30, 1974, the Committee held its debate 
in open meetings, which were televised pursuant to H. Res. 1107, 
adopted by the House on July 22, 1974, permitting coverage of Com- 



10 


mittee meetings by electronic media. The Committee’s meetings were 
conducted under procedures adopted on July 23, which provided both 
for general debate of no more than ten hours on a motion to recommend 
a resolution, together with articles of impeachment, impeaching 
Richard M. Nixon and for consideration of the articles after the con- 
clusion of general debate. Each proposed article and additional articles 
were separately considered for amendment and immediately thereafter 
voted upon as amended for recommendation to the House. The pro- 
cedures further provided : 

At conclusion of consideration of the articles for amendment and recommenda- 
tion to the House, if any article has been agreed to, the original motion shall be 
considered as adopted and the Chairman shall report to the House said Resolution 
of impeachment together with such articles as have been agreed to or if articles 
are not agreed to, the Committee shall consider such resolutions or other recom- 
mendations as it deems proper. 

On July 24, at the commencement of general debate, a resolution 
was offered including two articles of impeachment. On July 26, an 
amendment in the nature of a substitute was offered to Article I. In 
the course of the debate on this substitute, it Avas contended that the 
proposed article of impeachment was not sufficiently specific. Propo- 
nents of the substitute argued that it met the requirements of speci- 
ficity under modern pleading practice in both criminal and civil 
litigation, which provide for notice pleading. They further argued 
that the President had notice of the charge, that his counsel had par- 
ticipated in the Committee’s deliberations, and that the factual details 
would be provided in the Committee’s report. 

On July 27, the Committee agreed to the amendment in the nature 
of a substitute for Article I by a vote of 27 to 11. The Committee then 
adopted Article I, as amended, by a vote of 27 to 11. Article I, as 
adopted by the Committee charged that President Nixon, using the 
power of his high office, engaged, personally and through his sub- 
ordinates and agents, in a course of conduct or plan designed to delay, 
impede, and obstruct the investigation of the unlawful entry into the 
headquarters of the Democratic National Committee in Washington, 
D.C., for the purpose of securing political intelligence; to cover up. 
conceal and protect those responsible; and to conceal the existence and 
scope of other unlawful covert activities. 

On July 29, an amendment in the nature of a substitute was offered 
for Article II of the proposed resolution. After debate, the substitute 
was agreed to by a vote of 28 to 10. The Committee then adopted Arti- 
cle II, as amended, by a vote of 28 to 10. Article II, as amended, 
charged that President Nixon, using the power of the office of Presi- 
dent of the United States, repeatedly engaged in conduct which vio- 
lated the constitutional rights of citizens; which impaired the due and 
proper administration of justice and the conduct of lawful inquiries, or 
which contravened the laws governing agencies of the executive branch 
and the purposes of these agencies. 

On July 30, an additional article was offered as an amendment to 
the resolution. After debate, this amendment was adopted by a vote of 
21 to 17 and became Article III. Article III charged that President 
Nixon, by failing, without lawful cause or excuse and in willful dis- 
obedience of the subpoenas of the House, to produce papers and things 



11 


that the Committee had subpoenaed in the course of it's impeachment 
inquiry, assumed to himself functions and judgments necessary to the 
exercise of the constitutional power of impeachment vested in the 
House. The subpoenaed papers and things had been deemed necessary 
by the Committee in order to resolve, by direct evidence, fundamental, 
factual questions related to presidential direction, knowledge, or 
appproval of actions demonstrated by other evidence to be substantial 
grounds for impeachment. 

On July 30, the Committee considered an amendment to add a 
proposed Article, which charged that President Nixon authorized, 
ordered and ratified the concealment of information from the Congress 
and supplied to Congress false and misleading statements concerning 
the existence, scope and nature of American bombing operations in 
Cambodia. The proposed Article stated that these acts were in deroga- 
tion of the powders of Congress to declare war, make appropriations, 
and raise and support armies. By a vote of 26 to 12, the amendment to 
add this Article was not agreed to. 

Also on July 30, the Committee considered an amendment to add a 
proposed Article, charging that President Nixon knowingly and 
fraudulently failed to report income and claimed deductions that were 
not authorized by law on his Federal income tax returns for the years 
1969 through 1972. In addition, the proposed Article charged that, in 
violation of Article II, Section 1 of the Constitution, President Nixon 
had unlawfully received emoluments, in excess of the compensation 
provided by law, in the form of government expenditures at his 
privately owned properties at San Clemente, California, and Key Bis- 
cayne, Florida. By a vote of 26 to 12, the amendment to add this article 
was not agreed to. 

The Committee on the Judiciary based its decision to recommend 
that the House of Representatives exercise its constitutional power to 
impeach Richard M. Nixon, President of the United States, on evi- 
dence which is summarized in the following report. 



THE ORGANIZATION OF THE WHITE HOUSE AND ITS 
RELATIONSHIP TO THE COMMITTEE FOR THE RE- 
ELECTION OF THE PRESIDENT 

I 

Key Associates of the President 

On January 20, 1969, after taking his oath of office as President 
of the United States, Richard M. Nixon brought three key associates 
to the highest level of government, the office of the President. President 
Nixon appointed H. R. Haldeman White House Chief of Staff. He ap- 
pointed John Ehrlichman Counsel to the President. He appointed 
John Mitchell Attorney General of the United States. 

Hal deman’s association with President Nixon began in 1956 when 
Haldeman was an advance man for then Vice President Nixon. In 
1960 Haldeman was chief advance man and campaign tour manager 
for Richard Nixon’s first Presidential campaign. In 1962 Haldeman 
managed Richard Nixon’s unsuccessful campaign for Governor of 
California. In 1968 Haldeman was the chief of staff for the Presi- 
dent’s campaign. (Haldeman testimony, 7 SSC 2873) 

The President and John Mitchell became law partners in New 
York City when their firms merged on January 1, 1967. In 1968 
Mitchell was campaign director for the President’s election campaign. 
(Mitchell testimony, 2 HJC 124-25, 192) 

John Ehrlichman was recruited by Haldeman in late 1959 to work 
on President Nixon’s 1960 campaign. During the 1960 Presidential 
campaign Ehrlichman took a leave of absence from his law firm to 
work as an advance man. Ehrlichman worked on Richard Nixon’s 
1962 campaign for Governor of California. Ehrlichman was the tour 
director of the President’s 1968 Presidential campaign. (Ehrlichman 
testimony, 6 SSC 2514-15, 2522-24; Kalmbach testimony, 3 HJC 
532) 

II 

White House Personnel 

From January 21, 1969, through May 19, 1973, H. R. Haldeman 
was President Nixon’s chief of staff. He was in charge of administer- 
ing White House operations. He worked directly with tli? President 
in the planning of the President’s daily schedule, provided the Presi- 
dent with the information he requested from the members of his staff 
and the members of his administration, and relayed instructions from 
the President to other officers and members of the executive branch 
of the Government. Haldeman directed the activities of the President’s 
Appointments Secretary and the White House Staff Secretary. He 
received copies of memorandums and letters written by senior staff 

( 12 ) 



13 


members and assistants. He established, subject to the approval of 
the President, the White House budget. He had no independent 
schedule. His schedule was that of the President. He was at the call 
of the President at all times. During the reelection campaign, the 
President’s campaign organization reported to Ilaldeman. The Presi- 
dent announced Hal deman’s resignation on April 30, 1973. 

The following White House employees and other agents of the 
President reported to Haldeman: 

(1) Lawrence M. Higby was Haldeman’s personal aide and his 
chief administrative assistant throughout Haldeman’s tenure at the 
White House. He had worked previously for Haldeman in private 
business and in the 1968 Presidential campaign. Higby supervised the 
flow of persons, papers, telephone calls, and correspondence to Halde- 
man, acted in Haldeman’s name, and traveled with him. After Halde- 
man’s resignation, Higby transferred to the Office of Management 
and Budget. 

(2) In March 1971, after working for Herbert Klein, then director 
of communications for the executive branch, Gordon C. Straclian be- 
came Haldeman’s principal political assistant. Strachan performed 
political assignments for Haldeman. He supervised the White House 
polling operation and reported on the activities of the Republican 
National Committee and the Committee for the Re-Election of the 
President (CRP). He regularly prepared political matters memoran- 
dums for Haldeman on the status of the 1972 election campaign, and 
often carried out decisions Haldeman made on the basis of the infor- 
mation they contained. After the 1972 election, Strachan was ap- 
pointed as general counsel of the U.S. Information Agency. 

(3) In January 1969, Alexander P. Butterfield was appointed 
deputy assistant to the President. Beginning in January 1970, But- 
terfield’s office adjoined the President’s. He had responsibility for the 
President’s daily schedule. He oversaw the administration of the White 
House, including the office of the staff secretary. He reported directly 
to Haldeman and functioned as Haldeman’s deputy in handling the 
actual flow of people and papers in and out of the President’s office. 
In March 1973, Butterfield was appointed Administrator of the Fed- 
eral Aviation Administration. 

(4) Dwight L. Chapin had known Haldeman previously and had 
worked for the President at his law firm for 2 years before the 1968 
election. In January 1969, Chapin joined the White House staff as a 
special assistant to the President and acted as the President’s appoint- 
ments secretary. Chapin had general planning responsibility for the 
President’s schedule and travel. He reported directly to Haldeman and, 
at times, to the President. Two years later, Chapin was appointed 
deputy assistant to the President. He left the White House and 
entered private business in February 1973. 

(5) In January 1969, Stephen B. Bull joined the White House staff 
and worked under Chapin in the scheduling office. In February 1973, 
he was appointed a special assistant to the President and assumed 
additional responsibilities for implementing the President’s daily 
schedule. 

(6) On January 20, 1969, Hugh W. Sloan, Jr., became a staff assist- 
ant to the President. He worked under Chapin on the planning of the 



14 


President’s appointments and travel. He was also assigned certain 
special projects. Sloan left the White House in March 1971 to join the 
President’s reelection campaign organization. He resigned as the treas- 
urer of the Finance Committee to Re-Elect the President (FCRP) on 
July 11, 1972. 

(7) In July 1970, John W. Dean was hired by Haldeman as 
counsel to the President. Dean had previously been an Associate Dep- 
uty Attorney General in the Justice Department. His duties in the 
White House included working with the Justice Department. The 
counsel’s office advised the President on technical legal problems and 
prepared legal opinions on issues. Dean was also assigned by Halde- 
man to gather information on political matters of interest to the White 
House. Dean normally reported to Haldeman, but on certain domestic 
matters he reported to Ehrlichman. Dean resigned on April 30, 1973. 

(8) In October 1970, Fred Fielding was hired as assistant to the 
counsel to the President. He became associate counsel in the spring of 
1971. He was Dean’s “principal deputy.” Fielding was appointed dep- 
uty counsel in early 1973, and resigned from the President’s staff on 
January 11, 1974. 

(9) In January 1969, Herbert G. Klein was appointed to the newly 
created position of director of communications for the executive 
branch. His office handled many of the White House public relations 
and media activities. He and his assistants in the office of communica- 
tions reported to Haldeman. Klein resigned from the White House on 
July 1, 1973. 

(10) On October 7, 1969, Jeb Stuart Magruder was appointed spe- 
cial assistant to the President to work on Hal deman’s staff. Later in 
1969 Magruder was also named deputy director of communications. He 
held both positions until he resigned in May 1971 to work in the Presi- 
dent’s reelection campaign organization ; he later became deputy cam- 
paign director of CEP. Magruder’s responsibility at the White House 
was public relations. He organized letter writing programs, encour- 
aged media coverage, and formed private committees to support ad- 
ministration positions. 

(11) In December 1970, Herbert L. Porter came to the White House 
with the understanding that he would work in the reelection cam- 
paign. After doing advance work for about a month, Porter was 
offered a job by Magruder on Klein’s staff. From January until May 
1971 he worked as a staff assistant in the communications office, where 
lie did public relations work, including scheduling speakers. Porter as- 
sumed scheduling responsibilities for the predecessor organization of 
CRP in May 1971. 

(12) On November 6, 1969, Charles W. Colson was named special 
counsel to the President. Colson initiated, planned, and executed many 
White House public relations and media efforts. He was in charge of 
White House relations with “special interest groups” and coordinated 
fund raising for administration projects. Colson also organized po- 
litical support for the President’s policies. Generally, he reported to 
Haldeman, but he reported directly to the President on certain matters. 
On March 10, 1973, Colson resigned from the White House. (Colson 
testimony, 3 HJC 184-85) 

(13) In September 1969, Frederick C. La-Rue was appointed a 
special consultant to the President. He served without pay. LaRue 



15 


reported to Haldeman on the political projects he undertook for the 
White House. He resigned on February 15, 1972, to work in the Presi- 
dent’s re-election campaign and later became special assistant to CRP’s 
campaign director. 

(14) Herbert Kalmbach became the President’s personal attorney 
in 1969. He had worked on President Nixon’s 1962 campaign for 
Governor of California and had been associate finance chairman of 
the President’s 1968 campaign. Kalmbach undertook various fund- 
raising assignments on behalf of the President from 1969 through 

1972. Kalmbach was not employed by the White House, although lie 
acted at Haldeman’s direction. (Kalmbach testimony, 3 HJC 529-30, 
594, 660, 664) 

In January 1969, John D. Ehrlichman was appointed counsel to the 
President. He reported primarily to Haldeman. On November 4, 1969, 
he became assistant to the President for Domestic Affairs and the 
President’s chief assistant in the White House for all domestic mat- 
ters. He advised the President on policy and communicated Presi- 
dential decisions to departments and agencies. On July 1, 1970, the 
Domestic Council was established in the Executive Office of the Presi- 
dent as a separate entity with its own staff and budget. Ehrlichman 
was appointed Executive Director. On Jaimary 20, 1973, Ehrlichman 
resigned this position and on January 21 joined Haldeman as one of 
the four principal assistants to the President. He worked in that capac- 
ity until May 19, 1973. On April 30, 1973. the President announced 
Ehrlichman’s resignation from the White House. 

The following were among the members of the White House staff 
under Ehrlichman’s supervision : 

(1) In January 1969, Egil Krogh came to the White House as a 
staff assistant to Ehrlichman. He was deputy counsel to the President 
from May 1969 until November 1969, when he was appointed deputy 
assistant to the President for Domestic Affairs. In July 1970, he 
assumed the additional position of Assistant Director of the Domestic 
Council. Krogh reported to Ehrlichman, except on a few matters 
where he reported directly to the President. Krogh’s responsibilities 
in domestic affairs focused on law enforcement, including work with 
the Federal Bureau of Investigation, drug enforcement programs, and 
internal security matters. In July 1971, pursuant to instructions from 
the President, Krogh organized the White House special investiga- 
tions unit (the “Plumbers’’). His work with the unit continued until 
December 1971. In January 1973 Krogh was appointed Under Secre- 
tary of Transportation. 

(2) In 1969, David Young came to the White House as an admin- 
istrative assistant to Henry Kissinger in the National Security Coun- 
cil (NSC). He v T as Kissinger’s appointments secretary. In January 
1971, Young became a special assistant, NSC, in charge of classifica- 
tion and declassification of documents. In July 1971, he was trans- 
ferred to Ehrlichmaii’s staff and assigned to work with Krogh on the 
White House special investigations unit. Young continued as an as- 
sistant to Krogh until January 1973, when he was appointed to a staff 
position on the Domestic Council. He left the White House in March 

1973. 

(3) G. Gordon Liddy became a member of the White House special 
investigations unit in July 1971. His appointment was authorized 


37-777 0 - 74 -2 



16 


by Ehrlichman and he was placed on the payroll of the Domestic 
Council. Liddy worked for Krogh until he resigned from the White 
House staff in mid-December 1971. He then became counsel to CRP 
and in March 1972 moved to a predecessor organization of FCRP. He 
was counsel to FCRP until June 28, 1972. 

(4) In early July 1971, E. Howard Hunt started work as a White 
House consultant. He had been recommended by Colson and initially 
worked under Colson’s supervision. In July 1971 Hunt was assigned 
with Ehrlichman’s approval to the White House special investigations 
unit, where he worked under Krogh’s direction. Hunt had spent 21 
years with the Central Intelligence Agency. 

(5) In late November 1968, Edward L. Morgan began working under 
Ehrlichman’s supervision to coordinate some of the President’s per- 
sonal affairs. He worked as deputy counsel to the President, deputy 
assistant to the President for Domestic Affairs, and Assistant Director 
of the Domestic Council. Morgan left the White House in January 
1973 and was appointed an Assistant Secretary of the Treasury. 

(6) On April 8, 1969, John J. Caulfield, a former New York City 
police detective, was hired by Ehrlichman as a staff assistant to the 
counsel to the President. His duties were to act as liaison with Federal 
law enforcement agencies and to supervise White House investiga- 
tions. Ehrlichman ordered the investigations Caulfield directed; later, 
when Dean became counsel to the President, Caulfield received assign- 
ments from both Ehrlichman and Dean. In March 1972 Caulfield left 
the White House to work for CRP. On April 28, 1972, he accepted a 
position in the Treasury Department, On July 1, 1972, Caulfield be- 
came the Acting Assistant Director for Enforcement of the Alcohol, 
Tobacco, and Firearms Division of the Internal Revenue Service. 

(7) In July 1969, Anthony T. Ulasewiez, a retired New York City 
police detective, was authorized by Ehrlichman to work under Caul- 
field to carry out investigative tasks for the White House. Ulasewiez 
was not directly employed by the White House, but received investi- 
gative assignments through Caulfield, and reported to him. He was 
paid by Herbert Kalmbach, the President’s personal lawyer, from 
July 1969 through 1972, and worked with Kalmbach from June 1972 
through September 1972. 

Rose Mary Woods has worked as President Nixon’s personal secre- 
tary since 1951. She joined the White House staff as the President’s 
personal secretary in January, 1969 and was promoted to executive 
assistant and personal secretary in June, 1973. (Rose Mary Woods 
testimony, In re Grand Jury , Misc, 47-73, November 8, 1973, 801, 812- 
13 ; Butterfield testimony, 1 HJC 63) . 

Ill 

Other Administration Officials 

On January 20, 1969 President Nixon appointed John Mitchell 
Attorney General of the United States. (Mitchell testimony, 2 HJC 
124) In 1971 Mitchell began organizing the President’s 1972 re-elec- 
tion campaign. Mitchell resigned as Attorney General on March 1, 
1972, and officially became campaign director of the 1972 campaign on 



17 


April 9, 1972. (Mitchell testimony, 2 HJC 12A-25) Mitchell resigned 
as campaign director on July 1, 1972, but continued to act as a con- 
sultant to CRP throughout the campaign and after the election. 
(Mitchell testimony, 2 HJC 125) 

In February, 1969, Richard Ivleindienst joined the Nixon Adminis- 
tration as Deputy Attorney General. (Kleindienst testimony, 9 SSC 
3560) On February 15, 1972 the President nominated Kleindienst to be 
Attorney General to succeed John Mitchell, who was leaving the De- 
partment of Justice to become head of CRP. (Book V, 606-08) Klein- 
dienst was confirmed by the Senate on June 8, 1972. (Kleindienst testi- 
mony, 9 SSC 3560) On April 30, 1973 the President announced 
Kleindienst ’s resignation as Attorney General. 

In November, 1970, President Nixon appointed Robert Mardian 
Assistant Attorney General in charge of Internal Security Division 
of the Department of Justice. Mardian had previously served in the 
Nixon Administration as General Counsel for the Department of 
Health, Education and Welfare. From May, 1972 until June, 1972 
Mardian was a political coordinator at the Committee for the Re- 
election of the President. After June 17, 1972 Mardian acted as a 
counsel to CRP for Watergate matters. (Mardian testimony, 6 SSC 
2346-47 ; 6 Presidential Documents 1583). 

Henry Petersen was a career employee of the Criminal Division 
of the Department of Justice. In January, 1972 the President ap- 
pointed Petersen Assistant Attorney General in charge of the Crimi- 
nal Division. 

D. Patrick Gray was Acting Director of the Federal Bureau of 
Investigation from May 3, 1972 until he resigned that position on 
April 27, 1973. (Gray testimony, 9 SSC 3450, 3493) Gray had previ- 
ously served as executive assistant to HEW Secretary Robert Finch, 
and in the Department of Justice as Assistant Attorney General, Civil 
Division. In February, 1972 the President nominated Gray to be 
Deputy Attorney General, but the nomination had not been acted 
upon by the Senate at the time of his appointment as acting Director 
of the FBI. (Gray testimony, 9 SSC 3473-75) On February 17, 1973 
the President nominated Gray to be permanent Director of the FBI. 
On April 5, 1973 the President withdrew Mr. Gray’s nomination. (9 
Presidential Documents 335) 

Richard Helms was the Director of the Central Intelligence Agency 
at the time Richard Nixon became President. Helms had been with 
the Agency since its inception in 1947 and became its Director on June 
30, 1966. Helms left the CIA on February 2, 1973 after being ap- 
pointed by the President as Ambassador to Iran (Helms testimony, 
8 SSC 3232) 

Vernon Walters, a lieutenant general in the U.S. Army, was ap- 
pointed by the President to be Deputy Director of the CIA after Gen- 
eral Cushman left the Agency. Walters began to serve in this capacity 
on May 2, 1972. General Walters had served as interpreter and aide 
to Richard Nixon wdien he toured South America as Vice President. 
(Walters testimony, 9 SSC 3403-04) 

Maurice Stans w^as a principal fundraiser in President Nixon’s 
1968 campaign. (HJC. Background— White House/CRP 5) Presi- 
dent Nixon appointed Stans Secretary of Commerce effective Janu- 



18 


ary 21, 1969. Stans served as Commerce Secretary until February 15, 
1972, when he resigned to become Chairman of the Finance Committee 
to Ee-elect the President. (Stans testimony, 2 SSC 695) 

IV 

Operation of the President’s Staff 

From January, 1970, until March, 1973, Alexander Butterfield was 
personal aide to the President. His office was next to the Oval Office of 
the President ; his responsibilities were to insure the “smooth running 
of the President’s official day.” (Butterfield testimony, 1 HJC 9-10) 
He was in a uniquely well-suited position to know the manner in which 
the President’s staff was organized and operated. 

During his first term as President, according to testimony by 
Butterfield, President Nixon spent almost all of his working time 
with one of a handful of assistants: on all matters of policy, direc- 
tion, politics, and strategy, with H. R. Haldeman ; on most domestic 
matters, with John Ehrlichman; on political matters, with Charles 
Colson; and on foreign affairs, with Henry Kissinger. The vast 
majority of the President’s time was spent with Haldeman, (Butter- 
field testimony, 1 HJC 14-16, 40) who, according to Butterfield, “was 
an extension of the President”: 

He [Haldeman] was far and away the closest person to the President. There 
was never any competition with regard to Mr. Haldeman’s role. . . . He was an 
extension of the President .... (Butterfield testimony, 1 HJC 13) 

Haldeman was the alter ego. Haldeman was almost the other President. I can’t 
emphasize that enough. (Butterfield testimony, 1 HJC 66) 

In his public statement of March 12, 1973 refusing to permit 
members of his personal staff to honor requests for Congressional 
appearances, the President himself said: 

If the President is not subject to such questioning, it is equally appropriate 
that members of his staff not be so questioned, for their roles are in effect an 
extension of the Presidency. (“Presidential Statements,” 3/12/73, 6) 

In his testimony before the Committee, Butterfield drew an orga- 
nizational chart of the White House staff showing the President’s 
relationships to Haldeman and to other members of his staff. This 
diagram was made part of the record. 



19 



Butterfield Exhibit No. 1 







20 


The testimony of other witnesses before the Committee, John Dean, 
Charles Colson, and Herbert Kalmbach, corroborates Butterfield’s 
description of how President Nixon conducted his office. There are 
some differences, notably Colson’s testimony as to the direct rela- 
tionship Colson had developed with the President by 1972. But Colson 
testified that Haldeman had a practice of asking to screen anything 
that Avent to the President and obtained from the few senior staff 
members who had access to the President copies of documents sent to 
the President. (Colson testimony, 3 HJC 412) Colson acknowledged 
that he himself was answerable to Haldeman. (Colson testimony, 
3 HJC 468) 

President Nixon preferred to receive information and reports from 
Haldeman and to communicate his decisions through him. Haldeman 
had no independent schedule. (Haldeman testimony, 7 SSC 2871) He 
ordinarily spent several hours a day with the President — a “good six 
to seven times as much time with the President as anyone else.” 
(Butterfield testimony, 1 HJC 40) Except for daily press summaries, 
virtually all written material addressed to the President was screened 
and transmitted through Haldeman. (Butterfield testimony, 1 HJC 
36-37) When the President made a decision, he authorized one of his 
aides, almost always Haldeman, to see that it was carried out. 1 (But- 
terfield testimony, 1 HJC 42) Butterfield testified: 

[The President] communicated by telephone with a great many people at 
night, in the evenings, and during the day. But liis normal communications, oral 
and in writing, were just to Haldeman, Ehrlichman and Kissinger. It would be 
quite unusual for him to communicate w r ith anyone else — perhaps a few T times to 
Colson during that 1972 campaign year. But almost always with Haldeman, 
almost always with Haldeman. (Butterfield testimony, 1 HJC 66) 

The President’s procedure for implementing a policy decision is illus- 
trated in his approval, in 1970, of the Huston Plan for domestic sur- 
veillance and intelligence gathering. The President created an ad hoc 
intelligence committee consisting of representatives of the National 
Security Agency, the Defense Intelligence Agency, the CIA and the 
FBI. After the committee prepared a report, Tom Charles Huston, 
a Presidential staff assistant and White House representative to the 
committee, sent the report and a covering memorandum to Halde- 
man. (Book VII, 438-44) Haldeman in turn brought it to the Presi- 
dent’s attention. The President decided to accept certain of Huston’s 
recommendations. Haldeman sent a memorandum to Huston stating 
that the President had approved the recommendations and instructed 
Huston to prepare and distribute a formal Presidential decision memo- 
randum. (Book VII, 447-48) Huston prepared and distributed the de- 
cision memorandum. (Book VII, 454-61) 

Butterfield testified that Haldeman was an “implemeiiter.” All im- 
portant information in Haldeman’s possession was relayed to the 
President; the President made all decisions of consequence. Butter- 


1 Haldeman had his own staff. Lawrence Higby, Haldeman’s personal aide and chief ad- 
ministrative assistant, supervised the flow of persons, papers, telephone calls and corre- 
spondence to Haldeman. Gordon Strachan served as Haldeman’s principal political assist- 
ant : he regularly prepared Political Matters Memoranda for Haldeman on the status of the 
1972 election campaign. His principal assignment was to follow up on the details of Presi- 
dential decisions communicated to him by chief of staff Haldeman. Dwight Chapin acted as 
the President’s Appointments Secretary and reported directly to Haldeman on matters con- 
cerning the President’s schedule and travel. Bruce Kehrli, the White House Staff Secretary, 
who oversaw the day-to-day flow of papers within the White House, worked under Haldeman 
and Butterfield. (Butterfield testimony, 1 HJC 14—16) 



21 


field testified that it would have been “altogether out of character” for 
Haldeman to have decided anything more important than minor 
questions of staff management. He also testified : 

Mr. Jenner. Was there any occasion (luring all of the time that you were at 
the White House that there came to your attention that Haldeman ever did any- 
thing without the knowledge of the President? 

Mr. Butterfield. No, never. 

Mr. Jenner. Dealing with White House affairs? 

Mr. Butterfield. No ; never, nothing unilaterally at all. He was essentially — 
I may have said this — but an implemented Mr. Haldeman implemented the 
decisions of the President as did Mr. Ehrlichman but perhaps to a lesser extent. 
But Haldeman especially was an implemented because the President ran his own 
personal affairs. He was not a decision maker. ... I can hardly recall the de- 
cisions, any decisions that he made, unless that it. was that the White House 
staff mess personnel would wear jackets or something along that line. He im- 
plemented the President’s decisions. The President was the decision-maker. The 
President was 100 percent in charge. (Butterfield testimony 1 HJC 69-70; see 
also Haldeman testimony, 7 SSC2872) 

Mitchell’s testimony was to the same effect in response to questions 
by Representative Thornton : 

Mr. Thornton. Did you ever check to determine whether or not the informa- 
tion relayed to you through Mr. Haldeman was a correct reflection of the Presi- 
dent’s instructions? 

Mr. Mitchell. There may have been occasions, Congressman, but I would have 
to say that in most all instances that I can recall, Mr. Haldeman’s representa- 
tions to me of the President’s position were truthfully and fully stated. 

Mr. Thornton. Did you ever check with the President to determine whether 
information you had passed toward him through Mr. Haldeman had been re- 
ceived by him? 

Mr. Mitchell. No, I don’t believe I did, but I think there again, the record of 
actions coming from such line of communication would indicate that they were 
fully and faithfully conveyed. (Mitchell testimony, 2 HJC 209-10) 

V 

The Re-election Campaign 

Haldeman’s responsibility extended to the President’s re-election 
campaign. During the summer and fall of 1971, Haldeman personally 
reviewed and supervised plans for the development of the re-election 
committee and the assignment of staff to it. He established rules and 
procedures for the transfer of employees from the White House staff 
to the re-election committee, waiver of these rules required his per- 
sonal approval. (Political Matters Memorandum, 12/6/71, 5 2 ) In 
March, 1971, Plugh Sloan and Harry Flemming, members of Halde- 
man’s staff, left the White House to become the first members of the 
staff of a predecessor of the Committee fo' the Re-Election of the Pres- 
ident- (CRP). (Butterfield testimony, 1 HJC 25; HJC, Background — 
White House/CRP 5) In May, 1971, Jeb Magruder (hired by Halde- 
man for his staff and then transferred by Haldeman to White House 
Communications Director Herbert Klein's office) transferred from the 
White House to become the acting campaign director of the CRP. 
(HJC, Background — White House/CRP 3) 


-During 1971 and 1972 Strachan prepared 28 of these memoranda and sent them 
to Haldeman^ for review and decisions. The Committee has received 21 of these documents 
from the White House. Seven of the memoranda are published in the Statement of Informa- 
tion. The remainder currently are in the Committee’s flies. 



22 


By April, 1972, seventeen of the twenty-three senior CRP staff 
members were former members of the Administration or the IVhite 
House staff. (Butterfield testimony, 1 HJC 53; HJC, Background- 
White House/CRP 5) 

John Mitchell claimed to have been in charge of day-to-day opera- 
tions of the campaign committee by mid-1971. He remained as Attor- 
ney General until March 1, 1972. Haldeman reviewed the hiring of key 
personnel (Political Matters Memoranda, 8/13/71, 4; 9/18/71, 3-^t; 
1/18/72, 4, and 1/7/72 attachment; Book VI, 899); reviewed pro- 
posed budgets for CRP departments and divisions (Political Matters 
Memoranda, 2/16/72, 78; 9/18/72, 4) ; gave the final approval to 
CRP advertising and campaign materials (Political Matters Memo- 
randa, 2/16/72, 4; 9/18/72, 5; Haldeman testimony, 7 SSC 2878) ; 
supervised the expenditure of funds for polling (Political Matters 
Memoranda, 2/1/72, 1; 5/16/72, 2; Haldeman testimony, 7 SSC 
2878) ; and reviewed CRP regional operations in key states. (Political 
Matters Memoranda, 5/16/72, 7 ; 12/6/71, 1 ; 1/18/72, 2-4; 7/29/72, 3; 
8/11/72, 6) 

Moreover, Haldeman and other members of the White House staff 
were active in formulating campaign strategy. A “political group,” 
consisting of Haldeman, Ehrlichman, Clark MacGregor, Bryce Har- 
low, Charles Colson, Mitchell, and Harry Dent, met regularly at the 
White House to discuss the highest level decisions on campaign tactics 
and domestic policy. (HJC, Background — White IIouse/CRP 6) 

In addition, White House personnel handled other areas of the cam- 
paign. A White House group headed by Colson frequently prepared 
CRP press releases and speeches to be made by supporters of the Presi- 
dent. (Political Matters Memoranda, 5/16/72, 5-6, and attachment; 
3/3/72 attachment) Counsel to the President John Dean handled such 
legal matters for CRP as establishing finance committees (Political 
Matters Memorandum, 2/1/72, 1) ; preparing the defense to a law suit 
(Political Matters Memorandum, 11/16/71, 5) ; and transferring the 
Republican Convention site from San Diego to Miami Beach. (Politi- 
cal Matters Memorandum, 5/16/72, 5) 

A copy of each document submitted to the CRP campaign director 
(first Mitchell and then MacGregor) was normally given to Halde- 
man’s assistant, Gordon Strachan, who summarized the documents for 
Haldeman in “Political Matters Memoranda.” (Political Matters 
Memorandum, 3/3/72, 5) The memoranda covered the entire range 
of activities in the campaign. Butterfield testified that Strachan’s 
memoranda “would not go to the President under normal circum- 
stances,” but Haldeman “would relay the information when he spoke 
to the President next.” (Butterfield testimony, 1 HJC 111) After re- 
viewing the memoranda, Haldeman would write approvals, disap- 
provals and notations to Strachan, his deputy, with specific instruc- 
tions for actions to be taken. Haldeman left no doubt that he was 
issuing directions and speaking for the President. 3 


3 For example In item 14 of Magruder’s Projects in a Political Matters Memorandum 
dated February 16, 1972, Strachan reported that Magruder and Colson were increasingly 
at odds about whether Muskie should be personally attacked for his war stand. Strachan 
reported that Magruder planned to seek authority from the Attorney General to be the only 
control with the spokesmen to the express exclusion of Colson. Haldeman replied, "This is 
not acceptable — Colson Is acting under express instructions. Tell Magruder to talk to me 
if he has a problem. H M (Political Matters Memorandum, 2/16/72, 6 ; Book I, 89) 



23 


Strachan would then contact the appropriate CEP and White House 
personnel to carry out Haldeman’s directions. (See Strachans margi- 
nal notes, Political Matters Memoranda) Haldeman was regularly 
informed of even the most minor administrative decisions, including 
the rental of office space (Political Matters Memoranda, 6/29/72, 5; 
11/16/71, 3; 12/16/71, 4) ; consideration of press requests for inter- 
views with campaign staff (Political Matters Memoranda, 8/11/72,6) ; 
and the development of CEP’s field organizational plan. (Political 
Matters Memoranda, 2/1/72, 6 ; 7/29/72, 8) Haldeman met with Cam- 
paign Director Mitchell on a weekly basis to discuss such subjects as 
campaign financing, personnel and strategy. 4 (Mitchell testimony, 2 
HJC 202) In February, 1972, Haldeman directed that $350,000 in cam- 
paign funds be placed under his control and Strachan picked up the 
cash from CEP prior to April 7, 1972. (Book I, 78, 84, 90) 

The President was attentive to the operation of His re-election cam- 
paign. On April 30, 1973, the President said that in 1972, for the first 
time in his 27-year political career, he had left management of his 
campaign to others, concentrating instead on his duties as President. 
(“Presidential Statements,” 4/30/73, 16) However, the transcript of a 
conversation on April 4, 1972, edited and released by the White House 
in June, 1974, shows that the President was fully aware of the de- 
tailed decisions of the campaign, and that he actively participated in 
them. For example, the President discussed with Haldeman and 
Mitchell details of a site for the 1972 convention: the President de- 
cided it would be changed to Miami Beach. The President also dis- 
cussed the Wisconsin Democratic primary ; the prospects for various 
Democratic Presidential candidates; a letter of support for the Presi- 
dent from columnist William F. Buckley; the campaign of Repre- 
sentative Ashbrook for the Republican presidential nomination; 
various individuals and their duties in the President’s re-election cam- 
paign; and the President’s prospects and campaign organizations in 
Wisconsin, California, Illinois, Ohio, Pennsylvania, New York, New 
Jersey, Texas, Ohio, Michigan, Minnesota, Massachusetts and Ver- 
mont. (President’s submission, Book I, 104-16) Similarly, the Politi- 
cal Matters Memoranda reveal that the President fully discussed cam- 
paign matters with Haldeman, Mitchell. Dent and Harlow. (Political 
Matters Memoranda, 10/27/71, 2; 6/6/72; 6/29/72; 9/18/72) 

Butterfield testified that the President “made the big decisions,” 
that “anything having to do with strategy would emanate from the 
President.” (Butterfield testimony, 1 HJC 111) Butterfield testified 
that the Committee for the Re-election of the President “was pretty 
much an extension of the political White House.” (Butterfield testi- 
mony, 1 PIJC 52) The Political Matters Memoranda, transcripts of 
Presidential conversations, the structure of the campaign committee, 
and the mass of other evidence before the Committee fully corroborate 
this testimony. 

On the basis of this evidence the Committee concluded that the 
President, acting primarily through Haldeman, controlled and di- 
rected the Committee for the Re-election of the President and its 
activities during the 1972 Presidential Campaign. 


4 Haldeman has testified that Mitchell also attended the regular morning White House 
staff meeting, (Haldeman testimony, 7 SSC 2S78) 



24 


This conclusion is corroborated by evidence subsequently received 
by the Committee. In a White House edited transcript released Au- 
gust 5, 1974, reporting a conversation between the President and Halde- 
man on June 23, 1972, the President discussed detailed plans for the 
arrival and activities of his wife and daughters at the Republican 
National Convention, the use of media during the campaign, proposed 
photo opportunities for Republican and certain Democratic candi- 
dates with the President, campaign appearances by his daughters and 
a list of key fundraisers and supporters for the President to telephone. 
(WHT, June 23, 1972, 10 :04-ll :39 a.m., 19-30) 



ARTICLE I 




INTRODUCTION 


Before entering on the execution of his office as President of the 
United States, Richard M. Nixon has twice taken, as required in 
Article II, Section 1, Clause 7 of the Constitution, the following oath : 

I do solemnly swear that I will faithfully execute the Office of the President 
of the United States, and will to the best of my ability, preserve, protect and 
defend the Constitution of the United States. 

Under the Constitution, the Executive power is vested in the Presi- 
dent. In Article II, Section 3, the Constitution requires that the Presi- 
dent “shall take care that the laws be faithfully executed.” 

On June 17, 1972, and prior thereto, agents of the Committee for the 
Re-Election of the President committed unlawful entry into the head- 
quarters of the Democratic National Committee in Washington, D.C. 
for the purpose of securing political intelligence. 

For more than two years, Richard M. Nixon continuously denied 
any personal or White House responsibility for the burglaries ; he con- 
tinuously denied any direction of or participation in a plan to cover 
up and conceal the identities of those who authorized the burglaries and 
the existence and scope of other unlawful and covert activities com- 
mitted in the President’s interest and on his behalf. 

In the course of his public statements, from June 22, 1972, until 
August 5, 1974, the President repeated these denials which are de- 
tailed as follows: 

On June 22, 1972, the President, in a news conference, said that his 
Press Secretary, Ronald Ziegler, had spoken “accurately” when 
Ziegler said, of the Watergate break-in, “The White House has no 
involvement whatever in this particular incident.” 

On August 29, 1972, in a news conference, in responding to a question 
about the Watergate case, the President said : 

The other point that I should make is that these investigations, the investiga- 
tion by the GAO, the investigation by the FBI, by the Department of Justice, 
have, at my direction had the total cooperation of the — not only the White 
House — but also of all agencies of the Government. In addition to that, within 
our own staff, under my direction, Counsel to the President, Mr. Dean, has con- 
ducted a complete investigation of all leads which might involve any present 
members of the White House Staff or anybody in the Government. I can say 
categorically that his investigation indicates that no one in the White House 
Staff, no one in this Administration, presently employed, was involved in this very 
bizarre incident. 

. . . Before Mr. Mitchell left as campaign chairman he had employed a very 
good law firm with investigatory experience to look into the matter. Mr. Mac- 
Gregor has continued that investigation and is continuing it now. I will say in 
that respect that anyone on the campaign committee, Mr. MacGregor has assured 
me, who does not cooperate with the investigation or anyone against whom 
charges are leveled where there is a prima facie case that tho.se charges might 
indicate involvement will be discharged immediately. That, of course, will be true 
also of anybody in the Government. I think under these circumstances we are 
doing everything we can to take this incident and to investigate it and not to 
cover it up. . . . We have cooperated completely. We have indicated that we 
want all the facts brought out . . . 


( 27 ) 



28 


On March 2, 1973, in a news conference, the President said : 

I will simply say with regard to the Watergate case what I have said pre- 
viously, that the investigation conducted by Mr. Dean, the White House Counsel, 
in which, incidentally, he had access to the FBI records on this particular matter 
because I directed him to conduct this investigation, indicates that no one on 
the White House Staff, at the time he conducted the investigation — that was last 
July and August — was involved or had knowledge of the Watergate matter. 

On March 12, 1973, the President, in a statement on executive priv- 
ilege, said: 

Thus, executive privilege will not be invoked until the compelling need for its 
exercise has been clearly demonstrated and the request has been approved first 
by the Attorney General and then by the President. 

On March 15, 1973, the President, in a news conference, said: 

We will cooperate ; we will cooperate fully with the Senate, just as we did with 
the grand jury, as we did with the FBI, and as we did with the courts when they 
were conducting their investigations previously in what was called the Water- 
gate matter. 

On April 17, 1973, the President, in a press briefing, said : 

On March 21, [1973], as a result of serious charges which came to my atten- 
tion, some of which were publicly reported, I began intensive new inquiries into 
this whole matter. 

As I have said before and I have said throughout the entire matter, all Govern- 
ment employees and especially White House Staff employees are expected fully 
to cooperate in this matter. I condemn any attempts to cover up in this case, no 
matter who is involved. 

On April 30, 1973, the President, in an address to the nation, said 
that as soon as he learned about the June 17, 1972, break-in : 

I immediately ordered an investigation by appropriate Government authori- 
ties. . . . 

As the investigations went forward, I repeatedly asked those conducting the 
investigation whether there was any reason to believe that members of my 
Administration were in any way involved. I received repeated assurances that 
there were not. Because of these continuing reassurances, because I believed 
the reports I was getting, because I had faith in the persons from whom I was 
getting them, I discounted the stories in the press that appeared to implicate 
members of my Administration or other officials of the campaign committee. 

Until March of this year, I remained convinced that ithe denials were true and 
that the charges of involvement by members of the White House Staff were 
false. The comments I made during this period, and the comments made by my 
Press Secretary in my behalf, were based on the information provided to us at 
that time we made those comments. However, new information then came to me 
which persuaded me that there was a real possibility that some of these charges 
were true, and suggesting further that there had been an effort to conceal the 
facts both from the public, from you, and from me . . . 

The President continued : 

I was determined that we should get to the bottom of the matter and that the 
truth should be fully brought out — no matter who was involved. 

As the new Attorney General, I have today named Elliott Richardson ... I 
have given him absolute authority to make all decisions bearing upon the prose- 
cution of the Watergate case and related matters . . . We must maintain the 
integrity of the White House . . . There can be no whitewash at the White House. 

On May 9, 1973, the President, in remarks at a Republican fund- 
raising dinner, said : 

In the American political process, one of the most difficult tasks of all conies 
when charges are made against high officials in an Administration. That is a 
very great test of an Administration, and many times, in the history of our coun- 



29 


try, Administrations have failed to meet the test of investigating those charges 
that might he embarrassing to the Administration because they were made 
against high officials in an Administration. 

We have had such a situation. We have been confronted with it. We are deal- 
ing with it. And I will simply say to you tonight that this Nation, Republicans, 
Democrats, Independents, all Americans, can have confidence in the fact that the 
new nominee for Attorney General, Elliot Richardson, and the special prosecutor 
that he will appoint in this case, will have the total cooperation of the executive 
branch of this Government; they will get to the bottom of this thing; they will 
see to it that all of those who are guilty are prosecuted and are brought to jus- 
tice. That is a pledge I make tonight and that I think the American people are 
entitled to. . . . 

I can assure you that we will get to the bottom of this very deplorable incident. 

On May 22, 1973, the President, in an address to the nation, said ; 

With regard to the specific allegations that have been made, I can and do state 
categorically : 

1. I had no prior knowledge of the Watergate operation. 

2. I took no part in, nor was I aware of, any subsequent efforts that may have 
been made to cover up Watergate. 

3. At no time did I authorize any offer of executive clemency for the Water- 
gate defendents, nor did I know of any such offer. 

4. I did not know, until the time of my own investigation, of any effort to 
provide the Watergate defendants with funds. 

5. At no time did I attempt, or did I authorize orders to .attempt, to implicate 
the CIA in the Watergate matter. . . . 

Within a few days ... I was advised that there was a possibility of CIA 
involvement in some way. . . . 

In addition, by this time, the name of Mr. Hunt had surfaced in connection 
with Watergate, and I was alerted to the fact that he had previously been a 
member of the Special Investigations Unit in the White House. Therefore, I 
was also concerned that the Watergate investigation might well lead to an in- 
quiry into the activities of the Special Investigations Unit itself. 

In this area, I felt it was important to avoid disclosure of the details of the 
national security matters with which the group was concerned. I knew that 
once the existence of the group became known, it would lead inexorably to a dis- 
cussion of these matters, some of which remain, even today, highly sensitive. . . . 

Therefore, I instructed Mr. Haldeman and Mr. Ehrlichman to ensure that 
the investigation of the break-in not expose either an unrelated covert opera- 
tion of the CIA or the activities of the White House investigations unit — and 
to see that this was personally coordinated between General Walters, the Deputy 
Director of the CIA, and Mr. Gray of the FBI. It was certainly not my intent, nor 
my wish that the investigation of the Watergate break-in or of related acts be 
impeded in any way. . . . 

At no time did I authorize or know about any offer of executive clemency 
for the Watergate defendants. Neither did I know until the time of my own 
investigation of any efforts to provide them with funds. . . . 

With his selection of Archibald Cox — who served both President Kennedy 
and President Johnson as Solicitor General — as the special supervisory prose- 
cutor for matters related to the case. Attorney General-designate Richardson 
has demonstrated his own determination to see the truth brought out. In this 
effort he has my full support. . . . 

. . . [ejxecutive privilege will not be invoked as to any testimony concerning 
possible criminal conduct or discussions of possible criminal conduct, in the mat- 
ters presently under investigation, including the Watergate affair and the alleged 
cover-up. 

On July 23, 1973, in a letter he sent to Senator Eiwin and made 
public, the President wrote : 

Accordingly, the tapes, which have been under my sole personal control, will 
remain so. . . . 

On May 22nd I described my knowledge of the Watergate matter and its 
aftermath in categorical and unambiguous terms that I know to be true. 



30 


On August 15, 1973, the President spoke to the nation over radio- 
television as follows : 

On May 22, I stated in very specific terms — and I state again to every one of 
you listening tonight these facts — I had no prior knowledge of the Watergate 
break-in ; I neither took part in nor knew about any of the subsequent eoverup 
activities . . . 

That was and that is the simple truth. . . . 

From the time when the break-in occurred, I pressed repeatedly to know the 
facts, and particularly whether there was any involvement of anyone in the 
White House. I considered two things essential : 

First, that the investigation should be thorough and aboveboard ; and second, 
that if there were any higher involvement, we should get the facts out first. . . . 

. . . Throughout the summer of 1972, I continued to press the question, and 
I continued to get the same answer : I was told again and again that there was 
no indication that any persons were involved other than the seven who were 
known to have planned and carried out the operation, and who were subsequently 
indicted and convicted. . . . 

On September 15, the day the seven were indicted, I met with John Dean, the 
White House Counsel. He gave me no reason whatever to believe that any others 
were guilty; I assumed that the indictments of only the seven by the grand 
jury confirmed the reports he had been giving to that effect throughout the 
summer. . . . 

It was not until March 21 of this year that I received new’ information from 
the White House Counsel that led me to conclude that the reports I had been 
getting for over 9 months w T ere not true. On that day, I launched an intensive 
effort of my own to get the facts and to get the facts out. Whatever the facts 
might be, I wanted the White House to be the first to make them public. . . . 

I turned over all the information I had to the head of that department, Assist- 
ant Attorney General Henry Petersen, ... I ordered all members of the Ad- 
ministration to testify fully before the grand jury. 

Far from trying to hide the facts ; my effort throughout has been to discover 
the facts — and to lay those facts before the appropriate law enforcement au- 
thorities so that justice could be done and the guilty dealt with. 

In the written statement which accompanied his August 15, 1973 
address, the President said : 

... I stated categorically that I had no prior knowledge of the Watergate 
operation and that I neither knew of nor took part in any subsequent efforts to 
cover it up. I also stated that I would not invoke executive privilege as to testi- 
mony by present and former members of my White House Staff with respect to 
possible criminal acts then under investigation. . . . 

Those indictments also seemed to me to confirm the validity of the reports that 
Mr. Dean had been providing to me, through other members of the White House 
Staff — and on which I had based my August 29 statement that no one then 
employed at the White House was involved. It was in that context that I met 
with Mr. Dean on September 15, and he gave me no reason at that meeting to 
believe any others w r ere involved. 

Not only was I unaware of any eoverup, but at that time, and until March 21, 
I was unaware that there was anything to cover up. . . . 

... At that time [February and March, 1973], on a number of occasions, I 
urged my staff to get all the facts out, because I was confident that full dis- 
closure of the facts would show that persons in the White House and at the 
Committee for the Re-election of the President were the victims of unjustified 
innuendos in the press. 

... I was told then that funds had been raised for payments to the defendants 
with the knowledge and approval of persons both on the White House Staff and 
at the Re-election Committee. But I w r as only told that the money had been used 
for attorneys’ fees and family support, not that it had been paid to procure 
silence from the recipients. I w r as also told that a member of my staff had talked 
to one of the defendants about clemency, but not that offers of clemency had 
been made. I w’as told that one of the defendants w r as currently attempting to 
blackmail the White House by demanding payment of $120,000 as the price of not 



31 


talking about other activities, unrelated to Watergate in which he had en- 
gaged. These allegations were made in general terms, they were portrayed 
to me as being based in part on supposition, and they were largely unsupported 
in details or evidence. 

These allegations were very troubling, and they gave a new dimension to the 
Watergate matter. They also reinforced my determination that the full facts must 
be made available to the grand jury or to the Senate Committee, If anything 
illegal had happened, X wanted it to he dealt with appropriately according 
to the law. If anyone at the White House or high up in my campaign had been 
involved in wrongdoing of any kind, I wanted the White House to take the lead 
in making that known. 

When i received this disturbing information on March 21, I immediately began 
new inquiries into the case and an examination of the best means to give to the 
grand jury or Senate Committee what we then knew and what we might later 
learn. On March 21, I arranged to meet the following day with Messrs. Haldeman, 
Ehrlich man. Dean and Mitchell to discuss the appropriate method to get the 
facts out. On March 23, I sent Mr. Dean to Camp David, where he was instructed 
to write a complete report on all that lie knew Of the entire Watergate matter. 
... I instructed Mr. Ehrlichman to conduct an independent inquiry and bring all 
the faets to me. On April 14, Mr. Ehrlichman gave me his findings, and I directed 
that he report them to the Attorney General immediately. . . . 

My consistent position from the beginning has been to get out the facts about 
Watergate, not to cover them up. 

On May 22 I said that at no time did I authorize any offer of executive 
clemency for the Watergate defendants, nor did I know of any such offer. I 
reaffirm that statement. 

. . . Even if others, from their own standpoint, may have been thinking about 
how to cover up an illegal act, from my standpoint I was concerned with how to 
uncover the illegal acts. It is my responsibility under the Constitution to see that 
the laws are faithfully executed, and in pursuing the facts about Watergate I was 
doing precisely that. 

On August 22, 1973, the President, in a news conference, said : 

In June, I, of course, talked to Mr. MacGregor first of all, who was the new 
chairman of the committee. He told me that he would conduct a thorough investi- 
gation as far as his entire committee staff was concerned. . . . 

Mr. Dean, as White House Counsel, therefore sat in on the FBI interrogations 
of the members of the White House Staff because what I wanted to know was 
whether any member of the White House Staff was in any way involved. If he 
was involved, he would be fired. And when we met on September 15, and again 
throughout our discussions in the month of March, Mr. Dean insisted that there 
was not— and I use his words — “a scintilla of evidence” indicating that anyone 
on the White House Staff was involved in the planning of the Watergate 
break-in. . . . 

... [I] should also point out that as far as my own activities were concerned, 
I was not leaving it just to them. I met at great length with Mr. Ehrlichman, Mr. 
Haldeman, Mr. Dean and Mr. Mitchell on the 22d. I discussed the whole matter 
with them. I kept pressing for the view that I had had throughout, that we must 
get this story out, get the truth out, whatever and whoever it is going to 
hurt. . . . 

. . . Mr. Haldeman has testified to that, and his statement is accurate. Basically, 
what Mr. Dean was concerned about on March 21 was not so much the raising of 
money for the defendants, but the raising of money for the defendants for the 
purpose of keeping them still — in other words, so-called liush money. The one 
would be legal — in other words, raising a defense fund for any group, any indi- 
vidual, as you know, is perfectly legal and it is done all the time. But if you raise 
funds for the purpose of keeping an individual from talking, that is obstruction 
of justice. . . . 

. . . And so, that was why I concluded, as Mr. Haldeman recalls perhaps, and 
did testify very effectively, one, when I said, “John, it is wrong, it won’t work. 
We can’t give clemency and we have got to get this story out. And therefore, 
I direct you, and I direct Haldeman, and I direct Ehrlichman, and I direct 
Mitchell to get together tomorrow and then meet with me as to how we get this 
story out.” 


37-777 0 - 74 -3 



32 


On September 5, 1973, in a news conference, the President said : 

... As a matter of fact, the only time I listened to the tapes, to certain tapes — 
and I didn’t listen to all of them, of course — was on June 4. There is nothing 
whatever in the tapes that is inconsistent with the statement that I made on 
May 22 or of the statement that I made to you ladies and gentlemen in answer 
to several questions, rather searching questions I might say, and very polite 
questions 2 weeks ago, for the most part, and finally nothing that differs what- 
ever from the statement that I made on the 15th of August. 

On October 26, 1973, in a news conference, the President said: 

. . . [W]e have decided that next w T eek the Acting Attorney General, Mr. Bork, 
will appoint a new T special prosecutor for w T hat is called the Watergate matter. 
The special prosecutor will have independence. He will have total cooperation 
from the executive branch, . . . And I can assure you ladies and gentlemen, and 
all of our listeners tonight, that I have no greater interest than to see that the 
new special prosecutor has the cooperation from the executive branch and the 
independence that he needs to bring about that conclusion. 

On March 6, 1974, at a press conference, the President said : 

At all times it had been my goal to have a complete disclosure of this whole 
situation because, as you know 7 , I have said there can be no cloud over the White 
House. I w 7 ant that cloud removed. That is one of the reasons we have cooper- 
ated as w 7 e have with the Special Prosecutor. We w 7 ill also cooperate w 7 ith the 
Rodino committee. 

The President also said that after a March 22, 1973, meeting with 
John Mitchell, H. R. Haldeman, John Ehrlichman and John Dean, 
“the policy was one of full disclosure, and that was the decision that 
was made at the conclusion of the meeting.” 

On March 19, 1974, in a question-and-answer session before the 
National Association of Broadcasters in Houston, Texas, the Presi- 
dent said : 

... It should not have been covered up, and I have done the very best that I 
can over the past year to see that it is uncovered. I have cooperated completely 
with not only the grand jury but also with other investigative agencies and 
have waived executive privilege perhaps further than I should. ... 

On April 29, 1974, the President, in a nationally broadcast address, 
said : 

I have asked for this time tonight in order to announce my answ T er to the 
House Judiciary Committee’s subpoena for additional Watergate tapes, and to 
tell you something about the actions I shall be taking tomorrow 7 — about what I 
hope they w T ill mean to you and about the very difficult choices that w 7 ere pre- 
sented to me. 

These actions will at last, once and for all, show that what I knew and what 
I did w T ith regard to the Watergate break-in and coverup were just as I have 
described them to you from the very beginning. 

. . . For 9 months — until March 1973 — I was assured by those charged with 
conducting and monitoring the investigations that no one in the White House was 
involved. 

In these folders that you see over here on my left are more than 1,200 pages 
of transcripts of private conversations I participated in between September 15, 
1972, and April 27 of 1973, with my principal aides and associates w T ith regard to 
Watergate. They include all the relevant portions of all the subpoenaed conversa- 
tions that were recorded, that is, all portions that relate to the question of what 
I knew 7 about Watergate or the coverup and what I did about it. 

In these transcripts, portions not relevant to my knowledge or actions with 
regard to Watergate are not included, but everything that is relevant is in- 
cluded— the rough as w 7 ell as the smooth, the strategy sessions, the exploration 
of alternatives, the weighing of human and political costs. 

As far as what the President personally knew and did w 7 ith regard to Water- 



33 


gate and the coverup is concerned, these materials — together with those already 
made available — will tell it all. 

... in the context of the current impeachment climate, I believe all the Amer- 
ican people, as well as their Representatives in Congress, are entitled to have not 
only the facts but also the evidence that demonstrates those facts. 

I want there to be no question remaining about the fact that the President has 
nothing to hide in this matter. 

The basic question at issue today is whether the President personally acted 
improperly in the Watergate matter. Month after month of rumor, insinuation, 
and charges by just one Watergate witness — John Dean — suggested that the 
President did act improperly. 

This sparked the demands, for an impeachment inquiry. This is the question 
that must be answered. And this is the question that will be answered by these 
transcripts that 1 have ordered published tomorrow. 

His [John Dean’s] revelations to me on March 21 were a sharp surprise, even 
though the report he gave to me was far from complete, especially since he did 
not reveal at that time the extent of his own criminal involvement. 

I was particularly concerned by his report that one of the Watergate defend- 
ants, Howard Hunt, was threatening blackmail unless he and his lawyer were 
immediately given $120,000 for legal fees and family support, and that he was 
attempting to blackmail the White House, not by threatening exposure on the 
Watergate matter, hut by threatening to reveal activities that would exjmse 
extremely sensitive, highly secret national security matters that he had worked 
on before Watergate. 

1 probed, questioned, tried to learn all Mr. Dean knew about who was involved, 
what was involved. I asked more than 150 questions of Mr. Dean in the course 
of that conversation. . . . 

Whatever the potential for misinterpretation there may he as a result of the 
different options that were discussed at different times during the meeting, my 
conclusion at the end of the meeting was clear. And my actions and reactions 
as demonstrated on the tapes that follow that date show clearly that 1 did not 
intend the further payments to Hunt or anyone else be made. These are some of 
the actions that I took in the weeks that followed in my effort to find the truth, 
to carry out my responsibilities to enforce the law. 

I made clear that there was to be no coverup. . . . 

To anyone who reads his way through this mass of materials I have provided, 
it will be totally abundantly clear that as far as the President's role with regard 
to Watergate is concerned, the entire story is there. 

On May 22, 1974, in a letter, dated May 15, 1974, sent to Chairman 
Rodino, in response to two subpoenas of the House of Representatives, 
the President wrote : 

... I submitted transcripts not only of all the recorded Presidential conver- 
sations that took place that were called for in the subpoena, but also a number of 
additional Presidential conversations that had not been subpoenaed. I did this 
so that the record of my knowledge and actions in the Watergate matter would 
be fully disclosed, once and for all. . . . 

The Committee has the full story of Watergate, in so far as it relates to Presi- 
dential knowledge and Presidential actions. 

On July 27, 1974, the Committee on the Judiciary decided that since 
June 17, 1972, Richard M. Nixon, using the power of his high office, 
engaged, personally and through his subordinates and agents, in a 
course- of conduct or plan designed to delay, impede and obstruct the 
investigation of the unlawful entry into the headquarters of the 
Democratic National Committee; cover up; conceal; and protect those 
responsible and to conceal the existence and scope of the unlawful and 
covert activities. 

This report is based on the evidence available to the Committee at 
the time of its decision. It contains clear and convincing evidence that 



34 


the President caused action — not only by his own subordinates but by 
agencies of the United States, including the Department of Justice, the 
Federal Bureau of Investigation, and the Central Intelligence Agen- 
cy — to cover up the Watergate break-in. This concealment required 
perjury, destruction of evidence, obstruction of justice — all of which 
are crimes. It included false and misleading public statements as part 
of a deliberate, contrived, continued deception of the American people. 


On August 5, 1974, the President submitted to the Committee on the 
Judiciary three additional edited White House transcripts of Presi- 
dential conversations, which only confirms the clear and convincing 
evidence, that from the beginning, the President, knowingly directed 
the cover-up of the Watergate burglary. 

The evidence on which the Committee based its decision on Article I 
is summarized in the following sections. 



ADOPTION OF A POLITICAL INTELLIGENCE PLAN IN- 
CLUDING THE USE OF ELECTRONIC SURVEILLANCE 

I 

T X TROD U C TIC > X 

To conduct his 1972 re-election campaign, President Nixon author- 
ized the establishment of the Committee for the Re-election of the 
President (CEP). (HJC, Background — White House/CEP 11) 

On or about May 27 and June 17, 1972, agents of CEP broke into the 
Democratic National Committee (DNC) headquarters at the Water- 
gate for the purpose of obtaining political intelligence for use in the 
President's campaign. They acted according to an approved program, 
which had specifically contemplated illegal electronic surveillance. 
Cordon Liddy was responsible for carrying out the program; E. 
Howard Hunt was his chief assistant. Liddy, a former FBI agent, had 
brst worked for the Nixon administration in the Alcohol, Tobacco and 
hi rearms Division of the Treasury Department. Hunt had been an 
employee of the CIA. Before they were transferred to CEP, both men 
had been employed in a secret White House unit, established by the 
President, that engaged in illegal covert activity under the supervision 
of Assistant to the President John Ehrlieliman. 

II 

Prior Covert Activities 

Beginning in May, 1969, the White House conducted covert intelli- 
gence gathering, not for reasons of national security, but for political 
purposes. In May, 1969. President Nixon ordered the FBI to engage in 
electronic surveillance of at least seventeen persons, including four 
newsmen and three White House subordinates whose jobs were un- 
related to national security. (Book VII, 142-47, 153) Taps were main- 
tained on the telephones of two employees of the National Security 
Council after they had left the government to work for a Democratic 
presidential candidate, although a review over a reasonable period 
would have shown neither was discussing classified materials. One tap 
remained for 18 months after Assistant FBI Director William Sulli- 
van had specifically recommended its termination. (Book VII, 212-13, 
220-21, 326) 

W ritten summaries of the results of this surveillance were originally 
sent to the President. Haldeman. Kissinger and Ehrlichman; later, 
at the President’s direction, they were sent only to Haldeman. (Book 
VII, 205, 370) It is undisputed that information forwarded by FBI 
Director Hoover to President Nixon was used by Haldeman in Jan- 
uary, 1970, to take steps to deal with a proposed magazine article 
critical of the President’s Vietnam policy. (Book VII, 360-68) 

(35) 



36 


At the President’s direction, the FBI records of surveillance were 
kept outside of normal FBI files. (Book VII, 182-90) In July, 1971, 
the President ordered that the records be moved from FBI head- 
quarters. (Book VII, 767) In August, 1971, Assistant Attorney Gen- 
eral Robert Mardian handed the records to an official at the Oval 
Office in the White House whom, in an FBI interview, he declined to 
name. (Book VII, 2063) Subsequently, Ehrliehman placed the sur- 
veillance records in his safe. On April 30, 1973, President Nixon or- 
dered that the FBI records be removed from Ehrlichman’s safe and 
placed among the President’s papers. (Book VII, 782) 

During the same period, White House personnel also engaged di- 
rectly in illegal surveillance for political purposes. In 1969, Counsel to 
the President John Ehrliehman hired Anthony Ulasewicz, a retired 
police detective, to conduct investigations under the supervision of 
John Caulfield, a subordinate to Ehrliehman. (Book VII, 336-44) In 
June, 1969, Caulfield, at Ehrlichman’s direction initiated a wiretap on 
the residence telephone of newspaper columnist Joseph Kraft. (Book 
VII, 31T-15) Ehrliehman discussed this wiretap with the President 
(Book VII, 323) During the next three years, Caulfield and Ulasewicz, 
under Ehrlichman’s or Dean’s direction, conducted a number of covert 
inquiries concerning political opponents of the President. (Book VII, 
342, 346-17) 

Following the publication of the Pentagon Papers in June, 1971, the 
President created a special investigations unit which engaged in covert 
and unlawful activities. (Book VII, 620-23, 651) This organization 
(dubbed “the Plumbers” by its members) was based in the White 
House, under the immediate supervision of John Ehrliehman. Howard 
Hunt and Gordon Liddy worked in the unit. (Book VII, 651) The 
Plumbers acquired from the FBI information about the Pentagon 
Papers investigation (Book VII, 952-53), twice requested the CIA to 
prepare psychological profiles of Daniel Ellsberg (Book VII, 898-99, 
1401-03), and formulated a plan to acquire derogatory information 
about Ellsberg to leak to the press for political purposes. (Book VII, 
1126-28) In August, 1971, after obtaining Ehrlichman’s approval for 
a covert operation, provided it was not traceable, Plumbers co-directors 
Egil Ivrogh and David Young authorized Hunt and Liddy to under- 
take an operation to gain access to Ellsberg’s psychiatric records. 
(Book VII. 1240-44) On September 3, 1971, a team consisting of 
Bernard Barker, Felipe DeDiego and Eugenio Martinez (all of whom 
subsequently participated in one of the Watergate break-ins), acting 
under the direction and immediate supervision of Hunt and Liddy, 
illegally broke into the office of Dr. Lewis Fielding, Ellsberg’s psy- 
chiatrist. (Book VII, 1281-87) 

The President’s closest personal staff, particularly Ehrliehman and 
Colson, authorized Hunt to perform other covert activities for political 
purposes. With disguise and credentials obtained on Ehrlichman’s 
authority from the CIA, Hunt interviewed Clifton DeMotte to obtain 
derogatory information about the Kennedys (Book VII, 853) ; and 
with diplomatic cables obtained on Young’s authority from the State 
Department, Hunt fabricated cables purporting to implicate the Ken- 
nedy Administration in the assassination of Vietnamese President 
Diem. (Book VII, 1031-34, 1046-47) During 1971, Ehrliehman author- 



37 


izecl Lidcly to place an unspecified number of wiretaps on other per- 
sons. (Book VII, 828) 

III 

Development of Political Intelligence Capability" 

Preparations began in the White House to develop a political in- 
telligence capability. 

On August 10, 1971, Chief of Staff Haldeman gave instructions that 
Gordon Strachan, Patrick Buchanan, Dwight Chapin and Ron Walker 
should develop recommendations for ‘‘political intelligence and covert 
activities” in connection with the President’s re-election campaign 
in 1972. (Political Matters Memorandum, 8/18/71, 2) At around the 
same time, White House staff assistant John Caulfield submitted to 
Counsel to the President John Dean a political intelligence proposal. 
It was called Operation Sandwedge, which was to include electronic 
surveillance operations and “black bag” capability. (Book VII, 1341, 
1352-53) 

Dean completed a planning study of Operation Sandwedge and other 
“covert” intelligence activities in early October, 1971, and discussed the 
proposal with Mitchell. (Book VII, 1349) After Attorney General 
Mitchell did not make the “hard decisions” about Sandwedge and other 
covert activities which were required to make the plan operational, 
Haldeman instructed Strachan to arrange a meeting between Mitchell 
and Haldeman. (Book VII, 1863-64) 

Accordingly, in November, 1971, Haldeman and Mitchell met to 
discuss Sandwedge. (Political Matters Memorandum, 10/27/71, at- 
tachment.) Magrnder and Strachan were present. Strachan had pre- 
pared for Haldeman’s use at this meeting a detailed agenda, called 
a talking paper, that noted that Sandwedge “has received an initial 
50,” and asked, “are we really developing the capability needed?” 
(Political Matters Memorandum, 10/27/71, attachment) The talking 
paper also listed topics for discussion between Haldeman and Mitchell 
when Magrnder and Strachan were to be absent. One topic was : “Who 
should we designate to increase the surveillance of EMIv [Senator 
Edward M. Kennedy] from periodic to constant?” and “Is there any 
other candidate or group, such as Common Cause, about whom we 
should obtain damaging information?” (Political Matters Memoran- 
dum. 10/27/71, attachment) In the copy of the October 27, 1971, talk- 
ing paper provided by the White House to the Committee, the bottom 
of the page had been cut off, effectively deleting a portion of a para- 
graph that begins, “From Campaign funds I need 800-300 for sur- 
veillance. . . .” (Political Matters Memorandum, 10/27/71, attach- 
ment) 

By November, 1971, Sandwedge had been rejected, Dean was told 
by Mitchell and Ehrliehman to find someone other than Caulfield to 
manage the campaign intelligence operation. Dean suggested Liddy. 
In explaining this to the President on March 21, 1973, Dean told the 
President that Liddy was a lawyer with an intelligence background 
with the FBI. Dean knew that Liddy had done some “extremely sensi- 
tive things for the White House while he had been at the White House, 
and lie had apparently done them well uh going into Ellsberg’s doctor’s 
office,” to which the President replied, “Oh yeah.” Ivrogli had rec- 



38 


ommended Liddy as “a hell of a good man.” (HJCT 81-82) Dean 
introduced Liddy to Mitchell, who believed him qualified to be counsel 
to CRP. (Mitchell testimony, 2 HJC 125) Thereafter, Liddy was 
transferred from the White House to CRP to put together an intelli- 
gence operation. (HCJT 82) 

In Strachan’s December 2, 1971 Political Matters Memorandum 
to Haldeman, Strachan noted that instead of Sandwedge, Liddy, “who 
has been working with Bud Krogh” (co-director of the Plumbers 
unit), would handle political intelligence as well as legal matters, 
and would work with Dean on the “political enemies” project. (Book 
I, 34) On December 8, 1971, Haldeman approved in writing Liddy’s 
transfer to CRP. In spite of a policy that there were to be no salary 
increases for White House staff transferring to CRP, Haldeman au- 
thorized a salary increase of $4,000 for Liddy. (Book I, 49-50) 
Haldeman later acknowledged to the President that Operation 
Sandwedge had been “the grandfather” of the Liddv Plan. (WHT 
526) 

From this evidence it is clear that Haldeman and Mitchell had 
decided to set up a political intelligence gathering unit for the pur- 

S 'ose of securing political intelligence on potential opponents of Presi- 
ent Nixon. 


IV 

Liddy’s Proposals 

In late January, 1972, after consultation with Howard Hunt, his 
associate in the Plumbers unit, CRP Counsel Liddy proposed a $1 
million intelligence program to Mitchell, Magruder and Dean at a 
meeting in Attorney General Mitchell’s office. (Book I, 58-60; Hunt 
testimony, 9 SSC 3708) The proposal included mugging, kidnapping, 
prostitutes, and electronic surveillance. (Book I, 59) At the close of 
the meeting, Mitchell directed Liddy to prepare a revised and more 
realistic proposal. (Book I, 57, 60) Mitchell has denied this (Book I, 
58), but the fact is that, in February, 1972, Liddy returned to 
Attorney General Mitchell’s office with a $500,000 intelligence pro- 
gram, which he presented to Mitchell, Magruder and Dean. The plan 
specifically envisioned electronic surveillance of the DNC head- 
quarters. (Book I, 66-67) Counsel to the President Dean reported this 
meeting to Haldeman. Dean expressed his opposition Ito a political 
intelligence operation that included illegal activities like burglary and 
wiretapping of the DNC. Although Haldeman told Dean he agreed 
that the White House should have nothing to do with such activities, 
Haldeman did not order that the proposal be abandoned. (Book I 66, 
73-75) 

Sometime in February or March, 1972, Liddy and Hunt met with 
Special Counsel to the President Charles Colson at the White House. 
(Book I, 105, 110-11) Colson, who was a friend of Hunt’s and had 
recommended him for employment by the White House after Colson 
had discussed the political possibilities of the Ellsberg case with the 
President in late June, 1971, was aware that Liddy and Hunt had 
taken part in the Plumbers operations, including the Fielding 



39 


break-in. (Book 1, 113; Colson testimony, 3 II JC 197-99, 205-06, 236- 
37) During this meeting, Colson called Magruder, the CEP chief of 
staff, and told him to resolve whatever it was Hunt and Liddy wanted 
to do and to be sure he had an opportunity to listen to their plans. 
(Book 1, 105 ; Colson testimony. 3 HJC 244-49) Magruder has testified 
that Colson told him to “get off the stick” and get Biddy's plans 
approved, and that information was needed, particularly about Demo- 
cratic National Committee Chairman Lawrence O’Brien. (Book I, 
113) 

V 


Adoption of the Plan 

On March 30, 1972, in Ivey Biscayne, Florida, the Liddy Plan was 
reviewed in a meeting among Mitchell, Magruder and Fred LaRue. 
(LaRue testimony, 1 IIJC 180-83) They considered the proposal for 
electronic surveillance and, according to Magruder, approved its 
revised budget of either $250,000 or $300,000. (Book I, 116-20, 129, 
148, 182) After the meeting, Magruder instructed his assistant, Robert 
Reisner, who was at CRP headquarters in Washington, to tell Liddy 
that his proposal had been approved. Reisner telephoned Liddy, who 
had become general counsel to the Finance Committee to Re-elect the 
President (FCRP), and conveyed Magruder’s message that the plan 
had been approved and that Liddy was to get started in the next two 
weeks. (Book I, 49-50, 136-46) 

In a Political Matters Memorandum dated March 31, 1972, Strachan 
told Haldeman that Magruder reported CRP now had a “sophisti- 
cated political intelligence gathering system including a budget of 
[$]300 [,000].” (Book 1, 148, 150-53) A talking paper which Strachan 
had prepared for a meeting between Haldeman and Mitchell on 
April 4, 1972, included a question on the “adequacy of the political 
intelligence system.” (Book I, 162-64) 

Strachan has testified that three days after the June 17, 1972 Water- 
gate break-in, Haldeman ordered him to destroy both the March 31, 
1972 Political Matters Memorandum and the April 4, 1972 talking 
paper. (Book 1, 165-66) 

Although Biddy’s involvement in the break-in was known by the 
President, Mitchell, and other high CRP and White House officials 
shortly after the break-in (WHT, June 23, 1972, 10:04-11 :39 a.m., 6; 
Book II, 91, 93-97, 145-46), Liddy was not discharged as counsel to 
FCRP until eleven days afterward. (Book II, 478-82) 

This, and evidence of cover-up activity after the break-in discussed 
in the following sections, along with the direct evidence regarding 
Haldeman’s and Mitchell’s planning activities prior to the break-in, 
support the conclusion that the Watergate break-in was pursuant to a 
program of unlawful electronic surveillance approved in advance by 
Mitchell, in which Haldeman concurred, and aimed at political op- 
ponents of the President for the political benefit of the President. 



THE IMPLEMENTATION OF THE POLITICAL 
INTELLIGENCE PLAN 


The implementation of the plan to gather political intelligence for 
use in the President’s re-election campaign began in April, 1972. 
(Book 1, 172-75) Prior to June, 1972, with the approval of John Mitch- 
ell, FCRP Treasurer Hugh Sloan disbursed approximately $199,000 
in cash to Liddy. 1 (Book 1, 178-79) Of this sum James McCord, CRP 
Security Director, spent approximately $65,000 on electronic moni- 
toring equipment and for related purposes. (Book I, 190) 

The first break-in at the Democratic National Committee (DNC) 
occurred on or about May 27, 1972. (Book I, 216-17) During the first 
or second week in June, 1972, Deputy Campaign Director Magruder 
received transcripts, on paper labeled “Gemstone,” of conversations 
intercepted at the DNC Headquarters. (Book I, 234-35) There is 
evidence that these transcripts were shown to Mitchell. (Book I, 
235) Magruder’s assistant, Robert Reisner, testified that Magruder 
once asked him to place a group of the Gemstone papers in the file 
labeled “Mr. Mitchell’s file,” the file used by Magruder in regular 
daily meetings with Mitchell. (Book I, 237-38) Magruder also re- 
ceived prints of documents photographed during the first entry into 
the DNC headquarters. 2 (Book I, 234) 

The White House received reports obtained from the break-in and 
bugging. Magruder forwarded the information to Strachan in Halde- 
man’s office. (Book 1, 165-66, 168-69) 

In his March 13, 1973 meeting with Dean, the President described 
the Watergate operation as “a dry hole, huh?” Dean responded, “That’s 
right.” (HJCT 72) Later in the same conversation. Dean said he 
thought there were “some people who saw the fruits of it,” but added 
that that was “another story.” Dean was talking about the criminal 
conspiracy to enter the DNC offices. (HJCT 74) 

After the burglars first broke into and bugged the DNC head- 
quarters, they began getting information, which was in turn relayed to 
Haldeman’s office. At one point Haldeman gave instructions to 
change their political surveillance capabilities from Muskie to Mc- 
Govern ; he sent the instructions to Liddy through Strachan. Liddy 
started to make arrangements for the electronic surveillance of the 
McGovern operation. In a conversation on the morning of March 21, 
1973, John Dean reported to the President : 

Dean. . . . The information was coming over here to Strachan. Some of it 
was given to Haldeman, uh, there is no doubt about it. Uh — 

President. Did he know what it was coming from? 

Dean. I don’t really know if he would. 


1 Sloan testified that when he asked Stans the purpose for which the money would be 
spent, Stans, who had discussed the matter with Mitchell, said, “I do not want to know and 
you don’t want to know.” (Book I. 179) 

2 Shortly after the June 17. 1972 break-in, Reisner, at Magruder’s direction, removed the 
Gemstone files and other politically compromising documents from the CRP files. These 
documents were delivered to Magruder who destroyed them. (Book I, 236, 239-40) 

( 40 ) 



41 


President. Not necessarily. 

Dean. Not necessarily. That’s not necessarily. Uh — 

President. Strachan knew what it was from. 

Dean. Strachan knew what it was from. No doubt about it, and whether 
Strachan — I have never come to press these people on these points because it, 
President. Yeah. 

Dean, it hurts them to, to give up that next inch, so I had to piece things 
together. All right, so Strachan was aware of receiving information, reporting 
to Bob. At one point Bob even gave instructions to change their capabilities from 
Muskie to McGovern, and had passed this back through Strachan to Magruder 
and, apparently to Liddy. And Liddy was starting to make arrangements to go 
in and bug the, uh, uh, McGovern operation. They had done prelim — 

President. They had never bugged Muskie, though, did they? 

Dean. No, they hadn’t but they had a, they had, uh, they’d 
President. (Unintelligible) 

Dean, infiltrated it by a, a, they had 
President. A secretary. 3 

Dean, a secretary and a chauffeur. Nothing illegal about that. (IIJCT 85) 

On April 14, 1973, Haldeman told the President that Strachan, at 
some time, had stopped reading the DNC wiretap reports, which had 
been made available to him. 

E The one copy that Magruder had lmd pictures of the kinds of papers that 
you’d find around with campaign headquarters. He sent a synopses of the pictures 
to Mitchell. lie thought it was so bad he picked up the phone and called Liddy and 
chewed him out. He called ’em “(expletive deleted)” “I [Magruder] told Strachan 
that the synopses were here. He may have come over and read them.” and as I 
[Ehrlichman ] pressed him on that he got less and less sure of that. He says, 
“I [Magruder] told him they were there.” 

H Strachan says, “I stopped reading the synopses, and they were — we had 
’em here.” (WIIT 586) 

On April 14, 1973, the President asked Haldeman what he would 
say if Magruder testified that the DNC wiretap reports had come to 
Haldeman’s office. Haldeman responded, “This doesn’t ewer have to 
come out.” (WIIT 520-21) 

Thus the Liddy Plan was implemented under Mitchell’s direction 
with Hal deman’s concurrence to provide political intelligence infor- 
mation for the President’s benefit in his re-election campaign. 


3 In the edited White House transcript, it is Dean who first says “a secretary.” (WHT 
ISO) 



PRESIDENT NIXON’S RESPONSE TO THE ARRESTS 

I 


Initial Response 

At 2 :00 a.m. on June 17, 1972, five of Liddy’s men, including CRP 
Security Director McCord, made the second entry into the DNC offices. 
They were found there and arrested. (Book II, 72-74) They had on 
their persons fifteen $100 bills. In their hotel room police found ad- 
ditional $100 bills, a check drawn by Hunt, and a notebook that con- 
tained Hunt’s White House telephone number. (Book II, 84-85) Hunt 
and Liddy were elsewhere, in the AVatergate Hotel. Upon discovering 
the arrests of the others, they left. (Book II, 72-76) Hunt went to his 
office in the Executive Office Building (EOB), placed a briefcase con- 
taining electronic equipment in his safe and removed from the safe 
$10,000 ill cash that Liddy had previously given to him to be used in 
case of need. Hunt gave tiie money that morning to Douglas Caddy, a 
AVashington attorney. (Book 11,76-77) 

At the time of the break-in, the President was in Key Biscayne with 
Ilaldeman and Presidential Press Secretary Ronald Ziegler. (Book II, 
127) 

John Mitchell, Robert Mardian, Jeb Magruder, and Fred LaRue, 
all top officials in CRP, were in Los Angeles working on the Presi- 
dent’s re-election campaign. On the morning of June 17, 1972, Liddy 
telephoned Magruder in California and asked him to call back on a 
secure phone. (Book II, 106) At the time, Magruder was eating break- 
fast with LaRue. Before going to a pay telephone to return Liddy’s 
long distance call, Magruder remarked to LaRue, “I think last night 
is when they were going into the DNC.” Magruder then called Liddy 
who informed him of the break-in and the arrests of the burglars, in- 
cluding McCord, the CRP Security Director. (LaRue testimony, 1 
HJC 185) Magruder immediately relayed Liddy’s report to LaRue, 
who informed Mitchell. (Book II, 106) 

When LaRue tokl Mitchell that McCord, the CRP Security Di- 
rector, was one of the five persons arrested, Mitchell asked LaRue to 
get more information. (Book II, 108) Mardian was ordered to return 
to A\ T ashington. (LaRue testimony, 1 HJC 194) Mitchell’s aides pre- 
pared a press release falsely stating that the arrested men had not been 
operating on behalf of or with the consent of CRP. (LaRue testimony, 
1 HJC 188-90, 212-14) Mitchell made a decision to issue that press 
release that said : 

We have just learned from news reports that a man identified as employed 
by our campaign committee was one of five persons arrested at the Democratic 
National Committee headquarters in Washington, D.C. early Saturday morning. 

The person involved is the proprietor of a private security agency who w r as 
employed by our Committee months ago to assist w r ith the installation of our 
security system. 

He has, as we understand it, a number of business clients and interests and we 
have no knowledge of those relationships. 

( 42 ) 



43 


We want to emphasize that this man and the other people involved were not 
operating either in our behalf or with our consent. 

I am surprised and dismayed at these reports. 

At this time, we are experiencing our own security problems at the Committee 
for the Re-election of the President. Our problems are not as dramatic as the 
events of Saturday morning — but nonetheless of a serious nature to us. We do not 
know as of this moment whether our security problems are related to the events 
of Saturday morning at the Democratic headquarters or not. 

There is no place in our campaign or in the electoral process for this type 
of activity and we will not permit nor condone it. (LaRue Exhibit No. 2, 1 HJC 
212 ; Mitchell testimony, 2 HJC 150-51 ) 

On June 17, 1972, Mitchell also directed Liddy to contact Attorney 
General Kleindienst. (LaRue testimony, 1 HJC 187) Liddy met, with 
Kleindienst at the Burning Tree Country Club near Washington, 
D.C., and told him that some of the people arrested were White 
House or CRP employees. Liddy told Kleindienst that Mitchell 
wanted a report on the break-in. Kleindienst refused to discuss the 
matter and ordered Liddy otf the premises. (Book II, 108, 111-12) 

On the afternoon of June 17, the Secret Service contacted John 
Khrlichman, who was in Washington, to inform him that the District 
of Columbia police had found the White House telephone number of 
Howard Hunt in the burglars’ hotel room. (Book II, 118, 494) Ehr- 
li cli m an knew of Hunt’s participation in the burglary of Ellsberg’s 
psychiatrist’s office and of other covert operations Hunt had per- 
formed for 1 he White House. (Book VII, 728, 1220) 1 

Upon learning that evidence now linked Hunt with those arrested 
inside the DXC offices, Ehrliehman immediately called Colson, whom 
he knew to have been Hunt’s sponsor at the White House. (1 v>k IT, 
118; Book VII, 677) Colson, who had recommended Hunt for his 
While House position (Book VII, 676) knew of Hunt’s previous 
covert activities undertaken with Ehrliehman s authorization: on 
September 9, 1971, shortly after a meeting with the President, Ehrlieh- 
man had told Colson of Hunt’s and Liddy’s break-in into Dr. Fielding’s 
office and instructed him not to talk about the matter. (Colson testi- 
mony, 3 HJC 236) Tn March, 1972. Colson himself had instructed Hunt 
to interview Dita Beard in Denver, following publication of her memo- 
randum about the settlement of ITT antitrust litigation. (Colson testi- 
mony, H JC 250-51) 

On the afternoon of the Watergate break-in, Ehrliehman and 
Colson talked about how to handle records of Hunt’s employment at 
the White House; and about Douglas Caddy, the lawyer Hunt had 
hired following the arrests. (Book II, 118-20; Colson testimony, 3 
HJC 257-58) 

Tn the late afternoon of June 17, 1972, the day of the Water- 
gate break-in, Ehrliehman telephoned Ziegler in Key Biscavne and 
told him about the documents that linked Hunt to the Watergate 
burglars. (Book II, 118) It is not known what information Ziegler 
conveyed to the President. The next day, June 18, 1972, Ehrliehman 


1 On .Inly 7, 1971, when Hunt was first hired as a consultant to the the White House, Ehr- 
liehman called the CIA and said ; 

“I want to alert you that an old acquaintance, Howard Hunt, has been asked by the 
President to do some special consultant work on security problems. He may he contacting 
you sometime in the future for some assistance. I wanted you to know that he was in fact 
doing some things for the President. He is a long-time acquaintance with the people here. 
He may want some help on computer runs and other things. You should consider he has 
pretty much carte blanche.’' (Book II, 467) 



44 


placed another call to Key Biscayne, this time to Haldeman. He 
reported McCord’s and Hunt’s involvement in the break-in and the 
problems it created for CRP and the White House. (Book II, 130) 
It is not known what information Haldeman passed on to the Presi- 
dent. Haldeman knew that an investigation might reveal that Mit- 
chell, with Haldeman’s concurrence, had authorized a plan to place 
the President’s political opponents under electronic surveillance ; that 
funds for the operation were campaign funds supplied by CRP ; and 
Ehrlichman knew that the participants in the Watergate break-in had 
previously engaged in illegal covert activities on behalf of the Presi- 
dent, under Ehrlichman’s supervision. 

After this telephone conversation, Haldeman called Magruder in 
California and discussed the arrests. Haldeman directed Magruder 
to go to Washington to meet with Dean, Strachan and Sloan in order 
to determine exactly what had happened and the source of the 
money found on the arrested persons. (Book II, 126; Mitchell testi- 
mony, 2 HJC 153) Magruder told Mitchell of Haldeman’s order, 
and the instruction that Mardian should return immediately to Wash- 
ington was reversed. (LaRue testimony, 1 HJC 194) Later the same 
day Haldeman, in a telephone conversation with Colson, inquired 
about Hunt’s employment status at the White House. (Colson testi- 
mony, 3 HJC 258-59) 

On June 18, 1972, the President also called Colson from Key 
Biscayne. He told Colson he had been so angry about the involve- 
ment of McCord in the Watergate break-in that he had thrown an ash 
tray across the room. (Colson testimony, 3 HJC 259) 2 

That day, John Dean, counsel to the President, returned to Cali- 
fornia from a trip to the Far East. He was told by White House aide 
Fred FieMing to cancel his plans to stay in California, and to return 
to Washington, which he did. (Book [1, 144) 

On June 18, President Nixon put John Ehrlichman in charge of 
the Watergate matter; Ehrlichman assigned Dean to work on it. 
(Book II, 132; “Presidential Statements,” 8/22/73, 46; Dean testi- 
mony, 2 IIJC 223-24) On June 19, Dean met with Liddy, who told 
Dean that the break-in was a CRP operation. Dean reported this con- 
versation to Ehrlichman. 3 (Dean testimony, 3 HJC 224) 

On June 19, 1972, Ehrlichman, Colson and Dean met. (Book II, 
145 — 46 ; Colson testimony, 3 HJC 260-61, 66) Their discussion of the 
break-in concerned the fact that White House records did not reflect 
any termination of Hunt’s status as a consultant ; they also discussed 
the contents of Hunt’s safe in the EOB. (Book II, 146, 190) Ehrlich- 
man and Colson directed Dean to take possession of the contents of 
Hunt’s safe. Ehrlichman ordered that Hunt’s safe in the EOB be 
drilled open. This was done and its contents were delivered to Dean. 
(Book II, 190; Colson testimony, 3 HJC 264^65) The safe contained, 
among other things, State Department cables Hunt had fabricated; 


2 Representative Thornton explained the significance of this occurrence during the general 

debate : . . [w]hat that outburst of anger also indicates, at least to me, was a revelation, 

as of that moment, at the start, that [the President’s] own men were involved in a stupid 
and criminal act, which had the potential of terrible embarrassment to him.” (HJC debates, 
July 25, 1974, TR. 288) ^ 

3 Liddy nevertheless continued to serve as general counsel to FCRP until June 28, 1972, 
when he was discharged by Stans for refusing to be interviewed by the FBI. (Book II, 
478-82) 



45 


materials related to the Plumbers; McCord’s briefcase filled with elec- 
tronic equipment, which Hunt had placed in the safe immediately after 
the arrests ; and two notebooks. (Book II, 76, 163, 425) 

Late on June 19, 1972, Magruder, Mitchell, Mardiaii and LaRue, who 
had returned to Washington, met in Mitchell’s apartment. Dean later 
joined the meeting. They discussed the break-in and the need for a 
statement from CRP denying any responsibility for the burglary. 
(Book II, 224; Mitchell testimony, 2 HJC 154-55, 159) Magruder was 
directed at that meeting to destroy documents related to the political 
surveillance operation. (LaRue testimony, 1 HJC 196-97; Book II, 
225-26) 

II 

June 19, 1972-June 29, 1972 

On June 19, 1972, at about noon, the President telephoned Colson. 
They talked for approximately one hour about the break in. (Book 
II, 156, 158-59) Colson told the^P resident that Administration officials 
in Washington were holding a meeting to determine how they should 
react. (Colson testimony, 3 HJC 261) 

Later on June 19, 1972, the President and Haldeman returned from 
Key Biscayne. (Book II, 240) 

The next morning, June 20, 1972, at 9 :00 a.m., Haldeman met in 
Ehrlichman’s office — which was located one floor above the Oval Office 
(Butterfield testimony, 1 HJC 24) — with Ehrlichman and Mitchell, 
both of whom knew that the DNC break-in was a CRP operation car- 
ried out under the direction of Liddy. (Book II, 108, 153, 240) Dean, 
who also knew that the DNC break-in w 7 as a CRP operation, and At- 
torney General Ivleindienst (Book II, 112, 144) jointed this meet- 
ing a bout 9:45 and 9:55 a.m. respectively. (Book II, 240) The 
previous day, Kleindienst had requested that Gray arrange for a 
briefing on the FBI investigation, because Kleindienst had to brief the 
President that day or the next. (Book II, 137) At the meeting, on the 
morning of June 20, Kleindienst, Haldeman, Ehrlichman, Mitchell 
and Dean discussed the Watergate break-in. (Book II, 240-41) 

On that same morning at 9:00 a.m. the President arrived in his 
Oval Office. While this meeting on Watergate took place one floor 
above among the President’s chief of staff, his chief domestic adviser, 
his counsel, his Attorney General, and his campaign director, the 
President remained alone in the Oval Office (with the exception of a 
three-minute meeting with Butterfield from 9:01 to 9:04 a.m. The 
President left the Oval Office at 10 :20 a.m., and went to his EOB office. 
(Book II, 243) 

At his EOB office, the President met with Ehrlichman from 10:25 
until 11 :20 a.m. (Book II, 243) The President did not discuss Water- 
gate with Ehrlichman, even though the President had given Ehrlich- 
man the highest level responsibility for investigation of the Water- 
gate matter. (In re Grand Jury, Miso. 47-73, order, 12/19/73; Book 
II, 238 ; “Presidential Statements,” 8/22/73, 45-46) 

Starting at 11 :26 a.m., during a meeting which lasted one hour and 19 
minutes, the President did discuss Watergate with Haldeman. 
Haldeman — who by this time had been fully briefed and who, accord- 
ing to Strachan, that day instructed Strachan to destroy documents re- 



46 


lated to the Liddy Plan and other compromising documents — met with 
the President. (Book II, 243, 265) At this meeting, the President issued 
certain directives about the Watergate break-in. (Book II, 249-50) 
A portion of the notes taken by Haldeman during the meeting read : 

be sure EOB office is thoroly ckd re bugs at all times — etc. what is our counter 
attack? PR offensive to top this ... hit the opposition w/ their activities Pt 
out libertarians have created public callousness. Do they justify this less than 
stealing Pentagon papers, Anderson file etc. we shld be on the attack for 
diversion (Book II, 246-48) 

In July, 1973, the tape recording of this June 20, 1972 meeting be- 
tween the President and Haldeman was subpoenaed by the Special 
Prosecutor. The subpoena was resisted by the President on the grounds 
of executive privilege (Book II, 258) but upheld by the Court of 
Appeals. (Book IX, 748, 750-54) On November 26, 1973, when the 
President’s lawyer finally produced the recording, it contained an 
eighteen and one-half minute erasure. The erasure obliterated that por- 
tion of the conversation which, according to Haldeman’s notes, refer- 
red to Watergate. (Book II, 249-50) The obliteration was, in fact, 
caused by repeated manual erasures, which were made on the tape 
recorder used by the President’s personal secretary Rose Mary Woods. 
(See Appendix A) 

Although the President had six other conversations with Haldeman 
and Colson that day, 4 the President did not meet with his Attorney 
General Kleindienst, his FBI Director Gray or his Campaign Director 
Mitchell. (Book II, 243-44) 

On the morning of June 20, 1972, Magruder, as instructed by Halde- 
man, met with Sloan and determined that the source of the money 
found on the persons arrested was the Finance Committee to Re-Elect 
the President (FCRP), an arm of CRP. (Book IT, 126) 

On June 20, 1972, in spite of the fact that he was aware of the CRP 
responsibility for the Watergate break-in, Mitchell issued a prepared 
statement denying any legal, moral or ethical accountability on the 
part of the CRP. (Book II, 303) That evening, the President tele- 
phoned Mitchell. They discussed the break-in. (Book II, 310) On 
July 23, 1973, the tape of that telephone call was subpoenaed by the 
Special Prosecutor. (Book IX, 415-16) On October 30, 1973, the Presi- 
dent responded that the conversation had not been recorded. (Book 
IX, 836) The President did provide a dictabelt recording of his recol- 
lections of that day (Book II, 309), which included the following ac- 
count of his conversation with Mitchell : 

Paragraph. I also talked to John Mitchell in— late in the day and tried to 
cheer him up a bit. He is terribly chagrined that, uh, the activities of anybody 
attached to his committee should, jih, have, uh, been handled in such a manner, 
and he said that he only regretted that he had not policed all the people more 
effectively on a — in his own organization — (42 second silence) (unintelligible) 
(Book II, 310) 

The President issued no order to discharge Gordon Liddy, Counsel to 
FCRP. Mitchell knew that Liddy was responsible for the burglary — 


* On May 15, 1974, the House Judiciary Committee subpoenaed the tape recordings and 
other materials related to conversations between the President and Haldeman on June 20, 
1972 from 4 :35 to 5 :25 p.m. : from 7 :52 to 7 :59 p.m. ; and from 8 :42 to 8 :50 p.m. ; and 
between the President and Colson from 2 :20 to 3 :30 p.m. ; from 8 :04 to 8 :21 p.m. ; and 
from 11 :33 p.m. to 12 :05 a.m., June 21, 1972. The President refused to produce these 
recordings. 



47 


he had authorized the Liddy Plan and had been told by Mardian and 
BaRue that Liddy had planned and participated in the break-in. 
(Book II, 280) Haldeman knew — he had approved Liddy’s transfer 
to CEP for intelligence-gathering purposes, (Book I, 49) and on 
June 20 had directed Strachan to destroy documents that contained 
discussions about the fruits of Biddy’s activities. (Book II, 262-63) 
Dean knew — Liddy told him the whole story on June 19. (Book II, 
145) Ehrlichman knew — Dean had told him on June 19 of Biddy’s 
confession (Book II, 145-4:6) because as Ehrlichman later said: “Well, 
the only reason to tell me was not for me as me but because I was 
one of the two conduits that he [Dean] had to the Boss.” ( WHT 1172) 
Colson knew — Colson had telephoned Magruder prior to March 30 
in the presence of Biddy and Hunt and urged Magruder to see to 
it that Liddy’s polh’cal intelligence gathering proposal was consid- 
ered. 5 Colson also knew of Hunt’s role in the break-in. (Book I, 113; 
HJCT 84) 

On June 22, 1972, the President — who had been with Haldeman in 
Key Biscayne when the news of the break-in first appeared ; who had 
remained there with Haldeman on June 17, 18 and 19; who had dis- 
cussed Watergate with Colson on June 19 and with Haldeman and 
Mitchell on June 20 — held a news conference. He was asked if he had 
ordered any sort of investigation to determine the truth of the charges 
“that the people who bugged [DNC] headquarters had a direct link 
to the White House.” The President replied : 

Mr. Ziegler and also Mr. Mitchell, speaking for the campaign committee, have 
responded to questions on this in great detail. They have stated my position 
and have also stated the facts accurately. 

This kind of activity, as Mr. Ziegler had indicated, has no place whatever in 
our electoral process, or in our governmental process. And, as Mr. Ziegler has 
stated, the White House has had no involvement whatever in this particular 
incident. 

As far as the matter now is concerned, it is under investigation, as it should 
be. by the proper legal authorities, by the District of Columbia police, and by the 
FBI. I will not comment on those matters, particularly since possible criminal 
charges are involved. (Book II, 352-53) 

When the President issued this statement, he knew or should have 
known that Howard Hunt, Gordon Biddy and other CEP personnel 
were responsible for the burglary, and that some of these persons had 
previously engaged in covert activities, as members of the Plumbers 
unit, on the President’s behalf. 

By June 21, 1972, the decision had been made to prevent further 
Watergate disclosures and the President’s closest subordinates and 
agents were beginnning to carry out this decision. The President had 
placed Ehrlichman in charge. Ehrlichman had assigned Dean to moni- 
tor the FBI investigation. Ehrlichman called Gray and told him that 
Dean was conducting an inquiry into the Watergate matter for the 
White House. He instructed Gray to work closely with Dean. (Book 
H, 314) 

The identification of Hunt as a suspect in the Watergate burglary 
created a risk that a direct link to the White House might be estab- 
lished. After discussions between Colson and White House Staff Sec- 


5 McCord, CRP security head who was arrested at the break-in and therefore exposed, 
was immediately discharged and Mitchell disclaimed CRP responsibility for his activities. 


37-777 0 - 74 -4 



48 


retary Bruce Kehrli, Ehrlichman and Colson decided that White 
House records should state that Hunt’s status as a White House con- 
sultant had been terminated as of April 1, 1972. 6 (Book IT, 168-69) On 
or about June 21, 1972, Colson’s office forwarded to Kehrli a memoran- 
dum which was dated March 30, 1972 and which expressed a desire to 
assist Hunt on an annuity problem “and then totally drop him as a 
consultant so that 1701 [CRP] can pick him up and use him.” Within 
a week after June 19, 1972, Kehrli circled the reference to dropping 
Hunt as a consultant and wrote at the bottom of the memorandum : 
“OK — Drop as of April 1. 1972 BAK.” Kehrli was also told by Colson 
to remove Hunt’s name from the White House phone directory; on 
Kehrli’s instructions, the name was removed. (Kehrli affidavit, 2-4; 
Colson testimony, 3 HJC 262-63; Book II, 184) 

The money found on those arrested created for the President an- 
other risk of disclosure and another danger to his re-election cam- 
paign. The risk was that it could be traced back to the Campaign Com- 
mittee — exposing the Committee’s responsibility for the burglary and 
also exposing illegal corporate campaign contributions. 

Because of this risk, Haldeman, on June 18, 1972, the day after 
the break-in, directed Magruder to return from California to Wash- 
ington, and talk to Sloan, Dean and Strachan about the source of the 
money. (Book II, 126) Liddy, who was also aware of the risk, shredded 
the $100 bills in his possession immediate! v after the break-in. (Book 
II, 289) 

The money was part of the sum of five campaign contribution checks 
totalling $114,000. Four of the five checks were drawn on a Mexican 
bank by Manuel Ogarrio, a Mexican attorney. The fifth check was 
signed by Kenneth Daldberg, a Minnesota businessman. FCRP Treas- 
urer Hugh Sloan had given the checks to Gordon Liddy sometime in 
April to convert into cash. Liddy in turn had given the checks to Ber- 
nard Barker, one of those later arrested at Watergate. Barker had de- 
posited the checks in his Florida bank account. Barker gave the cash 
to Liddy, who transmitted it to Sloau. Later, when Sloan gave Liddy 
cash, he apparently gave him some of the same bills which Liddy had 
obtained for FCBP. (Book IT, 96-97, 339, 370-71) 

It is standard practice for banks to record the serial numbers of cash 
paid out in large transactions. Thus, the FBI probably could trace the 
$100 bills back to the bank that supplied the cash and to the five checks 
deposited in the bank account of Bernard Barker. (Book II, 339) 
Daldberg and Ogarrio could tell the FBI that the checks bearing their 
names were delivered to the President’s re-election campaign; Dahl- 
berg had in fact handed his check personally to Staus. (Book II, 
366-67) Ogarrio could also tell the FBI that he had covered his checks 
by charging a fee to Gulf Resources & Chemical Corporation. 

The risk that the CRP link would be uncovered became imminent 
on June 21 and 22, 1972, when Gray informed Dean that the $100 bills 
had already been traced by the FBI to Barker’s bank account in 


« Butterfield testified that shortly after the Watergate break-in he was told bv Kehrli that 
Hunt was then a White House consultant, but that at Ilaldeman’s direction Hunt was not 
listed on the employment rolls. (Butterfield testimony, 1 H.TC 55-57) Kehrli states he does 
not recall this conversation. (Kehrli affidavit, 3) Colson has testified he told Kehrli on 
June 19, 1972 to make White House records reflect Hunt’s termination as of March 31, 1972. 
(Colson testimony, 3 HJC 262-63) 



49 


Florida, that Dahlberg and Ogarrio had been identified, and that the 
Bureau intended to interview them. (Book II, 339) On June 23, 1972, 
Dean reported to Haldeman the information given to him by Gray; 
Haldeman immediately reported to the President. 7 (Book II, 356) 

At the time that the Committee on the Judiciary voted on Article I, 
it was undisputed that on June 23, 1972 the President directed Hal de- 
man and Ehrlichman to meet with Helms and Walters, to express 
White House concern that the FBI investigation might expose unre- 
lated covert CIA operations or the activities of the White House Spe- 
cial Investigations Unit, and to ask that Walters meet with Gray to 
communicate these concerns to him. (Book II, 358-59) 8 
On the afternoon of June 23, 1972, Ehrlichman and Haldeman met 
with Helms and Walters. (Book II, 356-57) Helms assured Haldeman 
that there was no CIA involvement in the Watergate break-in, and told 
him that he had given a similar assurance to acting FBI Director 
Gray, (Book II, 383-84) In reply, Haldeman said that the FBI inves- 
tigation was leading to important people; and that it w T as the Presi- 
dent’s wish, because an FBI investigation in Mexico might uncover 
CIA activities or assets, that Walters suggest to Gray that it was not 
desirable to pursue the inquiry, especially into Mexico. (Book II, 380. 
385-86) Ehrlichman said that the Mexican checks, traced to the Flo- 
rida bank account, were mentioned as an example of the type of thing 
about which the President was concerned. (Book II, 392) 

While the meeting among Haldeman, Ehrlichman, Helms and Wal- 
ters was going on. Dean telephoned Gray and told him to expect a call 
from Walters. (Book II, 400) After the meeting, Walters told Gray 
that the FBI investigation should not be pursued into Mexico or 
beyond the five persons already in custody. (Book II, 402-04) Gray 
agreed to hold in abeyance the planned interview of Ogarrio, although 
he said the FBI would continue to try to locate and interview Dahl- 
berg. (Book II, 400-01) On June 23, 1972, Stans asked Dahlberg to 
fly from Minneapolis to Washington and they met later that day at 
the CRP offices. (Book II, 368, 406-07) 

On June 23, 1972, Walters determined that no CIA sources would be 
jeopardized by an FBI investigation in Mexico. (Book II, 410-11) 
On June 26, 1972, he so informed Dean, whom Ehrlichman had desig- 
nated as liaison to the White House. (Book II, 411-12) On June 27, 
1972, Helms notified Gray that the CIA had no interest in Ogarrio. 
(Book II, 447) Helms and Gray set up a meeting for the following 
day; Gray reported the meeting planned for June 28 to Dean. (Book 
II, 447, 453-54) In preparation for the meeting Helms had told the 
CIA employees who were to attend the meeting that the CIA still ad- 
hered to its request that the FBI not expand its investigation beyond 
those already arrested or directly under suspicion. (Book II, 459) On 
the morning of June 28, 1972, Ehrlichman telephoned Gray and in- 
structed him to cancel his meeting with Helms, saying only that 
the meeting was not necessary. (Book II, 454) Gray called Helms and 


7 On May 15, 1974, the House Judiciary Committee subpoenaed the tape recordings and 
other materials related to this and other conversations between the President and Haldeman 
on June 23, 1972. The President did not produce these recordings prior to the conclusion 
of the Committee’s inquiry. 

8 After the Committee voted on the recommended articles, the President released three 
edited transcripts of the June 23, 1972, conversations with Haldeman. Material from these 
transcripts appears at the end of this section. 



50 


cancelled the meeting and Helms reported that the CIA had no interest 
in Dahlberg. At Helms’ request Gray cancelled interviews of two CIA 
employees (Book II, 454, 459) who, in 1971, had furnished Hunt with 
information, with disguises and with alias identification cards in con- 
nection with his covert activities. (Book IT, 460-66) 

On June 28, 1972, Dean asked Walters whether the CIA could stop 
the FBI investigation at the five suspects already in custody. He 
pointed out that the FBI had leads to Dahlberg and Ogarrio. Walters 
said he could not think of a way the CIA could help the White House. 
( Book II, 440-41) On the evening of June 128, 1972, Dean called Gray 
and urged that, for reasons of national security, Ogarrio and Dahlberg 
not be interviewed. 

On June 28, 1972, Dean and Ehrlichman gave to Gray those contents 
of 1 1 lint's safe that had been withheld from FBI agents on the previous 
day, with the exception of two notebooks. (Book II. 506) 

On the morning of June 29, 1972, Gray retracted an order of the 
previous day to interview Ogarrio and instructed the FBI's Minne- 
apolis Field Division to make no further attempts to interview Dahl- 
berg, (Book 11,474-75) 


III 


K A LM1UC1 1 F l ■ NI>-Ii A ISING A SSI ON AIKXT 


These activities of ITaldeman, Ehrlichman, Dean, Helms, Walters 
and Gray impeded the FBI's Watergate investigation. In addition, 
there were other problems. The defendants were in jail and needed 
money for bail, for attorneys' fees and for other support. Mitchell de- 
cided CKP could not provide bail. ( Book III, 99) 1 Jean asked Walters 
if the CI A would pay bail and support money, and was told it would 
i lot . ( Book 1 1 , 46)6 ) 

On June 28, 1972, Ehrlichman and llaldcman agreed that Dean 
should direct Kalmbach, the President's personal attorney and a long- 
time high-level fundraiser for the President, to handle the raising of 
money for the Watergate defendants. (Book III, 149-56, 277-79; 
Book IV, 566; WIIT 496-96) That night, at Dean's request, Kalm- 
bach flew to Washington. (Book I IT. 152-54) The following morning 
he met with Dean and agreed to undertake the assignment. (Book HI, 
154-55 ; Kalmbach testimony, 6 II JC 565-67) On June 29, 1972, Kalm- 
bach obtained $75,000 in cash from Stans. On the following day, 
.Kalmbach delivered it to Anthony Ulasewiez, who had previously en- 
gaged in surveillance and other activities under Ehrlichnmu’s direc- 
tion. Ulasewiez was instructed to make clandestine payments; for the 
benefit of those who had participated in the break-in. (Book ITT, 167- 
60 ; Book VI I, 666—667 ; Kalmbach testimony, 6 HJC 568—41) 

IV 


Mitchell's Resignation As CEP Director 

As of June 60, 1972, the risks of further disclosure with respect to 
the connection between the White House or CEP and the break-in were 
contained, at least temporarily. Cash was in hand to be distributed to 



51 


the persons arrested; the cash found on the persons arrested had not 
yet been traced to CEP. By June 28, 1972, Gray had stopped the FBI’s 
efforts to trace the money found on those arrested. Neither Hunt nor 
Liddy had been charged with involvement in the break-in. 

On June 30, 1972, the President met with Haldeman and Mitchell 
to discuss Mitchell's resignation as Director of CEP. (Book II, 515- 
10) Mitchell had approved Liddy’ s intelligence activities. (Book I, 
110) Following Liddy’ s call to Magruder on the morning of June 
17, 1972 (Book II, 106), Mitchell had been kept fully informed of 
developments. At the time of this June 30, 1972 meeting, Haldeman 
knew of CEP and White House involvement in the political intelli- 
gence gathering program and in the Watergate break-in itself. Since 
October 7, 1971, Haldeman knew that “Operation Sand wedge”, 
which contemplated a “black bag” capability and electronic surveil- 
lance, was once under study by Attorney General Mitchell and John 
Dean. (Book VII, 1311-42. 1363-04) Haldeman knew that on Decem- 
ber 2, 1971, Operation Sandwedge had been scrapped, and that Liddy 
had been hired “instead” by CEP to handle political intelligence. 
(Political Matters Memorandum, 12/2/71, 3) Haldeman knew that, 
in February, 1972, Liddy had made two presentations to Mitchell, 
Magruder and Dean, and that Liddy’s plans had contemplated the 
use of electronic surveillance and illegal entries into such targeted 
facilities as the I)XC headquarters. (Book I, 06) At the end of March, 
1972, Haldeman knew that a sophisticated political intelligence gath- 
ering system with a budget of $300,000 had been approved by CEP. 
(Book I, 148) Haldeman knew that he had directed Liddy to change 
his “capabilities” from Muskie to McGovern. (Book 1, 192-93) Halde- 
man knew, shortly after the break-in, that McCord and Hunt had been 
involved in CEP’s intelligence gathering activities. (Book II, 130)' 
On June 18, 1972, Haldeman knew of the possibility that the money 
found on the five persons arrested in the I)NC offices was CEP money. 
(Book II, 126-27) On June 20, 1972, Haldeman knew that he had 
instructed his assistant Strachan to destroy documents. (Book II, 265) 
On June 23, 1972, Haldeman knew that the FBI had uncovered five 
checks totalling $114,000 and one bearing the names of Dahlberg and 
Ogarrio which had passed through the bank account of Watergate 
conspirator Bernard Barker. (Book II, 339^41) On June 23, 1972, 
Haldeman knew that he had instructed Walters to inform Gray that 
the FBI investigation should not be pursued into Mexico. On June 28, 
1972, Haldeman knew that lie and Ehrlicliman had approved Dean’s 
use of Kahnbacli to raise and covertly distribute cash for those in- 
volved in Watergate. (Book III, 149-53, 277-79 ; Book IV, 536 ; WIIT 
493-96) 

One of the subjects of the June 30, 1972, discussion among the 
President, Haldeman and Mitchell was Mitchell's resignation as head 
of CEP: 

Haldeman. Well, there maybe is another facet. The longer you wait the more 
risk each hour brings. You run the risk of more stuff, valid or invalid, surfacing 
on the Watergate caper — type of thing — 

Mitchell. You couldn’t possibly do it if you got into a — 

Haldeman. — the potential problem and then you are stuck — 

President. Yes, that’s the other thing, if something does come out, but we 
won’t — we hope nothing will. It may not. But there is always the risk. 



52 


IIaldeman. As of now there is no problem there. As, as of any moment in 
the future there is at least a potential problem. 

President. Well, I'd out the loss fast. I’d cut it fast. If we’re going to do it 
I'd out it fast. That’s my view, generally speaking. And I wouldn’t — and I don’t 
think, though, as a matter of fact, I don't think the story, if we, if you put 
it in human terms — I think the story is, you're positive rather than negative, 
because as I said as I was preparing to answer for this press conference, 1 
just wrote it out, as I usually do, one way— terribly sensitive [unintelligible], 
A hell of a lot of people will like that answer. They would. And it’d make 
anybody else who asked any other question on it look like a selfish son- 
of a bitch, which X thoroughly intended them to look like. 

:j: * * * * * 

Mitchell. [Unintelligible] Westchester Country Club with all the sympathy 
in the world. 

President. That's great. That’s great. 

Mitchell. [Unintelligible] don't lot — 

IIaldeman. You taking this route — people won’t expect you to — be a sunwise. 

President. Xo, if it's a surprise. Otherwise, you’re right. It will be tied right 
to Watergate. [Unintelligible] — tighter if you wait too long, till it simmers down. 

Halheman. You can’t if other stuff develops on Watergate. The problem is, 
it’s always potentially the same thing. 

President. Well if it does, don’t just hard-line. 

IIaldeman. [Unintelligible] That’s right. In oilier words, it’d be liard to 
hard-line Mitchell's departure under — 

President. That’s right. You can’t do it. I just want it to he handled in a way 
Martha’s not hurt. 

Mm uell. Yeah, okay. ( Hook II, 515-1(1) 

On July 1, 1972. Mitchell resigned as director of the President’s 
re-election campaign organization. Mitchell wrote to the President that 
he could no longer remain as campaign manager “and still meet the 
one obligation which must come first : the happiness and welfare of my 
wife and daughter. They have patiently put up with my long absences 
for some four years, and the moment has come when I must devote 
more time to them." As the President, had suggested on the previous 
day, the story was put in “human terms. 55 (Book IT, 514) 

However the story was put, all the prior circumstances since June 17, 
1972. provided substantial proof that President Nixon decided shortly 
after learning of the Watergate break-in that his subordinates should 
take action designed to delay, impede, and obstruct the investigation 
of the Watergate break-in, to cover-up, conceal and protect those re- 
sponsible, and to conceal the existence and scope of other unlawful 
covert activities. 


On August 5, 1974, President Nixon publicly released and delivered 
to the Committee on the Judiciary 9 a fter the Committee had concluded 
its vote, edited transcripts of three of his conversations of June 23, 
1972, with H. IT IIaldeman. At their morning meeting, the President 


0 On August 5, 1974, James St. Clair, Special Counsel to the President, wrote John Doar, 
Special Counsel to the Judiciary Committee, as follows : 

At the direction of the President, I am forwarding to you herewith transcripts of 
three additional recorded Presidential conversations between the President and if. K. 
IIaldeman on .Tune 22, 1972. for submission to the members of the Committee on the 
Judiciary as a supplement to the President's &uhmh#ion of Recorder} Presidential 
Conrcrxntionx dated April 20. 1974. 

These conversations first came to my attention a few days ago and I believe they 
are necessary to more accurately and completely describe the events involving the 
relationship between tile FBI Watergate investigation and the CIA in 1972 than 
has been previously furnished the Committee. 

Copies of the Transcripts were immediately distributed to each member of the 
Committee. 



53 


directed Haldeman to direct the CIA to impede the FBI investigation, 
which had begun to trace money in the possession of the burglars to 

II Now, on the investigation, you know the Democratic break-in tiling, we*re 
back in tlie problem area because the FBI is not under control, because Gray 
doesn't exactly know how, to control it and they have — their investigation is now 
leading into some productive areas — because they’ve been able to trace the 
money — not through the money itself — but through tlie bank sources — the banker. 
And, and it goes in some directions we don't want it to go. Ah, also there have 
been some things — like an informant came in off the street to tlie FBI in Miami 
who was a photographer or lias a friend who is a photographer who developed 
some films through this guy Barker and the films had pictures of Democratic 
National Committee letterhead documents and things. So it’s things like that 
that are filtering in. Mitchell came up with yesterday, and John Dean analyzed 
very carefully last night and concludes, concurs now with Mitchell’s recommenda- 
tion that the only way to solve this, and we're set up beautifully to do it, ah, in 
that and that — tlie only network that paid any attention to it last night was 
— they did a massive story on the Cuban thing. 

P That’s right. 

II That the way to handle this now is for us to have Walters call Pat Gray 
and just say, “Stay to hell out of this — this is ah, business here we don't want 
you to go any further on it." That's not an unusual development, and ah, that 
would take care of it. 

I* What about Pat Gray — you mean Pat Gray doesn't want to? 

II Pat does want to. lie doesn’t know how to, and lie doesn’t have . . . 
any basis for doing it. Given this, lie will then have the basis. He’ll call Mark 
Felt in . . . 

P Yeah. 

II He’ll call him and say, ‘‘We’ve got the signal from across the river to put 
the hold on this.” And that will fit rather well because the FBI agents who are 
working tlie case, at this point, feel that's what it is. . . . 

H And you seem to think the thing to do is get them to stop ? 

P Right, fine. (WHT, June 23, 1972, 10:01-11:39 a.m., 2-5) 

I lie President asked Haldeman if Mitchell knew in advance about 
the Watergate burglaries. Haldeman said lie thought so. The Presi- 
dent then asked, “Is it Liddy ?*’ (WHT, Jnune 23, 1972, 10 :04 to 11 :39 
a.m., 6) Since Haldeman had not mentioned Liddy and since the 
President had said he did not learn of the Fielding break-in (in which 
Liddy was involved) until March 17 of the following year, the question 
clearly indicates that the President must have known about Liddy be- 
fore the conversation of June 2f3, 1972. 

The President told Haldeman what to say to the CIA officials. He 
said to tell them that it involved Hunt and that it would be detrimen- 
tal for them to go further. 

In the early afternoon, the President repeated his instructions to 
Haldeman to have tlie CIA limit the investigation because Hunt knew 
too much. 

P O.K., just postpone (scratching noises) (unintelligible) Just say (unintelli- 
gible) very bad to have this fellow Hunt, ah, he knows too damned much, if lie 
was involved— you happen to know that? If it gets out that this is all involved, 
tlie Cuban thing it would be a fiasco. It would make the CIA look bad, it’s going 
to make Hunt look bad, and it is likely to blow the whole Bay of Pigs thing which 
we think would be very unfortunate — both for CIA, and for the country, at this 
time, and for American foreign policy. Just tell him to lay off. Don’t you? (WHT, 
June 23, 1972, 1 :04-l :13 p.m., 1) 

At 2:20 p.m. Haldeman reported to the President that Gray had 
suspicions that the break-in might be a CIA operation; that Walters 



54 


“was very happy to be helpful” in limiting* the FBI investigations; 
and that Walters would call Gray about it. 

H ... He [Walters] said, lie said we'll be very happy to be lielx>ful [unin- 
telligible] handle anything you want. I would like to know the reason for 
lining helpful, and I made it clear to him he wasn't going to get explicit [unin- 
telligible] generality, and he said line. And Walters [unintelligible]. Walters 
is going to make a call to Gray. That’s the way we put it and that’s the way it 
was left. (WI1T. June 23, 1072, 2:20-2:45 p.rn., 2-3) 

The President, on June 23, 1973, thus accepted Mitchell's recom- 
mendation, delivered by llaldeman, that the FBI investigation into 
Watergate be limited by a false claim of CIA involvement. 

The President directed Haldeman to set this part of the eoverup in 
motion, on the President's behalf : 

P ... I'm not going to get that involved. I’m Lunin telligble]. 

H No, sir, we don’t want you to. 

P You call them in. ( WHT, June 23, 1972, 10 :04-ll :39 a.m., 7) 



CONTAINMENT— JULY 1, 1972, TO ELECTION 

I 

Presidential Plan for Containment 

From late June, 1972, until after the Presidential election in Novem- 
ber, President Nixon through his close subordinates engaged in a plan 
of containment and concealment which prevented disclosures that 
might have resulted in the indictment of high CEP and White House 
officials; that might have exposed Hunt and Liddy’s prior illegal cov- 
ert activities for the White House ; and that might have put the out- 
come of the November election in jeopardy. Two of the President’s 
men, John Dean, Counsel to the President, a subordinate, and Herbert 
Kalmbach, personal attorney to the President, an agent, who had been 
assigned to carry out the cover-up, carried out their assignment. They 
did so with the full support of the power and authority of the Presi- 
dent of the United States. 

Tape recordings of Presidential conversations in the possession of 
the Committee establish that implementation of the plan prior to the 
election had the full approval of the President. On June 30, 1972, 
the President told Ilaldeman and Mitchell that there was a risk of 
further Watergate disclosures and that his desire was to “cut the loss.” 
Ilaldeman said, “As of now there is no problem there”; but, “As, as of 
any moment in the future, there is, there is at least a potential prob- 
lem.” (Book II, 514) On September 15, 1972, after Dean had said that 
he could conceive of all kinds of unfortunate complications (Dean’s 
term was “you can spin out horribles”), the President told him and 
Haldeman, “You really can’t just sit and worry yourself about it all 
the time (thinking the worst may happen) . . . you just try to button it 
up as w T ell as you can and hope for the best.” (HJCT 13-14) On the 
morning of March 21, 1973, Dean told the President regarding his in- 
vestigation after the break-in, “I was under pretty clear instructions 
[laughs] not to really to investigate this, that this was something that 
just could have been disastrous on the election if it had — all hell had 
broken loose, and I worked on a theory of containment.” The President 
replied, “Sure.” (HJCT 88) During the same conversation, Dean said 
of the cover-up, “We were able to hold it for a long time.” The Presi- 
dent’s reply was, “Yeah, I know.” (HJCT 101-02) Dean said that some 
bad judgments, some necessary judgments had been made before the 
election, but that at the time, in view of the election, there was no 
way. 

The President said, “We’re all in on it.” 1 (HJCT 104) The Presi- 


1 The words “We’re all in on It” do not appear in the edited White House transcript 
VHT 207) 

( 55 ) 



56 


dent told Dean, “[Y]ou had the right plan, let me say, I have no 
doubts about the right plan before the election. 2 And you handled it 
just right. You contained it. Now after the election we ve got to have 
another plan, because we can’t have, for four years, we can t have 
this thing — you’re going to be eaten away. We can’t do it.” (HJCT 
129-30) On the evening of March 21, 1973, the President told Colson 
that Dean was only doing what he had to do, what anyone would have 
done under the circumstances. (Colson testimony, 3 II JC 334) And on 
March 22, 197B, the President told Mitchell, “the whole theory has 
been containment, as you know, John.” (HJCT 183) 3 

Much of the evidence for the period July 1, 1972 to March 21, 1973 
concerns actions by the President s subordinates and agents. Of neces- 
sity, every President must rely on subordinates to carry out his 
instructions. 

Whether or not the President knew about the details of the means 
used by his subordinates to carry out the cover up, evidence of these 
actions was relevant in determining the degree to which the President 
was responsible for them. The issue, whether his subordinates and 
agents were acting in accordance with his plan and on his behalf, 
generally turn in large part on circumstantial evidence. Since conceal- 
ment, duplicity, dissembling and secrecy are fundamental elements of 
a successful cover-up of illegal activity, this is a case in part of circum- 
stantial evidence. It is common that offenses of this type must be proved 
in this way. 

As the cover up continued, more and more direct evidence accumu- 
lated to establish the President either actually knew what his men 
were doing, or ratified or condoned their actions. 

II 

Implementation of Containment Plan 

Beginning in June, Kalmbach secured the funds required for pay- 
ments to the Watergate defendants. The cash was paid clandestinely. 
By the middle of September, when lie withdrew from any further as- 
signment relating to making payments to the defendants, Kalmbach 
had delivered approximately $190,000 in cash to the defendants or 
their attorneys. (Book III, 378-79, 381 ; Kalmbach testimony, 3 HJC 
557-58) Dean or LaRue consulted with Kalmbach on each of the de- 
liveries. (Book III, 229; Kalmbach testimony, 3 HJC 542) Dean re- 
ported the payments to Haldeman and Elirlichman. (Book III, 202) 
During the latter part of July, Kalmbach, who had been requested to 
seek sources of funds outside CEP, became concerned about the se- 
crecy of the activity. Kalmbach sought and obtained assurances from 
Elirlichman that Dean had the authority to pursue the payments 
project and that it was vital for Kalmbach to continue working on it. 
(Kalmbach testimony, 3 HJC 547—19; Book III, 268-09, 277^ 

Investigations by federal agencies were hampered by the President’s 
key political associates. In June, 1972, Elirlichman assigned Dean to 


3 In the edited White House transcript, the President said “. . . And then, once you 
decide on the right plan, you sav, ‘John,’ you say, ‘no doubts about the right plan before the 
election. You handled It right. You contained it.’ ” Instead of the above quoted material. 
(\YHT ^4S) 

3 This" material does not appear in the edited White House transcript. (WHT 810) 



57 


monitor the FBI investigation for the White House. (Book II, 314-15 ; 
Dean testimony, 2 HJC 226-27) Dean obtained reports on the results 
of the FBI investigation and tried to enlist the CI'A to narrow the 
scope of the FBI investigation. (Book II, 315, 302-95) Dean regu- 
larly obtained information from Gray and from FBI reports, which 
he showed to CEP officials and attorneys. (Book II, 558 ; O'Brien testi- 
mony, 1 HJC 167) He sat in on several FBI interviews of White 
House personnel — a procedure that Ehrlichman arranged with Gray. 
(Book II, 314-15) Thus, Dean was able to anticipate the leads the 
FBI would follow and coach those persons who had knowledge of the 
facts within CEP and the White House. (Book II, 484) Instead of 
having White House staff members Colson, Krogh, Young, Chapin 
and Strachan appear before the Watergate Grand Jury, Dean ar- 
ranged with Assistant Attorney General Petersen to have their depo- 
sitions taken outside the presence of the Grand Jury. (Book II, 565) 
On July 5, 1072, when Mitchell was interviewed by the FBI, he falsely 
denied knowledge of any information related to the break-in. Mitchell 
had been told by Mardian and LaEue of Biddy's involvement in the 
break-in, but he has testified that lie was not, under any circumstances, 
volunteering information. (Book III, 240) 

On July 10 and 20, 1072, Porter and Magruder falsely told FBI 
agents that the funds obtained by Biddy from CEP were for legal in- 
telligence gathering activities. (Book III, 242-43, 247-48) At the 
Senate Select Committee on Presidential Campaign Activities (SSC) 
hearings, Porter testified that when Magruder asked him to lie to pre- 
vent embarrassment to the President, Haldeman and Mitchell, Ma- 
gruder said that Porter’s name had come up as a person who could be 
counted on. (Book III, 160) On August 10, 1072, Porter testified 
falsely before the Watergate Grand Jury as to the purpose for which 
CEP funds were disbursed to Biddy. (Book III, 203, 206) On August 
18, 1972, Magruder, after rehearsing with Dean his false story about 
the Biddy money, testified falsely before the Watergate Grand Jury. 
(Book III, 300) On or about August 28, 1972, Krogh, Ehrlichman’s 
assistant who had been a co-director of the Plumbers unit, testified 
falsely before the Watergate Grand Jury as to prior activities of Biddy 
and Hunt, (Book III, 312-15, 322-23, 324-25) He said that the only 
travel Hunt had ever done for the White House was a trip to Texas 
and that the only reason Liddy had ever traveled to California was to 
contact customs officials. Krogh knew T that Hunt and Liddy had, in 
fact, traveled to California to break into Dr. Fielding’s office. (Book 
VII, 1310-12) On September 12 or 13, 1972, Magruder met with 
Mitchell and Dean to plan a false story regarding the meetings among 
Mitchell, Magruder, Dean and Biddy in early 1972, in which political 
intelligence and electronic surveillance were discussed; Magruder 
thereafter testified falsely about the meetings before the Watergate 
Grand Jury. He said that one of the meetings listed in his calendar 
had been cancelled and that the purpose of the other was to discuss 
Biddy’s duties as General Counsel. (Book III, 344, 351-52) 

The President decided that former Commerce Secretary, then Chair- 
man of FCEP, Maurice Stans should not appear personally before 
the Grand Jury. He assigned Ehrlichman to see that Stans need not 
appear. (Book II, 567) In July, 1972, Stans asked Dean to make 
arrangements with Henry Petersen to have his deposition taken out- 



58 


side of the Grand Jury. Dean and then Ehrlich man contacted Peter- 
sen. Petersen insisted that Stans testify before the Grand Jury. 
Finally, Ehrlieliman telephoned Kleindienst. Petersen subsequently 
agreed to take Stans’ deposition in his office, in lieu of a scheduled 
(fraud Jury appearance, (Book IT. 565, 567-60, 571) in spite of the 
fact that Kleindienst told Ehrlieliman that Ehrlieliman was lucky 
Petersen had not filed an obstruction of justice complaint. (Book IT, 
561-65) 

111 

Guay's War sting 

Shortly after July 1, 1972, the FBI had a break in the case. Alfred 
Baldwin, a GBP employee recruited by McCord, had monitored the 
intercepted conversations at the DNC. At the time of the break-in 
Baldwin was across the street from Watergate at the I Toward Johnson 
Motel, lie was not arrested. On July 5, Baldwin stopped forward and 
identified Hunt as one of the Watergate burglars. (Baldwin testi- 
mony, 1 SSO 389-90) 

On the morning; of July 6, 1972, Gray met with Walters. (Book II, 
520) The two men discussed the danger to the President from the 
efforts by his White. House staff to suppress the FBI investigation and 
interfere* with the CIA. They discussed the need to raise the matter 
-with the President. (Book H, 526-27, 528-29, 551) After Walters 
left, Gray called (Mark MacGregor, the new chairman of CEI\ who 
was with the Presidential party in California. (Book II, 551; Gray 
testimony, 9 880 3462) 

Gray told MacGregor that both he and Walters were concerned 
about the misuse* of the CIA and FBI by White House* staff members. 
Gray asked MacGregor to inform the Presielent that the FBI and 
01 A had been injured by the conduct e>f members of the White House 
staff anel that the same persons were hurting the President. 4 

Thirty-seven minutes after Gray's conversation with MacGregor, 
Gray received a telephone call from the President. (Book II, 524, 
544) The President began the conversation by saying how pleased 
he was with the way the FBI had handled an attempted skyjacking 
in 8an Francisco. (Book II, 550) Gray thanked the President. The 
President, did not raise the subject of Watergate, nor the serious 
allegation Gray had just made to MacGregor. Gray then warned 
the President that both lie and General Walters thought people on 
the President’s staff were trying to “mortally wound'’ the President 
by manipulation of the FBI and OJA; Gray told the President that 
lie had just spoken to MacGregor and “asked him to speak to you 
about this.’ 1 In response to Gray's warnings the President said only: 
“Pat, you just continue to conduct your aggressive and thorough in- 
vestigation.” 5 The President: asked no questions about what facts 


4 MacGregor has testified that Gray called him on the night of July 5, 1972, but that Gray 
did not give him any message to pass to the President or discuss interference with the FBI’s 
Watergate investigation. (Book II, 533-34) Oji the other hand, Fhrlichmaii testified that 
the President mentioned to him that MacGregor hail received a telephone call from Gray, 
had told the President about it and that the President had immediately called Gray. (Book 
II, 54H) 

5 The President has stated that Gray warned that the matter of Watergate might lead 
higher. (Book II, 550, 553) 



59 


Gray had to support his serious charges; the President asked for no 
names. There is no evidence that the President pursued the matter. 
(Book II, 552-53 ; Gray testimony, 9 SSC 3462) 

On July 8, 1972, two days after the President’s telephone conversa- 
tion with Gray, Elirlichman and the President, while walking on a 
beach at San Clemente, discussed the possibility of clemency for the 
Watergate defendants. Elirlichman has said that he told the President 
that ‘‘presidential pardons or something of that kind would inevitably 
be a question that lie would have to confront by reason of the political 
aspect of this.” (Book III, 182-83) The President’s response, accord- 
ing to Elirlichman and to the President’s public statement, ivas that no 
one in the White House should “get into this whole area of clemency 
w ith anybody involved in this case and surely not make any assurances 
to anyone.” (Book III, 189) At the time of this conversation, Ehrlich - 
man knew that Liddy and Hunt and two of the Cubans arrested at the 
Watergate had been involved in the break-in of Ellsberg’s psychia- 
trist’s office. The President has said that he did not learn of that 
break-in until more than eight months later, on March 17, 1973. 
(“Presidential Statements,” 8/15/73, 42) 

IV 

Presidential Statement of August 29, 1972 

In August, 1972, the President discussed with Elirlichman the is- 
suance of public statements on Watergate. (Book II, 588) At that 
time Elirlichman knew the details of CUP and White House involve- 
ment in the Watergate break-in (Book II, 152—53) ; Erhlichman and 
Dean had concealed certain of the contents of Hunt’s safe outside 
the normal channels of the law- by delivering them personally to Acting 
1BI Director Gray with instructions that they never see the light of 
day. (Book IT, 503) Elirlichman had agreed to the use of Kalmbach to 
make secret payments to the defendants. Elirlichman knew 7 of the 
actual payments to the defendants. (Book III, 150-51, 269) And 
Elirlichman knew of the President’s instructions to use the CIA to 
narrow 7 and thwart the FBI investigation. (Book II, 382-84) 

On August- 29, 1972, the President held a news conference. He dis- 
cussed various pending investigative proceedings in connection w 7 ith 
Watergate — including those of the FBI, the Department of Jus- 
tice, the House Banking and Currency Committee and the GAO — in 
suggesting that the appointment of a special prosecutor would serve 
no useful purpose. He said : 

In addition to that, within our own staff, under my direction, Counsel to the 
President, Mr. Dean has conducted a complete investigation of all leads which 
might involve any present members of the White House Staff or anybody in the 
Government. I can say categorically that his investigation indicates that no one 
in the White House Staff, no one in this Administration, presently employed, was 
involved in this very bizarre incident. 

With respect to the involvement of CRP, the President said, 

Before Mr. Mitchell left as campaign chairman he had employed a very good 
law firm with investigatory experience to look into this matter. Mr. MacGregor 



60 


has continued that investigation and is continuing it. now. I will say in that re- 
spect that anyone on the campaign committee, Mr. MacGregor has assured me, 
who does not cooperate with the investigation . . . will he discharged imme- 
diately. (Book II, 589) 

AVitli respect, to his efforts, and those of his aides in the investigation, 
the President said : 

I think under these circumstances we are doing everything we can to take 
this incident and to investigate it and not to cover it up. What really hurts in 
matters of this sort is not the fact that they occur, because overzealous people 
in campaigns do things that are wrong. What really hurts is if you try to cover 
It up. I would say that here we are, with control of the agencies of the Govern- 
ment and presumably with control of the investigatory agencies of the Govern- 
ment with the exception of the GAO, which is independent. We have cooperated 
completely. We have indicated that we want all the facts brought out and that 
as far as any people who are guilty are concerned, they should he prosecuted. 
(“Presidential Statements," 8/20/72. 3) 

In fact, Dean had conducted no investigation. He had been acting 
to narrow and frustrate, investigation by the FBI. He had reached no 
conclusion that no one. in the White House had been involved in Water- 
gate. He bad made no report of such an investigation. (Book II, 590- 
91 ) MacGregor had received only periodic briefings on matters related 
to Watergate. Their primary purpose was not to report on GRP in- 
volvement in the break-in, but to determine CRP’s status in the pend- 
ing civil suits initiated by the DNG. MacGregor has denied that lie ever 
gave assurance to the President that anyone who did not cooperate 
with the investigation would be discharged. (MacGregor testimony, 12 
SSO 4924) 

The President and his staff had not “cooperated completely" with 
the investigatory agencies. The evidence, rather, shows clearly and 
convincingly that the President and his closest aides acted to obstruct 
and impede the investigations. 

The President's statements on August 29 themselves were designed 
to delay, impede and obstruct the investigation of the Watergate, 
break-in; to cover-up, conceal, and protect those responsible and to 
conceal the existence and scope of other unlawful covert activities. 

V 

September 15, 1972 Meeting 

Oil September 15, 1972, Liddy, Hunt and the five persons arrested in 
the DNG Watergate offices on June 17 were. indicted for burglary, un- 
lawful entry for the purpose of intercepting oral and wire communi- 
cations, and conspiracy, all felonies. No other GRP or White House 
officials were charged with or named as having been involved in the 
break-in. (Book III, 360-61) 

On that same day, John Dean was summoned to see the President. 
(Dean testimony, 2 II JC 228) Prior to this meeting Dean had been in 
the President’s presence only three times that year: for three minutes 
on April 13, 1972 when the President signed his tax return, for five 
minutes on May 1, 1972 when photos were taken in the Rose Garden 
for National Secretaries Week, and for twenty-three minutes on 
August 14, 1972 when the President and Mrs. Nixon executed legal 
documents. (Book III, 598-99) 



61 


At the time of this conversation, it is undisputed that the President 
knew, and had known since a few days after the break-in, that Howard 
Hunt’s name had “surfaced” in connection with Watergate and that 
Hunt had previously been a member of the White House Special 
Investigations Unit. (“Presidential Statements,” 5/22/73, 24) The 
President had discussed Watergate with Haldeman and Mitchell, who 
were fully apprised of CRP and White House connections with the 
Watergate break-in. The President refused to comply with sub- 
poenas from the Committee requiring tape recordings of six conversa- 
tions between the President and Haldeman or Colson on June 20; it 
is undisputed that on June 20 he had instructed Haldeman to be on 
the attack for diversion. (Book II, 246) On June 20 lie had been told 
by Mitchell with reference to Watergate that Mitchell regretted not 
keeping better control over the men. (Book II, 310) On June 23 he 
had instructed Haldeman to direct the CIA to request the FBI to cur- 
tail its investigation of the break-in. (WHT, June 23, 1072, 10:04- 
11:30 a.m., 3-7, 16-17) He had arranged, authorized and publicly 
advanced the misleading explanation for Mitchell’s resignation from 
CRP on June 30. (Book II, 514-16) On July 6 he had received Gray’s 
warning of White House interference with the FBI's Watergate 
investigation. (Book IT, 524, 551-53) On July 8, more than two 
months before the return of indictments of Hunt and Liddy and 
six months before the trial, he had discussed executive clemency with 
Elirlichman. (Book III, 182-83) He had arranged for Stans to testify 
before the prosecutors rather than the Grand Jury. (Book II, 567) On 
August- 20 he had made an untrue public statement about Dean's 
“complete investigation” of the Watergate matter. (Book II, 589) 
These facts about the extent of the President’s knowledge at the time 
of his September 15, 1972 meeting with Dean are undisputed. 

Prior to Dean’s arrival at the September 15, 1972 meeting, Halde- 
man told the President that Dean was “one of the quiet guys that 
gets a lot done,” the type of person who “enables other iieople to gain 
ground while he’s making sure that you don’t fall through the holes.” 
Haldeman continued, “Between times, lie’s doing, lie’s moving ruth- 
lessly on the investigation of McGovern xieople, Kennedy stuff, and 
all that too.” (HJCT 1) When Dean entered the room, the President 
asked him about the events of the day : 

President. Well, you had quite a day today, didn’t you? You got, uh, Water- 
gate, uh, on, the, way, huh? 

Dean. Quite a three months . 6 

Haldeman. How did it all end up? 

Dean. Uh, I think we can say “Well” at this point. The, uh, the press is play- 
ing it just as we expect. 

Haldeman. Whitewash? 

Dean. No, not yet; the, the story right now — 

President. It’s a big story. 

Dean. Yeah. 

President. [Unintelligible] 

Haldeman. Five indicted — 

Dean. Plus, 

Haldeman. They’re building up the fact that one of — 

Dean, plus two White House aides. 


6 In the edited White House transcript the words “We tried” appear instead of “Quite 
a three months.” (WHT 55) 



62 


Haldeman. Plus, plus the White House former guy and all that. That’s good. 
That, that takes the edge off whitewash really — which — that was the thing 
Mitchell kept saying that, 

President. Yeah. 

IIaldeman. that to those in the country, Liddy and, uli, Hunt are big men. 

1 ) e an . T ha t \s r i ght . 

President. Yeah. They’re White House aides. 7 (HJOT 2) 

Tins President asked liow MacGregor handled himself. Dean re- 
sponded that MacGregor had made a good statement about the Grand 
Jury indictment, and he had said it was time to realize that some 
apologies may be due. (HJCT 2) The President replied, “[J]ust- 
remember all the trouble they gave us on this. We’ll have a chance to 
get back at them one day.’" (ITJCT 3) 

Then the President, his Chief of Staff, and his Counsel talked about 
the pending civil litigation regarding the Watergate break-in, includ- 
ing Stans’ libel action. Dean explained that the federal prosecutor of 
the Watergate defendants said that the civil cases made it difficult to 
draw criminal indictments because the prosecutors did not want to 
come out with indictments when civil cases tended to approach matters 
differently. (HJCT 6) 

In the course of the September 15 meeting, the President talked 
briefly on the telephone with Clark MacGregor, telling him that 
Watergate “is just, uh, you know, one of those side issues and a month 
later everybody looks back and wonders what the hell the shouting 
was about.” (HJCT 7) Then the conversation returned to the indict- 
ments handed down that day : 

Dean. Three months ago I would have had trouble predicting where we’d be 
today. I think that I can say that fifty-four days from now that, uh, not a thing 
will come crashing down to our, our surprise. 

* * * * * * * 

President. Well, the whole thing is a can of worms. As you know, a lot of this 
stuff went on. And, uh, and, uh, and the people who worked [unintelligible] 
awfully embarrassing. And, uh, and, the, uh, hut the, hut the way you, you’ve 
handled it, it seems to me, lias been very skillful, because you — putting your 
fingers in the dikes every time that leaks have sprung here and sprung there. 
[Unintelligible] having people straighten the [unintelligible]. The Grand Jury 
is dismissed now? (HJCT 7) 

Dean spoke of problems that might lie ahead, remarking that some 
bitterness and internal dissension existed in CRP. (HJCT 9) The 
President stated : 

President. They should just, uh, just behave and, and, recognize this, this is, 
again, this is war. We’re getting a few shots and it’ll he over. And, we'll give 
them a few shots. It’ll be over. Don’t, worry [Unintelligible] I wouldn’t want to 
be on the other side right now. Would you? (HJCT 9) 

In a discussion on ways to get even with those who had made an issue 
of Watergate, the President said, “I want the most, I want the most 
comprehensive notes on all of those that have tried to do us in. Because 
they didn’t have to do it .... I mean if . . . they had a very close 
election everybody on the other side would understand this game. But 
now they are doing this quite deliberately and they are asking for it 
and they are going to get it.” (HJCT 10) 


7 The words “Yeali. They’re White House aides.” do not appear in the edited White House 
transcript. (WHT 55) 



63 


Dean then turned to the Patman (House Banking and Currency 
Committee) hearings. He identified the hearings as another potential 
problem “now that the indictments are down.” He was uncertain of 
success in “turning that off.” (HJCT 11) The conversation continued : 

Dean. . . . We’ve got a plan whereby Rothblatt and Bittman, who are counsel 
for the five men who were, or actually a total of seven, that were indicted today, 
are going to go lip and visit every member and say, “If you commence hearings 
you are going to jeopardize the civil rights of these individuals in the worst way, 
and they’ll never get a fair trial,” and the like, and try to talk to members on, 
on that level. Uli — 

President. Why not ask that they request to be heard by, by the Committee 
and explain it publicly? 

Dean. How could they — They've planned that what they’re going to say is, “If 
you do commence with these hearings, we plan to publicly come up and say what 
you’re doing to the rights of individuals.” Something to that effect. 

President. As a matter of fact they could even make a motion in court to get 
the thing dismissed. 

And the discussion of the “plan” involving Rothblatt and Bittman, 
counsel for the Watergate burglars, continued further: 

Haldeman. Well, going the other way, the dismissal of the, of the, of the in- 
dictment — 8 

President. How about trying to get the criminal cases, criminal charges dis- 
missed on the grounds that there, well, you know — 

Haldeman. The civil rights type stuff. (HJCT 11-12) 

Dean said that he was having civil rights groups contacted for the pur- 
pose of putting pressure on Patman and suggested that Stans see Con- 
gressman Ford and brief him on Stans’ difficulties with the law suits. 
They could also look at the campaign spending reports of every mem- 
ber of the Patman Committee. (HJCT 12-13) 

The three men spoke of how to influence the minority members of 
the Committee to oppose the hearings. Both Secretary Connally and 
Congressman Gerald Ford were mentioned as liaison people. (HJCT 
12-13) The President continued to stress the importance of cutting 
off the Patman hearings, which Dean said was a forum over which 
they would hav e the least control. 

President. Gerry has really got to lead on this. He’s got to be really be [unin- 
telligible] 

Haldeman. Gerry should, damn it. This is exactly the thing he was talking 
about, that the reason they are staying in is so that they can 

President. That’s right. 

Haldeman. run investigations. 

President. Well, the point is that they ought to raise hell about this, uh, 
this — these hearings are jeopardizing the — I don’t know that they’re, that the, 
the. counsel calling on the members of the Committee will do much good. I was, 
I — it may be all right but — I was thinking that they really ought to blunderbuss 
in the public arena. It ought to be publicized. 

Dean. Right. 

Haldeman. Good. 

Dean. Right. 

President. That’s what this is, public relations. 

Dean. That’s, that’s all it is, particularly if Patman pulls the strings off, uh — 0 
That’s the last forum that, uh, uh, it looks like it could be a problem where you 
just have the least control the w 7 ay it stands right now. Kennedy has also sug- 
gested he may call hearings of his Administrative Practices and Procedure Sub- 


a This passage does not appear in the edited White House transcript. (WHT 68) 

9 The passage beginning “It ought to be publicized . . and ending , . if Patman 
pulls the strings off, uh . . does not appear in the edited White House transcript. (WHT 
69) 


37-777 0 - 74 -5 



64 


committee. Uli, as, as this case lias been all along, you can spin out horribles that, 
uli, you, you can conceive of, and so we just don’t do that. I stopped doing that 
about, uh, two months ago. 

President. Yeah. 

Dean. We just take one at a time and you deal with it based on— 

President. And you really can’t just sit and worry yourself 

Dean. No. 

President, about it all the time, thinking, “The worst may happen,” but it may 
not. So you just try to button it up as well as you can and hope for the best. 
And, 

Dean. Well if Bob — 

President, and remember that basically the damn thing is just one of those 
unfortunate things and, we’re trying to cut our losses. 

Dean. Well, certainly that’s right and certainly it had no effect on you. That’s 
the, the good thing. 

Haldeman It really hasn’t. 

President. [Unintelligible.] 

Haldeman. No, it hasn’t. It has been kept away from the White House almost 
completely 10 and from the President totally. The only tie to the White House has 
been the Colson effort they keep trying to haul in. (HJCT 13-14) 

There is no evidence to suggest that any member of the Patman Com- 
mittee knew or should have known that the President was attempting 
to interfere with this congressional investigation. But that is not the 
point. The point is that the President attempted to block the investi- 
gation in order to avoid the risk of disclosure of who was responsible 
for the Watergate break-ins, illegal campaign contributions, unlawful 
use of campaign funds, and the illegal prior White House activities of 
Hunt and Liddy. 

The President elaborated on how the plan must be carried out. He 
explained that a Congressman had to know that it came from the top 
but, that the President could not talk to him himself. (IIJCT 15-16) 

President. I think maybe that’s the thing to do [unintelligible]. This is, this 
is big, big play. I’m getting into this thing. 11 So that he— he’s got to know that 
it comes from the top. 

Haldeman. Yeah. 

President. That’s what lie’s got to know, 

Dean. Right. 

President, and if he [unintelligible] and we’re not going to— I can’t talk to 
him myself — and that he’s got to get at this and screw this thing up while he 
can, right? 

Dean. Well, if we let that slide up there with the Patman Committee 12 it’d be 
just, you know, just a tragedy to let Patman 13 have a field day up there. 

President. What’s the first move? When does he call his wit — , witnesses? 
(HJCT 16) 

Dean also reported that Congressman Garry Brown had written a 
letter to Kleindienst saving that the Committee hearings w ere going 
to jeopardize the criminal cases against the Watergate defendants. 
The President approved of this. Dean told the President, “we can keep 
them well briefed on the moves if they’ll, if they’ll move when we pro- 
vide them with the strategy.” (HJCT 16) Dean reported that they 
would use the Stans libel suit and the abuse of process suit to take 
depositions of DNC officials. 


10 The words “almost completely” do not appear in the edited White House transcript. 
(WHT 70) 

11 The words “I’m getting into this thing.” do not appear in the edited White House 
transcript. (WHT 72) 

13 The words “with the Patman Committee” do not appear In the edited White House 
transcript. (WHT 72) 

13 In the edited White House transcript “Them” appears Instead of “Patman.” (WHT 72) 



65 


Haldeman. We can take depositions on both of those? 

Dean. Absolutely. 

President. Hell yes. 

Haldeman. [Laughs] (HJCT 18) 

After the September 15, 1972 meeting, and a consultation with 
Haldeman, Dean took the necessary steps to implement the President’s 
decision to stop the Patman hearings. (Dean testimony, 3 SSC 960-62) 
He contacted Assistant Attorney General Henry Petersen and urged 
Petersen to respond to Congressman Brown’s letter of September 8, 
1972 to Kleindienst. Petersen wrote to Chairman Patman and stated 
that the proposed hearings could prejudice the rights of the seven 
Watergate defendants. (Dean testimony, 3 SSC 961, 1194D99) On 
October 2, 1972, the same day the Petersen letter was sent to the Com- 
mittee, the Committee released the names of the persons it expected 
to call to testify during its hearings. The list included the names of 
Magruder, Sloan, Caulfield, Mitchell, Stans, Dean, Mardian, LaRue, 
Porter and MacGregor. (Dean testimony, 3 SSC 961, 1190-93) The 
next day, the House Committee on Banking and Currency voted 20 
to 15 to withhold from its Chairman, Congressman Wright Patman, 
the power to issue subpoenas for the purpose of investigating the 
financing of the Watergate break-in. (Dean testimony, 3 SSC 962) 
Unknown to the Congress, the efforts of the President, through Dean, 
his counsel, had effectively cut off the investigation. 

All of this was part of the President’s plan to delay, impede, and 
obstruct the investigation of the Watergate break-in, to cover up, 
conceal and protect those responsible, and to conceal the existence and 
scope of other unlawful covert activities. Through the election the 
plan worked, but then it faced new threats, one of which was Hunt’s 
demands for money. Although a program of payments had commenced 
shortly after the break-in, Hunt’s demands escalated as his trial 
approached. 



PAYMENTS 

I 

Payments Prior to Election 

Before the Watergate break-in, Gordon Liddy liad given Howard 
Hunt $10,000 to use in case of need. Hunt had placed the money in a 
safe in his EOB office. Immediately after the arrests at the Watergate, 
Hunt went to his office and withdrew the money. In the early morning 
hours following the break-in, Hunt delivered the money on behalf of 
those arrested to Douglas Caddy, an attorney who had agreed to rep- 
resent the Watergate defendants. (Book II, 76-77) 

On June 20 or 21, 1972, Liddy told LaRue and Mardian that prom- 
ises of bail money, support and legal assistance had been made to the 
defendants, and that Hunt felt it was CEP’s obligation to provide 
bail money to get the five men out of jail. Liddy also told LaRue and 
Mardian of his and Hunt’s prior involvement in the Fielding break-in, 
and of Hunt’s interview with Dita Beard, in the ITT matter. (LaRue 
testimony, 1 HJC 197; Book III, 91, 93-95) Mardian and LaRue re- 
ported to Mitchell on Liddy ’s request for money. (Book III, 98-99; 
Mitchell testimony, 4 SSC 1673) They also transmitted to Mitchell 
Liddy’s statement that he, Hunt and two of those arrested had also 
participated in the Fielding break-in. (Book III, 98-99, 102) Mitchell 
told Mardian that no bail money would be forthcoming. (Book III, 99) 
Between June 26 and 28, 1972, after discussions with Mitchell and 
Ehrlichman, Dean met twice with CIA Deputy Director Walters, to 
ask that the CIA provide bail and salaries for the arrested men. 
Walters rejected this request. (Book III, 125, 137-38) 

On June 28, 1972, Haldeman and Ehrlichman directed Dean to 
contact Herbert Kalmbaeli, President Nixon’s personal attorney and 
political fundraiser, to ask Kalmbach to raise funds for the Watergate 
defendants. (Book III, 149, 152; WHT 494-96) Kalmbach flew to 
Washington that night; the following morning he met with Dean 
(Book III, 152, 154-55) and LaRue (Book III, 176-77, 179-80) to dis- 
cuss procedures for making payments. Kalmbach thereafter trans- 
ferred to Anthony Ulasewicz campaign donations he had received in 
cash from CRP officials, Stans (Book III, 167) and LaRue, (Book III, 
257-58) and from a private contributor. Kalmbach had told the 
private contributor that he -could not reveal the use intended for the 
contribution. (Book III, 282-83, 286-87) 

Between July 7, 1972 and September 19, 1972, Kalmbach directed 
Ulasewicz to make payments totalling $187,500 for the Watergate de- 
fendants. (Book III, 208-17, 259-60, 284-85, 378-79) Ulasewicz made 
the deliveries by sealing cash in unmarked envelopes and leaving the 
envelopes at various drops such as airport lockers. (Book III, 222- 
28) In communicating with each other, Ulasewicz, Kalmbach, LaRue 

( 66 ) 



67 


and the recipients of the payments used aliases. (Rook III, 173, 176- 
77, 225-26, 229) Soon Kalmbach became concerned about the covert 
assignment. On July 26, 1972, he met with Ehrlichman, who assured 
him that they, while the money payments were necessary and legally 
proper, they had to be kept secret. (Book III, 268-70) 

In September, 1972, Kalmbach told Dean and LaRue that he could 
“do no more.” Kalmbach transferred the remainder of the funds to 
LaRue, met with Dean and LaRue in Dean’s office to report on the 
total payments, and then put his notes of the payments in Dean's ash 
tray and burned them. (Book III, 378-82) 

II 

Payments for Hunt Prior to March 21, 1973 

Gordon Liddy and Howard Hunt were involved in both the Field- 
ing and the Watergate break-ins. They knew the identity of White 
House and CRP officials who had authorized those activities. Liddy 
remained silent. From the outset, Hunt made demands for others and 
for himself. (Book III, 88-95) During the summer and fall of 1972, 
prior to the November election. Hunt received payments amounting to 
over $200,000 for other defendants and for himself. (Book III. 218-19, 
223, 233, 383, 386-89) 

Shortly after the November, 1972 election, Hunt telephoned Co] son. 
(Book III, 411) Hunt told Colson that “commitments that were made 
to all of us at the onset have not been kept,” and that “. . . the people 
who were paralyzed initially by this within the White House could 
now start to give some creative thinking to the affair and some affirma- 
tive action for Christ sake.” (Book III, 408) Hunt continued : 

. . . we’re protecting the guys who are really responsible, but now that’s . . . 
and of course that’s a continuing requirement, but at the same time, this is a 
two way street and as I said before, we think that now is the time when a move 
should be made and surely the cheapest commodity available is monev. (Book 
III, 409) 

Colson tape-recorded this conversation and gave it to Dean. (Book III, 
417) Dean testified that he played the recording for Haldeman and 
Ehrlichman. On their instructions, 1 Dean flew to New York and 
played the recording for Mitchell. (Book III, 418-19) Mitchell con- 
firmed this, describing the tape as a lot of self-serving statements by 
Colson. (Mitchell testimony, 2 II JC 134-35) 

In late November, 1972, Dean reported to Haldeman the need for 
additional funds to pay the defendants. At that time, Haldeman had 
control of a cash fund of $328,000, the remainder of $350,000 in cam- 
paign funds which he had ordered placed under his control in Feb- 
ruary, 1972. (Book I, *78, 84) Strachan had picked up the cash from 
CRP and on April 7, 1972, on Haldeman’s instructions, relayed 
through Strachan, Butterfield had delivered the cash to a personal 
friend of his for safekeeping. (Book I, 97 ; Butterfield testmony, 1 
HJC 53-54) After Dean informed Haldeman of CRP’s need for 


1 On May 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this meeting among Dean, Haldeman and Ehrlichman. The Presi- 
dent refused to produce this recording. 



68 


money for the Watergate defendants, Ilaldeman approved the transfer 
of the fund. (Rook III, 430-35) In late November, 1972, Butterfield 
picked up the cash and delivered it to St radian. (Butterfield testimony, 
1 HJC 55) On Ilalcleman’s orders, in December St radian delivered be- 
tween $40,000 and $70,000 to LaRue, who handled the cash with rubber 
gloves and refused to furnish St rachan with a receipt. Shortly there- 
after, LaRue delivered $40,000 in cash to Hunt’s attorney. (Book III, 
436-48) In January, 1973, Hunt made additional demands for money. 
(Book III, 458) At Haldeman’s direction, Straclian delivered the re- 
mainder of the funds to LaRue. As before, LaRue would not give him 
a receipt, (Book III, 437-41 ; LaRue testimony, 1 HJC 220-24) 

Prior to March 21, 1973, LaRue disbursed $132,000 from the fund 
for the defendants, including $100,000 to Hunt’s attorney, William 
Bittman. (Book III, 436-38, 500, 518-19; LaRue testimony, 1 HJC 
203-04) 

On February 28, 1973, the President acknowledged to Dean his 
knowledge of Kalmbach’s role in providing money to Hunt. Dean told 
the President that the Senate Select Committee had subpoenaed Kalm- 
bacli’s records, but that Kalmbach was “hunkered down” and “ready 
to handle it,” The President replied that “it’ll be hard for him, he — , 
‘cause it’ll, it’ll get out about Hunt.” 2 (HJCT 43) The only connection 
between Ivalmbacli and Hunt was the clandestine payments. 

On March 16, 1973, Hunt met with Colson’s law partner, David 
Shapiro. (Book ITT, 925) Hunt told Shapiro that if certain financial 
commitments that had been made to him were broken the Republi- 
cans would lose the 1974 election, and probably the 1976 election as 
well ; but if the commitments were met none of his men would “blow.” 
Shapiro’s memorandum of the meeting reads: 

Hunt stated tliat several persons should be terribly concerned were lie to 
testify before the Ervin Committee (where lie said he presently proposed to 
invoke the 5tli Amendment). These persons he identified as John Dean, Bud 
Ivrogli, Pat Gray, John Mitchell and one or two others whom I can't remember 
(I did not take notes). Hunt said lie knew he was risking the possibility of an 
obstruction of justice charge when he convinced those who pleaded guilty to do 
so, but is also convinced that if the commitments made to him are kept, no one 
in his “operation” will “blow.” (Colson Exhibit No. 19, 3 HJC 327) 

On March 19, 1973, Shapiro met with Colson and related the sub 
stance of his March 16 conversation with Hunt. Shapiro advised 
Colson not to tell anyone at the White House about Hunt’s message 
because he might “unwittingly become, a party to an obstruction of 
justice.” (Colson testimony, 3 HJC 331) Colson, former Special Coun- 
sel to the President, and his close political associate and friend, said he 
had a telephone conversation with the President on March 19, but did 
not tell the President about this. (Colson testimony, 3 HJC 332) 

On either March 16 or 19, 1973, Hunt told Paul O’Brien, an attorney 
for CRP, that lie required $130,000 before being sentenced. Hunt said 
he had done “seamy things” for the White House and that if he were 
not paid he might have to reconsider liis options. (Book III, 902-04, 
906-07, 910-13; O’Brien testimony, 1 ILTC 125) O’Brien conveyed 
Hunt’s message to Dean. (Book III, 947) Dean told O’Brien that both 


2 Tlie words ‘he — , cause it’ll, it’ll get out about Hunt” do not appear in the edited White 
House transcript. (WHT 106) 



69 


of them were being used as conduits in an obstruction of justice, that 
he. Dean, was tired of being caught in the middle, and that he had no 
intention of being so used. (O’Brien testimony, 1 HJC 128) Dean 
added that he was out of the money business, that it was time to end it 
all and that it had gotten to the point where he could not live with it. 
(Dean testimony, 2 TUG 239) At 3:30 p.m. on March 20, 1973, Dean 
and Eh rli chm an discussed Hunt’s demand for money and the possi- 
bility that Hunt would reveal the activities of the Plumbers, and tell 
some seamy things about Ehrlicliman, if the money were not paid. 
(Book Til, 952-53, 963) Ehrlicliman then left Dean in order to see 
the President. From 4 :26 to 5 :39 p.m. the President and Ehrlicliman 
metd Later that afternoon, Ehrlicliman told Krogh, who had been 
co-chairman of the Plumbers, that Hunt was asking for a great deal 
of money, and that if it were not paid Hunt might blow the lid off and 
tell all lie knew. (Book ITT, 960-62) On the same afternoon, Dean also 
discussed Hunt’s demand with Krogh and with Richard Moore. 4 (Book 
III, 960, 966, 968) 

On the evening of March 20. 1973, the President telephoned Dean. 3 
(TV ITT 161) Dean told the President lie had spoken with Ehrlicliman 
that afternoon, before Ehrlicliman met with the President. Dean 
said, “I think that one thing that we have to continue to do, and 
particularly right now, is to examine the broadest, broadest impli- 
cations of this whole thing, and, you know, maybe about 30 minutes 
of just my recitation to you of facts so that you operate from the 
same facts that everybody else has.” (WHT 163) The President agreed 
to meet with Dean the following morning. (WHT 164) 


ITT 


March 21. 1973, Morning Meeting 

On the morning of March 21, 1973, Dean met with the President 
for almost two hours. (HJCT 79) Dean told the President about 
payments to the Watergate burglars. (HJCT 89-92, 94-95) He said 
that the payments had been made for purposes of “containment,” 
(HJCT 88) that this activity constituted an obstruction of justice, 
and that, in addition to Dean, the President's Chief of Staff Haldeman, 
Domestic Advisor Ehrlicliman, and Campaign Director Mitchell were 
all involved. (ITJCT 90) 

The President did not express either surprise or shock. He did not 
condemn the payments or the involvement of his closest aides. He 
aid not direct that the activity be stopped. He did not report it to the 
proper investigative agencies. He showed concern about criminal 


3 On May 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
TvfL.?W ena ^ re lated to this conversation. The President refused to produce this 


other 
recording 

4 Dean lias testified that he also spoke with LaRue on March 20 or March 21, prior to his 
morning meeting with the President or on both days. Doan testified that he told LaRue that 
lie was out of the money business and would have nothing more to do with Hunt’s money 
demands and that LaRue should call Mitchell to find out what to do about Hunt’s demand, 
i Dean testimony, 2 HJC 250, 260-62) LaRue has testified that he had a telephone conversa- 
tion with Dean ^regarding Hunt’s demand on the morning of March 21, 1973. (LaRue testi- 
mony, 1 HJC 230) 

£ On April 11, 1974. the House Judiciary Committee subpoenaed the tape recording and 
• he kl lia if ria .k rela tofl to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcript. 



70 


liability of the White House personnel. He indicated familiarity with 
the payment scheme, and an awareness of some details — such as the use 
of a Cuban Committee : G 

Dean. Uh, Liddy said, said that, you know, if they all got counsel instantly 
and said that, you know, “We’ll, we’ll ride this thing out.” All right, then they 
started making demands. “We’ve got to have attorneys’ fees. Uh, we don’t have 
any money ourselves, and if — you are asking us to take this through the elec- 
tion.” All right, so arrangements were made through Mitchell, uh, initiating it, 
in discussions that — I w r as present — that these guys had to be taken care of. 
Their attorneys’ fees had to he done. Ivalmhach was brought in. Uli, Kalmbacli 
raised some cash. Uh, they were obv — , uh, you know. 

President. They put that under the cover of a Cuban Committee or [un- 
intelligible] 

Dean. Yeah, they, they had a Cuban Committee and they had — some of it was 
given to Hunt’s lawyer, who in turn passed it out. This, you know, when Hunt's 
wife was flying to Chicago with ten thousand, she was actually, I understand 
after the fact now, w T as going to pass that money to, uh, one of the Cubans — 
to meet him in Chicago and pass it to somebody there. 

President. [Unintelligible]. Maybe — Well, whether it’s maybe too late to do 
anything about it, but I would certainly keep that, [laughs] that cover for 
whatever it’s worth. 

Dean. I’ll — 

President. Keep the Committee. 7 

Dean. Af — , after, well, that, that, that’s 

President. [Unintelligible] 

Dean, the most troublesome post-thing, uh, because (1) Bob is involved in 
that ; John is involved in that ; I am involved in that ; Mitchell is involved in 
that. And that’s an obstruction of justice. 

President. In other words the fact that, uh, that you’re, you’re, you’re taking 
care of witnesses. 

Dean. That’s right. Uh, 

President. How was Bob involved? 

Dean, well, th — , they ran out of money over there. Bob had three hundred 
and fifty thousand dollars in a safe over here that was really set aside for 
polling purposes. Uh, and there was no other source of money, so they came 
over here and said, ‘‘You all have got to give us some money.” 

President. Right. 

Dean. I had to go to Bob and say, “Bob, you know, you’ve got to have some— 
they need some money over there.” He said, “What for?” And so I had to tell 
him what it was for ’cause he wasn’t about to just send money over there willy- 
nilly. And, uh, John was involved in those discussions, and we decided, you 
know, that, you know, that there was no price too high to pay to let this thing 
blow up in front of the election. 

President. I think you should handle that one pretty fast. 

Dean. Oh, I think — 

President. That issue, I mean. 

Dean. I think we can. 

President. So that the three-fifty went back to him. All it did was — 8 

Dean. That’s right. I think we can too. 

President. Who else [unintelligible]? 

Dean. But, now, here, here’s what’s happening right now. 

President. Yeah. (HJCT 89-91) 

Dean then turned to the crisis precipitated by Hunt’s demands. 
Dean explained that these demands, and possibly others, could amount 
to a million dollars over the next two years. The President said that 
$1 million could be gotten and said it could be obtained in cash. 


0 The President was familiar with the use of Thomas Pappas. Ehrlicliman had suggested 
to Pa Rue that Pappas, a long-time supporter of the President, be contacted to see if he 
would be of any assistance in connection with raising the money. (P>ook ITT, 958) PaRue’s 
use of Pappas was brought out in the March 21 conversation. The President said that he 
already knew about this. (HJCT 04) See n 54 below. 

7 This lino does not appear in the edited White House transcript. (WHT 187) 

8 This line does not appear in the edited White House transcript. (WHT 188) 



71 


The problem was exactly how to avoid disclosure of the source of the 
money and its use. The President considered various possibilities : 

Dean. . . . Now, where, where are the soft spots on this? Well, first of all, 
there’s the, there’s the problem of the continued blackmail 
President. Right. 

Dean, which will not only go on now, it'll go on when these people are in 
prison, and it will compound the obstruction of justice situation. It’ll cost money. 
It’s dangerous. Nobody, nothing — people around here are not pros at this sort of 
thing. This is the sort of thing Mafia people can do : washing money, getting 
clean money, and things like that, uli — we’re — We just don’t know about those 
things, because we’re not used to, you know — we are not criminals and not used 
to dealing in that business. It’s, nil, it’s, uh — 

President. That’s right. 

Dean. It’s a tough thing to know how to do. 

President. Maybe we can’t even do that. 

* * * # 

President. Let me say, there shouldn’t be a lot of people running around 
getting money. We should set up a little— 0 

Dean. Well, lie’s got one person doing it who I am not sure is — 

President. Who is that? 

Dean. He’s got Fred LaRue, uh, doing it. Now Fred started out going out try- 
ing to 

President. No. 

Dean, solicit money from all kinds of people. Now I learned about that, and I 
said, 

President. No. 

Dean. “My God.” 

President. No. 

I >ean. “It’s just awful. Don’t do it.” 

President. Yeah. 

Dean. Uh, people are going to ask what the money is for. He’s working — He’s 
apparently talked to Tom Pappas. 

President. I know. 

Dean. And Pappas has, uh, agreed to come up with a sizeable amount, I 
gather, from, from 
President. Yeah. 

Dean. Mitchell. 10 

President. Yeah. Well, what do you need, then? You need, uh, you don’t need 
a million right away, but you need a million. Is that right? 

Dean. That’s right. 

President. You need a million in cash, don’t you? If you want to put that 
through, would you put that through, uh — this is thinking out loud here for a 
moment — would you put that through the Cuban Committee? 

Dean. Um, no. 

President. Or would you just do this through a [unintelligible] 11 that it’s 
going to be, uh, well, it’s cash money, and so forth. How, if that ever comes out, 
are you going to handle it? Is the Cuban Committee an obstruction of justice, 
if they want to help? 

Dean. Well, they’ve got a pr — , they’ve got priests, and they — 

President. Would you like to put, I mean, would that, would that give a little 
bit of a cover, for example ? 

Dean. That would give some for the Cubans and possibly Hunt. 

President. Yeah. 

Dean. Uh, then you’ve got Liddy, and McCord is not, not accepting any money. 
So, he’s, be is not a bought man right now. 

President. Okay. (HJCT 93-95) 

This discussion primarily concerned payments over the long term. 
There remained the immediate demand by Hunt for approximately 


nrrTl e ,S? ul11 set up a — ” does not appear in the edited White House transcript. 

(W HT 194) 

10 This line does not appear in the edited White House transcript. (WHT 194) 

This line does not appear in the edited White House transcript. (WHT 195) 



72 


$120,000. The President said that Hunt’s demands should be met. At 
the very least, he reasoned, the payment would buy time. 

President. Well, your, your major, your major guy to keep under control is 
Hunt. 

Dean. That’s right. 

President. I think. Because he knows 
Dean. He knows so much. 

President, about a lot of other things. 1 " 

Dean. He knows so much. Right. Uli, he could sink Chuck Colson. Apparently, 
apparently, he is quite distressed with Colson. He thinks Colson has abandoned 
him. Uli, Colson was to meet, with him when he was out there, after, now he had 
left the White House. He met with him through his lawyer. Hunt raised the 
question : he wanted money. Colson’s lawyer told him that Colson wasn't doing 
anything with money, and Hunt took offense with that immediately, that, uh, uli, 
that Colson had abandoned him. ITh — 

President. Don’t you, just looking at the immediate problem, don’t you have 
to have — handle Hunt’s financial situation 
Dean. I, I think that’s, 

President, damn soon? 

Dean, that is, uh, I talked to Mitchell about that last night, 

President. Mitchell. 

Dean, and, and, uh, I told — 

President. Might as well. May have the rule you've got to keep tlie cap on 
the bottle that much, 

Dean. That’s right ; that’s right. 

President, in order to have any options. 

Dean. That’s right. 

President. Either that or let it all blow right now. 

Dean. Well that, you know, that’s the, that’s the question. Uh — 

President. Now, go ahead. The others. You’ve got Hunt; (HJCT 96) 

* * * * * * * 
President. But at the moment, don’t you agree that you’d better get the Hunt 
thing? I mean, that’s worth it, at the moment. 13 
Dean. That, that’s worth buying time on, right. 

President. And that’s buying time on, I agree. (HJCT 105) 

The President instructed Dean to summon Hal deman, Ehrlich- 
maii, and Mitchell to meet for a discussion of a strategy to carve 
matters away from the President. The President then called Ilalde- 
man into the meeting. When Haldeman entered the Oval Office, the 
President repeated his authorization of immediate payment to Hunt. 
The President said, “His price is pretty high, but at least, uli, we should 
buy the time on that, uli, as I, as I pointed out to John.” 14 (HJCT 
109) The President instructed Dean and Haldeman to lie about the 
arrangements for payment to the defendants. 

President. As far as what happened up to this time, our cover there is just 
going to he the Cuban Committee did this for them up through the election. 15 

Dean. Well, yeah. We can put that together. That isn’t, of course, quite the 
way it happened, hut, uh — 

President. I know, lmt it’s the way it’s going to have to happen. (HJCT 119) 

The President then returned to Hunt’s demand : 

President, that’s why your, for your immediate thing you’ve got no choice 
with Hunt but the hundred and twenty or whatever it is. Right? 


13 In place of “Because he knows about a lot of other things,” the edited White House 
transcript reads, “Does he know a lot?” (WHT 196) 

13 In place of, “I mean, that’s worth it, at the moment,” the edited White House transcript 
reads, “. . . that’s where that — ” (WHT 209) 

14 In place of, “we should buy the time on that” the edited White House transcript reads, 
“we can buy time on that.” (WHT 215) 

15 Instead of . . our cover is just going to be . . . the edited White House transcript 
reads . . . these fellows . . . are covered on their situation, because. . . .” (WHT 231) 



73 


Dean. That’s right. 

President. Would you agree that that’s a buy time thing, you better damn 
well get that done, but fast? 10 

Dean. I think he ought to be given some signal, anyway, to, to — 

President. Yes. 

Dean. Yeah — You know. 

President. Well for Christ’s sakes get it in a, in a way that, uh — Who’s, who’s 
going to talk to him? Colson? He’s the one who's supposed to know him. 

Dean. Well, Colson doesn’t have any money though. That’s the thing. That’s 
been our, one of the real problems. They have, nh, been unable to raise any 
money. A million dollars in cash, or, or the like has been a very difficult problem 
as we discussed before. (HJCT 121-22) 

After discussing how Hunt could incriminate Mitchell, Ehrlichman 
and Krogli, the President again returned to Hunt’s demand : 

President. That’s right. Try to look around the track. We have no choice on 
Hunt but to try to keep him — 

Dean. Right now, we have no choice. (HJCT 125) 

IV 


March 21, 1973, Payments for Hunt 

On the afternoon of March 21, 1973, the President met with Dean, 
Haldeman and Ehrlichman. (HJCT 131) The President asked wliat 
was being done about Hunt’s demand. Dean said Mitchell and LaBue 
would be able to do something. The President remarked that it was 
going to be a “long road.” (HJCT 133) That evening the President 
asked Colson what he thought about the million dollars Bittman had 
demanded. (Colson testimony, 3 II JC 334) 

On March 21, 1973, Dean told LaBue by telephone that he was out 
of the money business and to talk to Mitchell. 17 LaBue telephoned 
Mitchell, who authorized the payment to Hunt. Late that evening, 
LaBue arranged the delivery of $75,000 to Bittman. (Book III, 1193- 
97, 1199-1201) 

President Nixon, knowing that Hunt had made threats to break 
his silence in order to secure money, encouraged the payment to Hunt 
and took no steps to stop the payment from being made. 

On the next day, March 22, 1973, Mitchell told Haldeman, Ehrlich- 
man and Dean that Hunt was not a “problem any longer.” (Book III, 
1255-57, 1269) Later that day, Ehrlichman told Ivrogli that Hunt was 
stable and would not disclose inatters. (Book III, 1278-79) That after- 
noon, the President met for more than 90 minutes with Mitchell, 
Haldeman, Ehrlichman and Dean. Hunt’s demand for money was 
never discussed and the President did not attempt to determine 
whether anything had been done to deal with the problem that had 
occupied so much of his time the previous day. (HJCT 147-86) 

Oil March 2 c 1973, the President and Haldeman talked about pay- 
ments to Hunt. “Hunt is at the Grand Jury today,” Haldeman said. 
c We don't know how far he is going to go. The danger area for him is 
on the money, that lie was given money. He is reported by O’Brien, who 


10 Instead of “. . . buy time 
prime . . .” and leaves out “but fast 


’ the edited White House transcript reads, “. . . 
(WHT 234) 

•7i I l P 1 an ,t pst l f ! pd ^nt conversation with La Rue occurred prior to his morning meeting 
with the President on March 21, 1073. {Dean testimony, 2 H.TC 250, 2fi0) Laliue testified 
1 H ) eS ^ rpPollpc * ion ’ Deau ' s telephone call was in the morning. (Laliue testimony, 



74 


has been talking to his lawyer, Bittman, nor to be as desperate today as 
he was yesterday but to still be on the brink, or at least shaky. What’s 
made lum shaky is that lie’s seen McCord bouncing out there and prob- 
ably walking out scot free.” (WHT 326-27) On April 16, 1973, the 
President and Dean again discussed the Hunt demand. Dean said 
that Mitchell had told him, Haldeman and Ehrlichman, on March 22, 
1973, that the problem with Hunt had been solved. The President ex- 
pressed his satisfaction it had been solved “at the Mitchell level.” He 
also said, “I am planning to assume some culpability on that [unintel- 
ligible].” 18 (HJCT 194-95) 

On April 8, 1973, Dean, and on April 13, 1973, Magruder, began 
meeting with the prosecutors. (Book IV, 538, 610) On the afternoon of 
April 17, 1973, Haldeman pointed out to the President that one prob- 
lem was that people would say the President should have told Dean on 
March 21, 1973, not that the blackmail was too costly, but that it was 
wrong. 19 (WHT 1035) 

In mid-April, 1973, the President tried to diminish the significance 
of his March 21 conversation with Dean. He tried to make the pay- 
ments appear innocent and within the law. On April 14, 1973, the Pres- 
ident instructed Haldeman and Ehrlichman to agree on the story that 
payments were made, not “to obstruct justice,” but to “help” the 
defendants. 20 

This evidence clearly establishes that pursuant to the President’s 
plan of concealment, surreptitious payments of substantial sums of 
money were made to the Watergate defendants for the purpose of 
obtaining their silence and influencing their testimony. The evidence 
also clearly establishes that when the President learned that Hunt was 
going to talk unless paid a substantial sum of money, and that Mitchell 
and LaRue were in a position to do something about Hunt’s demand 
he approved of the payment to Hunt rather than taking steps to stop 
it from being made. 

is Tj le e( jited White House transcript reads, “That assumes culpability on that, doesn’t 
it?” (WHT 798) „ 

1(1 On April 11, 1974. the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this re- 
cording. The President submitted an edited transcript. 

-o On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



FAVORED TREATMENT OF DEFENDANTS AND 
PROSPECTIVE DEFENDANTS 

I 


Discussions of Clemency for Hunt 

On July 8, 1972, while walking on a beach at San Clemente, the 
President and Ehrlichman discussed possible clemency for the Water- 
gate defendants. Ehrlichman has said that he told the President that 
“presidential pardons or something of that, kind inevitably would be a 
question that he would have to confront by reason of the obvious po- 
litical aspect of this.” (Book III, 182-83) The President’s response, 
according to Ehrlichman and the President’s own public statement, 
was that no one in the White House should “get into this whole area 
of clemency with anybody involved in this case and surely not make 
any assurances to anyone.” (Book III, 189, 195) At the time of this 
conversation, Ehrlichman knew that Liddy and Hunt and three of 
those arrested at the Watergate had been involved in the break-in of 
Ellsberg’s psychiat rist’s office. The President has said that he did not 
learn of that break-in until more than eight months later, on March 
17, 1973. 1 (Book VII, 1877) 

^ On December 31, 1972, Hunt wrote to Charles Colson, Special 
Counsel to the President, complaining about his “abandonment by 
friends on whom I had in good faith relied” and suggesting that he 
was close to breaking down. (Book III, 458) Hunt’s trial was sched- 
uled to begin on January 8, 1973. ( United States v. Liddy, CR 1827-72, 
docket) Colson forwarded Hunt’s letter to Dean with a note, “Now 
what the hell do I do.” (Book III, 457) 

On January 3, 1973, Colson, Dean and Ehrlichman discussed the 
need to reassure Hunt about the amount of time he would have to 
spend in jail. (Book III, 460; Colson Exhibit No. 17, 3 HJC 307) Sub- 
sequently, on April 14, 1973, Ehrlichman reported his conversation 
with Colson to the President. “[Colsou] said, 4 Wlmt can I tell [Hunt] 
about clemency.’ And I said ‘Under no circumstances should this ever 
be raised with the President.’ ” 2 (WHT 421) 

Later on January 3, and again on the following day, Colson met 
with Bittman, Hunt’s attorney. Bittman discussed Hunt’s family 
problems since December 8, 1972, when Hunt’s wife had died. He said 
that because of his children Hunt was very worried that Judge Sirica 


The President’s awareness of Hunt’s previous activity is shown in his instructions to 
Haldeman on Juue 23, 1972, with respect to the investigation : 

- „°f course this Hunt that will uncover a lot of things. You open that scab there’s a 
nell of a lot °f things and we just feel that It would be verv detrimental to have this thing 
SO any further.” (WHT, June 23, 1972. 10 :04-ll :39 a.m„ 6) e 

-On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
r» t n^iinl at T r .! a D re ‘V w ' t° this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

(75) 



76 


would give him a long jail sentence. (Bittman testimony, 2 HJC 20- 
24 ; Colson testimony, 3 HJC 302-04, 313-15; Colson Exhibit No. 17, 3 
HJC 308) According to Colson, Bittman said he thought Hunt might 
be able to survive the prospect of a reasonable term, perhaps a year. 
Bittman also mentioned that he understood Dean and Mitchell had 
discussed plans for electronic surveillance prior to Watergate. (Colson 
Exhibit No. 17, 3 HJC 308-09) Colson assured Bittman of his friend- 
ship for Hunt, of his understanding of Hunt’s need to be out of jail, 
and of his willingness to do whatever he could to assist Hunt. Colson 
has said : 

In addition, I may well liave told Bittman that I had made “people’’ aware 
that, if it were necessary, I w r as going to come back to the White House to 
speak for Hunt. Indeed, since I wanted to do all I could to comfort Hunt, it 
is most probable that I did say this. I do not know how Bittman evaluated my 
position and influence at the White House, but despite my insistence that I 
could do no more than try to help Hunt as a friend, Bittman might have in- 
ferred that if Hunt received an unreasonably long sentence, my willingness 
to go to bat for Hunt would result in Hunt’s sentence being reduced by executive 
action of some sort. (Colson Exhibit No. 17, 3 H.TC 311) 

On January 3, 1973, Colson reported to Elirlichman and Dean on 
his conversation with Bittman, and said he wanted to speak to the 
President regarding Hunt. (Colson Exhibit No. 17, 3 HJC 310; 
Book III, 461) Dean testified that Colson told him on January 5, 1973, 
that he had given assurances of clemency to Bittman and he had 
spoken with the President about clemency for Hunt. (Dean testi- 
mony, 2 HJC 286-87; Book III, 461) The President told Haldeman 
and Elirlichman on April 14, 1973, that he had had a conversation 
with Colson about clemency for Hunt. 3 

On January 9, 1973, Hunt withdrew” a motion, which he had filed on 
October 11, 1972, for the return of items that had been recovered from 
his EOB office and that had not been inventoried by the FBI. {United 
States v. Liddy , motion, January 9, 1973; Book II, 425) Among the 
documents encompassed by the motion w’ere two notebooks that had 
been taken from Hunt’s safe and kept by Dean. (Book II, 425; Dean 
testimony, 2 HJC 236) On December 22, 1972, Petersen had questioned 
Dean about the notebooks and told him he would be called as a wit- 
ness in the hearing on Hunt’s motion. (Petersen testimony, 3 HJC 
75-76 ; Book II, 422-23, 425) In January, 1973, Dean shredded the note- 
books. (Dean testimony, 2 HJC 287-88) Colson w^as also a potential 
witness. During Bittman’s meeting with Colson on January 3, 1973, 
Bittman had discussed Colson’s prospective testimony. (Bittman testi- 
mony, 2 HJC 21-22 ; Book III, 472-74) The withdrawal of the motion 
made it unnecessary for Dean and Colson to appear as witnesses. 
(Petersen testimony, 3 HJC 76) It also avoided the possible disclosure 
of such compromising documents in Hunt’s safe as fabricated State 
Department cables and documents related to the Plumbers. Tw o days 
after the withdrawal of his motion. Hunt pleaded guilty to charges 
arising out of the Watergate break-in. (Book III, 484) 


3 On May 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to the two conversations Charles Colson had with the President on 
January 5, 1973. The President refused to produce these recordings. 



77 


II 

President’s Recollection of Clemency Discussions 

On February 28, March 21 and April 14, 1973, the President spoke 
of his recollection of a discussion of clemency for Hunt. On February 
28, 1973, speaking to Dean about the Watergate defendants’ expecta- 
tions of clemency, the President asked, “What the hell do they expect, 
though ? Do they expect that they xvill get clemency within a reason- 
able time?” Dean said that lie thought they did. The President asked 
whether clemency could be granted “in six months.” Dean replied that 
it could not because, “This thing may become so political.” (HJCT 40) 
There was no specific mention of Colson’s assurances to Hunt. The 
President did allude to Hunt’s personal situation, and to the death of 
his wife. (HJCT 40) 

On March 21, 1973, after Hunt had increased his demands for money 
(Book III, 968), Dean told the President that Caulfield had spoken 
about commutation with McCord. Dean added, “as you know Colson 
has talked to, indirectly to Hunt about commutation.” Dean said these 
“commitments” were problems because they were the sort of thing the 
Senate would be looking for, but that he did not think the Senate could 
find them. The President agreed that it would be “pretty hard as far 
as the witnesses are concerned.” (HJCT 91) 

After Haldeman joined the meeting, the President said, “You kno^v 
Colson has gone around on this clemency thing with Hunt and the 
rest.” Dean added, “Hunt is now talking in terms of being out by 
Christmas.” The discussion continued : 

Haldeman. By Christmas of this year? 

Dean. Yeah. 

Haldeman. See that, that really, that's very believable ‘cause Colson, 

President. Do you think Colson could have told him — 4 

Haldeman. Colson is an, is an — that’s, that's your fatal flaw, really, in Chuclc, 
is he is an operator in expediency, and he will pay at the time and where he is 

President. Yeah. 

Haldeman. whatever he has to, to accomplish what he's there to do. 

Dean. Right. (HJCT 115-16) 

The President acknowledged that he had discussed clemency for 
Hunt : 

Great sadness. The basis, as a matter of fact [clears throat] there was some 
discussion over there with somebody about, uh, Hunt’s problems after his wife 
died and I said, of course, commutation could be considered on the basis of his 
wife, and that is the only discussion I ever had in that light. (HJCT 93) 5 

On April 14, 1973, the President acknowledged that, contrary to 
Ehrlichman’s direction, Colson had in fact raised with him the ques- 
tion of clemency in a tangential way. The President said : “As I remem- 
ber a conversation this day was about five thirty or six o’clock that 
Colson only dropped it in sort of parenthetically, said I had a little 
problem today, talking about Hunt, and said I sought to reassure him, 
you know, and so forth. And I said, Well. Told me about Hunt’s wife. 
I said it was a terrible thing and I said obviously we will do just, we 


*Thia line does not appear in the edited White House transcript. (WHT 226) 

5 On May 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to a Presidential conversation about granting clemency to Hunt 
on the basis of his wife’s death. The President refused to produce this recording. 



78 


will take that into consideration. That was the total of the conversa- 
tion.” 6 (WHT 419 ) 

In the conversations on March 21 the President acknowledged his 
predicament on the issue of clemency for Hunt ; the President feared 
that any action that seemed to Hunt a repudiation of assurance of clem- 
ency would lead Hunt to “blow the whistle.” (HJCT 125) On the 
other hand, the President was aware that clemency for Hunt by Christ- 
mas, 1973, would be politically impossible because it would require di- 
rect and public action by the President. (HJCT 103-04, 115) 

On the afternoon of March 21, 1973, when the President met with 
Ilaldeman, Ehrlichman and Dean, he continued to assess the risk Hunt 
posed to the cover-up. The President asked what should be done about 
Hunt. He agreed with Ehrlicliman's answer that “Hunt’s interests lie 
in getting a pardon if he can.” The President said that “He’s got to 
get that by Christmas time,” 7 and Ehrlichman suggested that Hunt’s 
“indirect contacts with John” about it “contemplate that, that, that’s 
already understood.” 

President. I know. 

Haldeman. That's right. 

Ehrlichman. They think that that’s already understood. 

President. Yeah. (HJCT 133) 

Although the President knew Hunt was relying on a belief he would 
get a pardon, the President did not authorize or intimate to anyone to 
tell Hunt that a pardon would not be possible. 

In a meeting on March 27, 1973, with Haldeman, Ehrlichman and 
Ziegler, the President again discussed the issue of clemency for the 
Watergate defendants after the 1974 elections. The President consid- 
ered appointing a “super panel” of distinguished citizens to study the 
Watergate case. Haldeman said that the idea had the advantage that 
it would drag out the investigation until after the 1974 elections, when 
the President could pardon everyone, and the “potential ultimate pen- 
alty anybodv would get hit in this process could be about two years.” 8 
(WHT 338-42) 

III 

Mitchell, Magruder and Dean 

The President considered clemency not only for the seven Watergate 
burglars, but also for three of his closest associates, Mitchell, Magruder 
and Dean, who were involved in the cover-up. 

By the middle of April, 1973, the President knew that the cover-up 
was threatened by Magruder and Dean, who were talking to the pros- 


0 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation on April 14, 1973. The President refused 
to produce this recording. The President submitted an edited transcript. Colson testi- 
fied before the Committee that he recalled his conversation with the President as follows : 
“I was going to say someday I may want to come talk to you about Hunt. Half way through 
that sentence the President interrupted and he said, he said oh, I just can’t believe, Chuck, 
in the circumstances you have just described, with his wife in that shape and his kids, he 
said, I just can’t believe that he will go to jail. He said I just can’t believe any judge would 
do that. I just am sure he won’t, anrl don’t worry about it, and relax and don’t let It 
get you down.” (Colson testimony, 3 HJC 318) 

7 This statement was attributed to Dean in the edited White House transcript. (WHT 
133) 

8 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



79 


editors. (Book IV, 538-39, 610) On April 14, 1973, the President 
directed Haldeman and Ehrlichman to imply to Magruder, and also to 
Mitchell who had been implicated by Magruder, the President’s as- 
surances of clemency. The President carefully explained how he 
wanted Haldeman and Ehrlichman to handle these assurances. 9 
(WHT 408-514) 

The President instructed Ehrlichman to tell Mitchell and Magruder 
that the President did not regard it as in his interests for them to 
remain silent; that the President held great affection for them and 
their families. The President set the language for Ehrlichman to use 
to get the clemency across to Magruder : 

Lovely wife and all the rest, it just breaks your heart. And say this, this is 
a very painful message for me to bring — I've been asked to give you, but I must 
do it and it is that : Put it right out that way. Also, I would first put that in so 
that he knows I have personal affection. That’s the way the so-called clemency's 
got to be handled. Do you see, John? (WHT 503) 

Ehrlichman said he understood. Haldeman told Ehrlichman to 
“[d]o the same thing with Mitchell, 1 ’ although the President also said 
that Mitchell would put on “the damnest defense” and never go to 
prison. (WHT 503) The President then asked Ehrlichman how to 
handle the “problem of clemency” for people like Hunt. Haldeman 
replied, “Well, you don’t handle it at all. That’s Colson’s, cause that’s 
where it comes from.” (WHT 485) Ehrlichman immediately carried 
out the President’s instructions. 

Ehrlichman met with Mitchell at 1 :40 p.m., April 14, 1973. (Book 
IV, 718) He reported to the President that he had spoken to Mitchell 
and that Mitchell “appreciated the message of the good feeling be- 
tween you and him.” The President responded, “He got that, liuh?” 10 
(WHT 524) The President added that there could be clemency at 
the proper time; but- that they all knew that, for the moment, it was 
ridiculous to talk about it. (WHT 544) 

As Ehrlichman left the Oval Office for his meeting with Magruder 
(Book IV, 801) the President said : 

P Be sure to convey my warm sentiments. 

E Right. (WHT 578) 

On the evening of April 14, 1973, the President telephoned Ehrlich- 
man. (Book IV, 854) They discussed how Ehrlichman might divert 
Dean from implicating Haldeman and Ehrlichman. Ehrlichman said 
he would see Deau the next day. The President told Ehrlichman to 
remind Dean indirectly that only one man, the President, had the 
power to pardon him, and keep him from disbarment as a lawyer, if 
things should go wrong: 

E I am going to try to get him around a bit. It is going to be delicate. 

P Get him around in what way? 

E Well to get ofi 1 the passing the buck business. 

P John that's — 

E It is a little touchy and I don't know how far I can go. 


9 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 

other materials related to this conversation. The President refused to produce this 

recording. The President submitted an edited transcript. 

10 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 

other materials related to this conversation. The President refused to produce this 

recording. The President submitted an edited transcript. 


37-777 0 - 74-6 



80 


P John, that is not going to help you. Look he has to look down the road to 
one point that there is only one man who could restore him to the ability to 
practice law in case things go wrong. He’s got to have that in the back of his 
mind. . . . He’s got to know that will happen. You don’t tell him, but you 
know and I know that with him and Mitchell there isn’t going to be any damn 
question, because they got a bad rap. u ( WHT 663-64) 

Later in the conversation the President directed Ehrlichman to tell 
Dean that the President thought Dean has “carried a tremendous load” 
and that the President's affection and loyalty remained undiminished. 
(WHT 667) 

IV 


April 16, 1073, Meeting 

On April 16, 1973, after Dean had begun meeting with the prosecu- 
tors, the President and Dean discussed potential charges of obstruc- 
tion of justice against members of the President’s White House staff. 
(Book IV, 1143) The President tried to make the Hunt clemency 
assurance the responsibility solely of Mitchell. Dean, however, cor- 
rected him. 

Dean. It’s, uh, it’s, uh, all the obstruction is technical stuff that mounts up. 
President. Yeah. Well, you take, for example, the clemency stuff. That’s 
solely Mitchell, apparently, and Colson’s talk with, uh, Bittman where he says, 
“I’ll do everything I can because as a, as a friend — ” 

Dean. No, that was with Ehrlichman. 

President. Huh? 

Dean. That was Ehrlichman. 

President. Ehrlichman with who? 

Dean. Ehrlichman and Colson and I sat up there, and Colson presented his 
story to Ehrlichman 
President. I know . 12 

Dean, regarding it and, and then John gave Chuck very clear instructions on 
going back and telling him that it, you know, “Give him the inference he’s got 
clemency but don’t give him any commitment.” 

President. No commitment? 

Dean. Right. 

President, Now that’s all right. But first, if an individual, if it’s no commit- 
ment — I’ve got a right to sit here — Take a fellow like Hunt or, uh, or, or a Cuban 
whose wife is sick and something — that’s what clemency’s about. 

Dean. That’s right. 

President. Correct? 

Dean. That’s right. 

President. But, uh, but John specifically said, “No commitment,” did he? He — 
Dean. Yeah. 

President. No commitment. Then, then Colson then went on to, apparently — 
Dean. I don’t know how Colson delivered it, uh — 

President. Apparently to Bittman — 

Dean, for — 

President. Bittman. Is that your understanding? 

Dean. Yes, but I don’t know what his, you know, specific — 

President, Where did this business of the Christmas thing get out, John? 
What the hell was that? 

Dean. Well, that’s, a, that’s a — 

President. That must have been Mitchell, huh? 

Dean. No, that was Chuck, again. I think that, uh — 

President. That they all, that they’d all be out by Christmas? 


11 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 

recording. The President submitted an edited transcript. 

12 The President’s “I know” does not appear in the edited White House transcript. (WHT 

811 ) 



81 


Dean. No, I think lie said something to the effect that Christmas is the time 
that clemency generally occurs. 

President. Oh, yeah. 

Dean. Uh— 

President. Well, that doesn’t — I, I, I don’t think that is going to hurt him. 

Dean. No. 

President. Do you? 

Dean. No. 

President. “Clemency,” he says — One [unintelligible] he’s a friend of Hunt’s. 
I'm just trying to put the best face on it. If it's the wrong — if it is — I’ve got 
to know. 

Dean. Well, one, one of the things I think you have to he very careful, and 
this is why Petersen will be very good, is, if you take a set of facts and let the 
prosecutors who have no — they’ll he making, making no PR judgments. 

President. Yeah. 

Dean. But they’ll give you the raw facts as they relate to the law, uh, and 
it’s later you’ve got to decide, you know, what public face will he put on it. In 
other words, they’ll — If their 

Dean suggested that Petersen might be able to advise whether the 
attempt to silence Hunt by offering clemency was lawful. (HJCT 
204-06) 

In a meeting with Petersen, just three hours after this meeting with 
Dean, (Book IV, 1230) the President asked whether the prosecutors 
had anything on Colson. Petersen said that there were allegations, but 
nothing specific. 15 (WITT 872-75) The President neither posed a 
hypothetical question to determine the legality of Colson’s conduct, 
as Dean had suggested, nor informed Petersen of Colson’s conversa- 
tion with Bittman. 

Thereafter, the President made repeated statements on the clemency 
issue to the public. On May 22, 1973, the President said : 

At no time did I authorize any offer of executive clemency for the Watergate 
defendants, nor did I know of any such offer. (“Presidential Statements,” 
5/22/73, 21) 

On August 15, 1973, the President said : 

. . . under no circumstances could executive clemency he considered for those 
who participated in the Watergate break-in. I maintained that position through- 
out. (“Presidential Statements,” 8/15/73, 42) 

And on November 17, 1973, the President said : 

Two, that I never authorized the offer of clemency to anybody and ; as a matter 
of fact, turned it down whenever it was suggested. It was not recommended by 
any member of my staff but it was, on occasion, suggested as a result of news 
reports that clemency might become a factor. (“Presidential Statements,” 
11/17/73, 64) 

These statements are contradicted by the transcripts of the President’s 
own Avords. 

This evidence establishes that the President personally and through 
his subordinates and agents endeavored to cause prospective defend- 
ants and those duly tried and convicted, to expect fa Adored treatment 
and consideration in return for their silence or false testimony. 


13 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



DECEPTION AND CONCEALMENT 

I 

False Representations About Official Investigations 

In his public statements, as part of the continuing cover-up the 
President repeatedly said that he had ordered, and even personally 
undertaken, thorough investigations of the Watergate matter, and that 
those investigations determined that no one from the White House was 
involved. The President said he had ordered three investigations by 
his immediate staff : two in August, 1972, and March, 1973, by Dean; 
and one in April, 1973, by Ehrlichman. He said his intention was to 
get to the bottom of the matter, and get the truth out. However, clear 
and convincing evidence indicates that this was not the case. 

A. TIIE AUGUST 1972 DEAN INVESTIGATION 

On August 29, 1972, at a news conference, President Nixon said 
that in addition to investigations into Watergate by the Department 
of Justice, the FBI, the GAO and the Banking and Currency Com- 
mittee, John Dean had conducted an investigation under the direction 
of the President : 

In addition to that, within our own staff, under my direction, Counsel to the 
President, Mr. Dean, has conducted a complete investigation of all leads which 
might involve any present members of the White House Staff or anybody in 
the Government. I can say categorically that his investigation indicates that 
no one in the White House Staff, no one in this Administration, presently em- 
ployed, was involved in this very bizarre incident. . . . 

I think under these circumstances we are doing everything we can to take 
this incident and to investigate it and not to cover it up. (“Presidential State- 
ments,” 8/29/72, 3) 

At the time President Nixon made those statements he knew that 
Dean had not made or reported any such investigation. According to 
White House records, the President had not met or spoken with Dean 
since before the break-in. Dean testified that he first heard of his “com- 
plete” investigation in the President’s announcement. (Dean testi- 
mony, 2 HJC 252; Book II, 590-92) No independent evidence exists 
that such an investigation was ever completed or undertaken. 

On September 15, 1972, more than two weeks after the August 29, 
1972 press conference, the President and Dean first discussed Water- 
gate. (Book II, 598; Dean testimony, 2 HJC 228) Before Dean en- 
tered the room, Haldeman told the President it had been “a good 
move . . . bringing Dean in;” that Dean, while “he’ll never again 
gain any ground for us . . . enables other people to gain ground 
while he’s making sure that you don’t fall through the holes.” (HJCT 
1) When Dean joined the meeting:, the President referred to the Water- 
gate matter as a “can of worms,” and congratulated Dean for “putting 
your fingers in the dikes every time that leaks have sprung there.” 

(82) 



83 


(HJCT 7) The President also said, “So you just try to button it 
up as well as you can and hope for the best.” (HJCT 13-14) 

In his March 21, 1973, morning meeting with Dean the President 
confirmed that, in the summer of 1972, Dean was directed to help with 
the cover-up, not to conduct a “complete investigation.” 

Dean. . . . Now, [sighs], what, what has happened post-June 17? Well, it was, 

I w’as under pretty clear instructions [laughs] not to really to investigate this, 
that this was something that just could have been disastrous on the election if it 
liad — all hell had broken loose, and I worked on a theory of containment 

President. Sure. 

Dean, to try to hold it right where it was. 

President. Right. (HJCT 88) 

Later in the conversation, the President said “you had the right plan 
let me say, I have no doubts about the right plan before the election. 
And you handled it just right. You contained it.” (HJCT 129) 

B. TTIE MARCH 197 3 DEAN REPORT 

In a public statement on August 15, 1973, President Nixon said: 
“On March 23, [1973], I sent Mr. Dean to Camp David, where he was 
instructed to write a complete report on all he knew of the entire 
Watergate matter.” (“Presidential Statements, 8/15/73, 41-42) 

The “report” that President Nixon had, in fact, requested Dean to 
make in March, 1973, was one intended to mislead official investiga- 
tors and to conceal the President’s complicity in the cover-up. In a 
March 20, 1973, telephone conversation, 1 * the President told Dean to 
“make it very incomplete.” 

P But you could say, “I have this and this is that.” Fine. See what I am get- 
ting at is that, if apart from a statement to the Committee or anything else, 
if you could just make a statement to me that we can use. You know, for internal 
purposes and to answer questions, etc. 

D As we did when you, back in August, made the statement that — 

P That’s right. 

D And all the things — 

P You’ve got to have something where it doesn’t appear that I am doing this 
in, you know, just in a — saying to hell with the Congress and to hell with the 
people, we are not going to tell you anything because of Executive Privilege. 
That, they don’t understand. But if you say, “No, we are willing to cooperate,” 
and you’ve made a complete statement, but make it very incomplete. See, that is 
what I mean. I don’t want a, too much in chapter and verse as you did in your 
letter, 3 1 just want just a general — 

D An all around statement. 

P That’s right. Try just something general. Like “I have checked into this 
matter: I can categorically, based on my investigation, the following: Haldeman 
is not involved in this, that and the other thing. Mr. Colson did not do this ; 
Mr. so and so did not do this. Mr. Blank did not do this.” Right down the line, 
taking the most glaring things. If there are any further questions, please let 
me know. See? 

D tTh, huh. I think we can do that. (WHT 167-68) 

On the afternoon of March 21, 1973, after Dean had discussed with 
the President the involvement of White House staff in perjury (HJCT 


1 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording 
and other materials related to this conversation. The President refused to produce this 
recording The President submitted an edited transcript. 

-Dean had drafted a letter to Senattor Eastland, Chairman of the Senate Judiciary 

Committee, in connection with hearings on the nomination of L. Patrick Gray to be Di- 
rector of the FBI. 



81), payments to the defendants (HJCT 96), “promises” of execu- 
tive clemency for Hunt (HJCT 103-04) and the potential criminal 
liability of Haldeman, Ehrlichman, Colson, Dean, Magruder, Mitchell, 
Strachan, Krogh and Chapin, (HJCT 88-89, 95-96, 100) the Presi- 
dent met with Ehrlichman, Haldeman and Dean. The President re- 
peated his instructions about the “report.” 

President. . . . Uh, if you as the White House Counsel, John, uh, on direc- 
tion — uh, I ask for a, a written report, which I think, uh, that — which is very 
general, understand. Understand, [laughs] I don’t want to get all that God 
damned specific. 3 I’m thinking now in far more general terms, having in mind 
the fact that the problem with a specific report is that, uh, this proves this one 
and that one that one, and you just prove something that you didn’t do at all. 
But if you make it rather general in terms of my — -your investigation indicates 
that this man did not do it, this man did not do it, this man did do that. . . . 
(HJCT 136) 

Ehrlichman spoke of the advantage to the President of having a writ- 
ten report on which he could later rely if additional facts came out. 

Well, but doesn’t it give, doesn’t it permit the President to clean it out at 
such time as it does come up? By saying, “Indeed, I relied on it And now this, 
this later thing turns up, and I don’t condone that. And if I’d known about that 
before, obviously, I wouldn’t have done it. And I’m going to move on it now.” 
(HJCT 140) 

On March 22, 1973, Ehrlichman repeated this point at a meeting 
of the President, Haldeman, Mitchell, and Dean : 

[A]ssuming that some corner of this thing comes unstuck at some time, you’re 
then in a position to say, “Look, that document I published [Dean Report] is 
the document I relied on. . . . (HJCT 159) 

The President also discussed using the Dean report if White House 
aides were called to testify before the Grand Jury or Senate Select 
Committee. 

President. Well, they go in — do both: Appear before the Grand Jury and the 
Committee? 

Dean. Sure. 

Ehrlichman. You have to bottom your defense, your position on the report. 

President. That’s right. 

Ehrlichman. And the report says, “Nobody was involved,” (HJCT 172) 

The President’s public statements regarding a Dean “report” were 
in every case, as revealed by the transcripts, part of the continuing 
cover-up. 

C. TIIE EIIRLICTIMAX REPORT 


At a press conference on September 5, 1973, President Nixon said 
that when lie realized that John Dean would not be able to complete 
his report at Camp David, he assigned John Ehrlichman to conduct 
a “thorough investigation” to get all the facts out: 

The investigation, up to that time, had been conducted by Mr. Dean. . . . 
When he was unable to write a report, I turned to Mr. Ehrlichmau. Mr. Ehrlich- 
man did talk to the Attorney General ... on ... I think it was the 27th of 
March. The Attorney General was quite aware of that and Mr. Ehrlichman, in 
addition, questioned all of the major figures involved and reported to me on the 
14th of April, and then, at my suggestion — direction, turned over his report to 
the Attorney General on the 15th of April. An investigation was conducted in 
the most thorough way. (“Presidential Statements,” 9/5/73, 52) 


3 The sentence “Understand, [laughs] I don’t want to j?et all that God damned specific.” 
does not appear in the White House transcript. ( WHT 257) 



85 


The “report/ 4 5 Ehrlichman had been asked to prepare in April, 1973, 
was part of a “scenario 55 designed to prevent disclosure of the Pres- 
idents complicity in the cover-up and to explain the President’s lack 
of response to Dean’s information of March 21, 1973. The President 
also wanted the “report 15 to give him credit for disclosing facts about 
to be revealed by potential defendants (La Rue, Dean, Magruder) 
to the United States attorneys and the grand jury, in spite of his own 
attempts to prevent those disclosures. Since Dean had told the Presi- 
dent mi March 21, 1973, of Ehrlichman’s complicity in an obstruction 
of justice, and of his potential criminal liability for the break-in at 
the office of Ellsberg’s psychiatrist, (HJCT 90-92) the fact that the 
President appointed Ehrlichman to make an “investigation 55 is, in 
itself, evidence of the President’s direction of, and complicity in, the 
cover-up. 

By mid- April, 1973, Magruder and Dean were meeting with 
United States attorneys. (Book IV, 538, 610) On April 14, 1973 the 
President met with Haldeman and Ehrlichman at 8:55 a.m. 4 (Book 
IV, 662) Ehrlichman told the President that Colson had reported 
that, since there was no longer any point in remaining silent. Hunt 
had decided to testify ; and that Hunt’s testimony would lead to the 
indictment of Magruder and Mitchell. (WHT 409-10) Ehrlichman 
suggested that the President could put pressure on Mitchell to 1 accept 
full responsibility for the Watergate affair by telling Mitchell that 
Ehrlicliman’s “report”, which was never prepared, already showed his 
guilt. 

E I’m essentially convinced that Mitchell will understand this thing. 

P Right, 

E And that if lie goes in it redounds to the Administration’s advantage. If 
lie doesn't then we’re — 

P How does it redound to our advantage? 

E That you have a report from me based on three weeks’ work; that when 
you got it, you immediately acted to call Mitchell in as the provable wrong- 
doer. and you say, “My God, I’ve got a report here. And it’s clear from this re- 
port that you are guilty as hell. Now, John, for (expletive deleted) sake go on 
in there and do what you should. And let’s get this thing cleared up and get it 
off the country’s back and move on.” And — 

H Plus the other side of this is that that’s the only way to- beat it now. 
(WHT 43JVAO) 

The President’s hope was that this scheme to “nail” Mitchell, the 
“big fish” (WHT 670-71), the “bis* Enchilada” (WHT 347), would 
“take a lot of the fire out of this thing on the coverup” (WRT 756) 
and that, as Ehrlichman told the President, the prosecutors “would 
certainly be diverted.” (WHT 457) 

At 2 :24 p.m. on April 14, the President met with Haldeman and Elir- 
lichman. 5 (Book IV, 779) Ehrlichman said that he saw no purpose in 
seeing Magruder. Haldeman added that “Magruder is already going to 
do what John is going to tell him to do. . . .” The President reminded 
Haldeman and Ehrlichman, however, that, “Our purpose, as I under- 
stood it — what I mean Bob, was for making a record.” (WHT 537) 


4 On April 11 , 1974 , the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcriot. 

5 On April 11. 5 974, the House Judiciary Committee subpoenaed the tape recording and 
and other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



86 


Later in the conversation there was a discussion of what the scope of 
the Ehrlichman report should be : 

E Well, I didn’t go into White House involvement. I assume that— 

P No. I (unintelligible) 

E That what you needed to know from me, and this would be what I would 
say, “What the President needed to know was the truth or falsity of charges that 
were leaking out with regard to — Committee for the Re-election personnel and 
any connections to the White House that might exist. That was the area of in- 
quiry rather than whether anybody in the White House was involved.” 

P (Unintelligible) trying to get you out there in a way that you didn’t have 
to go into all that stuff, you see. (WHT 564—65) 

Two days later, on April 16, 1973, after the President had learned 
the substance of Dean’s disclosure to the prosecutors (Petersen testi- 
mony, 3 HJC 81-82), the President directed Ehrlichman to prepare 
“a scenario with regard to the President’s role. . . “Otherwise,” 
Ehrlichman said, “the Justice Department will, of course, crack this 
whole thing.” 6 (WHT 782-83) 

From 10 :00 to 10 :40 a.m. on April 16, the President met with Dean. 
(Book IV, 1143) The President asked Dean to think about how to 
handle things “[so] that the President is in front. . . Dean agreed 
to give the President some notes. The President said, “The record. 
Here’s what I’ve done. Here’s what I’ve done, and what you think the 
President ought to do and when — you see what I mean ?” (H JCT 207 ) 

In another meeting with Ehrlichman and Haldeman at 10 :50 a.m., 7 
(Book IV, 1204) the President asked how the “scenario” had worked 
out. Haldeman replied : 

H Well, it works out very good. You became aware sometime ago that this 
thing did not parse out the way it was supposed to and that there were some dis- 
crepancies between what you had been told by Dean in the report that there was 
nobody in the White House involved, which may still be true. 

P Incidentally, I don’t think it will gain us anything by dumping on the Dean 
Report as such. 

E No. 

P What I mean is I would say I was not satisfied that the Dean Report was 
complete and also I thought it was my obligation to go beyond that to people 
other than the White House. 

E Ron has an interesting point. Remember you had John Dean go to Camp 
David to write it up. He came down and said, “I can’t.” 

P Right. 

E That is the tip off and right then you started to move. 

P That’s right. He said he could not write it. 

H Then you realized that there was more to this than you had been led to 
believe, (unintelligible) 

P How do I get credit for getting Magruder to the stand? 

E Well it is very simple. Y ; ou took Dean off of the case right then. 

H Two weeks ago, the end of March. 

P That’s right. 

E The end of March. Remember that letter you signed to me? 

P Uh, huh. 

E 30th of March. 

P I signed it. Yes. 


0 On April 11, 1974. the House Judiciary Committee subpoenaed the tape recording 
and other materials related to this conversation. The President refused to produce tills 
recording. The President submitted an edited transcript. 

7 On April 11. 1974. the House Judiciary Committee subpoenaed the tape recording 
and other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



87 


E Yes sir, and it says Dean is off of it. I want you to get into it. Find out 
what tlie facts are. Be prepared to — 

Ehrlichman suggested that the President say that after Dean was 
taken off, “we started digging into it,” u [y]ou began to move,” and 
that it all “culminated last week.” The “culmination” was to be when 
Mitchell, Magruder and Strachan were “brought in.” 

E In your decision that Mitchell should be brought down here ; Magruder 
should be brought in ; Strachan should be brought in. 

P Shall I say that we brought them all in? 

E I don’t think you can. I don't think you can. 

H I wouldn’t name them by name. Just say I brought a group of people in. 

E Personally come to the White House. 

P I will not tell you who because I don’t want to prejudice their rights before 

( unintelligible) 

Ehrlichman continued : 

E I had this report and I tried all day long to get the Attorney General who 
was at the golf course and got him as soon as he got home for — 

P Do we want to put this report out sometime? 

E I am not sure you do, as such. 

P I would say it was just a written report. 

E The thing that I have — 

P The thing they will ask is what have you got here ? 

H It was not a formal report. It was a set of notes. 

P Handwritten notes? 

E Yeah. There are seven pages, or eight pages. Plus all my notes of my inter- 
views. ( WHT 820-25) 

Ehrlichman later testified that he had not conducted an investiga- 
tion. (Ehrlichman testimony, 7 SSC 2713-14) He delivered to the SSC 
some notes of interviews but nothing that could constitute a report. 
(Ehrlichman testimony, 7 SSC 2915-43) No letter from the President 
saying “Dean is off of it,” as suggested in the “scenario” to the Presi- 
dent on April 16, 1973, has ever been produced. There is no evidence 
that any such letter existed. Ehrlichman said he had interviewed Paul 
O’Brien on April 5, 1973 (Book IV, 509, 518) ; Kalmbach on April 6, 
1973 (Book IV, 534, 536), Dean on April 8, 1973 (Book IV, 540) ; 
Strachan on April 12, 1973 (Book IV, 550-51) ; Colson on April 13, 
1973 (Book IV, 595-96) ; Mitchell and Magruder on April 14, 1973 
(Book IV, 718-19) ; and Strachan on April 5, 1973 (Book IV, 897; 
Ehrlichman testimony, 7 SSC 2727). The meeting with O’Brien was 
at O’Brien’s request. O’Brien originally had requested a meeting with 
Haldeman to request that the civil suits by the DNC and common 
cause against CRP be settled and that O’Brien be permitted to confer 
with the Senate Select Committee. (O’Brien testimony, 1 HJC 132, 
134-36; Book IV, 512) Ehrlichman’s notes of the meeting contain the 
entries “Must close ranks — JNM [Mitchell] will tough it out” and 
“H must bring Jeb [Magruder] up short — shut up, stop seeing people.” 
(Book IV, 527, 532), Ehrlicllman’s notes of his meeting with Kalm- 
bach say that Kalmbach was worried about the effect that his testimony 
about raising money for the Watergate defendants would have upon 
his reputation and his family ; and that Kalmbach thought Dean told 
him Ehrlichman and Haldeman had approved his raising these funds. 
(Kalmbach testimony, 3 HJC 564; Book IV, 536) The edited White 
House transcript of Elirlichman’s April 8, 1973, account to the Presi- 
dent of his meeting with Dean and Haldeman shows that the meeting 
consisted of a discussion of strategy. (WHT 401-07) 



88 


The meeting with Strachan, which Halcleman attended, was about 
St radian’s concern that he had committed perjury in his grand jury 
testimony of the day before. (Book IV, 550-51) On April 12, 1973, 
the President asked Colson what he thought the President should do 
about Watergate. (Colson testimony, 3 HJC 341) The edited White 
House transcript of Ehrlichman’s April 14, 1973, account of his meet- 
ing with Colson shows that the meeting consisted of a discussion of 
strategy. 8 (WHT 409-14) In his conversation of April 14, 1973, with 
Mitchell, Ehrlichman did not seek to elicit facts. (Book IV, 725-68) 
On April 14, 1973, after he was informed that Magruder was about to 
meet with the prosecutors, the President instructed Ehrlichman 
to meet with Magruder just “for making a record” for which the 
President hoped to get credit. 9 (WHT 537) Ehrlichman met with 
Strachan. (Book IV, 891-95, WHT 646-47) 

Ehrlichman never mentioned his assignment to Acting FBI Direc- 
tor Gray. (Book IV, 1) Although they spoke at least twice in early 
April, Ehrlichman did not discuss his inquiry with Attorney General 
Kleindienst until April 14, 1973. (Book IV,* 215) On April 14, 1973, 
when Ehrlichman did speak with Kleindienst, he said he had very 
little to add to what Magruder had already given the United States 
Attorney. (WHT 632) He said that Magruder had implicated people 
up and down in CRP. When Kleindienst asked whom Magruder had 
implicated besides Mitchell, Ehrlichman answered Dean, LaRue, Mar- 
dian and Porter. He did not mention Colson or Strachan. Ehrlich- 
man’s notes of his meeting with Magruder read : “Strachan primary 
contact, copies of bud. [budget] talked to JSM [Magruder]”; “ail 
nervous — Mag., Mitch, Strachan”; “Strachan informed — orally, Bid- 
dy’s project, He had budget, ‘6 bugs @ ’ etc” ; “Strachan saw synopses” ; 
“CC [Colson] called — never said wiretap — projects”; “CC Needed 
info on L. O’Brien”; “CC — Had to get O’B.” (Book IV, 803-09) 

II 

Perjury by White House and CRP Officials 

To continue the cover-up, White House and CRP officials lied under 
oath. Some witnesses told untrue stories. Others untruthfully said 
they could not recall certain facts. 10 

The first distinct phase in which the President, his White House 
staff and CRP officials, including Porter and Mitchell, Strachan, and 
Magruder, made false and misleading statements to further the cover- 
up was from June, 1972, to March, 1973. It is uncontested that on 
March 13 the President was informed of Straclian’s perjury and on 
March 21 of Magruder’s and Porter’s perjury. Magruder’s uutruth- 


8 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording 
and other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

0 On April 11. 197.4, the House Judiciary Committee subpoenaed the tape recording 
and other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

10 Ehrlichman and Chapin have been ronvicted of perjury. Krogh, Magruder, and Porter 
pleaded guilty to conspiracy charges which included their perjury among the overt acts. 
Mitchell, Haldeman and Strachan have been indicted for perjury and are awaiting trial. 
Haldeman. Ehrlichman and Mitchell testified, in response to questions, they could not 
recall 206, 136 and 255 times respectively, according to transcripts in the Committee’s 
files. 



89 


ful testimony provided an innocent explanation for the commitment of 
$250,000 of CEP money to the Liddy Plan. (Book III, 246-51, 298) 
Porters untruthful testimony corroborated Magruder’s story. (Book 
III, 236^11, 292-93) Strachan’s false statements concealed the in- 
volvement of Haldeman and the White House in the Liddy Plan. 
( United States v. Mitchell , CR 74-110, indictment, 44-50, “Criminal 
Cases,” 146-52 ; Book IV, 551 ) 

Tlie second phase of false statements to further the cover-up began 
near the end of March, 1973, with the reconvening of the Watergate 
Grand Jury. 

Some of this testimony was given at the direction of the President. 
On March 21, 1973, the President told Dean and Haldeman “[j]ust 
be damned sure you say I don’t . . . remember ; I can’t recall, I can’t- give 
any honest, an answer to that that I can recall. But that’s it.” 11 
(HJCT 120) 

There is no evidence that when the President learned of perjury, 
false statements or failure to recall, or other false statements, on the 
part of his staff, he condemned such conduct, instructed that it be 
stopped, dismissed the responsible members of his staff, or reported 
his discoveries to an appropriate authority. The evidence before the 
Committee shows, on the contrary, that the President directed this 
conduct, condoned it, approved it, rewarded it, and in some instances 
specifically instructed witnesses on how to mislead investigators. 

7. S track an 

From the time of the break-in, Strachan, who was Haldeman’s 
liaison with CRP (Butterfield testimony, 1 HJC 15), could link 
Haldeman with approval of the Liddy Plan. (Book I, 164-66) On 
March 13, 1973, Dean informed the President that Strachan had 
falsely denied White House involvement soon after the break-in, and 
that Strachan planned to stonewall again : 

Dean. Well, Chapin didn’t know anything about the Watergate, and — 

President. You don’t think so? 

Dean. No. Absolutely not. 

President. Did Strachan? 

Dean. Yes. 

President. He knew? 

Dean. Yes. 

President. About the Watergate? 

Dean. Yes. 

President. Well, then. Bob knew . 12 He probably told Bob, then. He may not 
have. He may not have. 

Dean. He was, he was judicious in what he, in what he relayed, and, uh, but 
Strachan is as tough as nails. I — 

President. What’ll he say? Just go in and say he didn’t know? 

Dean. He’ll go in and stonewall it and say, “I don’t know anything about what 
you are talking about.” He has already done it twice, as you know, in inter- 
views , 13 

President. Yeah, I guess he should, shouldn’t he, in the interests of — Why? I 
suppose we can’t call that justice, can we? We can’t call it [unintelligible] 

Dean. Well, it, it — 

President. The point is, how do you justify that? 


11 In the White House transcript, the President says, “But you can say I don’t remember. 
You can say I can’t recall. I can’t give any answer to that that I can recall.” (WHT 2351 

12 The words “Bob knew” do not appear in the edited White House transcript. (WHT 146) 

13 The word “as” does not appear in tlie edited White House transcript. 



90 


Dean. It’s a, it’s a personal loyalty with him. He doesn’t want it any other 
way. He didn’t have to be told. He didn’t have to be asked. It just is something 
that he found is the way he wanted to handle the situation. 

President. But he knew? He knew about Watergate? Strachan did? 

Dean. Uh huh. 

President. I’ll be damned. Well, that’s the problem in Bob’s case, isn’t it. It’s 
not Chapin then, but Strachan. ’Cause Strachan worked for him. 

Dean. Uh huh. They would have one hell of a time proving that Strachan had 
knowledge of it, though. 

President. Who knew better? Magruder? 

Dean. Well, Magruder and Liddy. 

President. Ah — I see. The other weak link for Bob is Magruder, too. He having 
hired him and so forth. (HJCT 70-71) 

2. Magruder and Porter 

An explanation was necessary for CRP’s payment of $250,000 to 
Liddy. Magruder invented the story that the Liddy Plan contemplated 
only legitimate intelligence activities. (Book III, 298-99) He enlisted 
his assistant Porter to corroborate this untruthful testimony. (Book 
III, 292) Magruder worked on his false story with Dean and discussed 
it with Mitchell. (Book III, 299) Magruder and Porter lied to the FBI 
in July 1972, and committed perjury before the Grand Jury in August 
1972, and at the trial of the Watergate defendants in January 1973. 
(Book III, 292-94, 506) 

Whether or not the President knew of Magruder’s perjury before 
March 21, 1973, there is no doubt that on that date Dean told the Pres- 
ident that Magruder and Porter had committed perjury : 

President. Liddy told you he was planning — wliere'd he learn there was such 
a plan — from whom? 

Dean. Beg your pardon? 

President. Where did he learn of the plans to bug Larry O’Brien’s suite? 

Dean. From Magruder. after the, long after the fact. 

President. Oh, Magruder, he knows. 

Dean. Yeah. Magruder is totally knowledgeable on the whole thing. 

President. Yeah. 

Dean. All right, now, we’ve gone through the trial. We’ve — I don’t know if 
Mitchell has perjured himself in the Grand Jury or not. I’ve never — 

President. Who ? 

Dean. Mitchell. I don’t know how much knowledge he actually had. I know 
that Magruder has perjured himself in the Grand Jury. I know that Porter has 
perjured himself, uh, in the Grand Jury. 

President. Porter [unintelligible] 

Dean. He is one of Magruder’s deputies. 

President. Yeah 

Dean. Uh, that they set up this scenario which they ran by me. They said, 
“How about this?” I said, “I don’t know. I, you know, if, if this is what you are 
going to hang on, fine.” Uh, that they — 

President. What did they say before the Grand Jury? 

Dean. They said, they said, as they said before the trial and the Grand Jury, 
that, that, uh, Liddy had come over as, as a counsel 

President. Yeah. 

Dean, and we knew he had these capacities to, 

President. Yeah. 

Dean, you know. 

President. Yeah. 

Dean, to do legitimate intelligence. We had no idea what he was doing. 

President. Yeah. 

Dean. He w as given an authorization of $250,000 

President. Right. 

Dean, to collect information, because our surrogates w T ere out on the road. 
They had no protection. We had information that there were going to be demon- 
strations against them, that, uh, uh, we had to have a plan to get information as 
to wdiat liabilities they w T ere going to be confronted wdth 



91 


President. Right. 

Dean, and Liddy was charged with doing this. We had no knowledge that he 
was going to bug the DNC. Uh — 14 

President. Well, the point is, that’s not true. 

Dean. That’s right. 

President. Magruder did know that — 

Dean. Magruder specifically instructed him to go back in the DNC. 

President. He did? 

Dean. Yes. 

President. You know that? Yeah. I see. Okay. (HJCT 86-87) 

The President did not act on this information, did not pursue it, did 
not convey it to the Department of Justice. 

In January, 1973, Magruder, before testifying at the Watergate 
trial, told Haldeman that he would commit perjury. (Rook III, 515) 
On February 14, 1973, after the trial, Magruder met with Haldeman 
to discuss his future employment. (Book III, 566-67) On February 19, 
1973, Dean prepared a talking paper for a meeting at which Haldeman 
would discuss with the President Magruder ’s possible appointment to 
an Administration job. (Book III, 570-71) Dean noted that Hugh 
Sloan, whom Magruder had unsuccessfully importuned to commit 
perjury, would testify against Magruder before the Senate if Magru- 
der were appointed to any position for which Senate confirmation was 
required. (Book III, 561) The talking paper reads: 

(3) What to do with Magruder 

— Jeb wants to return to White House (Bicentennial project). 

— May be vulnerable (Sloan) until Senate hearings are completed. 

—Jeb personally is prepared to withstand confirmation hearings. (Book 
HI, 574-75) 

After meeting with the President, 15 Haldeman told Magruder he could 
not have a White House job, but offered him the highest paying avail- 
able position which did not require Senate confirmation: a $36,000 
per year job in the Department of Commerce. (Book III, 567, 572-73, 
577-78) Haldeman believed this was the kind of decision to be checked 
with the President. (Book III, 569) Magruder did not lose his position 
on March 21, 1973, when Dean told the President that Magruder had 
committed perjury. (HJCT 87; Book IV, 565, 1626) Magruder re- 
signed on April 26, 1973, two weeks after he had come forward and 
confessed to the United States Attorney. 

Ill 

Statements To Cover Up the Cover -rr 

In late March, 1973, the President was told by his assistants that the 
cover-up was threatened from various directions. On March 21, 1973, 
there was Hunt’s immediate demand, which the President believed 
could be satisfied in cash. (HJCT 118) But there was also Hunt’s 
expectation of clemency, which Dean advised the President would be 
politically impossible to fulfill ; the President agreed. (HJCT 103-04) 
On April 14, 1973, the President, Haldeman and Ehrlichman discussed 


k 1 ^l e White House transerint there is a question mark after this sentence, 

i II*, 1974. the House Judiciary Committee subpoenaed the tape recording 

and other materials related to this conversation. The President stated that no such 
recorded conversation eould be located. 



92 


their anxiety that Hunt had changed his mind and would talk 
to the prosecutors about payments and offers of clemency. (WHT 
541-619) Another threat to the cover-up was McCord’s letter to Judge 
Sirica and the decision to reconvene the Grand Jury. (Book IV, 
220-24, 336) A third threat was posed by potential disclosures on the 
part of key subordinates involved in the Watergate cover-up. (HJCT 
134) 

Faced with a disintegrating situation, the President, after March 21, 
1973, assumed an operational role in the detailed management of the 
cover-up. He knew of the previous untruthful testimony of his aides 
and of his own false public statements. He issued direct instruction for 
his subordinates to give false and misleading testimony. The President 
knew that his agents had instructed and were continuing to instruct 
witnesses on how to testify to protect the cover-up ; the President him- 
self so instructed witnesses. On April 15, 1973, the President learned 
from Ehrlichman that Mardian had worked with witnesses on false 
testimony for their appearances before the Grand Jury. 

P Well, is there anything wrong with that ? 

E Yeah, well there’s something wrong with — 

P He was not their attorney is the problem ? 

E Well, no the problem— the problem is he asked them to say things that 
weren’t true. (WHT 687-88) 10 

1. Magruder 

On March 23, 1973, Judge Sirica read in open court a letter from 
James McCord charging that witnesses had committed perjury in 
his trial, and that more people than the seven original defendants 
were involved in Watergate. (Book IV, 220-24) In meetings with 
Hal deman and Ehrlichman, the President developed a strategy to 
implicate Mitchell and to conceal the complicity of the President and 
his closest White House aides. The President reasoned that, in exchange 
for a promise of immunity, Magruder would limit his disclosure to his 
own complicity and Mitchell’s. At the March 27, 1973 meeting the 
President took part in the following discussion with Haldeman and 
Ehrlichman : 

H Let’s go another one. So you persuade Magruder that his present approach 
is (a) not true; I think you can probably persuade him of that; and (b) not 
desirable to take. So he then says, in despair, “Heck, what do I do? Here’s McCord 
out here accusing me. McCord has flatly accused me of perjury — He’s flatly 
accused Dean of complicity.” Dean is going to go, and Magruder knows of the 
fact that Dean wasn’t involved, so he knows that when Dean goes down, Dean can 
testify as an honest man. 

******* 

P What would you advise him [Magruder] to do? 

H I would advise him to go down and clean it up. 

P And say I lied? 

H I would advise him to seek immunity and do it. 

P Do you think he can get immunity? 

H Absolutely. 

P Then what would he say? 

E He would say, “I thought I was helping. It is obvious that there is no profit 
in this route. I did it on my own motive. Nobody asked me to do it. I just did it 


16 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcript. 



93 


because I thought it was the best thing to do. Everybody stands on it I was 
wrong to do it.” That’s basically it. 

H Magruder's viewpoint that to be ruined that way which isn’t really being 
ruined is infinitely preferable to going to jail. Going to jail for Jeb will be a very, 
very, very difficult job. 

E (uuintelligble) he says he is a very unusual person. The question now is 
whether the IT. S. Attorney will grant, immunity under the circumstances. 

H Well he would if he thought he was going to get Mitchell. 

E Yeah, that’s right. 

H The interesting thing would be to watch Mitchell’s face at the time I 
recommend to Magruder that he go in and ask for immunity and confess. 17 
(WHT 350-52) 

On April 13, 1973 Magruder started talking to the prosecutors. 
(Book IV, 610-11) Haldeman’s principal assistant, Lawrence Higby, 
called Magruder and confronted him with reports that- lie had impli- 
cated Haldeman in the Watergate break-in. (Book IV, 613-16) Higby 
recorded the conversation. He told Magruder that it was not in Mag- 
ruder's long or short range interest to blame the White House. Higby 
said lie could not believe Magruder would implicate Haldeman, who 
“has brought you here.” (Book IV, 619, 624) Magruder said that Stra- 
clian had not specifically told him that Haldeman wanted the Liddy 
Plan approved. (Book IV, 625—27) On the morning of April 14, 1973, 
Haldeman reported this conversation to the President. Haldeman said 
that Higby had handled it skillfully and that the recording made by 
Higby “beats the socks off” Magruder if he ever “gets off the reserva- 
tion.” (WHT 415-16) The President had known as early as March 21, 
1973, that he could not count on Magruder. (Book III, 1245-46 ; HJCT 
120, 140— 11) 18 On April 14, 1973, the President concurred when Elir- 
lichman described Magruder as au “emotional fellow ready to crack.” 19 
(WHT 417) The President instructed Ehrlicliman to meet with Mag- 
ruder for the purpose of making a record. ( WHT 478, 500, 537) Later 
that day, Haldeman said in the presence of the President, that Mag- 
ruder should be asked to repeat what he told Higbv and that Ehrlich- 
man should say. “Good.” 20 (WHT 537) 

3. St radian 

If Magruder were to admit having committed perjury and were 
to cooperate fully with the United States Attorney, Straclian’s prior 
knowledge of the DNO bugging would be revealed, and this would im- 
plicate Haldeman. At . an afternoon meeting on April 14, 1973, the 
President and Haldeman discussed what St radian’s strategy before 
the Grand Jury should be. 

H I don’t think Magruder knows about the aftermath. 

P Where does he [Magruder] get to Gordon Strachan? 


17 On April 11, 1974. the House Judiciary Committee subpoenaed the tape recording and 
other materials related to the conversation. The President refused to produce this record- 
ing-. The President submitted an edited transcript. 

18 In his dictated recollections on March 21, the President said Magruder would “bring 

jTfUUp’^fin w,n« “o rafter ^enk men. w’m K*>rl «U +hp noneni’ances of character, 

but who really lacks it when the. uh. chips are down.” (Book III, 1245—46) 

151 On Anril 11, 1974. the House .TivUejory Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcript. 

20 On Anril 11, 1974, the House .Tudieiery Committee subpoenaed the tape rceording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcript. 



94 


H He says he gets Gordon on — 

P Sending material to him — 

******* 

P He will testify that he sent materials to the White House? 

H If he is asked, he will, yes. 

P He’ll be asked— is that something he will say lie sent to the White House. 
What would Straehan say? 

H Straehan has no problem with that. He will say that after the fact there 
are materials that I can now surmise were what he is referring to but they were 
not at the time identified in any way as being the result of wiretaps and I did 
not know they were. They were amongst tons of stuff. Jeb makes the point. He 
said, I am sure Gordon never sent them to Bob because they were all trash. 

There was nothing in them. He said the tragedy of this whole thing is that it 
produced nothing. 

P Who else did he send reports to — Mitchell ? 

H I don’t know. The thing I got before was that he sent them either to — 
that one went to him and one went to Straehan. 

P What our problem there is if they claim that the reports came to the 
White House — basically to your office — what will you say then? 

H They can. This doesn’t ever have to come out. 21 (WHT 520-21; see also 
WHT 537, 592) 

Haldeman explained that even if the question were asked before the 
Grand Jury, Grand Jury proceedings are secret. (WHT 521) On the 
night of April 14, 1973, the President telephoned Haldeman. He told 
Haldeman that before Straehan appeared before the Grand Jury he 
should be told what Magruder had told the United States Attorneys. 
The President asked Haldeman if Straehan were smart enough to 
testify in a way that did not indicate that he knew what Magruder 
had said. The President also said that Straehan has to be prepared 
and that Ehrliehman should speak to Straehan and “put him through 
a little wringer.” 22 The President said Ehrliehman should be the one 
to do it because he was conducting an investigation for the President. 
(WHT 639-41, 646-47) On the afternoon of April 16, 1973, Ehrlioh- 
man told the President that Straehan had stonewalled, that although 
the prosecutors “really worked him over” and “[d]espite considerable 
fencing, he refused to discuss the matter and was excused by the 
prosecutors.” 2,1 (WHT 933) 

3. Haldeman 

On April 25, 1973, the President directed Haldeman to listen to the 
taped conversation of the March 21, 1973 morning meeting among 
the President, Dean and Haldeman. (Book IX, 108-11) Haldeman 
requested and received twenty-two tapes of Presidential conversations 
held in February, March and April, 1973. (Book IX. 114-15, 123-25) 
On the afternoon of April 25, 1973, Haldeman listened to the March 21 
morning conversation, made twenty pages of detailed notes, and re- 
ported to the President on the contents of the tape. (Book IX, 116) 
The President ordered Haldeman to listen to the March 21 tape again. 


non April 11. 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President, submitted an edited transcript. 

22 On Anril 11. 1974. the House Judiciary Committee subpoenaed the tane recording and 
other materials related to this conversation. The President refused to produce this record- 


ing. The President suhmitted an edited transcript. 

23 On April 11. 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 


ing. The President submitted an edited transcript. 



95 


On April 26, 1973, Haldeman again listened to the March 21 tape and 
reported to the President. On April 26, 1973, the President and Halde- 
inan met for approximately five hours, beginning at 3 :59 p.m., and 
concluding at 9 :03 p.m. (Book IX, 126) 

On June 4, 1973, the President told Alexander Haig and Ziegler that 
Haldeman could “handle” the March 21 conversation. (Book IX, 177- 
78,193) 

President Well, as I told you, we do know we have one problem : 

It’s that damn conversation of March twenty-first due to the fact that, uh, for 
the reasons [unintelligible]. But I think we can handle that. 

Haig. I think we ca — , can. That’s, that’s the — 

President. Bob can handle it. He’ll get up there and say that — Bob will 
say, “I was there ; the President said — 

* ****** 

President. Okay. The twenty -first and the twenty-second. Uh, uh, twenty — 
twenty -first I’ve got to Bob already. The twenty-second [unintelligible]. 

Ziegler. [Unintelligible] 

President. Well — no, if you can — I don’t think you can. He’s, lie’s got it all 
in our file and I don't — let’s just forget it. I think after the twenty-first we 
forgot what the hell— What' do you think? (Book IX, 177-78, 193) 

Haldeman subsequently testified before the SSC about the meeting 
of March 21, 1973, specifically citing the following statement : 

(a) That the President said, “[T]here is no problem in raising a million 
dollars, we can do that, but it would be wrong.” (Book IX, 440) 

(b) That “There was a reference to his [Dean’s] feeling that Magruder had 
known about the Watergate planning and break-in ahead of it, in other words, 
that he was aware of what had gone on at Watergate. I don’t believe that 
there was any reference to Magruder committing perjury.” (Haldeman testi- 
mony, 8 SSC, 3144) 

On August 22, 1973, the President said that Haldeman’s testimony 
regarding the President’s statements during the conversation was 
accurate. (“Presidential Statements,” 8/22/73, 49) 

If. Ehrlichman 

On April 17, 1973, the President met with Haldeman and Ehrlich- 
man and Secretary of State Rogers. (Book IV, 1423) After a brief 
discussion of Hal deman’s and Ehrlichman’s future, 25 the President 
spoke of his former personal attorney, Herbert Kalmbach, saying 
that it was “terribly important that poor Kalmbach get through 
this thing.” (WHT 1201) The President asked if Dean had called 
Kalmbach about fundraising. Haldeman replied that Dean had. 
Ehrlichman said that Dean had told Kalmbach what the money was 
to be used for. The President suggested that Ehrlichman testify 
otherwise. 

E Dean told me that lie told him what it was for. I don’t believe him. Herb 
said that lie just followed instructions, that he just went ahead and did it and 
sent the money back and — 

P They said they need it for? 


24 On May 30. 1974, the House Judiciary Committee subpoenaed tlie tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. 

On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 


37-777 0 - 74 -7 



96 


E I don’t even know if they told him wliat for. It was an emergency and they 
needed this money and I don’t know whether he can get away with that or if 
it’s more specific than that. 

P You can corroborate then Herb on that one. 

E I can if Dean is the accuser. I can. 

P If Dean is the accuser, you can say that he told you on such and such a 
date that he did not tell Herb Kalmbach what the money was for. (WHT 1201) 

5 . Colson 

On April 14, 1973, Ehrlicliman reported to the President about liis 
conversation with Magruder, in which Magruder had told Ehrlicliman 
what he was telling the prosecutors. (WHT 582-87) 26 The President, 
concerned that Colson would be called before the Grand Jury (WHT 
602) , instructed Ehrlicliman to warn Colson about what Magruder had 
told the prosecutors. 

P We’ll see. We’ll see. Do your other business, etc. John, [Dean] too, I 
wonder if we shouldn’t reconsider, if you shouldn’t, I mean you have to consider 
this — rather than having Colson go in there completely blind, give him at least 
a touch up — or do you think that is too dangerous. 

E gay that again — I didn’t quite hear it. 

P Colson — rather than just saying nothing to him, if it isn’t just as well to 
say — look you should know that Magruder is going to testify, etc., or is that 
dangerous according to Kleindeinst? 

E I’m not so sure. I have to call him anyway tomorrow. He has an urgent call 
in for me. Ah, I don’t think I want to say anything at all to him about John. John, 
incidentally, I understand, was on CBS News and just hardlined them. 

P Oli, I agree on John. 

E Yeah 

P On Magruder that is what I meant. 

E Well, I can say something very brief. I don’t need to indicate that he said 
anything to me. 

P Yeah, that you understand that he has talked. I mean, not to the Grand 
Jury but to — 

E Yeali, I think I could safely go that far. 

P And say that he should know that before he goes, and be prepared. 

E Friday — I will call him in the morning. 

P Let me put it this way : I do think we owe it to Chuck to at least — 

E Sure 

P So that he doesn’t, I mean, go in there and well frankly on a perjury 
rap — 

E I understand. I don’t think he is in any danger on that but — 

P Why wouldn’t he be in any danger, because he’s got his story and knows 
pretty well what he is going to say? 

E Yeah, I think he is pretty pat, but I will talk to him in the morning and 
give him a cautionary note anyway. (WHT 650-51) 27 

III 

April 30, 1973 Statement 


On April 30, 1973, the President addressed the nation about the 
Watergate investigation. 

Last June IT, while I was in Florida trying to get a few days rest after my 
visit to Moscow, I first learned from new r s reports of the Watergate break-in. I 
was appalled at this senseless, illegal action, and I was shocked to learn that 


20 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

27 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



97 


employees of the Be-election Committee were apparently among those guilty. I 
immediately ordered an investigation by appropriate Government authorities. 
On September 15, as you will recall, indictments were brought against seven 
defendants in the case. 

As the investigations went forward, I repeatedly asked those conducting the 
investigation whether there was any reason to believe that members of my Ad- 
minstration were in any way involved. I received repeated assurances that there 
’were not. Because of these continuing reassurances, because I believed the re- 
ports I was getting, because I had faith in the persons from whom I was getting 
them, I discounted the stories in the press that appeared to implicate members 
of my Administration or other officials of the campaign committee. 

Until March of this year, I remained convinced that the denials were true and 
that the charges of involvement by members of the White House staff were 
false. The comments I made during this period, and the comments made by my 
Press Secretary in my behalf, were based on the information provided to us at 
the time we made those comments. However, new information then came to me 
which persuaded me that there was a real possibility that some of these charges 
were true, and suggesting further that there had been an effort to conceal the 
facts both from the public, from you, and from me. 

As a result, on March 21, I personally assumed the responsibility for coordi- 
nating intensive new inquiries into the matter, and I personally ordered those 
conducting the investigations to get all the facts and to report them directly 
to me, right here in this office. 

I again ordered that all persons in the Government or at the Re-election Com- 
mittee should cooperate fully with the FBI, the prosecutors, and the grand jury. 
I also ordered that anyone who refused to cooperate in telling the truth wouid 
be asked to resign from government service. And, with ground rules adopted 
that would preserve the basic constitutional separation of powers between the 
Congress and the Presidency, I directed that members of the White House Staff 
should appear and testify voluntarily under oath before the Senate committee 
which was investigating Watergate. 

I was determined that we should get to the bottom of the matter, and that the 
truth should be fully brought out — no matter who was involved. (“Presidential 
Statements,” 4/30/73, 14-15) 

This statement, like the President’s statement on August 29, 1972, 
that “we are doing everything we can to investigate this incident and 
not cover up/’ was false. The evidence set forth in this section com- 
pelled the Committee to conclude that both before and after March 21. 
1973, the cover-up was sustained by false public statements by the 
President assuring that the White House or CKP were not involved, 
as Avell as, by false statements and testimony by the President’s close 
subordinates, which the President condoned and encouraged and in 
some instances directed, coached and personally helped to fabricate. 



THE PRESIDENT’S INTERFERENCE WITH THE DEPART- 
MENT OF JUSTICE INVESTIGATION IN MARCH AND 

APRIL 1973 

I 

The New Plan After March 21, 1973 

On the morning of March 21, 1973, Counsel to the President John 
Dean told the President that there was a “cancer” close to the Presi- 
dency, which, Dean said, was growing daily. Dean warned that the 
White House was being blackmailed; and that even people who had 
not yet committed perjury would soon have to perjure themselves to 
protect other people. Dean said there was no assurance that the prob- 
lems could be contained. (HJCT 81) He spoke of the adoption of the 
Liddy Plan. He said that in February, 1972, Liddy and Hunt had 
gone to Colson; that Colson had called Magruder and told him either 
to “fish or cut bait”; that Colson had “had a damn good idea” what 
Liddy and Hunt were talking about. Dean said Colson would deny 
it and probably get away with it unless Hunt talked. The President 
acknowledged the problem of criminal liability in the White House. 

Dean said that when the Liddy Plan had gotten under way Strachan 
had started pushing Magruder for information. Magruder had taken 
that as a signal, and had told Mitchell that the White House was 
anxiously pushing the plan. Dean said that Haldeman had once 
instructed Liddy to change his “capability” from Muskie to McGov- 
ern. (HJCT 84-85) 

Dean said that in June, 1972, when he had called Liddy to find out 
what happened, Liddy had told him that no one in the White House 
was involved. Liddy said he had been pushed without mercy by 
Magruder to get more information. Dean said that Magruder had 
said, “The White House is not happy with what we’re getting.” 
(HJCT 86) 

Dean then spoke of the cover-up. Dean said that Magruder aud 
Porter had prepared with him a false story about the purpose of the 
money spent on the Liddy Plan, and then perjured themselves before 
the Grand Jury. (HJCT 87) Dean said he had worked on a theory of 
“containment” and the President responded, “Sure.” (HJCT 88) 
Dean said that Colson had told the FBI he had no knowledge concern- 
ing the break-in ; and that Strachan had been coached before his FBI 
interview. Dean said Liddy had gone to Attorney General Kleindienst 
and asked him “to get my men out of jail,” but that “this has never 
come up.” (HJ CT 89) 

Dean spoke about payments to the defendants, who had made 
demands. He said that arrangements had been made through Mitchell 
to take care of the demands ; that Kalmbach had been used and had 
raised some cash. The President interrupted by asking if that had 
been put under the cover of a Cuban Committee. He instructed Dean 

( 98 ) 



99 


to keep “that cover for whatever it’s worth.” Dean said Haldeman, 
Ehrlichman, Mitchell and Dean were involved in the payments and 
“that’s an obstruction of justice” (HJCT 90), but that they had all 
decided that there was no price too high to pay to keep the thing 
from blowing up before the election. When, after the election, they had 
still needed money, Dean said, Haldeman had released his $350,000 
fund with full knowledge of the purpose for which it was to be, 
used. (HJCT 90) 

Dean spoke of clemency. He said that Colson had talked indirectly 
to Hunt about commutation and that these “promises” and “commit- 
ments” were problems. (HJCT 91) Dean reviewed other potential 
problems, “soft spots.” One was the “continued blackmail,” particu- 
larly by Hunt, who was now demanding $120,000. Dean said Hunt 
had threatened to put Ehrlichman in jail for liis involvement in the 
Ellsberg break-in (HJCT 92), and that Hunt “could sink Chuck Col- 
son.” (HJCT 96). The President said that the major guy to keep 
under control was Hunt because he knew about a lot of other things. 
Another potential problem was the number of people who knew. Dean 
said that the Cubans Hunt used in the Watergate were the same Cubans 
used in the Ellsberg break-in. Dean said that the lawyers for the de- 
fendants knew, and that some wives knew. (HJCT 92-93) Dean said 
that Krogh had been forced to commit perjury and that he had been 
haunted by it (HJCT 95), and that Kalmbaeh might find himself in 
a perjury situation. (HJCT 97) 

After Dean had said all this, the President suggested that it could 
come down to a criminal case against Haldeman, Dean, Mitchell and 
Ehrlichman. The President considered steps “to contain it again.” 
(HJCT 100). 

At that point Dean said he was not comfortable. The President said, 
“You used to feel comfortable.” Dean said that they had been able 
“to hold it for a long time,” and the President replied, “Yeali, I know 7 .” 
(HJCT 101-02) The President raised the possibility of asking for 
another grand jury. Dean said some people would have to go to jail 
and lie w as bothered about the obstruction of justice. The President 
said he thought that “could be cut off at the pass.” He explained that 
sometimes “it's well to give them something and then they don’t want 
the bigger fish.” (HJCT 102-03) 

The President and Dean continued to explore ways of avoiding 
criminal liability for anyone at the White House. Dean told the Presi- 
dent that he had been a conduit for information on taking care of 
people who are guilty of crimes. (HJCT 102) The President said, 
“You mean the blackmail,” and Dean said, “Right.” 

TV hen Dean said that before the election there had been some bad 
judgments, some necessary judgments, but that, faced w r ith the election, 
there was no way, the President agreed. (HJCT 104) 

When the President and Dean returned to the subject of potential 
criminal liability — and talked about Ehrlichmams risk (HJCT 105), 
Dean said, “I don’t have a plan of how to solve it but we should think 
in terms of how to cut our losses.” (HJCT 105) The President in- 
structed (1) to stabilize Hunt for the short term; and (2) to get 
Mitchell dowm to meet with Haldeman, Ehrlichman and Dean, to dis- 
cuss the most dangerous problems for the President, e.g. : criminal 
liability of his close subordinates. 



100 


Dean told the President that the Grand Jury would reconvene dur- 
ing the next week, and that a lot of these people could be indicted. 
The President said that if they indicted Bob and the rest “you’d never 
recover from that” and it would be “better to fight it out instead.” 
(HJCT 106) 

Then the President asked how soon a meeting with Mitchell could 
be arranged. Dean said that Bob and John had not wanted to talk 
to Mitchell. The President then called Haldeman into the meeting. 
(HJCT 107) 

After Haldeman had entered the room, the President instructed him 
to call Mitchell to Washington to discuss with Haldeman, Ehrlichman 
and Dean w T ays of avoiding criminal liability for members of the 
White House staff. The President was concerned because, as he said, 
“Bob, let’s face it, too many people know.” (HJCT 109) 

The President directed that Colson be kept- out of the strategy 
meeting. “Colson must be damn sure I don’t know anything,” the 
President said. Then he added, in the face of all that Dean had just 
told him, “and I don’t.” (HJCT 110) The President’s denial of knowl- 
edge which the transcript of the conversation itself establishes that 
lie alreadv possessed occurs repeatedly in the transcript of March 21, 
1973: 

Dean. Well, I know he [Colson] used, uh, 

President. Hunt to go out there? 

Dean. Hunt. 

President. I knew about that. 

Dean. Yeah. 

President. I did know about it. Uh, I knew that there was, there was some- 
thing going on there, 

Dean. Right. 

President, but I didn’t know it was Hunt. (HJCT 100-01) 

At the very beginning of Dean's account, on March 21, 1973, of what 
he knew of the Watergate break-in and cover-up, when Dean said, “I 
have the impression that you don’t know everything I know,” the 
President interrupted him with the words, “That’s right.” If the 
President did not already know what Dean was about to tell him, the 
reply is inexplicable. 

There was a discussion of a new grand jury. The President said a 
grand jury would give a reason not to have to go before the Senate Se- 
lect Committee (SSC) and it would look like the President was coop- 
erating. Dean said the problem was that there was no control. (HJCT 
120-24) At the end of the conversation, the President said it was neces- 
sary to have a new plan. 1 

As the President continued to discuss alternatives out of an impos- 
sible situation, the President directed Haldeman to have Mitchell come 
to the White House by the next day. Haldeman said the erosion was 
now going to the President, and “that is the thing we’ve got to turn off, 
at whatever the cost. We’ve got to figure out where to turn it off at the 
lowest cost we can, but at whatever costs it takes.” (HPCT 130) 

On the afternoon of March 21, 1973, the President again met with 
Haldeman, Ehrlichman and Dean to continue to discuss Watergate 
strategy. When the President again suggested the option of various 


1 The President’s March 21 dictabelt conclusively shows that the President was not con- 
cerned with getting out the facts or that he had any doubts about what the true facts were. 
(There is a 59 second gap at the end of the President’s dictation before he starts on another 
subject.) 



101 


witnesses going before the grand jury without immunity, Ehrlichman 
replied that such a course of action could lead to very drastic results, 

. . there are awful opportunities for indictment, and, uh So, uh, 
. . . you end up with people in and out of the White House indicted 
for various, for various offenses.” (HJCT 131-32) 

On the following day, March 22, 1973, 2 Mitchell came to Washing- 
ton. The President, Mitchell, Haldeman, Ehrlichman and Dean met 
and discussed how to avoid criminal liability, how “to protect our 
people if we can.” The President decided on a strategy of continued 
concealment which Ehrlichman called a “modified limited hang out.” 
( HJCT 179) The President told Mitchell : 

President. Then he can go over there as soon [unintelligible] this. But, uh, 
the, uh, the one thing I don’t want to do is 'to — Now let me make this clear. I, I, I 
thought it was, uh, very, uh, very cruel thing as it turned out — although at the 
time I had to tell [unintelligible] — what happened to Adams. I don’t want it to 
happen with Watergate — the Watergate matter. I think he made a. made a 
mistake, but he shouldn’t have been sacked, he shouldn’t have been — And, uh, 
for that reason, I am perfectly willing to — I don’t give a shit wliat happens. I 
want you ah to stonewall it, let them plead the Fifth Amendment, cover-up or 
anything else, if it’ll save it — -save the plan. That’s the whole point. On the 
other hand, uh, uh, I would prefer, as I said to you, that you do it the other 
way. And I would particularly prefer to do it that other way if it’s going to 
come out that way anyway. And that my view, that, uh, with the number of 
jackass people that they’ve got that they can call, they’re going to — The story 
they get out through leaks, charges, and so forth, and innuendos, will be a hell 
of a lot worse than the story they’re going to get out by just letting it out there. 

Mitchell. Well 

President. I don’t know. But that’s, uh, you know, up to this point, the whole 
theory has been containment, as you know, John. 

Mitchell. Yeah. 

President, And now, now we’re shifting. As far as I’m concerned, actually 
from a personal standpoint, if you weren’t making a personal sacrifice — it’s un- 
fair — Haldeman and Dean. That's what Eisenhower- — that’s all he cared about. 
He only cared about — Christ, “Be sure he was clean.” Both in the fund thing 
and the Adams thing. But I don’t look at it that way. And I just — That’s the thing 
I am really concerned with. We’re going to protect our people, if we can. 3 
(HJCT 183) 

In the course of that meeting the President telephoned Attorney 
General Kleindienst. (HJCT 153-54) He called not to give the 
Attorney General the information he had received as to the poten- 
tial criminal liability of his associates, but to instruct Kleindienst to 
contact Senator Howard Baker, the ranking minority member of the 
SSO. 4 He asked Kleindienst to be “our Baker liandholder,” to “baby- 
sit him, starting in like, like in about ten minutes.” (HJCT 154) 

II 

Substance or the New Plan 

During the rest of March and throughout April the President 
assumed active command of the cover-up. He, himself, acted time and 


^ on may 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
otj 1 er materials related to a conversation between the President and Haldeman from 9 :00 to 
10 :3o a.m., March 22, 1973. The President refused to produce this recording. The President 
subm’tted a tw r o and one-half page edited transcript. 

passage does not anpear in the White House transcript. 

The President also spoke to Kleindienst on March 23 and March 25, 1973. There is no 
evidence that the President made disclosure to the Attorney General during the course of 
those conversations. 



102 


time again to protect his principal assistants who were the subjects of 
criminal and congressional Watergate investigations. On March 26, 
1973, Watergate Grand Jury proceedings were reopened. (Book IV, 
336) In April Magruder and Dean began talking to the prosecutors. 
During the same period, other political associates and White House 
subordinates were called before the SSC. The President realized that 
some disclosures were unavoidable but he tried to monitor, control 
and distribute information so that these investigations would not 
result in criminal liability for Haldeman and Ehrlichman, or others 
members of his personal staff. 

Ill 

McCord Letter 

On March 23, 1973, Judge Sirica read in open court a letter written 
by James McCord. The letter charged that political pressures to plead 
guilty and remain silent had been applied to the defendants in the 
Watergate trial; that perjury had occurred during the trials and 
that others involved in the Watergate operation were not identified 
by those testifying. (Book IV, 221-25) On the afternoon of March 23, 
1973, the President telephoned Acting FBI Director Gray (Book IV, 
242) and told him that he knew the beating Gray was taking during 
his confirmation hearings and he believed it to be unfair. He reminded 
Gray that he had told him to conduct a “thorough and aggressive 
investigation.” (Book IV, 245) He did not tell Gray any of the facts 
that he knew about the responsibility for the Watergate burglary 
and its subsequent cover-up nor did he tell his FBI Director what Dean 
had told him on March 21, 1973. 

On the morning of March 26, 1973, the Los Angeles Times published 
a story that McCord had told investigators for the Senate Select 
Committee that Dean and Magruder had prior knowledge of the 
Watergate break-in. (Book IV, 313) On this morning Haldeman called 
Dean and asked him his reaction to an announcement that the Presi- 
dent was requesting that Dean appear before the Grand Jury without 
immunity. Dean replied that he would have no problem appearing 
before the Grand Jury but told Haldeman that his testimony regarding 
the Liddy Plan meetings would conflict with Magruder s and that there 
were other areas of concern, including payments to the defendants, the 
$350,000 White House fund, the Hunt threat, and Colson’s talk about, 
helping Hunt. (Book IV, 317—18) Following this telephone call, the 
President met with Haldeman. The President then decided to drop his 
plan to announce that Dean would appear before the Grand Jury. 
(Book IV, 315, 318) Later that day, Ronald Ziegler, at the instruction 
of the President, announced publicly that the President had “absolute 
and total confidence in Dean.” (Book IV, 325) 

On March 27, 1973, the day after the Watergate Grand Jury was 
reconvened, the President met for two hours with Haldeman, Ehrlich- 
man, and Ziegler. 5 The President directed Ehrlichman to tell Klein- 
dienst. that no White House personnel had prior knowledge of the 


s On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



103 


break-in, but that a serious question had been raised about Mitchell. 
He also devised a scheme for Ehrlichman to request that Kleindienst 
pass on to Ehrlichman information from the Grand Jury, not on the 
basis of a request from the White House, but on the basis of an obliga- 
tion Kleindienst owed to Mitchell : 

E I will see Kleindienst. That settled 

P You’ll see Kleindienst? When? 

E This afternoon at three o’clock. 

P Three o’clock, and then I think, when — huh ? 

H Should I also see Kleindienst? Should I, or should John be the only one? 

P John, you do it. 

H That’s what Mitchell was asking. Mitchell is very distressed that Klein- 
dienst isn’t stepping up to his job as the contact with the Committee, getting 
Baker programmed and all that (A), and (B) that he isn’t getting — see Dean, 
Dean got turned off by the Grand Jury. Dean is not getting the information from 
Silbert on those things said at the Grand Jury. And Mitchell finds that absolutely 
incompetent and says it is Kleindienst.’s responsibility. He is supposed to be send- 
ing us 

P Ask Kleindienst, John, put it on the basis that you’re not asking nor in 
effect is the White House asking ; that John Mitchell says you’ve got to have 
this information from the Grand Jury at this time and you owe it to him. Put 
it right on that basis, now, so that everybody can’t then say the White House 
raised liell about this, because we are not raising hell. Kleindienst shouldn’t — 
where are you going to see him there or here? 

E In my office 

P Have a session with him about how much you want to tell him about 
everything. 

E Ah 

P I think you’ve got to say, “Look, Dick, let me tell you, Dean was not in- 
volved — had no prior knowledge — Ha Id email had no prior knowledge : you 
Ehrlichman, had none ; and Colson had hone. Now unless— all the papers writ- 
ing about the President’s men and if you have any information to the contrary 
you want to know. You’ve got to know it but you’ve go to say too that there is 
serious question here being raised about Mitchell. Itight? That’s about it isn’t 
it? (WHT 3G6-67) 

Later in the meeting, the President said that Kleindienst was wor- 
ried about furnishing ‘‘Grand Jury things” to the White House (WHT 
370-71) and that Ehrlichman should tell Kleindienst that the Presi- 
dent wanted Grand Jury information to determine whether any 
White House people were involved: “Not to protect anybody, but to 
find out what the hell they are saying.” (WHT 371) The President 
then suggested that Ehrlichman request a daily flow of information : 
“What have you today? Get every day so that we can move one step 
ahead here. We want to move.” (WHT 371) 

Ehrlichman telephoned Kleindienst the next day. He relayed the 
President's message that White House staff members had no prior 
knowledge of the break-in, but that serious questions were being raised 
with regard to Mitchell. (Book IV, 413-15) Ehrlichman told Klein- 
dienst that the President wanted to know any evidence or inference 
from evidence about Mitchell’s involvement. (Book IV, 414) When 
Ehrlichman passed on to Kleindienst what he termed the “best infor- 
mation that the President had, and has. . . (Book IV, 413) He did 
not disclose the information that the President had received on 
March 21 from Dean ; he had clearly not been instructed by the Presi- 
dent to do so. (Book IV, 409-21; WHT 366-67) In fact, the clear 
implication of the President s instruction was to deny any White 
House involvement in the Watergate matter. 



104 


IV 

Instructions to Ehrlic-hman Regarding Dean's Role 

Late in the afternoon on April 14, 1973 Ehrlicliman reported to the 
President on the substance of Magruder’s interview that day with the 
prosecutors. 0 That evening the President discussed with Haldeman 
and Ehrlicliman how to prepare Strachan and Colson for their ap- 
pearances before the Grand Jury (See Deception and Concealment, 
pp. 93-96.) 

During a telephone conservation with Ehrlicliman on the night of 
April 14, 1973, the President told Ehrlichman to attempt to persuade 
Dean, who the President knew was talking with the prosecutors, 
to continue to play an active role in the formulation of White House 
strategy regarding Watergate. The President directed Ehrlichman to 
approach Dean in the following manner : 

Well, you start with the proposition, Dean, the President thinks you have car- 
ried a tremedous load, and his affection and loyalty to you is just undiminished. 

. . . And now, let’s see where the hell we go. ... We can’t get the President in- 
volved in this. His people, that is one thing. We don’t want to cover up, but there 
are ways. And then he’s got to say, for example? You start with him certainly 
on the business of obstruction of justice. . . . Look, John — we need a plan here. 
And so that LaRue, Mardian, and the others — I mean, (WHT 667) 

Ehrlichman said that he was not sure that he could go that far with 
Dean, but the President responded, “No. He can make the plan up.” 
Ehrlichman indicated that he would “sound it out.” (WHT 667) 

V 

April 15, 1973 Meetings With Kleindienst and Petersen 

From approximately 1:00 to 5:00 a.m. on the morning of April 15, 
1973, the Watergate prosecutors met with Attorney General Klein- 
dienst to apprise him of the new information they had received from 
Dean and Magruder. Later that day, the Attorney General met with 
the President in the President's EOB office from 1 :12 to 2 :22 p.m. 
(Book IV, 931) Kleindienst reported to the President on the evidence 
then in the possession of the prosecutors against Mitchell, Dean, Halde- 
man, Ehrlichman, Magruder, Colson and others. (WHT 696-746) 
Kleindienst has testified that the President appeared dumbfounded and 
upset when he was told that Administration officials were implicated 
in the Watergate matter. (Book IV, 926) The President did not tell 
Kleindienst that he had previously received this information from 
John Dean. (Book IV, 928) 

The President asked about the evidence against Haldeman and 
Ehrlichman and took notes on Kleindienst’s reply. (WHT 720-23; 
Book IV, 929) The President’s notes on Kleindienst 's reply included 
the following : 

E (Conditional Statements) 

Dean- 

Deep Six documents 


6 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President stated that the conversation 
was not recorded. 



105 


Get Hunt out of country 
Haldeman — 
iStrachan— 

will give testimony — H had papers indicating Liddy was in eavesdropping. 
$350,000 — to LaRue. 

******* 

What will LaRue say he got the 350 for? 

Gray — documents (Book IV, 929) 

The President and his Attorney General also discussed payments to 
the defendants and the motive necessary to establish criminal liability. 
Kleindienst explained in detail to the President that the payment of 
money to witnesses or defendants for the purpose of keeping them 
silent was an obstruction of justice. (WHT 704-08) 

Later that day, from 4 :00 to 5 :00 p.m., Petersen and Kleindienst 
met with the President in the President’s EOB office. 7 (Book IV, 976) 
Petersen reported on the information the prosecutors had received 
from Dean and Magruder. (Book IV, 979-80) His report included: 
information respecting Mitchell’s approval of the $300,000 budget for 
the Liddy “Gemstone"’ operation; the receipt by Strachan of budget 
information for “Gemstone” and summaries of intercepted conver- 
sations for delivery to Haldeman (Book IV, 993) ; the prosecutors’ 
belief that if they could develop Strachan as a witness, “school was 
going to be out as far as Haldeman was concerned” (Book IV, 982) ; 
Ehrlichman’s instructions, through Dean, that Hunt should leave the 
country ; Ehrlichman’s direction to Dean to “deep six” certain mate- 
rials recovered from Hunt’s EOB office (Book IV, 992) ; and Dean’s 
delivery of certain politically embarrassing material from Hunt’s 
EOB office to Acting FBI Director Gray personally. (Petersen testi- 
mony, 3 HJC 82) 

Petersen recommended that Haldeman and Ehrlichman be relieved 
of their responsibilities and that the President request their resigna- 
tions. (Petersen testimony, 3 HJC 82) The President demurred. The 
President did not disclose to Petersen the factual information that 
Dean had discussed with the President on March 21, 1973. (Petersen 
testimony, 3 HJC 103, 153) He did not tell Petersen that Dean had 
confessed to obstructing justice and had charged Haldeman and 
Ehrlichman with complicity in that crime. 

On April 15, 1973, after receiving Petersen’s report, the Presi- 
dent met twice with Haldeman and Ehrlichman in his EOB office that 
evening. 8 (Book IV, 1062) At the second meeting, the President dis- 
cussed with Haldeman and Ehrlichman information he had received 
from the Attorney General and Assistant Attorney General Petersen 
that afternoon. Ehrlichman testified that during their meeting the 
President requested that he telephone Patrick Gray and discuss with 
him the issue of documents taken from Hunt’s White House safe and 
given by Dean to Gray in Ehrlichman ’s presence in June 1972. During 


J On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President stated that the conA r ersation 
was not recorded. 

I On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to these conA T ersations. The President stated that these conA^ersa- 
tions Avere not recorded. 



106 


the course of this meeting, Ehrlichman did so. (Book IV, 1063-64, 


VI 

April 16, 1973, Meeting With Petersen 

On April 16, 1973, from 1 :39 to 3 :25 p.m., the President met with 
Henry Petersen. (Book IV, 1230) 9 The President promised to treat as 
confidential any information disclosed to him by Petersen. The Presi- 
dent emphasized that . . you’re talking only to me . . . and there’s 
not going to be anybody else on the White House staff. In other words, 
I am acting counsel and everything else.” The President suggested that 
the only exception might be Dick Moore. (WHT 847) When Petersen 
expressed some reservation about information being disclosed to 
Moore, (WHT 847^8) the President said, “. . . let’s just . . . better 
keep it with me then,” (WHT 849) 

At this meeting Petersen supplied the President with a memoran- 
dum the President had requested on the previous day summarizing the 
existing evidence that implicated Haldeman, Ehrlichman and 
Strachan. The memorandum indicated that the prosecutor's had in- 
formation (1) that Ehrlichman had told Dean to “deep six” certain 
materials and had issued an instruction that Liddy tell Hunt to leave 
the country; (2) that Strachan had received Gemstone information 
and summaries of intercepted conversations for delivery to Halde- 
man and that Haldeman had failed to issue instructions to discon- 
tinue the surveillance program; (3) that Strachan had refused to an- 
swer questions about the allegations involving Haldeman. (Book IV, 
1225-26) Petersen also informed the President about the Grand Jury’s 
not believing Magruder’s testimony in the summer of 1972 (WHT 
869-70) ; Gray’s denial that he had received documents from Hunt’s 
safe; the implication of Ehrlichman by his “deep six” statement 
(WHT 862) ; the limited nature and scope of Strachan’s prior Grand 
Jury testimony (WHT 867) ; and Ehrlichman's request to the CIA 
for assistance to Hunt. (WHT 883-84) 

Early in the meeting, the President described to Petersen what 
actions he had taken almost a month earlier on the Watergate mat- 
ter. His account followed the “scenario” Ehrlichman had suggested 
that morning. (See Deception and Concealment, p. 86-87.) 

— a month ago I got Dean in and said (inaudible) a report (inaudible) Camp 
David and write a report. The report was not frankly accurate. Well it was ac- 
curate but it was not full. And he tells me the reason it wasn’t full, was that he 
didn’t know. Whether that is true or not I don’t know. Although it wasn’t I’m 
told. But I am satisfied with it and I think I’ve read enough in the (inaudible) 
(inaudible) papers up here. So then I put Ehrlichman to work oil it. (WHT 
860 ) 

What the President told Petersen was not true. The President did 
not tell Petersen that one reason Dean did not complete a full report 
was that his assignment was to write a misleading report — one that 


6 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



107 


would minimize the involvement of White House personnel in the 
Watergate matter. (See Deception and Concealment, p. 83-84.) 

Later in this meeting on April 16, the President and Petersen dis- 
cussed the possibility that if Strachan’s and Dean’s testimony estab- 
lished that Haldeman was informed of the Liddy Plan after the sec- 
ond planning meeting, Haldeman might be considered responsible for 
the break-in for his alleged failure to issue an order to stop the sur- 
veillance operation. (WHT 920-21) When Petersen told the Presi- 
dent that the question of Haldenian’s liability depended on who had 
authority to act with respect to budget proposals for the Liddy Plan 
(WHT 921) , the President said : 

P Haldeman (inaudible) 

HP He did not have any authority? 

P No, sir . . . none, none — all Mitchell — campaign funds. He had no au- 
thority whatever. I wouldn’t let him (inaudible). (WHT 922) 

What the President said was at least misleading. The White House 
Political Matters Memoranda establish that Haldeman did possess 
and exercise authority over the use of campaign funds. (Political Mat- 
ters Memoranda, 10/7/71, Book VII, 1359-61; 2/1/72, Book I, 78-79; 
2/16/72, Book VI, 908-09; 5/16/72, 1-2; 9/18/72, 1, and attachment.) 

At the opening of a meeting with Ehrlichman and Ziegler that 
began two minutes after Petersen’s departure, 10 (Book IV, 1254) the 
President informed Ehrlichman that Petersen had told him that Gray 
had denied personally receiving documents from Hunt’s safe. The 
President and Ehrlichman then discussed Ehrlichman ’s- recollections 
of the facts related to this incident. (WHT 929-30) The President 
told Ehrlichman that he had discussed with Petersen the June 19, 
1972 incidents in which Ehrlichman was alleged to have issued instruc- 
tions to Hunt to leave the country and to Dean to “deep six” certain 
materials. (WHT 935) The President next reported to Ehrlichman 
that Peterseu had told him that Magruder had not yet gotten a deal ; 
and that Dean and his la wyers were threatening to try the Administra- 
tion and the President if Dean did not get immunity. (WHT 938) The 
President relayed to Ehrlichman Petersen’s views about Haldeman’s 
vulnerability with respect to criminal liability. (WHT 938r-4l) 

On the following day, Ehrlichman took steps to gather informa- 
tion about the events Dean had been discussing with the prosecutors. 
He telephoned Ken Clawson and questioned him about the events of 
the meeting on June 19, 1972 (Book IV, 1321-22) ; Clawson responded 
that “If you want me to be forthwith and straightforward with you, 
I’ll recollect anything that you want.” Ehrlichman then recited Dean’s 
allegations. (Book IV, 1322) Clawson told Ehrlichman that he did 
not recall the deep six instruction or the instruction for Hunt to leave 
the country. ( Book IV, 1322-23) 

On the same day, Ehrlichman telephoned Colson. He relayed to him 
the information that Dean had not been given immunity; that the 
“grapevine” had it that Colson would be summoned to the Grand Jury 
that day and would be asked about the meeting of June 19, 1972. 
(Book IV, 1326-29) Ehrlichman then gave Colson Dean’s version of 


10 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



108 


the events of that day. Colson said that he would deny Dean’s allega- 
tion. (Book IV, 1327-29) Later in the call, Colson told Ehrlicliman 
that, “There are a couple of things that you and I need to do to protect 
each other’s flank here. . . . But — Listen, we’ll talk about that.” 
Ehrlichman responded, “All right . . . fair enough.” (Book IV, 1329- 
30) As the call ended, Colson also made it clear that he felt they should 
act against Dean : “Let’s get it, uh, clearly understood that that son-of- 
a-bitch doesn’t get immunity. I want to nail him.” Ehrlichman re- 
sponded that he was doing his best, to which Colson added, “No. I want 
to nail him. I’ll take immunity first.” (Book IV, 1330) 

VII 

April 16, 1973, Telephone Conversation With Petersen 

On April 16, 1973 from 8 :58 to 9 :14 p.m. the President spoke by 
telephone with Petersen. 11 (Book IV, 1306) He asked Petersen if there 
were any developments he “should know about,” and he reassured 
Petersen that . . of course, as you know, anything you tell me, as I 
think I told yon earlier, wfill not be passed on . . . [bjecause I know 
the rules of the Grand Jury.” (WHT 966) Petersen told the President 
that F red LaRue had confessed to the prosecutors to participating in 
the crime of obstruction of justice; that he had attended a third 
planning meeting regarding the Liddy Plan with Mitchell (WHT 
967) ; and that LaRue had told Mitchell it was all over. (WHT 968) 
Petersen described LaRue as “rather pitiful.” (WHT 966) 

Petersen then reported additional details regarding Ehrlichman’s 
involvement : that Liddy had admitted to Dean on June 19, 1972 that 
he had been present at the Watergate break-in and Dean had then re- 
ported to Ehrlichman (WHT 968) ; and that Colson and Dean were 
together with Ehrlichman when Ehrlichman advised Hunt to get out 
of 1 town. (WHT 969) 

With respect to payments to the Watergate defendants, Petersen 
reported that he had been informed that Mitchell had requested that 
Dean approach Kalmbacli to raise funds, and Dean had contacted 
Haldeman and Haldeman had authorized the use of Kalmbacli. (WHT 
969, 975-76) Petersen told the President that Kalmbacli would be 
called before the Grand Jury regarding the details of the fund-raising 
operation. (WHT 969) They also discussed the prosecutors’ interest 
in the details of the transfer from Haldeman to LaRue of the $350,- 
000 White House fluid that was used for payments to the defendants. 
(WHT 976) 

On the following morning, April 17, 1973, the President met with 
Haldeman. 12 (Book IV, 1312) Early in the meeting, the President 
passed on the disclosures Dean had made to the prosecutors regarding 
Dean’s meeting with Liddy on June 19, 1972. (WHT 982) The Presi- 
dent also told Haldeman that the money issue was critical : “Another 


11 On April 11 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

13 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. He submitted an edited transcript. The President did not interpose such a claim 
with respect of this portion of the conversation. 



thing, if you could get John and yourself to sit down and do some hard 
thinking about what kind of strategy you are going to have with the 
money. You know what I mean.” This comment is followed by a dele- 
tion of “material unrelated to President's action.” 13 (WHT 983) Fol- 
lowing the deletion, the transcript shows that the President instructed 
Haldeman to call Ivalmbach to find out what Kalmbach was going to 
say Dean had told him regarding the purpose of the fund-raising. In 
addition, the President instructed Haldeman : 

Well, 'be sure that Kalmbach is at least aware of this, that LaRue has talked 
very freely. He is a broken man. (WHT &83) 14 

At 12 :35 p.m. on April 17, 1973, 15 the President met with Haldeman, 
Ehrlichman and Ziegler. (Book IV, 1347) At this meeting, he again 
relayed information relating to the Watergate investigation. The 
President and Haldeman discussed Petersen’s opinion, that while the 
prosecutors had a case on Ehrlichman, the Grand Jury testimony of 
Strachan and Kalmbach would be crucial to proof of Haldeman’s 
criminal liability. The President returned to the problem presented by 
the funds paid to the defendants — the issue which Petersen had in- 
formed him was then being explored by the Grand Jury. The Presi- 
dent encouraged Haldeman and Ehrlichman to deal with the problem : 
“Have you given any thought, to what the line ought to be — I don’t 
mean a lie — but a line, on raising the money for these defendants?” 
(WHT 994) He advised Haldeman that, “you see, you can’t go in 
there and say I didn’t know what in the hell he wanted the $250 
for.” (WHT 995) 

Later in the meeting, the President discussed with Haldeman and 
Ehrlichman the man Petersen had identified as critical to the issue 
of Haldeman’s liability, Gordon Strachan. The President said, “Stra- 
chan has got to be worked out,” (WHT 1011-12) and then pro- 
ceeded to discuss with Haldeman the facts about which Strachan 
could testify. At this point, the President told Haldeman that Petersen 
believed that Strachan had received material clearly identifiable as 
telephone tap information. (WHT 1012) After a brief discussion of 
the issue, the President closed this discussion by saying, “. . . I want 
you to know what he’s [Petersen] told me.” (WHT 1013) 

VIII 

April 17, 1973, Meeting With Petersen 

Shortly after his meeting with Haldeman, Ehrlichman and Ziegler, 
the President met with Petersen from 2:46 to 3:49 p.m. 16 (Book IV, 


13 In response to the Supreme Court decision in United States v. Niocon s the President 
produced in the District Court for examination by Judge Sirica a tape recording of this 
conversation. The decision permitted the President to interpose claims of privilege with 
respect to parts of the conversation not related to Watergate, but the President made no 
such claim with respect to this portion of the conversation, 

14 When the President was told at a later meeting on April 17 that Dean had told Ehrlich- 
man that he had revealed to Kalmbach the purpose of the payments, he suggested that 
Ehrlichman could falsely state that Dean had told Ehrlichman he did not tell Kalmbach the 
purpose of the payments. (WHT 1201) 

15 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. He submitted an edited transcript. 

“On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. He submitted an edited transcript. 



110 


1397) The President opened the discussion by asking if there were 
anything new that he should know; he also cautioned Petersen that 
he did not want to be told anything out of the Grand Jury, unless 
Petersen thought the President needed to know it. (WHT 1060) 
Later in the meeting, they discussed the status of Haldeman and 
Ehrlichman if Magruder were indicted. Petersen suggested the gov- 
ernment might name everybody but Haldeman and Ehrlichman as 
unindicted co-conspirators in order “to give you time and room to 
maneuver with respect to the two of them.” (WHT 1088) 

Petersen reported that LaKue had broken down and cried like 
a baby when testifying about John Mitchell (WHT 1095) ; that in 
all probability there was not enough evidence to implicate Strachan 
as a principal, that at this point he was a fringe character (WHT 
1091-92) ; that the case against Ehrlichman and Colson w~as more 
tangential than that against Haldeman (WHT 1081) ; and that Hunt 
had testified in the Grand Jury that Liddy had told him that “his 
principals” (who remained unidentified) had said Hunt should leave 
the country. (WHT 1083) Petersen also reported that- Gray had 
admitted that Dean had turned over documents from Hunt’s safe in 
Ehrlichman’s presence (WHT 1097-98) ; and that Magruder was 
naming Haldeman and Ehrlichman not by first-hand knowledge, but 
by hearsay. (WHT 1105-06) 

1 One minute after the end of this meeting with Petersen, the Pres- 
ident met again with Haldeman, Ehrlichman and Ziegler. 17 (Book 
IV, 1413) The President relayed the information that Petersen had 
talked to Gray and that Gray admitted receiving and destroying the 
Hunt files. (WHT 1116) The President then told Haldeman and 
Ehrlichman about his conversation with Petersen regarding the pos- 
sibility of their being named as unindicted co-conspirators in an 
indictment of Magruder. The President detailed the nature of this 
discussion : 

P Here’s the situation, basically, (unintelligible) They’re going to haul him 
[Magruder] in court, have him plead guilty, put a statement out because Sirica 
always questions the witnesses who plead guilty. They are going to make it as 
broad as they can and as narrow as they can at the same time. By being as broad 
as they can, they are going to say that he has named certain people ana they 
are going to name a group of people that is nonindictable co-conspirators. 
They’re going to include everybody on that list. I said, “Is Dean going to be on 
that list?” He said, “Yes.” He said, “Frankly (unintelligible) not include Halde- 
man and Ehrlichman, which give you an option.” I said, “Are you telling me that 
if Haldeman and Ehrlichman decide to take leave, that you will not. then pro- 
ceed with the prosecution.” “No,” he said, “I don’t mean that.” He said, “What 
I mean is that they are not going to appear on that list and that (unintelligible) 
Grand Jury and make case there (unintelligible). So there’s the — 

E Well, whether we take leave or not doesn’t effect the list that they read off. 

P Yes. Yes. 

E Oh, it does? Yes, it does. They will put us on the list if we don’t take leave? 

P Yes, because otherwise, he says, he says Sirica is going to question Ma- 
gruder and he’s going to question (unintelligible) and it appears (unintelli- 
gible). If he does that, then it will appear that the Justice Department again is 
covering up. (WHT 1116-17) 

Between April 17 and April 25, 1973, Petersen reported to the Pres- 
ident that lie detector tests had been administered to Magruder and 


17 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. He submitted an edited transcript. 



Ill 


to Strachan. Strachan contradicted Magruder’s testimony that Ma- 
gruder had given Strachan the Liddy Plan budget and summaries 
of intercepted communications for delivery to Haldeman. Strachan 
failed his test ; Magruder passed his ; and Petersen advised the Pres- 
ident of these facts. (Petersen testimony, 3 HJC 102) Tn spite of the 
fact that the President knew who was telling the truth, he did not help 
Assistant Attorney General Petersen form a judgment as to the cred- 
ibility of Magruder or Strachan. 


IX 

Immunity for Dean 

Dining the course of the Grand Jury investigation the President 
tried to persuade Petersen to refuse to grant immunity to Dean. On 
April 15, 1973, Petersen told the President that Dean was attempting 
to provide enough evidence to secure immunity from prosecution. 
(Petersen testimony, 3 HJC 82) The President was aware that Dean 
possessed information that could implicate Haldeman, Ehrlichman, 
Colson, and possibly the President himself in the Watergate matter. 
On April 14, Dean told Haldeman and Ehrlichman that the prose- 
cutors had told his lawyers that they were targets of the Grand Jury 
and that in Dean’s opinion they could be indicted on obstruction of 
justice charges. (Book IV, 699-701) On the same day, the President 
said to Haldeman and Ehrlichman that they should find out about 
Dean : u . . . To find out — let me put it this way. You’ve got to find out 
what the hell he is going to say. (unintelligible) which is frighten- 
ing to me, (unintelligible)” (WHT 540) 

Under the immunity statutes, the power to obtain a court order of 
immunity is given to United States Attorneys acting with the ap- 
proval of the Attorney General, the Deputy Attorney General or 
designated Assistant Attorney General. (18 U.S.C. § 6003) The Pres- 
ident does not have the power to grant immunity. Although the Presi- 
dent issued no order to Petersen about immunity for Dean, the Pres- 
ident discouraged its use. Without immunity, Dean was less likely to 
testify. 

After Petersen told the President that Dean was seeking immunity, 
the President closely followed the status of Dean's negotiations with 
the prosecutors. At a meeting with Petersen on April 16, 1973, the 
President asked about the deal with Dean. 

Petersen told the President that while there was no deal with Dean, 
Dean’s counsel wanted one. Petersen said he w 7 as considering grant- 
ing immunity to Dean if he could provide evidence that could be used 
to convict higher-ups. (WHT 885-90) The President was told that 
Dean’s negotiation tactics could present an important threat not only 
to Haldeman and Ehrlichman, but also to the President. (WHT 
925-26) 

On April 17, 1973, the President discussed with Haldeman the threat 
that Dean’s efforts to secure immunity presented : u Dean is trying to 
tell enough to get immunity and that is frankly what it is Bob.” 
Haldeman responded, “That is the real problem we’ve got. . . .” lfi 


18 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. He submitted an edited transcript. 


37-777 0 - 74 -8 



112 


(WHT 986-87) At a meeting later in the day, Ehrlichman relayed to 
the President Colson’s recommendation that denying immunity to 
Dean would discourage him from providing harmful information to 
the prosecution. Ehrlichman stated further that : 

Colson argues that if he is not given immunity, then he has even more incen- 
tive to go light on his own malfactions and he will have to climb up and he will 
have to defend himself. (WHT 987-88) 

Later in the meeting, the President acknowledged that “Petersen’s 
the guy that can give immunity. . . .” and “Dean is the guy that he’s 
got to use for the purpose of making the case.” (WHT 993-94) 

After discussing Colson’s recommendation, the President, Halde- 
man and Ehrlichman considered the matters about which Dean might 
testify. They expressed concern that Dean could disclose facts relating 
to the Ellsberg break-in; “the ITT thing” (WHT 1029) ; and Dean’s 
conversation with the President on March 21, 1973 regarding the pay* 
ment to Hunt. (WHT 991, 1031-34) The meeting ended with the 
President deciding to get Petersen in to tell him that the President 
did not want anybody on the White House staff to be given immunity. 
(WHT 1051-52, 1056) 

Later in the afternoon of April 17, 1973, the President met with 
Petersen. The President warned Petersen that any immunity grant to 
Dean would be interpreted as a “straight deal” (WHT 1078) on Peter- 
sen’s part to conceal the fact that Petersen had provided Dean with 
Grand Jury information during the summer of 1972. The President 
stated that while he did not care whether Petersen inmmunized 
Strachan or other “second jjeople” (WHT 1077), he did not want 
Petersen giving immunity to Dean. (WHT 1077-79) Near the end of 
the meeting, Petersen objected to the President’s proposed public 
statement opposing grants of immunity to Administration officials, and 
reminded the President that he felt it was a terribly important tool 
for the prosecutors to have available. (WHT 1101-02) 

Within an hour, the President issued a public announcement on 
Watergate, including the statement that the President felt that no 
individual holding a position of major importance in the Administra- 
tion should be granted immunity. (Book IV, 1420) Two days later 
the President met with the attorneys for Haldeman and Ehrlichman. 
(Book IV, 1513, 1515) The President described Dean as a “loose can- 
non” and told them that he had put out his statement on immunity 
because the prosecutors were at that point hung up on the question of 
giving immunity to Dean. (WHT 1239^0) 

On April 18, 1973, the President called Petersen. 19 (Book IV, 1471) 
Petersen has testified that the President “was rather angry” (Book 
IV, 1474) and chewed Petersen out for having granted immunity to 
Dean. (Petersen testimony, 3 HJC 98, 176) Petersen denied that Dean 
had been granted immunity and told the President he would check 
with the prosecutors and call the President back. 20 In this second call, 
Petersen assured the President that Dean had not been given immu- 
nity. When Petersen reported this denial, the President said he had a 


19 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. He submitted an edited transcript. Petersen has testified that the edited tran- 
script is not fully accurate. (Petersen testimony, 3 HJC 176-78) 

20 On April 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President denied that the conversation 
was recorded. 



113 


tape to prove his contention. (Book IV, 1474-75; Peterson testimony, 
3 HJC 97) 

By the end of April, the prosecutors’ negotiations with Dean for 
immunity were broken off, and Dean did not receive immunity from 
prosecution. (Petersen testimony, 3 HJC 117) 

X 

Other Contacts With Petersen Prior to April 27, 1973 

From April 18, 1973 through April 30, 1973, the date of Haldeman’s 
and Ehrlichman’s resignations, the President continued his series of 
meetings and telephone calls with Petersen. 21 (Book IV, 1532-34) 
During a telephone conversation on the evening of April 18, 1973, 
Petersen informed the President that the Department of Justice had 
received information that Hunt and Liddy had broken into the offices 
of Daniel Ellsberg’s psychiatrist. 22 The President told Petersen that 23 
that was a national security matter and that Petersen should stay 
away from it. (Book VII, 1959-62; 1956-66) The President did not 
disclose to Petersen on March 17, 1973 that Dean had told him that 
Hunt and Liddy had broken into Dr. Fielding’s office (WHT 157- 
58) ; that on March 21, 1973 Dean had told him that Elirlich- 
man had potential criminal liability for the conspiracy to burglarize 
the Fielding office (HJCT 105) ; or that on the afternoon of March 21, 
1 973 Ehrlicliman had told him that the Fielding break-in was an illegal 
search and seizure that might be sufficient at least for a mistrial in the 
Ellsberg prosecution. (HJCT 139; Petersen testimony, 3 HJC 153) 
At many of the meetings with Petersen during this period the Presi- 
dent continued to seek information on the progress of the Watergate 
investigation and on the evidence that was being accumulated against 
Haldeman and Ehrlicliman. (Book IV, 1535-41) During this period, 
the President also met frequently with Haldeman and Ehrlicliman. 24 
(Book IV, 1469-70, 1558; Meetings and Conversations between the 
President and John Ehrlichman, April 18-29, 1973) 

The President knew by this time that Haldeman was a prime suspect 
of the Grand Jury investigation. On April 15, 1973, Petersen had rec- 
ommended to the President that Haldeman be dismissed because of his 
alleged involvement in various Watergate-related matters (Petersen 
testimony, 3 HJC 82) ; from that date Petersen had kept the President 
informed about the evidence against Haldeman. On April 17, 1973, 
Petersen also told the President that the evidence on Haldeman, Ehr- 
lichman and Colson indicated that Haldeman was the most directly 
involved. 25 (WHT 1080) By April 25, 1973, the President was aware 


21 On May 30 and June 24. 1974, the House Judiciary Committee subpoenaed the tape 
recording and other materials related to the April 19, 1973 conversation. The President 
refused to produce this recording. 

22 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President responded that the conversation 
was not recorded. 

23 Petersen testified “that could have referred either to knowledge of the break-in or to 
knowledge of the report to the prosecutors.” (Petersen testimony, 3 HJC 163) 

24 On May 30, 1974, the House Judiciary Committee, subpoenaed the tape recording and 
other materials related to 19 such conversations. The President refused to produce these 
recordings. (Book IX. 1060-64) 

25 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. 'The President refused to produce this 
recording. He submitted an edited transcript. 



114 


that the issue of the payments to the Watergate defendants and Halde- 
man’s role in this and other matters ay ere being investigated by the 
Grand Jury. (WHT 994-95) 

On April 25, 1973, the President directed Haldeman to listen to the 
tape- of the March 21 conversation with Dean. (Book IX, 108, 114) 
Dean had been speaking to the prosecutors during April ; Haldeman in 
listening to the tapes would be able to prepare a strategy for meeting 
whatever disclosures Dean might make. 

On April 25, 1973, pursuant to the President’s direction, Haldeman 
requested and received twenty-two tapes of Presidential conversations 
during February, March and April 1973. (Book IX, 108, 114-15, 123) 
On the afternoon of April 25, 1973, Haldeman listened to the March 
21, 1973 morning conversation. In listening to the recording of this 
meeting, Haldeman made twenty pages of detailed notes on its con- 
tents. (Book IX, 116) At 4:40 p.m. on April 25, 1973, Haldeman met 
with the President and reported to him on the contents of the tape. 
(Book IV, 1558, 1562) The President instructed Haldeman to listen to 
the March 21 tape again. (Book IX, 118, 126) 

The meeting between the President and Haldeman on April 25, 1973 
ended at 5:35 p.m. (Book IV, 1558) Two minutes later, at 5:37 p.m., 
Petersen entered and met with the President for more than an hour. 
(Book IV, 1618) The President did not inform Petersen of the taping 
system, the contents of the March 21, 1973 tape, or of the fact that 
Haldeman had been directed to listen to it and had done so that very 
day. (Petersen testimony, 3 HJC 102) 

On April 26, 1973, Haldeman again received the group of tapes, in- 
cluding the March 21 tape. (Book IV, 1560, 1563) He listened again to 
the March 21 tape and reported to the President. (Book IX, 119-21) 
On April 26, 1973, Haldeman and the President met for more than 
free hours. 26 ( Book IX, 126) Haldeman ’s review and his meeting with 
the President also were not reported to Petersen. 

XI 

April 27, 1973, Meetings With Petersen 

On April 27, 1973, the President met twice with Petersen. (Book IV, 
1633) They discussed the Grand Jury investigation and the Presi- 
dent’s concern about rumors that Dean Avas implicating the President 
in the Watergate matter. (WHT 1257-93) Petersen assured the Presi- 
dent that he had told the prosecutors that they had no mandate to 
investigate the President. (WHT 1259) In this context, and one day 
after discussing with Haldeman the contents of the March 21 tape, the 
President made the following statement to Petersen about his con- 
\ r ersation with Dean about the payment to Hunt : 

. . . let me tell you the only conA T ersations A\ T e ever had with him, was that 
famous March 21st conversation I told you about, where he told me about 
Bittman coming to him. No, the Bittman request for $120,000 for Hunt. And I 
then finally began to get at them. I explored with him thoroughly, “Now what 
the hell is this for?” He said, “It’s because he’s blackmailing Ehrlichman.” 


26 On May 30, 1974, the House Judiciary Committee subpoenaed the tape recordings nnd 
other materials related to the conversations of April 25, 1973 and April 26 ,1973. The 
President refused to produce these recordings. (Book IX, 1036, 1060-64) 



115 


Remember I said that’s what it’s about. And Hunt is going to recall the seamy 
side of it. And I asked him, “Well how would you get it? How would you get it 
to them?” so forth. But my purpose was to find out what the hell had been going 
on before. And believe me, nothing was approved. I mean as far as I’m con- 
cerned— as far as I’m concerned turned it off totally. (WHT 1259) 

At liis second meeting with Petersen on April 27, 1973, the President 
provided Petersen with another version of the events occurring on 
March 21 and March 22, 1973 : 

Dean. You will get Dean in there. Suppose he starts trying to impeach the 
President, the words of the President of the United States and says, “Well, I 
have information to the effect that I once discussed with the President the 
question of how the possibility, of the problem,” of this damn Bittman stuff I 
spoke to you about last time. Henry, it won’t stand up for five minutes because 
nothing was done, and fortunately I had Haldeman at that conversation and he 
was there and I said, “Look, I tried to give you this, this, this, this, this, and 
this.” And I said, “When you finally get it out, it won’t work. Because, I said, 
“First, you can’t get clemency to Hunt.” I mean, I was trying to get it out. To 
try to see what that Dean had been doing. I said, “First you can’t give him 
clemency.” Somebody has thrown out something to the effect that Dean reported 
that Hunt had an idea that he was going to get clemency around Christmas. I 
said, “Are you kidding? You can’t get clemency for Hunt. You couldn’t even think 
about it until, you know, ’75 or something like that.” Which you could, then 
because of the fact, that you could get to the — ah — But nevertheless, I said you 
couldn’t give clemency. I said, “The second point to remember is ‘How are you 
going to get the money for them?’ If you could do it, I mean you are talking about 
a million dollars.” I asked him — well, I gave him several ways. I said, “You 
couldn’t put it through a Cuban Committee could you?” I asked him, because to 
me lie was sounding so damned ridiculous. I said, “Well under the circumstances,” 
I said, “There isn’t a damn thing we can do.” I said, “It looks to me like the 
problem is John Mitchell.” Mitchell came down the next day and we talked about 
executive privilege. Nothing else. Now, that’s the total story. And — so Dean — 
I just want you to be sure that if Dean ever raises the thing, you’ve got the whole 
thing. You've got that whole thing. Now kick him straight — (WHT 1278-79) 

XII 

Conclusion 

After March 21, 1973, the President acted to avoid the indictment of 
Haldeman, Ehrlichman and others at the White House by concealing 
what lie knew about their involvement in Watergate and the cover-up, 
by personally misleading Attorney General Kleindienst and Assistant 
Attorney General Petersen, by personally obtaining information from 
Petersen in order to convey that information to subjects of investiga- 
tion, by personally planning false and misleading explanations for 
Haldeman and Ehrlichman, by personally urging Petersen not to grant 
immunity to Dean in order to make it more difficult for the Depart- 
ment of Justice to build a case against Haldeman and Ehrlichman, by 
personally directing the coaching of witnesses corruptly using infor- 
mation in preparing a defense strategy, and by personally instructing 
witnesses to give untrue testimony. 



THE PRESIDENT’S INTERFERENCE WITH THE SENATE 
SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN 
ACTIVITIES 

I 

Introduction 

The President’s strategy in March and April, 1973, was not only di- 
rected at blocking the investigation by the Department of Justice, but 
also at narrowing and thwarting the hearings of the Senate Select 
Committee on Presidential Campaign Activities (SSC). 

II 

Policy Toward SSC Prior to March *21, 1973 

On February 7, 1973, the SSC was established by unanimous vote of 
the Senate to investigate 1972 Presidential campaign fundraising prac- 
tices, the Watergate break-in and the concealment of evidence relating 
to the break-in. (Book III, 522-25) . 

On February 10 and 11, 1973, Haldeman, Ehrlichman, Dean and 
Special Counsel to the President Richard Moore met at La Costa, 
California to discuss strategy to deal with the proposed SSC hearings. 
The President wanted to know what strategy should be adopted on 
executive privilege and other similar matters. The meetings lasted be- 
tween 8 and 14 hours. (Book III, 536) The President decided that 
CRP rather than the White House would take primary responsibility 
for the defense on Watergate -related matters and that John Mitchell 
should be asked to coordinate activities. (Book III, 546) They dis- 
cussed possible dilatory tactics with respect to the SSC hearings, such 
as monetary assistance to the attorneys for the Watergate defendants 
in seeking judicial delay of the hearings. They agreed Moore would go 
to New York to speak to Mitchell about the group’s discussions and 
Mitchell’s role in preparing for the hearings. (Book III, 539^0) 

On February 28, 1973, the Senate Judiciary Committee opened its 
hearings on the nomination of L. Patrick Gray to be FBI Director. 
The Gray hearings focused on the initial FBI investigation of Water- 
gate and especially upon the actions of Gray and Dean. During the 
hearings, committee members discussed Dean’s being called to explain 
his receipt and use of FBI files during the investigation. 

Prior to February 27, 1973, and again in the first week of March, 
Dean explained to Ehrlichman that the President would not be able 
to assert executive privilege with respect to Dean because Dean had 
so little personal contact with him. (Book III, 598-604, 610-11) On 
February 27, the President met with Dean and directed him to assume 
responsibility for Watergate- related matters. (Book III, 600, 608) 
On February 28, 1973, the President instructed Dean that his staff 

( 116 ) 



117 


would not testify before the SSC or the Senate Judiciary Committee, 
but would answer written interrogatories. The President directed Dean 
to tell Attorney General Kleindienst, who was to meet with Senator 
Ervin, about the President’s policy as to executive privilege. The 
President said “. . . our position is written interrogatories, which they 
will never probably accept, but it may give us a position, I mean it’d 
be reasonable in the public mind.” (HJCT 20) The President told 
Dean to tell Attorney General Kleindienst, “you keep it at your level ; 
don’t say the President told you to say. . . . [T]his is the position, 
Dick, you should take.” (HJCT 26) 

In a March 2, 1973 news conference the President stated that Dean’s 
investigation showed that no member of the White House staff had 
knowledge of or was involved in Watergate. (Book III, 745) The 
President asserted executive privilege for Dean and said that he would 
not allow Dean to testify before any congressional committee. When 
asked if he would change that position in light of allegations of illegal- 
ity and impropriety against Dean, the President said he would answer 
that question when the issue arose. The President also promised to 
provide a statement on executive privilege. (Book III, 746) 

The President and Dean met nineteen times in March, at the Presi- 
dent’s request; they had not met at all in the months from December, 
1972 to February 27, 1973, had never before met alone, and had been 
together on only nine occasions since January, 1972. (Book III, 969-75) 

On March 6 and 7 the President and Dean discussed executive privi- 
lege guidelines that would cover former as well as present White 
House personnel. (Book III, 756, 761) On March 10 the President 
told Dean the statement on executive privilege should be released be- 
fore Dean was called as a witness by the Senate Judiciary Committee 
so that it would not appear to be issued in response to the Gray hear- 
ings. (Book III, 786-87, 791) 

On March 12, 1973, the President issued his policy statement on 
executive privilege. The statement said that executive privilege would 
not be used to prevent disclosure of embarassing information and 
would be invoked only in “the most compelling circumstances where 
disclosure would harm the public interest ” (Book III, 796) 

On March 13, 1973, the President, Haldeman and Dean discussed 
listing Colson and Chapin, both of whom had left the White House, as 
private “consultants” to the President so that they could continue to 
claim executive privilege with respect to the future communications 
with the White House regarding Watergate : 

Haldeman. Say, did you raise the question with the President on, on, uh, Colson 
as a consultant? 

Dean. No, I didn't. 

Haldeman. Was that somebody [unintelligible]? 

Dean. It was — the thought was — 

President. [Unintelligible] 

Dean, well [unintelligible] it’s a consultant without doing any consulting — 
Yeah. 

Haldeman. He wanted it [unintelligible] 

Dean. He wants it for continued protection on, uh — 

Haldeman. Solely for the purpose of, of executive privilege protection. So 
that — 

Dean. One of those things that’s kept down in the personnel office, and nothing’s 
done on it. 

President. What happens to Chapin? 

Dean. Well, Chapin doesn’t have quite the same problems appearing that Colson 
will. 



118 


Haldeman. Yeah but — you have the same, you, you have the same problems as 
Chapin appearing versus Colson. 

President. Well, can’t — That would be such an obvious fraud to have both of 
them as consultants, that that won’t work. I think he’s right. Uh, you’d have 
to leave Chapin — 

Haldeman. Well, you can’t make Chapin a consultant, I — we’ve already said 
he’s not. 

President. Yeah. 

Dean. Yeah. (HJCT 47 ) l 

Haldeman suggested that the consulting agreement be back dated 
to the previous Saturday, so that Colson’s relationship with the Presi- 
dent would be continuous. (HJCT 48) 

On March 13, 1973, during his meeting with the President, Dean 
discussed his role in the cover-up (HJCT 50-51); the perjury of 
Strachan, Magrucler, and Porter (HJCT 67, 71) ; Segretti’s activities 
and their supervision by Chapin (HJCT 50, 74—75) ; Colson’s relation- 
ship with Hunt (HJCT 70-71); and Kalmbach’s fundraising and 
campaign contributions activities. (HJCT 50) On March 15, the Presi- 
dent reiterated his refusal to allow Dean to testify at the Gray hear- 
ings, claiming there was “a double privilege, the lawyer-client rela- 
tionship, as well as the Presidential privilege.” (Book III, 899) 

On March 20, 1973, the President asked Dean to prepare a general 
statement about the involvement of White House staff members 
in Watergate. The President wanted to refute charges that executive 
privilege was part of the cover-up. The President explained to Dean : 

You’ve got to have something where it doesn’t appear that I am doing this in, 
you know, just in a — saying to hell with the Congress and to hell with the people, 
we are not going to tell you anything because of Executive Privilege. That, they 
don’t understand. But if you say, “No, we are willing to cooperate,” and you’ve 
made a complete statement, but make it very incomplete. (WHT 168; Book III, 
987) 

On the afternoon of March 21, 1973, the President held another ex- 
tensive discussion of using the report to be drafted by Dean to mislead 
and divert the SSC’s inquiry into the Watergate matter. (HJCT 132, 
136-39, 143-44) The Dean report was to describe generally the White 
House investigation of Watergate and to minimize the involvement of 
White House personnel. (See Deception and Concealment, p. 82.) 
At the afternoon meeting on March 21, Ehrlich man said that the 
Dean report might have the effect of reducing the scope of the SSC 
inquiry. 

. . . the big danger in the Ervin hearings, as I see it, is that they will, they will 
run out, uh, leads into areas that, that it would be better not to have to get into. 
But, uh, if, uh, Baker, you know, under his direction — Uh, and if you could put 
out a basic document that would, uh, define a limited set of issues, uh, even if 
vou, you don’t try to concentrate on target, you just might have something. . . . 
(HJCT 132) 

III 

Policy After March 21, 1973 

On March 22, 1973, Mitchell came to Washington for a meeting 
with the President, Haldeman, Ehrlichman and Dean to develop a 


1 Colson testified that sometime around March S or 9, 1973, he discussed with Dean and 
Haldeman the possibility of being retained as a White House consultant. He further testified 
that he signed a consulting agreement either at the time he left the White House (March 10, 
1973) or shortly thereafter. (Colson testimony, 3 HJC 322) 



new strategy to keep criminal liability away from the President’s 
closest subordinates, as well as to use executive privilege and the Dean 
report. (Book TIT, 1267-75) At the March 22 meeting there was a 
discussion of revised strategy that Ehrlichman called a “modified 
limited hang out.” (HJCT 179) This combined providing the Dean 
report to the committee with a limited waiver of executive privilege 
to allow certain White House aides, specifically Colson, Haldeman and 
Ehrlichman, to appear before the SSC, preferably in private sessions. 
Mitchell argued, however, against permitting Dean to testify. 
(HjuT 16) jaaldeman said that the President’s previous position on 
executive privilege looked like “the only active step you’ve [the Presi- 
dent] taken to cover up the Watergate all along,” and that “the guy 
sitting at home who watches John Chancellor” wonders “What the 
hell’s he covering up ? If he’s got no problem why doesn’t he let them 
go and talk?” (HJCT 164-f>5) 

After deciding to adopt a limited waiver of executive privilege as 
part of the “modified limited hang out” strategy, the President dis- 
cussed ways to use executive privilege to negotiate with the commit- 
tee for a compromise on conditions governing staff appearances and 
the bounds of the committee’s investigation. Ehrlichman suggested 
turning the Dean report over to the committee as a quid pro quo for an 
agreement “on how witnesses will be treated up there.” (HJCT 161) 
The report, if limited to the conclusion that no one in the White House 
was involved in Watergate, could also be used to support an argu- 
ment for limiting the committee’s inquiry. The President indicated 
that he wanted such a report forwarded to the SSC, and he indicated 
that the report could be billed as all the information the White House 
then possessed : 

This is everything we know, Mr. Senator .... This is everything we know; 
I know nothing more. This is the whole purpose, and that's that. If you need 
any further information, my, our counsel will furnish it, uh, that is not in 
here (HJCT 181) 

The President stressed the importance of testimony being taken in 
executive session so that the claim of executive privilege to a particu- 
lar question would not create the unfavorable impression often asso- 
ciated with a Fifth Amendment plea. (H JCT 182) 

On the evening of April 14, the President talked to Ehrlichman, 
who suggested that if Mitchell were indicted, Mitchell’s lawyers would 
fight to delay the SSC. (WHT 655-57) The President suggested that 
would leave the committee “hanging for a while,” and that if hear- 
ings were delayed it might be possible to “get off the damn executive 
privilege” and put the President “in the position of being as forthcom- 
ing as we can.” (WHT 657-58) 

On April 17, 1973, the President stated publicly that the White 
House and the SSC had decided on ground rules that would permit 
the appearance of White House aides in public session. (Book IV, 
1420) Shortly after the President acknowledged the certainty of ap- 
pearances at public hearings by former and present aides, he asked 
Haldeman to listen to certain recordings of Presidential conversations 
to confirm what transpired during the President’s March 21 meeting 
with Dean. (Book TV, 1567) 



120 


IV 

Haldeman’s Testimony 

The President was particularly concerned about the charges ex- 
pected to be made against him by Dean. On April 25, 1973, Haldeman, 
at the President’s direction, listened to the tape of the March 21, 1973 
morning meeting among the President, Dean and Haldeman. (Book 
IV, 1567, 1569) He made twenty pages of notes from the tape and 
immediately reported to the President. During this meeting, the Presi- 
dent decided that Haldeman should listen again to the March 21 tape 
to determine answers to certain points of doubt raised by the tape. 
Haldeman listened to the tape again and reported to the President. 
(Book IX, 109-21) On April 26, 1973, Haldeman and the President 
met for approximately five hours. 2 (Book IV, 1558) 

On June 4, 1973, the President listened to tape recordings of certain 
of his conversations in February and March, 1973. (Book IX, 170-72) 
During the day the President spoke with Haig and Ziegler about their 
March 21 conversation. The President said : 

President. . . . Well, as I told you, we do know we have one problem : It’s that 
damn conversation of March twenty-first due to the fact that, uh, for the reasons 
[unintelligible]. But I think we can handle that. 

Haig. I think we ca — •, can. That’s, that’s the — 

President. Bob can handle it. He’ll get up there and say that — Bob will say, 
*‘I was there ; the President said — ”, (Book IX, 177-78) 

Haldeman appeared before the SSC on July 30, 31, and August 1, 
1973. (Book IX, 434-35) He testified about the substance of the 
President’s March 21 morning meeting with Dean. He testified 

(a) That the President said, “[T]here is no problem in raising 
$1 million, we can do that, but it would be wrong.” (Book IX, 
436-37, 440) 

(b) That “There was a reference to his [Dean’s] feeling that 
Magruder had known about the Watergate planning and break-in 
ahead of it, in other words, that he was aware of what had 
gone on at Watergate. I don’t believe that there was any reference 
to Magruder committing perjury.” (Haldeman testimony. 8 SSC 
3144) 

Later, the President himself said that Haldeman had testified 
accurately. 

V 

Conclusion 

President Nixon’s attempts to cover up the facts of Watergate 
included an effort to narrow and divert the SSC’s investigation. The 
President directed the preparation of an “incomplete” Dean report to 
mislead the committee and narrow its inquiry. He attempted to 
extend executive privilege to former aides and attempted to invoke 
the doctrine to prevent their testimony. After hearings began, false 
testimony was given to prevent the truth from emerging, testimony 
that the President himself confirmed. 


a On May 30, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to the conversations of April 25 and 26, 1973. The President refused 
to produce these recordings. 



APRIL 30, 1973 TO THE PRESENT 
I 

Pledge of Cooperation 

On April 30, 1973, the President accepted the resignations of Halde- 
man, Ehrlichman and Kleindienst. He requested and received the res- 
ignation of Dean. (Book IX, 132) In his public statement announcing 
these resignations, the President described Haldeman and Ehrlichman 
as two of the finest public servants it had been his privilege to know. 
(Book IX, 134) The President told the American people that he 
wanted them to know beyond a shadow of a doubt that during his term 
as President, justice would be pursued fairly, fully and impartially, 
no matter who was involved. The President pledged to the American 
people that lie would do everything in his power to insure that the 
guilty were brought to justice. (Book IX, 135) The President said 
that he had given Attorney General designate Elliot Richardson 
absolute authority to make all decisions bearing upon the prosecution 
of the Watergate case, and related matters. (Book IX, 134-35) On 
May 9, 1973, the President reiterated that both his nominee for Attor- 
ney General and the Special Prosecutor that Richardson Avould ap- 
point, in this case, would have the total cooperation of the executive 
branch of this government. ( Book IX, 141 ) 

On May 21, 1973, Richardson appeared with Special Prosecutor 
designate Archibald Cox before the Senate Judiciary Committee. In 
response to requests by Senators on the Committee for assurances with 
respect to the Special Prosecutor's authority, Richardson submitted 
to the Committee a statement of the duties, authority, and responsi- 
bilities the Special Prosecutor would have. The statement, which in- 
corporated the views of Members of the Senate Committee, provided 
the Special Prosecutor with jurisdiction over offenses arising out of 
the unauthorized entry into the I)NC headquarters at the Watergate, 
offenses arising out of the 1972 Presidential election, allegations in- 
volving the President, members of the White House staff or Presi- 
dential appointees and other matters which the Special Prosecutor 
consented to have assigned by the Attorney General. The guidelines 
also provided that the Special Prosecutor would have full authority 
for determining whether to contest the assertion of executive privilege, 
or any other testimonial privilege and that he would not be removed 
except for “extraordinary improprieties.” The guidelines later were 
published as a formal Dei^artment of Justice regulation. (Book IX, 
150) 

On May 22, 1973, the President stated publicly that Richardson had 
demonstrated his own determination to see the truth brought out : “In 
this effort lie had my full support.” The President also said that 
executive privilege would not be invoked as to any testimony concern- 
ing possible criminal conduct or discussions of possible criminal con- 

( 121 ) 



122 


duct, in the matters presently under investigation, including the Water- 
gate affair and the alleged cover-up. (Book IX, 153) In spite of these 
statements, on May 25, 1973, just before Richardson was sworn in as 
Attorney General, the President mentioned privately to Richardson 
that the w T aiver of executive privilege extended to testimony but not to 
documents. (Book IX, 157) This reservation had not been raised nor 
alluded to in any way during the Senate Judiciary Committee hearings 
on Richardson's nomination. 

II 

Refusal To Provide Documents 

Beginning in April, 1973, documents necessary to the Watergate 
and related investigations were transferred to rooms in the EOB 
to which all investigators were denied access. (Book IX, 163, 
258-59) On April 30, 1973, the day he resigned, Ehrlichman instructed 
David Young to make sure that all papers involving the Plumbers 
were put in the President’s files, where all investigators would be 
denied access to them. Ehrlichman told Young that, before he left, 
Ehrlichman himself would be putting some papers in the President’s 
files. (Book IX, 128-29) Other White House aides including Halde- 
man, Dean, Strachan, and Buchanan had their records transferred 
to the President’s files as well. 

On June 11 and June 21, 1973, the Special Prosecutor wrote to J. 
Fred Buzhardt, the President's Counsel, requesting an inventory of the 
files of Haldeman, Ehrlichman, Mitchell, LaRue, Liddy, Colson, 
Chapin, Strachan, Dean, Hunt, Krogh and Young, and other files 
related to the Watergate investigation. Buzhardt informed Cox that 
the President would review 7 the request and would decide upon it and 
other requests from the Special Prosecutor. After many Aveeks, Cox w r as 
told that the President had denied his request for an inventory. (Book 
IX, 258, 260-61) Those documents which Avere turned over to Cox w T ere 
not delivered until after a long delay. Certain White House logs and 
diaries requested by Cox on June 13, 1973, were not delivered for more 
than five months. The White House file on ITT, originally requested 
on June 21, 1973, was not produced until August. (Book IX, 592-93, 
884) 

On August 23, 1973, Cox requested from the White House certain 
records concerning the Pentagon Papers and the Fielding break-in. 
(Book [X, 504-07) On October 4, 1973, Cox repeated the request. 
(Book IX, 508-10) On August 27, 1973, Cox requested White House 
records on the electronic surveillance of Joseph Kraft. (Book IX, 
518) None of these documents was produced while Cox Avas Special 
Prosecutor. (Book IX, 302, 511) 

In September, 1973, prior to his appearance before the Senate Select 
Committee and the Watergate Grand Jury, Special Assistant to the 
President Patrick Buchanan Avas instructed by White House counsel 
not to take certain documents from the White House, but to transfer 
them to the President’s files, to which all investigators have been denied 
access. (Book IX, 6(XM)2) 

III 

Concealment of the Taping System 

Evidence bearing on the truth or falsity of allegations of criminal 
misconduct may be contained in recordings of conversations between 



123 


the President and his staff. The President attempted to conceal the 
existence of these recordings (Book IX, 179-80, 246) and, once their 
existence became known, refused to make them available to the Special 
Prosecutor. (Book IX, 408, 426) The President discharged Cox for 
insisting on the right to obtain them through judicial process. 

Before the existence of the White House taping system was dis- 
closed, Special Prosecutor Cox was advised that the President had a 
tape of his April 15, 1973, meeting with John Dean. On June 11, 1973, 
Cox requested access to that tape. On June 16, Buzhardt, after speak- 
ing with the President about Cox’s request, informed Cox that the tape 
in question was a dictabelt recording of the President’s recollections of 
the events of April 15, 1973, and that it would not be produced. (Book 
IX, 246-47, 253) On June 20, 1973, Cox wrote to Buzhardt stating that, 
on April 18, 1973, when Henry Petersen was in charge of the Water- 
gate investigation, the President had offered the tape to him. (Book 
IX, 2 44- 45, 248-49) Buzhardt never told Cox that all conversations in 
the Oval Office, the President’s EOB office, and from certain tele- 
phones were recorded. 

On July 16, 1973, ten weeks after Cox’s first request for the April 15 
tape, Alexander Butterfield publicly disclosed before the Senate Select 
Committee the existence of the White House taping system. (Book 
IX, 380-81) Two days later, the President ordered the taping system 
disconnected, and custody of the tapes transferred from the Secret 
Service to a White House aide. (Book IX, 385-86) On July 18, 1973, 
Special Prosecutor Cox requested tapes of eight Presidential conver- 
sations. (Book IX, 389-92) On July 20, 1973, Cox wrote Buzhardt to 
ask that all necessary steps be taken to insure the integrity of the tapes, 
that custody of the tapes be limited and that access to them be docu- 
mented. (Book IX, 394) On July 25, 1973, Buzhardt replied in 
writing : 

... I am glad to be able to assure you that the tapes you referred to therein 
are being preserved intact. The President has sole personal control of those tapes 
and they are being adequately protected under secure conditions. 

The President confirmed this in a letter to Senator Sam Ervin, on 
July 23, 1973. (“Presidential Statements,” 7/23/73, 29) 

IV 

The Discharge of Special Prosecutor Cox 

On July 23, 1973, when the President refused Cox’s request for tapes, 
the Special Prosecutor issued a subpoena for recordings of nine Presi- 
dential conversations. (Book IX, 408-10, 414-16) On August 29, 1973, 
Judge Sirica ordered the production of these recordings for in camera 
review. (Book IX, 586) On October 12, 1973, the United States Court 
of Appeals dismissed the President’s appeal and upheld Judge Sirica’s 
order. (Book IX, 748) 

Bather than comply with the court order, the President set in 
motion a chain of events that culminated one week later in the dis- 
charge of Cox. On October 17, 1973, at the President’s direction, 
Attorney General Kichardson relayed to Cox a White House proposal 
whereby, in lieu of the in camera inspection of the recordings required 



124 


by the Court’s decision, Senator John Stennis would verify White 
House transcripts of the tapes. (Book IX, 762, 766-67) Richardson 
told Cox that the question of other tapes and documents would be left 
open for later discussions. The next day, Cox replied that the Presi- 
dent’s proposal was not, in essence, unacceptable. (Book IX, 767) The 
President, through Special Counsel Charles Alan Wright, ordered 
Cox, as an added condition of the proposal, to refrain from going to 
court for additional tapes and presidential documents. (Book IX, 791— 
795) Richardson wrote the President that while he had thought the 
initial proposal reasonable, he did not endorse the new condition. 
(Book IX, 812-13) 

On the evening of October 19, 1973, the President issued a statement 
ordering Cox to agree to the proposal and to desist from issuing 
subpoenas for tapes and documents. (Book IX, 800) On October 20, 
1973, Cox said that his responsibilities as Special Prosecutor com- 
pelled him to refuse to obey that order. (Archibald Cox Press Con- 
ference, October 20, 1973, 3-4, 6-7, 16-17) The President then in- 
structed Richardson to discharge Cox. Richardson refused and re- 
signed. When the President gave the same instruction to Deputy 
Attorney General Ruckelshaus, Ruckelshaus also refused and resigned. 
(Book IX, 817, 819) The President then directed Solicitor General 
Robert Bork to fire Cox, and Bork did so. Later that night, White 
House Press Secretary Ziegler announced that the office of Special 
Prosecutor had been abolished. (Book IX, 823-25 ) 

There is evidence that the President’s decision to discharge Cox was 
made several months before October 20, 1973. On June 27, 1973, the 
Special Prosecutor formally requested that the President furnish a de- 
tailed narrative statement covering the conversations and incidents 
described by Dean before the Senate Select Committee. Cox noted that 
the President had been named as someone with information about the 
involvement of a number of persons in a major conspiracy to obstruct 
justice. He suggested that the President attach copies of all relevant 
transcripts and other papers or memoranda to his narrative. (Book 
IX, 318-19) On July 3, 1973, General Alexander Haig, who had 
replaced Haldeman as the President’s Chief of Staff, called Richard- 
son, in connection with a news story that Cox was investigating expen- 
ditures at the Western White House at San Clemente, and told Rich- 
ardson that it could not be part of the Special Prosecutor’s responsibil- 
ity to investigate the President and that the President might discharge 
Cox. (Book IX, 331) On July 23, 1973, Haig again complained 
about various activities of the Special Prosecutor. Haig said that the 
President wanted a “tight line drawn with no further mistakes,” and 
that “if Cox does not agree, w r e will get rid of Cox.” (Book IX, 331-32) 
On July 15, 1973, Buzharclt, responding to Cox's request of June 27, 
1973, said that, at an appropriate time, the President intended publicly 
to address the subjects, being considered by the SSC, including Dean’s 
testimony. In his public statement of August 15, 1973, the President 
said that the record before the SSC was lengthy, the facts complicated, 
the evidence confusing and that he had on May 22, 1973 issued a de- 
tailed statement addressing the charges that had been made against the 
President and that he would not deal with the various charges in de- 
tail. (“Presidential Statements,” 8/15/73, 33) In an affidavit submitted 



125 


to the House Judiciary Committee, Richardson has said that, when 
he met with the President in late September or early October 1973, 
w [a]fter we finished our discussion about Mr. Agnew, and as we were 
walking toward the door, the President said in substance, ‘Now that 
we have disposed of that matter, we can go ahead and get rid of Cox.’ ” 
(Book IX, 159) 

After the President discharged Cox, resolutions called for the Presi- 
dent's impeachment were introduced in the House. Bills calling for the 
creation of an independent investigatory agency were introduced in 
the House and Senate. (Cong. Record, October 23, 1973, H9356 ; Cong. 
Record, October 24, 1973, H9397 ; Cong. Record, October 23, 1973, 
S19439, S19443-44, S19454, H9354, H9355; and Cong. Record, Octo- 
ber 24, 1973, H9396) Under tremendous public pressure the Presi- 
dent surrendered to the court some subpoenaed tapes and offered ex- 
planations for the absence of others. (Book IX, 1230, 673, 677, 878) 
The President then authorized the appointment of another Special 
Prosecutor. (Book IX, 833) 


V 

Refusal to Cooperate wrm Special Prosecutor Jaworski 

On October 26, 1973, the President announced he had decided that 
Acting Attorney General Bork would appoint a new Special Prose- 
cutor. The President stated that the Special Prosecutor would have 
independence. He would have total cooperation from the executive 
branch. The President added that it was time for those who were 
guilty to be prosecuted, and for those who were innocent to be cleared. 
(Book IX, 883) On November 1, 1973, Acting Attorney General 
Robert Bork named Leon Jaworski Special Prosecutor. (Book 
IX, 847) 

On February 14, 1974, Jaworski wrote to Chairman Eastland of 
the Senate Judiciary Committee that, on February 4, Special Counsel 
to the President James St. Clair had informed Jaworski that the Presi- 
dent would not comply with the Special Prosecutor’s outstanding 
requests. Jaworski also said that St. Clair had informed him that the 
President refused to reconsider his decision to terminate cooperation 
with the Watergate investigation and would not produce any tape 
recordings of Presidential conversations related to the Watergate 
break-in and cover-up. The President had also refused to cooperate 
with the investigation of political contributions by dairy interests or 
the investigation of the Plumbers. (Book IX, 936-38, 945) 

VI 

Tapes Litigation 

On April 16, 1974, Jaworski, joined by defendants Colson and Mar- 
dian, moved that a trial subpoena be issued in United States v. Mitchell 
directing the President to produce tapes and documents relating to 
specific conversations between the President and the defendants and 
potential witnesses. On April 18, 1974, Judge Sirica granted the mo- 
tion. (Book IX, 988-89) Judge Sirica denied the President’s motion 



126 


to quash the subpoena. The President appealed to the Court of Ap- 
peals. Because of the public importance of the issues presented and the 
need for their prompt resolution, the Supreme Court of the United 
States granted the Specal Prosecutor’s petition for certiorari before 
judgment. On* July 24, 1974, the Court ordered the President to turn 
over the subpoenaed tapes and documents to Judge Sirica for an in 
camera inspection. The Court stated that neither the doctrine of sepa- 
ration of powers, nor the need for confidentiality of high level com- 
munications, without more, could sustain an absolute, unqualified 
presidential privilege of immunity from judicial process under all 
circumstances. The Court further stated that the President’s general- 
ized assertion of privilege must yield to the demonstrated, specific need 
for evidence in a pending criminal trial. {United States v. Nixon , 
“Criminal Cases,” 162-63, 182, 189) 

On May 28, 1974, Jaworski asked Judge Sirica to turn over to the 
Special Prosecutor a portion of the tape of a September 15, 1972 meet- 
ing among the President, Haldeman and Dean. Both Haldeman and 
Dean had testified that the discussion concerned IRS treatment of op- 
ponents of the White House. {In re Grand Jury , Misc. 47-73, Affida- 
vit, May 28, 1974) Judge Sirica ruled against the President’s claim of 
privilege on June 12, 1974, and the President appealed. {In re Grand 
Jury , Misc. 47-73, Order, June 12, 1974, and Notice of Appeal, June 14, 
1974) The appeal is pending. Judge Sirica denied the request of coun- 
sel for the Committee and the letter request of Chairman Rodino that 
Committee counsel be permitted to listen to the portions the Septem- 
ber 15 tape in question and that the transcript of the conversation 
which he had ordered delivered to the Special Prosecutor also be 
delivered to the Committee. 

VII 

Altered and Missing Evidence 
A . 18y 2 Minute Gap on June 20, 1972 T ape 

After the Court of Appeals, in Nixon v. Sirica , required the Presi- 
dent to surrender the tapes that Cox had subpoenaed, the Presi- 
dent informed Judge Sirica that some of the material was unavail- 
able — specifically, that there was an 1 Sy 2 minute gap on the June 20, 
1972 conversation between Haldeman and the President, and that 
there was no April 15, 1973 tape of his conversation with John Dean 
and there was no June 20, 1972 tape of the telephone conversation be- 
tween the President and Mitchell. ( Book IX, 836, 869, 871 ) 

On August 6, 1974, the President’s special counsel St. Clair told Chief 
Judge Sirica that a conversation between the President and Charles 
Colson, also on June 20, 1972, had never existed. 

The erased meeting between the President and Haldeman occurred 
approximately one hour after Haldeman had been briefed on Water- 
gate by Ehrlichman, Mitchell, and Dean, all of whom knew of the 
White House and CRP involvement. Ivleindienst, who arrived 55 
minutes after that briefing meeting had begun, had been told by 
Liddy that those involved in the break-in were White House or CRP 
employees. Hal deman’s notes show that Buzhardt has acknowledged 



127 


that the only erased portion of the tape was the conversation dealing 
with Watergate. (Book II, 108, 112, 153, 237-38, 240^3, 246, 249-50) 
It is a fair inference that the erased conversation of June 20, 1972, 
contained evidence showing what the President knew of the involve- 
ment of his closest advisors shortly after the Watergate break-in. 

There is no record that the tape in question was ever taken out of the 
tape vault until the weekend of September 28, 1973, when it was deliv- 
ered by the President’s Special Assistant Stephen Bull to the Presi- 
dent’s personal secretary Rose Mary Woods. ( In re Grand Jury , Misc. 
47-73, Exhibits 7, 7(a), 112 and 113) From October 1, 1973, when the 
Uher 5000 tape recorder was delivered to Miss Woods, until November 
13-14, 1973, when the 18*4 minute gap was discovered, the Uher 5000 
tape recorder and the June 20, 1972 FOB tape were in the possession 
of Miss Woods, where the President also had access to them. (Rose 
Mary Woods testimony, In re Grand Jury , Misc. 47-73, November 26, 
1973, 1214—16 ; November 28, 1973, 1432-33) 

On November 21, 1973, the Court and the Special Prosecutor were 
informed of the gap. ( J. Fred Buzhardt testimony, In re GrandJury , 
Misc. 47-73, November 29, 1973, 1614—15, 1617) Judge Sirica appointed 
an advisory panel of experts nominated jointly by the President’s 
Counsel and the Special Prosecutor to examine various tape record- 
ings, including the June 20, 1972 FOB tape, and to report on their 
findings. (Book IX, 870-71) The panel unanimously concluded that: 
(i) the erasing and rerecording which produced the buzz on the tape 
were done on the original tape; (ii) the Uher 5000 recorder machine 
used by Rose Mary Woods probably produced the buzz; (iii) the 
erasures and buzz recordings were done in at least five to nine separate 
and contiguous segments and required hand operation of the controls 
of the Uher 5000 recorder; and (iv) the manually erased portion of 
the tape originally contained speech, which, because of the manual 
erasures and rerecordings, could not be covered. (An analysis of this 
report is set forth in Appendix A.) 

B. April 15 , 1973 Tape and Dictabelt 

The President said that, because the tape on the recorder in the 
White House taping system at his Executive Office Building office ran 
out, the April 15, 1973 tape never existed. He has also said that the 
dictabelt of his recollections of the day (referred to by Buzhardt in 
his June 16, 1973 letter to Cox) could not be located. 2 (Book IX, 860) 
Among the conversations that would have been recorded on the eve- 
ning of April 15, 1973 was a meeting between the President and Dean. 
Dean testified, prior to the disclosure of the taping system, that he 
thought the President might have recorded that conversation. His sus- 
picion was aroused because the President asked leading questions, went 
to the corner of the room, and said in a low voice that he had been fool- 
ish to discuss Hunt’s clemency with Colson and that he had been jok- 
ing when he said one million dollars for the Watergate defendants 
could be raised. (Book IY, 1044-46) 


2 On November 12, 1973, the President announced that he would supply the tapes of two 
conversations with Dean on April 16, 1973 in lieu of the April 15 conversation. The Presi- 
dent stated that the substance of the conversations on April 16 was similar to the matters 
discussed on April 15 as reflected in the President’s notes of the meeting. (“Presidential 
Statements,” 11/12/73, 61) 


37-777 0 - 74 -9 



128 


On April 18, 1973, the President told Petersen, with reference to the 
substance of his April 15, 1973 meeting with Dean, that he had it on 
tape. (Book IV, 1474-75) On June 4, 1973, the President listened to 
tape recordings of certain of his conversations in February and March 
1973. (Book IX, 170, 172) When his aide, Stephen Bull, asked which 
additional tapes he wanted, the President said : 

President. March twenty-first. I don’t need April, I don’t need April fifteen. I 
need the sixteenth. [Unintelligible] correct. There were two on April sixteenth. 
X just want the second [unintelligible]. You can skip the — April fifteen. 

Bull. And March twenty-first. 

President. March twenty-first, that’s right, I have those. (Book IX, 183) 

In the summer of 1973, during an interview with the Senate Select 
Committee staff, White House assistant Stephen Bull stated that in 
late June, 1973, Haig called him to request that the April 15 tape of 
the President’s conversation with Dean be flown to the President at San 
Clemente. Bull said that since there were no further courier flights to 
San Clemente that night, Haig instructed Bull to arrange for the 
Secret Service to play the tape for Buzhardt, so that Buzhrardt could 
brief the President by telephone on its contents. (Book IX, 298-99, 
308—09) Later Bull testified at hearings regarding the missing Presi- 
dential tapes that he had only guessed at the date of the conversation, 
and that the President must have been referring to the tape of a 
March 20 telephone call. 3 (Book IX, 311-12) 

C. June 20, 1972 Dictabelt and March 21, 1973 Cassette Gaps 

In addition to the erased June 20, 1972 tape and the missing April 15, 
1973 tape and dictabelt , both of which were in the sole personal custody 
of the President, other dictabelts contain gaps. There is a 42-second gap 
in the dictabelt on which the President dictated his recollections of a 
June 20, 1972 conversation with Mitchell. (Book II, 310) There is a 
57-second gap in a cassette on which the President dictated his recol- 
lections of his March 21, 1973 conversation with Dean. (Book III, 
1249) ' V ’ 

D. Other Unrecorded Conversations 

After the Supreme Court’s decision in United States v. Nixon, the 
President informed Judge Sirica that some of the subpoenaed 
conversations were not available. Specifically, the President stated 
that six subpoenaed telephone conversations were placed from or 
received in the residence portion of the White House on a telephone 
not connected to the recording system ; that the tape ran out after the 
first fourteen minutes of the telephone conversation between the 
President and Colson from 7 :53 to 8 :24 p.m. on March 21, 1973; and 
that he had been unable to find tape recordings covering three sub- 
poenaed meetings. ( United States v. Mitchell, Cr. Xo. 74-liO, Analysis 
and Particularized Claims of Executive Privilege for Subpoenaed 
Recorded Presidential Conversations, August 6, 1974, 2; August 9, 
1974,2) ’ ’ b 

E. Inaccuracies in Presidential Transcripts 

On April 29, 1973, when the President announced that he was pro- 
viding approximately 1,200 pages of transcripts of private conver- 


3 Buzhardt has testified that the taped conversation he listened to in June was a tele- 
phone ?®% ersation between the President and Dean which took place on March 20, 1973. 



129 


sations in which he participated to the House Judiciary Committee, 
he stated that these materials, together with those already made avail- 
able, will tell it all — that they included all conversations or parts 
thereof all the portions that related to the question of what the Presi- 
dent knew about Watergate or the cover-up and what he did about it. 
(Book IX, 993, 999) 

The House Judiciary Committee has been able to compare eight of 
the edited White House transcripts with the transcripts prepared by 
its staff from the tapes which the President has turned over to the 
Committee and from tapes in the possession of Judge Sirica. (“Com- 
parison of White House and Judiciary Committee Transcripts of 
Eight Recorded Presidential Conversations”) The comparison shows 
significant omissions, misattributions of statements, additions, para- 
phrases, and other signs of editorial intervention in all eight tran- 
scripts. Presidential remarks are often entirely omitted from the 
White House version, or significantly reworded, or attributed to an- 
other speaker. 

The House Judiciary Committee transcript of the March 22, 1973 
conversation among the President, Haldeman, Ehrlichman, Mitchell 
and Dean shows that the participants continued to talk about Water- 
gate following the point in the discussion at which the White House 
transcript ends. The White House transcript does not acknowledge this 
omission. In a portion of a discussion with Mitchell omitted from the 
White House version, the President said : 

I am perfectly willing to — I don’t give a shit what happens. I want you all to 
stonewall it, let them plead the Fifth Amendment, cover-up or anything else, if 
it’ll save it — save the plan. That’s the whole point. On the other hand, uh, uh, I 
would prefer, as I said to you, that you do it the other way. And I would par- 
ticularly prefer to do it that other way if it’s going to come out that way anyway. 

******* 

• • • [U]p to this point, the whole theory has been containment, as you know, 
John. 


******* 

. . . That’s the thing I am really concerned with. We’re going to protect our 
people, if we can. (HJCT 183) 

At another point in the Committee transcript of the March 22 con- 
versation, the President talked about getting “on with the cover up 
plan.” The Committee and White House versions of the passage in 
which that occurs is set forth below : 


WHITE HOUSE TRANSCRIPT, p. 290 
President. 

If I am not mistaken, you thought we 
ought to draw a line here. 

* * * 

P Well all John Mitchell is arguing 
then, is that now we use flexibility 

in order to get off the coverup line. 


HOUSE JUDICIARY COMMITTEE 
TRANSCRIPT, p. 164 
President. 

If I am not mistaken, you thought we 
ought to draw the line where we did 
[unintelligible]. 

* * * * 

President. But now— what — all that 
John Mitchell is arguing, then, is that 
now we, we use flexibility. 

Dean. That’s correct. 

President. In order to get on with the 
coverup plan. 



130 


In the March 21, 1973 afternoon meeting among the President, Dean, 
Hal deman and Ehrlichman, the White House version of the transcript 
attributes to Dean a comment about clemency by the President. 

WHITE HOUSE TRANSCRIPT, p. 252 HOUSE JUDICIARY COMMITTEE 

TRANSCRIPT, p. 133 

E Well, my view is that Hunt’s inter- Ehrlichman. Well, my, my view is 
ests lie in getting a pardon if he can. that, that, uh, Hunt’s interests lie in 
That ought to be somehow or another getting a pardon if he can. That ought 
one of the options that he is most par- to be, somehow or another, one of the 
ticularly concerned about. Now, his in- options that he is most particularly con- 
direct contacts with John don’t com- cerned about. Uh. his his indirect con- 
template that at all — -(inaudible) tacts with John don’t contemplate that 

at all. Well, maybe they, maybe they 
contemplate it — but they say there’s 
going [unintelligible] 

President. I know. 

******* 

D He’s got to get that by Christmas, President. I mean he’s got to get that 
I understand. by Christmas time. 

E That’s right. . . . Dean. That’s right. . . . 

In response to the Committee’s subpoena of a forty-five minute 
conversation between the President and Dean on March 17, 1973, the 
President supplied the Committee with a three-page transcript that 
deals only with Segretti and the Fielding break-in. (WHT 157-60) 
On June 4, 1973, however, the President described the March 17 con- 
versation to Ziegler : 

[. . .] then he said — started talking about Magruder, you know: “Jeb’s good, 
but if he sees himself sinking he’ll drag everything with him.” 

* * * * * * * 

.... And he said that he’d seen [....] Liddy right after it happened. 
And he said, “No one in the White House except possibly Strachan’s involved 
with, or knew about it.” He said, “Magruder had pushed him without mercy.” 

.... I said, “You know, the tiling here is that Magruder [. . .] put the 
heat on, and Sloan starts pissing on Haldeman.” I said, “That couldn’t be [. . .]” 
I said, “We’ve, we’ve got to cut that off. We can’t have that go to Haldeman.” 
******* 

.... And I said, well, looking to the future, I mean, here are the problems. 
We got this guy, this guy and this guy.” And I said, “Magruder can be one, one 
guy — and that’s going to bring it right up home. 

That’ll bring it right up to the, to the White House, to the President.” And I 
said, “We’ve got to cut that back. That ought to be cut out.” (Book IX, 209-11) 4 

In response to a subpoena of his telephone conversation on the after- 
noon of April 18, 1973, with Assistant Attorney General Henry 
Petersen, the President has provided the Committee with a five-page 
edited White House transcript. (WHT 1203-07) The transcript is 
not in accord with Petersen’s recollection of that conversation. (Peter- 
sen testimony, 3 HJC 146) In response to a subpoena of the recording 
of a March 22, 1973, conversation, the President submitted an edited 
transcript, with the heading : “Appendix 8. Meeting : The President, 
Haldeman, Ehrlichman, Dean and Mitchell, EOB Office, March 22, 


4 On July 31, 1974, the President submitted to Jiulce Sirica, pursuant to the Supreme 
Court’s order in United States v. Ni<von, particularized claims of executive privilege as to 
certain taped conversations that were ordered turned over to the Special Prosecution Force. 
There is no claim that any portion of the one hour and fifteen minute conversation is not 
relevant to the subject matter before the Court. ( United States v. Mitchell , Cr. No. 74—110, 
Analysis and Particularized Claims of Executive Privilege for Subpoened Recorded Presi- 
dential Conversations, July 31, 1974, 1) 



131 


1973. (1:57-3:43 p.m.)” Although both White House logs and the 
transcript itself indicate that the conversation lasted until 3 :43, the 
last line of the transcript begins “It is 3 :16.” The President’s transcript 
does not acknowledge or account for this apparent omission of 27 
minutes. 

In response to a subpoena of the recording of an April 16, 1973, 
conversation with Ehrlichman and Petersen, the President submitted 
an edited transcript, which included an inadvertent repetition of a 
single conversation in two separate sections of the transcript. The 
two versions of the single conversation differ from one another in a 
manner which indicates not simple misunderstanding of sounds, but 
direct editorial intervention. 

In response to a subpoena of the recording of a March 27. 1973, con- 
versation w T ith Hal deman, Ehrlichman and Ziegler, which lasted 140 
minutes, the President submitted an edited transcript of 70 pages, 
with 8 deletions (of unspecified duration) characterized as “Material 
Unrelated to Presidential Action.” 

In response to a subpoena of the recording of an April 17, 1973, 
conversation with Haldeman, Ehrlichman and Ziegler, which lasted 
45 minutes, the President submitted, an edited transcript of 19 pages, 
with no acknowledged deletions. 

These and other substantive, chronological and typographical anom- 
alies and discrepancies, including inexplicable non-sequiturs, indi- 
cate that the edited White House version of the 35 Presidential con- 
versations of which the Committee does not have its own transcripts 
are even less accurate than the eight conversations of which it does. 

On August 5, 1974, the President released edited transcripts of 
three of his conversations of June 23, 1973, which the Committee had 
subpoened. The first conversation lasted 95 minutes; the President 
submitted a transcript of 34 pages, two of which were misnumbered; 
a section of the conversation was transcribed twice, verbatim. The 
second conversation lasted nine minutes. The President submitted an 
edited transcript of one page. These transcripts confirm the Commit- 
tee’s conclusion that the edited White House transcripts reflect exten- 
sive editorial intervention. 

F. Ehrlichman' s Notes 

On June 24, 1974, the Committee issued a subpoena for copies of 
certain of John Ehrlichman’s notes, which were impounded in the 
White House. On July 12. 1974, the President said he would furnish 
those copies of Ehrlichman’s notes which the President previously had 
turned over to Ehrlichman and the Special Prosecutor pursuant to a 
subpoena authorized by Judge Gesell and only after Judge Gesell had 
denied the President’s motion to quash that subpoena. 

On Monday, July 15, 1974, Mr. St. Clair, the President’s counsel, 
delivered a package of materials to Mr. Doar, Special Counsel to the 
House Judiciary Committee. Mr. St. Clair also submitted a letter to 
Chairman Rodino dated July 12, 1974, in which it was stated that the 
materials furnished were “those parts of John Ehrlichman’s notes . . . 
that were furnished to Mr. Ehrlichman pursuant to his subpoena.” 

At about the same time, Mr. St. Clair apparently had requested 
that the Office of the Special Prosecutor deliver to him a copy of the 



132 


set of Ehrlichman notes of his meetings with the President that had 
been filed with the Court in response to the Ehrlichman subpoena, and 
furnished to the Special Prosecutor contemporaneously. Because of a 
misunderstanding on the part of the Special Prosecutor’s office as to 
St. Clair’s request, the Special Prosecutor delivered the set of notes to 
Doar rather than St. Clair, together with a forwarding letter to Boar, 
a copy of which was sent to St. Clair. Upon receipt of the letter, St. 
Clair requested Doar to return the notes, but later modified that re- 
quest to seek a copy of what had been delivered to Doar. 

A comparison of the Ehrlichman notes furnished to the Judiciary 
Committee by the President with the Ehrlichman notes received by 
the Judiciary Committee from the Special Prosecutor shows that sub- 
stantial relevant portions were deleted by masking all or a portion of 
pages in the version supplied to the Committee. Notes covering eleven 
meetings between the President and Ehrlichman were not included in 
the materials furnished by the President to the Committee in response 
to its subpoena. The omissions were as follows : one meeting on June 19, 
1971; three meetings on June 23, 1971; one meeting on June 29, 1971; 
two meetings on July 1, 1971; one meeting on July 2, 1971; one meet- 
ing on July 6, 1971 ; one meeting on August 12, 1971 and one meeting 
on January 5, 1972. The Special Prosecutor’s submission contains 
Ehrlicliman’s notes as to each of those meetings. The notes cover 
some forty-two pages. 

The first page of the Special Prosecutor’s material contains an 
Ehrlichman handwritten identification and explanation of the eleven 
“shorthand symbols” employed by Ehrlichman in making his notes. 
Neither that page nor that explanatory material is included in the 
President’s submission to the Judiciary Committee in response to 
the Committee’s subpoena. 

The Ehrlichman notes, as delivered by the Special Prosecutor but 
omitted in the submission by the President, contain information re- 
] ating to the President’s dealings with Mr. Ehrlichman and other close 
aides, cabinet officers and other officers of government directly and 
through aides. The materials contain precise directions to be carried 
out by Ehrlichman and others. Among deletions in the President’s 
submission to the committee were references to the Ellsberg case pend- 
ing before Judge Matthew Byrne and accounts of efforts, directed by 
the President, to discredit Ellsberg in the media while the case was 
pending. 



CONCLUSION 


After the Committee on the Judiciary had debated whether or 
not it should recommend Article I to the House of Representatives, 
27 of the 38 Members of the Committee found that the evidence before 
it could only lead to one conclusion : that Richard M. Nixon, using 
the powers of his high office, engaged, personally and through his 
subordinates and agents, in a course of conduct or plan designed to 
delay, impede, and obstruct the investigation of the unlawful entry, 
on June 17, 1972, into the headquarters of the Democratic National 
Committee; to cover up, conceal and protect those responsible; and 
to conceal the existence and scope of other unlawful covert activities. 

This finding is the only one that can explain the President’s involve- 
ment in a pattern of undisputed acts that occurred after the break-in 
and that cannot otherwise be rationally explained. 

1. The President’s decision on June 20, 1972, not to meet with his 
Attorney General, his chief of staff, his counsel, his campaign director, 
and his assistant John Ehrlichman, whom he had put in charge of the 
investigation — when the subject of their meeting was the Watergate 
matter. 

2. The erasure of that portion of the recording of the President’s 
conversation with Haldeman, on June 20, 1972, which dealt with 
Watergate — when the President stated that the tapes had been under 
his “sole and personal control.” 

3. The President’s public denial on June 22, 1972, of the involvement 
of members of the Committee for the Re-election of the President or 
of the White House staff in the Watergate burglary, in spite of having 
discussed Watergate, on or before June 22, 1972, with Haldeman, Col- 
son, and Mitchell — all persons aware of that involvement. 

4. The President’s directive to Haldeman on June 23, 1972 to have 
the CIA request the FBI to curtail its Watergate investigation. 

5. The President’s refusal, on July 6, 1972, to inquire and inform 
himself what Patrick Gray, Acting Director of the FBI, meant by 
his warning that some of the President’s aides were “trying to mortally 
wound” him. 

6. The President’s discussion with Ehrlichman on July 8, 1972, of 
clemency for the Watergate burglars, more than two months before 
the return of any indictments. 

7. The President’s public statement on August 29, 1972, a statement 
later shown to be untrue, that an investigation by John Dean “indicates 
that no one in the White House staff, no one in the Administration, 
presently employed, was involved in this very bizarre incident.” 

8. The President’s statement to Dean on September 15, 1972, the 
day that the Watergate indictments were returned without naming 
high CRP and White House officials, that Dean had handled his work 
skillfully, “putting your fingers in the dike every time that leaks have 
sprung here and sprung there,” and that “you just try to button it up 
as well as you can and hope for the best.” 

( 133 ) 



134 

9. The President’s discussion with Colson in January, 1973 of 
clemency for Hunt. 

10. The President’s discussion with Dean on February 28, 1973, of 
Kalmbach’s upcoming testimony before the Senate Select Committee, 
in which the President said that it would be hard for Kalmbach be- 
cause “it’ll get out about Hunt,” and the deletion of that phrase from 
the edited White House transcript. 

11. The President’s appointment in March, 1973, of Jeb Stuart 
Magruder to a high government position when Magruder had previ- 
ously perjured himself before the Watergate Grand Jury in order to 
conceal CEP involvement. 

12. The President’s inaction in response to Dean’s report of March 
13, 1973, that Mitchell and Haldeman knew about Liddy’s operation at 
CEP, that Sloan has a compulsion to “cleanse his soul by confession,” 
that Stans and Kalmbach were trying to get him to “settle down,” and 
that Strachan had lied about his prior knowledge of Watergate out of 
personal loyalty ; and the President’s reply to Dean that Strachan was 
the problem “in Bob’s case.” 

13. The President’s discussion on March 13, 1973, of a plan to limit 
future Watergate investigations by making Colson a White House 
“consultant without doing any consulting,” in order to bring him 
under the doctrine of executive privilege. 

14. The omission of the discussion related to Watergate from the 
edited White House transcript, submitted to the Committee on the 
Judiciary, of the President’s March 17, 1973, conversation with Dean, 
especially in light of the fact that the President had listened to the 
conversation on J une 4, 1973. 

15. The President’s instruction to Dean on the evening of March 20, 
1973, to make his report on Watergate “very incomplete,” and his 
subsequent public statements misrepresenting the nature of that 
instruction. 

16. The President’s instruction to Haldeman on the morning of 
March 21, 1973, that Hunt’s price was pretty high, but that they should 
buy the time on it. 

17. The President’s March 21st statement to Dean that he had 
“handled it just right,” and “contained it;” and the deletion of the 
above comments from the edited White House transcripts. 

18. The President’s instruction to Dean on March 21, 1973, to state 
falsely that payments to the Watergate defendants had been made 
through a Cuban Committee. 

19. The President’s refusal to inform officials of the Department of 
Justice that on March 21, 1973, Dean had confessed to obstruction of 
justice and had said that Haldeman, Ehrliclnnan, and Mitchell were 
also involved in that crime. 

20. The President’s approval on March 22, 1973, of a shift in his 
position on executive privilege “in order to get on with the cover up 
plan,” and the discrepancy, in that phrase, in the edited White House 
transcript. 

21. The President’s instruction to Eonald Ziegler on March 26, 1973, 
to state publicly that the President had “absolute and total confidence” 
in Dean. 



135 


22. The President’s action, in April, 1973, in conveying to Halde- 
man, Ehrlichman, Colson and Kalmbach information furnished to the 
President by Assistant Attorney General Petersen after the President 
had assured Petersen that he would not do so. 

23. The President’s discussions, in April, 1973, of the manner in 
which witnesses should give false and misleading statements. 

24. The President’s directions, in April, 1973, with respect to of- 
fering assurances of clemency to Mitchell, Magruder and Dean. 

25. The President’s lack of full disclosure and misleading state- 
ments to Assistant Attorney General Henry Petersen between April 
15 and April 27, 1973, when Petersen reported directly to the Presi- 
dent about the Watergate investigation. 

26. The President’s instruction to Elirlichman on April 17, 1973, 
to give false testimony concerning Kalmbach ’s knowledge of the pur- 
pose of the payments to the Watergate defendants. 

27. The President’s decision to give Haldeman on April 25 and 26, 

1973, access to tape recordings of Presidential conversations, after 
Assistant Attorney General Petersen had repeatedly warned the Presi- 
dent that Haldeman was a suspect in the Watergate investigation. 

28. The President’s refusal to disclose the existence of the White 
House taping system. 

29. The President’s statement to Richardson on May 25, 1973, that 
his waiver of executive privilege, announced publicly on May 22, 1973, 
did not extend to documents. 

30. The refusal of the President to cooperate with Special Prosecutor 
Cox; the President’s instruction to Special Prosecutor Cox not to seek 
additional evidence in the courts and his firing of Cox when Cox re- 
fused to comply with that directive. 

31. The submission by the President to the Committee on April 30, 

1974, and the simultaneous release to the public of transcripts of 43 
Presidential conversations and statements, which are characterized by 
omissions of words and passages, misattributions of statements, addi- 
tions, paraphrases, distortions, non-sequiturs, deletions of sections as 
“Material Unrelated to Presidential Action,” and other signs of edi- 
torial intervention; the President’s authorization of his counsel to 
characterize these transcripts as “accurate;” and the President’s public 
statement that the transcripts contained “the whole story” of the 
Watergate matter. 

32. The President’s refusal in April, May, and June 1974, to comply 
with the subpoenas of the Committee issued in connection with its 
impeachment inquiry. 

In addition to this evidence, there was before the Committee the fol- 
lowing evidence : 

1. Beginning immediately after June 17, 1972, the involvement 
of each of the President’s top aides and political associates, 
Haldeman, Mitchell, Ehrlichman, Colson, Dean, LaRue, Mar- 
dian, Magruder, in the Watergate coverup. 

2. The clandestine payment by Kalmbach and LaRue of more 
than $400,000 to the Watergate defendants. 

3. The attempts by Ehrlichman and Dean to interfere with the 
FBI investigation. 



136 


4. The perjury of Magruder, Porter, Mitchell, Krogh, 
Strachan, Haldeman and Ehrlichman. 

Finally, there was before the Committee a record of public state- 
ments by the President between June 22, 1972, and June 9, 1974, 
deliberately contrived to deceive the courts, the Department of Justice, 
the Congress and the American people. 

President Nixon’s course of conduct following the Watergate break- 
in, as described in Article I, caused action not only by his subordinates 
but by the agencies of the United States, including the Department of 
Justice, the FBI. and the CIA. It required perjury, destruction of 
evidence, obstruction of justice, all crimes. But, most important, it re- 
quired deliberate, contrived, and continuing deception of the American 
people. 

President Nixon’s actions resulted in manifest injury to the confi- 
dence of the nation and great prejudice to the cause of law and justice, 
and was subversive of constitutional government. His actions were 
contrary to his trust as President and unmindful of the solemn duties 
of his high office. It was this serious violation of Richard M. Nixon’s 
constitutional obligations as President, and not the fact that violations 
of Federal criminal statutes occurred, that lies at the heart of Article I. 

The Committee finds, based upon of clear and convincing evidence, 
that this conduct, detailed in the foregoing pages of this report, con- 
stitutes “high crimes and misdemeanors” as that term is used in Article 
II, Section 4 of the Constitution. Therefore, the Committee recom- 
mends that the House of Representatives exercise its constitutional 
power to impeach Richard M. Nixon. 


On August 5, 1974, nine clays after the Committee had voted on 
Article I, President Nixon released to the public and submitted to the 
Committee on the Judiciary three additional edited White House 
transcripts of Presidential conversations that took place on June 23, 
1972, six days following the DNC break-in. Judge Sirica had that day 
released to the Special Prosecutor transcripts of those conversations 
pursuant to the mandate of the United States Supreme Court. The 
Committee had subpoenaed the tape recordings of those conversations, 
but the President had refused to honor the subpoena. 

These transcripts conclusively confirm the finding that the Commit- 
tee had already made, on the basis of clear and convincing evidence, 
that from shortly after the break-in on June 17, 1972, Richard M. 
Nixon, acting personally and through his subordinates and agents, 
made it his plan to and did direct his subordinates to engage in a course 
of conduct designed to delay, impede and obstruct investigation of the 
unlawful entry of the headquarters of the Democratic National Com- 
mittee; to cover up, conceal and protect those responsible ; and to con- 
ceal the existence and scope of other unlawful covert activities. 





INTRODUCTION 

On July 29 the Committee adopted Article II, as amended, by a vote 
of 28 to 10. The Article provides ; 

Using the powers of the office of President of the United States, Richard M. 
Nixon, m violation of his constitutional oath faithfully to execute the office of 
President of the United States and, to the best of his ability, preserve, protect, 
and defend the Constitution of the United States, and in disregard of his consti- 
tutional duty to take care that the laws be faithfully executed, has repeatedly 
engaged in conduct violating the constitutional rights of citizens, impairing the 
due and proper administration of justice and the conduct of law T ful inquiries, or 
contravening the laws governing agencies of the executive branch and the pur- 
poses of these agencies. 

Article II charges that Richard M. Nixon, in violation of his consti- 
tutional duty to take care that the laws be faithfully executed and his 
oath of office as President, seriously abused powers that only a Presi- 
dent possesses. He engaged in conduct that violated the constitutional 
rights of citizens, that interfered with investigations by federal au- 
thorities and congressional committees, and that contravened the laws 
governing agencies of the executive branch of the federal government. 
This conduct, undertaken for his own personal political advantage and 
not in furtherance of any valid national policy objective, is seriously 
incompatible with our system of constitutional government. 1 

Five instances of abuse of the powers of the office of President are 
specifically listed in Article II. Each involves repeated misuse of the 
powers of the office, and each focuses on improprieties by the President 
that served no valid national policy objective. Each of them individ- 
ually and all of them together support the ground of impeachment 
charged in Article II — that Richard M. Nixon, using the power of 
his office, repeatedly engaged in conduct violating the constitutional 
rights of citizens, impairing the due and proper administration of jus- 
tice and the conduct of lawful inquiries, or contravening the laws gov- 
erning agencies of the executive branch and the purposes of these 
agencies. 

Richard M. Nixon violated the constitutional rights of citizens by 
directing or authorizing his subordinates to interfere with the impar- 
tial and nonpolitical administration of the internal revenue laws. He 
violated the constitutional rights of citizens by directing or authoriz- 
ing unlawful electronic surveillance and investigations of citizens and 
the use of information obtained from the surveillance for his own po- 
litical advantage. He violated the constitutional rights of citizens by 


1 In some of the instances in which Richard M. Nixon abused the powers of his office, 
his unlawful or improper objective was not achieved. But this does not make the abuse 
of power any less serious, nor diminish the applicability of the impeachment remedy. The 
principle was stated by Supreme Court Justice William Johnson in 1808 : “If an officer 
attempt an act inconsistent with the duties of his station, it is presumed that the failure 
of the attempt would not exempt him from liability to impeachment. Should a President 
head a conspiracy for the usurpation of absolute power, it is hoped that no one will contend 
that defeating his machinations would restore him to innocence.” Gilchrist v. Collector 
of Charleston , 10 F, Cas. 355, 365 (No. 5, 420) (C.C.D.S.C. 1808). 

( 139 ) 



140 


permitting a secret investigative unit within the office of the President 
to engage in unlawful and covert activities for his political purposes. 
Once these and other unlawful and improper activities on his behalf 
were suspected, and after he knew or had reason to know that his close 
subordinates were interfering with lawful investigations into them, he 
failed to perform his duty to see that the criminal laws were enforced 
against these subordinates. And he used his executive power to inter- 
fere with the lawful operations of agencies of the executive branch, 
including the Department of Justice and the Central Intelligence 
Agency, in order to assist in these activities, as well as to conceal the 
truth about his misconduct and that of his subordinates and agents. 



ARTICLE II, PARAGRAPH (1) 

(1) He Has, Acting Personally and Through His Subordinates 
and Agents, Endeavored To Obtain From the Internal Revenue 
Service, in Violation of the Constitutional Rights of Citizens, 
Confidential Information Contained in Income Tax Returns 
for Purposes Not Authorized by Law, and To Cause, in Viola- 
tion of the Constitutional Rights of Citizens, Income Tax 
Audits or Other Income Tax Investigations To Be Initiated or 
Conducted in a Discriminatory Manner 

The Committee finds clear and convincing evidence that a course of 
conduct was carried out by Richard M. Nixon’s close subordinates, 
with his knowledge, approval, and encouragement, to violate the con- 
stitutional rights of citizens — their right to privacy with respect to the 
use of confidential information acquired by the Internal Revenue 
Service ; their right to have the tax laws of the United States applied 
with an even hand; and their right to engage in political activity in 
opposition to the President. This conduct involved an attempt to inter- 
fere with the lawful administration of the Internal Revenue Service 
and the proper conduct of tax inquiries by misusing confidential IRS 
information and the powers of investigation of the IRS for the politi- 
cal benefit of the President. In approving and encouraging this ac- 
tivity, he failed to take care that the laws be faithfully executed and 
violated his constitutional oath faithfully to execute the office of Presi- 
dent and to preserve, protect, and defend the Constitution. 

I 

Wallace Investigation 

On various occasions, President Nixon’s subordinates acting under 
his authority and in order to serve his political interests sought 
and obtained information from the Internal Revenue Service about 
tax investigations of citizens. The first instance of which the Commit- 
tee has evidence involves Governor George Wallace. In the spring 
of 1970, Wallace was running against Albert Brewer in the Alabama 
primary for the Democratic party’s gubernatorial nomination. A Wal- 
lace defeat was considered helpful to the President because it would 
lessen Wallace’s prospects in the 1972 presidential election. Four hun- 
dred thousand dollars in campaign funds remaining from the Presi- 
dent’s 1968 campaign was secretly contributed to the Brewer primary 
campaign. (Kalmbach testimony, 3 HJC 565, 664-66) 

IRS information about Wallace was also used to try to defeat 
Wallace in the Alabama gubernatorial primary. In early 1970 Halde- 
man learned, apparently from an IRS sensitive case report, 1 about an 

1 Sensitive case reports are used by the IRS to inform the Secretary of the Treasury, the 
IRS Commissioner and, at their discretion, other Administration officials of the existence of 
proceedings or investigations involving prominent individuals. 

( 141 ) 



142 


investigation of George Wallace and his brother Gerald. Haldeman 
directed Clark Mollenhoff, special councel to the President, to obtain 
a report of the IKS investigation. (Book VIII, 38) According to 
Mollenhoff : 

I initially questioned Mr. Haldeman’s instruction, but upon his assurance that 
the report was to be obtained at the request of the President, I requested the 
report of IRS Commissioner [Randolph] Thrower. (Book VIII, 38) 

Mollenhoff obtained the IRS report on the Wallace investigation 
from Commissioner Thrower. (Book VIII, 38, 41) On March 21, 1970, 
Mollenhoff delivered it to Haldeman on his assurance that it was for 
the President. (Book VIII, 36, 38) 

Material contained in the report was later transmitted to columnist 
Jack Anderson. Portions of it adverse to George Wallace were pub- 
lished nationally on April 13, 1970, several weeks before the primary 
election. ( Book VIII, 37, 39, 41 ) 

After the publication, Commissioner Thrower and the Chief Coun- 
sel of the IKS met with Ehrlichman and Haldeman and discussed the 
seriousness of the leak and the fact that an unauthorized disclosure 
constituted a criminal act. 2 Haldeman and Ehrlichman assured 
Thrower that they would take steps to prevent a recurrence. (Book 
VIII, 42) 

Information and Audits 

In the fall of 1971, John Dean’s assistant, John Caulfield, sought 
and obtained information from the IRS on the financial status and 
charitable contributions of Lawrence Goldberg in order to assess 
Goldberg’s suitability for a position at the Committee to Re-elect the 
President. (Book VIII, 138-42) Confidential IRS material was also 
obtained about a journalist investigating the affairs of a campaign 
fundraiser and about various prominent entertainers. (Book VIII, 
156-60,211) 

At Haldeman’s request, and under Dean’s direction, attempts were 
made to have tax audits conducted on various other persons. There is 
no evidence that these audits were in fact undertaken. (Book VIII, 
176-80) 

III 

O’Brien Investigation 

During the spring or summer of 1972, John Ehrlichman learned 
from an IRS sensitive case report that an investigation of Howard 
Hughes’ business interests was under way. The report reflected a 
connection between the Hughes matters being investigated and the 
personal finances of Democratic National Committee Chairman Law- 
rence O’Brien. (Book VIII, 223-24) Ehrlichman sought and obtained 
information about O’Brien’s tax returns from Assistant to the Com- 


2 26 IT S C § 7213 provides in part that it “shall be unlawful for any officer or employee 
of the United States to divulge ... to any person the amount or source of income, profits 
losses, expenditures, or any particular thereof, set forth or disclosed in any income return. 
This section makes such activity a misdemeanor and requires the discharge of the guilty 
officer or employee. The IRS considers data obtained in an IRS investigation to be income 
return information. IRS Reg. § 301.6103(a)-! (a) (3) (i) (b). 



143 


missioner Roger Barth. (Roger Barth testimony, SSC Executive Ses- 
sion, June 6, 1974, 3-6) Ehrlichman also told Treasury Secretary 
Shultz that the Internal Revenue Service should interview O’Brien. 
The IRS policy then in effect was that audits and interviews, absent 
statute of limitations and other compelling considerations, would not 
be conducted during an election year with respect to candidates or 
others in politically sensitive positions. Book VIII, 219-20) Since the 
1972 election campaign was in progress, the IRS would not have inter- 
viewed O’Brien until after election day, November 7, but because of 
Ehrlichman’s demands the IRS had a conference with O’Brien in mid- 
August. (Book VIII, 219-21) According to Walters: 

IRS interviewed Mr. O’Brien on or about August 17, 1972. Mr. O’Brien was 
cooperative although the interview was limited timewise, and Mr. O’Brien sug- 
gested that any further interview be postponed until after the election. My recol- 
lection is that IRS furnished a copy of the Conference Report to Secretary 
Shultz. A short time thereafter, Secretary Shultz informed me that Mr. Ehrlich- 
man was not satisfied and that he needed further information about the matter. 
I advised the Secretary that IRS had checked the filing of returns and the 
examination status of those returns (closed) and that there was nothing else 
IRS could do. 

On or about August 29, 1972, at the request of Secretary Shultz, I went to his 
office with Roger Barth so that we could conclude review of the O’Brien 
matter and dispose of it. Secretary Shultz, Mr. Barth and I discussed the matter 
and agreed that IKS could do no more. We then jointly telephoned Mr. Ehrlich- 
man. Secretary Shultz informed Mr. Ehrlichman of that; I stated that IRS 
had verified that Mr. O’Brien had filed returns, that those returns reflected large 
amounts of income, that IRS already had examined and closed the returns, and 
that we (Shultz, Walters and Barth) all agreed that there was nothing further 
for IRS to do. Mr. Ehrlichman indicated disappointment, and said to me “I’m 
goddamn tired of your foot dragging tactics.” I was offended and very upset but 
decided to make no response to that statement. Following the telephone con- 
versation, I told Secretary Shultz that he could have my job any time he wanted 
it. (Book VIII, 234-35) 

In early September, Ehrlichman telephoned Kalmbach and told him 
that O’Brien had IRS problems. He gave Kalmbach figures on 
O’Brien’s allegedly unreported income and asked Kalmbach to plant 
the information with Las Vegas newspaperman Hank Greenspun, a 
friend of Kalmbach. Kalmbach refused to do so, clesnite subsequent 
requests by Ehrlichman and Mitchell. (Kalmbach testimony, 3 HJC 
615-17) 3 

IV 

McGovern Supporters 

On September 11, 1972, Dean, at the direction of Ehrlichman, gave 
to IRS Commissioner Walters a list, which had been compiled by CRP 
campaign aide Murray Chotiner, of the names of 575 members of 
George McGovern’s staff and contributors to his campaign. Dean asked 


* According to an affidavit of SSC Minority Counsel Fred Thompson, he was informed by 
Special Counsel to the President J. Fred Buzhardt that John Dean reported to the President 
on the IRS investigation of O’Brien on September 15. 1972. (Book VIII, 337-39) In a staff 
interview, Dean said he did not recall discussing O’Brien’s taxes with the President. On 
June 12, 1974, Judge Sirica held that the conversation from 6 :00 to 6:13 p.m. on Septem- 
ber 15, 1972, is relevant to the Watergate Special Prosecutor’s investigation of alleged 
abuse of the IRS and ordered that this portion of the tape be turned over to the Special 
Prosecutor. The President has appealed Judge Sirica’s order. Judge Cirica ruled that he 
was without judicial power, because of restrictions in an earlier Court of Appeals man- 
date, hixony Sirica, to deliver a copy of this tape or transcript to the Committee. On 
June 1J74, the Committee subpoenaed the tape recording and materials related to this 
13-minute conversation from the President. 


37-777 0 - 74-10 



144 


that the IRS investigate or develop information about the people on 
the list. (Dean testimony, 2 HJC 229) According to Walters : 

Mr. Dean stated that he had not been asked by the President to have this 
done and that he did not know whether the President had asked that any of this 
activity be undertaken. Mr. Dean expressed the hope that the IRS could do this 
in such a manner that would “not cause ripples.” He indicated that he was not 
yet under pressure with respect to this matter. 

I advised Mr. Dean that compliance with the request would be disastrous 
for the IRS and for the Administration and would make the Watergate affair 
look like a ‘Sunday School picnic’ .... I advised him that I would discuss the 
matter with Secretary Shultz, and that I would recommend to Secretary Shultz 
that we do nothing on the request. (Book VIII, 239) 

Two days later, Walters and Shultz discussed the list and agreed to do 
nothing about Dean’s request. (Book VIII, 275-76) 

During his appearance before the Committee, Dean was asked by 
Representative Railsback about his instructions for giving the list of 
McGovern supporters to Walters. 

Mr. Railsback. Were you instructed to tell Mr. Walters on September 11 
that the President himself had not authorized [the request] ? 

Mr. Dean. I was instructed to not use the President’s name, that is correct. 

Mr. Railsback. And who instructed you ? 

Mr. Dean. Well, that was very clear in my discussions with Mr. Ehrlichman. 
(Dean testimony, 2 HJC 301) 

On September 15, 1972, the President and Haldeman met and dis- 
cussed the activities of John Dean. Dean was about to join the meeting. 
Haldeman explained what Dean had been doing : 

Haldeman. Between times, [Dean’s] doing, he’s moving ruthlessly on the 
investigation of McGovern people, Kennedy stuff, and all that too. I just don’t 
know how much progress he’s making, ‘cause I — 

President. The problem is that’s kind of hard to find. 

Haldeman. Chuck, Chuck has gone through, you know, has worked on the list, 
and Dean’s working the, the thing through IRS and, uh, in some cases, I think 
some other [unintelligible] things. He’s — He turned out to be tougher than I 
thought he would, which is what 

President. Yeah. (HJCT 1) 

After Dean joined the meeting, the President, Haldeman and 
Dean discussed using federal agencies to attack the President’s politi- 
cal opponents. (HJCT 10, 15) They spoke of the reluctance of the 
the IRS to follow up on White House complaints. 4 (Book VIII, 333) 
Dean testified before the Committee about this portion of the Septem- 
ber 15, 1972, conversation : 

I am not sure how directly or specifically it came up, but there was a, indeed, 
a rather extended discussion with the President on the use of IRS. He made 
some rather specific comments to me, w T hich in turn resulted in me going back to 
Mr. Walters again, 

. . . [A]s I recall the conversation, we were talking about the problems of 
having IRS conduct audits, and I told him that we hadn’t been very successful 
at this because Mr. Walters had told me that he just didn’t want to do it. I 
did not — I did not push him. As far as I was concerned I was off the hook. I had 
done what I had been asked, and I related this to the President. (Dean testimony, 
2 HJC 229) 


4 This segment of the conversation was obtained accidentally when the September 15, 
1972 tape was rerecorded for the Committee at the White House. On June 24, 1974, the 
Committee subpoenaed the tape recording and materials related to the conversation among 
the President, Haldeman and Dean from 6 :00 to 6 :13 p.m., and between the President and 
Haldeman from 4 :43 to 5 :27 p.m. The President refused to submit these recordings. 



145 


Dean also testified that the President said that if Dean had any 
problem with Shultz or the IRS, Dean should tell the President, who 
would straighten it out. (Dean testimony, 2 HJC 229) Dean testified 
that it was his impression that the September 15 meeting was not the 
first time the President had been advised of the requested audits of 
McGovern supporters (Dean testimony, 2 HJC 301) ; and that, after 
September 15, he believed his authority with respect to approaches to 
the IRS came directly from the President. (Dean testimony, 2 HJC 
250) 

As a result of his conversation with the President, Dean again con- 
tacted Commissioner Walters on September 25, 1972. (Dean testimony, 
2 HJC 229, 350) According to Commissioner Walters : 

[Dean] inquired as to what progress I had made with respect to the list. I 
told him that no progress had been made. He asked if it might be possible to 
develop information on fifty-sixty-seventy of the names. I again told him that, 
although I would consider the matter with Secretary Shultz, any activity of this 
type would be inviting disaster. (Book VIII, 354) 

Walters again discussed the matter with Schultz and they decided to 
do nothing with respect to Dean’s demand. (Rook VIII, 280-85, 354) 

V 

IRS Sources 

On March 13, 1973, the President, Haldeman and Dean discussed the 
President’s “project to take the offensive” with respect to the Senate 
Watergate hearings. The President mentioned the difficulty of obtain- 
ing information about contributions to the McGovern campaign. The 
President asked Dean, “Do you need any IRS [unintelligible] stuff?” 
Dean answered : 

[T]here is no need at this hour for anything from IRS, and we have a couple 
of sources over there that I can go to. I don’t have to fool around with Johnnie 
Walters or anybody, we can get right in and get what we need. (HJCT 50) 



ARTICLE II, PARAGRAPH (2) 

(2) He Misused the Federal Bureau of Investigation, the Secret 
Service, and Other Executive Personnel, in Violation or Disre- 
gard of the Constitutional Rights of Citizens, by Directing or 
Authorizing Such Agencies or Personnel To Conduct or Con- 
tinue Electronic Surveillance or Other Investigations for 
Purposes Unrelated to National Security, the Enforcement of 
Laws, or Any Other Lawful Function of His Office; He Did 
Direct, Authorize, or Permit the Use of Information Obtained 
Thereby for Purposes Unrelated to National Security, the 
Enforcement of Laws or Any Other Lawful Function of His 
Office; and He Did Direct the Concealment of Certain Rec- 
ords Made by the Federal Bureau of Investigation of Electronic 
Surveillance 

The Committee finds clear and convincing evidence that Richard M. 
Nixon violated his constitutional oath and his constitutional duty to 
take care that the laws be faithfully executed by directing or authoriz- 
ing executive agencies and personnel to institute or continue unlawful 
electronic surveillance and investigations, in violation or disregard 
of the constitutional rights of citizens. The surveillance and investi- 
gations served no lawful purpose of his office; they had no national 
security objective, although he falsely used a national security pretext 
to attempt to justify them. Information obtained from this surveil- 
lance was used by his subordinates, with his authorization or permis- 
sion, for his political advantage; and the FBI records of electronic 
surveillance were concealed at his direction. 

I 

The FBI Wiretaps 

In the spring of 1969, the President authorized the FBI to install 
wiretaps on the home telephones of a number of government em- 
ployees and newsmen. 1 (Book VII, 147) This decision was made about 
the time of the appearance of an article by William Beecher in The 
New York Times which disclosed the bombing of Cambodia by the 
United States Air Force. (Book VII, 148^9) It was not known 
whether Beecher’s article was based on classified information leaked 
from the National Security Council (NSC). (Book VII, 143-45, 299- 
BOO) 

The President’s orders were transmitted to the FBI by Colonel 
Alexander Haig. Haig told FBI officials that the directive to install 
wiretaps came on the highest authority, instructed the FBI not to 
maintain regular records of the wiretaps in the indices kept by the 


1 Letter, President Nixon to Senate Foreign Relations Committee, 7/12/74. 

( 146 ) 



147 


FBI for all of its other wiretaps and assured the Bureau that these 
surveillances would be necessary for only a few days. (Book VII, 
189-90) Between May 12 and June 4, 1969, FBI wiretaps were in- 
stalled on the telephones of five NSC staff members, two newsmen and 
one employee of the Department of Defense. (Book VII, 204-05) 

One of the five NSC employees whose telephones w^ere tapped was 
Morton Halperin (designated “N” in the Committee’s statement of 
information). 2 The wiretap of Halperin ’s telephone was installed on 
May 9, 1969. 3 (Memorandum from Director, FBI to Attorney General, 
J une 24, 1974 ; letter from Deputy Attorney General Silberman to Sen- 
ator J. W. Fulbright, June 18, 1974) On July 8, 1969, Assistant FBI 
Director William Sullivan, who had day-to-day responsibility for the 
wiretaps, reported to Hoover that “nothing” of significance from the 
standpoint of the leak in question “has come to light” from the Hal- 
perin tap. Sullivan told Hoover that he had suggested to Colonel Haig 
that some of this coverage be removed. (Book VII, 326) The Halperin 
wiretap, however, remained in place. 

On September 19, 1969, Halperin resigned from the staff of the NSC ; 
he remained an NSC consultant until May, 1970. At the beginning of 
1970, he became a consultant to Senator Edmund Muskie. (Book VII, 
212-13, 329-30) Although Halperin, for more than a year, had no ac- 
cess to national security information, and despite Sullivan’s assur- 
ance to Hoover that the tap had revealed no leaks, there is no evi- 
dence of any check to find grounds for continuing the tap on Halperin ; 
the tap was not removed until February 10, 1971. (Book VII, 331-33) 
Between May 12, 1969 and May 11, 1970, the President received 14 
summary letter reports regarding the Halperin wiretap. In May, 1969, 
Assistant to the President Henry Kissinger received copies of these let- 
ters and three additional summaries. (Book VII, 372-73) After Hal- 
perin terminated his relationship with the NSC, summaries were sent 
only to Haldeman, who received, in all, eighteen summary letters re- 
garding Halperin. (Book VII, 370) The summaries included reports 
on the political activities of Senator Muskie. (Book VII, 229) 

Haig requested the wiretap of another consultant to Senator 
Muskie’s campaign, who had been employed by the NSC. (Book VTI, 
197, 212-13) The wiretap was installed at the time that he announced 
his resignation from the NSC, which occurred in June, 1970. 
The tap lasted from May 13, 1970, until February 10, 1971, 
the same date Halperin’s tap was removed. (Book VII, 205) 
The summaries from this wiretap were sent only to Haldeman; they 
included information on the Muskie political campaign; they con- 
tained no discussion of classified matters. (Book VII, 228) 

On February 28, 1973, in a conversation with John Dean, the Presi- 
dent revealed that he was aware that there had been wiretaps on 
Muskie aides. While discussing the wiretap program, he asked Dean, 
“Didn’t Muskie do anything bad on there?” (HJCT 37) The word 
“there” referred to the taps. 

The President’s policy of using the FBI to conduct electronic 
surveillance for purposes unrelated to national security, or any other 


2Hplp e rin’s identity was disclosed in documents filed in Halperin v. Kissinger, The other 
subjects of the tap are not identified by name in this report. 

Attorney General did not sipn the anthorization for the wiretap until three days 
after the tap was installed. (Book VII, 192-93) 



148 


proper purpose, was also carried out in the placing of taps on three 
White House employees working solely on domestic matters. On 
July 23, 1969, Attorney General Mitchell directed the FBI to initiate 
a wiretap (and also 24 hour-a-day physical surveillance) on an assist- 
ant to Ehrlichman, then Counsel to the President. (Book VII, 269- 
70) Mitchell told the FBI that this surveillance was at the express 
direction of the President. (Book VII, 269) This assistant had re- 
sponsibilities with regard to domestic matters only. The reports, which 
were sent to Ehrlichman, contained information only about personal 
matters and domestic politics. (Book VII, 280) On August 4, 1969, 
Haig directed the FBI to tap the telephone of a White House speech 
writer, who had been overheard (in the course of a previously initiated 
White House tap on a newsman) agreeing to furnish the newsman 
with background information on a speech by the President on reve- 
nue sharing and welfare reform. (Book VII, 267 ; FBI memorandum 
W. C. Sullivan to C. D. DeLoach, 8/1/69) 

In December, 1970, at Haldeman’s direction, the home phone of a 
third member of the White House staff, who was not involved in 
national security, was tapped. (Book VII, 205, 268) After the FBI 
had delh^ered the first two daily reports on this employee, who was 
the son-in-law of a prominent Republican, Lawrence Higby, Halde- 
man’s principal aide, called the FBI and ordered that FBI tap reports 
include only pertinent material. Six later reports were limited to politi- 
cal activities of the White House employee’s father-in-law, general 
political matters, and the White House employee’s personal affairs. 4 
(Book VII, 274, 282) 

On September 10, 1969, Attorney General Mitchell directed the FBI 
to install a wiretap on a network television reporter and to place him 
under 24-hour-a-day surveillance. Mitchell said that the President 
had expressly ordered this surveillance, and that the President had 
studied the FBI file on the reporter. The FBI installed the wiretap, 
but persuaded Mitchell not to order physical surveillance. (Book VII, 
243-44) On October 9, 1969, the FBI reported to the Attorney General 
that conversations overheard on the reporter’s telephone related pri- 
marily to family matters or matters of employment. The reporter had 
no known connection with any classified material. Hoover requested 
that the tap be discontinued. The tap continued for another month. 
( Book VII, 205, 254, 257 ) 

In October and December, 1970, Haldeman directed that the FBI 
tap the telephones of two White House employees, one of whom was 
an NSC employee whose previous telephone tap had been discon- 
tinued. (Book VII, 204, 207) Haldeman claimed no national security 
justification for the tap: he said the employee was “a bad apple.” 
(Book VII, 198-99) 

The President’s program to use the FBI to tap White House em- 
ployees and newsmen ended February 10, 1971, when FBI Director 
Hoover, who was about to testify before a subcommittee of the House 
Appropriations Committee, insisted that all the remaining taps be 


* Secretary Kissinger testified that, while he was familiar with the name of the speech 
writer, he had never even heard of the assistant to Ehrlichman or the son-in-law of the 
politician. He said he did not know that any of these three taps was installed. (Book VII, 
261 - 66 ) 



149 


terminated. 5 From May, 1969, until February, 1971, the President 
caused the FBI to tap the telephones of at least 17 persons. 6 (Book 
VII, 204-05) None was reported to have made unauthorized dis- 
closures. (Book VII, 233, 237) 

At the time of these wiretaps it was the policy of the Department 
of Justice to review wiretaps every ninety days to determine whether 
probable cause existed for the wiretap to be continued on grounds of 
national security. The Department did not review any of the 17 taps. 7 
(Book VII, 175, 178) The taps violated other Department of Justice 
criteria for permitting wiretaps without obtaining judicial warrants. 8 

On December 29, 1969, Hoover sent to the President a wiretap 
summary disclosing that former Secretary of Defense Clark Clifford 
planned to write a magazine article critical of the President’s Vietnam 
policy. (Book VII, 360-61) In response to that information, Hal de- 
man directed Magruder to find methods of “pre-action,” and wrote, 
. . the key now is now to lay the ground work and be ready to go — 


5 According to a report by Senators Sparkman and Case to the Senate Foreign Relations 
Committee on the 1969-71 wiretaps, William Ruckelshaus stated that it was Hoover’s 
practice to discontinue wiretaps shortly before congressional appearances of his so that 
he could report minimum taps in effect if he were questioned. (Book VII, 569-70) 

6 The reports of the wiretaps were sent during 1969 and 1970 to the President (34), 
Kissinger (37) and Ehrlichman (15). From May 14, 1970, to February 11, 1971, at the 
President’s direction, the reports were sent only to Haldeman. From July, 1969, until the 
termination of the wiretap on February 11, 1971, Haldeman received a total of 52 wiretap 
reports. 

7 The Justice Department’s ninety-day review period stemmed' from holdings by the 
Supreme Court which placed strict limits on the duration of wiretaps on a single showing 
of probable cause. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held 
that wiretaps are governed by the Fourth Amendment, which protects the rights of 
citizens to be secure in their homes, papers, and effects against unreasonable searches and 
seizures. This Amendment generally requires that all searches be pursuant to warrant, 
with the exception of a narrow group of cases, confined to very special circumstances. 
The Supreme Court has held that even in the case of wiretaps installed pursuant to war- 
rants, the duration of those taps must be strictly limited. In Berger v. New York, 388 U.S. 
41 (1967), the Supreme Court considered a New York State wiretap statute that permitted 
taps pursuant to warrants for an initial period of sixty days. The Court held that this 
period was too long without a new showing of probable cause for the issuance of the warrant : 

[Authorization of eavesdropping for a two month period is the equivalent of a 
series of intrusions, searches and seizures pursuant to a single showing of probable 
cause .... Moreover, the statute permits, and there were authorized here, extensions 
of the original two-month period — presumably for two months each — on a mere show- 
ing that such extension is “in the public interest.” . . . This we believe insufficient 
without a showing of probable cause for the continuance of the eavesdrop, (388 U.S. 
at 59) 

Partly in response to the Supreme Court’s decision in Berger, Congress enacted 18 U.S.C. 
§ 2518(5) as a part of the Omnibus Crime Control Act and Safe Streets Act of 1968. That 
section provides that each wiretap authorization shall automatically terminate as soon 
as the objective of the authorization has been achieved, and that in no case may any 
authorization exceed 30 days. The courts have strictly applied the 30-day limit and have 
frequently limited the duration further on the basis of the Fourth Amendment. See, e.g., 
United States v. Cafero, 473 F. 2d 489 (3d CIr., 1973) ; United States v. Focarile, 340 F. 
Supp. 1033 (D. Md., 1972) 

8 In a report to Attorney General Richardson in 1973, Deputy Attorney General Olson 
stated : 

“. . . Up until the decision in the Keith case, [ United States v. United States District 
Court, 407 U.S. 297 (1972)] it was necessary for the proposed surveillance to satisfy one 
or more of the following criteria : 

(1) That it is necessary to protect the nation against actual or potential attack or any 
other hostile action of a foreign power. 

(2) That it is necessary to obtain foreign intelligence information deemed essential to 
the security of the United States. 

(3) That it is necessary to protect national security information against foreign intelli- 
gence activities. 

(4) That it is necessary to protect the United States against the overthrow of the 
Government by force or other unlawful means. 

(5) That it is necessary to protect the United States against a clear or present danger 
to the structure or the existence of its Government. 

After the Keith decision, only the first three criteria (dealing with the foreign aspects of 
national security) have been taken Into consideration. These criteria reflect the standards 
enunciated in 18 U.S.C. § 2511(3), as part of the Omnibus Crime Control and Safe Streets 
Act of 1968. In those cases where a determination is made that one or more of the appro- 
priate standards is met, a written authorization or a reauthorization for a specified period 
not to exceed three months is executed by the Attorney General.” 



150 


as well as to take all possible preliminary steps.” Hal deman directed 
Magruder, “Let’s get going.” (Book VII, 365, 368) Magruder showed 
the memo and letter to Butterfield and asked for advice. Butterfield 
wrote a memo suggesting how Magruder should proceed to undercut 
Clifford. (Book VII, 362-63) When Ehrlichman saw the letter from 
Hoover, he wrote Haldeman that the information about Clifford was 
“the kind of early warning we need more of.” He said, “Your game 
planners are now in an excellent position to map anticipatory action.” 
(Book VII, 366) 

In his public statement of May 22, 1973, the President said of the 
wiretaps : 

They produced important leads that made it possible to tighten the security 
of highly sensitive materials. I authorized this entire program. Each individual 
tap was undertaken in accordance with procedures legal at the time and in accord 
with longstanding precedent. (“Presidential Statements,” May 22, 1973, 22) 

Evidence before the Committee shows, on the contrary,, that some of 
the taps were not legal, that they did not concern national security, 
but that they were installed for political purposes, in the President’s 
interest and on his behalf. The President also privately admitted that 
the taps were very unproductive and were useless in determining the 
source of leaks. (HJCT 37). 

n 

Joseph Kraft Wiretap and Surveillance 

In June, 1969, John Ehrlichman directed his assistant, John Caul- 
field, to use private employees to install a wiretap at the home of a 
newspaper columnist, Joseph Kraft. John Ragan, a security con- 
sultant to the Republican National Committee, installed the wiretap, 
which remained in place for one week. (Book VII, 314-18) 

The President discussed the Kraft tap with Ehrlichman. Although 
Ehrlichman has testified that the wiretap was authorized for a national 
security purpose (Book VII, 323), there is no evidence of this in FBI 
records or in any other evidence before the Committee. The Attorney 
General did not sign an FBI authorization for the Kraft wiretap. 
It was not authorized by court order. (Book VII, 356) 

After the tap was installed, Ehrlichman told Caulfield that the 
FBI had been persuaded to take over the surveillance of Kraft. In 
June, 1969, Assistant FBI Director Sullivan traveled to a foreign 
country where Kraft was staying and arranged for microphone cover- 
age of Kraft’s hotel room by local authorities. From November 5 to 
December 12, 1969, at the direction of Attorney General Mitchell, the 
FBI conducted spot physical surveillance of Kraft in Washington, 
D.C. In July and November, 1969, the FBI sent reports on the coverage 
of Kraft to Ehrlichman. (Book VII, 315, 356-57) 

III 

Daniel Schorr FBI Investigation 

In August, 1971, Daniel Schorr, a television commentator for the 
Columbia Broadcasting System, was invited to the White House to 
meet with the President’s staff assistants to discuss an unfavorable 
analysis he had made of a presidential speech. (Book VII, 1113) 



151 


Shortly thereafter, Haldeman instructed his chief aide, Higby, to 
obtain an FBI background report on Schorr. (Book VII, 1120)' The 
I BI conducted an extensive investigation of Schorr, interviewing 
twenty-five people in seven hours, including Schorr’s friends and em- 
ployers, and members of his family. (Book VII, 1113, 1115, 1120) 
y hen press reports revealed that the investigation had taken place, 
the President’s aides fabricated and released to the press the explana- 
tion that Schorr was being considered for an appointment as an assist- 
ant to the Chairman of the Council on Environmental Quality. (Book 
J 7 H' 1119) The President knew that Schorr had never been considered 
for any government position. The President approved the cover story. 
(Colson testimony, 3 HJC 238-39) Haldeman has testified that, 
although he could not remember why the investigation was requested, 
ll^O) 1 1 WaS UO * considered for federal employment. (Book VII, 

IV 


The Donald Nixon Surveillance and Wiretap 

In 1969, Haldeman and Ehrlichman asked the Central Intelligence 
Agency to conduct physical surveillance of Donald Nixon, the Presi- 
dent’s brother, who was moving to Las Vegas. Haldeman was reported 
to have feared that Donald Nixon would come into contact with crimi- 
nal elements. (Rejiort of CIA Inspector General and Deputy Director 
Robert Cushman, 6/29/73) The CIA, which has no jurisdiction to 
engage in domestic law enforcement or internal security activities, 
refused. 9 

In late 1970, the Secret Service 10 installed a wiretap on Donald 
Nixon’s home telephone. The President has not claimed that the Secret- 
Service was performing the function (which is within its jurisdiction) 
of protecting the President and his immediate family. The President 
said that the wiretap was installed to monitor conversations in which 
persons might try to cause his brother to exert “improper influence,” 
particularly if such persons were in a foreign country. The President 
has said that liis brother learned of the wiretap during its existence. 11 
The Secret Service has no legal jurisdiction to wiretap for such 
purposes. (Book VII, 522) 

V 


The Huston Plan 

On June 5, 1970, the President appointed an ad hoc committee 
of the Directors of the FBI, CIA, National Security Agency, and 
Defense Intelligence Agency to study domestic intelligence operations. 


9 50 U.S.C. § 403(d) (3) defines the jurisdiction of the CIA as follows : 

“(3) to correlate and evaluate intelligence relating to the national security, and provide 
for the appropriate dissemination of such intelligence within the Government using where 
appropriate existing agencies and facilities : Provided, That the Agency shall have no police, 
subpoena, law-enforcement powers, or internal-security functions : Provided further. That 
the departments and other agencies of the Government shall continue to collect, evaluate, 
correlate, and disseminate departmental intelligence ; And provided further, That the 
Director of Central Intelligence shall be responsible for protecting intelligence sources and 
methods from unauthorized disclosure." 

i° The Secret Service's jurisdiction is confined to enforcement of the laws against counter- 
feiting ; to protect the physical safety of the President and his immediate family, and to 
related matters. (18 U.S.C. § 3056). 

11 Under 18 U.S.C. §2511(2) (6), consensual wiretaps are lawful only when consent is 
obtained in advance of the installation of the tap. 



152 


(Book VII, 377) On Juno 25 the ad hoc committee submitted an 
analysis by the intelligence agencies of the nature and extent of threats 
to internal security from dissident groups and other sources, and set 
forth proposals for loosening existing legal restraints on domestic 
intelligence-gathering procedures. The report noted that the FBI 
objected to relaxation of these restraints. (Book VII, 384-431) 

During the first week of July, 1970, Tom Charles Huston, a White 
House staff assistant, submitted the ad hoc committee’s report and 
wrote a memorandum to Haldeman recommending that the President 
adopt its proposals. Surreptitious entries, electronic surveillance and 
covert mail covers (described in the Huston Memorandum as “sur- 
reptitious screening,” including opening and examining first class 
mail) were among the proposals in the report. Huston acknowledged 
the illegality of the techniques, but sought to justify them. (Book 
VII, 438-42) His defense of “surreptitious entries” v T as as follows: 

Use of this technique is clearly illegal : It amounts to burglary. It is also highly 
risky and could result in great embarrassment if exposed. However, it is also 
the most fruitful tool and can produce the type of intelligence which cannot be 
obtained in any other fashion. 

The FBI, in Mr. Hoover’s younger days, used to conduct such operations with 
great success and with no exposure. (Book VII, 440) 

On July 14, 1970, Haldeman wrote to Huston, in a memorandum : 
“The recommendations you have proposed as a result of the review 7 
have been approved by the President.” (Book VII, 447) Huston, on 
Haldeman’s instructions, prepared and distributed a formal decision 
memorandum (Book VII, 499) advising the members of the ad hoc. 
committee that the President ordered: 

[1.] Electronic Surveillance ami Penetrations . The intelligence community is 
directed to intensify coverage of individuals and groups in the United States 
who pose a major threat to the internal security. . . . 

[2.] Mail Coverage. Restrictions on legal coverage are to he removed. Restric- 
tions on covert coverage are to be relaxed to permit use of this technique on se- 
lected targets of priority foreign intelligence and internal security interest. 

[3.] Surreptitious Entry. Restraints on the use of surreptitious entry are to he 
removed. . . . (Book VII, 454) 

FBI Director Hoover and Attorney General Mitchell opposed the 
decision. (Book VII, 464) Mitchell informed the President and Halde- 
man of his opposition. (Book VII, 465) On July 27 or 28, 1970, on 
Hal deman’s instructions, Huston recalled the decision memorandum. 12 
(Book VII, 470-74) 

VI 


Concealment of Records of the 1969-1971 FBI Wiretaps 

In conducting wiretaps, the FBI maintains a central file and indices 
of records of the taps so that the names of persons overheard are re- 


13 In addition to the options relating to relaxation of restraints on intelligence gathering 
methods, the Huston Plan recommended the formation of an Intelligence Evaluation Com- 
mittee (IEC) to coordinate the work of the several intelligence agencies. The Huston Plan 
was a response only to domestic security threats, but the IEC was to include personnel 
from DIA. NSA and CIA as well as the FBI. Although the Huston Plan was recalled, the 
IEC was established in late 1970 and continued in effect through 1973. Tlie agencies pro- 
vided and evaluated intelligence information. The existence of the IEC was concealed under 
the cover of an existing unit called the Inter-Divisional Information Unit (IDIU). The 
cover was recommended by Dean in a memorandum to Mitchell on September 18, 1970. Dean 
described the IEC as both an operational and evaluation unit. (Book VII, 488—497) The 
IEC furnished the W T hite House with information on all types of demonstrations that 
might have an impact on the President’s reelection campaign. (Dean testimony, 2 14 JC 
347-48) 



153 


trievable if production should be required during a criminal prosecu- 
tion. 13 The FBI was expressly ordered by Haig not to maintain records 
of the wiretaps initiated under the President’s 1969 authorization, and 
was told that it would be desirable to have the matter handled without 
going to the Department of Justice. (Book VII, 189) The FBI never- 
theless maintained unindexed logs and records of these taps and kept 
them in the office of Assistant Director William Sullivan. (Book VII, 
182-83, 186) 

On June 13, 1971, The Nero York Times published the first of the 
Pentagon Papers. On June 28, 1971, Daniel Ellsberg was indicted in 
connection with their release. (Book VII, 593, 616-17) On July 2, the 
Internal Security Division of the Department of Justice, which had 
responsibility for the Ellsberg prosecution, asked the FBI to review 
its files to determine if Ellsberg had been overheard on any wiretaps. 
(Book VII, 686-87) 

Shortly after the Internal Security Division had requested the FBI 
check of its files, Sullivan informed Assistant Attorney Genera] Robert 
Mardian, the head of the Internal Security Division, that Sullivan had 
custody of the files and logs of the 1969-1971 wiretaps, that he expected 
to be forced out of the FBI by Director Hoover and that he wanted to 
turn the wiretap records over to Mardian. According to Mardian, Sul- 
livan said he feared Hoover would use the wiretap material to pressure 
the President to retain him as Director of the FBI. (Book VII, 757, 
766-67) 

Mardian sought advice from Attorney General Mitchell and then, 
on July 11, 1971, was contacted by either Haldeman or Ehrlichman, 
who instructed him to fly to San Clemente to discuss the matter with 
the President. (Book VII, 758, 767) John Ehrlichman’s notes of a July 
10 meeting with the President include: “Re: Grand Jury 14 — Don’t 
worry re taps on discover — re WHs.” Mardian arrived in San Cle- 
mente on July 11, 1971, and met with the President and Ehrlichman 
the next day. (Book VII, 806) The President directed Mardian to 
obtain the logs and files from Sullivan, to deliver them to the White 
House, and check with Kissinger, Haig and Haldeman to make sure 
all reports sent to them were accounted for. (Book VII, 2061) The 
FBI report of an interview of Mardian states : 

^ He [Mardian] said the following morning after his arrival in San Clemente, 
California, [i.e., on July 12] he went directly to the Western White House and 
spoke with the President of the United States, Mr. Nixon. He said he received at 
that time two instructions— one was to get the FBI material from Mr. W. C. Sul- 
livan and deliver it to the White House, and the second was to check to see if all 
the material the White House had in Washington, D.C., matched the material 
supplied by Mr. Sullivan (Book VII, 2060-61) 


13 Under the rule of Alderman v. United States , 394 U.S. 169 (1969), the Government is 
required to produce all materials generated by wiretaps for inspection by defendants in 
criminal cases. 

14 ^he Los Angeles Grand Jury that had indicted Ellsberg on June 28 continued in session, 
and eventually issued a superseding indictment. In addition, a Grand Jury in Boston was 
investigating the Pentagon Papers matter. Ebrlichman’s notes of a meeting with the Prest- 

1961 reflect a reference to the Boston Grand Jury. (Ehriichman’s notes, item 
i » I ' , n t y i^74, the House Judiciary Committee received a copy of certain of John 

Ehrlichman s handwritten notes taken during meetings with the President. The President 
nad produced those notes pursuant to a subpoena issued in United States v. Ehrlichman, 
‘ T- 74-110 (D. D.C. ). They relate to discussions by the President about the Pentagon 
l apers disclosure and related matters. The 174 pages of notes received are contained in 
an appendix to the Committee’s statement of information. 



154 


In early August, after checking with Kissinger, Haig and Halde- 
man, as ordered by the President, Mardian delivered the wiretap files 
to someone in the Oval Office of the White House. He has refused to 
say to whom he actually delivered them. (Book VII, 2063) The FBI 
report of an interview of Mardian says : 

He [Mardian] said when he went to the White House he went directly to Dr. 
Kissinger’s office. Dr. Kissinger and General Haig were present .... 

Mr. Mardian said that in Dr. Kissinger’s and General Haig’s presence he opened 
the bag and removed a group of papers from the bag “clipped together” with a 
sheet of paper on top which had the chronological listing of summaries of wiretap 
information that had been previously furnished by the FBI to the White House. 
He said that he and Dr. Kissinger checked by date and satisfied themselves that 
Dr. Kissinger’s material matched with the cover sheet which Mr. Mardian was 
using .... 

He said that after he and Dr. Kissinger and General Haig were satisfied that 
the material in Dr. Henry Kissinger’s office matched the itemized list, he 
walked into Mr. Haldeman’s office. He said, again this point is not completely 
clear in his mind but he had the distinct impression that he left the check list 
with Mr. Haldeman to check against the summaries that Haldeman had in his 
possession in his own office. 

He said that as a result of Mr. Haldeman’s check, as best he can recall, two 
of the summaries which were sent to the White House did not check against the 
list. He said his memory could be at fault and that, in effect, it could have been 
two that were in Dr. Kissinger’s possession; however, he feels that the two miss- 
ing summaries were missing from the summaries which Mr. Haldeman checked 
against the itemized list. 

After Mr. Haldeman completed his check, Mr. Mardian said he retrieved the 
bag with all its contents and walked into the Oval Room of the White House and 
left the bag. He was specifically asked to whom he gave the bag. He said he pre- 
ferred not to answer because of the President’s order concerning employees talk- 
ing about national security information. Mr. Mardian was specifically asked 
“Did you give the bag to Mr. Nixon, the President of the United States?” He 
sat back in his chair, shrugged his shoulders, hesitated and said, “I cannot 
answer that question . . . (Book VII, 2062-63) 

The President directed Elirlicliman to take possession of the files. 
Ehrlichman placed them in a filing cabinet in his office, where they 
remained until his resignation on April 30, 1973. Ehrlichman then 
removed the documents from his office and turned them over to the 
President as Presidential papers. (Book VII, 782) 

The concealment of the logs, together with the decision not to have 
the 1969-71 wiretaps indexed, were among the factors ultimately lead- 
ing to the dismissal of the Ellsberg case in the spring of 1973. On 
January 24, 1972, when Judge Byrne, the trial judge in the case, di- 
rected the prosecution to disclose any electronic surveillance or over- 
hearing of Halperin or Ellsberg, the government prosecutor in charge 
of the case filed affidavits denying that there had been electronic sur- 
veillance or overhearing of Ellsberg. (Book VII, 1504-11) In fact, 
Halperin’s telephone had been tapped for 21 months and Ellsberg had 
been overheard on the tap 15 times. (Bonk VII, 681) 

On February 22 or 23, 1973, the White House press office learned 
of a forthcoming Time magazine article that would disclose the exist- 
ence of wiretaps on newsmen and White House employees including 
Halperin. (Book VII, 1742) Disclosure of this tap would show that 
the Government’s affidavits in the trial were false, and would enable 
Ellsberg and his attorneys to ascertain that, contrary to the govern- 
ment’s affidavit, Ellsberg had been overheard on a wiretap. John Dean 
investigated the Time story by contacting Assistant FBI Director 



155 


Mark Felt, Sullivan and Mardian. Each confirmed the existence of the 
wiretaps, and Mardian said that the files had been delivered to Ehrlich- 
man. Ehrlichman told Dean that he had the files, but nevertheless 
directed Dean to have Presidential Press Secretary Ronald Ziegler 
publicly deny the Time story. (Book VII, 1743) 

The Time article was published on February 26, 1973. ft reported 
the existence of the FBI taps on newsmen and White House employees. 
The White House press office issued a denial. (Book VII, 1747-48) 
Two days later, on February 28, Dean reported to the President on the 
Time story and his meeting with Sullivan about the wiretaps^ Dean 
told the President that the White House was stonewalling totally on 
the wiretap story. The President replied, “Oh, absolutely.” (HJCT 
36) 

The following day, March 1, 1973, Acting FBI Director L. Patrick 
Gray publicly testified about the wiretaps. The Senate J udiciary Com- 
mittee was holding hearings on Gray’s nomination to be Director of 
the FBI. He testified that FBI records did not reveal any taps of 
newsmen or White House employees and that, as a result of the White 
House denial of their existence, he had not investigated the matter 
further. (Book VII, 1756) Gray testified that : (1) Mr. Hoover would 
not do something like this in the first place ; (2) When Gray came into 
the Federal Bureau of Investigation on May 3, the very first thing 
that he had said was that he would not permit any wiretaps that were 
not in accordance with law; (3) If these acts [the wiretaps] had oc- 
curred, it was a felony; no question about it, certainly; (4) It was a 
crime; and (5) He did not check with the White House because the 
White House had already issued a denial. (Book VIT, 1756-1759) 

The White House continued to deny the existence of the wiretaps 
until May, 1973. During this period the continuing Ellsberg trial was 
the subject of the President’s attention. On April 5, 1973, Ehrlichman, 
on behalf of the President, asked Judge Byrne if he were interested in 
the position of Director of the FBI. (Book VII, 1881-82) In addition, 
on April 18, 1973, in a telephone conversation, 15 Assistant Attorney 
General Henry Petersen told the President that he had received in- 
formation that Hunt and Liddy and others were responsible for a 
break-in at the office of Dr. Ellsberg’s psychiatrist. The President, 
according to Petersen, replied angrily that lie knew about that. “Stay 
out of that. That’s national security matter. Your mandate is Water- 
gate.” (Petersen testimony, 3 HJC 98) On April 25, 1973, Attorney 
General Kleindienst showed the President Justice Department memo- 
randa, concerning the break-in of Dr. Ellsberg’s psychiatrist. 1,5 Klein- 
dienst insisted to the President that this information should be dis- 
closed to the court in the Ellsberg case. The President, authorized the 
disclosure. (Book VII, 1984) 

On May 9, 1973, after another news article about the wiretaps, an 
FBI agent told Acting FBI Director William Ruckelshaus that he 
recalled hearing Ellsberg on a wiretap three years earlier. (Book VII, 


13 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President stated that the telephone 
call was from Camp David and was not recorded. 

10 On June 24, 1974, the House Judiciary Committee subpoenated the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. 



156 


2047-49) Ruckelshaus immediately reported this information to As- 
sistant Attorney General Henry Petersen who forwarded it to Judge 
Byrne on May 10. Petersen also told Judge Byrne that the logs could 
not be located and that there were no records of the date, duration, or 
nature of the wiretap. (Book VII, 2051-54) Judge Byrne ordered an 
immediate investigation. On the same day, the FBI interviewed 
Mardian, who revealed that he had delivered the records to the White 
House. (Book VII, 2061-63) Ehrlichman could not be located until 
the following day. Two hours before Ehrlichman was interviewed, 
Judge Byrne dismissed all charges against Ellsberg and his co-defend- 
ant, on the basis of misconduct by the Government. He stressed the 
failure of the Government to produce the wiretap records as one 
ground for dismissal. (Book VII, 2079) 



ARTICLE II, PARAGRAPH (3) 

(3) He Has, Acting Personally and Through His Subordinates 
and Agents, in Violation or Disregard of the Constitutional 
Rights of Citizens, Authorized and Permitted To Be Maintained 
a Secret Investigative Unit Within the Office of the Presi- 
dent, Financed in Part With Money Derived From Campaign 
Contributions, Which Unlawfully Utilized the Resources of 
the Central Intelligence Agency, Engaged in Covert and Un- 
lawful Activities, and Attempted to Prejudice the Constitu- 
tional Right of an Accused to a Fair Trial 

The Committee finds clear and convincing evidence that Richard 
M. Nixon established a secret investigative unit in the White House 
to engage in covert activities. This unit engaged in unlawful activ- 
ities that violated the constitutional rights of citizens, including the 
fourth amendment right of Dr. Lewis Fielding and the right of Daniel 
Ellsberg to a fair trial. The unit used the resources of the CIA un- 
lawfully to assist in its operations and used campaign contributions 
to partially finance its unlawful activities. Although Richard M. Nixon 
later asserted that the activities of the unit were undertaken for na- 
tional security purposes, the Committee finds that its unlawful ac- 
tivities served no such objective. Richard M. Nixon, without regard 
for law, permitted the unit to engage in these unlawful activities, and 
by so doing violated his constitutional oath and his duty to take care 
that the laws be faithfully executed. 

I 

Tiie Creation and Purposes of the Special Investigations Unit 

The creation of the special investigations unit (the Plumbers) 
referred to in paragraph (3) of Article II resulted from the publica- 
tion of the Pentagon Papers, portions of which first appeared in The 
New York Times on June 13, 1971. (Book VII, 593) The President 
viewed the publication of the Pentagon Papers primarily as a political 
opportunity rather than a threat to national security. 

Elirlichman’s handwritten notes 1 of a meeting with the President 
on June 17, 1971, under the designation it (Elirlichman’s symbol for 
the President), read: “Win PR, not just court case.” (Ehrlichman 
notes, Item 1 , p. 3) The notes, taken four days after the Pentagon 
Papers were first published, indicate that Daniel Ellsberg had been 


1 On July 15, 1974, the House Judiciary Committee received a copy of certain of John 
Ehrlichman’s handwritten notes taken during meetings with the President. Those notes 
were produced pursuant to a subpoena issued in U.8. v. Ehrlichman , CR 74-116 (D.D.C.) 
and relate to discussions by the President about the Pentagon Papers disclosure and related 
matters. The 174 pages of notes received are being printed by the Committee as a separate 
volume of evidence. 


( 157 ) 



158 


identified as the source of the disclosure. Although the President’s 
National Security Adviser, Henry Kissinger, was present at this 
June 17 meeting, Ehrlichman’s notes do not reflect a discussion by 
Kissinger or anyone else of a fear that Ellsberg would disclose other 
classified material. (Ehrlichman notes, pp. 3-5) 2 Ehrlichman’s notes 
of a meeting two days later state: “Win the case but the NB [impor- 
tant] thing is to get the public view right. Hang it all on LBJ.” 
(Ehrlichman notes, p. 7) . 

On June 25, 1971, Colson wrote in a memorandum to Haldeman 
that it was important to keep the Pentagon Papers issue alive because 
of its value in evidencing the poor judgment of prior Democratic ad- 
ministrations, thus working to the disadvantage of most Democratic 
candidates. Colson’s memoradum recommended encouraging Congres- 
sional hearings with respect to the Pentagon Papers because an analy- 
sis of the origins of U.S. involvement in Vietnam would hurt the Dem- 
ocrats. 3 4 (Book VII, 664-72) Once again there was no mention of any 
effect of the disclosure of the Pentagon Papers on national security. 

Colson wrote : 

There is another opportunity in this whole episode. That is the prosecution 
of Ellsberg. It would indeed arouse the heartland which is at present not very 
excited over the whole issue. 

******* 

The Ellsberg case, if pressed hard by us, will of course keep the issue alive. 
******* 

In short, I think it is very clear that there are profound political implications, 
that this offers us opportunities in ways we perhaps did not initially appreciate, 
that we can turn what appeared to be an issue that would impair Presidential 
credibility into one that we can use by effective contrast to improve the credi- 
bility of this Administration; and further, that it is a tailor-made issue for 
causing deep and lasting divisions within the Democratic ranks. 

For this reason, I feel that we must not move precipitously or worry about 
tomorrow’s headlines. We must keep our eye on the real target : to discredit 
the Democrats, to keep them fighting and to keep ourselves above it so that we 
do not appear to be either covering up or exploiting. (Book VII, 670, 671, 673) 

This memorandum was delivered to the President; he discussed 
aspects of it with Colson on the day it was written. (Colson testimony, 
3 HJC 197) On the morning of July 1, 1971, the President met with 
Haldeman and Colson and discussed the Ellsberg trial; ^Ehrlichman 
joined the meeting a half hour after it began. His notes indicate that 
they were advised to read the chapter about Alger Hiss in the Presi- 


2 Although there is evidence that a portion of the Pentagon Papers was delivered to the 
Soviet Embassy on June 17, 1971, this was later repudiated by Krogh and Young (Book 
VII. 638, 637, 1392) there is no evidence in Ehrlichman’s notes that he discussed this 
matter with the President. There is evidence that Ellsberg was not suspected or investi- 
gated by the Plumbers for this delivery. (Colson testimony, 3 HJC 512) A memorandum 
from Krogh and Young to Ehrlichman dated November 1. 1971, stated that one of the 
problems with the Ellsberg prosecution was the fact that Ellsberg gave the papers to the 
press and not to a foreign power. (Book VIT, 1392) 

3 Throughout the summer of 1971 and into September, Colson continued to encourage 
congressional hearings. (Book VII, 835-36, 841, 1066-69) Colson testified that it was the 
President’s wish that hearings be held as a method of publicly airing the facts. (Colson 
testimony, 3 HJC 197-98) Ehrlichman’s notes of meetings with the President also reflect 
several discussions of congressional hearings. (Ehrlichman notes, Items 5-7, p. 16, 18—21, 
36—37, 56-57, 59) Hunt was instructed to select the politically damaging material from 
the Pentagon Papers. (Book VII, 1218) Hunt also fabricated State Department cables 
purporting to show President Kennedy as responsible for the assassination of Diem. These 
cables were shown to a Life magazine writer in connection with Colson’s efforts in Sep- 
tember, 1971 to publish a major expose of the Diem coup and to revitalize interest in a 
Congressional investigation of the origins of the Vietnam War. (Book VII, 1031, 1035-39, 
1042-51, 1068—751 

4 On June 24, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to the conversation among the President, Haldeman. Colson and 
Ehrlichman on July 1. 1971. The President refused to produce these materials, other 
than the edited Ehrlichman notes. 



159 


dent’s book, “Six Crises ,” and quote the President as saying the Hiss 
ease “was won in the press.” (Ehrlichman notes, Item 6, p. 26) The 
notes then state: “Leak stuff out — this is the way we w T in.” (Ehrlich- 
man notes, Item 8, p. 27) 5 * 

Also on July 1, Colson telephoned Howard Hunt. The following 
exchange took place : 

C One question that occurs to me. This thing could go one of two ways. 
Ellsberg could be turned into a martyr of the new left (he probably w T ill be 
anyway), or it could be another Alger Hiss case, where the guy is exposed, other 
people were operating with him, and this may be the way to really carry it out ; 
we might be able to put this bastard into a helluva situation and discredit the 
new 7 left. 

H It w T ould [sic] a marvelous way if we could do it, but of course, you’ve 
got the Times and the Post and the Monitor and all sorts of things. 

C They’ve got to print the news, you know, if this thing really turns into 
a sensational case. 

H Well, you of course, you’re in a much better spot to see how the Adminis- 
tration stands to gain from it and at this point, I would be willing to set aside 
my personal yen for vengeance to make sure that the Administration profits from 
this. Now it’s turned out, I gather from noonday news reports, it’s become 
apparent that JFK was the guy w r ho slid us into this thing back in May or so 
of 1961. 

C Hell, you know that from where you w r ere. 

H I knew that, yes, but it had never surfaced before. 

C Let me ask you this, Howard, this question. Do you think with the right 
resources employed that this thing could be turned into a major public case 
against Ellsberg and co-conspirators? 

H Yes, I do, but you’ve established a qualification here that I don’t know 
w T hether it can be met. 

C What’s that? 

H Well, with the proper resources. 

C Well, I think the resources are there. 

II Well, I would say so absolutely. 

C Then your answ 7 er w r ould be should go down the line to nail the guy cold? 

II Go down the line to nail the guy cold, yes . . . (Book VII, 700-01) 

Colson sent a transcript of this conversation to Haldeman on July 2. 
The transmittal memorandum noted that Hunt had information from 
his CIA involvement in the Bay of Pigs that would destroy President 
Kennedy. (Book VII, 699) 

The President discussed the Ellsberg matter again with Haldeman, 
Ehrlichman, and Mitchell on July 6, 1971. Ehrlichman’s notes include : 
“tt [President] to JM : must be tried in the paper. Not Ellsberg (since 
already indicted). Get conspiracy smoked out thru the papers. Hiss 
and Bentley cracked that way.” During the same conversation, Ehrlich- 
man wrote: “tt leak the (e) [evidence] of guilt.” (Ehrlichman notes, 
Items 7, 15, p. 38, 40) Ehrlichman’s notes of a meeting with the Presi- 
dent on July 10, 1971, stated: “Goal — Do to McNam., Bundy, JFK 
elite the same destructive job that was done on Herbert Hoover years 
ago.” (Ehrlichman notes, Item 12, p. 52) 

II 

Staffing the Plumbers 

Around June 25, 1971, the President directed Colson, Haldeman and 
Ehrlichman to try to find a person, preferably from the White House 


5 On the afternoon of July 1. 1971, the President and Ehrlichman met with a national 

security study group regarding declassification of documents. The notes of that meeting 

contain the following references : “Espionage not involved in Ellsberg case” and “Don’t 
think in terms of spies.” (Ehrlichman notes, Items 29 and 30, p. 32-33) 


37-777 0 - 74-11 



160 


staff, to assume responsibility for all aspects of the Pentagon Papers 
disclosure, including coordination of the ongoing investigations by 
other Federal agencies and the handling of the prospective congres- 
sional investigations. (Colson testimony, 3 HJC 198) Colson prepared 
a memorandum for Haldeman dated July 2, 1971, which named several 
candidates, including Hunt and Buchanan, a White House speech 
writer. (Book VII, 678) Colson also sent Haldeman a transcript of 
the telephone conversation between Colson and Hunt. (Book VII, 
699-702) 

Buchanan, the first choice of Haldeman and Ehrlichman, declined 
the offer. (Book VII, 704-06) On July 8, 1971, Buchanan, sent a mem- 
orandum to Ehrlichman setting out his contrary views on the Ellsberg 
project. 

Having considered the matter until the early hours, my view is that there are 
some dividends to be derived from Project Ellsburg [sic] — but none to justify 
the magnitude of the investment recommended. 

At the very best, let us assume we can demonstrate, after three months in- 
vestigation, that Ellsburg [sic] stole the documents, worked hand-in-glove with 
ex-NSC types, collaborated with leftist writers Neil Sheehan and Fox Butter- 
field, got together a conspiracy to drop the documents at set times to left-wing 
papers, all timed to undercut McGovern-Hatfield opposition — what have we 
accomplished ? 

What benefit would be derived to the President and his political fortunes in 
1972 — and what damage visited upon his major political adversaries on the 
other side of the aisle. . . . 

This is not to argue that the effort is not worth-while — but that simply we 
ought not now to start investing major personnel resources in the kind of covert 
operation not likely to yield any major political dividends to the President. 
(Book VII, 708-09) 

Hunt was hired, effective July 6, 1971, to work on the Pentagon Papers 
project. (Book VII, 715-16, 721) Golson had known Hunt socially for 
several years and was aware of his background with the CIA. (Book 
VII, 677) -. b 

Elirlichman’s notes of his meeting with the President on July 6, 
1971, state: “tt: put on a non [legal] team on the conspiracy ?” 
( Ehrlichman ’s notes, Item 11, p. 39) 

On July 7, 1971, after being introduced to Hunt by Colson, (Book 
VII, 718-19) Ehrlichman called CIA Deputy Director Robert Cush- 
man and said : 

I want to alert you that an old acquaintance, Howard Hunt, has been asked by 
the President to do some special consultant work on security problems. He may 
be contacting you sometime in the future for some assistance. I wanted you to 
know that he was in fact doing some things for the President. He is a longtime 
acquaintance with the people here. He may want some help on computer runs 
and other things. You should consider he has pretty much carte blanche. (Book 
VII, 728) 

This call was transcribed by Cushman’s secretary. (Book VII, 729- 
31) The President and Ehrlichman met on July 9, 1971, and Ehrlich - 
man’s notes state: “Dave Young to-a special project.” (Ehrlichman’s 
notes, Item 36, p. 48) 

On July 12 in San Clemente the President met with Assistant 
Attorney General Mardian, chief of the Internal Security Division. 
According to Ehrlichman’s affidavit in United States v. Ehrlichman , 
the President received a report on the status of the investigation of 
the Pentagon Papers. The President was not satisfied with the prog- 



161 


ress and insisted upon an early designation of a man to be in charge 
of the White House effort. 6 Ehrlichman summoned David Young and 


Egil Krogh to San Clemente, and on July -17, 1971, he assigned them 
to be cochairmen of a unit to coordinate the| Ellsberg-Pentagon Papers 
investigations. (Book VII, 806-07 ) | 

Ehrlichman called Colson from San Cllemente on the weekend of 


July 17 and asked Colson to assign Hunt to work for Krogh. On 
July 22, 1971, Hunt was assigned to the un it in a meeting Avith Colson 
and Krogh. (Colson testimony, 3 HJC 206-07) Gordon Liddy, who 
had prior investigative experience w T ith the FBI and the Department 
of Treasury, was also hired to Avork with the unit. (Book VII, 816- 
20 ) 

In a discussion Avith Krogh and Ehrlichman on July 24, 1971, the 
day after the publication of a story disclosing the American negotiat- 
ing position in the Strategic Arms Limitation talks, the President 
said : 


This does affect the national security — this particular one. This isn’t like 
the Pentagon Papers. (Book VII, 885) 

III 

Actiatties of the Pltimbeus 


A. Publicly Discrediting Ellsberg 

After the establishment of the unit headed by Krogh and Young, 
the President assigned Colson the task of publicly disseminating de- 
rogatory material collected by the Plumbers. The President also as- 
signed Colson the task of insuring that Congressional hearings Avere 
held as a method of bringing out information that Avould discredit 
Ellsberg. (Book VII, 830-42; Colson testimony, 3 HJC 197-98) 

The President directed Colson to release information concerning 
alleged ties of Ellsberg’s lawyer. Leonard Boudin, Avith the Com- 
munist Party (Book VII, 1139-41) and also to release personal infor- 
mation about Ellsberg himself. On June 3, 1974, Colson pleaded guilty 
to a criminal information that read in part: 

On or about June 28, 1971, and for a period of time thereafter, in the District of 
Columbia and elsewhere, CHARLES AV. COLSON, the DEFENDANT, unlaw- 
fully, willfully and knowingly did corruptly endemmr to influence, obstruct and 
impede the due administration of justice in connection with the criminal trial 
of Daniel Ellsberg under indictment in the case of United States v. Russo , Crimi- 
nal Case No. 9373, United States District Court, Central District of California, 
by devising and implementing a scheme to defame and destroy the public image 
and credibility of Daniel Ellsberg and those engaged in the legal defense of 
Daniel Ellsberg, with the intent to influence, obstruct, and impede the conduct 
and outcome of the criminal prosecution then being conducted in the United 
States District Court for the Central District of California. (Book VII, 918-23) 

Concerning the President’s role in these activities, Colson stated in 
court : 


[TJhe President on numerous occasions urged me to disseminate damaging 
information about Daniel Ellsberg, including information about Ellsberg’s attor- 

0 Ehrlichman’s notes of the July 12, 1971 meeting between the President and Mardian 
?° Terence to the President’s dissatisfaction with the investigation or his insist- 
4 h at someone shouid be placed in charge of a White House effort. (Ehrlichman notes, 
58) In fact, the notes state, “FBI going all out now.” (Ehrlichman notes, Item 12, 

p. o / ; 



162 


ney and others with whom Ellsberg had been in close contact. I endeavored to do 
so — and willingly. (Colson testimony, United States v. Colson , June 21, 1974, 5-6) 

Colson testified before the House Judiciary Committee that his notes 
of a meeting with the President in mid-August reflect a discussion of 
material about Boudin and his alleged ties to the Communist Party. 
(Colson testimony, 3 HJC 223) Krogh and Young advised Ehrlich- 
man by memorandum dated August 19, 1971, that the President was 
after Colson to get something out on Ellsberg and that Hunt was pre- 
paring .an article about Boudin. (Book VII, 1127) On August 24, 
Ehrlichman forwarded the article to Colson, who gave it to a jour- 
nalist. (Book VII, 1128^0, 1144) 

B. Use of the CIA for Technical Assistance and Psychological Profile 

The President authorized enlisting the aid of the CIA in the activi- 
ties of the Plumbers. Ehrlic liman’s only contacts with the CIA were at 
the direction of the President. (Book VII, 734—38) This conclusion is 
based on Ehrlichman s sworn testimony and he also testified that he 
called CIA Deputy Director Cushman on July 7, 1971, and on behalf 
of the President requested assistance for Hunt. 

Hunt began receiving assistance from the CIA on July 22, 1971 
when he met with Cushman and requested alias identification and dis- 
guise materials. Although this assistance was beyond the statutory 
jurisdiction of the CIA, 7 the materials were provided to Hunt the 
next day. (Book VII, 844-58) 

The CIA disguise and false identification were used by Hunt in (1) 
an interview of Clifton DeMotte who allegedly had information 
derogatory to Senator Kennedy and members of the Kennedy political 
group (Book VII, 853), (2) the reconnaissance and subsequent 
break-in of Dr. Fielding’s office in Los Angeles, (3) the interview of 
ITT lobbyist Dita Beard in Denver in March 1972, and (4) the 
break-in of the Democratic National Committee Headquarters in June 

1972. (House Armed Services Committee Report No. 93-25, October 29, 

1973, 3) At Hunt’s request the CIA also provided him with a tape 
recorder in a typewriter carrying case; (Book VII, 1226-27) and 
before Hunt and Liddy went to Los Angeles for their reconnaissance 
of the office of Ellsberg’s psychiatrist the CIA provided Liddy with 
false identification, disguise material and a camera concealed in a 
tobacco pouch. Upon their return from Los Angeles, the CIA devel- 
oped the film of the photographs of the psychiatrist’s office. (Book 
VII, 1152-65) 

Hunt also requested a CIA secretary, credit cards, and an office 
in New York City with a backstopped phone. The CIA refused these 
requests, and Cushman called Ehrlichman on August 27, 1971, and 
obtained Ehrlichman’s permission not to fill Hunt’s latest requests. 
(Book VII, 1226-27, 1231-38) An internal CIA memorandum stated 
that Hunt’s requests drew the Agency further into the sensitive area 
of domestic operations against Americans. (Book VII, 1230) 

In addition to this type of assistance, Young also requested a psy- 
chological profile of Ellsberg from the CTA. (Book VII, 898) Hunt, 


7 The CIA’s jurisdiction is limited by a provision in the National Security Act of 1947, as 
amended, which states: “[T]he apency shall have no police, subpoena, law-enforcement 
powers, or internal-security functions. . . 50 U.S.C. § 403(d) (3). 



163 


in a memorandum to Colson dated July 28, 1971, entitled Neutraliza- 
tion of Ellsberg , recommended the development of a psychological 
profile as part of a file of derogatory information. The memorandum 
stated that the file would be a basic tool essential in determining how 
to destroy Ellsberg’s public image and credibility. (Book VII, 914) 
Hunt told the CIA psychiatrist that the profile would be useful in 
trying Ellsberg in the press. (Book VII, 1083-84, 1087) 

The request for a psychological profile was made directly to Helms, 
the CIA Director. Young stressed to Helms the high level of White 
House interest in the project. (Book VII, 898-903) On August 12 he 
told the psychiatrist who directed its preparation that the President 
was aware of the study. (Book VII, 1083, 1090-93) The. profile, the 
only one known to have ever been prepared by the CIA on an Ameri- 
can civilian (Book VII, 899), had been delivered to the White House 
the previous day. (Book VII, 1008-09, 1011-19) 

The Plumbers were not satisfied with the profile and on August 12, 
1971, requested the CIA to prepare an expanded psychological profile 
on Ellsberg. CIA staff members believed that the profile was beyond 
the Agency’s jurisdiction and had suspicions as to the use that might 
be made of it. (Book VII, 1408-11) The staff psychiatrist who directed 
the effort concluded that the purpose was to defame or manipulate 
Ellsberg. (Book VII, 1400-07) 

Despite the reluctance of the CIA, a second profile was prepared 
by the Agency in early November, 1971. Helms directed that it be deliv- 
ered to the White House. He sent a separate letter to David Young 
expressing the CIA’s pleasure in being of assistance but impressing 
upon Young the importance of concealing the CIA’s involvement. 
(Book VII, 1412-20) 


C . The Fielding Break-in 

The July 28, 1971 memorandum from Hunt to Colson entitled 
Neutralization of Ellsberg recommended obtaining Ellsberg’s psychi- 
atric records from his former psychiatrist for use in destroying Ells- 
berg’s image and credibility. (Book VII, 914) The Plumbers had been 
informed by the FBI that on July 20 and 26, 1971, the psychiatrist, 
Dr. Lewis Fielding, had refused to be interviewed. (Book VII, 975, 
983, 987-90) On or about August 5, Krogli and Young complained to 
Elirlichman that the FBI would not cooperate fully in the Ellsberg 
investigation. (Book VII, 983, 1000) Krogh recommended that Hunt 
and Liddy be sent to California to complete the Ellsberg investigation. 
(Book VII, 983-84) Elirlichman has stated that between July 26 and 
August 5, 1971, he discussed with the President his conversations with 
Krogh, and the President told Elirlichman that Krogh should do what- 
ever he considered necessary. Elirlichman passed this instruction on 
to Krogh. (Book VII, 1000-01) Elirlichman has also testified that 
the President approved the recommendation that the unit become 
operational and approved a trip by Hunt and Liddy to California to 
get “some facts which Krog felt he badly needed.” (Book VII, 993, 
997-98, 1001, 1166) 

In April, 1973, the President reaffirmed the fact that he had author- 
ized operations against Dr. Fielding. In a telephone eoirversation on 



164 


April 18, 1973, Henry Petersen advised the President that the Justice 
Department had learned of the Fielding break-in. ( Book VII, 1956-57 ) 
Ehrlichman has stated in an affidavit that he was present during the 
call and that immediately after the President hung up he told Ehrlich- 
man that the break-in was in furtherance of national security and fully 
■justified under the circumstances. (Book VII, 810) Colson testified 
before the Committee that on April 19, 1973, Ehrlichman told him 
about the Petersen call. Ehrlichman told Colson that the President had 
informed Petersen that the President approved the Ellsberg operation 
in advance after consultation with Hoover and that Petersen was to 
stay out of it. (Colson testimony, 3 HJC 237) 

On August 11, 1971, Krogli and Young submitted a memorandum to 
Ehrlichman informing him of the delivery of the CIA psychological 
profile and of their dissatisfaction with it. (Book VII, 1023) The 
memorandum also said : 

In this connection we would recommend that a covert operation be undertaken 
to examine all the flies still held by Ellsberg's psychoanalyst covering the two- 
year period in which he was undergoing analysis. 

Ehrlichman initialed the line “approve” and wrote, “if done under 
your assurance that it is not traceable.” (Book VII, 1024) 

Young sent .a memorandum to Ehrlichman on August 26, 1971, en- 
titled, Status of Information Which Can Be Fed Into Congressional 
Investigation of Pentagon Payers Affair . (Book VII, 1215) The mem- 
orandum asked how quickly the Administration wanted to bring about 
a change in Ellsberg’s image and contained the following footnote: 

[I]t is important to point out that with the recent article on Ellsberg’s lawyer, 
Boudin, we have already started on a negative press image for Ellsberg. If the 
present Hunt/Liddy Project #1 is successful, it will be absolutely essential to 
have an overall game plan developed for its use in conjunction with the Con- 
gressional investigation. In this connection, I believe that the point of Buchanan’s 
memorandum on attacking Ellsberg through the press should be borne in mind ; 
namely that the situation being attacked is too big to be undermined by planted 
leaks among the friendly press. 

If there is to be any damaging of Ellsberg’s image and those associated with 
him, it will therefore be necessary to fold in the press planting with the Con- 
gressional investigation. I mentioned these points to Colson earlier this week, and 
his reply was that we should just leave it to him and he would take care of get- 
ting the information out. I believe, however, that in order to orchestrate this 
whole operation we have to be aware of precisely what Colson wants to do. 
(Book VII, 1219) 

Hunt and Liddy, equipped with alias identification, disguise ma- 
terials and a camera provided by the CIA, made a reconnaissance trip 
to California on August 25, 1971 to inspect Dr. Fielding’s office. The 
CIA later developed the photographs taken there. (Book VII, 1152, 
1157-60, 1165-67) Krogli and Young have testified that on or about 
August 30, 1971, after Hunt and Liddy reported that their recon- 
naissance satisfied them that an entry operation was feasible, they 
called Ehrlichman and told him that they believed an operation that 
could not be traceable to the White House was possible and that 
Ehrlichman gave his approval. (Book VII, 1240—44) 

The break-in of Dr. Fielding’s office was executed oil September 3, 
1971, by a team under the immediate and close direction of Hunt and 
Liddy. (Book VII, 1276, 1281-92) There is a conflict between the 
testimony of Dr. Fielding and the burglars as to whether the burglary 



165 


yielded any information about Ellsberg. (Rook VII, 1276, 1289-91, 
1293-97) 

The break-in violated Dr. Fielding's right under the Fourth Amend- 
ment of the Constitution to be secure in his person, house, papers and 
effects, against unreasonable searches and seizures. Ivrogli pleaded 
guilty to conspiracy to violate the civil rights of Dr. Fielding (18 
U.S.C. § 241) ; 8 Ehrlichman, Liddy and two of the members of the 
team that performed the break-in were convicted on July 12, 1974 of 
conspiring to violate Dr. Fielding’s civil rights. 88 The President in his 
public statements has stated that the break-in was illegal, unauthor- 
ized and completely deplorable. (“Presidential Statements,” 8/22/73, 
47) 

Hunt and Liddy reported the results of the operation against Dr. 
Fielding’s office to Ivrogh and Young on the afternoon of September 
7, 1971. (Book VII, 1302-06) Ehrlichman’s logs show that at 10:45 
on the morning of September 8, 197L Ivrogli and Young met with 
Ehrlichman. (Book VII, 1336) Ehrlichman has testified that he 
discussed the break-in with Ivrogh and Young. (Book VII, 1334) At 
3 :26 on the afternoon of September 8, Ehrlichman met with the Presi- 
dent. (Book VII, 1335) Ehrlichman informed Colson on September 
9 that Hunt and Liddy had attempted to get Ellsberg’s psychiatric 
records but failed. (Colson testimony, 3 HJC 236; (book Vil, 1335) 
On September 10, 1971, Ehrlichman met with the President from 3:08 
fo 3 :51 p.m., 9 and then met with Krogh and Young at 4 :00 p.m. The 
President called Colson immediately following his meeting with 
Ehrlichman on September 10. (Book VII, 1335, 1337) 

D . Financing 

Part of the financing for the Fielding break-in was arranged by 
Colson, who borrowed $5,000 in cash from Joseph Baroody, a Wash- 
ington public relations man. Baroody brought the money to Krogh 
at the White House. (Book VII, 1266-67) Ivrogh, in turn, gave the 
money to Liddy on September 1, 1971, immediately before Liddy and 
Hunt left for Los Angeles. (Book VII, 1257-59) In order to repay 
Baroody, Colson called George Webster, a Washington attorney, and 
asked if there were any campaign committees available to receive a 
contribution. Webster advised Colson of the existence of a committee 
called “People United for Good Government.” Colson solicited the 
Associated Milk Producers, Inc. to make a $5,000 contribution to that 
committee. Colson instructed Webster to cash the check and hold the 
money for Baroody, who later picked it up at Webster’s office. (Book 
VII, 1269-74) 

E. Other Activities 

The Plumbers were instructed to investigate the source of the 
July 23, 1971 disclosure in a newspaper article of the American nego- 
tiating position in the SALT talks. In a meeting with Ehrlichman 


8 United States v. Krogh, Information and Docket (Book VII, 1608-13). 

8a Transcript of Proceedings, United States v. Ehrlichman, July 12, 1974. 

9 On June 24. 1974, the House Judiciary Committee subpoenaed the tape recordings and 
other materials related to these conversations between the President and Ehrlichman. The 
President refused to.-produce the recordings or other materials. 



166 


and Krogli on July 24, 1971, the President instructed Krogh to conduct 
polygraph examinations of Defense Department and State Depart- 
ment personnel. (Book VII, 864-66, 868-70) The tape recording of that 
conversation suggests that the President believed that the disclosure 
affected national security because it interfered with current negotia- 
tions. (Book VII, 885) Krogh contacted the CIA and obtained per- 
sonnel and equipment to conduct the polygraph examinations. (Book 
VII, 895) In an interview, Donald Stewart, a Defense Department 
investigator, stated that the FBI became involved in the investigation 
and that the source of the leak was not discovered. 10 William Beecher, 
the journalist who wrote the article, was subsequently appointed Dep- 
uty Assistant Secretary of Defense for Public Affairs. (Book VII, 
891-92) 

On December 13 and 14, 1971, articles by Jack Anderson appeared 
in The W ashing ton Post disclosing the American position in the India- 
Pakistan War. 11 (Book VII, 1430—31) Krogh refused to authorize 
wiretaps in connection with this investigation and for that reason was 
removed from the unit. (Book VII, 1432) Young worked alone on 
this assignment. The Defense Department conducted the investigation 
and copies of investigative reports were sent to Young at the White 
House. (Book VII, 1422-29) The FBI placed wiretaps on persons 
suspected of the disclosure. (Book VII, 1438-40) During the course of 
the investigation it was discovered that Yeoman Charles Radford, one 
of the persons suspected, had been furnishing documents from Kissin- 
ger and the National Security Council to the Joint Chiefs of Staff. 
(Book VII, 1423-24, 1426) 

IV 

Concealment of tiie Plumbers' Activities 

Following the Watergate break-in the President initiated a policy 
of preventing federal investigations from uncovering the Plumbers 1 
activities. The President said on May 22, 1973, that his concern that 
activities of the Plumbers might be exposed was one reason for order- 
ing Haldeman and Ehrlichman to insure that the Watergate investi- 
gations did not lead to their disclosure. (“Presidential Statements,” 
5/22/73, 24) 12 

On March 17, 1973, John Dean reported to the President that Hunt 
and Liddy had broken into the office of Ellsberg s former psychia- 
trist. 13 (WHT 157-60) Neither Dean nor the President said that the 
break-in was related to national security. 


10 In 'a memorandum to Ehrlichman dated August 13, 1971, Krogh and Young reported 

that the investigation of the SALT disclosure had unsatisfactory results, (President s 
Submission, Book IV, 134) „ j t 

11 Ehrlichman’s notes of meetings with the President on December 23, 1971 and Janu- 

ary 5, 1972 contain references to this incident (Ehrlichman’s notes pp. 125-30). At one 
point the notes state, “We’ll prosecute Anderson, et al after the election.” (Ehrlichman s 
notes, Item S, p. 129) . • ... TT ^ 

13 On August 5, 1974. the President made public transcripts of conversations with II. R. 
Haldeman on June 23, 1972. During the course of the meeting between the President and 
Haldeman at 10 :04 a.m. on June 23 the President said, 

“Of course, this Hunt, that will uncover a lot of things. You open that scab there s a 
hell of a lot of things and we just feel that it would be very detrimental to have this thing 
go any further. This involves these Cubans, Hunt, and a lot of hanky-panky that we have 
nothing to do with ourselves. Well, what the hell, did Mitchell know about this?” 

13 On April 11, 1974. the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcript of four pages. 



167 


On the morning of March 21, Dean and the President discussed 
Hunt’s blackmail threat. Dean told the President that Hunt threat- 
ened to bring Ehrlichman to his knees and to put Ehrlichman and 
Krogh in jail for the seamy things Hunt did at their direction, includ- 
ing the Fielding break-in. Dean reviewed for the President the soft 
points including the fact that Hunt and Liddv knew that the author- 
ization for the break-in came from the White House. The President 
said, “I don’t know what the hell we did that for.” Dean said, a I don’t 
either.” (HJCT 92) Dean advised the President that Ehrlichman was 
criminally liable for the conspiracy to burglarize the doctor’s office. 
(HJCT 104-05) Dean started to tell the President about something 
in the files that would reveal the break-in and the President interrupted 
and said, “Oh, T saw that. The picture.” 14 (HJCT 105) This was a ref- 
erence to the photograph of Liddy in front of Dr. Fielding’s office 
which the Justice Department had obtained from the CIA. Dean re- 
sponded, “Yeah, the picture. That, see, that’s not all that buried. . . .” 
(HJCT 105) 

Haldeman joined the meeting (HJCT 1081) and the conversation 
returned to a discussion of the Fielding break-in and how they could 
prevent its disclosure. A national security theory was developed : 

President. . . . You see, John is concerned, as you know. Bob, about, uh, 
Ehrlichman which, uh, worries me a great deal because it’s, a, uli, 15 it — and it, and 
this is why the Hunt problem is so serious, uh, because, uli, it had nothing to do 
with the campaign. 

Dean. Right, it, uh— 

President. Properly, it has to do with the Ellsberg thing. I don’t know what 
the hell, uh — 

Haldeman, But why — 

President. Yeah. Why — I don't know. 

Haldeman. What I was going to say is — 

President. What is the answer on that? How do you keep that out? I don’t 
know 7 , Well, we can’t keep it out if Hunt — if— You see the point is, it is irrelevant. 
Once it has gotten to this point — 

Dean. You might, you might put it on a national security ground, basis, which 
it really, it was. 

Haldeman. It absolutely was. 

Dean. And just say that, uh, 

President. Yeah. 

Dean, that this is not, you know, this w^as — 

President. Not paid with CIA fuuds. 

Dean. Uh — 

President. No, seriously. National security. We had to get information for 
national security grounds. 

Dean. Well, then the question is, why didn’t the CIA do it or why didn’t the 
FBI do it? 

President. Because they were— We had to do it, w r e had to do it on a con- 
fidential basis. 

Haldeman. Because we were checking them? 

President. Neither could be trusted. 

Haldeman. Well, I think 

President. That’s the w'ay I view it. 

Haldeman. That has never been proven. There was reason to question their 

President. Yeah. 

Haldeman. position. 


14 In the edited White House transcript, the President says, “Oil, I thought of it.” (W 7 HT 
2 OS) 

15 . . worries me a great deal - . reads “. . . worries him a great deal . . in 
the edited White House transcript. ( WHT 220) 



168 


President. You see really, with the Bundy thing and everything coming out, 
the whole thing was national security. 

Dean. I think we can probably get, get by on that. (HJCT 112) 

Dean told the President of Krogh’s perjury in denying that lie knew 
anything about Hunt and Licldy’s travels. Dean said that Krogh was 
willing to take responsibility for authorizing the break-in. (HJCT 
95) The President asked what would happen if they did not meet 
Hunt’s demands and Hunt “blew the whistle/' (HJCT 125) 

Dean. Krogh, Krogh could go down in smoke. Uh — 

President. Because Krogh, uh — Where could anybody — But on the other hand, 
Krogh just says he, uh, uh, Krogh says this is a national security matter. Is that 
what he says? Yeah, he said that. 

Dean. Yeah, but that won’t sell, ultimately, in a criminal situation. It may be 
mitigating on sentences but it won’t, uh, the main matter — 

Haldeman. Well, then that — 

President. That’s right. Try to look around the track. We have no choice on 
Hunt but to try to keep him — (HJCT 125) 

In a meeting that afternoon Ehrlichmaii said that if lie were ques- 
tioned about the Fielding break-in he would say that Hunt was con- 
ducting an investigation on Ellsberg. He added, “Now, I suppose that 
lets Ellsberg out, that ? s an illegal search and seizure that may be suffi- 
cient at least for a mistrial. . . .” The President asked if the case was 
close to completion and Elirlichman said, “Oh, it’ll go on a while yet.” 
Haldeman asked if Ellsberg would be entitled to a mistrial after a 
conviction and Elirlichman said, “Yeah, sure.” (HJCT 139) 1,1 

On March 27, 1973, the President and Ehrliehman discussed whether 
it would be necessary for Krogh to take responsibility for the Field- 
ing break-in. Ehrliehman said he did not believe it would be necessary 
because if it came to light he would “put the national security tent 
over this whole operation.” The President agreed with Elirlicliman’s 
recommendation to “just hard line it.” 17 (WI1T 334-37) 

In April, the President actively participated in an effort to conceal 
the break-in under a national security tent. In a conversation with 
Attorney General Kleinclienst on April 15, 1973, the President told 
Kleindienst that the “deep six thing” related to some of Hunt’s 
operations in the White House on national security matters and had 
nothing to do with Watergate. 18 ( WTI1 721-23) On April 16, Henry 
Petersen told the President that the Department of Justice had infor- 
mation that Hunt had received alias documentation and a camera 
from the CIA. The President told Petersen that such action was per- 
fectly proper because Hunt was conducting an investigation in the 
national security area for the White House. 19 (AYHT 883-84) 

In a meeting on April 17, 1973, the President told Haldeman and 
Ehrliehman that he had instructed Dean not to discuss with the 


10 The President later directed John Ehrliehman to contact Judge Matthew Byrne, the 
presiding judge in the Ellsberg trial. On April 5 and 7, 1973 Ehrliehman met with Judge 
Byrne and informed him that the President was considering appointing Judge Byrne to the 
directorship of the FBI. At the meeting on April 5, 1973 at San Clemente the President 
also met briefly with Judge Byrne. (Book VII, 1874-75, 1893, 1895) 

17 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this record- 
ing. The President submitted an edited transcript. 

18 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

19 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 



169 


United States attorney certain areas, including the Fielding break-in, 
because they Avere national security and privileged. The President said 
that Dean had agreed. He also said that it would be necessary to 
instruct Petersen that these were matters of national security and were 
subject to executive privilege and that Petersen should be instructed 
to pass the word down to the prosecutors. 20 (WHT 1028-30) 

On April 18, 1973, Henry Petersen called the President and advised 
him that the Justice Department had learned that Hunt and Liddy 
burglarized the office of Ellsberg’s psychiatrist. 21 The President told 
Petersen to stay out of it because it was national security and Peter- 
sen's mandate Avas Watergate. (Petersen testimony, 3 II JC 98; Book 
VII, 1956-66) The President issued this order although he had been 
told on March 21 that the Fielding break-in created criminal liability 
for Ehrlichman (HJCT 104—05) ; that national security Avould be 
mitigating upon the sentences but not a defense to the break-in (HJCT 
125) and that it Avas an unreasonable search and seizure that Avould 
result in a dismissal of the Ellsberg case. (HJCT 139) 

On April 25, 1973, Attorney General Kleindienst told the President 
that he knew of the Fielding break-in and recommended that the 
break-in be revealed to Judge Byrne, who was presiding at Ellsberg’s 
trial. Kleindienst described the President as being upset at that meet- 
ing, but agreeing that the information about the break-in should be 
transmitted to Judge Byrne. (Book VII, 1984-85) On April 26, 
memoranda regarding the break-in Avere filed in camera Avitli Judge 
Byrne. (Book VII, 1996) He later recompiled court and asked the 
government’s position as to turning the materials OAPr to the defend- 
ants. (Book VII, 1998-2004) The next morning Judge Byrne Avas in- 
formed that the Department of Justice did not want the contents of 
the in camera filing disclosed to the defense. Judge Byrne nevertheless 
ordered the information to be supplied to the defense and made a state- 
ment from the bench revealing the break-in and ordering an in\ r esti- 
gation. (Book VII, 2005-13) 

On the afternoon of April 27, 1973, the President and Ehrlichman 
discussed the fact that the news of the Fielding break-in Avas public. 
The notes state, “[President] to HP [Henry Petersen] from CD 
[Camp David] re this — -Review of what Avas said:” The remainder 
of the page Avas masked. (Ehrlichman notes, 159) Later that after- 
noon the President and Ehrlichman met and discussed the Fielding 
break-in. The notes of that meeting state, “Make an affidavit. Say 
they exceeded their autlifority], a critical nat’l security pro[ject]. 
Then resign.” ( Ehrlichman ’s notes, Item 5, 172) This is a reference to 
Egil Krogh Avho later filed an affidavit in the Ellsberg trial and re- 
signed. The notes further state, “In March learned things — Only 
Avhen A/G [Attorney General] confirmed it, I acted instantly,” (Ehr- 
lichinan notes, Item 7, 173) and “as soon as it came to my attn [atten- 


20 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President refused to produce this 
recording. The President submitted an edited transcript. 

21 On April 11, 1974, the House Judiciary Committee subpoenaed the tape recording and 
other materials related to this conversation. The President lias stated that the telephone 
conversation was not recorded, Ehrlichman’s notes of a meeting with the President on 
April 27, 1973 state, “tt [President] to HP [Henry Petersen] from CD Camp David re 
this — review of what was said — ” the remainder of the notes have been masked (Ehrlich- 
man notes, 159). 



170 


t-ion] is NB [important] point Relayed instantly — to Calif.”, and “pli 
[phone] call to IIP [Henry Petersen] April 18 — confused by a 
month.” (Ehrlichman notes, Items 9, 10, 173) The notes of that meet- 
ing also state, “By all means get it to Prosec [utor] or Dean will hold it 
over your head.” (Ehrlichman notes, Item 7, 173) The final reference 
in the notes reads, “Did I know about it sooner? (no(d) by E-no 
sound) If so, it made no impression, ets.” (Ehrlichman notes, Item 13, 

m) 

The President met with Henry Petersen on the evening of April 27, 
1973. (Book IV, 1633) Petersen told the President of Dean’s threat 
to tie in the President, not in Watergate but in other things. (WHT 
1265) 

HP That was one of the reasons that was so important to disclose that 
because they could have hung that over our heads, you see and — 

P You remember my call from Camp David. I said, “Don’t go into the national 
security stuff.” I didn't mean — 

HP Oh, I understand. 

P ’cause I remember I think we discussed that silly damned thing. I had 
heard about it, just heard about. You told me that. That’s it, you told me. (WHT 
1266-67) 

Ehrlichman met with Young on April 30, 1973. According to 
Young’s testimony, Ehrlichman told him not to address the question 
of whether Ehrlichman had discussed the Fielding break-in with the 
President. (Book VII, 2029, 2031) On May 2, 1973, Ehrlichman had 
at least three telephone conversations with Krogh which Ehrlichman 
recorded. The first recorded conversation included the following dis- 
cussion : 

E Tlie feeling is that you ought to be relieved of any executive privilege 
obligation in order to make an affidavit and that you should try and make clear 
to [Acting Attorney General] Elliot [Richardson] today by phone or in person 
that it was not known to our principal down here until he was informed by the 
Justice Department. Now I don’t know how you can say. You can say I told you 
that, I guess. But that’s his story. 

K to our principal until he was informed (as in writing it down while re- 
peating) 

E Right 

K And that would have been? Say this last weekend? 

E No, it would have been either late March or April, but Kleindienst would 
know. Because he got it from Kleindienst and Petersen apparently. Now, he 
would like a call back through me after you have successfully reached Elliot. 
And he says that he’s got to ask for your resignation. At the same time he thinks 
that probably you’re going to have an easier time of it if perhaps over the week- 
end or something of that kind it could be affected (Ehrlichman notes, 161) 

In the third recorded telephone conversation, Krogh and Ehrlichman 
said, 

K You know, John lie’s [the President’s] on thin ice himself. 

E On this national security thing ? 

K Yeah. He’s on darn thin ice and one of the things that is very clear — yester- 
day — after listening to him which I thought was an unpersuasive speech, and is 
that if .it comes out that he was told about this, about the same time lie was told 
about everything else assuming that he did not know long in advance and I 
think he did but that’s something else again. And he has decided not to investi- 
gate it vigorously, he’s in a helluva spot. (Ehrlichman notes, 168) 

On Mav 11, 1973. Judge Bvrne dismissed the criminal charges 
against Ellsbere: and his co-defendant because of governmental mis- 
conduct, including the Fielding break-in. (Book VII, 2076-81) 



ARTICLE II, PARAGRAPH (4) 

(4) He Has Failed To Take Care That the Laws Were Faith- 
fully Executed by Failing To Act When He Knew or Had Rea- 
son To Know That His Close Subordinates Endeavored To Impede 
and Frustrate Lawful Inquiries By Duly Constituted Execu- 
tive, Judicial, and Legislative Entities Concerning the Unlaw- 
ful Entry Into the Headquarters of the Democratic National 
Committee, and the Cover-up Thereof, and Concerning Other 
Unlawful Activities Including Those Relating to the Con- 
firmation of Richard Kleindienst as Attorney General of the 
United States, the Electronic Surveillance of Private Citizens, 
the Break-in Into the Offices of Dr. Lewis Fielding, and the 
Campaign Financing Practices of the Committee To Re-elect 
the President 

The President’s duty to take care that the laws be faithfully ex- 
ecuted imposes an affirmative obligation upon him to take reasonable 
steps to insure that his close subordinates, who serve at his pleasure 
and rely on his authority in the conduct of their positions, do not in- 
terfere with the proper functioning of government. This obligation 
must be reasonably construed, especially in the context of a presiden- 
tial impeachment. The President cannot personally attend to the faith- 
ful enforcement of each provision of the Federal criminal code against 
every violator, nor can be supervise the activities of even his closest 
subordinates in every particular. 

The premise of Paragraph (4) is that the President, when he has 
actual knowledge or reason to know of activities by his close sub- 
ordinates, conducted for his benefit and on his behalf, to obstruct in- 
vestigations into wrongful and criminal conduct within his adminis- 
tration, is constitutionally obligated to take all necessary steps to stop 
these activities. In this connection, Representative McClory stated, 
“There is a clear violation of the President’s responsibility when he 
permits multiple acts of wrongdoing by large numbers of those who 
surround him in possession of [great] responsibility and influence in 
the White House.” (HJC Debates, July 29, 1974, TR. 816) 

Richard M. Nixon has recognized this presidential responsibility. 
On March 21, 1973, John Dean told the President that he would be 
hurt the most by disclosures of what his subordinates had been doing 
with respect to Watergate. The President agreed: “First, because I 
am expected to know this, and I am supposed to, supposed to check 
these things.” (HJCT 101) The Committee finds clear and convincing 
evidence that Richard M. Nixon failed to fulfill this responsibility and 
that he failed to exercise his authority when he should have done so in 

( 171 ) 



172 


order to prevent his close subordinates from interfering with investi- 
gations into criminal or improper conduct carried on in his behalf. 1 

I 

Electronic Surveillance and the Fielding Break-in — 
Obstruction of the Ellsberg Trial 

The Committee found clear and convincing evidence that the Presi- 
dent failed to act, contrary to his constitutional duty to take care that 
the laws be faithfully executed, with respect to activities by his close 
subordinates, for his benefit and on his behalf, which interfered w T ith 
the Ellsberg trial. Among the activities of his subordinates (previously 
reviewed in connection with Paragraphs (2) and (3) of this Article) 
are the following : 

1. Ehrlichman’s concealment of the wiretap files and logs, which 
interfered with the Ellsberg trial. 

2. Patrick Gray’s misleading testimony before the Senate Judi- 
ciary Committee in its hearings on his nomination to be Director of 
the FBI, suggestion that there had been no FBI wiretaps of newsmen 
and White House personnel. 

3. Concealment of the Fielding break-in, which interfered with 
the Ellsberg trial. The President was told of the break-in on March 
17, 1973 by Dean and on March 21 by Ehrlichman, but he did not act 
on these disclosures. On April 18 he directed Petersen to stay away 
from the break-in on the pretext that it was a national security matter. 

II 

Obstruction of Watergate Inquiries 

The Watergate break-in and cover-up involved the President’s 
closest subordinates. It is clear that both the break-in and the cover-up 
were carried out for the President’s benefit. On numerous occasions 
the President was told of their unlawful attempts and actions to im- 
pede and frustrate investigations aimed at uncovering the facts of the 
Watergate matter. The President repeatedly failed to remedy or pre- 
vent unlawful acts of obstruction by these subordinates. The instances 
are fully reviewed in connection with Article I. For example: 

1. The President’s failure to act to prevent obstruction of the 
investigation after Haldeman told him on June 30, 1972 that as of 
the moment there was no problem, but that there were risks for the 
future — informing the President of a policy of concealment and cover- 
up. 


1 Like Article I, Paragraph (4) focuses on interference with the due administration of 
justice. However. Paragraph (4) differs from Article I in itwo important respects: 

First, Article I charges that the President engaged in a course of conduct or plan to 
obstruct justice. By contrast, Paragraph (4) relates to obstruction of justice by the Presi- 
dent’s close subordinates for his benefit and a failure by the President to supervise these 
subordinates so as to stop their misconduct. , i , 

Second, Paragraph (4) reaches not only the Watergate cover-up, but also interference 
with lawful inquiries into other matters. Specifically, It reaches interference with lawful 
inqniries into the ITT settlement (the Kleindienst confirmation hearings), the Ellsberg 
trial (by concealing the wiretaps and by authorizing and then concealing the Fielding 
break-in), and lawful inquiries into illegal campaign financing practices of the Committee 
for the Re-election of the President. 



173 


2. The President’s failure to respond to the warning by Acting 
FBI Director Gray on July 6, 1972, that the President’s close subordi- 
nates were trying to mortally wound him. 

3. The President’s failure to act in response to Ehrlicliman’s raising 
the question on July 8, 1972, of executive clemency for those involved 
in Watergate, though Ehrlichman raised the issue two months before 
an indictment was returned and six months before trial. 

4. The President’s praise of John Dean on September 15, 1972, 
after Dean told him seven people had been indicted, including two 
former White House aides. The President told Dean that a lot of this 
stuff went on and that Dean had been very skillful, putting his fingers 
in the dikes every time leaks had sprung here and sprung there. 

5. The President’s failure to act on March 13, 1973, when Dean 
told him that Strachan had knowledge before June 17, 1972 of the 
electronic surveillance at the headquarters of the Democratic National 
Committee and that Strachan had stonewalled FBI investigations and 
would continue to do so in the future. 

6. The President’s failure to act on March 21, 1973, when Dean 
confessed his own involvement in obstructing the Watergate investiga- 
tion and told the President that Haldeman, Ehrlichman and Mitchell 
had also been involved in the obstruction of justice and that Porter 
and Magruder had committed perjury. 

7. The President’s failure to act when Haldeman and Ehrlichman 
told him that they had known of the payments to Watergate defend- 
ants in the summer of 1972 and had referred Dean to Kalmbach 
to arrange these payments. 

8. The President’s failure to disclose the information he had about 
the obstruction of justice by his subordinates when he met with 
Kleindienst and Petersen on April 15, 1973, and with Petersen during 
the following weeks. 

9. The President’s failure to reveal information about the unlawful 
obstruction of justice by his subordinates that he learned of, by his 
own admission, on and after March 21, 1973. 

10. The President’s endeavor to conceal the existence of the White 
House taping system and his refusal to comply with requests by the 
Special Prosecutor for access to relevant and material tapes and 
documents. 

11. The President’s failure to report to the authorities Haldeman’s 
false testimony about the March 21, 1973, conversation before the Sen- 
ate Select Committee on Presidential Campaign Activities. 


Ill 


Obstruction or Inquiries Into Campaign Financing Practices and 
Use of Campaign Funds 

The President learned in June and September, 1972, and in Febru- 
ary, March and April, 1973, that the Committee for the Be-Election of 
the President had engaged in unlawful campaign financing practices 
and his aides were endeavoring to obstruct lawful investigations into 
these practices and the use of campaign funds. As demonstrated by the 



174 


following examples, the President took no action to inform authorities 
of his subordinates’ conduct: 

1. The President failed to inform the authorities when Dean ex- 
plained to the President on March 13, 1973, the method used by Allen 
and Ogarrio to make illegal campaign contributions. 

2. The President failed to stop plans to interfere with the pro- 
posed hearings of the House Banking and Currency Committee (the 
Patman Committee) on campaign financing practices of the Com- 
mittee to Re-elect the President, which Dean discussed with the 
President on September 15, 1972. 

3. The President failed to report Herbert Kalmbach’s use of 
$75,000 in campaign funds received from Stans and Haldeman’s use of 
$350,000 in surplus cash campaign contributions to make payments or 
have payments made to Watergate defendants. 

4. The campaign activities of Donald Segretti were the subject 
of specific inquiry by the Watergate Grand Jury and FBI in August, 

1972, and again by the Watergate Grand Jury in April, 1973. On 
February 28, March 2, 13 and 14, 1973, the President discussed with 
Dean the extent of White House involvement with Segretti, who had 
been recruited by Chapin and Strachan to disrupt campaigns of 
Democratic presidential candidates, had been paid $45,000 for salary 
and expenses by Kalmbach pursuant to Haldeman’s authorization, and 
had committed repeated violations of federal campaign laws in ful- 
filling his assignment. On March 21, 1973, Dean warned the President 
that Chapin could be charged with a felony for violating the civil 
rights statute in connection with Segretti’s activities. On April 14, 

1973, the President, Haldeman and Ehrliehman discussed Haldeman’s 
involvement with Segretti, the White House having been informed 
oy Chapin that Haldeman’s name had been mentioned in connection 
with the hiring of Segretti during Chapin’s April 11 appearance be- 
fore the Grand Jury. 

IV 

Kleindienst Confirmation Hearings 


During the hearings before the Senate Committee on the Judiciary 
on Richard Kleindienst’s nomination to be Attorney General in 1972, 
both Kleindienst and former Attorney General John Mitchell gave 
false testimony regarding the President’s involvement, in the ITT 
antitrust cases. Clearly, Kleindienst and Mitchell were protecting the 
President. The President followed Kleindienst’s confirmation hearings 
closely, but took no steps to correct the false testimony and continued 
to endorse Kleindienst’s appointment. Because the President’s con- 
duct in the Kleindienst matter has not previously been discussed in this 
Report, the facts are summarized here. 

On February 15, 1972, the President nominated Deputy Attorney 
General Richard Kleindienst to succeed John Mitchell as Attorney 
General of the United States. Beginning on February 29, 1972, columns 
by Jack An demon were published which alleged that a pledge by the 
International Telephone and Telegraph Corporation of financial sup- 
port, for the 1972 Republican National Convention was connected with 
the settlement by the Department of Justice of three antitrust suits 



175 


against ITT, and that Mitchell and Kleindienst were involved. (Book 
V, 634-36, 640) Kleindienst requested that his confirmation hearings 
before the Senate Judiciary Committee, which had approved his 
nomination, be resumed to investigate the charges. On March 2, 1972, 
the Committee’s hearings were reconvened. (Book V, 678-79) 

During the course of the resumed Kleindienst confirmation hearings 
both Mitchell and Kleindienst repeatedly gave false testimony with 
respect to the role of the President in the ITT cases. On March 2, 1972, 
and again on the following day, Kleindienst testified that he had not 
received directions from the White House about the handling of the 
ITT cases. (Book V, 680, 732) In fact, on April 19, 1971, the President 
had ordered Kleindienst to drop an appeal in the ITT-Grinnell case. 2 
(Book V, 312, 315-16) On March 3, 1972, when asked why an exten- 
sion of time to appeal the. ITT-Grinnell case was obtained, Kleindienst 
testified, “I do not recollect why that extension was asked.” (Book V. 
734) In fact, the extension had been obtained because of the President’s 
order. Four days later, on March 7, 1972, Kleindienst read a prepared 
statement describing in detail circumstances surrounding the request 
for an extension. He did not mention the President’s telephone call 
ordering that the appeal be dropped. (Book V, 753-54) Again on 
March 8, 1972, Kleindienst denied having received directions from the 
White House about the handling of the ITT cases. (Book V, 765) 

On March 14, 1972, John Mitchell appeared before the Senate Judi- 
ciary Committee. (Book V, 772) Mitchell twice testified that there had 
been no communication between the President and him with respect 
to the ITT antitrust litigation or any other antitrust litigation. (Book 
V, 772-74) In fact, Mitchell had met with the President on April 21, 
1971, and persuaded the President to rescind his order not to appeal 
the ITT-Grinnell case. (Book V, 372-76) 

The President took a direct interest in the Kleindienst confirma- 
tion hearings. In early March, 1972, he established a White House task 
force to monitor the hearings. Colson kept the President informed 
on the work of the task force. (Colson testimony, HJC 381-82, 400; 
Book V, 765) On the evening of March 14, the day Mitchell testified 
falsely that he and the President had not communicated regarding 
the ITT litigation, the President had a telephone conversation with 
Mitchell. (Book V, 775) 

On March 24, 1972, the President held his only press conference 
during the period of the resumed Kleindienst confirmation hearings. 
He said : 

... as far as the [Senate Judiciary Committee] hearings are concerned, 
there is nothing that lias happened in the hearings to date that has in one way 
shaken my confidence in Mr. Kleindienst as an able, honest man, fully qualified 
to be Attorney General of the United States. (Book V, 801; 8 Presidential 
Documents 674) 

During late. March, 1972, the President was urged to withdraw the 
Kleindienst nomination by Colson and Clark MacGregor. The Presi- 
dent on March 27, 1972, discussed with Colson, and on March 28, 1972, 


2 During the April 19 conversation the President brusquely ordered that the appeal be 
dropped and demanded that Antitrust Division Chief Richard McLaren be dismissed if 
this was not done. (Book V, 315-161 Colson has testified that in March. 1972. Haldeman, 
who did not witness the April 19, 1971 conversation, assured the President that he spoke 
to Kleindienst about policy and not about the ITT cases. (Colson testimony, 3 HJC 383) 


37-777 0 - 74-12 



176 


discussed with Colson, Haldeman and MacGregor, whether the Ivlein- 
dienst nomination should be withdrawn. On March 29, 1972, Halde- 
man told Colson and MacGregor that the President was going to meet 
with Kleindienst to determine whether his nomination should be 
withdrawn. (Colson testimony, 3 HJC 384—85) 

On the morning of March 30, 1972, Haldeman told White House 
aides Colson and MacGregor that the President had met with Klein- 
dienst and talked with Mitchell by telephone the day before, and had 
decided not to withdraw Kleindienst’s nomination. (Colson testi- 
mony, 3 HJC 392-95, 397 ; Book V, 805-09) Colson wrote a memoran- 
dum to Haldeman stating his opposition to continuing the Kleindienst 
nomination. (Book V, 803-05) His reasons included the possibility 
that documents Colson had reviewed would be revealed and reflect that 
the President had discussions with Mitchell about an ITT case in 1971, 
thereby contradicting statements made by Mitchell under oath during 
the Kleindienst hearings. The President said he would read the memo- 
randum, and Colson testified that assuming normal White House prac- 
tice was followed, the President received the memorandum. (Colson 
testimony, 3 HJC 397) 

On April 27, 1972, Kleindienst. again testified that no one in the 
White House had called him and instructed him on the handling of 
the ITT cases. (Book V, 852) On June 8, 1972, Kleindienst’s nomina- 
tion was confirmed. (Book V, 903) At his swearing-in ceremonies 
on June 12, 1972, the President expressed his great confidence in 
Kleindienst’s honesty, integrity and devotion to law. lie said that the 
Senate confirmation proceedings had in no way reduced that con- 
fidence. (Book V, 904) 

At no time did the President act to correct the false testimony of 
his Attorney General designate. Instead, he permitted Kleindienst s 
nomination to be confirmed and appointed him Attorney General. 
The Committee finds that the President knew or had reason to know 
that Kleindienst testified falsely before the Senate Judiciary Commit- 
tee. This conclusion is supported by the facts that : (1) Colson’s March 
30, 1972, memorandum to Haldeman reported that certain documents 
contradicted Mitchell’s sworn testimony with respect to, among other 
things, the President’s involvement in the ITT cases; (2) the Klein- 
dienst confirmation hearings received extensive press coverage; (3) a 
White House task force monitored the hearings and the President was 
kept informed of its work; (4) the President and senior members of 
his staff maintained a keen interest in the progress of the hearings ; 
and (5) the President has failed to comply with the Committee’s sub- 
poena for tape recordings and other material related to Presidential 
conversations during the hearings. 



ARTICLE II, PARAGRAPH (5) 

(5) In Disregard of the Rule of Law, LIe Knowingly Misused tiie 
Executive Power by Interfering With Agencies of tiie Execu- 
tive Branch, Including the Federal Bureau of Investigation, 
the Criminal Division, and the Office of Watergate Special 
Prosecution Force, of the Department of Justice, and the Cen- 
tral Intelligence Agency, in Violation of His Duty To Take 
Care That the Laws Be Faithfully Executed 

This Paragraph is based upon a fundamental constitutional princi- 
ple governing* the President’s conduct in exercising his control over the 
agencies and institutions of the executive branch and discharging his 
responsibilities with respect to them. The principle is that he is ac- 
countable, through impeachment, for violating his constitutional du- 
ties by knowingly and repeatedly abusing the executive power, sys- 
tematically and over a considerable period of time, in a manner that 
demonstrates a disregard of the rule of law, to direct agencies to en- 
gage in activities that are contrary to law or in derogation of their 
purposes and functions. In Paragraph (5) the principle is applied to 
the President’s interference with and abuse of the Federal Bureau of 
Investigation, the Criminal Division of the Department of Justice, 
the Watergate Special Prosecution Force, the Central Intelligence 
Agency, and their officers and agents. The faithful administration of 
each of these agencies of government is vital to the protection of the 
rights of citizens and to the maintenance of their confidence in the 
integrity of their government. The Committee finds clear and convinc- 
ing* evidence that Richard M. Nixon knowingly disregarded laws and 
regulations and constitutional tenets that govern the administration 
of these agencies, and sought to have them serve his personal, political 
objectives. 

In so doing, lie violated his constitutional duty “to take Care that 
the Laws be faithfully executed,” and his constitutional oath that he 
would faithfully execute the office of President and, to the best of his 
ability, preserve, protect and defend the Constitution. 

Paragraph (5) addresses the President’s abuse of the FBI and 
the CIA to aid in violations of the constitutional rights of citizens, 
conduct also covered in Paragraphs (2) and (3) of this Article. In 
addition. Paragraph (5) covers other abuse of these executive agen- 
cies contrary to law, specifically including the improper use of the 
executive power by Richard M. Nixon to impede and obstruct lawful 
investigations into criminal conduct involving close subordinates and 
agents within his administration. 

Some of the evidence of misuse of executive agencies to obstruct 
investigations is also applicable to and supportive of a portion of 
Article I, which is addressed to the President’s direction of and par- 
ticipation in. a plan or course of conduct to interfere with lawful 

(177) 



178 


inquiries into the Watergate break-in and its aftermath. Although 
there are facts common to this Paragraph and parts of Article I, these 
facts are conceptually part of two dilferent patterns of conduct— one 
of interference with lawful inquiries into the Watergate matter, the 
other of knowing abuse of executive agencies in disregard of the rule 
of law for personal political advantage. Unlike Article I, Paragraph 
(5) does not require proof that the interference was part of a plan or 
course of conduct conceived by the President and executed by his sub- 
ordinates at his direction; it is sufficient for Paragraph (5) that the 
President acted knowingly. Moreover, Paragraph (5) focuses on the 
abuse by Richard M. Nixon of the powers of the Presidency to inter- 
fere with executive agencies. By contrast, Article I, which focuses 
upon the President’s interference with lawful inquiries into the Water- 
gate matter, encompasses a variety of means, not simply those involv- 
ing the use of the President’s power over executive agencies. 

Among the important incidents supportive of Paragraph (5) (pre- 
viously discussed in other portions of this report) are the following: 

1. The President interfered with both the CIA and the FBI by 
directing his principal aides, Haldeman and Ehrlichman (and, 
through them, Dean), to have the CIA delay or prevent FBI investi- 
gation of the source of the funds recovered from those apprehended 
at the Watergate break-in, in order to prevent the FBI from discover- 
ing that those funds were political contributions obtained fi*om the 
Committee to Re-elect the President and that CRP personnel were in- 
volved in devising and executing the break-in in furtherance of the 
President’s re-election campaign, as well as from discovering other 
unlawful covert activities. 

2. The President improperly used his office to interfere with the 
Department of Justice investigation of the Watergate break-in and 
cover-up by obtaining information from Assistant Attorney General 
Henry Petersen, which the President passed on to targets of the in- 
vestigation, and by making false or misleading representations to 
Petersen, including his failure to disclose to Petersen his. knowledge 
of criminal conduct as part of the cover-up. 

3. The President interfered with the Office of the Watergate 
Special Prosecution Force by withholding and concealing evidence, 
and by discharging Special Prosecutor Cox and attempting to abolish 
the office of Special Prosecutor for the purpose of impeding and cir- 
cumscribing its investigation and functions. 

4. The President interfered with the proper functioning of the 
CIA by authorizing his subordinates to request CIA assistance for 
Howard Hunt and for the activities of the secret investigative unit 
in the office of the President (the Plumbers) directed at discrediting 
a defendant in a criminal trial and interfering with his right to a fair 
trial. 

5. The President interfered with the proper functioning of the 
FBI by directing it to undertake unlawful surveillance of newsmen 
and White House personnel for his oavii political purposes, and by 
ordering that normal indices of the records of this surveillance not 
be maintained and later that the records be concealed at the White 
House. As a result of this concealment, the due and proper adminis- 
tration of justice was impeded and the criminal prosecution of Ells- 



179 


berg, who had been on trial for many months, was dismissed on the 
grounds of governmental misconduct. 

6. The President interfered with the Department of Justice when 
he instructed Petersen not to investigate the Fielding break-in on the 
pretext that it involved national security, when he knew the Fielding 
break-in was not a national security matter. 



CONCLUSION 


In recommending Article II to the House, the Committee finds clear 
and convincing evidence that Richard M. Nixon, contrary to his trust 
as President and unmindful of the solemn duties of his high office, has 
repeatedly used his power as President to violate the Constitution and 
the law of the land. 

In so doing, he has failed in the obligation that every citizen has to 
live under the law. But he has done more, for it is the duty of the 
President not merely to live by the law but to see that law faithfully 
applied. Richard JVL Nixon has repeatedly and willfully failed to 
perform that duty. He has failed to perform it by authorizing and 
directing actions that violated or disregarded the rights of citizens and 
that corrupted and attempted to corrupt the lawful functioning of 
executive agencies. He has failed to perform it by condoning and 
ratifying, rather than acting to stop, actions by his subordinates that 
interfered with lawful investigations and impeded the enforcement 
of the laws. 

Article II, section 3 of the Constitution requires that the President 
“shall take Care that the Laws be faithfully executed.’' Justice Felix 
Frankfurter described this provision as “the embracing function of 
the President”; 1 President Benjamin Harrison called it “the central 
idea of the office.” “[I]n a republic,” Harrison wrote, “the thing to be 
executed is the law, not the will of the ruler as in despotic govern- 
ments. The President cannot go beyond the law, and he cannot stop 
short of it.” 2 

The conduct of Richard M. Nixon has constituted a repeated and 
continuing abuse of the powers of the Presidency in disregard of 
the fundamental principle of the rule of law in our system of govern- 
ment. This abuse of the powers of the President was canned out by 
Richard M. Nixon, acting personally and through his subordinates, 
for his own political advantage, not for any legitimate governmental 
purpose and without due consideration for the national good. 

The rule of law needs no defense bv the Committee. Reverence for 
the laws, said Abraham Lincoln, should “become the political religion 
of the nation.” 3 Said Theodore Roosevelt, “No man is above the law 
and no man is below it; nor do we ask any man’s permission when we 
require him to obey it.” 4 

It is a basic principle of our government that “we submit ourselves 
to rulers only if [they are] under rules.” 5 “Decency, security, and lib- 


1 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (concurring 
opinion) . 

2 R Harrison, This Country of Ours 98-99 (1897). 

3 “Address Before the Younp Men’s Lyceum of Springfield. Illinois.” January 27, 1837, 
in 1 Complete Works of Abraham Lincoln 43 (J. Nicolay and J, Hay eds., 1894). 

4 “Third Annual Message to Congress.” December 7, 1903, in 9 Messages and Papers of 
the Presidents 6860 (J. Richardson ed. 1911). 

5 Youngstown Sheet and Tube Co. v. Sawyer , 343 U.S. 579, 646 (1952) (Jackson, J., 
concurring). 

( 180 ) 



181 


erty alike demand that government officials shall be subjected to the 
same rules of conduct that are commands to the citizen,” wrote Justice 
Louis Brandeis.® The Supreme Court has said : 

No man in this country is so high that he is above the law. No officer of the 
law may set that law at defiance with impunity. All the officers of the govern- 
ment, from the highest to the lowest, are creatures of the law, and are bound 
to obey it. 

It is the only supreme power in our system of government, and every man who 
by accepting office participates in its functions is only the more strongly bound 
to submit to that supremacy, and to observe the limitations upon the exercise of 
the authority which it gives . 7 

Our nation owes its strength, its stability, and its endurance to this 
principle. 

In asserting the supremacy of the rule of law among the principles 
of our government, the Committee is enunciating no new standard 
of Presidential conduct. The possibility that Presidents have violated 
this standard in the past does not diminish its current — and future 
— applicability. Repeated abuse of power by one who holds the highest 
public office requires prompt and decisive remedial action, for it is in 
the nature of abuses of power that if they go unchecked they will 
become overbearing, depriving the people and their representatives 
of the strength of will or the wherewithal to resist. 

Our Constitution provides for a responsible Chief Executive, ac- 
countable for his acts. The framers hoped, in the words of Elbridge 
Gerry, that “the maxim would never be adopted here that the chief 
Magistrate could do no wrong.” 8 They provided for a single executive 
because, as Alexander Hamilton wrote, “the executive power is more 
easily confined when it is one” and “there should be a single object 
for the . . . watchfulness of the people.” 9 

The President, said James Wilson, one of the principal authors of 
the Constitution, “is the dignified, but accountable magistrate of a free 
and great people.” 10 Wilson said, “The executive power is better to be 
trusted when it has no screen. . . . [W]e have a responsibility in the 
person of our President; ... he cannot roll upon any other person the 
weight of his criminality, . . .” 11 As both Wilson and Hamilton pointed 
out, the President should not be able to hide behind his counsellors; 
he must ultimately be accountable for their acts on his behalf. James 
Iredell of North Carolina, a leading proponent of the proposed Con- 
stitution and later a Supreme Court Justice, said that the President 
“is of a very different nature from a monarch. He is to be . . . personally 
responsible for any abuse of the great trust reposed in him.” 12 


0 Olmstead v. United States , 277 U.S. 438, 485 (1928) (dissenting opinion) Justice 
Brandeis went on to say : "In a government of laws, existence of the government will be 
imperilled if it fails to observe the law scrupulously. Our government is the potent, the 
omnipresent teacher. For good or for ill. it teaches the whole people by its example. Crime 
is contagious. If the government becomes a lawbreaker, it breeds contempt for law ; 
it invites every man to become a law unto himself; it invites anarchy. To declare that 
in the administration of the criminal law the end justifies the means — to declare that 
the government may commit crimes in order to secure the conviction of a private citizen — 
would bring a terrible retribution.” 

7 United States v. Lee, 106 U.S. 190. 220 (1S82). 

8 1 The Records of the Federal Convention 66 (M. Farrand ed. 1911) (brackets in 
original omitted). 

0 The Federalist No. 70, at 460 (Modern Library ed.). 

1,1 Wilson, Lectures on Law , in 1 The Works of James Wilson 319 (R. McCloskev ed. 
1967 ) . 

11 2 J. Elliot, The Dehates in the Several State Conventions on the Adoption of the 
Federal Constitution 480 (reprint of 2d ed.). 

12 4 Id. 74. 



182 


In considering this Article the Committee has relied on evidence of 
acts directly attributable to Richard M. Nixon himself. He has re- 
peatedly attempted to conceal his accountability for these acts and 
attempted to deceive and mislead the American people about his own 
responsibility. He governed behind closed doors, directing the opera- 
tion of the executive branch through close subordinates, and sought to 
conceal his knowledge of what they did illegally on his behalf. Al- 
though the Committee finds it unnecessary m this case to take any 
position on whether the President should be held accountable, through 
exercise of the power of impeachment, for the actions of his immediate 
subordinates, undertaken on his behalf, when his personal authoriza- 
tion and knowledge of them cannot be proved, it is appropriate to call 
attention to the dangers inherent in the performance of the highest 
public office in the land in an air of secrecy and concealment. 

The abuse of a President’s powers poses a serious threat to the lawful 
and proper functioning of the government and the people’s confidence 
in it. For just such Presidential misconduct the impeachment power 
was included in the Constitution. The impeachment provision, wrote 
Justice Joseph Story in 1833, “holds out a deep and immediate respon- 
sibility, as a check upon arbitrary power; and compels the chief 
magistrate, as well as the humblest citizen, to bend to the majesty of 
the law.” 13 And Chancellor James Kent wrote in 1826: 

If . . . neither the sense of duty, the force of public opinion, nor the transitory 
nature of the seat, are sufficient to secure a faithful exercise of the executive 
trust, but the President will use the authority of his station to violate the Con- 
stitution or law of the land, the House of Representatives can arrest him in his 
career, by resorting to the power of impeachment. 14 

The Committee has concluded that, to perform its constitutional 
duty, it must approve this Article of Impeachment and recommend 
it to the House. If we had been unwilling to carry out the principle 
that all those who govern, including ourselves, are accountable to the 
law and the Constitution, we would have failed in our responsibility 
as representatives of the people, elected under the Constitution. If we 
had not been prepared to apply the principle of Presidential account- 
ability embodied in the impeachment clause of the Constitution, but 
had instead condoned the conduct of Richard M. Nixon, then another 
President, perhaps with a different political philosophy, might have 
used this illegitimate power for further encroachments on the rights 
of citizens and further usurpations of the power of other branches of 
our government. By adopting this Article, the Committee seeks to 
prevent the recurrence of any such abuse of Presidential power. 

The Committee finds that, in the performance of his duties as Presi- 
dent, Richard M. Nixon on many occasions has acted to the detriment 
of justice, right, and the public good, in violation of his constitutional 
duty to see to the faithful execution of the laws. This conduct has 
demonstrated a contempt for the rule of law ; it has posed a threat to 
our democratic republic. The Committee finds that this conduct con- 
stitutes “high crimes and misdemeanors” within the meaning of the 
Constitution, that it warrants his impeachment by the blouse, and that 
it requires that he be put to trial in the Senate. 


13 1 J. Story, Commentaries on the Constitution of the United States § 813 at 564 (3d 
pci. 1858). 

14 1 J. Kent, Commentaries on American Law 2S9 (6th ed. 1848). 



183 


In recommending Article II to the House, the Committee finds clear 
and convincing evidence that Richard M. Nixon has not faithfully 
executed the executive trust, but has repeatedly used his authority as 
President, to violate the Constitution and the law of the land. In so 
doing, he violated the obligation that every citizen has to live under 
the law. But he did more, for it is the duty of the President not 
merely to live by the law but to see that law faithfully applied. 
Richard M. Nixon repeatedly and willfully failed to perform that 
duty. He failed to perform it by authorizing and directing actions 
that violated the rights of citizens and that interfered with the func- 
tioning of executive agencies. And he failed to perform it by con- 
doning and ratifying, rather than acting to stop, actions by his sub- 
ordinates interfering with the enforcement of the laws. 




ARTICLE III 




INTRODUCTION 


On February 6, 1974, the House of Representatives adopted H. Res. 
803, authorizing and directing the Committee on the Judiciary to in- 
vestigate whether sufficient grounds exist to impeach President Rich- 
ard M. Nixon. This resolution authorized the Committee “to require 
. . . by subpoena or otherwise . . . production of such things ... as 
deemed necessary to such investigation.” 

On February 25, 1974, Special Counsel to the Committee wrote to 
the President’s counsel requesting tape recordings of designated presi- 
dential conversations and related documents. Some of these items had 
previously been provided by the President to the Special Prosecutor ; 
others had not. In response to this request, the President agreed to 
produce only those materials he had previously given to the Special 
Prosecutor. 

By subsequent letters and, ultimately, by service of eight subpoenas 
upon the President, the Committee sought : 

(1) tape recordings, notes and other writings relating to 147 
specified conversations ; 

(2) a list of the President’s meetings and telephone conversa- 
tions known as “daily diaries,” for five special periods in 1971, 
1972 and 1973; 

(3) papers and memoranda relating to the Watergate break-in 
and its aftermath and to the activities of the White House special 
investigative unit (the Plumbers), prepared by, sent to, received 
by or at any time contained in the files of seven named former 
members of the President’s staff ; and 

(4) copies of the President’s daily news summaries, for a 3 ^ 
month period in 1972, that contain his handwritten notes pertain- 
ing to the hearings before the Senate Judiciary Committee on 
Richard Kleindienst’s nomination to be Attorney General and 
matters involving ITT antitrust litigation. 

The President was informed that the materials demanded by these 
eight subpoenas were necessary for the Committee’s inquiry into the 
Watergate matter, domestic surveillance, the relationship between a 
governmental milk price support decision aud campaign contribu- 
tions by certain dairy cooperatives, the conduct of ITT antitrust liti- 
gation and alleged perjured testimony by administration officials dur- 
ing the Kleindienst confirmation hearings, and the alleged misuse of 
the Internal Revenue Service. 

In response to these subpoenas the President produced : 

(1) edited transcripts of all or part of 33 subpoenaed conver- 
sations and 6 conversations that had not been subpoenaed, all but 
one of which related to the Watergate matter ; 

(2) edited copies of notes made by John Ehrlichman during 
meetings with the President, which had been previously furnished 

( 187 ) 



188 


to Ehrlichman and the Special Prosecutor in connection with the 
trial United States v. Ehrlichman , and 

(3) copies of certain White House news summaries, containing 
no handwritten notes by the President. 

The Committee did not receive a single tape recording of any of the 
147 subpoenaed conversations. Nor, apart from the edited notes of 
Ehrlichman and the copies of news summaries, did the Committee re- 
ceive any of the other papers or things sought by its subpoenas. 

Shortly after the President’s response, the Committee informed the 
President that his submissions were not considered compliance with 
its subpoenas and that his refusal to comply might be regarded as a 
ground for impeachment. 

At the conclusion of its inquiry, the Committee approved by a vote 
of 21-17 the following Article of Impeachment : 

Article III 

In his conduct of the office of President of the United States, Richard M. 
Nixon, contrary to his oath faithfully to execute the office of President of the 
United States, and to the best of his ability, preserve, protect, and defend the 
Constitution of the United States, and in violation of his constitutional duty to 
take care that the laws be faithfully executed, has failed without law T ful cause 
or excuse to produce papers and things as directed by duly authorized sub- 
poenas issued by the Committee on the Judiciary of the House of Representatives 
on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully 
disobeyed such subpoenas. The subpoenaed papers and things were deemed nec- 
essary by the committee in order to resolve by direct evidence fundamental, 
factual questions relating to presidential direction, knowledge or approval of 
actions demonstrated by other evidence to be substantial grounds for impeach- 
ment of the President. In refusing to produce these papers and things, Richard 
M. Nixon, substituting his judgment as to what materials were necessary for 
the inquiry, interposed the powers of the presidency against the lawful subpoenas 
of the House of Representatives, thereby assuming to himself functions and 
judgments necessary to the exercise of the sole pow r er of impeachment vested by 
the Constitution in the House of Representatives. 

In all of this, Richard M. Nixon has acted in a manner contrary to his trust 
as President and subversive of constitutional government, to the great prej- 
udice of the cause of law and justice, and to the manifest injury of the people of 
the United States. 

Wherefore, Richard M. Nixon .by such conduct, warrants impeachment and 
trial, and removal from office. 

The refusal of the President to comply with the subpoenas was an 
interference by him with the efforts of the Committee and the House 
of Representatives to fulfill their constitutional responsibilities. It was, 
as Article III states, an effort to interpose “the powders of the presi- 
dency against the lawful subpoenas of the House of Representatives, 
thereby assuming to himself functions and judgments necessary to 
this exercise of the sole power of impeachment vested by the Constitu- 
tion in the House of Representatives.” 

Evidence of the President’s refusal to comply with the Committee’s 
subpoenas seeking evidence with respect to the Watergate matter 
could be introduced as proof of the allegations in paragraph 4 of Arti- 
cle I — which charges interference with investigations by Congres- 
sional Committees as one of the means used to obstruct justice in the 
Watergate matter. But the refusal by the President to comply with 
subpoenas issued after the Committee was satisfied there was other evi- 
dence pointing to the existence of impeachable offenses, is a grave 



189 


interference with the efforts of the Committee and the House to ful- 
fill their constitutional responsibilities, regardless of whether it is 
part of a course of conduct or plan to obstruct justice. Only Article 
III is concerned with enforcing general standards requiring Presi- 
dential compliance with subpoenas in impeachment inquiries. 

The Committee has been able to conduct an investigation and deter- 
mine that grounds for impeachment exist — even in the face of the 
President’s refusal to comply. But this does not mean that the re- 
fusal was without practical import. The Committee had enough evi- 
dence to recommend the adoption of two other articles, but it does not 
and did not have at the time it deliberated and voted — despite the 
President’s contentions to the contrary — the "full story.” Had it- re- 
ceived the evidence sought by the subpoenas, the Committee might 
have recommended articles structured differently or possibly ones cov- 
ering other matters. 1 Article ILL states, the evidence sought was 
u deemed necessary by the Committee in order to resolve by direct 
evidence fundamental, factual questions relating to presidential direc- 
tion, knowledge or approval of actions demonstrated by other evidence 
to be substantial grounds for impeachment of the President.” It is the 
defiance of the Committee’s subpoenas under these circumstances that 
gave rise to the impeachable offense charged by Article III. 

The President’s statement on August 5, 1974, that he would trans- 
mit to the Senate certain material subpoenaed by the Committee, did 
not lessen the need for Article HI. The President said on August 5 
that he would supply to the Senate, for an impeachment trial, those 
portions of recordings of 64 conversations that Judge Sirica decides 
should be produced for the Special Prosecutor for use in the Watergate 
criminal trial. This assurance did not remove the interference with the 
exercise of their responsibilities by the Committee and the House 
charged in Article III. 

Article III charges the President with interfering with the dis- 
charge of the Committee’s responsibility to investigate fully and com- 
pletely whether sufficient grounds exist to impeach him. The Com- 
mittee’s duty is different from the duty of a prosecutor, a grand jury, 
or a trial jury, whose task it is to determine whether specific criminal 
statutes have been violated. What may be relevant or necessary for the 
Watergate criminal trial would not necessarily coincide with what is 
relevant and necessary for this inquiry. And, in any event, it is for 
the Committee — not a trial judge in a criminal case — to determine 
what is relevant and necessary to the Committee’s inquiry. Thus, even 
if the President had, on August 5, 1974, consented to deliver to the 
House the portions of the 64 recordings that Judge Sirica eventually 
found relevant and necessary to the Watergate criminal trial, the 
President’s refusal to comply with the Committee’s subpoenas would 
nonetheless constitute an interference with the duty of this Committee. 

Similarly, the President’s willingness to furnish to the Senate some 


1 The Committee’s Inquiry into the relationship between the contributions by certain 
dairy cooperatives and the decision in 1971 to raise milk price supports is one instance 
in which the Committee was unable to make a final determination because of the Presi- 
dent’s noncompliance with its subpoenas. The evidence before the Committee provided 
some support for the suspicion that the President’s conduct in this matter may have 
been grounds for his impeachment, but without the subpoenaed materials the Committee 
lacked the evidence to determine whether there was basis for such a charge. 



190 


material that was sought by the Committee’s subpoenas does not 
remove the obstruction of the constitutional process. In the first place, 
the President’s assurance related only to a portion of the material 
sought by the Committee. But more fundamentally, providing mate- 
rial to the Senate did not eliminate the interference with this Com- 
mittee’s responsibilities because the duty of the Committee differs also 
from that of the Senate. The responsibility of the Senate is to deter- 
mine whether the evidence is sufficient to remove the President on the 
basis of specific articles of impeachment previously transmitted to it 
by the House. The duty of the Committee is to investigate first and 
then to recommend to the House whether there is sufficient evidence to 
transmit articles of impeachment to the Senate. In order for this Com- 
mittee and the House to be able to perform their responsibilities, it is 
not sufficient for the President to meet the demands of other bodies 
seeking evidence for other purposes; the demands of the Committee 
and House must also be met. 

Rather than removing the need for Article III, the events of Au- 
gust 5 underscore its importance. On that day, the President not only 
made the statement concerning transmittal of materials to the Sen- 
ate, but also released edited transcripts of three conversations that 
took place on June 23, 1972 between himself and Haldeman. These 
conversations were requested by the Committee by letter dated 
April 19, 1974 and subpoenaed on May 15, 1974. The President, 
by letter dated May 22, 1974, refused to comply with the subpoena 
stating that “the Committee has the full story of Watergate, insofar 
as it relates to Presidential knowledge and Presidential actions.” 

There is no question that the three June 23, 1972 conversations bear 
significantly upon presidential knowledge and presidential actions. 
There is also no question that, prior to sending his May 22, 1974 letter 
defying the Committee’s subpoena, the President listened to recordings 
of two of these conversations. Both of these facts were admitted in his 
August 5 statement. Yet the President did not make the June 23 con- 
versations available until after the Committee had completed its de- 
liberations, and then only as a consequence of the Supreme Court 
decision in United /States v. Nixon directing that the conversations be 
produced for the Watergate criminal trial. The President’s defiance 
of the Committee forced it to deliberate and make judgments on a rec- 
ord that the President now acknowledges was “incomplete.” His actions 
demonstrate the need to ensure that a standard be established barring 
such conduct in impeachment inquiries. That is the function of Arti- 
cle III. 



THE COMMITTEE’S SUBPOENAS AND THE PRESI- 
DENT’S RESPONSE 

A. The February 25, 1974 Letter 

On February 25, 1974, at the direction of the Committee’s Chair- 
man and Ranking Minority Member, Special Counsel John Doar 
wrote to the President’s Special Counsel, James D. St. Clair. On be- 
half of the Committee, Mr. Doar requested (1) certain materials pre- 
viously furnished by the President to the Special Prosecutor, includ- 
ing 19 tape recordings of presidential conversations and recollections, 
and (2) all tape recordings, notes and other writings relating to 42 
specifically identified presidential conversations, which had not previ- 
ously been provided to the Special Prosecutor. 

No response to the Committee’s request had been made by March 1, 
1974. On that day the Federal grand jury investigating the Watergate 
matter delivered a report and supporting materials to Chief Judge 
John Sirica for submission to the Committee. These materials in- 
cluded 12 recordings of presidential conversations and recollections 
pertinent to the Watergate matter, together with related documentary 
materials. On March 6, 1974, Judge Sirica held a hearing to determine 
whether the Grand Jnry report and supporting materials should be 
delivered to the Committee. Mr. St. Clair stated during this hearing, 
and confirmed by letter of the same date to Mr. Doar, that the Presi- 
dent would furnish to the Committee all material he had previously 
furnished to the Special Prosecutor. 

Between March 8 and March 22, the President delivered to the 
Committee the materials he had produced for the Special Prosecutor. 
These materials included the 12 recordings related to the Watergate 
matter, and 7 recordings relating to the ITT, dairy, and Plumbers 
matters. Also included were approximately 700 pages of documents 
pertaining to these areas. 1 On March 26, the grand jury report and 
accompanying materials were delivered to the Committee. 

After several meetings between Mr. Doar, the Minority Coun- 
sel, Albert Jenner, and Mr. St. Clair, Mr. Doar wrote Mr. St. Clair 
on April 4, reiterating the Committee’s request for the 42 presidential 
conversations first specified in Mr. Doar’s February 25 letter. On 
April 9, Mr. St. Clair responded that a review of the materials was 
underway which would probably be completed by the end of the Con- 
gressional Easter recess. Mr. St. Clair made no commitment to pro- 
duce any material at the completion of the review. Accordingly, on 
April 11, 1974 the Committee, by a vote of 88 to 3, authorized the issu- 
ance of its first subpoena directed to the President. 


1 A number of the documents were duplicates. 

( 191 ) 


37-777 0 - 74-13 



192 


B. The Four Watergate Subpoenas 

(1) April 11, 1974 

The subpoena authorized on April 11, 1974 demanded the produc- 
tion of all tapes, dictabelts or other electronic recordings and tran- 
scripts, memoranda, notes or other writings relating to 42 specified 
conversations. Six of these conversations took place m February and 
March 1973 ; the other 36 were in April. They involved the President 
and Haldeman, Ehrlichman, Dean, Kleindienst and Henry Petersen. 
The return date for the subpoena was originally April 25, but was 
extended to April 30 at the President’s request. In a television address 
to the Nation on the evening of April 29, the President announced 
that he would deliver transcripts of certain conversations to the Com- 
mittee rather than the tapes themselves. 

The following day, the President released to the public and de- 
livered to the Committee edited transcripts of 31 of the 42 subpoenaed 
conversations. The President said that five of the 11 other subpoenaed 
conversations had not been recorded because the tape had run out. 
These conversations had taken place on April 15, 1973 in the Presi- 
dent’s office in the Executive Office Building. Four of the eleven were 
telephone calls and the President said they were not recorded because 
they were made on a telephone not connected to the taping system. 
The President said that the two remaining conversations, those 
in February, 1973, which were specified by subject matter rather 
than by precise time or date, either did not take place or could not be 
located. In addition to the edited transcripts of 31 conversations, the 
President produced edited transcripts of seven conversations between 
March 27 and April 27, 1973 that had not been subpoenaed. The Presi- 
dent was a participant in four of these conversations. The President 
did not produce any notes or other writings relating to the 42 con- 
versations as required by the April 11 subpoena. 

The President stated in his April 30 submission to the Committee 
that he would permit the Chairman and Ranking Minority Member — 
without staff assistance — to listen to the subpoenaed tapes at the White 
House for the purpose of verifying the edited transcripts. He also 
stated that he would respond under oath to written interrogatories 
and that he would be willing to meet with the Chairman and Ranking 
Minority Member at the White House and submit to questioning by 
them. 

On May 1, Chairman Rodino stated to the Committee that the pro- 
cedure suggested by the President for reviewing the subpoenaed tape 
recordings to determine the relevance and accuracy of the edited tran- 
scripts was not compliance with the Committee’s subpoena. The Chair- 
man explained : 

The subpoena issued by the Committee required materials covered by it to be 
delivered to the Committee in order that they be available for the Committee’s 
deliberations. There was good reason for this. It is not simply a question of the 
accuracy of transcripts or even of the relevancy of omissions, although both 
factors are obviously critical. The procedures followed by the Committee must be 
such that all Committee members — each of whom has to exercise personal judg- 
ments on this matter of enormous importance to the nation — and ultimately all 
members of the House of Representatives, are satisfied that they have had full 
and fair opportunity to judge for themselves all the evidence. It is therefore 
mandatory that the Committee not depart from the ordinary and expected process 



193 


in the way the President suggested, or in any other manner that might suggest 
the intrusion of secret accommodations, or raise new questions about the thor- 
oughness, fairness and objectivity of the Committee’s work. 

That same day, the Committee, pursuant to a 20 to 18 vote, formally 
advised the President by letter that he had failed to comply with its 
subpoena. 

(«) May 15 , 1974 

On May 9, the Committee’s inquiry staff began its initial presenta- 
tions on information on the Watergate matter. On May 15, after re- 
quests by letter dated April 19 for specified tapes and documents were 
not met, the Committee authorized the issuance of tw 7 o additional sub - 
poenas to the President. The first subpoena, approved by a vote of 
37 to 1, demanded the production of tape recordings and materials 
relating to 11 presidential conversations referred to in the staff pres- 
entations to the Committee. These conversations occurred on April 4, 
1972, June 20, 1972 and June 23, 1972 and involved the President and 
Haldeman, Mitchell and Colson. The second subpoena issued on 
May 15 sought lists (known as “daily diaries”) of the President’s 
meetings and telephone calls in four specified periods: April through 
July 1972; February through April 1973; July 12 through July 31, 
1973; and October 1973. 2 

By a letter to Chairman Rodino dated May 22, the President de- 
clined to furnish any of the materials required by the Committee’s 
two May 15 subpoenas. The President wrote : 

On April 30, 1974, in response to a subpoena of the House of Representatives 
dated April 11, 1974, I submitted transcripts not only of all the recorded Presi- 
dential conversations that took place that were called for in the subpoena, but 
also of a number of additional Presidential conversations that had not been 
subpoenaed. I did this so that the record of my knowledge and actions in the 
Watergate matter would be fully disclosed, once and for all. 

Even while my response to this original subpoena was being prepared, on 
April 19, 1974, my counsel received a request from the Judiciary Committee’s 
counsel for the production of tapes of more than 140 additional Presidential con- 
versations — of which 76 were alleged to relate to Watergate — together with a 
request for additional Presidential diaries for extended periods of time in 1972 
and 1973. 

The subpoenas dated May 15 call for the tapes of the first 11 of the con- 
versions that were requested on April 19, and for all of the diaries that were 
requested on April 19. My counsel has informed me that the intention of the 
Committee is to also issue a series of subpoenas covering all 76 of the con- 
versations requested on April 19 that are thought to relate to Watergate. It is 
obvious that the subpoenaed diaries are intended to be used to identify even 
more Presidential conversations, as a basis for yet additional subpoenas. 

Thus, it is clear that the continued succession of demands for additional 
Presidential conversations has become a never-ending process, and that to con- 
tinue providing these conversations in response to the constantly escalating 
requests would constitute such a massive invasion into the confidentiality of 
Presidential conversations that the institution of the Presidency itself would be 
fatally compromised. 

The Committee has the full story of Watergate, in so far as it relates to 
Presidential knowledge and Presidential actions. Production of these additional 


2 Each of the time periods included in the second May 30 subpoena was approved by 
separate votes. The period April through July 1972 ( prior to and shortly after the Water- 
pate break-in) was approved 36 to 2 ; February through April 1973 (during which the 
Watergate cover-up began to unravel) by a vote of 32 to 6; July 12 through July 31, 
1973 (shortly before and after the disclosure of the White House taping system) by 
a. vote of 29 to 9 ; and October 1973 (the month Special Prosecutor Cox was dismissed) 
by a vote of 32 to 6. 



194 


conversations would merely prolong the inquiry without yielding significant addi- 
tional evidence. More fundamentally, continuing ad infinitum the process of 
yielding up additional conversations in response to an endless series of demands 
would fatally weaken this office not only in this Administration but for future 
Presidencies as well. 

Accordingly, I respectfully decline to produce the tapes of Presidential con- 
versations and Presidential diaries referred to in your request of April 19, 1974, 
that are called for in part in the subpoenas dated May 15, 1974, and those 
allegedly dealing with Watergate that may be called for in such further sub- 
poenas as may hereafter be issued. 

(3) May 30 , 1974 

On May 30, at the conclusion of the staff’s presentation on the Water- 
gate aifair, the Committee authorized the issuance of a fourth subpoena 
by a vote of 37 to 1. This subpoena called for tape recordings and other 
materials relating to 45 specified conversations between November 15, 
1972 and June 4, 1973 involving the President and Haldeman, Ehr- 
lichman, Colson, Dean, Petersen and the attorneys for Haldeman, 
and Ehrlichman. The subpoena also sought all papers relating to 
Watergate and its aftermath prepared by, sent to, received by or at 
any time contained in the files of five former White House employees — 
Haldeman, Ehrlichman, Colson, Dean, and Gordon Strachan. 

Also on May 30, the Committee, by a vote of 28 to 10, approved the 
text of a response by Chairman Rodino to the President’s letter of 
May 22. Chairman Rodino’s response stated in part : 

The Committee on the Judiciary regards your refusal to comply with its lawful 
subpoenas as a grave matter. Under the Constitution it is not within the power 
of the President to conduct an inquiry into his own impeachment, to determine 
which evidence, and what version or portion of that evidence, is relevant and 
necessary to such an inquiry. These are matters which, under the Constitution, 
the House has the sole power to determine. 

In metting their constitutional responsibility, Committee members will be 
free to consider whether your refusals warrant the drawing of adverse infer- 
ences concerning the substance of the materials, and whether your refusals 
in and of themselves might constitute a ground for impeachment. 

On June 9, the President answered Chairman Rodino’s May 30 
letter. He wrote that his decision not to comply with any further 
Watergate subpoenas was based on the principle of the separation of 
powers. He also stated that : 

the voluminous body of materials that the Committee already has — and which 
I have voluntarily provided, partly in response to Committee requests and 
partly in an effort to round out the record — does give the full story of Watergate, 
insofar as it relates to Presidential knowledge and Presidential actions. The 
way to resolve whatever ambiguities the Committee may feel still exist is not 
to pursue the chimera of additional evidence from additional tapes, but rather 
to call live witnesses who can place the existing evidence in perspective, and 
subject them to cross-examination under oath. Simply multiplying the tapes 
and transcripts would extend the proceedings interminably, while adding noth- 
ing substantial to the evidence the Committee already has. 

On June 10, Mr. St. Clair wrote Chairman Rodino with specific 
reference to the May 30 subpoena. He stated that the President would 
not furnish the materials called for in that subpoena. 

C. The ITT, Domestic Surveillance, Dairy and IRS Subpoenas 

By June 24, the staff had completed the initial presentation on the 
conduct of ITT antitrust litigation and the subsequent Kleindienst 
confirmation hearings, domestic surveillance, the alleged relationship 



195 


between governmental decisions affecting the dairy industry and cam- 
paign contributions, and alleged misuse of the IRS. On that day, the 
Committee authorized the issuance of four subpoenas to the Presi- 
dent requiring the production of evidence in each of these areas. 
Earlier requests by letter for this evidence had been denied. 3 

(1) The ITT Subpoena 

The subpoena respecting the ITT matter and the Kleindienst con- 
firmation hearings was authorized by a vote of 34 to 4. It required 
production of tape recordings and other materials relating to 19 speci- 
fied conversations involving the President, Haldeman, Ehrlichman, 
Colson and Mitchell during the period March 6 through April 5, 
1972. It also sought the President’s daily news summaries for the 
period February 22 through June 9, 1972, containing his handwrit- 
ten notations on items relating to the ITT matter and the Kleindienst 
confirmation hearings. 

By letter dated July 12, 1974 from Mr. St. Clair to Chairman 
Rodino, the President declined to produce any recordings of conver- 
sations or materials related to the conversations. He agreed to and 
did produce copies of parts of White House news summaries, but not 
the original pages or copies containing his handwritten notes. Mr. 
St. Clair wrote that there were no notes by the President on his own 
copies “which related to Mr. Kleindienst’s testimony that there was 
no White House pressure concerning the settlement of the ITT anti- 
trust case.” Mr. St. Clair advised the Chairman and Ranking Minor- 
ity Member that they could verify this fact by examining the Presi- 
dent’s copy of the news summaries. 

{2) The Domestic Surveillance Subpoena 

The subpoena pertaining to the Committee’s inquiry into domestic 
surveillance was authorized by voice vote. It required production of : 

(1) recordings of 10 conversations during the period June 23, 
1971 through April 25, 1973, in which the President and Halde- 
man, Colson, Ehrlichman, Petersen and Klehidienst participated; 

(2) all memoranda, correspondence, papers and things relat- 
ing to the White House special investigation unit (the “Plum- 
bers”) prepared by, sent to, received by or at any time contained 
in the files of Colson, Haldeman, Ehrlichman, Egil Krogh, and 
David Yoimg, including all of Ehrlichman’s handwritten notes 
produced by the White House pursuant to an order by Judge 
Gerhard Gesell in United States v. Ehrlichman; and 

(3) Ehrlichman’s handwritten notes of a meeting of July 12, 
1971 among the President, Ehrlichman and Robert Mardian. 

On July 12, 1974, the President declined to produce the 10 record- 
ings or any of the other documents sought, except for those portions of 
Ehrlichman’s notes that had previously been made available to Ehr- 
lichman and the Special Prosecutor for the trial of United States v. 
Ehrlichman. 


3 The President, in response to a letter dated April 19, 1974, from Mr. Doar to 
Mr. St. Clair requesting recordings and other materials relating to conversations for 
the Committees inquiry into the ITT antitrust litigation and the Kleindienst confirma- 
tion hearings, did produce an edited transcript of a conversation on April 4, 1972 
among the President, Haldeman and Mitchell. He did not produce any of the other 
materials sought by the April 19 letter. 



196 


(3) The Dairy Subpoena 

The subpoena respecting the dairy matter, authorized by a vote of 
34 to 4, sought : (1) recordings and other materials relating to 18 con- 
versations between March 19 through March 25, 1971, involving the 
President, Ehrlichman, Colson and John Connally; and (2) a list of 
Presidential meetings and telephone calls for that seven-day period. 
On July 12, 1974 the President declined to produce any recordings or 
other material sought by this subpoena. 

{It) The IRS Subpoena 

The subpoena in connection with the Committee’s investigation into 
the alleged misuse of the IRS was authorized by a voice vote. It 
sought recordings of and materials related to two conversations in- 
volving the President, Haldeman and Dean on September 15, 1972. On 
July 12, 1974 the President declined to produce any of the recordings 
or materials sought by this subpoena. 

D. Summary 

In response to its initial request by letter of Februaiy 25, 1974, the 
Committee received from the President 19 tape recordings and docu- 
ments relating to the Watergate, ITT, dairy, and Plumbers matters. 
All these recordings and documents had previously been furnished 
to the Special Prosecutor. Twelve of the recordings and related docu- 
ments — those pertaining to the Watergate matter — were part of the 
Grand Jury submission to the Committee, which had been announced 
on March 1, 1974 before Mr. St. Clair responded to the Committee’s 
February 25 letter. Thus, the 12 Watergate recordings and related 
materials would have been obtained by the Committee regardless of 
the President’s response. 

In response to eight subpoenas issued between April 11 and June 24, 
1974 seeking recordings and materials relating to 147 conversations 
and various documents, the Committee received 33 edited transcripts 
of subpoenaed conversations, 4 edited notes previously turned over to 
the Special Prosecutor and Ehrlichman in connection with his trial, 
and news summaries without the President’s notations. Apart from 
the recordings and documents, furnished to the Special Prosecutor, 
the Committee did not rceive any tape recordings, or any notes, memo- 
randa, or other writings relating to any Presidential conversations. 
The Committee did not receive any of the lists of the President’s meet- 
ings and calls it subpoenaed, nor (apart from a portion of Ehrlich- 
mans’ edited notes) any subpoenaed documents from the files of speci- 
fied White House emplc^ees relating to the Watergate matters or the 
activities of the Plumbers. 


4 Since the delivery of the 31 edited transcripts on April 30. the President delivered 
to the Committee edited transcripts for all or part of two additional subpoenaed con- 
versations : one, as previously indicated, which took place on April 4, 1972 (among the 
President, Haldeman and Mitchell), and the other, a 2% page excerpt from a 1 hour 
and 24 minute conversation on March 22, 1973, between the President and Haldeman, 
which excerpt was given to the Committee on July 18, 1974, during Mr. St. Clair’s closing 
argument. The total of 33 edited transcripts does not include the edited transcripts 
delivered to the Committee on August 5, 1974, of three June 23, 1972, conversations 
between the President and Haldeman. 



JUSTIFICATION OF THE COMMITTEE'S SUBPOENAS 

Before the issuance of any subpoenas, the Impeachment Inquiry 
Staff submitted to the Committee detailed memoranda specifically 
justifying the request for each of the items sought. These memoranda 
accompanied each of the subpoenas, and are included in this report as 
Appendix B. They evidence the orderly procedures adhered to by the 
Committee. They also show the basis for the Committee’s judgment 
as stated in Article III, that the “subpoenaed papers and things were 
. . . necessary . . . to resolve by direct evidence fundamental, fac- 
tual questions relating to presidential direction, knowledge or ap- 
proval of actions demonstrated by other evidence to be substantial 
grounds for impeachment of the President.” 

A. Watergate 

The subpoenas issued on April 11, May 15 and May 30 covered 98 
Watergate-related conversations. The Special Prosecutor subpoenaed 
63 of these 98 conversations for use in the trial of United States v. 
Mitchell (the prosecution arising out of the Watergate cover-up). 
After the Special Prosecutor demonstrated to the District Court, and 
ultimately to the Supreme Court, that the material sought from the 
President was “essential to the justice of the [pending criminal] 
case,” 1 the President was ordered by the Supreme Court on July 24, 
1974, to produce the tape recordings of those conversations for in 
camera inspection by the District Court. 

The 98 conversations sought by the Committee may be divided into 
two periods: those that occurred on or prior to March 21, 1973, and 
those that took place after that date. The justifications for each group 
will be examined separately. But it should first be emphasized that 
apart from one conversation that occurred on April 4, 1972 (among 
the President, Haldeman and Mitchell) the President has never 
claimed to the Committee that any of the 98 subpoenaed conversations 
is unrelated to the Watergate break-in and its aftermath. 2 

(1) Pre-March 21, 197 3 

The President repeatedly stated publicly that it was not until 
March 21, 1973 that facts were brought to his attention respecting 
the break-in and Watergate cover-up. (“Presidential Statements,” 
8/15/73, 49 ; 4/17/73, 12) To investigate this contention the Committee 
by subpoena sought recordings and other materials relating to 33 
specified conversations that took place on or prior to March 21, 1973. 
In response, the President produced only edited transcripts of three 


1 United Stales v. Nixon, Slip opinion at 28 (July 24, 1974). 

2 The President, after the Supreme Court decision in United States v. Nixon informed 
Judge Sirica when turning over conversations subpoenaed by the Special Prosecutor that 
a January 5, 1973 conversation between the President and Colson and a March 21, 1973 
conversation between the President and Ehrlichman did not relate to Watergate. These 
two conversations were among the 98 subpoenaed by the Committee. 

( 197 ) 



198 


conversations: a meeting on April 4, 1972, between the President, 
Haldeman and Mitchell; a telephone call on March 20, 1973, between 
the President and Dean; and a meeting on March 17, 1973, between 
the President and Dean (for which the President produced a 4-page 
edited portion of a 45-minute conversation). The President refused to 
produce any materials with respect to the other 30 subpoenaed con- 
versations on or before March 21. 

Among the Presidential conversations sought in the pre-March 21 
period were 9 that occurred within six days following the break-in on 
June 17, 1972. Six of these conversations took place on June 20 and 
23 with Haldeman; the other three were with Colson and occurred 
on June 20. During this period shortly after the break-in, the 
Watergate cover-up plan was first conceived and put into motion. 
These conversations bear upon the President’s role in directing that 
cover-up. 

June 20, 1972 was the first day that the President was in Washing- 
ton following the Watergate break-in. (Book II, 156, 243) Halde- 
man, after being briefed on the Watergate matter by Kleindienst, 
Dean, Gray, Ehrlichman and others, (Book II, 240) reported to the 
President between 11 :26 a.m. and 12:45 p.m. (Book II, 243) The por- 
tion of that discussion dealing with the Watergate break-in is unavail- 
able because 18% minutes of the tape recording of the conversation 
have been manually erased. (See Appendix A) Haldeman conferred 
with the President three additional times on June 20. The Committee 
subpoenaed those conversations. (Book II, 245) Colson also spoke with 
the President on June 20. (Book II, 243) Colson’s three June 20 con- 
versations with the President were also subpoenaed. 

Three other subpoenaed conversations in the period shortly after 
the break-in took place on June 23, 1972. They were between the 
President and Haldeman. On that day the President instructed Halde- 
man and Ehrlichman to have the CIA ask the FBI to circumscribe 
the Watergate investigation. (Book II, 356-57, 359) The Committee 
subpoenaed the three June 23 conversations between the President 
and Haldeman because they were critical in resolving what the Presi- 
dent knew when he ordered that the CIA be used to limit the FBI 
investigation and his reason for that order. The Committee was 
proved correct in assessing the need for the June 23 conversations 
when the President ultimately released transcripts of those conver- 
sations on August 5, 1974. 3 

Among the other subpoenaed conversations that occurred prior to 
March 21, 1973 were four discussions between the President and Col- 
son in January and February, 1973. They are relevant to whether or 
not assurances of executive clemency to Howard Hunt were authorized 
by the President and to determine the President’s knowledge of ac- 
tions by White House and CRP personnel respecting the Watergate 
matter. The President’s own statements, as reflected in the tape record- 
ing of the morning meeting with Dean of March 21, 1973 and the edited 
transcript of a conversation of April 14, 1973, and Colson’s testimony 
before the Committee, demonstrate that discussions took place in 


3 The conversations between the President and Haldeman on June 23, 1972 lasted 95 
minutes, 9 minutes and 25 minutes. The edited transcript released by the President for 
these conversations were 34 pages, 1 page and 11 pages, respectively. 



199 


January and February, 1973, between the President and Colson con- 
cerning these matters. (HJCT 93, 115-16; WHT 418-19; “Presi- 
dential Statements,” 5/22/73, 21; Colson testimony, 3 HJC 317-18) 

Additional conversations on or before March 21 that were sub- 
poenaed are discussions in February, 1973, between the President 
and Haldeman concerning the possible appointment of Magruder 
to a government position at a time w T hen Haldeman knew that Ma- 
gruder had committed perjury, and between the President, Haldeman 
and Ehrlichman concerning the assignment of Dean to work directly 
with the President on Watergate. 

Finally, the Committee subpoenaed recordings of meetings and 
calls between the President and Dean in February and March, 1973 
in the course of which there were discussions of the Watergate mat- 
ter; between the President and Haldeman and the President and 
Ehrlichman on March 20, the day Ehrlichman learned from Dean of 
Hunt's demands for $120,000 (Book III, 952-56), and between the 
President and Ehrlichman on the morning of March 21 immediately 
before the President’s meeting with Dean at which Hunt’s demand 
and the Watergate cover-up were discussed. These conversations bear 
directly upon the knowledge or lack of knowledge of, or action or 
inaction by, the President or any of his senior administration officials 
with respect to the investigation of the Watergate break-in. 

(2) Post-March 21 , 1973 

The Committee sought 65 conversations in the period subsequent to 
March 21. Fifty-one of these conversations involved the President 
and his aides, Haldeman, Ehrlichman, Colson and Dean, and the 
attorneys for Haldeman and Ehrlichman. The other 14 conversations 
took place between the President and Justice Department officials, 
Henry Petersen and Richard Ivleindienst. The bulk of the edited 
transcripts produced by the President — some 30 in number — are of 
Presidential conversations during this post-March 21 period. 

It is evident from those edited transcripts that during this period 
there were repeated discussions of the Watergate matter among the 
President, Haldeman and Ehrlichman. They discussed the effect of 
statements being made by Dean, Magruder and others to the Water- 
gate prosecutors, the facts being developed by the Justice Department, 
the course of action to be adopted in the face of the continuing Justice 
Department, Grand Jury and Senate Select Committee investigations, 
and the need to contact others and inform them of the results of the 
investigation so that they could be prepared when questioned. 

Among the conversations subpoenaed in the post-March 21 period 
were six conversations on April 25 and 26 between the President and 
Haldeman ; one of these lasted almost six hours. Although the Presi- 
dent had repeatedly been informed by Henry Petersen that Haldeman 
was a prime subject of the Department of Justice’s investigation, 
Haldeman, on April 25 and 26, at the President’s direction, listened 
to the March 21 tape, made notes and reported to him. (Book IX, 116, 
119-21 ; Book IV, 1560) Subsequently, on June 4, 1973, the President 
told Ronald Ziegler and Alexander Haig that, while the March 21 
conversation was a problem, Haldeman could handle it. (Book IX, 
177-78, 193) The President also spoke to Haldeman twice by telephone 



200 


on June 4. (Book IX, 237-38) The Committee subpoenaed these tele- 
phone conversations. 

Subsequently, in July, 1973, Haldeman testified about the March 21 
meeting before the Senate Select Committee on Presidential Campaign 
Activities. (Book IX, 439^1) Two months after that testimony, the 
President (who had stated publicly that Haldeman testified accurate- 
ly) was required to furnish the tape recording of the March 21 conver- 
sation to the Special Prosecutor. Haldeman was thereafter indicted 
for perjury respecting his testimony about that conversation. 

The remaining group of post-March 21 conversations cover 14 dis- 
cussions between the President and Kleindienst, and the President and 
Petersen. The edited transcripts produced by the President respecting 
a number of these conversations clearly indicate that they bear upon 
the extent to which the President informed the Justice Department 
officials of facts within his knowledge, including facts conveyed to him 
by Dean and others concerning the Watergate break-in and subsequent 
events. They are also relevant to determining the information that 
the President learned from Petersen and Kleindienst, and (when 
considered together with the President’s conversations with Haldeman 
and Ehrlichman) the uses to which the President put that informa- 
tion. In sum, the 14 conversations were subpoenaed to help ascertain 
whether the President was seeking to discover the truth or to cover-up 
for himself and his closest aides. 

B. IRS 

The subpoena issued on June 24, 1974 in connection with the Com- 
mittee’s investigation of alleged abuse of the IRS sought recordings 
and documents related to two conversations: one between the Presi- 
dent and Haldeman on September 15, 1972, from 4 :43 to 5 :27 p.m., 
and another among the President, Dean and Haldeman on that same 
day from 6:00 to 6:13 p.m. The Committee had at that time a 
tape of a portion of a conversation on September 15 between the 
President and Haldeman from approximately 5 :17 to 5 :27 p.m. 4 and 
among the President, Dean and Haldeman from 5 :27 to 6 :00 p.m. 
Segments of the taped conversation that the Committee possesses, an 
affidavit by Special Prosecutor Jaworski seeking the portion of the 
conversation from 6 :00 to 6 :13 p.m. on the ground that it relates to 
alleged abuse of the IRS, the decision of Judge Sirica (after listening 
to the conversation) ordering that it be turned over to the Special 
Prosecutor, and the testimony of John Dean before the Committee, 
(Dean testimony, 2 HJC 228-29 ; HJCT 1-18) all demonstrate that the 
two conversations sought by the Committee in its June 24 subpoena 
bear on the President’s actions in connection with the use of the 
Internal Revenue Service to harass or obtain information about 
political enemies. 


4 The White House staff in re-recording for the Committee a portion of a conversation 
among the President, Haldeman and Dean on September 15, 1972, from 5 :27 to 6 :00 p.m., 
inadvertently recorded approximately ten minutes of additional conversation between the 
President and Haldeman prior to 5 :27 p.m. This additional ten minutes proved to be 
relevant to the Committee’s inquiry into both the Watergate matter and alleged abuse 
of the IRS. 



201 


C. Domestic Surveillance 

Five of the ten subpoenaed conversations in the domestic surveil- 
lance area relate to the issue of the President’s knowledge of the break- 
in by the Plumbers into the office of Dr. Fielding. On September 7, 
1971, shortly after the break-in, Egil Ivrogh and David Young, who 
headed the White House Plumbers unit, reported to Ehrlichman on 
the results of the break-in. (Book VII, 1310-17) The Committee sub- 
poenaed three conversations between the President and Ehrlichman 
between September 7 and September 10, 1971 — two of which occurred 
immediately before and after Ehrlichman’s meetings with Krogh and 
Young at which the break-in was discussed. 

The Committee also subpoenaed five conversations between the 
President and Colson that took place between June 23 and Septem- 
ber 10, 1971. It was Colson who had arranged for the delivery of funds 
that were used to finance the break-in of Dr. Fielding’s office. (Book 
VII, 1248-49) During this period the events also occurred that ulti- 
mately resulted in Colson’s pleading guilty to having endeavored to 
obstruct justice in connection with the trial of Daniel Ellsberg. Colson 
has stated that he discussed with the President the release of deroga- 
tory information about Ellsberg and his attorney. (“Criminal Case,” 
22-23) 

Finally, with respect to domestic surveillance, the Committee sub- 
poenaed documents from the files of Hal deman, Ehrlichman, Colson, 
Krogh and Young relating to the origin and activities of the White 
House Plumbers unit. These documents were necessary for a thorough 
investigation by the Committee of domestic surveillance activities. The 
President refused to produce any of the documents from the files of his 
aides except for a portion of the edited Ehrlichman notes of meetings 
and conversations with the President which had previously been 
turned over to Ehrlichman and the Special Prosecutor for use in the 
trial in United States v. Ehrlichman . 

D. Dairy 

In this area of its inquiry, the Committee was investigating the 
relationship between political contributions by certain dairy coopera- 
tives and governmental decisions affecting the dairy industry. On 
March 12, 1971, the Secretary of Agriculture announced his decision 
not to raise milk price supports. (Book VI, 392-93) On March 25, 1971, 
that decision was reversed. (Book VI 768-69) The 18 conversations 
sought by the Committee’s subpoena of June 24, 1974, all occurred 
during the six-day period from March 19 to March 25, 1971. They 
were conversations: (1) between the President and Ehrlichman who, 
as the President’s principal advisor in domestic affairs, participated 
in the White House review of the initial decision not to raise price 
supports (Book VII, 382, 628-71) ; (2) between the President and 
Secretary of the Treasury John Connally, who was present at dis- 
cussions with the President respecting the milk price support issue; 5 
and (3) between the President and Colson, who was one of the 
President’s chief political advisors, the White House liaison with 


5 On July 29, 1974, Connally was indicted for accepting money to influence the decision 
respecting milk price supports. 



202 


the dairy industry, and the person to whom the dairy industry ini- 
tially made a $2,000,000 campaign pledge in 1970. (Book VI, 154-55) 

The failure of the President to produce the recordings of these 
conversations — or even a listing of Presidential meetings and tele- 
phone calls between March 19 and March 25, 1971 — seriously frus- 
trated this area of the Committee’s inquiry. Because of the President’s 
defiance of its subpoenas, the Committee was unable to make a deter- 
mination as to the President’s knowledge or lack of knowledge of, or 
involvement or lack of involvement in, alleged bribery in connection 
with the increase of milk price supports in, March 1971. 

E. ITT and Kleindienst Confirmation Hearings 

The Committee, as part of its inquiry, sought to determine the 
President’s knowledge or lack of knowledge respecting alleged false 
testimony by John Mitchell and Richard Kleindienst about the ITT 
antitrust case during the hearings before the Senate Select Committee 
on Kleindienst’s nomination to be Attorney General. These hearings 
took place in March and April, 1972. 

The 19 conversations for which recordings and related materials 
were subpoenaed by the Committee for this phase of its inquiry took 
place between March 6 and April 5, 1972, while the Kleindienst con- 
firmation hearings were in progress. It is undisputed that Kleindienst 
failed to fully and completely answer questions at the hearings; he 
has pleaded guilty to such a charge in the United States District 
Court for the District of Columbia. (Book V, 966-70) A major issue 
for the Committee was the President’s knowledge of his conduct. The 
recordings which the Committee sought but did not obtain would have 
shed light on this question, for the conversations involve the President 
and Haldeman, Ehrlicliman, Colson and Mitchell, all of whom played 
roles in connection with Kleindienst’s confirmation hearings. 



UNTRUSTWORTHINESS OF EDITED TRANSCRIPTS 
PRODUCED BY THE PRESIDENT 

In response to the Committee’s eight subpoenas for recordings and 
materials related to 147 conversations, the President has produced 
edited transcripts of 33 conversations. Upon examination, it was 
found that in numerous instances the transcripts were untrustworthy. 

The Committee was able to determine the unreliability of the tran- 
scripts because, in addition to releasing edited transcripts of tape 
recordings that the Committee did not have, the President released 
to the public eight edited transcripts of tape recordings that the Com- 
mittee did have: namely, recordings of conversations primarily be- 
tween the President and John Dean on September 15, 1972, Febru- 
ary 28, 1973, March 13, 1973, March 21. 1973 (two conversations), 
March 22, 1973 and April 16, 1973 (two conversations) . 

The Committee’s Impeachment Inquiry Staff carefully prepared its 
own transcripts of each of these eight conversations. The Committee’s 
transcripts were then compared with the edited transcripts of the eight 
conversations made public by the White House on April 30, 1974. The 
eight White House edited transcripts were inaccurate and incomplete 
in numerous respects. 1 Statements were omitted that w T ere on the tape 
recordings; statements were added that were not on the recordings; 
statements were attributed to one speaker when they were made by 
another; statements were denominated as unintelligible when they 
were not; and statements were inaccurately transcribed, some in a 
manner that seriously misrepresented the substance and tone of the 
actual conservation. 

A prime example is in the March 22, 1973 conversation among the 
President, Ilaldeman, Ehrlichman, Mitchell and Dean, in which 
approximately 20 minutes of conversation were omitted from the 
edited White House transcript without notice of a deletion. The 
omitted material included the following exchange :: 

President. . . . But, uh, the, uh, the one thing I don't want to do is to — Now let 
me make this clear. I, I, I thought it was, uh, very, uh,, very cruel thing as it 
turned out — although at the time I had to tell [unintelligible] — what happened to 
Adams. I don’t want it to happen with Watergate — the Watergate matter. I think 
he made a, made a mistake, but he shouldn’t have been sacked, he shouldn’t 
have been — And, uh, for that reason, I am perfectly willing to — I don’t give a 
shit what happens. I want you all to stonewall it, let them plead the Fifth Amend- 
ment, cover-up or anything else, if it’ll save it — save the plan. That’s the whole 
point. On the other hand, uh, uh, I would prefer, as I said to you, that you do it 


1 The Committee’s stnff ha^ prepared a detailed written comparison of the Com- 
mittee’s transcripts and the White House edited transcripts. That document has been 
published as a separate Committee print. It contains comparisons of 65 passages in the 
edited transcripts of the 8 conversations the President delivered to the Committee and 
released to the public on April 30, 1974 and the same passages as transcribed by the 
Committee’s inquiry staff. It does not purport to reflect all the differences between the 
157° mu? of transcripts. It does demonstrate beyond question that in numerous instances 
the White House edited transcripts do not accurately portray the substance or the tone 
or the conversations. 


( 203 ) 



204 


the other way. And I would particularly prefer to do it that other way if it’s 
going to come out that way anyway. And that my view, that, uh, with the num- 
ber of jackass people that they’ve got that they can call, they’re going to — The 
story they get out through leaks, charges, and so forth, and innuendos, will be 
a hell of a lot worse than the story they’re going to get out by just letting it out 
there. 

Mitchell. Well — 

President. I don’t know. But that’s, uh, you know, up to this point, the whole 
theory has been containment, as you know, John. 

Mitchell. Yeah. 

President. And now, now we’re shifting. As far as I’m concerned, actually 
from a personal standpoint, if you weren’t making a personal sacrifice — it’s un- 
fair — Haldeman and Dean. That’s what Eisenhower — that’s all he cared about. 
He only cared about — Christ, “Be sure he was clean.” Both in the fund thing 
and the Adams thing. But I don’t look at it that way. And I just — That’s the 
thing I am really concerned with. We’re going to protect our people, if we can. 
[HJCT 183] 

There are other bases for distrusting the accuracy and completeness 
of the White House transcripts. The notation “Material Unrelated to 
Presidential Actions Deleted” appears at a number of places in the 
transcripts. No explanation has ever been given to the Committee by 
the President or his counsel as to what this notation means or why 
this material was deleted. Some of the notations appear at places in 
the edited transcripts where, considering what precedes and follows 
the excision, it is difficult to believe that the omitted conversation is 
not relevant. 

It can be demonstrated, that at least to some extent, this disbelief is 
warranted. As a result of the Supreme Court decision on July 24, 1974, 
in United States v. Nixon , the White House turned over to the District 
Court tapes of 20 conversations for which edited transcripts had been 
made public on April 30. Under the Supreme Court decision, the White 
House is entitled to interpose in the District Court claims of privilege 
with respect to any portions of the conversations not relevant to the 
Watergate matter. The White House did not interpose any claim of 
privilege with respect to at least seven instances in these 20 conversa- 
tions where the notation “Material Unrelated to Presidential Actions 
Deleted” had been used in the edited transcripts delivered to the 
Committee. 

Other evidence continues to emerge that the edited transcipts sup- 
plied by the President were incomplete and that portions of conver- 
sations were omitted. For example, as a result of the Supreme Court 
decision, the White House was compelled to inform Judge Sirica that 
the tape of an April 17, 1973 conversation between the President, 
Haldeman and Ehrlichman from 3 :50 to 4 :35 p.m. contained a gap of 
approximately 5 minutes. The edited transcript of that conversation 
delivered to the Committee contains no indication that there is any 
such gap. 

The March 17, 1973 conversation between the President and John 
Dean (which was sought by the Committee in its April 11 subpoena) 
lasted approximately 45 minutes. The President on April 30, 1974 
provided the Committee with a 4-page edited transcript relating only 
to the Fielding break-in. There was no discussion of the Watergate 
matter reflected in that transcript. However, a description of that 
March 17 conversation supplied in June, 1973, by J. Fred Buzhardt, a 
White House counsel, to minority staff members of the Senate Select 



205 


Committee on Presidential Campaign Activities, reflected that there 
was extensive discussion of the Watergate matter during that con- 
versation. Furthermore, the Committee has in its possession a June 4, 
1973 tape recording that includes a conversation between the Presi- 
dent and Konald Ziegler. In the course of that conversation, the Presi- 
dent — who had just listened to a tape of the March 17 conversation — 
described it to Ziegler. The President stated that on March 17, he 
discussed the Watergate matter with Dean and that after it was stated 
that Magruder had “put the heat on” and Sloan started blaming 
Haldeman, the President told Dean that “we’ve got to cut that off. 
We can’t have that go to Haldeman.” 

Moreover, on July 31, 1974, a tape recording of the entire March 17, 
1973 conversation was delivered to Judge Sirica as a result of the 
decision in United States v. Nixon, No claim of privilege was made by 
the White House with respect to any portion of that conversation. 
Thus, the White House has acknowledged that the major portions of 
that 45-minute conversation that are not reflected in the 4-page edited 
transcript supplied to the Committee on April 30, 1974, are in fact 
relevant to the Watergate matter. Yet, despite the Committee’s 
April 11, 1974 subpoena, the President did not produce the remainder 
of the March 17 conversation. 

There are other circumstances that raise questions about the re- 
liability of the White House edited transcripts. For example, in re- 
sponse to a subpoena of the recording of a March 27, 1973, conversation 
with Haldeman, Ehrlichman and Ziegler which lasted 140 minutes, 
the President submitted an edited transcript of only 70 pages, with 8 
deletions (of unspecified duration) characterized as “Material Unre- 
lated to Presidential Actions.” In response to a subpoena of the re- 
cording of an April 17, 1973, conversation with Haldeman, Ehrlich- 
man and Ziegler, which lasted 45 minutes, the President submitted an 
edited transcript of only 19 pages, with no acknowledged deletions. 

In sum, not only has the President failed to comply with the terms 
of the Committee’s subpoenas— not only has the Committee failed to 
receive a single recording in response — but the minimal submission 
that the President has made, the 33 edited transcripts, has proven 
to be untrustworthy. These edited transcripts do not accurately and 
completely reflect the conversations that they purport to transcribe. 



THE CLAIM OF EXECUTIVE PRIVILEGE 

As early as 1796, it was stated on the floor of the House that the 
power of impeachment “certainly implied a right to inspect every 
paper and transaction in any department, otherwise the power of im- 
peachment could never be exercised with any effect.” 2 Similarly, in 
Kilboum v. Thompson , 103 U.S. 168, 190 (1881), the Supreme Court 
stated : 

The House of Representatives has the sole right to impeach officers of the 
government, and the Senate to try them. Where the question of such impeach- 
ment is before either body acting in its appropriate sphere on that subject, we see 
no reason to doubt the right to compel the attendance of witnesses and their 
answers to proper questions, in the same manner and by the use of the same 
means, that courts of justice can in like cases. 

Throughout our history this power of inquiry has been recognized 
as essential to the impeachment power. 

Before the current inquiry, sixty-nine Federal officials had been the 
subject of impeachment investigations. With the possible exception of 
one minor official who invoked the privilege against self -incrimina- 
tion, 3 not one of them challenged the power of the committee conduct- 
ing the impeachment investigation to compel the production of evi- 
dence it deemed necessary. 

In 1867 the Committee on the Judiciary conducted the initial in- 
quiry concerning the impeachment of President Andrew Johnson. 
Hearings were held over a period of eleven months. Records were re- 
quested and obtained from a number of executive departments and 
from the Executive Mansion itself. Cabinet officers and Presidential 
aides were questioned in detail about cabinet meetings and private con- 
versations with the President. The Commitee examined the circum- 
stances leading to a number of presidential decisions, including the 
prosecution of Jefferson Davis, presidential pardons, the issuance of 
executive orders, the conduct of Reconstruction and the vetoing of 
legislation. 4 


2 5 Annals of Congress 601 (1796). 

In 1848, in a dispute with President Tyler about the production of documents (which 
he ultimately provided), for a legislative investigation, a House Committee said: 

“The House of Representatives has the sole power of impeachment. The President himself 
in the discharge of his most independent functions, is subject to the exercise of this power — 
a power which implied the right of inquiry on the part of the House to the fullest and most 
unlimited extent. ... If the House possess the power to impeach, it must likewise possess 
all the incidents of that power — the power to compel the attendance of all witnesses and the 
production of all such papers as may be considered necessary to prove the charges on which 
the impeachment is founded. If it did not, the power of impeachment conferred upon it by 
the Constitution would be nugatory. It could not exercise it with effect.” 

H. Rep. No, 271, 27th Cong., 3d Sess., 4-6. Excerpts from this report are printed in 3 Hind’s 
Precedents of the House of Representatives, § 1885 at 181-86 (1907) (hereinafter cited as 
Hind’s Precedents ) . 

3 In 1879, a House committee reported articles of impeachment against George Seward, 
former consul general of Shanghai. One article alleged that Seward had concealed and 
refused to deliver certain records to the Committee. H. Rep. No. 134, 45th Cong., 3d Sess. 
(1879). The House adjourned without acting on this recommendation. Another committee of 
the House considered the separate question of whether Seward was in contempt of the 
House. It refused to recommend a contemnt citation finding that he had validly invoked the 
privilege against self-incrimination. See H. Rep. No. 141, 45th Cong., 3d Sess. (1879) ; also 
printed in 3 Hind’s Precedents § 1699 at 56-70. 

4 See, generally, Reports of Committees, Impeachment Investigation, 40th Cong., 1st 
Sess. 183-578 (1867). 


( 206 ) 



207 


One witness in the hearings, Jeremiah Black, an adviser to Presi- 
dent Johnson who later served as one of his counsel in his impeach- 
ment trial, did protest against being asked to disclose a conversation 
between himself and the President regarding the preparation of a 
veto message. Black recognized, however, that he was bound to disclose 
the conversation if the Committee pressed the issue (which it did) 
and he acknowledged that “a witness sworn to testify before any tri- 
bunal is bound in conscience to answer a question which that tribunal 
declares he ought to answer; that he is himself not the judge of what 
he ought to answer and what he ought not.” 5 Black and other wit- 
nesses answered detailed questions on the opinions of the President, 
statements made by the President, and advice given to the President. 
There is no evidence that Johnson ever asserted any privilege to pre- 
vent disclosure of presidential conversations to the Committee, or 
failed to comply with any of the Committee’s requests. 6 

This uniform historical practice has been acknowledged in the 
statements of various Presidents. 7 The clearest instance is that of 
James Polk. He protested a legislative investigation being conducted 
by a House committee, but, in his message to the House, Polk “cheer- 
fully admitted” the right of the House to investigate the conduct of 
all government officers with a view to the exercise of its impeachment 
power. “In such a case,” he wrote: 

the safety of the Republic would be the supreme law, and the power of the 
House in the pursuit of this object would penetrate into the most secret recesses 
of the Executive Departments. It could command the attendance of any and 
every agent of the Government, and compel them to produce all papers, public 
or private, official or unofficial, and to testify on oath to all facts within their 
knowledge .... If the House of Representatives, as the grand inquest of the 
nation, should at any time have reason to believe that there has been malversa- 
tion in office by an improper use of application of the public money by a public 
officer, and should think proper to institute an inquiry into the matter, all the 
archives and papers of the Executive Departments, public or private, would be 
subject to the inspection and control of a committee of their body and every 
facility in the power of the Executive be afforded to enable them to prosecute 
the investigation . 8 

It is against this historical background that President Nixon refused 
to comply with the Committee’s subpoenas. He invoked a claim of 
“executive privilege” and said it was based on two grounds: (1) the 
need to preserve the separation of powers, and (2) the need to protect 
the confidentiality of Presidential conversations. In his letter of 
June 9, 1974 to Chairman Rodino, the President wrote that his refusal 
to comply with further Committee subpoenas was based in part on his 
study to “preservfe] the principle of the separation of powers — and 


J it. it L .2 t . 

6 There Is evidence of President Johnson’s views concerning the investigation, which 
relates to whether his personal bank records should be produced for the Committee. The 
cashier of the bank, who was reluctant to produce the records “upon the general principle of 
never imparting any information to outsiders in regard to the business of our customers.” 
had told President Johnson of the request. The cashier reported to the Committee that the 
President made no objection to t^e production of the records: 

“He smiled, and said he had no earthly objection to have any of his transactions looked 
into ; that he had done nothing clandestinely, and desired me to show them anything I had 
relating to his transactions.” Id. at 182^83. 

7 See, e.g., statements by Buchanan (5 Richardson, Messages and Papers of Presidents 
615 (1896) (hereinafter cited as Richardson)) : Grant (7 Richardson at 362) ; Cleveland 
(Id. at 4964) ; and Theodore Roosevelt (The Letters of Archie Butt, Military Aide to Presi- 
dent Roosevelt 305 (Abbot ed.) ). 

8 H.R. Jour., 29th Cong., 1st Sess., 693 (1846) ; 4 Richardson, 434-35 (1896). 


37-777 0 - 74-14 



208 


of the executive as a co-equal branch.” And in his May 22, 1974 letter, 
the President wrote that providing recorded conversations in response 
to the Committee’s subpoenas would constitute “such a massive inva- 
sion into the confidentiality of Presidential conversations that the 
institution of the Presidency itself would be fatally compromised.” 

A similar claim of executive privilege was advanced by the President 
in the criminal proceedings arising out of the Watergate cover-up. 
On October 12, 1973, the Court of Appeals for the District of Columbia 
in Nixon v. Sirica rejected that claim ; the President decided not to seek 
Supreme Court review of that decision. On July 24, 1974, the Supreme 
Court in United States v. Nixon also rejected this claim. The Court 
unanimously held: (1) if the President invokes executive privilege as 
a bar to producing evidence in a criminal prosecution, it is ultimately 
for the courts and not the President to determine the application of 
that privilege; and (2) the generalized assertion of privilege would 
not prevail when weighed against the “legitimate needs of the judicial 
process.” 

Both of these holdings confirm the rejection by this Committee of 
the claim of executive privilege interposed by the President to its 
subpoenas. 

A. The Merits of the Claim 

The Supreme Court in United States v. Nixon held that the interest 
in preserving separation of powers was not a sufficient basis for sustain- 
ing the claim of executive privilege when it was interposed as a basis 
for withholding relevant and necessary information from, a criminal 
prosecution. The Court stated that the separation of powers must not 
be permitted to interfere with “the primary constitutional duty of 
the Judicial Branch to do justice in criminal prosecutions.” The Court 
added that to permit such interference 

would plainly conflict with the function of the courts under Art. III. In designing 
the structure of our Government and dividing and allocating the sovereign power 
among three coequal branches, the Framers of the Constitution sought to pro- 
virde a comprehensive system, but the separate powers were not intended to 
operate with absolute independence. (Slip Opinion at 22) 

It is even clearer that the doctrine of separation of powers cannot 
justify the withholding of information from an impeachment inquiry. 
The very purpose of such an inquiry is to permit the legislative branch, 
acting on behalf of the people, to curb the excesses of another branch, 
in this instance the Executive. 

The records of the Constitutional Convention establish that the im- 
peachment process was considered by the Framers almost exclusively 
in terms of the removal of the executive; and that it was written into 
the Constitution despite repeated arguments by its opponents that it 
would violate the separation of powers and make the President overly 
dependent on Congress. Charles Pinckney asserted in the major de- 
bate on impeachment of the executive that, if the legislature had the 
power, they would hold impeachment “as a rod over the Executive 
and by that means effectually destroy his independence.” Rufus King 
argued that impeachment by the legislature violated the separation of 
powers and would be “destructive of [the executive’s] independence 
and of the principles of the Constitution.” These arguments were de- 
cisely rejected by the Constitutional Convention, which voted eight 



209 


states to two to make the executive impeachable by the legislature. 
This was clone because, as George Mason stated, “No point is of more 
importance than that the right of impeachment should be continued.” 9 

Alexander Hamilton confirmed that the doctrine of separation of 
powers was never intended to act as a limitation on the exercise of the 
impeachment power. He wrote in The Federalist that the “true mean- 
ing” of separation of powers is “entirely compatible with a partial in- 
termixture” of departments for special purposes. This “partial inter- 
mixture,” he wrote, “is even, in some cases, not only proper but neces- 
sary to the mutual defense of the several members of the government 
against each other.” According to Hamilton, the “powers relating to 
impeachment” are such a case — “an essential check” in the hands of the 
legislature “upon the encroachment of the executive.” 10 

President Nixon also stated that in invoking “executive privilege” 
he was relying on the need to protect the confidentiality of Presi- 
dential conversations. The Supreme Court in Untied States v. Nixon 
stated that despite the absence of an explicit reference in the Constitu- 
tion to a presidential privilege of confidentiality, “to the extent this in- 
terest relates to the effective discharge of a President’s powers, it is 
constitutionally based.” (Slip Opinion at 26) Nonetheless, the Court 
concluded that: 

[WJhen the ground for asserting privilege as to subpoenaed materials sought 
for use in a criminal trial is based only on the generalized interest in confi- 
dentiality, it cannot prevail over the fundamental demands of due process of 
law in the fair administration of criminal justice. The generalized assertion 
of privilege must yield to the demonstrated, specific need for evidence in a pend- 
ing criminal trial. ( Slip Opinion at 28) . 

In the Committee’s impeachment inquiry the President has similarly 
asserted only a generalized interest in confidentiality, and the Commit- 
tee (which has subpoenaed, among other items, the same conversa- 
tions as the Special Prosecutor) has clearly and overwhelmingly dem- 
onstrated a specific need for the evidence sought. If a generalized 
Presidential interest in confidentiality cannot prevail over “the funda- 
mental demand of due process of law in the fair administration of 
justice,” neither can it be permitted to prevail over the fundamental 
need to obtain all the relevant facts in the impeachment process. What- 
ever the limits of legislative power in other contexts — and whatever 
need may otherwise exist for preserving the confidentiality of Presi- 
dential conversations — in the context of an impeachment proceeding 
the balance was struck in favor of the power of inquiry when the im- 
peachment provision was written into the Constitution. And this is 
particularly true when, as in this case, the power to compel the pro- 
duction of evidence from the President was exercised by the Com- 


9 2. The Records of the Federal Convention 63-69 (M. Farrand ed. 1911). The constitu- 
tional exception to the President’s pardon power, that it should not extend to cases of 
impeachment, provides additional support for the argument that he cannot seek to impede 
the House in the exercise of its sole power to impeach. Justice Story wrote, “The power of 
impeachment will generally be applied to persons holding high office under the government ; 
and it is of great consequence, that the President should not have the power of preventing a 
thorough investigation of their conduct, or of securing them against the disgrace of a public 
conviction by impeachment, if they should deserve it. The Constitution has, therefore, wisely 
interposed this check upon his power, so that he cannot, by any corrupt coalition with 
favorites, or dependents in high offices, screen them from punishment.” 2 J. Storv, Com- 
mentaries on the Constitution of the United States § 1501 at 363 (3rd ed. 1858) (herein- 
after cited as Story). See also, 1 Kent, Commentaries on American Law. Lect. XIII at 184 
(6th ed. 1848). 

10 “The Federalist,” No. 66 at 429-30 (Modern Lib. ed.). 



210 


mittee only after it had other evidence pointing to the existence of 
grounds for impeachment. 

The President’s statements that the institution of the Presidency is 
threatened when he is required to comply with a subpoena in an im- 
peachment inquiry exaggerate both the likelihood of such an inquiry 
and the threat to confidentiality from it. Only two Presidents (includ- 
ing President Nixon) out of thirty-seven have ever been the subject 
of impeachment investigations. It can scarcely be contended that the 
far-reaching inquiry into the deliberations between President Andrew 
Johnson and his cabinet appointees and aides resulted in any impedi- 
ment of the communications between Presidents and their advisors. 
There is no more reason to believe that this impeachment inquiry 
will have that effect. 

For these reasons, the Committee concluded that the President’s 
unprecedented claim of executive privilege in an impeachment inquiry 
was without merit. 

B. The Inappropriateness of Seeking Judicial Enforcement of 
the Committee Subpoenas 

The Committee concluded that it would be inappropriate to seek 
the aid of the courts to enforce its subpoenas against the President. 11 
This conclusion is based on the constitutional provision vesting the 
power of impeachment solely in the House of Representatives and the 
express denial by the Framers of the Constitution of any role for the 
courts in the impeachment process. 

The initial proposals considered by the Constitutional Convention 
in 1787 called for the national judiciary to try impeachments of na- 
tional officers. Late in the Convention, this arrangement was altered, 
to provide for trial in the Senate. James Madison argued for trial by 
a tribunal of which the Supreme Court formed at least a part, con- 
tending that trial by the Senate, upon an impeachment by the House 
of Representatives, made the President “improperly dependent” on the 
legislature. Madison’s position, however, was decisively rejected by the 
Convention. 12 In support of the Convention’s decision to exclude the 
Supreme Court from the trial of impeachments, Justice Joseph Story 
wrote that political representatives, not judges, must control the im- 
peachment process, both to assure its proper functioning and to pro- 
tect the courts. He noted: 

Whatever shall have a tendency to secure in tribunals of justice, a spirit of 
moderation and exclusive devotion to juridicial duties is of inestimable value. 
What can more surely advance this object than the exemption of them from all 
participation in, and control over, the acts of political men in their official duties . 13 

The Committee’s determination not to seek to involve the judiciary 
reflected not only an intent to preserve the constitutional structure, but 
also the high probability that the courts would decline to rule on the 


11 The President has also expressly disclaimed any interest in involving the courts 
in the Impeachment process. During the oral argument in United States v. Nixon , Mr. St. 
Clair, the President’s attorney, stated that “under the Constiution, as we view it, only 
the legislature has the right to conduct Impeachment proceedings. The courts have been, 
from the history Involved and from the language of .the provisions, excluded from that 
function.” Oral Argument on Behalf of the President by James D. St. Clair, United 
States v. Nixon , Transcript at 49 (July 8, 1974). 

13 The Records of the Federal Convention , 550-53 (M. Farrand ed. 1911). 

13 1 Story § 764-66 at 532-33. 



211 


merits of the case because it is non justiciable — that is, not “the kind of 
controversy courts traditionally resolve.” 14 

As the Supreme , Court said in Marburg v. Madison, 5 U.S. (1 
Cranch) 137, 177 (1803), and most recently reaffirmed in United States 
v. Nixon , Slip opinion at 18, “it is emphatically the province and the 
duty of the judicial department to say what the law is.” In Marburg v. 
Madison , however, Chief Justice Marshall also said : 

The province of the court is, solely, to decide on the rights of individuals, not 
to inquire how the executive or executive officers perform duties in which they 
have a discretion. Questions in their nature political, or which are, by the consti- 
tution and laws, submitted to the executive, can never be made in this court. 
(5 U.S. (1 Cranch) at 170.) 

The impeachment power is explicitly vested in the House of Repre- 
sentatives by the Constitution ; its use necessarily involves the exercise 
of discretion by the House. While it is true that the courts may on 
occasion act as an umpire between Congress and the President, there 
are also many issues where the courts will decline to intervene because 
the question is one that has been constitutionally submitted to another 
branch. 15 

The applicable criteria of non justiciability — the “political question” 
doctrine — -were stated by the Supreme Court in Baker v. Carr , 360 U.S. 
186, 217 (1962) : 

[A] textually demonstrable constitutional commitment of the issue to a co- 
ordinate political department ; or a lack of judicially discoverable and manage- 
able standards for resolving it, or the impossibility of deciding without an initial 
policy determination of a kind clearly for nonjudicial discretion ; or the impos- 
sibility of a court’s undertaking independent resolution without expressing lack 
of the respect due coordinate branches of the government ; or an unusual need 
for unquestioning adherence to a political decision already made ; or the poten- 
tiality of embarrassment from multifarious pronouncements by various depart- 
ments on one question. 

Litigation on the Committee’s subpoenas would appear to be non- 
justiciable on the basis of at least three of the criteria enumerated in 
Baker v. Carr. First, there is no question that there is a “textually 
demonstrable constitutional commitment of the issue” — the extent of 
the power of inquiry in an impeachment proceeding — to the House of 
Representatives. Second, if a court were to resolve the question inde- 
pendently, it could not escape “expressing lack of the respect due [a] 
coordinate [branch] of government.” Third, there is a significant 
“potentiality of embarrassment from multifarious pronouncements by 
various departments on one question.” 


14 United States v. Nirxon. Slip Opinion at 12. It also questionable whether the courts 
would have subject matter jurisdiction over a suit by the Committee to enforce its subpoenas 
again the President. Existing statutes governing he jurisdiction of the federal courts provide 
at most an uncertain basis for litigation of this type. The Senate Select Committee on 
Presidential Campaign Activities, which subpoenaed tape recordings from the President 
for its legislative inquiry, required special legislation providing jurisdiction for court 
adjudication of its subpoenas. Pub. L. No. 93—190 (1973) ; Senate Select Committee v. 
Nixon, 366 F. Supp. 51 (D.D.C. 1973). Thus, in order to seek a court adjudication of 
its subpoenas, the Committee might well have needed affirmative legislative action by the 
Senate, as well as the House — -including, if necessary, a two-thirds vote of each to override 
a nresidential veto. Furthermore, the constitutionality of such legislation could be ques- 
tioned, since it might be thought to impinge upon the impeachment power vested solely in 
the House. 

35 In United States v. Nixon, the Court recognized that powers vested in one branch 
of government cannot be shared with another: “(T]lie ‘judicial power of the United 
States’ vested in the federal courts by Art. Ill, 8 1 can no more be shared with the 
Executive Branch than the Chief Executive, for example, can share with the Judiciary 
the veto power, or the Congress share with the Judiciary the power to override a presi- 
dential veto.” Slip opinion at 19. 



212 


In deciding upon the validity of subpoenas in an impeachment in- 
quiry, the court would necessarily have to determine whether the sub- 
poenaed material was reasonably relevant to the inquiry. This, in 
turn, would lead it to pass, at least implicitly, on the scope of consti- 
tutional grounds for impeachment. While it may be argued that any 
judicial determination of the scope of impeachable offenses would 
not be binding upon either the House or the Senate in deciding whether 
to impeach or convict after trial, there is an obvious potential for con- 
flict between “various departments on one question.” Inevitably, there 
would be a serious impairment of the confidence of the people in the 
legitimacy of the impeachment process if the court’s definition varied 
from those adopted by the House or the Senate in any significant 
respect. 

The courts, moreover, do not have adequate means for enforcing a 
decision with respect to the validity of the subpoenas. The usual 
means of court enforcement, contempt, would be unavailing against 
a defiant President. The court would have to rely on impeachment 
to deal with noncompliance with its order requiring the President to 
surrender material in accordance with the subpoenas. 

An asserted advantage of a court decision affirming the validity of 
of the subpoenas is that it would be an independent determination 
by an entity with no interest in the proceedings. But the impeachment 
process itself provides an opportunity for such a determination — ini- 
tially by the House in deciding whether to prosecute the Article of 
Impeachment, and, ultimately, by the Senate, the tribunal for an 
impeachment trial. Neither the Committee nor the House would be 
the final judge of the validity of the Committee’s subpoenas. Whether 
noncompliance with the subpoenas is a ground for impeachment would 
ultimately be adjudicated in the Senate. 

# Unless noncompliance is a ground for impeachment, there is no prac- 
tical way to compel the President to produce the evidence that is nec- 
essary for an impeachment inquiry into his conduct, nor any means 
of assuring that the extent of the House’s power of inquiry in an im- 
peachment proceeding may be adjudicated and clarified. In the unique 
case of subpoenas directed to an incumbent President, a House ad- 
judication of contempt would be an empty and inappropriate for- 
mality. 16 As the Supreme Court said in United States v. Nixon , in 
refusing to require a contempt citation against the President before 
the matter could be appealed, “the typical contempt avenue ... is 
peculiarly inappropriate due to the unique setting in which the ques- 
tion arises.” (Slip opinion at 12) No typical contempt sanction could 
be applied to the President to coerce compliance. In the final analysis, 
reliance would have to be placed on the impeachment power. 


10 The President was put on notice of the possible consequences of his failure to comply 
with Committee subpoenas by letter from Chairman Rodino dated May 30, 1972 (approved 
by a vote of 28 to 10). And he responded at length — by letter dated June 9, 1974 — setting 
forth his justifications for failing* to comply. In addition, the President would have an 
opportunity to be heard in defense in the Senate trial before the imposition of any sanction 
(in the case of impeachment, removal from office upon conviction). This procedure fully 
meets the due process requirements for legislative contempt proceedings, which consist of 
“reasonable notice of a charge of an opportunity to be heard in defense before punishment. 
. . .” Groppi v. Leslie , 404 U.S. 496, 502 (1972). 



CONCLUSION 


The undisputed facts, historic precedent, and applicable legal prin- 
ciples support the Committee’s recommendation of Article III. There 
can be no question that in refusing to comply with limited, narrowly 
drawn subpoenas — issued only after the Committee was satisfied that 
there was other evidence pointing to the existence of impeachable 
offenses — the President interfered with the exercise of the House’s 
function as the “Grand Inquest of the Nation.” Unless the defiance of 
the Committee’s subpoenas under these circumstances is considered 
grounds for impeachment, it is difficult to conceive of any President 
acknowledging that he is obligated to supply the relevant evidence 
necessary for Congress to exercise its constitutional responsibility 
in an impeachment proceeding. If this were to occur, the impeachment 
power would be drained of its vitality. Article III, therefore, seeks to 
preserve the integrity of the impeachment processs itself and the 
ability of Congress to act as the ultimate safeguard against improper 
presidential conduct. 


(213) 




OTHER MATTERS 




PROPOSED ARTICLE ON CONCEALMENT OF INFORMA- 
TION ABOUT BOMBING OPERATIONS IN CAMBODIA 


On July 30, 1974, the Committee considered a proposed Article of 
Impeachment dealing with the unauthorized bombing of Cambodia 
and the concealment from the Congress of that bombing: 

In his conduct of the office of President of the United States, Richard M. Nixon, 
in violation of his constitutional oath faithfully to execute the office of President 
of the United States and, to the best of liis ability, preserve, protect, and defend 
the Constitution of the United States, and in disregard of his constitutional duty 
to take care that the laws be faithfully executed, on and subsequent to March 17, 
1969, authorized, ordered, and ratified Hie concealment from the Congress of the 
facts and the submission to the Congress of false and misleading statements 
concerning the existence, scope and nature of American bombing operations in 
Cambodia in derogation of the power of the Congress to declare w r ar, to make 
appropriations and to raise and support armies, and by such conduct warrants 
impeachment and trial and removal from office. 

The Committee, by a vote of 26 -12, decided not to report the pro- 
posed Article to the House. 

The article charged that the President had concealed the bombing 
in Cambodia from the Congress and that he had submitted, personally 
and through his aides, false and misleading statements to the Congress 
concerning that bombing. The investigation of those allegations cen- 
tered upon the initial decision to bomb Cambodia ; the type, scope, 
extent and nature of the bombing missions ; the reporting and record- 
ing system used internally within the military and the Administra- 
tion ; and the statements made by Administration officials to Congress 
and to tlie public both during the military operation and after it had 
ceased. 1 

On February 11, 1969, the President received the initial request to 
institute the bombing from his military advisors. On March 17, 1969, 
after a series of National Security Council meetings, the President 
approved the request and directed that the operation be undertaken 
under tight security. 

On March 18, 1969, the bombing of Cambodia commenced with B-52 
strikes under the code name MENU OPERATION. These strikes con- 
tinued until May 26, 1970, almost one month after the American in- 
cursion into Cambodia. The operational reports prepared after each 
mission stated that these strikes had taken place in South Vietnam 
rather than in Cambodia. 

Between April 24 and May 24, 1970, American planes conducted 
tactical air strikes in Cambodia under the code name “regular” 
PATIO. No operational reports were made with respect to these 


1 The detailed findings of the Inquiry Staff concerning the bombing of Cambodia are com- 
piled in Book Xl^of the .Statement, of Information. The findings were based upon an exam- 
ination of all available sources of material, including Congressional testimony, classified 
documents made available by Congressional Committees, and reports of public statements 
by the President, civilian and military officials of the Department of Defense, and State 
Department officials. Some classified documents were not made available to the Committee. 

( 217 ) 



218 


strikes. Similarly, prior to June 30, 1970, an unspecified number of 
tactical air strikes occurred in various parts of Cambodia. Again no 
regular reports were prepared. 

On May 14, 1970, a one day series of “special” PATIO sorties were 
conducted, operational reports stated that the strikes had occurred in 
Laos rather than Cambodia. The tactical air sorties with the code name 
“regular” FREEDOM DEAL were accurately reported as having 
occurred in Cambodia. A series of tactical air bombing missions in 
Cambodia called “special” FREEDOM DEAL occurred outside the 
boundaries designated for FREEDOM DEAL bombing, although the 
operational reports indicated otherwise. 

On July 1, 1973, Congress enacted P.L. 93-50 and P.L. 93-52 pro- 
viding for the cessation of all bombing in Cambodia by August 15, 
19 1 3. At that time the bombing had not been formally acknowledged 
by the President or his representatives. 

Later, during the Senate Armed Services Committee hearings on 
the Cambodian bombing, military and Administration officials ex- 
plained that the bombing was not publicized because of the delicate 
diplomatic and military situation in Southeast Asia prior to the Amer- 
ican incursion into Cambodia. They stated that it was their under- 
standing that Cambodia's ruler, Prince Sihanouk, had privately agreed 
to the bombing of Cambodia prior to his overthrow. It was further 
stated that certain Membei-s of Congress had been informed of the 
military action and that this constituted sufficient notice to Congress 
of the President’s military decision. Finally, the submission of false 
data to Congress was said to have resulted from the highly classified 
nature of the accurate bombing statistics. 

The Committee considered the views of the supporters of this pro- 
posed Article of Impeachment that the President’s conduct constituted 
ground for impeachment because the Constitution vests the power to 
make war in Congress and implicitly prohibits the Executive from 
waging an undeclared war. Stating that impeachment is a process 
for redefining the powers of the President, the supporters argued that 
the President, by issuing false and misleading statements, failed to 
provide Congress with complete and accurate information and thereby 
prevented Congress from responsibly exercising its powers to declare 
war, to raise and support armies, and to make appropriations. They 
stated that informing a few selected members of the Congress about 
the Cambodian bombing did not constitute the constitutionally re- 
quired notice, particularly inasmuch as the President’s contem- 
poraneous public statements were contrary to the facts and the selected 
Members were committed to a course of action involving war that 
did not represent the views of a substantial portion of American 
citizens. The supporters also stated that Congress had not ratified the 
President’s conduct through inaction or by its 1973 limitation on 
bombing because Congress did not know of the bombing until after 
it voted the authorization. Finally, they asserted that the technical- 
ities or merits of the war in Southeast Asia, the acquiescence or pro- 
tests of Prince Sihanouk, and the arguably similar conduct of past 
Presidents were irrelevant to the question of President Nixon’s con- 
stitutional accountability in usurping Congress’ war-making and 
appropriations powers. 



219 


The Committee did not agree to the article for a variety of reasons. 
The two principal arguments in opposition to it were that Persident 
Nixon was performing his constitutional duty in ordering the bomb- 
ing and that Congress had been given sufficient notice of the bombing. 
Several Members stated that the President as Commander-in-Chief 
was acting to protect American troops and that other Presidents had 
engaged in similar military activities without prior Congressional 
consent. 1 2 Examining the bombing of Cambodia from the perspective 
of Congressional responsibility, the opponents of the Article con- 
cluded that, even if President Nixon usurped Congressional power, 
Congress shared the blame through acquiescence or ratification of his 
actions. They stated that the President had provided sufficient notice 
of the military actions to Congress by informing key Members. 
^ inally, they said that the passage of the War Powers Resolution in 
1973 mooted the question raised by the Article. 


1 Representative Seiberling also stated that because of the President’s decision not to 
declassify certain materials, such evidence could not he made public or be discussed during 
the Committee's debate. Representative Seiberling said that this prevented the public use 
of certain documents which tied the President into acts of concealment, lie stated that this 
was one of the reasons he opposed the Article. The classified materials which were not 
publicly disclosed are listed on pages 122—23 of Book XI of the “Statement of Information.” 

(HJC Debates, 7/30/74, TK. 1225-26). 



PROPOSED ARTICLE ON EMOLUMENTS ANI) TAX 

EVASION 


On July 30, 1974, the Committee considered the following proposed 
Article : 

In his conduct of the office of President of the United States, Richard M. 
Nixon, in violation of his constitutional oath faithfully to execute the office of the 
President of the United States, and, to the best of his ability, preserve, protect 
and defend the Constitution of the United States, and in violation of his con- 
stitutional duty to take care that the laws be faithfully executed, did receive 
emoluments from the United States in excess of the compensation provided by 
law pursuant to Article II, Section 1, of the Constitution, and did willfully at- 
tempt to evade the payment of a portion of Federal income taxes due and owing 
by him for the years 1969, 1970, 1971, and 1972, in that : 

(1) He, during the period for which he has been elected President, unlawfully 
received compensation in the form of government expenditures at and on liis 
privately-owned properties located in or near San Clemente, California, and 
Key Biscayne, Florida. 

(2) He knowingly and fraudulently failed to report certain income and claimed 
deductions in the years 1969, 1970, 1971, and 1972 on his Federal income tax 
returns which were not authorized by law, including deductions for a gift of 
papers to the United States valued at approximately $576,000. 

In all of this, Richard M. Nixon has acted iu a manner contrary to his trust as 
President and subversive of constitutional government, to the great prejudice 
of the cause of law 7 and justice and to the manifest injury of the people of the 
United States. 

After debate, by a vote of 26 to 12, the Committee decided not to 
report the Article to the House. 

This Article was based upon allegations in two areas. The expendi- 
ture of federal funds on the President’s privately-owned properties 
at San Clemente, California, and Key Biscayne, Florida, was alleged 
to constitute a violation of Article II, Section 1, Clause 7, of the Con- 
stitution. That clause reads, “The President shall, at stated Times, 
receive for his Services, a Compensation, which shall neither be in- 
creased nor diminished during the Period for which he shall have been 
elected, and he shall not receive within that Period any other Emolu- 
ment from the United States, or any of them.” The second allegation is 
that the President knowingly and fraudulently failed to report cer- 
tain income and claimed certain improper deductions on his federal 
income tax returns. 

A. Expenditure of Federal Funds on tiie President’s Properties 

Several investigations have been undertaken with regard to the 
amount and propriety of Federal expenditures at or near the Presi- 
dent’s properties in San Clemente, California and Key Biscayne, 
Florida. The House Committee on Government Operations found that 
a total of $17 million had been spent by the Federal Government in 
connection with the President’s properties, including personnel costs, 
communication costs, and amounts expended on adjacent Federal 
facilities. (Book XII, 95) The staff of the Joint Committee on In- 

( 220 ) 



221 


ternal Revenue Taxation found that the President realized more than 
$92,000 in personal income from government expenditures on his prop- 
erties in the years 1969 through 1972. (Book XII, 95) The Internal 
Revenue Service concluded that the President realized more than 
$67,000 in personal income from government expenditures on his prop- 
erties in those years. (Book XII, 95) 

The federal expenditures at San Clemente which were found to be 
primarily for the President’s personal benefit included payments for 
such items as a sewer system, a heating system, a fireplace exhaust 
fan, enlargement of den windows, refurbishing or construction of 
outbuildings, paving, and boundary and structural surveys. (Book 
XII, 101) Expenditures brought into question at Ivey Biscayne in- 
cluded expenditures for such items as the reconstruction of a shuffle- 
board court and the building of a fence and hedge system. (Book XII, 
157) The Government also made significant expenditures for land- 
scape construction and maintenance on both properties. (Book XII, 
101, 157) 

The proponents of this section of the Article argued that the Presi- 
dent, personally and through his agents, supervised the planning 
and execution of non-protective government expenditures at his pri- 
vate homes for his personal enrichment. The opponents maintained 
that a majority of the questionable expenditures were made pursuant 
to a Secret Service request, that there was no direct evidence of the 
President’s awareness at the time of the expenditures that payment for 
these items were made out of public rather than personal funds, and 
that this section of the Article did not rise to the level of an impeach- 
able offense. 


B. Internal Revenue Code Violations 

In examining the President’s income tax returns for the years 1969 
through 1972, the Internal Revenue Service found that his reported 
income should have been increased by more than $230,000 and that 
deductions claimed in excess of $565,000 should be disallowed, for a 
total error in reported taxable income of more than $796,000. (Book 
X, 410-11) The staff of the Joint Committee on Internal Revenue 
Taxation determined that the President’s improper deductions and 
unreported income for that period totaled more than $960,000. (Joint 
Committee Report, 7) Central to the tax section of the proposed 
Article was the charitable deduction claimed by the President for the 
years 1969-1972 for a gift of his private papers claimed to have been 
made to the Government in 1969 which was allegedly worth $576,000. 
(Book X, 348) 

Both the IRS and the Joint Committee staff disallowed this de- 
duction as not having been made on or before July 25, 1969, the last 
day on which a gift of such papers could entitle the donor to a tax 
deduction. (Joint Committee Report, 5; Book X, 410-11) While the 
papers allegedly donated were physically delivered to the National 
Archives on March 27, 1969, they were part of a larger mass of papers, 
and the selection of the papers given was not completed until March 
27, 1970. (Book X, 11-12) The President’s attorneys argued that in 
February 1969, the President told an aide that he wanted to make a 



222 


gift (Book X, 464-65), but no contemporary record of this instruc- 
tion was produced. A deed of gift, signed not by President Nixon but 
by a White House attorney who had no written authority to sign on 
behalf of the President (Book X, 129), w T as not delivered to the 
Archives until April 1970, although on its face it appears to have been 
executed on April 21, 1969. (Book X, 326) The IRS and Joint Commit- 
tee staff investigations established that the deed w T as actually executed 
on April 10, 1970, and backdated to the 1969 date (before the deduction 
cut-off date of July 25, 1969). (Book X, 14—15) It was found that 
through the end of 1969, the National Archives, the donee, thought that 
no gift had been made. (Book X, 282, 284) Finally, even though the 
deed contained restrictions limiting access to the papers, the Presi- 
dent’s 1969 tax return stated that the gift was made without restric- 
tions. (Joint Committee Report, A-297-98 ; Book X, 348) 

The IRS assessed a five percent negligence penalty against the Pres- 
ident. (Book X, 409) An internal IRS memorandum recommending 
against the assertion of a fraud penalty stated that as of late March 
1974 there was not sufficient evidence available to assert such a penalty. 
(Book X, 387) On April 2, 1974 IRS Commissioner Alexander wrote 
to Special Prosecutor Jaworski recommending a grand jury investiga- 
tion into possible violations of law arising out of the preparation of 
the President’s 1969 income tax return. Commissioner Alexander 
stated that the IRS was unable to complete its processing of the matter 
because of the lack of cooperation of some of the witnesses and because 
of many inconsistencies in the testimony of individuals to the IRS. 
(Book X, 404) The Joint Committee staff report did not address the 
question of fraud. (Joint Committee Report, 4) 

The Joint Committee staff did submit questions to the President 
concerning the gift-of-papers deduction and other tax mnttevs. (Book 
X, 416-22) The President did not answer the questions. 

The proponents of this Article argued that the President knew that 
no gift of papers had been made by July 25, 1969, and that the deduc- 
tion was improper. They noted that it was contrary to rational tax 
planning for such a large gift to be made so early in the year. They 
pointed to the President’s personal involvement in a similar gift in 
1968, and memoranda and incidents in 1969 which showed liis inter- 
est in his personal financial affairs in general and the gift-of-papers 
deduction in particular. They referral to the opinion of an expert 
on criminal tax fraud matters that if this were the case of an ordinary 
taxpayer, the case would be referred to a grand jury for prosecution. 
It was argued that the President took advantage of his office in claim- 
ing this unlawful deduction, knowing that the tax return of a Presi- 
dent would receive only cursory examination by the IRS. 

The opponents of the tax fraud section stated that the President had 
not knowingly underpaid his taxes, but relied on attorneys and 
agents ; that the IRS failure to assess a fraud penalty was dispositive ; 
and that even if fraud were shown, the offense of tax evasion did not 
rise to the level of an impeachable off ense. Some who voted against the 
Article were of the opinion that the evidence before the Committee 
did not satisfy the standard of “clear and convincing proof'’ which 
some Members thought applicable. 



223 


Some of the Members who opposed the proposed Article argued 
that, there was no clear and convincing evidence that the President 
had committed tax fraud and stated that the President had not know- 
ingly underpaid his taxes, but rather relied on attorneys and agents. 
Opponents of the proposed Article also asserted that an impeach- 
ment inquiry in the House and trial in the Senate are inappropriate 
forums to determine the President’s culpability for tax fraud, and that 
this kind of offense can be properly redressed through the ordinary 
processes of the criminal law. Finally they argued that even if tax 
fraud were proved, it was not the type of abuse of power at which 
the remedy of impeachment is directed. 


37-777 0 - 74 - 15 






APPENDIX A 

Analysis of the Technical Report on the 18 y 2 Minute Gap 

On November 21, 1973, Chief Judge Sirica was informed by the 
President’s counsel that the tape of a June 20, 1972 conversation be- 
tween the President and Haldeman contained an 18 y 2 minute buzz 
which obliterated the recorded conversation. Subsequently, Judge 
Sirica asked a panel of six technical experts, previously appointed 
by the Judge and endorsed by the Special Prosecutor and the counsel 
for the President, to determine and report on the nature and cause 
of the obliteration of that tape recording that had been supoenaed 
by the Watergate Grand Jury. (Book IX, 871) On January 15, 1974, 
the panel reported the conclusions of its study to Judge Sirica (Book 
IX, 926-28) and on May 31, 1974 the panel’s final report on the EOB 
tape of June 20, 1972 was submitted to the Court. The key conclusions 
of the panel were : 

(1) The Uher 5000 tape recorder used by the President’s secre- 
tary, Rose Mary Woods, to transcribe tapes of Presidential con- 
versations probably produced the lSy 2 minute erasure and buzz?. 

(2) The lSy 2 minutes of erasure and buzz were accomplished 
by at least five, and perhaps as many as nine, contiguous and 
separate operations. 

(3) Erasure and recording of each segment of erasure and buzz 
required manual operat ion of keyboard controls on the Uher 5000 
recorder. (May 1974 Tape Report, 35-36) 

The Uher 5000 tape recorder, as it true of the Sony 800B tape re- 
corder used to record the Presidential conversation, has two magnetic 
“heads,” an erase head and a record head. (The record head performs 
both recording and playback functions.) When the “playback” button 
on the tape recorder is depressed, the erase head is inactive while the 
record head is activated to pick up electronic signals from the magnetic 
tape as the tape is drawn across it. The machine then translates the 
electronic signals into sound. When the “record” button is depressed, 
both the erase head and the record head are activated. The tape is 
drawn first over the erase head where the tape is cleansed of prior 
magnetic signals and then over the record head where new magnetic 
signals, representing the sounds being recorded, are imparted to the 
tape. To erase a tape, the “record” button is depressed but no new 
sounds are introduced into the recording machine; the tape passes 
over the erase head and is erased, and then over the activated but 
silent record head. 

The Uher 5000 machine may be used in conjunction with a foot pedal. 
The pedal is capable only of moving the tape forward at recording 
speed or backward at the higher rewind speed. The foot pedal cannot, 
in effect, depress the “playback” or “record” button ; it cannot activate 
or deactivate either the erase head or the record head. (Thomas Stock- 
ham testimony, In re Grand Jury , Misc. 47-73, 1/15/74, 16) 

( 227 ) 



228 


Whenever the record head is activated by depression of the “record” 
button, it leaves a distinctive “record-head-on” mark on the tape. 
(Richard Bolt testimony, In re Grand Jury , Misc. 47-73. 1/15/74, 
2172) When the “record” button is released, and the erase and record 
heads are deactivated, the electronic pulses dying on those heads leave 
distinctive “erase-head-off” and “record-head-off” marks, respective- 
ly, on the tape. (Thomas Stockliam testimony, In re Grand Jury , 
Misc. 47-73, 1/15/74, 12-13) The “record-liead-on,” “erase-head-off” 
and “record-head-off” marks vary from one type of machine to anoth- 
er, and may be used to help identify the machine on which tapes were 
recorded or erased. 

The panel was able to identify five clear sets of “on” and “off” mark- 
ings Which enabled it to determine that erasure of I8V2 minutes of the 
June 20 conversation was accomplished in at least five different seg- 
ments. (Richard Bolt testimony, In re Grand Jury , Misc. 47-73, 
1/15/74, 8) 

When a segment of erasure is completed, and the machine is re- 
versed and restarted, the “on” and “off” markings of previous era- 
sures may themselves be erased. The panel found four additional 
markings that might have been part of segments of erasure where the 
matching “on” or “off” markings themselves had been erased; the 
panel could not be sure whether these marks were evidence of addi- 
tional segments of erasure. (Thomas Stockham testimony, hire Grand 
Jury , Misc. 47-73, 1/15/74, 21-22) 

The Advisory Panel conducted the following tests and analyses on 
the June 20 tape in reaching its conclusions: 

1. Critical Listening 

The panel played 67 minutes of the evidence tape, including the 
I8I/2 minute buzz, through high quality back-play equipment. Their 
expertise enabled them to identify and clarify significant acoustic 
phenomena on the tape. (May, 4974 Tape Report, 8) 

0. Magnetic Marks 

The tape was treated with a liquid that “developed” the tape, that 
is, rendered visible the magnetic patterns and markings on the tape, 
such as “record-head-on,” “record-head-off,” “erase-head-off,” and “K- 
l^pulse” (see below) marks. (May, 1974 Tape Report, 8-11) 

3. Wave Forms 

When the electrical output of a recorded tape is fed into an oscillo- 
scope, each signal on the tape produces a distinctive wave form. Wave 
form analysis enabled the panel to make a detailed study of the 
significant events on the June 20 tape. The panel scrutinized the wave 
forms of the events that occurred during the 18% minute erasure 
and buzz, and found that the wave form analysis corroborated the 
conclusions drawn from examination of the magnetic marks. (May, 
1974 Tape Report, 11-13) 

/. Spectra of Speech and Buzz 

Through spectral analysis (analyzing the component frequencies 
and amplitudes of sound signals), the panel was able to study the 
differences, similarites, and time of the signals. Through use of a 
chart of the spectral analysis of the 18% minute buzz (a spectro- 
gram), the panel was able to examine “windows” (tiny fragments) of 
original speech, to conclude that the 60 cycles per second power line 
hum was the source of the buzzing sound, and to corroborate the 



229 


evidence of stops and starts indicated by the magnetic marks. (May, 
1974 Tape Report-, 13-16) 

5. Phase Continuity and Speed Constancy 

There is a discernible wave pattern in the power line hum on all 
recorded tape ; this wave pattern will be of a continuous nature until 
the recording is stopped. Each uninterrupted portion is called a phase. 
The panel could determine where the recording mode has been stopped 
and restarted by noting the phase discontinuities. The phase, discon- 
tinuities on the June 20 tape corroborated the “stop” and “start” 
conclusions drawn by the panel from their study of the magnetic 
marks and wave forms. (May, 1974 Tape Report, 16-18, 43) 

6. Flutter Spectra 

The mechanical irregularities in the rotating elements of every tape 
recorder are unique to that machine. Thtfse irregularities produce addi- 
tional tones known as “flutter sidebands,” distinct from the machine’s 
original or “pure” tone. 

The degree of “flutter” can be plotted, and this phenomenon will 
aid in the identification of a particular tape recorder. 

The panel used this test to determine which machine was responsible 
for recording the 18 minute buzz on the tape. (May, 1974 Tape 
Report, 18-20) 

7. Search for Physical Splices 

The panel studied the June 20 tape with an Instrument (an ac- 
celerometer) that could measure and detect any variances in tape thick- 
ness. The panel concluded as a result of their studies, that the tape 
contained no physical splices. (May, 1974 Tape Report, Technical 
Note 13.1 ) 

8 . The K-l Switch 

As further proof that the erasure was caused by manipulation of the 
keyboard, the panel studied evidence of K-l pulses on the tape. 

The Iv-1 switch is an internal mechanical switch. This switch only 
opens and closes as a result of pushing certain keys on the keyboard. 
It cannot be actuated by a malfunction in the electronics of the re- 
corder. It cannot be actuated by the foot pedal. (May, 1974 Tape 
Report, 45) The switch opens and closes as a result of a physical 
latching and unlatching action that only occurs when one of the keys 
is pressed down manually. There are four keys that can close this 
switch : the recording key, the rewind key, the start key, and the for- 
ward key. (May, 1974 Tape Report, Technical Note 8.3) 

K-l switch activity is reflected on the tape by K-l pulses. Because 
of the many other larger transient pulses that are generated by other 
electro-mechanical activity, K-l pulses are difficult to discern. How- 
ever, where a K-l pulse is unambiguously identified, it is an unmis- 
takable sign of manual activity of the keyboard. The expert panel was 
able to identify six distinct K-l pulses. (May, 1974 Tape Report, 
Technical Notes 8.3-8. 5) 

ALTERNATE HYPOTHESES 

A number of alternative hypotheses to the conclusions reached by 
the expert panel were considered and rejected by the panel in arriving 
at its conclusion, including the following: 



230 


Hypothesis No. 1 

That the 18% minute gap was produced on the June 20, 1972 tape 
at the same time that the tape was originally recorded. This hypothesis 
failed because the June 20, 1972 original tape was recorded on a Sony 
800B tape recorder. The experts determined that the 18% minute gap 
was produced by a Uher 5000 tape recorder. (May, 1974 Tape Report, 
Technical Notes 9.1-9.2) 

Hypothesis No. 2 

That the 18% minute obliteration was caused by setting the Uher 
tape recorder in the record mode and operating it in fast rewind. This 
hypothesis was rejected because if the tape had been erased in rewind 
the obliterated section would have had an audible tone of 500 cycles 
when played back at its usual operating speed of 24 millimeters per 
second. However, the frequency that is on the 18% minute gap is the 
normal 60-cycle frequency. This shows that the tape was erased at its 
standard operating speed of 24 millimeters per second. Additionally, 
if the 18% minute buzz had been recorded in rewind, there would have 
been no record and erase-head-otf marks left- on the tape. More than 20 
such marks were found in the obliterated section. (May, 1974 Tape- 
Report, Technical Note 9.2) 

Hypothesis No. S 

The tape was erased through use of the foot pedal. This hypothesis 
was rejected because of the record and erase head signatures that were 
found on the tape; signatures that cannot be made by the foot pedal. 
Second, a distinctive set of magnetic marks is made by the Uher tape 
recorder when stopped and restarted by the foot pedal. None of these 
marks was found on the 18 minute buzz section. Furthermore, six 
K-l pulses were found in the obliterated section. K-l pulses also 
cannot be made by the foot pedal. (May, 1974 Tape Report, Technical 
Notes 9. 2-9.3) 

Hypothesis No. 4 

The distinctive magnetic marks found on the 18% minute gap came 
from a power supply failure within the Uher 5000 machine, i.e ., a de- 
fective diode caused the power supply to sputter on and off, thus 
putting the distinctive marks on the tape while the tape was still mov- 
ing. The experts rejected this hypothesis because they were able to 
determine that the wave forms that would have been produced by this 
sort of activity were not present on the evidence tape. Furthermore, 
if this “sputter” activity had taken place, there would be no phase 
discontinuity following the record-head-on marks. The evidence tape 
shows phase discontinuity and erase head signatures associated with 
the record-head-on marks. Additionally, there are K-l pulses found 
on the tape that could only be caused manually. (May, 1974 Tape 
Report, Technical Notes 9.3-9.5) 

Hypothesis No. 5 

Voltage irregularities on the AC power line working in conjunction 
with the failing diode of the bridge rectifier caused the distinctive mag- 
netic marks. A voltage drop sufficient to put these marks in the tape 
would have caused a drop in motor speed with a resulting differen- 



231 


tial in tone frequency. There was no evidence of this on the evidence 
tape. Moreover, a drop in voltage could not cause the recording of 
K-l pulses. (May, 1974 Tape Report, Technical Notes 9.6-9.8) 

THE STANFORD RESEARCH INSTITUTE REPORT OF MAY 31, 1974 

Dr. Michael Hecker of the Stanford Research Institute conducted 
experiments for the Special Counsel to the President with regard to 
the June 20, 1972 tape. It should be noted that while Dr. Hecker re- 
viewed experiments and held a number of conferences with the expert 
panel, he never studied the June 20, 1972 tape directly. (SRI Report) 
Dr. Hecker reviewed the findings of the expert panel and stated that 
he agreed with the panel’s approach and agreed with the panel’s 
expertise. Dr. Hecker stated further that he was in substantial agree- 
ment with the panel’s final report. (SRI Report 3) The Stanford Re- 
search Institute found evidence that there had been manual manipula- 
tion of the keyboard controls of the Uher 5000 tape recorder in order 
to cause some portions of the 181/2 minute gap. The Stanford Research 
Institute studied and rejected all the alternative hypotheses that were 
considered by the panel. (SRI Report, 4) 

Dr. Hecker was less willing to commit himself to a finding of at 
least five manual erasures than the expert panel had been. (Michael 
Hecker ’testimony, In re Grand Jury , Misc. 47-73, 5/13/74, 18-19; 
SRI Report, 3) The panel rejected the hypothesis that any of the 
magnetic marks suggesting manual operation could have been caused 
by a malfunctioning machine. (SRI Report, 3-4) Dr. Hecker was of 
the opinion that it was wrong to rule out conclusively the chance that 
the malfunctioning machine could have caused some of the indicia of 
manual operation. (SRI Report, 4; Michael Hecker testimony, In re 
Grand Jury , Misc. 47-73, 5/13/74, 18-19) Dr. Hecker stated that be- 
cause the machine had broken down once during testing; and after 
a defective diode bridge rectifier was replaced, the distinctive buzz 
could no longer be reproduced. Dr. Hecker did not state that any of 
the indicia of manual operation were caused by the defect on the ma- 
chine ; he merely said that, in his opinion, this possibility could not be 
ruled out completely. (SRI Report, 4-5) However, Dr. Hecker re- 
mained convinced that some of the marks of the operations were 
caused by manual manipulation of the keyboard controls. Dr. Hecker 
stated that he was absolutely sure that three events associated with 
the 18% minute gap were caused by manual operation of the keyboard 
controls and that he was practically certain that two other marks had 
been caused by manual operation of the keyboard controls. He testi- 
fied on May 13, 1974 that he was willing to agree with the panel that 
at least five of the events on the 18% minute buzz had been caused 
by manual operation of the machine. (Michael Hecker testimony, In 
re Grand Jury , Misc. 47-73, 5/13/74, 18-21 ) x 


1 The Court received two reports obtained by Miss Woods’ attorney that questioned the 
conclusions of the Panel, whose conclusions in substance had been confirmed by the Stanford 
Research Institute, expert for the counsel to the President. The Committee staff has 
obtained copies of these reports. The organizations submitting the reports are Home Service, 
Inc., a Magnavox sales and service center in Cleveland Heights, Ohio, dated May 24, 1974, 
^ n 2Tx k ^ or Counterintelligence and Security, Inc. in Springfield, Virginia, dated May 30, 
1974. Neither organization examined the evidence tape or Uher 5000 recorder, or reviewed 
the experiments with the expert panel. 




APPENDIX B 


Subpoenas Issued to President Richard M. Nixon by the Committee 
on the Judiciary and Justification Memoranda 


Page 

April 11, 1974_ 234 

Schedule ^ . 235 

Justification 237 

May 15, 1974 (President’s Daily Diaries) 244 

Schedule 245 

May 15, 1974 (Presidential Conversations) 246 

Schedule 247 

Justification : - 247 

May 30, 1974 250 

Schedule * 251 

Justification 253 

June 24, 1974 (ITT)___ 261 

Schedule 262 

Justification : 263 

June 24, 1974 (1971 Milk Price Support Decision) 268 

Schedule , 269 

Justification ^ 269 

June 24, 1974 (IRS) - 271 

Schedule . ; ; 272 

Justification 272 

June 24, 1974 (Domestic Surveillance) 274 

Schedule 275 

Justification 275 


( 233 ) 



234 


* COPY 

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


To Ban} sain Marshall, or hla duly authorised rtpriwntatlTt t 

You are hereby commanded to summon .-s.*, : 

subordinate officer, official or eaployee with custody or control of 
things dM.cribed J« .thft. att«ch«d. «chadul«» 


to be and appear before the _.CffiRKit.tM.An..tha.Jtitdiciaxx.. 


UMfl t of the House of Representatives of the United States, of which the Hon. 

-Wjt- Rodino^ Jr*. is chairman, .and to bring with.. 

hto-tha thing*., 
hereof* 


in their chamber in the city of Washington, on .or, before 

, at the hour of __1QJ.QQ„A*W*. 

produce and deliver said things to said Comaittee, or their 
then and there s 

duly authorised representative, in connection with tha Coonit tee's invsstl- 

gation authorised and directed by 

H. Res. 803, adopted February 6» 1974. 

Herein fail not, and make return of this summons. 

Witness my hand and the seal of the House of Representatives 
of the United States, at the city of Washington, this 
11th day of 


Attest: 


Petar V. Rodino, Jr. Chairman. 



0a behalf of Richard M. Nixon, President 
of the United States of America, I 
accept service on_Apr.il 11, 1974, of the 
original subpo^n a^ qfiyhich^ the for er 
going is a„copy% ffcljfi 

JAMES DyS)T. CLAIR 
Speciap/Counsel to the President 



Schedule of Things Required To Be Produced Pursuant to Sub- 
poena Dated April 11, 1974 

All tapes, dictabelts or other electronic recordings, transcripts, mem- 
oranda, notes or other writings or things relating to the following 
conversations : 

1. Certain conversations between the President and Mr. Haldeman 
or Mr. Ehrlichman or Mr. Dean in February, March and April, 1973, 
as follows : 

(a) Conversations between the President and Mr. Haldeman on or 
about February 20, 1973, that concern the possible appointment of 
Mr. Magruder to a government position ; 

(b) Conversations between the President, Mr. Haldeman and Mr. 
Ehrlichman on or about February 27, 1973, that concern the assign- 
ment of Mr. Dean to work directly with the President on Watergate 
and Watergate- related matters; 

(c) Conversations between the President and Mr. Dean on March 
17, 1973, from 1 :25 to 2 :10 p.m. and March 20, 1973, from 7 :29 to 7 :43 

p.m, 

(d) Conversations between the President and Mr. Ehrlichman on 
March 27, 1973 from 11 :10 a.m. to 1 :30 p.m., and on March 30, 1973, 
from 12 :02 to 12 : 18 p.m. ; and 

(e) Conversations between the President and Mr. Haldeman and 
the President and Mr. Ehrlichman during the period April 14 through 
17, 1973, as follows: 


April 14 

8 :55 to 11 :31 a.m_ Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 

1 :55 to 2 : 13 p.m Meeting between the President and Mr. Halde- 

man 

2 :24 to 3 :55 p.m Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 

5 : 15 to 6 :45 p.m Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 

11 :02 to 11 :16 p.m Telephone conversation between the Presi- 

dent and Mr. Haldeman 

11 :22 to 11 : 53 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

April 15 

10 :35 to 11 :15 a.m Meeting between the President and Mr. 

Ehrlichman 

2 :24 to 3: 30 p.m Meeting between the President and Mr. 

Ehrlichman 

3 :27 to 3 :44 p.m Telephone conversation between the President 

and Mr. Haldeman 

7 :50 to 9 : 15 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

10 :16 to 11 :15 p.m — Meeting among the President, Mr. Ehrlichman 

and Mr, Haldeman 

( 235 ) 



236 


April 16 

12 :08 to 12 :23 a.m Telephone conversation between the Presi- 

dent and Mr. Haldeman 

8 :18 to 8 :22 a.m Telephone conversation between the President 

and Mr. Ehrlichman 

9 :50 to 9 :59 a.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

10 :50 to 11 :04 a.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

12 :00 to 12 :31 p.m Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 

3 :27 to 4 :02 p.m Meeting between the President and Mr. 

Ehrlichman (Mr. Ziegler present from 
3:35-4 :04 p.m.) 

9 :27 to 9 :49 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

April 17 

9 :47 to 9 :59 a.m Meeting between the President and Mr. Hal- 

deman 

12 :35 to 2 :30 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman (Mr. Ziegler present 
from 2:10-2:17 p.m.) 

2 :39 to 2 :40 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

3 :50 to 4 :35 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

5 :50 to 7 :14 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman (Mr. Rogers present 
from 5 :2(M> :19 p.m.) 


2 . Conversations between the President and Mr. Kleindienst and 
the President and Mr. Petersen during the period from April 15 
through 18, 1973, as follows : 

April 15 


10 :13 to 10 :15 a.m Telephone conversation between the President 

and Mr. Kleindienst 

1:12 to 2:22 p.m Meeting between the President and Mr. Klein- 

dienst 

3 :48 to 3 :49 p.m Telephone conversation between the President 

and Mr. Kleindienst 

4 :00 to 5 :15 p.m Meeting among the President, Mr. Kleindienst 

and Mr. Petersen 

8 :14 to 8 :18 p.m Telephone conversation between the President 

and Mr. Petersen 

8 :25 to 8 :26 p.m Telephone conversation between the President 

and Mr. Petersen 

9 :39 to 9 :41 p.m Telephone conversation between the President 

and Mr. Petersen 

11 :45 to 11 :53 p.m Telephone conversation between the President 

and Mr. Petersen 

April 16 

1 :39 to 3 :25 p.m Meeting between the President and Mr. Peter- 

sen (Mr. Ziegler present from 2:25-2:52 
p.m.) 

8 :58 to 9 :14 p.m Telephone conversation between the President 

and Mr. Petersen 

April 17 

2 :46 to 3 :49 p.m Meeting between the President and Mr. 

Petersen 



237 


April 18 


2 :50 to 2 :56 p.m Telephone conversation between the President 

and Mr. Petersen 

6 :28 to 6 :37 p.m Telephone conversation between the President 

and Mr. Petersen 


Memorandum to Committee on the Judiciary Respecting 
Conversations Requested on February 25, 1974 

The following sets forth the facts and bases underlying the requests 
for the conversations specified in the letter of February 25, 1974 from 
Mr. Doar to Mr. St. Clair: 

(1) Conversations between the President and Mr. Haldeman on or 
about February 20, 1973, that concern the possible appointment of 
Mr. Magruder to a government position. 

Job Magruder w r as deputy director of the Committee to Re-elect 
the President and participated in meetings at which plans for the 
electronic surveillance of the President’s political opponents were dis- 
cussed (Magruder, 2 SSC p. 787-790). Mr. Magruder has testified 
that he committed perjury before the grand jury investigating the 
break-in at the Democratic National Committee Headquarters and 
at the trial of the seven defendants in United States v. Liddy , et ah 
(Magruder, 2 SSC p. 805). Mr. Magruder has testified that he in- 
formed Mr. Haldeman in mid- January, 1973 that he was going to 
commit perjury during the trial (Magruder, 2 SSC p. 832). Mr. 
Haldeman does not recollect this discussion but does state that he 
met with Mr. Magruder on February 14, 1973 and on March 2, 1973 
about Mr. Magruder’s future (Haldeman, 7 SSC p. 2886-87). 

Mr. Dean testified that in January and February of 1973 there 
were discussions about a job for Mr. Magruder (Dean, 3 SSC p. 990). 
Hugh Sloan, the former treasurer of the President’s Campaign Fi- 
nance Committee, testified he told Mr. Dean that if Mr. Magruder 
(who Sloan testified made efforts to persuade him to commit perjury) 
(Sloan, 2 SSC p. 543, 581, 583) were given an appointment requiring 
Senate confirmation, Mr. Sloan would voluntarily seek out the Senate 
Committee and testify against Mr. Magruder (Sloan, 2 SSC p. 591). 
Mr. Dean has further testified that on or about February 19, 1973 
he was asked by Mr. Haldeman to prepare an agenda of topics which 
the President could use as a basis for a meeting with Mr. Haldeman 
(Dean, 3 SSC p. 987). That agenda raised as a topic the question of 
a White House position for Mr. Magruder. The agenda stated that 
Mr. Magruder “[m]ay be vulnerable (Sloan) until Senate Hearings 
are completed.” (Exhibit 34—34, 3 SSC p. 1243) Mr. Dean has testi- 
fied that on or about- February 20, 1973, Mr. Haldeman met with the 
President to discuss the topics covered by the memorandum (Dean, 
3 SSC p. 988). 

Mr. Haldeman testified that at the time he received the agenda he 
had already told Magruder that a White House job would not be 
possible “but I think the point here was to check that decision with 
the President to be sure he concurred.” (Haldeman, 7 SSC p. 2891). 
In March 1973, Mr. Magruder was appointed to a $36,000 a year 



238 


government post which did not require Senate confirmation (Magru- 
der, 2 SSC p. 881; Haldeman, 7 SSC p. 2887). 

(2) Conversations between the President, Mr. Haldeman and Mr. 
Ehrlichman on or about February 27, 1973, that concern the assign- 
ment of Mr. Dean to work directly with the President on Watergate 
and Watergate-related matters. 

Both Mr. Haldeman and Mr. Ehrlichman have testified that the 
President decided toward the end of February 1973, that Mr. Dean 
would work directly with the President on Watergate-related matters 
and that this decision was discussed with them (Ehrlichman, 7 SSC 
p. 2739; Haldeman, 7 SSC p. 2891). Mr. Dean has testified that when 
he met with the President on February 27, 1973, the President told 
him that Watergate “was taking too much time from Hal deman’s 
and Ehrlichman’s normal duties and . . . they were principals in 
the matter, and I, therefore, could be more objective than they.” 
(Dean, 3 SSC p. 991) 

(3) Conversations between the President and Mr. Dean on March 
17, 1973, from 1:25 to 2:10 p.m. and March 20, 1973 from 7:29 to 
7 :43 p.m. 

(a) March 17 

The President has stated that he first learned at this meeting of the 
break-in of the office of Daniel Ellsberg’s psychiatrist wdiich the White 
House Special Investigation Unit committed in September 1971 
(President’s Statement August 15, 1973, Pres. Doc p. 993). 

The White House has also stated that Mr. Dean told the President 
on this date that no White House aides were involved in the Watergate 
burglary except possibly Mr. Strachan and that the President sug- 
gested that Mr. Dean, Mr. Haldeman and Mr. Ehrlichman testify 
before the Senate Select Committee (Exhibit 70-A, 4 SSC p. 1798 — 
Memorandum of Substance of Dean’s Calls and Meetings With the 
President) . 

(b) March 20 

The White House has said that in the course of this phone call from 
the President to Mr. Dean, Mr. Dean stated that there was not a 
“scintilla of evidence of White House involvement” in Watergate 
(Exhibit 70-A, 4 SSC p. 1798 — Memorandum of Substance of Dean’s 
Calls and Meetings with the President). President Nixon confirmed 
this statement (President’s News Conference August 22, 1972, Pres. 
Doc. p. 1019) . Mr. Dean has testified that during this call he scheduled 
a meeting with the President to discuss the facts of Watergate and 
the obstruction of the Watergate investigation (Dean, 3 SSC p. 997- 
98). 

(4) Conversations between the President and Mr. Ehrlichman on 
March 27, 1973, from 11 :10 a.m. to 1 :30 p.m. and on March 30, 1973 
from 12:02 to 12:18 p.m. 

(a) March 27 

Mr. Ehrlichman has testified that on March 27, 1973, he met with 
the President and discussed White House involvement in the break-in 
at the Democratic National Committee Headquarters (Ehrlichman, 
7 SSC p.2747). Mr. Ehrlichman has testified that the President in- 



239 


structed him to inform Attorney General Kleindienst that the Pres- 
ident had no information that Mr. Ehrlichman, Mr. Colson, Mr. Dean, 
Mr. Haldeman or any other White House staff had any prior knowl- 
edge of the Watergate burglary (Ehrlicliman, 7 SSC p. 2748-49; 
Exhibit 99 p.2944-45). Mr. Ehrlichman has also testified that the 
President asked him to inquire of the Attorney General about the 
procedures for granting immunity (Ehrlichman, 7 SSC p. 2750). 

( b) March 30 

The President has said that after Mr. Dean’s disclosures of March 
21 he ordered new investigations. (President’s Statements April 17, 
1973, Pres. Doc p. 387 ; President’s Statement April 30, 1973, Pres. 
Doc. p. 434; President’s Statement August 15, 1973, Pres. Doc. p. 993) . 
The President has stated that on this date the President asked Mr. 
Ehrlichman to take over that investigation from Mr. Dean (Pres- 
ident’s Statement August 15, 1973, Pres. Doc p. 993 ; Ehrlichman, 
7 SSC p. 2747). 

(5) All conversations between the President and Mr. Haldeman 
and the President and Mr. Ehrlichman from April 14 through 17, 
1973, inclusive. 

(6) All conversations between the President and Mr. Kleindienst 
and the President and Mr. Petersen from April 15 through 18,T973, 
inclusive. 

(a) April 14,1973 

The President’s records indicate that the following meetings and 
telephone conversations took place between the President and Mr. 
Haldeman and the President and Mr. Ehrlichman on April 14, 1973 : 


8 :55 to 11 :31 a.m Meeting between the President and Mr. Ehr- 

lichman in the President’s EOB office. (The 
President’s daily diary shows that Mr. 
Haldeman was present from 9 :00 to 11 :30 
a.m.) 

1 :55 to 2 : 13 p.m Meeting between the President and Mr. Halde- 

man 

2 :24 to 3 :55 p.m Meeting among the President, Mr. Ehrlich- 

man and Mr. Haldeman in the Oval Office. 

5 : 15 to 6 :45 p.m Meeting among the President, Mr. Ehrlich- 

* man and Mr. Haldeman in the President’s 
EOB office 

11 :02 to 11 :16 p.m Telephone conversation between the President 

and Mr. Haldeman 

11 :22 to 11 :53 p.m Telephone conversation between the President 

and Mr. Ehrlichman 


The President has stated that it was on April 14 that Mr. Ehrlich- 
man reported to him the results of the inquiry of the Watergate matter 
which the President, on March 30, 1973, ordered Mr. Ehrlichman to 
conduct (President’s Statement August 15, 1973, Pres. Doc. p. 993). 
Mr. Ehrlichman testified that he informed the President that Messrs. 
Dean, Magruder and Mitchell were involved in the planning of the 
Watergate break-in (Ehrlichman, 7 SSC p. 2755, 2757-58, 2737 ; SSC 
Exhibit 98 at p. 2915-43). The President, according to Mr. Ehrlich- 
man, ordered that the information be turned over to Mr. Kleindienst 
(Ehrlichman, 7 SSC p. 2758) . 

It was on April 14 that Mr. Magruder informed Mr. Ehrlichman 
that he was giving the prosecutors new information with respect to 


37-777 0 - 74-16 



240 


the Watergate break-in and its aftermath. (Magruder, 2 SSC p. 808; 
Ehrlichman, 7 SSC p. 2765-66). Mr. Ehrlichman and Mr. Hal deman 
knew that Mr. Dean already had been talking to the prosecutors and 
on April 14 Mr. Dean told them that Mr. Ehrlichman and Mr. Halde- 
man were targets of the grand jury investigation (Dean, 3 SSC 
p. 1014). Thus, when Mr. Ehrlichman telephoned Mr. Kleindienst on 
the evening of April 14 and was advised by the Attorney General to 
turn over all information to the Department of Justice to avoid being 
charged with obstruction of justice, Mr. Ehrlichman stated that “it 
doesn’t really make any difference anymore” since Mr. Dean and Mr. 
Magruder were talking to the prosecutors (Kleindienst, 9 SSC p. 
3577). 

(6) April 15, 1973 

The President’s records indicate that the following meetings and 
telephone conversations took place among the President, Mr. Halde- 
man, Mr. Ehrlichman, Mr. Kleindienst and Mr. Petersen : 


10:13 to 10:15 a.m Telephone conversation between the President 

and Mr. Kleindienst 

10:35 to 11:15 a.m Meeting between the President and Mr. 

Ehrlichman 

1 :12 to 2 :22 p.m Meeting between the President and Mr. 

Kleindienst 

2:24 to 3:30 p.m Meeting between the President and Mr. 

Ehrlichman 

3:27 to 3:44 p.m Telephone conversation between the President 

and Mr. Haldeman 

3 :48 to 3 :49 p.m Telephone conversation between the President 

and Mr. Kleindienst 

4 :00 to 5 :15 p.m Meeting among the President, Mr. Kleindienst 

and Mr. Petersen 

7 :50 to 9 :15 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

8:14 to 8:18 p.m Telephone conversation between the President 

and Mr. Petersen 

8 :25 to 8 :26 p.m Telephone conversation between the President 

and Mr. Petersen 

9 :39 to 9 :41 p.m Telephone conversation between the President 

and Mr. Petersen 

10 :16 to 11 :15 p.m Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 

11 :45 to 11 :53 p.m Telephone conversation between the President 

and Mr. Petersen 


It was on April 15 that Mr. Kleindienst and Mr. Petersen directly 
brought to the attention of the President the new information which 
was being conveyed to the prosecutors by Mr. Dean and Mr. Magruder. 
(President’s Statement August 15, 1973, Pres. Doc p. 993). April 15 
was also the date on which the President, beginning at 9 :17 p.m., had 
an important conversation with Mr. Dean that the President has 
stated was not recorded because the tape had run out (President’s 
Statement November 12, 1973, Pres. Doc p. 1330; President’s News 
Conference November 17, 1973, Pres. Doc p. 1346-47). According to 
Mr. Dean the President stated at that conversation that he was jok- 
ing when he said earlier that it would be no problem to raise $1,000,000 
(Dean, 3 SSC p. 1016). Following the conversation with Mr. Dean 
the President had a meeting with Mr. Ehrlichman and Mr. Haldeman 
at which Mr. Ehrlichman called Mr. Gray with respect to what hap- 



241 


penecl to documents from Mr. Hunt’s safe which were given to Mr. 
Gray in June 1972. Mr. Gray informed Mr. Ehrlichman that the docu- 
ments were destroyed (Ehrlichman, 7 SSC p. 2675-76). 

As the listing of conversations indicates, immediately following 
each of his various conversations with Mr. Kleindienst or Mr. Petersen, 
the President had conversations, some of which were quite lengthy, 
with Mr. Haldeman or Mr. Ehrlichman or both. It was on April 15 
that Mr. Petersen suggested to the President that Mr. Haldeman and 
Mr. Ehrlichman be fired (Petersen, 9 SSC p. 3628-29). The President 
stated that lie owed an obligation of fairness to Mr. Haldeman and 
Mr. Ehrlichman (Petersen, 9 SSC p. 3628). 

(c) April 16 , 1973 

The President's records indicate that the following meetings and 
telephone conversations took place among the President, Mr. Halde- 
man, Mr. Ehrlichman, Mr. Kleindienst and Mr. Petersen: 

12 :08 to 12 :23 a.m Telephone conversation between the President 

and Mr. Haldeman 

8:18 to 8:22 a.m Telephone conversation between the President 

and Mr. Ehrlichman 

9 :50 to 9 :59 a.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

10 :50 to 11 :04 a.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

12 :00 to 12 :31 p.m Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 

1 :39 to 3 :25 p.m Meeting between the President and Mr. Peter- 

sen (Mr. Ziegler present from 2:25 to 2:52 
pan.) 

3 :27 to 4 :02 pan Meeting between the President and Mr. 

Ehrlichman (Mr. Ziegler present from 3 :35 
to 4 :04 p.m. ) 

8:58 to 9:14 p.m . Telephone conversation between the President 

and Mr. Petersen 

9 :27 to 9 :49 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

On April 16, according to Mr. Dean’s testimony, the President 
asked Mr. Dean to sign a letter of resignation, but Mr. Dean said he 
would not resign unless Mr. Ehrlichman and Mr. Haldeman also re- 
signed (Dean, 3 SSC p. 1017-1018). The President had further dis- 
cussions with Mr. Petersen about the prosecutors’ evidence of Mr. 
Haldeman and Mr. Ehrlichinan's possible involvement in the Water- 
gate matter and the possibility of granting immunity to Mr. Dean 
(Petersen, 9 SSC p. 3634; President’s Statement April 17, 1973 Pres. 
Doc p. 387). Again, prior to and subsequent to his conversations with 
Mr. Dean and Mr. Petersen the President had a number of conversa- 
tions with Mi*. Ehrlichman and Mr. Haldeman. 

(d) April 17 , 1973 

The President’s records indicate that the following meetings and 
telephone conversations took place among the President, Mr. Halde- 
man. Mr. Ehrlichman, Mr. Kleindienst and Mr. Petersen : 


9 :47 to 9 :59 44P-. — ■ ■■ ■ ■ . l Meeting between the President and Mr. 

Haldeman 

12 :35 to 2 :30 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman (Mr. Ziegler present 
from 2 :10 to 2 :17 p.m.) 



242 


2 :39 to 2 :40 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

2 :46 to 3 :49 p.m Meeting between the President and Mr. Peter- 

sen 

3 :5(> to 4 :35 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

5 :50 to 7 :14 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman (Mr. Rogers present 
from 5 :20 to 6 :19 p.m. ) 


On April 17 the President issued a statement that there were “ma- 
jor developments” in the Watergate ease and that “real progress has 
been made on finding the truth.” The President also stated that “no 
individual holding, in the past or at present, a position of major im- 
portance in the administration should be given immunity from pros- 
ecution.” (Pres. Doc p. 387) Mr. Dean has testified that by the “no 
immunity” provision in the April 17 statement, the President was 
“quite obviously trying to affect any discussion I was having with the 
government regarding my testimony.” Mr. Dean has stated that Mr. 
Garment, another Presidential Assistant, believed that the “no im- 
munity” provision was inserted into the President’s statement by Mr. 
Ehrlichman (Dean, 3 SSC p. 1020) . 

Also, on April 17, the pattern of the previous few days is repeated 
in that prior to and subsequent to conversations between the Presi- 
dent and Mr. Petersen there are numerous conversations between the 
President and Mr. Haldeman and the President and Mr. Ehrlichman. 

( e ) April IS , 1973 

The President’s records indicate that the following meetings and 
telephone conversations took place between the President and Mr. 
Petersen : 


2 :50 to 2 :56 p.m Telephone conversation between the President 

and Mr. Petersen 

6 :28 to 6 :37 p.m Telephone conversation between the President 

and Mr. Petersen 


On April 18, the President learned from Mr. Petersen that Mr. Dean 
had informed the prosecutors of the break-in by Messrs. Hunt and 
Liddy of the office of Dr. Fielding, Daniel Ellsberg’s psychiatrist. 
(President’s News Conference, August 22, 1973, Pres. Doc. p. 1020; 
Petersen, 9 SSC p. 3631) . There was also a continuation of the discus- 
sion respecting possible immunity for Mr. Dean during which the 
President said he had a tape to prove that Mr. Dean had told the 
President he had received immunity (Petersen, 9 SSC p. 3630, 3654- 
56). With respect to the Fielding "break-in the President has stated 
that he first learned of it on March 17, 1973, and that on April 18 he 
instructed Mr. Petersen to stay out of the matter because it involved 
national security. 

******* 

In calling for the above conversations the Committee is seeking to 
determine : 

Whether any of the conversations in any way bear upon the knowl- 
edge or lack of knowledge of, or action or inaction by the President 
and/or any of his senior administration officials with respect to, the 



243 


investigation of the Watergate break-in by the Department of Justice, 
the Senate Select Committee, or any other legislative, judicial, execu- 
tive or administrative body, including members of the White House 
staff ; 

Whether any of the conversations in any way bear upon the Presi- 
dent’s knowledge or lack of knowledge of, or participation or lack of 
participation in, the acts of obstruction of justice and conspiracy 
charged or otherwise referred to in the indictments returned on March 
1 in the District Court for the District of Columbia in the case of 
U.S. v. Haldeman , et al . ; and 

Whether any of the conversations in any way bear upon the Presi- 
dent’s knowledge or lack of knowledge of, or participation or lack of 
participation in, the acts charged or otherwise referred to in the in- 
formations or indictments returned in the District Court for the Dis- 
trict of Columbia in the cases of U.S. v. Magruder , U.S . v. Dean , U.S. 
v. Chagrin and U.S. v. Ehrlichman ■, or other acts which may constitute 
illegal activities. 



BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


To «atbori«>d.gapTM#nt<ti.v»: 

You are hereby commanded to summon 


subordinate officer, official or eaployuu with custody or control of 
jthft-.tbJjasa-.daacrlhedL1n tha atfachad achadnla, 

to be and appear before the Comal ttan.an. tha. Judiciary - 

<2X2BB&BBk of the House of Representatives of the United States, of which the Hon. 

PatotJB*. todlno t .Jr» is chairman, and.-to--b ring -with - 

hla..tbi..thlBg»jpttlfi»d la. tha arharinla att achad harato and -aada a-part- — 


in their chamber in the city of Washington, on ..or-bafora 




then and there to 

duly ^uthorlsfd rep r assn t^lya , In connactloa with tha Coaalt tea's invest 1- 

gadon a utho rlsad and directed by 

H. Baa. 801. adopted February 6. W7A, 

Herein fail not, and make return of this summons. 

Witness my hand and the seal of the House of Representatives 
of the United States, at the city of Washington, this 
_ day May 19.24. 


d dellvar 


, at the hour of . lfltflflLAJL 
Inn to said 






Pater W. Rodino, Jr. Chairman . 




Schedule of Things Required To Be Produced Pursuant To 
Subpoena of the Committee on the Judiciary 

The President’s daily diaries (as reflected on U.S. Government 
Printing Office Form “1972 0-A72-086” or any predecessor or succes- 
sor forms) for the period April through July 1972, February through 
April 1973, July 12 through July 31, 1973 and October 1973. 

( 245 ) 



246 


COPY 

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


To Marflha11 t nr hlfl duly 



You are hereby commanded to summon ... 

.J&chard. MA.Ni^o*._^.^t4ea L t..Qje...tJ)ua.JKaitedJStatea..Qf. J Aaerlca*._or_any ... 

subordinate officer* official or employee with custody or control of 

-.t£e..tMnga._deB.crife*d..^ ’ 


to be and appear before the Coanlttea on the Judiciary 

V 

XTCSSffiBE Qfe of the House of Representatives of the United States, of which the Hon 

.V *. . *. .JlT* is chairman, and to bring with 

him the things specified in die schedule attached hereto and made a part 
hereof , 


in their chamber in the city of Washington, on .P.r .before „ 


May 22* 1974 


at the hour of ...10j.Q0._A *£(«... 


produce end deliver said things to said Committee, or their 

then and there 

duly authorized representative* in connection with the C emit tee's investi- 
gation authorized and directed by 


H* Has. 803* adopted February 6* 1974* 

Herein fail not, and make return of this summons. 

Witness my hand and the seal of the House of Representatives 

of the United States, at the city of Washington, this 

; , • 15 th. day of Kay. , 19?A~ 


Attest: 



Peter W, Rodino, Jr* 


Chairman. 


On behalf of Richard M. Nixon, President 
of the United States of America, I accept 
. service _of the original subpoena, of 
Clerk, whicty'the /foregoing is a copy. 

Date 



Special Counsel to the President 



Schedule or Things Required To Be Produced Pursuant to 
Subpoena of the Committee on the Judiciary 

All tapes, dictabelts, other electronic and mechanical recordings, and 
transcripts, memoranda, notes or other writings or things relating to 
the following conversations : 

1. Meetings among the President, Mr. Haldeman and Mr. Mitchell 
on April 4, 1972 from 4 :13 to 4 :50 p.m. and between the President and 
Mr. Haldeman from 6 :03 to 6 :18 p.m. 

2. Conversations on June 20, 1972 between the President and Mr. 
Haldeman, and the President and Mr. Colson, as follows : 

2:20 to 3 :30 p.m Meeting between the President and Mr. Colson 

4 :35 to 5 :25 p.m Meeting between the President and Mr. Halde- 

man 

7 :52 to 7 :59 p.m Telephone conversation between the President 

and Mr. Haldeman 

8 :04 to 8 :21 p.m Telephone conversation between the President 

and Mr. Colson 

8 :42 to 8 :50 p.m Telephone conversation between the President 

and Mr. Haldeman 

11 :33 p.m. 6/20 to 12 :05 a.m. Telephone conversation between the President 
6/21. and Mr. Colson 

3. Conversations on June 23, 1972 between the President and Mr, 
Haldeman, as follows : 

10 : 04 to 10 :39 a.m Meeting between the President and Mr. Halde- 

man (Mr. Ziegler present from 10:33-10:39 
a.m.) 

1 :04 to 1 :13 p.m Meeting between the President and Mr. Halde- 

man 

2 :20 to 2 :45 p.m Meeting between the President and Mr. Halde- 

man (Mr. Ziegler present from 2:40-2:43 
p.m.) 

Memorandum Setting Forth Facts and Bases Underlying April 
19, 1974 Request for Presidential Conversations Necessary for 
Committee’s Inquiry into Watergate and Aftermath 

The following sets forth the facts and bases underlying the request 
contained in Mr. Doar’s letter to Mr. St. Clair, dated April 19, 1974, 
for Presidential conversations necessary for the House Judiciary Com- 
mittee’s inquiry into Watergate and its aftermath. An asterisk follow- 
ing a specified conversation indicates that the Special Prosecutor 
has subpoenaed such conversation for the trial of the indictment in 
17. S. v. Mitchell , et al . filed on March 1, 1974 respecting Watergate 
and its aftermath. 

(1) Meetings among the President, Mr. Haldeman, and Mr. Mitchell 
on April 4, 1972, from 4:13 to 4:50 p.m. and between the President 
and Mr. Haldeman from 6:03 to 6:18 p.m* 

* Conversations followed by an asterisk have been subpoenaed by the Watergate Special 
Prosecution Force. 

(247) 



348 


Mr. Magruder has testified that on March 30, 1972 Mr. Mitchell 
approved Mr. Liddy’s plan for electronic surveillance of the Presi- 
dent’s political opponents and an entry into the Democratic National 
Committee Headquarters in Washington. (Magruder, 2 SSC 794- 
95). Mr. Magruder called Mr. Strachan and indicated the project 
had been approved, and immediately thereafter, in early April, 1972, 
Mr. Strachan sent a memorandum to Mr. Haldeman which stated 
that a sophisticated political intelligence-gathering system for CRP 
had been approved with a budget of $300,000. (Magruder, 2 SSC 
795; Strachan, 6 SSC 2441, 2452). Mr. Strachan has testified that he 
prepared a talking paper for a meeting between Mr. Haldeman and 
Mr. Mitchell which took place at 3 :00 p.m. on April 4, 1972, and this 
talking paper included a reference to the sophisticated intelligence- 
gathering system. (Strachan, 6 SSC 2453-54). Mr. Haldeman has 
testified that the 3:00 p.m. meeting was “in conjunction with” the 
meeting commencing at 4 :13 p.m. among the President, Mr. Mitchell 
and Mr. Haldeman during which matters relating to the political 
campaign and ITT were discussed. (Haldeman, 8 SSC 3180-81). Mr. 
Haldeman has testified that his notes of the meeting among the 
President, Mr. Haldeman and Mr. Mitchell do not indicate a dis- 
cussion of intelligence. (Haldeman, 7 SSC 2881). Not long after the 
meeting among the President, Mr. Haldeman and Mr. Mitchell ended, 
the President met with Mr. Haldeman alone. 

(2) Specified conversations on June 20, 1972, between the President 
and Mr. Haldeman, and the President and Mr. Colson. 

The President’s records set forth that the following meetings and 
telephone conversations took place between the President and Mr. 
Haldeman and the President and Mr. Colson on June 20, 1972 : 


2:20 to 3 :30 p.m.* Meeting between the President and Mr. Colson 

4 :35 to 5 :25 p.m Meeting between the President and Mr. Halde- 

man 

7 :52 to 7 :59 p.m Telephone conversation between the President 

and Mr. Haldeman 

8:04 to 8:21 p.m.* Telephone conversation between the President 

and Mr. Colson 

8 :42 to 8 :50 p.m Telephone conversation between the President 

and Mr. Haldeman 


11:33 p.m., 6/20* to 12:05 a.m., Telephone conversation between the President 

and Mr. Colson 

At an earlier meeting on June 20 between Mr. Haldeman and the 
President (11:26-11:45 a.m.), the Watergate matter was one of the 
items discussed. (Haldeman’s Notes, Exhibit 61 In Re Subpoena Duces 
Tecum (“SDT”), Misc. No. 47-73). The tape of that conversation 
contained an 18 minute and 15 second hum which obliterated the con- 
versation. Also on June 20, a meeting among Mr. Ehrlichman, Mr. 
Mitchell, Mr. Haldeman, Mr. Dean, and Mr. Kleindienst occurred to 
discuss the Watergate incident and investigation. (Ehrlichman, 7 SSC 
2822; Haldeman, 8 SSC 3039-40). Mr. Strachan has testified that on 
this date, following Mr. Haldeman ’s instructions, he shredded the 
Political Matters Memorandum containing the reference to the plan 
for electronic surveillance formulated by Gordon Liddy. (Strachan, 
6 SSC 2458, 2442). On the evening of June 20, 1972, the President 
spoke by telephone to Mr. Mitchell. A tape of this conversation was 



249 


subpoenaed by the Special Prosecutor but was not produced as the 
President stated that it was not recorded. (President’s Statement, 
November 12, 1973; Pres. Doc. 1329). The President’s recorded recol- 
lection of this conversation was produced. Mr. Mitchell has testified 
that in this conversation he and the President discussed the Watergate 
break-in and Mr. Mitchell expressed regret that he had not kept better 
control over his men. (Mitchell, 4 SSC 1633). After this conversation 
with Mr. Mitchell, the President had the four telephone conversations 
specified with Mr. Haldeman and Mr. Colson. 

(3) Specified conversations on June 23, 1972 between the President 
and Mr. Haldeman. 

The President’s records set forth that the following meetings took 
place between the President and Mr. Haldeman on June 23, 1972: 

10 :04 to 10 :39 a.m.* Meeting between the President and Mr. Halde- 

man (Mr. Ziegler present from 10:33 to 
10:39 a.m.) 

1 :04 to 1 :13 p.m.* Meeting between the President and Mr. Halde- 

man 

2 :20 to 2 :45 p.m.* Meeting between the President and Mr. Halde- 

man (Mr. Ziegler present from 2:40 to 2:43 
p.m.) 

Mr. Haldeman has testified that on the basis of information supplied 
by Mr. Dean to the effect that the FBI believed that the CIA might 
have been involved in the Watergate break-in, he raised the possi- 
bility of CIA involvement with the President on June 23, 1972. 
(Haldeman, 8 SSC 3040-41). Mr. Haldeman also testified that the 
President ordered Mr. Haldeman and Mr. Ehrlichman to meet with 
Mr. Helms and Mr. Walters at the CIA to determine the CIA’s in- 
volvement and interest in the Watergate break-in and to request Mr. 
Walters to meet with Acting FBI Director Mr. Gray to insure that 
the FBI’s investigation of the Watergate participants not be ex- 
panded into unrelated matters which could lead to disclosure of non- 
Watergate related covert CIA operations or other non-related national 
security activities that had been undertaken previously by some of 
the Watergate participants. (Haldeman, 7 SSC 2881-85).. The Presi- 
dent has stated that he instructed Mr. Haldeman and Mr. Ehrlichman 
to insure that the FBI investigation of the Watergate break-in did not 
expose either unrelated covert operations of the CIA or the activities 
of the White House Special Investigations Unit. (President’s State- 
ment, May 22, 1973, Pres. Doc. 696). Mr. Haldeman and Mr. Ehrlich- 
man did meet with Mr. Helms and General Walters of the CIA on 
June 23, 1972, at 1 :35 p.m. The three meetings specified above between 
the President and Mr. Haldeman preceded and followed the meeting 
among Mr. Haldeman, Mr. Ehrlichman and the representatives of the 
CIA. (Ehrlichman, 7 SSC 2712; Walters’ Memorandum, SSC Ex- 
hibit 101, 7 SSC 2948 ; Haldeman, 8 SSC 3041). At 2 :34 p.m., General 
Walters met with Mr. Gray of the FBI and stated that the FBI 
W atergate investigation should not be pursued into Mexico and should 
be tapered off at the five people arrested on June 17, 1972. (Walters’ 
Memorandum of Meeting with Mr. Gray, SSC Exhibit 129, 9 SSC 
3815 ; Gray 9 SSC 3452) . Mr. Gray agreed to postpone two interviews 
involving funds in the bank account of Bernard Barker, one of the 
men arrested in the Democratic National Committee headquarters. 



250 


COPY 

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 

To BanJaala.- M a rshal l r -og-hl»-*duly* 

You are hereby commanded to summon 

^lobsgd-Kr -MiiBBT-ft rfliH i at o f t he Itekti- flti t w of A—rtarormy 

subordinate officer, official or employee with custody or control of 
. tbe — t h i n gs— descri bed l it- the* attached schedule , — **■* * ~“**** 

to be and appear before the Goilttee w-tiar J ad lcla Ty — — 

jfigiSHHJBfe of the House of Representatives of the United States, of which the Hon 

Jtotev-Wr-BodlnOy' Jrv ** chairman, and- to-brlag-vith — 

hla„the~thlnga..spaclf led-ln- the . s ch edule - att a c h ed -herefco-and -aade-a-pert* 

hereof* 


in their chamber in the city of Washington, on ov-befere : 

j«aa-KV-aM4 — — . at the hour of .io*O0-a,H» 

produce and. deliver Gold things to. said Cosalt too, or th 
then and there tgj6 B ifrtolfl« te^ 
duly authorised representative. In connection vlth the C omit tee’s lnveetl- 
XLUfflgldiC jiWsffifteXHht Hfltf gation authorised and directed by 
H. Res. 803, adopted February 6, 1974. 

Herein fail not, and make return of this summons. 


Witness my hand and the seal of the House of Representatives 
of the United States, at the city of Washington, this 




On behalf of Richard M. Nixon, President 
on the United States of America, I accept 
service of the original subpoena, of 
which the foregoing is a copy. 





SCHEDULE OF T I TINGS REQUIRED To Be PRODUCED PURSUANT TO 

Subpoena of the Committee on the Judiciary 

A. All tapes, dictabelts, other electronic and mechanical recordings, 
transcripts, memoranda, notes and other writings and things relating 
to the following conversations : 

1. Meeting on the morning of November 15, 1972 among or between 
Mr. Haldeman, Mr. Ehrlichman and Mr. Dean in the President’s office 
at Camp David. 

2. Conversation in which the President participated after Decem- 
ber 8, 1972 (the date Mr. Hunt’s wife died) during which there was a 
discussion that a commutation of the sentence for Mr. Hunt could be 
considered on the basis of Mr. Hunt’s wife’s death. 

3. Meeting and telephone conversation on January 5, 1973 between 
the President and Mr. Colson from 12 :02 to 1 :02 p.m. and from 7 :38 
to 7 :58 p.m. respectively. 

4. Meetings between the President and Mr. Colson on February 13, 
1973 from 9:48 to 10:52 a.m. and on February 14, 1973 from 10:13 to 
10 :49 a.m. 

5. Meeting between the President and Mr. Dean on February 27, 
1973 from 3 :55 to 4 :20 p.m. 

6. Conversations on March 1, 1973 between the President and Mr. 
Dean, as follows : 


9 :18 to 9 :46 a.m Meeting between the President and Mr. Dean 

10 :36 to 10 :44 a.m Meeting between the President and Mr. Dean 

(Mr. Kissinger was present until 10 :37 a.m.) 
1 :06 to 1 :14 p.m Meeting between the President and Mr. Dean 


7. Meeting between the President and Mr. Dean on March 6, 1973 
from 11 :49 a.m. to 12 :00 p.m. 

8. Telephone conversations between the President and Mr. Colson on 
March 16, 1973, from 7:53 to 8:12 p.m., and on March 19, 1973, from 
8 :34 to 8 :58 p.m. 

9. Conversations on March 20, 1973 among or between the President, 
Mr. Haldeman and Mr. Ehrlichman, as follows : 

10:47 a.m. to 12:10 p.m Meeting between the President and Mr. Hal- 

deman (Mr. Ehrlichman present from 11 :40 
a.m.-12 :10 p.m.) 

4 :26 to 5 :39 p.m Meeting between the President and Mr. Ehr- 

lichman 

6 :00 to 7 :10 p.m Meeting between the President and Mr. Hal- 

deman 

10. Conversations on March 21, 1973 between the President and Mr. 
Ehrlichman and the Prseident and Mr. Colson, as follows : 


9 : 15 to 10 :12 a.m Meeting between the President and Mr. Ehr- 

lichman 

7 :53 to 8 :24 p.m Telephone conversation between the President 

and Mr. Colson 

( 251 ) 



252 


11. Meeting between the President and Mr. Haldeman on March 22, 
1973 from 9 :11 to 10 :35 a.m. 

12. Telephone conversations between the President and Mr. Colson 
on April 12, 1973 from 7 :31 to 7 :48 p.m. 

13. Two telephone conversations between Mr. Ehrlichman and Mr. 
Gray on April 15, 1973 between 10 :16 and 11 :15 p.m. 

14. Telephone conversation between the President and Mr. Dean on 
April 17, 1973 from 9 :19 to 9 :25 a.m. 

15. Conversations on April 18, 1973 among or between the President 
Mr. Haldeman and Mr. Ehrlichman, as follows : 


12 :05 to 12 :20 a.m Telephone conversation between the President 

and Mr. Haldeman 

3:05 to 3:23 p.m Meeting between the President and Mr. Ehr- 

lichman 

6:30 to 8:05 p.m Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 


16. Conversations on April 19, 1973 among or between the President, 
Mr. Haldeman, Mr. Ehrlichman and Mr. Petersen as follows : 


9 :31 to 10 :12 a.m __ Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

10 :12 to 11 :07 a.m Meeting between the President and Mr. Peter- 

sen 

1 :03 to 1 :30 p.m__ Meeting betw’een the President and Mr. Ehr- 

lichman 

5 :15 to 5:45 p.m Meeting between the President and Mr. Ehr- 

lichman 

9 :37 to 9 :53 p.m Telephone conversation between the President 

and Mr. Haldeman 

10 :54 to 11 :04 p.m — Telephone conversation between the President 

and Mr. Ehrlichman 


17. Conversations on April 20, 1973 among or between the President, 

Mr. Haldeman and Mr. Ehrlichman, as follows : 

11 :07 to 11 :23 a.m Meeting between the President and Mr. Halde- 

man 

12 :15 to 12 :34 p.m — — Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman (Mr. Kissinger was 
present until 12 :16 p.m.) 

18. Conversations on April 25, 1973 among or between the President. 

Mr. Haldeman, Mr. Ehrlichman, Mr. Wilson and Mr. Strickler, as 

follows: 

approximately 9 :25 to approxi- Meeting among the President, Mr. Wilson and 


mately 10 :45 a.m Mr. Strickler 

11 :06 a.m. to 1 :55 p.m Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

4 :40 to 5 :35 p.m Meeting between the President and Mr. Halde- 

man (Mr. Hart present from 5:30 to 5:32 
p.m.) 

6 :57 to 7 : 14 p.m Telephone conversation between the President 

and Mr. Haldeman 

7 :17 to 7 :19 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

7 :25 to 7 :39 p.m Telephone conversation between the President 

and Mr. Ehrlichman 

7 :45 to 7 :53 p.m Telephone conversation between the President 

and Mr. Haldeman 



253 


19. Conversations on April 26, 1973 among or between the President, 
Mr. Haldeman and Mr. Ehrlichman, as follows : 


8 :55 to 10 :24 a.m Meeting between the President and Mr. Halde- 

man 

3 :59 to 9 :03 p.m_ Meeting between the President and Mr. Halde- 

man (Mr. Ehrlichman was present from 5 :57 
to 7 :14 p.m.) 


20. Telephone conversations on June 4, 1973 between the President 
and Mr. Haldeman from 10:05 to 10:20 p.m. and from 10:21 to 10:22 
p.m. 

B. All papers and things (including recordings) prepared by, sent 
to, received by or at any time contained in the files of, H. R. Halde- 
man, John D. Ehrlichman, Charles W. Colson, John Dean, III and 
Gordon Strachan to the extent that such papers or things relate or refer 
directly or indirectly to the break-in and electronic surveillance of the 
Democratic National Committee Headquarters in the Watergate office 
building during May and June of 1972 or the investigations of that 
break-in by the Department of Justice, the Senate Select Committee 
on Presidential Campaign Activities, or any other legislative, judicial, 
executive or administrative body, including members of the White 
House staff. 

Memorandum Setting Forth Facts and Bases Underlying Pro- 
posed Subpoena for Presidential Conversations Necessary for 

the Committee’s Inquiry into Watergate and Aftermath 

The following sets forth the facts and bases underlying the pro- 
posed subpoena dated May 30, 1974 for Presidential conversations 
necessary for the House Judiciary Committee’s inquiry into Water- 
gate and its aftermath. An asterisk following a specified conversation 
indicates that the Special Prosecutor has subpoenaed such conversa- 
tion for the trial of the indictment in United States v. Mitchell , et al ., 
filed on March 1, 1974, respecting Watergate and its aftermath. 

(1) Meeting on the morning of November 15, 1972 among or be- 
tween Mr. Haldeman, Mr. Ehrlichman and Mr. Dean in the Presi- 
dent’s office at Camp David. 2 

Dean testified that on November 15 he met at Camp David with 
Haldeman and Ehrlichman to inform them of the increased demands 
for money transmitted by Hunt’s lawyer through O’Brien to the 
White House. At that meeting Dean played a tape of a conversation 
between Colson and Hunt during which Hunt made demands for 
money. (Dean, 3 SSC 969; Transcript, SSC Exhibit 152, 9 SSC 
3888-91). Also at that meeting Dean testified that Ehrlichman and 
Haldeman said the President had decided that based on information 
linking Chapin with Segretti’s campaign activities, Chapin would 
have to leave the White House staff (Dean, 3 SSC 966). 

(2) Conversation in which the President participated after De- 
cember 8, 1972 (the date Mr. Hunt’s wife died) during which there 
was a discussion that a commutation of the sentence for Mr. Hunt 
could be considered on the basis of Mr. Hunt’s wife’s death.* 


2 These conversations have been subpoenaed by the Watergate Special Prosecution Force. 



254 


Materials presented to the Committee in executive session indicate 
that such a conversation took place. 

(3) Meeting and telephone conversations on January 5, 1973 be- 
tween the President and Mr. Colson from 12:02 to 1:02 p.m.* and 
from 7 :38 to 7 :58 p.m.* respectively. 

On January 3, 1973 in a meeting among Ehrlichman, Colson and 
Dean, Dean has testified that Colson said he felt it was imperative 
that Hunt be given some assurances of executive clemency. Ehrlich- 
man said, according to Dean, that he would speak to the President and 
that Colson should not talk to the President about this matter. De- 
spite Ehrlichman’s warning, Dean testified that on January 5, 1973, 
following a meeting among Ehrlichman, Colson and Dean, Colson told 
Dean that he did discuss the offer of executive clemency with the 
President (Dean, 3 SSC 973-74). Dean also testified that in March 
and April, 1973, the President stated that he previously had discussed 
with Colson the possibility of executive clemency for Hunt. (Dean, 
3 SSC 995, 1017). Ehrlichman has testified that he met with Colson 
on January 3 and told him that under no circumstances should execu- 
tive clemency be discussed (Ehrlichman, 7 SSC 2770-71; 2847-48). 

(4) Meetings between the President and Mr. Colson on Febru- 
ary 13, 1973, from 9 :48 to 10 :52 a.m.* and on February 14, 1973, from 
10 :13 to 10 :49 a.m.* 

Material in the possession of the Committee indicates that in mid- 
February 1973 Colson and the President discussed the Watergate 
matter. Also, in a newspaper interview, Colson stated that during a 
February 14, 1973 meeting he told the President, “you’ve got to call 
Mitchell in and have him accept his responsibility” for the Water- 
gate matter. The President replied, according to Colson, that while 
he wanted to resolve the Watergate matter, he was not willing to do 
so “at the expense of making an innocent person a scapegoat.” (New 
York Times , interview with Mr. Colson, June 10, 1973) 

(5) Meeting between the President and Mr. Dean on February 27, 
1973, from 3 :55 to 4 :20 p.m.* 

This is the first meeting of Dean with the President since Septem- 
ber 15, 1972. Dean has testified that the President told him that Water- 
gate “was taking up too much time from Haldeman’s and Ehrlich- 
man’s normal duties and . . . they were principals in the matter, and 
I, therefore, could be more objective than they.” Dean also testified 
that he told the President that he was not sure Watergate could be 
confined indefinitely, and the President told Dean “we would have to 
fight back.” (Dean, 3 SSC 991-92). The White House has stated that 
executive privilege and the Senate Select Committee were discussed at 
this meeting. (Exhibit 70-A, 4 SSC 1796 — Memorandum of substance 
of Dean’s calls and meetings with the President). 

(6) Specified Conversations on March 1, 1973, between the Presi- 
dent and Mr. Dean. 

The President’s records indicate that the following meetings took 
place between the President and Dean on March 1, 1973: 


9:18 to 9:46 a.m _ Meeting between the President and Mr. Dean 

10 :36 to 10 :44 a.m Meeting between the President and Mr. Dean 

1 :06 to 1 :14 p.m Meeting between the President and Mr. Dean 



255 


Dean testified that on March 1 the President asked him questions 
about the ongoing confirmation hearings for Gray, and assured him 
that it was proper for Dean to have received FBI reports about the 
Watergate investigation. Dean testified the President told him that 
Gray should not turn over Watergate materials to the Senate Judici- 
ary Committee. Dean told the President that he had met with William 
Sullivan, a former FBI official, and Sullivan had indicated that the 
FBI had been used for political purposes in past administrations; 
the President instructed Dean to get this information about FBI 
practices from Sullivan. Dean testified also that the President dis- 
cussed executive privilege during these meetings. (Dean, 3 SSC 993- 
94) . The White House has stated that on March 1 at a meeting with 
Dean the President prepared for his press conference on March 2, 
and it was decided that the answer to the question of why Dean was 
sitting in on FBI interviews during the Watergate investigation was 
that Dean was conducting an investigation for the President. The 
President asked Dean to write a report. (Exhibit 70-A, 4 SSC 1796 — 
Memorandum of substance of Dean’s calls and meetings with the 
President). 

(7) Meeting between the President and Mr. Dean on March 6, 1973, 
from 11:49 a.m. to 12:00 p.m. 

Dean has testified that at this meeting the President reminded 
Dean that he should report directly to him and not involve Haldeman 
and Ehrlichman in Watergate-related matters. (Dean, 3 SSC 994). 
The White House has stated that executive privilege guidelines were 
discussed at this meeting, and it was decided that executive privilege 
would cover former White House personnel as well as present per- 
sonnel. (Exhibit 70-A, 4 SSC 1796 — Memorandum of substance of 
Dean’s calls and meetings with the President). 

(8) Telephone conversations between the President and Mr. Colson 
on March 16, 1973, from 7 :53 to 8 :12 p.m. and on March 19, 1973, 
from 8 :34 to 8 :58 p.m. 

On March 16, 1973, David Shapiro, Colson’s law partner, met with 
Hunt. Hunt has testified that he had expected to meet with Colson 
and not Shapiro. During this meeting, Hunt told Shapiro that he 
needed money prior to his sentencing. Hunt felt that Shapiro should 
convey all Hunt had said to Colson. (Hunt, 9 SSC 3705-06). Material 
in the possession of the Committee indicates that Shapiro reported 
to Colson on his conversation with Hunt. 

(9) Specified conversations on March 20, 1973, among or between 
the President, Mr. Haldeman and Mr. Ehrlichman. 

The President’s records set forth that the following meetings took 
place between the President, Haldeman and Ehrlichman on March 20, 
1973: 

10 :47 a.m. to 12 :10 p.m.* Meeting between the President and Mr. Halde- 

man (Mr. Ehrlichman present from 11:40 
a.m. to 12:10 p.m.) 

4 :26 to 5 :39 p.m Meeting between the President and Mr. Ehr- 

lichman 

6 :00 to 7 :10 p.m.* Meeting between the President and Mr. Halde- 

man 

Materials presented to the Committee in executive session indicate 
that Haldeman spoke with the President about the Watergate matter 


37-777 O - 74 - 17 



256 


on this date, the day prior to Dean’s disclosures of White House in- 
volvement to the President on March 21, 1973. Also, Dean has testi- 
fied that on or about March 20, 1973, he informed Ehrlichman of 
Hunt’s threat to tell about the “seamy things” he had done for Ehrlich- 
man unless he received additional money. (Dean, 3 SSC 999). Ehrlich- 
man on March 20 became concerned that Hunt’s blackmail attempt 
might lead to the exposure of the Special Investigations Unit. 
(Ehrlichman, 6' SSC 2565). Ehrlichman has testified that about this 
time he had a conversation with the President about the break-in at 
the office of Dr. Fielding. (Ehrlichman, 6 SSC 2551). 

(10) Specified conversations on March 21, 1973, between the Presi- 
dent and Mr. Ehrlichman and the President and Mr. Colson. 

The President’s records indicate that the following meetings and 
telephone conversations took place between the President and Ehrlich- 
man, and the President and Colson on March 21, 1973 : 


9 :15 to 10 :12 a.m.* Meeting between the President and Mr. Ehrlich- 

man 

7:53 to 8:24 p.m.* Telephone conversation between the President 

and Mr. Colson 


The 9:15 to 10:12 a.m. meeting with Ehrlichman immediately pre- 
ceded the President’s March 21 meeting with Dean (10:12-11 :55 a.m.) 
at which time the President said he first learned of the money pay- 
ments to the Watergate defendants and the attempt of one of the de- 
fendants to blackmail the White House. (President’s Statement 
August 15, 1973, Pres. Doc. 992). As indicated above, it also came 
shortly after Ehrlichman learned of Hunt’s alleged blackmail threat. 
The telephone conversation between the President and Colson is the 
first conversation between them after Dean's conversation with the 
President on March 21, 1973. Materials in the possession of the Com- 
mittee indicate that Colson and the President discussed the Watergate 
matter in this conversation. This is also the date on which it is alleged 
that a delivery of $75,000 for the benefit of Hunt was made by LaRue. 
{TJ nit ed States v. Mitchell , et al ., Indictment, overt act 43) . 

( 11 ) Meeting between the President and Mr. Haldeman on March 22, 
1973 from 9 :11 to 10 :35 a.m.* 

This meeting is Haldeman’s first meeting with the President follow- 
ing the $75,000 payment which allegedly was made in the evening of 
March 21. It immediately precedes a morning meeting among Halde- 
man, Ehrlichman, Mitchell and Dean, at which Dean testified that 
Ehrlichman asked Mitchell if Hunt’s money problem had been taken 
care of and Mitchell replied that it was no longer a problem. (Dean, 
3 SSC 1000-01 ; Ehrlichman, 7 SSC 2853) . Mitchell has denied making 
such a statement. (Mitchell, 4 SSC 1650) . The second meeting is one of 
the overt acts alleged in the conspiracy indictment in United States v . 
Mitchell , et al ., (Indictment, overt act 44). The President has stated 
that he directed this second meeting to take place to determine “the 
best way to get the whole story out” about the Watergate matter. 
(President’s News Conference, March 6, 1974, Pres. Doc. 293). 

(12) Telephone conversation between the President and Mr. Colson 
on April 12, 1973, from 7 :31 to 7 :48 p.m.* 

Materials in the possession of the Committee indicate that the 
President called Colson in Boston on April 12, said that he wanted to 



257 


act promptly on Watergate and asked Colson to prepare a specific set 
of recommendations. This conversation is the last contact between Col- 
son and the President prior to two meetings which Colson had with 
Ehrlichman on April 13, 1973 as part of Ehrlichman’s inquiry, directed 
by the President, into the Watergate matter. Ehrlichman has testified 
that, at Colson’s request, they met and Colson told him that Hunt, on 
April 16, would testify to the grand jury about the payments to the 
Watergate defendants and that McCord would testify about an attempt 
to break into the offices of Henry Greenspun, a Las Vegas newspaper 
publisher. Colson, according to Ehrlichman, said that he had some 
suggestions to convey to the President. (Ehrlichman, 7 SSC 2800-01; 
Ehrlichman ’s notes of this meeting, Exhibit 98, 7 SSC 2933-36). 

(13) Two telephone conversations between Mr. Ehrlichman and 
Mr. Gray on April 15, 1973 between 10 :16 and 11 :15 p.m. 

Ehrlichman has testified that while he was in the presence of the 
President he, at the President’s request, telephoned Gray with respect 
to the documents that had been taken from Hunt’s White House safe 
shortly after the Watergate break-in and given to Gray. During these 
conversations, Gray informed Ehrlichman that he had destroyed the 
documents and Ehrlichman transmitted this information immediately 
to the President. (Ehrlichman, 7 SSC 2675-76). Gray has confirmed 
that Ehrlichman made these two telephone calls. (Gray, 9 SSC 3470). 

(14) Telephone conversation on April 17, 1973, between the Presi- 
dent and Mr. Dean from 9 :19 to 9 :25 a.m. 

On April 17, 1973, the President had a telephone conversation with 
John Dean. Dean has testified that during this conversation the Presi- 
dent stated that he had decided not to request any resignations until 
after the grand jury took action and that he would issue a statement 
very shortly. (Dean, 3 SSC 1019) . 

(15) Specified conversations on April 18, 1973 among or between 
the President, Mr. Haldeman and Mr. Ehrlichman. 

The President’s records set forth that the following meeting and 
telephone conversations took place on April 18, 1973 among the Presi- 
dent, Haldeman and Ehrlichman : 


12:05 to 12:20 a.m.* Telephone conversation between the President 

and Mr. Haldeman 

3 :05 to 3 :23 p.m.* Meeting between the President and Mr. 

Ehrlichman 

0:30 to 8:05 p.m.* Meeting among the President, Mr. Ehrlichman 

and Mr. Haldeman 


These conversations occurred the day after the President’s state- 
ment on April 17, 1973, during which he stated that “there have been 
major developments in the [Watergate] case.” (President’s Statement, 
April 17, 1973, Pres. Doc. 387). During this period, various White 
House officials were being summoned to testify before the Watergate 
grand jury. In addition,, shortly before his conversation with Ehrlich- 
man, the President had a telephone conversation with Petersen and 
stated that Dean had told him that the prosecutors had given im- 
munity to Dean and the President had a tape to prove this statement 
by Dean. Petersen denied that immunity had been granted. (Petersen, 
9 SSC 3630, 3654-56). This was also the date on which the President 
learned that the prosecutors had been told of the break-in of the office 



258 


of Daniel Ellsberg’s phychiatrist by members of the White House 
Special Investigations Unit. (President’s News Conference, Au- 
gust 22, 1973, Pres. Doc. 1020) . 

(16) Specified conversations on April 19, 1973, among or between 
the President, Mr. Haldeman, Mr. Petersen and Mr. Ehrlichman. 

The President’s records set forth that the following meeting and 
telephone conversations took place on April 19, 1973, among the 
President, Haldeman, Ehrlichman and Petersen : 


9:31 to 10:12 a.m.* Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 

10 : 12 to 11 :07 a.m Meeting between the President and Mr. 

Petersen 

1 :03 to 1 :30 p.m.* Meeting between the President and Mr. 

Ehrlichman 

5 :15 to 5 :45 p.m.* Meeting between the President and Mr. 

Ehrlichman 

9:37 to 9:53 p.m.* Telephone conversation between the President 

and Mr. Haldeman 

10:54 to 11:04 p.m.* Telephone conversation between the President 

and Mr. Ehrlichman 


In his meeting on April 19, 1973, the President and Petersen spoke 
about the Watergate investigation. Petersen gave the President a re- 
port on the progress of the investigation. The President met with 
Ehrlichman and Haldeman both immediately prior to the meeting 
with Petersen and subsequent to that meeting. Moore has testified that 
on April 19 he told the President that Dean had said that Ehrlichman 
would have a problem involving the Ellsberg case. (Moore, 5 SSC 
1961). Dean, on this date, issued a public statement that he would not 
be made “a scapegoat” in response to the President’s April 17 state- 
ment against granting immunity to high White House aides. (Dean, 
3 SSC 1020) . In the evening, from 8 :26 to 9 :32 p.m., the President had 
his first meeting with John Wilson and Frank Strickler, the attorneys 
who were retained to represent Haldeman and Ehrlichman in the 
Watergate matter. The President has produced an edited transcript 
of that conversation. Immediately thereafter, the President spoke by 
telephone with Haldeman and then with Ehrlichman. 

(17) Specified conversations on April 20, 1973 among or between 
the President, Mr. Haldeman and Mr. Ehrlichman. 

The President’s records set forth that the following meetings and 
telephone conversations took place on April 20, 1973 involving the 
President, Haldeman and Ehrlichman : 


11 :07 to 11 :23 a.m.* Meeting between the President and Mr. 

Haldeman 

12 :15 to 12 :34 p.m.* Meeting among the President, Mr. Haldeman 

and Mr. Ehrlichman 


Materials in the possession of the Committee reflect that on April 20, 
1973, Petersen again reported to the President on the progress of the 
investigation of the Watergate matters and discussed potential con- 
flicts of testimony. Both immediately prior to and subsequent to the 
conversation between the President and Petersen, there are conversa- 
tions between the President and Haldeman, with Ehrlichman being 
present at the second conversation. 

(18) Specified conversations on April 25, 1973 among or between 
the President, Mr. Haldeman, Mr. Ehrlichman, Mr. Wilson and Mr. 
Strickler. 



259 


The President’s records set forth that the following meetings and 
telephone conversations took place among the President, Haldeman, 
Ehrlichman, Wilson and Strickler on April 25, 1973 : 


approximately 9:25 a.m. to ap- 
proximately 10 :45 a.m. 

11 :06 a.m. to 1 :55 p.m.* 

4 :40 to 5 :35 p.m.* 


6 :57 to 7 :14 p.m.* 
7 :17 to 7 :19 p.m.* 
7 :25 to 7 :39 p.m.* 
7:46 to 7:53 p.m.*. 


Meeting among the President, Mr. Wilson and 
Mr. Strickler 

Meeting among the President, Mr. Haldeman 
and Mr. Ehrlichman 

Meeting between the President and Mr. Halde- 
man (Mr. Hart present from 5:30 to 5:32 
p.m.) 

Telephone conversation between the President 
and Mr. Haldeman 

Telephone conversation between the President 
and Mr. Ehrlichman 

Telephone conversation between the President 
and Mr. Ehrlichman 

Telephone conversation between the President 
and Mr. Haldeman 


On the morning of April 25, after speaking by telephone with Peter- 
sen, the President met with Wilson and Strickler, the attorneys for 
Haldeman and Ehrlichman, and then had a lengthy meeting with 
Haldeman and Ehrlichman. Secret Service records indicate that at 
approximately the time this later meeting ended, Stephen Bull, a 
Presidential assistant, signed out 22 tapes of Presidential conversa- 
tions. (Exhibit 7, In Re SDT , Misc. 47-73). Bull has testified that he 
turned over these tapes to Haldeman. (Bull, In re SDT , Tr. 343—15.) 
Haldeman has testified that he listened to the tape of the March 21, 
1973 conversations between the President and Dean. (Haldeman, In Re 
SD7\ Misc. 47-73, Tr. 927, 937-38.) The President has stated that 
Haldeman listened to this tape at the request of the President. (Presi- 
dent’s Statement, November 12, 1973, Pres. Doc. 1329.) Also on April 
25, Petersen and Kleindienst asked the President to change his decision 
not to send the information about the Fielding break-in to Judge 
Byrne in the Ellsberg trial. The President did change his decision. 
(Kleindienst, 9 SSC 3574-75; Petersen, 9 SSC 3631-32; President’s 
Statement, August 15, 1973 ; Pres. Doc. 993 ; President’s News Con- 
ference, August 22, 1973, Pres. Doc. 1020-21). 

(19) Specified conversations on April 26, 1973 among or between 
the President, Mr. Haldeman and Mr. Ehrlichman. 

The President’s records set forth that the following meetings and 
telephone conversations took place on April 26, 1973, among the Presi- 
dent, Haldeman, and Ehrlichman : 


8 :55 to 10:24 a.m.* Meeting between the President and Mr. Halde- 

man 

3 : 59 to 9 :03 p.m.* Meeting between the President and Mr. Halde- 

man. (Mr. Ehrlichman was present from 
5 :57 to 7 : 14 p.m.) 


According to Secret Service logs, on April 26, Bull took out a series 
of Presidential tapes which were returned on May 2, 1973. (Exhibit 
7, In Re SDT , Misc. 47-73). Haldeman listened to the tape of March 
21, 1973, again at the President’s request. (Haldeman, In Re SDT , 
Tr. 937). A lengthy five hour and four minute meeting was held be- 
tween the President and Haldeman at which Ehrlichman was present 
for one hour and seventeen minutes. During this meeting, the Presi- 



260 


dent called Kleindienst four times (having called him twice earlier in 
the day) and Petersen twice. Petersen has testified that on this date 
the President called him to ask if Gray should resign as Acting FBI 
Director. Gray had acknowledged that he had destroyed documents 
given to him by Dean in June 1972 from Hunt’s White House safe. 
Petersen also testified that pursuant to the President’s instructions, 
he asked Gray to meet with Kleindienst and him to discuss the situa- 
tion. (Petersen, 9 SSC 3625). During the course of this meeting in 
Kleindienst ’s office, a telephone call was made to the President and the 
President was advised that Gray did not wish to resign. The President 
responded that Gray could remain as Acting FBI Director until the 
situation was analyzed. (Gray, 9 SSC 3591-92; Petersen, 9 SSC 3654; 
Kleindienst, 9 SSC 3598-99). 

(20) Telephone conversations on June 4, 1973 between the Presi- 
dent and Mr. Haldeman from 10:05 to 10:20 p.m.* and from 10:21 to 
10 :22 p.m.* 

The President has stated that on June 4, 1973, he listened to tapes 
of his various conversations with Dean. (President’s Statement, No- 
vember 12, 1973, Pres. Doc. 1329). Haldeman had previously listened 
to tapes at the President’s request. Material in the possession of the 
Committee indicates the likelihood of the President speaking to Halde- 
man about certain of the recorded conversations. 

* * * * * * * 

In calling for the above conversations, the Committee is seeking to 
determine : 

Whether any of the conversations in any way bear upon the 
knowledge or lack of knowledge of, or action or inaction by the 
President and/or any of his senior administration officials with 
respect to, the investigation of the Watergate break-in by the 
Department of Justice, the Senate Select Committee, or any other 
legislative, judicial, executive or administrative body, including 
members of the White House staff; 

Whether any of the conversations in any way bear upon the 
President’s knowledge or lack of knowledge of ; or participation 
or lack of participation in, the acts of obstruction of justice and 
conspiracy charged or otherwise referred to in the indictments 
returned on March 1 in the District Court for the District of 
Columbia in the case of United States v. Mitchell , et al., and 

Whether any of the conversations in any way bear upon the 
President’s knowledge or lack of knowledge of, or participation 
or lack of participation in, the acts charged or otherwise referred 
to in the informations or indictments returned in the District 
Court for the District of Columbia in the case of United States v. 
Magruder ; United States v. Dean; United States v. Chapin; and 
United States v. Ehrlichman , et al, , or any other acts which may 
constitute illegal activities. 



261 


COPY 

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


To — Banj-aatn-Mara haH-j-og-hAa- -duly- -amhorlaad-rapreaantatlvat 

You are hereby commanded to summon 

.Richard H. Mixon ,-.Braaldant--ol.-tha--Qaitad ttrto-ot Atgj«a r -»y * — 

subordinate officer, official or eoployes with custody or control of 
-tha-thlngs. d a i c rlb sd I n ths-sttschsd-schsdolsy 

to be and appear before the Co— ittss mi ftia Tmlti Imij 

36cnOOiSOte of the House of Representatives of the United States, of which the hf° n 

-P et e r M. R od 1 . n o r Jr, is chairman, t<>hringvith 

- hln - th a thl a ga s p eci fi ed -la -tbe-eohedule- att ac h e d heret o-and-dsdo-s-pert 

" h e reof, 


in their chamber in the city of Washington, on -or-befo**- — 

Jttly-Z,~aS74- at the hour of KHOG-AriH.- 

produce and deliver said things to a^ld Copp£ttee, or thf^r 
then and there to r Hg v tedr t af I P 

duly authorised representative. In connection with the Committee' s Inveatl- 

gatlon authorised and dlractad by 
H. Res, 803. adopted February 6. 1974. c 

Herein fail not, and make return of this summons. 

Witness my hand and the seal of the House of Representatives 

of the United States, at the city of Washington, this 



1974 — 


Chairman. 


Attest: 



On behalf of Richard M. Nixon, President 
of the United States of America, T accept 
service of the original subpoena, of 
which - " theTforegoing Is a copy. 



JAMES D. ST/ CLAIR 
Special Counsel to the President 


1047 



Schedule of Things Required To Be Produced Pursuant to 
Subpoena of the Committee on the Judiciary 

A. All tapes, dictabelts, other electronic and mechanical recordings, 
transcripts, memoranda, notes and other writings and things relating 
to the following conversations: 

1. Conversations of the President with Mr. Haldeman and Mr. 
Ehrlichman, or either of them, between about 12:30 p.m. and about 
1 :28 p.m., and between about 5 :15 p.m. and about 6 :32 p.m., March 6, 
1.972. 

2. Conversations between the President and Mr. Haldeman from 
about 1 :40 p.m. to about 2 :13 p.m., March 6, 1972. 

3. Telephone conversation between the President and Mr. Colson 
from about 7 :36 p.m. to about 8:02 p.m., March 6, 1972. 

4. Telephone conversation between the President and Mr. Mitchell 
beginning about 6:05 p.m., March 14, 1972. 

5. Conversation between the President and Mr. Colson from about 
1 :24 p.m. to about 3 :40 p.m., March 18, 1972. 

6. Conversations between the President and Mr. Haldeman on 
March 30, 1972, from about 9 :38 a.m. to about 9 :58 a.m. ; about 10 :42 
a.m. to about 11 :10 a.m. ; about 11 :50 a.m. to about 12 :15 p.m. ; and 
about 5:32 p.m. to about 6:08 p.m. 

7. Any conversation of the President with Mr. Haldeman and Mr. 
Colson, or either of them, between about 12:46 p.m. and about 2:32 
p.m., March 30, 1972. 

8. Any conversation of the President with Mr. Haldeman and Mr. 
Colson, or either of them, between about 5 :32 p.m. and about 6 :11 p.m., 
March 30, 1972. 

9. Telephone conversation between the President and Mr. Colson 
between about 7 :33 p.m. and about 7 :45 p.m., March 30, 1972. 

10. Conversations between the President and Mr, Haldeman from 
about 9:44 a.m. to about 10:06 a.m.; about 10:48 a.m. to about 11:45 
a.m.; about 2:45 p.m. to about 3:00 p.m.; and 6:03 p.m. to about 
6:18 p.m., April 4, 1972. 

11. Telephone conversation between the President and Mr. Colson 
between about 10:46 a.m. and about 11:09 a.m., April 4, 1972. 

12. Conversation between the President and Mr. Colson between 
about 11 :45 a.m. and 12 :23 p.m., April 5, 1972. 

B. The President’s copies of daily news summaries (and all his 
notes and memoranda with respect thereto) which were compiled by 
White House staff members during the period February 22, 1972 
through June 9, 1972, inclusive, summarizing news reports by news- 
papers, periodicals, wire services, and the broadcast media, to the ex- 
tent that such news summaries relate, directly or indirectly, to any of 
the following subjects : (a) the International Telephone and Telegraph 
Corporation (ITT) or any of its subsidiaries, directors, officers, or 
employees; (b) litigation or administrative investigations or proceed- 
ings, actual or proposed, against or otherwise respecting said corpo- 

( 262 ) 



263 


ration, or any subsidiary, director, officer or employee thereof; (c) 
the nomination of Richard G. Ivleindienst to be Attorney General or 
any proposal, suggestion or consideration of whether to withdraw said 
nomination; or (cl) the hearings before the Senate Judiciary Com- 
mittee on the nomination of Richard G. Ivleindienst to be Attorney 
General, including the testimony given during such hearings. 

Memorandum Setting Forth Facts and Bases Underlying Pro- 
posed Subpoena for Recordings of Presidential Conversations 
and Other Things Necessary for the Committee’s Inquiry Re- 
lating to ITT and the Ivleindienst Confirmation Hearings 

The following sets forth the facts and bases underlying the pro- 
posed subpoena dated June 24, 1974 for recordings of Presidential 
conversations and other things necessary for the House Judiciary 
Committee’s inquiry into the ITT case and the hearings before the 
Senate Judiciary Committee on the nomination of Richard G. Klein- 
dienst to be Attorney General. 

In 1969, three antitrust suits were filed by the United States against 
the International Telephone and Telegraph Corporation (ITT), each 
seeking to prevent a corporate acquisition or to require a corporate 
divestiture. During 1970 and 1971, particularly in August of the for- 
mer year and April of the latter, officials of ITT made numerous con- 
tacts with Administration officials for the purpose of attempting to 
persuade the Administration that the suits should be settled on a basis 
consistent with the interests of ITT. (Documents supplied to the 
Committee by the White House ; Memo C. W. Colson to H. R. Halde- 
man, March 20, 1972, Senate Select Committee (SSC) Exhibit 121, 
8SSC3372.) 

Late in December, 1970, ITT won in the District Court one of the 
three suits, brought in connection with its acquisition of the Grinnell 
Corporation. The once-postponed deadline for the United States to 
file its appeal in the United States Supreme Court in the ITT-Grinnell 
case was April 20, 1971. (Petition of Government filed in Supreme 
Court on March 19, 1971, and granted by Mr. Justice Harlan on 
March 20, 1971.) 

On April 19, 1971, the President, in the course of a meeting with 
John D. Ehrlichman and George P. Shultz, telephoned Deputy At- 
torney General Kleindienst and ordered that the appeal not be filed. 
The President has said that he took this action because in his opinion 
the further prosecution by Assistant Attorney General Richard Mc- 
Laren of the suit was inconsistent with the antitrust policy approved 
by the President in consultation with his senior economic advisers. 
During the meeting, the President expressed irritation with McLaren ’s 
failure to follow administration policy. ( White House “White Paper,” 
The ITT Anti-Trust Decision , January 8, 1974, p. 5.) On the follow- 
ing day, the Solicitor General’s office obtained from the Supreme Court 
an extension of the time in which to file the ITT-Grinnell appeal. 
(White House “White Paper,” supra , p. 5 ; Griswold testimony, Klein- 
dienst Confirmation Hearings (KCH) 2 KCH 389; Application for 
Extension of Time filed in the Supreme Court.) 

On April 21, 1971. the President met with Attorney General Mit- 
chell. The Attorney General said that in his opinion it was inadvisable 



264 


for the President to order no appeal in the Grinnell case, that there 
would be adverse repercussions in Congress 2 and that Solicitor General 
Griswold might resign. The President agreed to follow the Attorney 
General’s advice. (White House “White Paper,” supra , p. 5.) 

Sometime during the spring of 1971, ITT-Sheraton, an ITT subsid- 
iary, made a pledge to the San Diego Convention and Visitors Bureau 
in support of a bid by the City of San Diego to attract the 1972 Re- 
publican National Convention. (White House “White Paper,” supra, 
p. 7.) Evidence indicates that sometime in May or June of 1971, At- 
torney General Mitchell became aware of the pledge. (Documents sup- 
plied to the Committee by the White House ; Memo C. W. Colson to 
H. R. Haldeman, March 30, 1972, SSC Exhibit 121, 8 SSC 3372.) 

During June, 1971, the Antitrust Division of the Justice Depart- 
ment decided to try to settle the three ITT antitrust cases. (McLaren, 
2 KCH 111-112.) The final settlement was announced on July 31, 1971. 
(McLaren, 2 KCH 113.) Several authorities have stated that the set- 
tlement, calling for the largest antitrust- related corporate divestiture 
in history, was a good one from the government’s standpoint. (See, 
e.g ., Griswold, 2 KCH 374.) It did, however, enable ITT to retain its 
Hartford Fire Insurance subsidiary, a matter of paramount impor- 
tance to the company. 

On February 15, 1972, the nomination of Richard G. Kleindienst to 
become Attorney General was forwarded by the President to the Sen- 
ate for confirmation. (Weekly Compilation of Presidential Documents, 
Vol. 8, p. 440.) Mr. Kleindienst was to replace John Mitchell, who was 
leaving the Justice Department to head the Committee for the Re- 
election of the President. The Senate Judiciary Committee held hear- 
ings on this nomination and quickly agreed to recommend confirmation 
to the Senate. (Report of the Senate Judiciary Committee on the Nom- 
ination of Richard G. Kleindienst, 92d Cong., 2d Sess., Executive Rep. 
No. 92-19, February 29, 1972.) 

Before the Senate could act, however, beginning on February 29, 
1972, a series of three articles by Jack Anderson was published alleg- 
ing a link between the ITT-Sheraton pledge and the antitrust settle- 
ments and purporting to involve Messrs. Mitchell and Kleindienst. 
(2 KCH 461-465.) Mr. Kleindienst immediately asked that the Senate 
Judiciary Committee hearings be reopened so that he could respond to 
the charges. (2 KCH 95.) 

At about the same time, the Securities and Exchange Commission 
( SEC) demanded that ITT turn over to it documents believed by the 
SEC to be in the files of ITT’s Washington, D.C. office. The docu- 
ments included several which reflected ITT contacts with the Ad- 
ministration in 1970 and 1971 in connection with attempts to settle 
the antitrust cases. On March 2, 1972, the first day of the resumed 
Kleindienst nomination hearings, attorneys for ITT turned copies 
of one or more of these documents over to White House aide Wallace 
Johnson. The following week, others of these documents were also 
furnished to Johnson. Later, during March or April, copies of the 
documents were provided by ITT to the SEC. 

During the course of the hearings, Mr. Kleindienst on several occa- 
sions denied having ever received any instructions from the White 



265 


House with respect to antitrust suits. (2 KCH 157; 2 KCH 191; 2 
KCII 353.) On Friday, March 3, 1972, Senator Kennedy asked Mr. 
Kleindienst about the extension of time to apeal the Grirmell case 
which had resulted from the President’s April 19, 1971 telephone 
call to him. Mr. Kleindienst responded : 

“Senator Kennedy, I do not recollect why that extension was asked.” (2 
KCH 204.) 

The following Tuesday, March 7, 1972, Mr. Kleindienst, in a prepared 
statement, described the circumstances surrounding the request for 
an extension, omitting any mention of the President’s order to drop 
the case. (2 KCH 249-250.) 

On March 14 and March 15, 1972, John Mitchell appeared before 
the Senate Judiciary Committee. He testified that there had been no 
communication between the President and him with respect to the 
ITT antitrust litigation or any other antitrust litigation. (2 KCH 
552; 2 KCH 571.) 

In early March, a White House task force, including Messrs. Ehr- 
lichman, Colson, Fielding, Johnsou, Mardian and others, was estab- 
lished to keep track of the Kleindienst hearings, and its activities 
continued throughout the month. Members of the task force met from 
time to time with Messrs. Mitchell and Kleindienst. Mr. Fielding was 
given the responsibility of reviewing White House files to collect all 
documents which related to ITT. 

On March 24, 1972, the President held his only press conference 
during this period. He said that : 

“• * * as far as the [Senate Judiciary Committee] hearings are concerned, 
there is nothing that has happened in the hearings to date that has in one 
way shaken my confidence in Mr. Kleindienst as an able, honest man, fully 
qualified to be Attorney General of the United States.” (Weekly Compilation 
of Presidential Documents, Vol. 8, No. 8, pp. 673-674. ) 

He also said that, “In this Administration we moved on ITT. We are 
proud of that record.” He said that administration action had pre- 
vented ITT from growing further and quoted Solicitor General Gris- 
wold as to the excellence of the ITT settlement. “We moved on [ITT] 
and moved effectively . . . Mr. McLaren is justifiably very proud of 
that record . . . [and he] should be.” (Id. at p. 675.) 

On the morning of March 30, 1972, Messrs. Colson, Haldeman and 
MacGregor met. That afternoon, Mr. Colson sent a memorandum to 
Mr. Haldeman indicating his disagreement with Mr. Haldeman’s 
view, apparently presented at a meeting that morning, that the White 
House should continue to support Mr. Kleindienst’s nomination. His 
reasons included the possibility that documents would be revealed sug- 
gesting that the President was involved in the ITT situation in 1971 
and contradicting statements made bv Mr. Mitchell under oath. (SSC 
Exhibit 121, 8 SSC 3372.) 

On April 4, 1972, John Mitchell returned to his office after about 
two weeks in Florida. (Mitchell logs.) That afternoon, he met with 
the President and Mr. Haldeman at the White House and, according 
to Mr. Haldeman’s testimony before the Senate Select Committee, thev 
discussed the Kleindienst hearings. (7 SSC 2881.) The Committee has 
received from the President an edited transcript of the tape of this 
meeting. 



266 


On April 19, 1972, Ed Reinecke, Lt. Governor of California, testi- 
fied that he had not told then Attorney General Mitchell about the 
ITT-Sheraton financial pledge until September, 1971. Clark Mac- 
Gregor and Mr. Mardian had met with Mr. Reinecke the morning he 
testified. On April 3, 1974, Mr. Reinecke was indicted by a District 
of Columbia grand jury for perjury in connection with that testi- 
mony. (Indictment, April 3, 1974, U.S. v. Reinecke , Crim. No. 74-155.) 

On April 27, 1972, the last day of the hearings, Mr. Kleindienst re- 
ferred to his earlier testimony about communications with the White 
House and said : 

I tried to make it clear, Senator Fong, that in view of the posture I put myself 
in, in this case, I could have had several conversations but I would have had a 
vivid recollection if someone at the White House had called me up and said, 
‘Look, Kleindienst, this is the way we are going to handle that case.’ People 
who know me, I don’t think would talk to me that way, but if anybody did it 
would be a very sharp impact on my mind because I believe I know how I 
would have responded. 

No such conversation occurred. (3 KCH 1682.) The Committee 
needs to examine certain conversations during the period between Feb- 
ruary 29 and April 5, 1972, to aid in determining the participation or 
nonparticipation, knowledge or lack of knowledge of the President 
and his senior advisors with respect to testimony before the Senate in 
the Kleindienst hearings. 

The specific conversations referred to in Part A of the schedule at- 
tached to the proposed subpoena are as follows : 

A. Items 1, 2 and 3 of Part A refer to conversations between 
the President and Messrs. Haldeman, Ehrlichman or Colson on 
Monday, March 6, 1972. This was the day after the President re- 
turned from a weekend at Key Biscayne, and four days after the 
ITT document or documents had been delivered to Write House 
aide Johnson. The Kleindienst hearings had resumed the previous 
Thursday and were continuing. On the same day Mr. Ehrlichman 
contacted the Chairman of the SEC to discuss ITT documents. 

B. On the evening of March 14, 1972, the President and Mr. 
Mitchell had a telephone conversation. It was their only phone 
conversation during the month of March of which we are aware. 
This was the evening of the first day of Mr. Mitchell’s testimony 
during which he twice denied ever having discussed antitrust liti- 
gation with the President. Materials respecting the conversation 
are requested in Item 4 of Part A of the schedule attached to 
the proposed subpoena. 

C. According to Mr. Colson’s calendar, he spent the morning 
of March 18, 1972, on “ITT” matters. He had three telephone 
conversations with Mr. Mitchell during the morning. That after- 
noon, the President and Mr. Colson met over two hours. The 
Kleindienst hearings were still continuing. Item 5 of Part A of 
the schedule attached to the proposed subpoena covers this con- 
versation. 

D. In a memorandum from Mr. Colson to Mr. Haldeman dated 
March 30, 1972 (Exhibit 121, 8 SSC 3372), Colson indicated that 
the subjects of discussion among senior White House aides on that 
date were the Kleindienst hearings, the possibility of withdraw- 
ing his nomination, documents relating to the Senate Judiciary 



267 


Committee hearings, and testimony by Mr. Mitchell before the 
Committee. The President met with Mr. Haldeman and Mr. Colson 
on March 30. Haldeman during the course of two of his meetings 
with the President on March 30 talked by telephone with Klein- 
dienst. Items 6, 7, 8 and 9 of Part A of the schedule attached to the 
proposed subpoena request materials respecting the March 30 con- 
versations involving the President, Haldeman and Colson. 

E. On April 4 and 5, 1972, the President had conversations with 
Mitchell, Haldeman and Colson. At about this time the President 
apparently made the decision not to withdraw the Kleindienst 
nomination. Items 10, 11 and 12 of Pail A of the schedule at- 
tached to the proposed subpoena call for materials relating to 
these conversations. 

Part B of the schedule attached to the proposed subpoena requests 
news summaries submitted to the President during the period of the 
hearings on the nomination of Kleindienst before the Senate Judiciary 
Committee and the debate by the Senate on that nomination. The 
summaries are compiled from various news media and submitted to 
the President daily. From time to time the President makes written 
comments and notations on these news summaries. The President’s 
copies of these summaries would be probative of the President’s 
knowledge or lack of knowledge of the testimony during, and events 
surrounding, the hearings and debates on the Kleindienst nomination. 



268 


COPY 

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


To ...B 


’..authorised ttpwntitlv* : 


You are hereby commanded to summon . 


_of A—rlci^„or„<ny.._ 
•ubordlnatt officer, official or enployn with custody or control of 
fho things dxetlbiJ •*" tht ' 


to be and appear before the . — Xo wlUt ■ o n th o Ju diciary 

xgaOOSttiP of the House of Representatives of the United States, of which the Hon 

-Petar-Vv-^odlnOy -Jr v *» chairman, and bving vi th — 


hl»~tho~thlnga- spoei fled-ia- rho sc h ed ul e e tfcaohod-herato-and-»ada~a-per* — 
-bsnofr : 


in their chamber in the city of Washington, on -er-hafor* 

-inl y 7, I 9 7 d at the hour of lfliOQ AX 

produce and deliver aald things to a aid Coonlttee, or thalr 
then and there t taUfxtf y i te XDtlu gDWttgBfflfeBIlBI IK )UCTaB fegl ffl nk fat W3I 
duly authorised representative* In cotmactlon with tho Covnlttee*s Invest!- 
XJIWIX^h^ria^KKlrinW li gat Ion authorised and directed by 

H. Res, 603. adopted Vabruary 6, 1974. 

Herein fail not, and make return of this summons. 

Witness my hand and the seal of the House of Representatives 

of the United States, at the city of Washington, this 





Schedule of Things Required To Be Produced Pursuant to 
Subpoena of the Committee on the Judiciary 

A. The President’s daily diaries (as reflected on U.S. Government 
Printing Office Form “1969-0-332-068” or its successor forms) for the 
period March 19, 1971 to March 25, 1971, both inclusive. 

B. All tapes, dictabelts, other electronic and mechanical recordings, 
transcripts, memoranda, notes and other writings and things relating 
to the following conversations : 

1. Between the President and John Ehrlichman on March 19. 
1971 from approximately 8:30 a.m. to approximately 11:00 a.m.; 
on March 23, 1971, beginning at approximately 12:00 noon and 
ending at approximately '1 :07 p.m. ; on March 25, 1971, beginning 
at approximately 8 :30 a.m. ; and on March 25, 1971, beginning at 
approximately 3 :00 p.m. 

2. Between the President and John B. Connally on March 20, 
1971; March 22, 1971; and on March 23, 1971 from 5:35 p.m. to 
5 :38 p.m. 

3. Between the President and Charles W. Colson on March 19, 
1971; March 21, 1971; March 22, 1971 (four conversations); 
March 23, 1971; March 24, 1971 (three conversations) ; and 
March 25, 1971. 

Memorandum Setting Forth Facts and Bases Underlying Pro- 
posed Subpoena for Recordings of Presidential Conversations 
and Other Things Necessary for the Committee’s Inquiry Into 
the 1971 Milk Price Support Decision 

The following sets forth certain of the facts and bases underlying 
the proposed subpoena for materials necessary for the Committee’s in- 
quiry into the President’s 1971 decision to increase milk price supports. 
The Committee has received additional evidence with respect to this 
matter in executive session. 

Part A of the schedule attached to the proposed subpoena lists : 

The President’s daily diaries (as reflected on U.S. Government 
Printing Office Form “1969-0-332-068” or its successor forms) 
for the period March 19, 1971, to March 25, 1971, both inclusive. 
The President’s daily dairy is a log compiled by the Secret Service of 
the time and duration of the President’s meetings and telephone con- 
versations throughout the day. The daily diaries would enable the 
Committee to ascertain whether the President met or spoke with per- 
sons likely to be involved with contributions by the milk producer co- 
operatives during the period when the White House was considering 
whether to increase milk price supports above the level fixed by the 
Secretary of Agriculture. 

Part B of the schedule attached to the proposed subpoena lists tapes 
and other things respecting the following specified presidential con- 
versations : 


( 269 ) 



270 


(1) Between the President and John Ehrlichman on March 19, 1971, 
from approximately 8 :30 a.m. to approximately 11 :00 a.m. ; on March 
23, 1971, beginning at approximately 12:00 noon and ending at ap- 
proximately 1 :07 p.m. ; on March 25, 1971, beginning at approximately 
8:30 a.m.; and on March 25, 1971, beginning at approximately 3:00 
p.m. 

As the President’s principal advisor on domestic affairs, Mr. 
Ehrlichman participated in the White House review of the Secre- 
tary of Agriculture’s milk price support decision and the President’s 
decision to increase the milk price support level. 

The Committee has received a copy of Mr. Ehrlichman’s office diary 
which indicates that Mr. Ehrlichman met with the President at the 
times specified above during the period March 19, 1971-March 25, 
1971. 

(2) Between the Preisdent and John B. Connally on March 22, 
1971, and on March 23, 1971, from 5 :35 p.m. to 5 :38 p.m. 

Beginning in February, 1971, AMPI representatives communicated 
with Secretary of the Treasury Connally to urge an increase in milk 
price supports. Secretary Connally discussed the milk price support 
issue with the President and participated in the decision to increase the 
milk price support level. 

According to a White House compilation of meetings and telephone 
calls between the President and Connally, the President met or spoke 
with Connally on the dates and times indicated above. 

(3) Between the President and Charles W. Colson on March 19, 
1971; March 21, 1971; March 22, 1971 (four conversations) ; March 
23, 1971 ; March 24, 1971 (three conversations) ; and March 25, 1971. 

As the White House liaison with the milk producer cooperatives, 
Mr. Colson communicated frequently with AMPI representatives 
from 1970 through 1971 regarding political contributions to the 
President’s re-election. Mr. Colson met with representatives of the 
milk producer cooperatives during the period the President determined 
to increase the milk price support level. 

According to a White House compilation of meetings and tele- 
phone calls between the President and Colson, Colson met or spoke 
with the President on the dates indicated above. 



COPY 


BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


To -Jfla j a aln M a r s h a ll , .or..hle.. duly:, a uthor! r ed y >pr<MnUtly» 

You are hereby commanded to summon 

~ Rich a rd -M- Nlxon ^-Er— ldent- of .. t ha. Uni t ed . St a te s of Am a rir a,..o r an y 

subordinate officer, official or employee with custody or control of 
--tba^things-dascribad-.ln the attached. schedule, 

to be and appear before the CoTia1ttee .oa.-the Judiciary 

^IXimiitae of the House of Representatives of the United States, of which the Hon. 

..Peter„H^JtQdino»_Jr^ is chairman, _And_J:(^hring.jfith._. 

Matie.thingaapecif iedia_the.schedjole.At.tAchftdJhftretQ.andiMde_s.pert 

.hereof* 


in their chamber in the city of Washington, on or„befoxa 

JulyJU_l£24 at the hour of hQj.QOA.M* 

produce and deliver said things to said Cores! t tea, or their 

then and there to 

duly authorised representative, in connection with the Coreslt tee's Investi- 

gatloa authorised end directed by 
H. Res. 803, adopted February 6, 1974. « 

Herein fail not, and make return erf this summons. 


Witness my hand and the seal erf the House of Representatives 
of the United States, at the city of Washington, this 
24 th. day of_ Juan 1 S7A 



Pater V. Rodino, Jr. 


Chairman. 


Attest: 



On behalf of Richard M. Nixon, President 
of the United States of America, I accept 
..serjiiee-T>^ the original subpoena, of 


Clerk, which the jforegolng Is a copy. 



JAMES ITT ^T. CLAIR 
Speclajr Counsel to the President 


1065 

! 


37-777 0 - 74-18 



Schedule of Things Required To Be Produced Pursuant to 
Subpoena of the Committee on the Judiciary 

All tapes, dictabelts, other electronic and mechanical recordings, 
transcripts, memoranda, notes (including notes of H. R. Haldeman), 
and other writings and things relating to : 

(1) A conversation on September 15, 1972, among the President, 
H. R. Haldeman and John Dean between approximately 6:00 and 
approximately 6 :13 p.m. 

(2) A conversation on September 15, 1972 between the President 
and H. R. Haldeman between 4 :43 and 5 :27 p.m. (Ronald Ziegler was 
present between 4 :43 and 4 :49 p.m.) 

Memorandum Setting Forth Facts and Bases Underlying Pro- 
posed Subpoena for Recording of Presidential Conversations 

and Other Things Necessary for the Committee's Inquiry Into 

Alleged Abuse of IRS 

The following sets forth the facts and bases underlying the proposed 
subpoena dated June 24, 1974 for recordings of Presidential conver- 
sations and other things necessary for the House Judiciary Commit- 
tee^ inquiry into alleged abuse of IRS. 

(1) Conversation on September 15, 1972 among the President, H.R. 
Haldeman and John Dean, from approximately 6 :()0 p.m. to approxi- 
mately 6 :13 p.m. 1 

According to an affidavit of SSC Minority Counsel Fred Thompson, 
he was informed in or about early June 1973 by J. Fred Buzhardt, then 
Special Counsel for the President, that during the September 15, 1972 
meeting Dean reported to the President on the IRS investigation of 
Larry O’Brien. (4 SSC 1794-96) 

On May 28, 1974, the Watergate Special Prosecutor moved Judge 
Sirica for an order that the recording of this portion of the conversa- 
tion of September 15, 1972, and the notes of Haldeman relating 
thereto, be turned over for presentation to the appropriate grand 
juries, on the basis that the recording is relevant to alleged White 
House attempts to abuse and politicize the IRS. According to the 
supporting affidavit of Special Prosecutor Leon Jaworski dated 
May 28, 1974, evidence assembled by his office substantiates allegations 
that in September 1972 the White House presented lists of “enemies” 
to the IRS with the direction that they be audited or otherwise 
harassed, and that in August and September 1972 the White House 
unlawfully attempted to have the IRS investigate Larry O’Brien. 
After listening to the tape of the September 15, 1972 conversation, 


a The Committee has in its possession a tape of that portion of the September 15, 1972 
conversation among the President, Haldeman and Dean which took place between 5 r27 
p.m. and approximately 6 :00 p.m. It also has in its possession a tape of a portion of a 
conversation between the President and Haldeman on September 15, 1972 from approxi- 
mately 5 :12 p.m. to 5 :27 p.m. 


( 272 ) 



273 


Judge Sirica orally granted the motion of the Special Prosecutor on 
June 7, 1974. On June 12, 1974, the Court ordered that the recording 
of the conversation from 6 :00 p.m. until approximately 6 :13 p.m., and 
the notes taken during that conversation by H. R. Haldeman, be made 
available to the Special Prosecutor. The President, through his 
counsel, filed a notice of appeal of that order on June 14, 1974. 

Dean has testified before the SSC that during the meeting on 
September 15, 1972, with the President and Haldeman, they discussed 
using the IRS to attack their enemies. According to Dean’s testimony, 
the President said that Democratic administrations used the IRS in 
the past and that after the election they would get people who would 
be responsive to White House requirements. Dean testified that at 
that point in the discussion Haldeman started taking notes. (3 SSC 
958; 4 SSC 1479-80, 1535) Haldeman testified that there was dis- 
cussion about the Democratic orientation of the IRS and the reluc- 
tance of the IRS to follow up on complaints of possible violations 
against people who were supporting opponents of the White House, 
and of cleaning house after the election. ( 7 SSC 2889 ) 

In addition, other materials presented to the Committee in Execu- 
tive Session further support the relevance of the recording of this 
conversation to the Committee’s inquiry. 

(2) Conversation on September 15, 1972, between the President and 
H. R. Haldeman between 4:43 and 5:27 p.m. (Ronald Ziegler was 
present between 4 :43 and 4 :49 p.m.) 

On September 15, 1972 the indictment of the seven defendants in 
United States v„ Liddy , charging violations with respect to the 
break-in at the Democratic National Committee headquarters was 
announced. The House Judiciary Committee has previously obtained 
a tape recording of the portion of this conversation from approxi- 
mately 5:12 to 5:27 p.m. This portion of the conversation relates to 
the use of the Internal Revenue Service. 



COPY 


BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE 
UNITED STATES OF AMERICA 


r ° *- BenJaario-Marahaliy^r-hiadulrauthoTtaad-repreeantativeJ 

You are hereby commanded to summon * 

idmfe-ol -tht- Dnit«4-St ng e g Aa trie> r -w ray 

subordinate of f tear , official or aeployee with custody or control of 

< l w r iU4 In th a 4tuah«d- ach*M»| 

to be and appear before the Cewlt tee -on- the- Judiciary 

iEonnr r tt t e of the House of Representatives of the United States, of which the Hon 

v 

Peter- V.-Rodlae, Jr* is chairman, 

-hlm £he-thlnge-.apeci£lad-lii-the-schadula~attaehed-berete-sad wade-e-psrt— 

hereof, 


in their chamber in the city of Washington, on er baiota 

J uly -2, -19l7A at the hour of -lOtOOi.M, 

produce and deliver said things to eald Coaolttee, or their 

then and there 

duly authorised reprosantftlye, \n c onnect Ion with the Coanlttee'a Invest 1- 
k^w Uuiil XK ai XKa .ai CT» aL £ia jiaatLOC gatlon authorised and -directed by 
H. Has., 803. adopted February 6, 2974. 

Herein fail not, and make return of this summons. 


Witness my hand and the seal of the House of Representatives 
of the United States, at the city of Washington, this 



1070 


Schedule of Things Required To Be Produced Pursuant to 
Subpoena of the Committee on the Judiciary 

A. All tapes, dictabelts, other electronic and mechanical recordings, 
transcripts, memoranda, notes and other writings and things relating 
to the following conversations : 

1. Meeting among the President, Charles Colson and H. R. 
Haldeman on June 23, 1971, between 11:39 a.m. and 12:41 pan. 

2. Meeting between the President and Charles Colson on June 
28, 1971 between 6 :50 and 7 :25 p.m. 

3. Meeting among the President, Charles Colson and H. R. 
Haldeman on July 1, 1971 between 10:28 and 11:49 a.m. (John 
Ehrlichman was present between 10 :58 and 11 :49 a.m. and Henry 
Kissinger was present between 11:22 and 11:24 a.m.) 

4. Meetings between the President and John Ehrlichman on 
September 7, 1971 between 8:33 and 10:35 a.m.; on September 8, 
1971 between 3:26 and 5:10 p.m.; and on September 10, 1971 be- 
tween 3 :03 and 3 :51 p.m. 

5. Meeting among the President, H. R. Haldeman and Charles 
Colson on September 7, 1971 between 10:37 a.m. and 12:00 p.m. 
and telephone conversation between the President and Charles 
Colson on September 10, 1971 between 3:53 and 4:17 p.m. 

6. Meeting between the President and Henry Petersen on April 
19, 1973 between 10 :12 and 11 :07 a.m. 

7. Meeting between the President and Richard Kleindienst on 
April 25, 1973. 

B. All memoranda, correspondence, papers and things prepared by, 
sent to, received by, or at any time contained in, the files of Charles 
Colson, H. R. Haldeman, John Ehrlichman, Egil Krogh and David 
Young, to the extent that such memoranda, correspondence, papers 
and things relate or refer directly or indirectly to the origin or to the 
activities of the White House Special Investigations Unit. These mem- 
oranda, correspondence, papers and things include, but are not limited 
to, all handwritten notes of John Ehrlichman produced by the White 
House on June 5 and June 6, 1974 pursuant to an order of Judge 
Gerhard Gesell in United States v. Ehrlichman (D.C.D.C. Cr. 74-116 ) . 

C. Handwritten notes of John Ehrlichman of a meeting on July 12, 
1971 among the President, John Ehrlichman and Robert Mardian. 

Memorandum Setting Forth Facts and Bases Underlying Pro- 
posed Subpoena for Recordings of Presidential Conversations 
and Other Things Necessary for the Committee’s Inquiry Into 
Domestic Surveillance Activities 

The following sets forth the facts and bases underlying the pro- 
posed subpoena dated June 24, 1974 for recordings of Presidential 
conversations and other things necessary for the House Judiciary 

( 275 ) 



276 


Committee’s inquiry into Domestic Surveillance activities and their 
aftermath. 

Part A of the proposed subpoena regards tape recordings and other 
materials respecting the following specified conversations: 

(1) Meeting among the President, Charles Colson and H. R. Halde- 
man on June 23, 1971, between 11:39 a.m. and 12:41 p.m. 

The President met with Colson and Haldeman from 11 :39 a.m. to 
12:41 p.m. Two days later Colson sent to Haldeman a memorandum 
detailing the political gains to be derived from the prosecution of 
Daniel Ellsberg. Charles Colson submitted an affidavit in United 
States v. Ehrlichman (D.C. D.C. Cr. 74-116) dated April 29, 1974 in 
which Colson stated that in meetings during this period the President 
repeatedly emphasized the gravity of the leaks and his concern about 
Ellsberg. 

(2) Meeting between the President and Charles Colson on June 28, 
1971 between 6 :50 and 7 :25 p.m. 

This is the first meeting between the President and Colson following 
Colson’s June 25, 1971 memorandum. Daniel Ellsberg was indicted on 
this date and surrendered to federal authorities. 

(3) Meeting among the President, Charles Colson and IT. R. Halde- 
man on July 1, 1971 between 10:28 and 11 :49 a.m. (John Ehrlichman 
was present between 10:58 and 11:49 a.m. and Henry Kissinger was 
present between 11 :22 and 11 :24 a.m.) 

Colson’s affidavit of April 29, 1974 filed in United States v. Ehrlich- 
man states that in a meeting between the President, Haldeman and 
Colson the President issued directions to stop security leaks at all 
cost. This is also the day that Colson called Howard Hunt to discuss 
the Pentagon Papers and Daniel Ellsberg and in a memorandum for- 
warding a transcript of that conversation to Haldeman, Colson re- 
ferred to a previous discussion between Haldeman and Colson. 

(4) Meetings between the President and John Ehrlichman on Sep- 
tember 7, 1971 between 8:33 and 10:35 a.m.; on September 8, 1971 be- 
tween 3:26 and 5:10 p.m.; and on September 10, 1971 between 3:03 
and 3 :51 p.m. 

According to the testimony of John Ehrlichman (John Ehrlichman 
testimony, Grand Jury, People v. Ehrlichman , June 8, 1973, 604) 
and his logs, these are the first meetings between the President and 
Ehrlichman following the Fielding break-in. On September 8, Ehrlich- 
man met with Egil Krogh and David Young (who headed the Plumb- 
bers unit) at 10:45 a.m. and later in the day, between 3:26 and 5:10 
p.m., met with the President. On September 10, Ehrlichman went di- 
rectly from a meeting with the President between 3:03 and 3:51 p.m. 
to meet with Krogh and Young. (Meetings and conversations between 
the President and Ehrlichman, furnished by the White House and 
John Ehrlichman logs) . 

(5) Meeting among the President, H. R. Haldeman and Charles Col- 
son on September 7, 1971 between 10:37 a.m. and 12:00 pm. and tele- 
phone conversation between the President and Charles Colson on 
September 10, 1971 between 3:53 and 4:17 p.m. 

According to the log of meetings and conversations between the 
President and Colson, and Charles Colson’s log, these are the first 
meetings between the President and Colson following the Fielding 



277 


break-in. The meeting on September 7, 1971 immediately followed a 
meeting between the President and Ehrlichman. On September 10, 
1971 the President talked to Colson immediately following the Presi- 
dent’s meeting with Ehrlichman. Ehrlichman met at 4 :00 p.m. with 
Krogh and Young and Colson met with Young at 8:00 p.m. 

(6) Meeting between the President and Henry Petersen on April 
19, 1973 between 10 :12 and 11 :07 a.m. 

The President, by letter of April 29, 1974, forwarded to Judge 
Gerhard (resell in United States v. Ehrlichman a transcript of this 
conversation between the President and Henry Petersen during which 
there was a discussion of the Fielding break-in. In his letter the Presi- 
dent stated that if the Judge desired to hear the tape itself, arrange- 
ments could be made with the President’s Counsel. Materials in the 
possession of the Committee indicate that the President discussed in- 
ternal security considerations. 

(7) Meeting between the President and Richard Kleindienst on 
April 25, 1973. 

Richard Kleindienst has testified that he met with the President on 
April 25, 1973 at the White House to advise the President to send in- 
formation about the Fielding break-in to Judge Byrne in the Ellsberg 
case. (Richard Kleindienst testimony, 9 SSC 3574-75, 3607) . The Pres- 
ident- has stated that Kleindienst came to see him and the President 
instructed that the Justice Department memoranda relating to the 
break-in be filed with the Court in Los Angeles. (President Nixon’s 
statement, May 22, 1973, 9 Pres. Docs. 696) . 

Part B of the subpoena requests the following materials : 

All memoranda, correspondence, papers and things prepared 
by, sent to, received by or at any time contained in the files of 
Charles Colson, II. R. Haldeman, John Ehrlichman, Egil Krogh 
and David Young to the extent that such memoranda, correspond- 
ence, papers and things relate or refer directly or indirectly to 
the activities of the White House Special Investigations Unit. 
These memoranda, correspondence, papers and things include, 
but are not limited to : 

(1) All handwritten notes of John Ehrlichman produced 
by the White House on June 5 and June 6, 1974 pursuant to 
an order of Judge Gerhard Gesell in United, States v. Ehr- 
lichman (D.C.D.C. Cr. 74—116). 

(2) Handwritten notes of John Ehrlichman of a meeting 
on July 12, 1971 among the President, John Ehrlichman and 
Robert Mardian. 

Part B of the subpoena seeks materials in the files of specified 
White House staff members relating to the activities of the White 
House Special Investigations Unit; the White House staff members 
listed in Item B were involved in activities relating to the Special 
Investigations Unit. 

Item B refers to the handwritten notes of John Ehrlichman with 
respect to certain specified meetings. They were produced by the White 
House on June 5 and June 6, 1974, pursuant to the Order of the Court 
and arrangements with the White House in United States v. Ehrlich - 
raan (D.C.D.C. Cr. 74—116) in wdiich Ehrlichman is charged with 
perjury and other violations in connection with the Fielding break-in. 



278 


In an affidavit dated June 12, 1974, Fred Buzhardt, Counsel to the 
President, acknowledged that these materials bore on the issues in 
that trial. 

Item C refers to handwritten notes by John Ehrlichman of a meet- 
ing on July 12, 1971 among the President, Ehrlichman and Robert 
Mardian. Ehrlichman has requested these notes in connection with the 
forthcoming trial in United States v. Ehrlichman , but the White 
House has refused to produce them. An index supplied by the White 
House sets forth that the subject matter on these notes concerns “na- 
tional security wiretaps.” Robert Mardian has testified that on July 
12, 1971 the President instructed him to pick up the logs and records 
of the 1969-71 wiretaps from William Sullivan of the FBI and deliver 
those documents to John Ehrlichman. (Mardian, 6 SSC 2405-08). 
Ehrlichman has testified that the President asked him to take custody 
of the wiretap records (Ehrlichman, 6 SSC 2534). 



SUPPLEMENTAL, ADDITIONAL, SEPARATE, 
DISSENTING, MINORITY, INDIVIDUAL, 
AND CONCURRING VIEWS 



CONCUKBING VIEWS OF MESSES. BAISBACK, FISH, 
HOGAN, BUTLEB, COHEN AND FBOEHLICH 

For reasons we articulated in debate before the Judiciary Com- 
mittee, the undersigned voted to recommend Articles J[ and II to the 
House. We agree in substance with this Beport as it relates to those 
two articles. However, lest anyone infer that we agree without reser- 
vation to every point made, and given the lack of adequate time to 
prepare a detailed response to such points, suffice it to say that we do 
not necessarily agree that there is clear and convincing evidence to 
support every conclusion contained in the Beport or that every fact 
referred to is necessary or relevant to support such articles. 

Tom Bailsback. 

Hamilton Fish, Jr. 

Lawrence J. Hogan. 

M. Caldwell Butler. 

William S. Cohen. 

Harold V. Froehlich. 


( 281 ) 




ADDITIONAL VIEWS OF 

MESSRS. BROOKS, KASTENMEIER, EDWARDS, CONYERS, 
EILBERG, SEIBERLING, DANIELSON, RANGEL, MS. 
JORDAN, MS. HOLTZMAN, AND MR. MEZVINSKY 

On two occasions, Richard M. Nixon has taken the oath set forth 
in the Constitution of the United States to which all Presidents must 
swear. In that oath Richard Nixon promised to “faithfully execute 
the Office of the President of the United States.” He swore to “pre- 
serve, protect and defend the Constitution of the United States.” He 
promised to “take care that the laws be faithfully executed.” 

In each of these areas Richard Nixon has violated his solemn ob- 
ligation to the American people. The evidence is overwhelming that 
Richard Nixon has used the Office of President to gain political ad- 
vantage, to retaliate against those who disagreed with him, and to 
acquire personal wealth. To achieve these objectives he chose a course 
designed to obstruct the administration of justice, to misuse the func- 
tions of agencies of the Federal government, and to abuse the powers 
of his office in a manner that threatened the sanctity of our democratic 
form of government and the constitutional rights and safeguards of 
every American citizen. 

Richard Nixon obstructed the due administration of justice by 
covering up White House involvement in criminal activities. He at- 
tempted to prevent the Federal grand juries, Federal prosecutors, the 
Department of Justice and the Congress of the United States from 
fully investigating those criminal activities and taking appropriate 
action. He concurred in the perjury of witnesses, participated in the 
payment of money to purchase silence, refused to produce evidence, 
interfered with the Office of the Special Prosecutor and discharged 
the Special Prosecutor for pursuing the course of justice too 
forthrightly. 

Richard Nixon attempted to use the Internal Revenue Service to 
harass his enemies and to favor his friends. He directed the Federal 
Bureau of Investigation and the Secret Service to engage in illegal 
wiretapping. He endeavored to use the Central Intelligence Agency 
to sidetrack the Federal Bureau of Investigation’s investigation into 
the illegal entry of the National Headquarters of the Democratic Na- 
tional Committee. He authorized a domestic intelligence operation 
that would have suspended the constitutional rights of all Americans. 

Richard Nixon has continually refused to cooperate with the Con- 
gress of the United States in the exercise of its constitutional respon- 
sibilities. He has concealed information legitimately subpoenaed by 
the Congress and its committees. He has supplied misleading informa- 
tion to the Congress and the American people ; and he has knowingly 
permitted his aides and appointees to testify erroneously and dis- 
honestly before various congressional committees. 

( 283 ) 



284 


For these activities the House Judiciary Committee has recom- 
mended three articles of impeachment against Richard M. Nixon. 
These articles are fully supported by the evidence presented to the 
Committee. They do not, however, include all of the offenses com- 
mitted by Richard Nixon for which he might be impeached, tried and 
removed from office. 

There is ample evidence that Richard Nixon has violated the Con- 
stitution and the laws of the United States in an effort to enrich him- 
self at the cost of the American taxpayer. 

Shortly after his election in 1968, Mr. Nixon purchased three private 
homes. He then prevailed upon agencies of the Federal government 
to spend thousands of dollars of public funds at those properties. 
Intensive investigations by the House, Government Operations Com- 
mittee, the General Accounting Office, the Joint Committee on In- 
ternal Revenue Taxation, and the U.S. Internal Revenue Service 
have concluded that many of these expenditures were for Mr. Nixon’s 
personal benefit and served no proper government function. 

To preclude the possibility that a President might, because of 
personal financial considerations, either misuse the office for his own 
benefit or be held hostage to a hostile Congress, the drafters of our 
Constitution provided : 

The President shall, at stated times, receive for his service, a compensation, 
which shall neither be increased nor diminished during the period for which 
he shall have been elected, and he shall not receive within that period any 
other emolument from the United States or any of them of them. 

The meaning of this clause is both clear and certain. Alexander 
Hamilton, writing in the Federalist Papers No. 73 , succinctly stated 
its purpose as follows : 

It is impossible to imagine any provision which would have been more eligible 
than this. The legislature, on the appointment of a President, is once for all to 
declare what shall be the compensation for his services during the time for 
which he shall have been elected. This done, they will have no power to alter 
it, either by increase or diminution, till a new period of service by a new 
election commences. . . . Neither the Union, nor any of its members, will be 
at liberty to give, nor will he be at liberty to receive, any other emolument than 
that which may have been determined by the first act. 

During his term of office, Richard Nixon has received a stated 
compensation for his services as Chief Executive Officer of our gov- 
ernment, including a salary of $200,000 each year and an annual 
expense account of $50,000. Clearly, the payment of thousands of 
dollars by the Federal government for new heating systems, remodel- 
ing den windows, a sewer line, boundary surveys, landscape main- 
tenance, sprinkler systems, and a shuffle board court constitutes addi- 
tional “emoluments.” 

In its audit of Mr. Nixon’s income tax returns for 1969 through 
1972, the Internal Revenue Service concluded that : 

In view of the taxpayer’s relationship to the United States Government as 
its Chief Executive Officer, the above items constitute additional compensation 
to him for the performance of his services for the Government. 

In addition to receiving unlawful emoluments while in office, Mr. 
Nixon has attempted to evade the payment of his lawful taxes. There 
is substantial evidence that when Mr. Nixon signed his Federal income 
tax returns for 1969, 1970, 1971 and 1972, he knowingly attested to 



285 


false information intending to defraud the American people of ap- 
proximately one-half million dollars. On his tax returns for those 
years, he claimed an unlawful deduction for a charitable contribution 
of his p re-presidential papers when, in fact, no such gift had been 
made. He or his agents manufactured misleading and dishonest docu- 
ments to support the deduction. As a result of attesting to false infor- 
mation, Mr. Nixon, for two consecutive years, reduced his tax liability 
to less than $1,000 on income of approximately one-quarter million 
dollars a year. 

The Internal Revenue Service has also established that Mr. Nixon 
unlawfully reduced his taxes by failing to report certain income from 
the sale of properties in California, New York and Florida. The 
Senate Select Committee has documented Mr. Nixon’s failure to report 
as income the receipt of $5,000 of campaign funds used to purchase 
platinum and diamond earrings for his wife’s birthday present. The 
Senate Select Committee also determined that $45,000 was paid per- 
sonally by C. G. Rebozo for improvements at Mr. Nixon’s Key Bis- 
cayne vacation retreat at a time when Rebozo’s personal financial 
records indicate that he did not have that much money available. 
Mr. Rebozo avoided being served with a subpoena for the informa- 
tion needed to determine the source of those funds by leaving the 
United States during the final days of the Senate Select Committee’s 
existence. 

The refusal of Mr. Nixon and his associates to cooperate with efforts 
to determine the legality of his tax returns led the Commissioner 
of Internal Revenue Service to refer the matter to the Special Prosecu- 
tor for presentation to a grand jury. The IRS Commissioner said: 

We have been unable to complete the processing of this matter in view of 
the lack of cooperation of some of the witnesses and because of many incon- 
sistencies in the testimony of individuals presented to the Service. The use of 
grand jury process should aid in determining all of the facts in this matter. 
It is our opinion that a grand jury investigation of this matter is warranted, 
and because this investigation will involve presidential appointees, we believe 
it would be appropriate for it to be carried forward by your office. 

The three articles of impeachment adopted by the House Judiciary 
Committee provide ample reason for exercise of the impeachment 
and removal power of Congress. In addition to these, however, the 
Committee should have adopted an article citing Mr. Nixon for viola- 
tion of the emoluments provision of the Constitution and violation 
of the tax laws of the United States. 

A number of Members of the Committee agreed that Mr. Nixon 
had “set a very sorry example,” or that he “did knowingly underpay 
his taxes in the four years in question by taking unauthorized deduc- 
tions,” or that he was “guilty of bad judgment and gross negligence.” 
Those Members, how 7 ever, for reasons of their own, chose not to 
view such actions on the level of impeachable offenses. That, of course, 
is a matter for each Member to determine. For myself, I find that 
these offenses bring into focus, in a manner every American can 
understand, the nature and gravity of the abuses that permeate 
Mr. Nixon’s conduct in office. 

The integrity of the Office of President cannot be maintained by 
one who would convert public funds to his own private benefit and 
who would refuse to abide by the same laws that govern every Amer- 



286 

ican taxpayer. All doubt should be removed that any American, even 
if he be President, can disregard the laws and the Constitution of 
the United States with impunity. 

Jack Brooks. 

Bob Kastenmeier. 

Don Edwards. 

John Conyers, Jr. 

Joshua Eilberg. 

John F. Seiberling. 
George E. Danielson. 

C. B. Rangel. 

Barbara Jordan. 
Elizabeth Holtzman. 
Edward Mez vinsky. 



SUPPLEMENTAL VIEWS OF MR. EDWARDS 

I fully and without reservation concur with the majority views of 
this report. I add supplementary views only to emphasize that there is 
a profoundly important aspect to the grievous and sustained miscon- 
duct of Mr. Nixon that in my opinion constituted a grave threat to the 
liberties of the American people. 

In his attempts to subvert the processes of representative govern- 
ment and the guarantees of the Bill of Rights, Mr. Nixon and his 
associates used repeatedly the justification he described as “national 
security”. 

It was a familiar theme, referred to by James Madison in a letter to 
Jefferson in 1786. “Perhaps it is a universal truth”, wrote the author of 
the Bill of Rights, “that the loss of liberty at home is to be charged to 
the provisions against dangers, real or pretended, from abroad.” 

Sad episodes in our history reflect that we have not always paid heed 
to Madison’s warning. During World War I U.S. Attorney General 
Palmer jailed thousands of innocent Americans for conduct and words 
clearly legal but, in Palmer’s view, a threat to “national security”. 
During World War II thousands of loyal Japanese- Americans were 
illegally incarcerated in concentration camps for the same specious 
reason. And the era of the Korean War was blighted by Senator Joseph 
McCarthy, the sedition convictions, and the cruel antics of the House 
Un-American Activities Committee, all in the name of “national 
security”. 

It was less than 4 months after his inauguration that Richard Nixon 
began to use the notion “dangers from abroad”, or “national security” 
to assault rights of Americans which are protected by the Constitu- 
tion. 

In mid May, 1969, he ordered the first of 17 wiretaps of newsmen, 
broadcasters, government employees and private citizens. His justifi- 
cation for the first few was “national security”, in his view endangered 
by newspaper accounts of the secret and illegal bombings of Cambodia. 
Some were instituted for no possible national security reasons and 
were continued until 1971 for personal and political purposes. No leaks 
of classified information were ever discovered by these wiretaps. 

The majority view of this report relates in frightening detail how 
this pattern of conduct continued. The Watergate cover-up began with 
Nixon’s direction to the F.B.I. through the C.LA. to suspend its 
investigation because of “national security”. The F.B.I. was told to 
“lay off” the Fielding burglary because of “national security”. The 
White House secret police, The Plumbers , were established for “na- 
tional security”. The Huston Plan, authorizing the F.B.I. and other 
Federal agencies to engage in burglary, mail covers, wiretapping and 
other illegal activities was approved by President Nixon for “national 
security”. 

( 287 ) 


37-777 0 - 74 - 19 



I found it immensely disturbing that the talented and distinguished 
counsel for Mr. Nixon in the impeachment inquiry supported the view 
that the mere invocation of the catch phrase “national security” justi- 
fied illegal wiretaps and personal surveillances. Indeed, he told the 
Judiciary Committee that in his view a President should be impeached 
for not proceeding as Mr. Nixon did. 

So, I am writing these supplementary views to emphasize the ur- 
gency of Madison’s two-hundred year old warning. Congress, the press, 
and indeed all of the American people must be vigilant to the perils of 
the subversive notion that any public official, the President or a police- 
man, possesses a kind of inherent power to set aside the Constitution 
whenever he thinks the public interest, or “national security” warrants 
it. That notion is the essential postulate of tyranny. 


Don Edwauds. 



ADDITIONAL VIEWS OF ME. CONYERS 

The Judiciary Committee undertook this impeachment inquiry with 
a clear recognition of the gravity of its responsibility to the Congress 
and the Constitution. Our task was unique in modern history and com- 
plicated by the sheer weight of the evidence to be evaluated. But the 
process of impeachment is not, and was never intended to be, familiar, 
convenient, or comfortable. It was framed with the intention that it 
be used only as a last constitutional resort against the danger of 
executive tyranny. The Congress should not lightly interpose its judg- 
ment between the President and the people who elect him, but we 
cannot avoid our duty to protect the people from “a long train of 
Abuses and Usurpations.” 

Impeachment has been simply but most accurately described as 
the great guardian of the purity of the Constitution. As such, the 
end of impeachment — trial and removal from office — is wholly unlike 
the end of conviction for a criminal offense, which is punishment. In 
the latter case, a citizen is stripped of the liberties the Constitution 
grants him as a matter of right as the price he must pay for wronging 
society. A removed President, however, may not suffer such loss. He 
must surrender the powers of the office entrusted to him by the people 
for using them to undermine the freedoms he swore to protect; only 
then is he subject to the normal processes of criminal law. This duality 
puts the roles of the Congress as a constitutional tribunal and the 
more common tribunals in perspective: the former is to assess his 
offenses against the Constitution; the latter, his offenses against the 
laws that execute the Constitution and govern the people. 

The articles of impeachment recommended by the Committee, 
although narrowly drawn, are fully consistent with our constitutional 
responsibility. There is clear and convincing proof that Richard Nixon 
violated his oath of office and committed high crimes and misdemeanors 
which jeopardized the liberties of the people. In calling him to account, 
we also re-establish the proper parameters of presidential conduct. 
It is essential, therefore, that the record of our inquiry be complete so 
that no future president may infer that we have implicitly sanctioned 
what we have not explicitly condemned. 

President Nixon’s determination to Vietnamize the Indochina war 
led him to conclude that the infiltration of men and supplies through 
Cambodia and Laos had to be interdicted. This could have been done 
by bombing North Vietnam, but at the cost of destroying the fragile 
Paris Peace talks, then in progress. His only recourse, given his 
assumptions, was to bomb the supply routes in Cambodia which led 
into South Vietnam. At the same time, he apparently realized that 
public disclosure of such bombing would create a firestorm of Congres- 
sional and public protest. 

In a desperate attempt, therefore, to achieve what he euphemis- 

( 289 ) 



290 


tically called “peace with honor,” he committed the massive destruc- 
tiveness of American ailr power to yet another country, and attempted 
futilely to conceal his actions from the Congress and the American 
people. When the Cambodian bombing was first reported, he did not 
respond with a full public disclosure. Instead, he authorized a pro- 
gram of wiretapping, not merely of reporters but of government 
officials as well. 

In retrospect, the logic of the White House becomes clear: Viet- 
namization required the bombing of Cambodia, which in turn required 
secrecy at all costs. The pressures of concealment led in turn to a spirit 
of distrust within the administration which spread as the President 
and his aides became increasingly enmeshed in the snare of lies and 
half-truths they had themselves created. Having decided that the 
people and the Congress could not be trusted with the truth, Mr. 
Nixon’s distrust was soon extended to his own foreign policy advisors 
and assistants. 

The authorization and concealment of the Cambodian bombing, and 
the means he employed to prevent its disclosure, illustrated in the 
very first months of his administration that the President was pre- 
pared to do anything he considered necessary to achieve his objectives. 
To defend both the bombing and the subsequent wire-tapping, he in- 
voked the concept of national security, a convenient rationalization to 
be used whenever the occasion demanded an explanation for some con- 
cealed governmental conduct. The imperial presidency of Richard 
Nixon came to rely on this claim as a cloak for clandestine activity, and 
as an excuse for consciously and repeatedly deceiving the Congress 
and the people. 

The evidence presented to this Committee demonstrates that the 
President’s invocations of national security were often used as a shield, 
motivated primarily by a desire to protect himself from personal and 
political embarrassment. He would have us believe that lie could not 
disclose the existence of the Plumbers, or the break-in of Dr. Field- 
ing’s office, or the falsification of State Department cables, or even 
the Cambodian bombing itself, because to have done so would have 
jeopardized national security. 

Once in the White House, Mr. Nixon turned on his critics with a 
vengeance, apparently not appreciating that others could strenuously 
disagree with him without being either subversive or revolutionary. 
He took full advantage of the FBI’ s willingness to invade people’s 
private lives without legal justification and without regard for their 
civil liberties. This willingness was documented during Congressional 
Black Caucus hearings on governmental lawlessness in June, 1972, 
which revealed that the files of the FBI and the Secret Service are 
laden with unverified information, often inaccurate and slanderous, 
on thousands of citizens, particularly Blacks, who have had the 
temerity to speak out against racism, injustice, or the Indochina war. 
This surveillance of government critics by the FBI began, of course, 
before Mr. Nixon took office, but his administration gave renewed ap- 
proval to some of the ugliest abuses of governmental power. 

Obsessed by the notion that the disruptive activities of the Blacks 
and students who criticized him were receiving foreign support, he 
repeatedly demanded that the FBI and CIA conduct extensive investi- 



gations to verify this potential conspiracy. But, even with additional 
authority conferred on these agencies, their reports continually indi- 
cated that his fears were unfounded. The inability of the FBI and 
CIA to substantiate the President’s conviction that many of his crit- 
ics were engaged in subversion or international conspiracy led him to 
increasingly question their operational efficiency. 

Hence, the President’s approval of the Huston plan in July, 1970, 
represented nothing more than an extension of an already demon- 
strated willingness to harass and spy on his political opponents. Even 
if the Huston plan itself was subsequently tabled, its spirit lived on in 
the White House and soon took tangible form with attempts to use the 
Internal Revenue Service for discriminatory personal and political 
purposes, and with the activities of the Plumbers unit. The Plumbers 
put the essence of the Huston plan into practice and provided the 
President with his own secret intelligence force to investigate his critics 
and discredit them by any means possible, without even the most ele- 
mentary regard for individual privacy or public morality. 

With the assistance of the President’s closest advisors, the Plumbers 
violated the charter of the Central Intelligence Agency by seeking CIA 
assistance to impugn the integrity of Senator Edward Kennedy, and 
to assess the administration’s potential vulnerability from ITT’s Dita 
Beard, whose confidential memo implied that a bribe had been offered 
to settle the ITT antitrust case. They sought to discredit the Demo- 
cratic party by falsifying State Department cables to implicate Presi- 
dent Kennedy in the assassination of South Vietnamese President 
Diem. They broke into the Dos Angeles office of Dr. Fielding in an 
attempt to gain medical information that would defame Daniel Ells- 
berg and, through him, the critics of the President’s war policies. In 
these ways, and perhaps in other ways still undisclosed, they violated 
every canon of morality and legality which stood between them and 
their goal of discrediting and undermining the President’s “enemies.” 

These activities provide part of the basis for the charge in Article II 
that President Nixon seriously abused the powers of his office. They 
also demonstrate that the break-in and bugging of the Democratic Na- 
tional Committee, and the subsequent cover-up specified in Article I, 
were not inexplicable aberrations from a standing presidential policy 
of strict adherence to the law. Instead, in proper perspective, the Wa- 
tergate break-in emerges as only one incident in a continuous course 
of conduct which had its origins in the first months following Presi- 
dent Nixon’s inauguration. The subsequent concealment was intended 
not merely to protect the White House from its complicity in the Wa- 
tergate incident itself, but to avoid disclosure of the entire train of i) le- 
gal and abusive conduct that characterized the Nixon presidency : ob- 
struction of justice, perjury and subornation of perjury, offers of 
executive clemency, attempts to influence a federal judge, destruction 
of evidence, disclosure of secret grand jury proceedings, withholding 
information of criminal activity, impoundment of Congressional ap- 
propriations, willful tax evasion, possible bribery in connection with 
the ITT antitrust and milk price support decisions, and interference 
with the lawful activities of the CIA, FBI, IRS, Special Prosecutor, 
House Banking and Currency Committee, Senate Select Committee 
on Presidential Campaign Activities, and finally, the House Judiciary 



292 


Committee. In these ways, the President sought to avert disclosure of 
a seamless web of illegality and impropriety. 

That cover-up continued to the end, in that the President attempted 
to deceive the Congress and the American people by concealing and 
misrepresenting his knowledge and participation in ithese activities, 
and even while resigning, refusing to admit his complicity. Addi- 
tionally, he withheld necessary information from the Special Prose- 
cutors and fired Special Prosecutor Cox for his efforts to fully dis- 
charge his responsibilities. He refused to comply with the legal and 
proper subpoenas of the Judiciary Committee, ais charged -in Article 
III. He mutilated and destroyed evidence in his possession or caused 
that to happen, and did very nearly everthing in his power 1 o impede, 
delay, and obstruct the proper course of justice. 

In my judgment, this course of presidential conduct, outlined abovA 
and specified in Articles I, II, and III, provide irrefutable evidence 
that Richard Nixon was not fit to enjoy the trust and authority which 
reposes in the Presidency of the United States. 

But of at least equal importance is the uncontroverted evidence that 
Mr, Nixon authorized an illegal war against the sovereign nation of 
Cambodia, and sought to protect himself from criticism and possible 
repudiation by engaging in deliberate policies of concealment, decep- 
tion, and misrepresentation. 

On July 30, 1974, 1 proposed the following article of impeachment: 

In his conduct of the office of President of the United States, Richard M. Nixon, 
in violation of his constitutional oajth faithfully to execute the office of Presi- 
dent of the United States and, to the best of his ability, preserve, protect, and 
defend the Constitution of the United States, and in disregard of his constitu- 
tional duty to take care that the laws be faithfully executed, on and subsequent 
to March 17, 1969, authorized, ordered and ratified the concealment from the 
Congress of the facts and the submission to the Congress of false and misleading 
statements concerning the existence, scope and nature of American bombing 
operations lin Cambodia in derogation of the power of the Congress to declare 
war, to make appropriations, and to raise and support armies, and by such con- 
duct warrants impeachment and trial and removal from office. 

Although this article was not recommended by the Committee, it is 
fully supported by the facts and the Constitution. 

The President of the United States must exercise only those powers 
which are legally and constitutionally his to exercise, and, by his ac- 
tions, he must demonstrate due respect for the democratic rights of 
the people and the constitutional responsibilities of the Congress. The 
manner in which the Cambodian bombing was initiated, conducted, 
and reported clearly exceeded the constitutional powers of the presi- 
dency, and presented indisputable evidence of impeachable conduct. 

President Nixon unilaterally initiated and authorized a campaign 
of bombing against the neutral nation of Cambodia. For the next four 
years, he continually deceived the Congress and the American people 
as to when the bombing began and how far it extended. In so doing, 
he exceeded his constitutional power as commander-in-chief. He 
usurped the power of the Congress to declare war, and he expended 
monies for a purpose not authorized or approved by the Congress. In 
so doing, he also denied the people of the United States their right to 
be fully informed about the actions and policies of their elected offi- 
cials. 



293 


It is important to note that the facts pertinent to the Cambodian 
bombing are not in question. On 11 February 1969, General Creighton 
Abrams, Commander of the United States Military Assistance Com- 
mand Vietnam, recommended and requested authorization to conduct 
bombing strikes in Cambodia. Between 12 February and 17 March 
1969, this request was considered by the President in meetings of the 
National Security Council. On 17 March 1969, President Nixon au- 
thorized the bombing of Cambodia. 

The bombing began on 18 March 1969 and continued unabated until 
15 August 1973. From 18 March 1969 to 1 May 1970, when the United 
States initiated ground combat operations in Cambodia, 3,695 B-52 
sorties were conducted, during which a total of 105,837 tons of bombs 
were dropped on Cambodia. From the beginning to the end of the 
bombing campaign in August, 1973, more than 150,000 sorties dropped 
in excess of 500,000 tons of bombs in Cambodia. 

The bombing operations took the form of three different operations, 
code named “Menu Operation”, “Patio”, and “Freedom Deal”. Under 
the procedures instituted for reporting “Menu Operation” bombing 
missions, the regular operational reports prepared after each mission 
indicated that the strikes had taken place in South Vietnam rather 
than in Cambodia. Most “Patio” bombing missions were not reported 
at all; forty-eight “special” “Patio” strikes were reported as having 
occurred in Laos, rather than Cambodia. The “Freedom Deal” tactical 
air strikes began on 30 June 1970, the date on which the last contingent 
of American ground forces was withdrawn from Cambodia. These 
strikes were reported as having taken place in Cambodia, but in many 
cases, the targets of “Freedom Deal” strikes were not those which were 
authorized and reported. 

Similarly, there is no dispute that the President made a decision to 
keep the bombing secret. When President Nixon approved the first 
bombing strikes in Cambodia, he directed General Earle Wheeler, 
Chairman of the Joint Chiefs of Staff, to inform General Abrams that 
the bombing operations were not to be discussed with any unauthorized 
person, even though this meant circumventing the normal chain of 
command which would otherwise have included the Secretary of the 
Army, the Vice Chief of Staff for the Air Force, and the Commander 
of the Seventh Air Force. 

The President’s policy of concealment, deception, and misrepresenta- 
tion was consistently reflected in his own public statements and in the 
Congressional testimony of his military and civilian subordinates. 

In a nationally televised address on 14 May 1969, two months after 
the bombing in Cambodia began, the President stated, “I have tried to 
present the facts about Vietnam with complete honesty, and I shall 
continue to do so in my reports to the American people”. 

At a news conference on 8 December 1969, the President asserted 
that the people of the United States were entitled to know everything 
they could with regard to any involvement of the United States abroad. 

At another news conference on 21 March 1970, President Nixon de- 
clared that the United States would continue to “respect Cambodia’s 
neutrality”. 



294 


On 30 April 1970, when the President announced the American in- 
vasion of Cambodia, he reviewed previous American policy toward 
Cambodia in the following terms : 

American policy since then has been to scrupulously respect the neutrality of 
the Cambodian people. We have maintained a skeleton diplomatic mission of 
fewer than 15 in Cambodia’s capitol, and that only since last August. For the pre- 
vious 4 years, from 1965 to 1969, we did not have any diplomatic mission whatever 
in Cambodia. And for the past 5 years, we have provided no military assistance 
whatever and no economic assistance to Cambodia. 

For 5 years, neither the United States nor South Vietnam has moved against 
these enemy sanctuaries because we did not wish to violate the territory of a 
neutral nation. Even after the Vietnamese Communists began to expand these 
sanctuaries 4 weeks ago, we counseled patience to our South Vietnamese allies 
and imposed restraints on our own commanders. 

On 30 June, the President released a report entitled “The Cambo- 
dian Operation” which stated in part : 

For five years, North Vietnam has used Cambodian territory as a sanctuary 
from which to attack allied forces in South Vietnam. For five years, American 
and allied forces — to preserve the concept of Cambodian neutrality and to confine 
the conflict in Southeast Asia — refrained from moving against these sanctuaries. 

The evidence is unmistakable, therefore, that President Nixon person- 
ally and directly lied to the American people by repeatedly concealing 
the fact that the United States had begun to bomb Cambodia in 
March, 1969. 

The President’s public assurances were complemented by the er- 
roneous and misleading statements made to the Congress by his ci- 
vilian and military subordinates. Such statements were made by the 
Chief of Staff of the Air Force, the Secretary of State, the Secretary 
of the Army, the Secretary of Defense, and the Secretary of the Air 
Force in testimony before the Senate Committee on Armed Services, 
the Senate Committee on Foreign Relations, the Senate Committee on 
Appropriations, and the House Committee on Appropriations. 

For example, on 27 April 1970, Secretary of State Rogers testified 
before the Senate Foreign Relations Committee, declaring that, “Cam- 
bodia is one country where we can say with complete assurance that 
our hands are clean and our hearts are pure . . . Our best policy is to 
be as quiet as possible, to avoid any action which appears to violate 
the neutrality of Cambodia”. 

For example, on 16 April 1970, Secretary of the Army Resor testi- 
fied before the Senate Appropriations Committee that there had been 
no “U.S. Military aid and no Army support for Cambodia” since 
January, 1964. 

For example, on 31 March 1971, Secretary of the Air Force Seamans 
was requested by the Senate Armed Services Committee to submit 
a report on American bombing missions in Indochina. Seamans sub- 
sequently submitted a classified report which indicated that no bomb- 
ing strikes had been conducted in Cambodia prior to 1 May 1970, even 
though bombing strikes had actually begun in March, 1969. 

It was not until 16 July 1973 that Secretary of Defense Schlesinger 
was forced to confirm earlier disclosures to the Senate Armed Services 
Committee that the United States had bombed Cambodia, a sovereign 
and neutral nation, before May, 1970. 

Richard Nixon authorized the bombing of Cambodia. In a series 



295 


of subsequent public statements, he deliberately and intentionally lied 
to the American people. And in their testimony before duly authorized 
committees of the Congress, his civilian and military subordinates 
failed to testify fully and accurately. Whether his subordinates de- 
ceived the Congress intentionally or unintentionally, the fact remains 
that the President must have known that they testified inaccurately, 
and he made no attempt to correct the record. 

By his secret bombing of Cambodia, President Nixon unquestion- 
ably exceeded his powers as commander-in-chief, for not even the most 
tortured interpretation of Article II, Section 2 could support a war 
begun and pursued in secrecy. He also violated Sections 7 and 8 of 
Article I, which give to the Congress the authority to make appropria- 
tions and declare war, For the “power of the purse” to have any mean- 
ing, the Congress must know how the money it appropriates is being 
spent. Yet there is no evidence of any request by this Administration 
for appropriations for any American military activity in Cambodia 
between March, 1969, and August, 1973. And by conducting a war 
without the knowledge of the Congress, President Nixon further 
eroded whatever remains of the constitutional power of the Congress 
to decide when and where the United States shall be at war. We cannot 
sanction such a policy of deliberate deception, intended to nullify the 
constitutional powers of the Congress to legislate for the people we 
represent. 

By the same policies of secrecy and deception, Richard Nixon also 
violated a principal tenet of democratic government: that the Presi- 
dent, like every other elected official, is accountable to the people. For 
how can the people hold their President to account if he deliberately 
and consistently lies to them? The people cannot judge if they do 
not know, and President Nixon did everything within his power to 
keep them in ignorance. In all good conscience, we must condemn his 
deception regarding Cambodia with the same fervor and outrage we 
condemn his deception regarding Watergate. 

The difficult question is not whether the secret bombing of Cambodia 
constitutes impeachable conduct. That is too obvious to require further 
argument. Instead, the question we must ponder is why the Congress 
has not called the President to judgment. The painful answer is that 
condemning the Cambodian bombing would also have required us to 
indict previous administrations and to admit that the Congress has 
failed to fully meet its own constitutional obligations. 

Whether intentionally or not, the Congress has participated in the 
degeneration of its power to declare war. Although a War Powers 
Act was passed recently, over the veto of President Nixon, no legis- 
lation is self-executing. Whatever its limitations and faults, this legis- 
lation, and the constitutional provisions on which it is based, will only 
have meaning to the extent that the Congress invests them with mean- 
ing. Instead of merely ratifying the decisions and recommendations of 
the executive branch, the Congress must demonstrate that it is once 
again prepared to play an active and constructive role in the formu- 
lation of foreign policy — in the creation of policies which will direct 
this nation toward war or peace. 

If this is truly to be a representative government, then the people’s 
representatives in Congress must no longer allow any one person to 



296 


decide unilaterally when, where, and why Americans shall die violent 
deaths. The Congress may not be subject to impeachment, but it is 
subject to emasculation. We must directly confront the fact that the 
secret bombing of Cambodia is only the most recent and egregious 
illustration of the disintegration of the war power of Congress, and 
that the Congress has participated in this process, wittingly or un- 
wittingly. If, during this impeachment proceeding, we have failed to 
learn this lesson, then we deserve the obloquy, not the gratitude, of 
the people of the United States. If we do not now fully dedicate our- 
selves to regaining every bit of constitutional ground we have sur- 
rendered, then — to paraphrase one of the President’s men — we shall 
have lost our constitutional and moral compass. 

It has frequently been argued during the past weeks that this 
Committee’s inquiry and the President’s subsequent resignation 
demonstrate that “the system works”. Rut such satisfaction or com- 
placency is misguided. We must recognize that we were presented 
with a seemingly endless series of public revelations and presidential 
actions which did more to undermine Mr. Nixon’s position than any 
independent investigation undertaken by this Committee or its staff. 
Our inquiry has been the beneficiary of literally years of work by 
investigative reporters, the Special Prosecutor’s office, and the Senate 
Select Committee on Presidential Campaign Activities. And most 
importantly, the President himself documented his words and actions 
through his secret taping system, without which our inquiry might 
never have even begun. The President himself did more than anyone 
or anything to insure his removal from office. 

If the system has worked, it has worked by accident and good 
fortune. It would be gratifying to conclude that this House, charged 
with the sole power of impeachment, exercised vigilance and acted on 
its own initiative. However, we would be deluding ourselves if we did 
not admit that this inquiry was forced on us by an accumulation of 
disclosures which, finally and after unnecessary delays, could no 
longer be ignored. 

Perhaps ironically, and certainly unintentionally, we have ourselves 
jeopardized the future of the impeachment process. Before this inquiry 
the prospect of impeaching a president was disquieting because it had 
not been attempted in more than a century. Now with our inquiry as 
a precedent, future Congresses may recoil from ever again exercising 
this power. They may read the history of our work and conclude that 
impeachment can never again succeed unless another President dem- 
onstrates the same, almost uncanny ability to impeach himself. If this 
is our legacy, our future colleagues may well conclude that ours has 
been a pyrrhic victory, and that impeachment will never again justify 
the agony we have endured. It is imperative, therefore, that we speak 
to them clearly: impeachment is difficult and it is painful, but the 
courage to do what must be done is the price of remaining free. 

John Conyers, Jr., M.C. 



SEPARATE COMMENTS OF MR. WALDIE 


Impeachment of a President should be undertaken not to punish a 
President, but to constitutionally redefine and to constitutionally limit 
the powers of the Presidency when those powers have been dangerously 
extended and abused. 

It is therefore necessary to consider impeachment not in terms of its 
effects on Richard Nixon but in terms of its effects on the powers of 
future occupants of the Presidency. 

Richard Nixon has committeed impeachable offenses as alleged in 
Articles I, II, and III. Those offenses constitute serious constitutional 
abuses of power and warrant impeachment that we might redefine 
Presidential power in the future. 

Clearly, Richard Nixon has sought to obstruct justice in his efforts 
to prevent his and his associates’ roles in Watergate from surfacing. 

In that effort, the President has used the great powers of his office 
to thwart and prevent lawful inquiry into Watergate both from the 
Judicial and from the Legislative Branches. He has used and abused, 
in this effort, agencies of the Executive Branch of Government in- 
cluding the CIA and the FBI. He has thereby sought to remove the 
Presidency from accountability to the institutions of law. 

If we do not redefine Executive Power in this instance and by such 
redefinition, limit that power for future Presidents, we risk all future 
Presidents claiming immunity from accountability for unlawful 
conduct in the furtherance of political objectives. 

Clearly, Richard Nixon has failed to faithfully execute his oath of 
office and has abused the powers of his office by authorizing illegal 
acts and dangerous intrusions into personal privacy to further political 
objectives. 

Wiretapping to obtain information that was used to counter political 
opponents; illegal entry to obtain information to counter political 
opponents ; secret police not accountable to any authority but the Presi- 
dent and whose primary function appears to have been to further polit- 
ical obiectives of the President; the use of agencies of our Government 
such as the IRS to persecute political enemies and reward political 
friends ; the pattern of excessive accumulation of powder and of dan- 
gerous abuse of power is undeniable. 

Impeachment for such activities is clearly warranted that we might 
redefine executive power and thereby limit it that future Presidents 
will not so abuse their powers — that future Presidents will understand 
theirs is a constitutionally limited office and an office as to which 
accountability is ever present. 

Though the Legislative, Judicial, and Executive Branches are co- 
equal, that “equality” is non-existent when the Legislative Branch is 
inquiring into impeachable conduct of the Executive. In that limited 
instance, in the pursuit of that Constitutional obligation, the Legis- 

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298 


lative Branch is supreme and cannot be thwarted by claims of 
Executive privilege on the part of the Executive Branch. 

Executive privilege is a doctrine dependent on Separation of Powers. 
Impeachment is a process that assumes an “intrusion” by the Legisla- 
tive Branch into the Executive and thus the Separation of Powers 
upon which Executive privilege is premised is absent. 

Failure of a President to respond to a lawfully authorized subpoena 
of the Legislative Branch pursuant to its impeachment authority, 
constitutes an impeachable offense. 

If this President can ignore these subpoenas, all future Presidents 
will assuredly ignore all future subpoenas of any impeachment inquiry. 

We must redefine this Executive power and by impeachment, limit 
it so future Presidents will ignore lawfully authorized subpoenas in 
the impeachment process at their own risk. 

Finally, I believe we should have approved an Article of Impeach- 
ment dealing with the exercise of the War Power. 

Though it is undeniable that abuse of the War Power did not begin 
with President Nixon, that in fact it was severely abused by President 
Johnson, the truth remains that Richard Nixon, too, seriously abused 
the War Power by concealing and misrepresenting the facts concern- 
ing the massive bombing of neutral Cambodia. A War Power whose 
exercise is dependent on the deception of the American People is a 
War Power that is seriously abused. And yet the ability to wage war 
in recent years has almost seemed dependent on a President deceiving 
the American People. It is increasingly clear that the Vietnam War 
was a result of lies and deception on a massive scale, not to confuse or 
mislead the enemy, but to confuse and mislead the American People, 
the source from which all powers of the President, including the War 
Power, must flow. 

Therefore, if ever a power of the President desperately needed a 
Constitutional redefinition and thereby a Constitutional limitation, it 
is the War Power. 

I regret we did not recommend an Article of Impeachment based on 
the conduct of the President in concealing and deceiving the American 
People with respect to the exercise of the War Power in the bombing 
of Cambodia. Failing to do so, we may have unintentionally ratified 
such conduct for future Presidents. And if we have done that, all the 
good we might have done in redefining and limiting Presidential power 
in other fields may be of little avail. 

Subsequent to preparing these views, Richard Nixon, facing certain 
impeachment and conviction, resigned his office. 

Gerald Ford, in his first address to Congress as President, described 
these events as a “National Nightmare.” 

The “nightmare,” as Gerald Ford so aptly described it, is not yet 
over, but it is undeniable that it is receding. The final admission of 
complicity in obstruction of justice by Richard Nixon precipitated his 
forced resignation under the universal perception that his impeach- 
ment and conviction were certainties. 

It was with mixed feelings that I viewed those events. I desired that 
the constitutional process of impeachment and trial be carried out that 
a full and complete record of what Mr. Nixon did to our country might 



299 

be had. In the long run I believe such a course would have been in the 
best interest of the Country. 

But it was clearly with a great feeling of relief that I saw Richard 
Nixon leave the Presidency; not relief at the disgrace and dishonor 
that accompanied his departure, but relief that the great power of that 
office would no longer be responsive to his whims or decisions. 

And so, in the immediate future, the country is clearly well served 
by Mr. Nixon’s departure and, perhaps, in the long term it will have 
been well served by his not being in position, even for a short time, to 
wield that massive power dangerously and irresponsibly. 

But the certainty that the long run best interests of the Nation will 
be served only exists if we assure that the lessons of Richard Nixon’s 
“nightmare” are fully understood. 

Those lessons would essentially, I believe, distil down to the principle 
that no man, “be he President or pauper” is above the law. 

Mr. Nixon never understood that. The Congress was slow in coming 
to its comprehension. The people never wavered or doubted in their 
instinctive belief in that principle. 

That all in the future might comprehend that vital lesson, it is neces- 
sary that the full extent of Mr. Nixon’s abuse of America — that a full 
record of the “nightmare” he visited upon us, be made. 

The process whereby that will occur will include the Congress and 
the Report of the House Judiciary Committee — now— and additional 
reports as evidence accumulates. It will also include the Courts of our 
land. The full extent of Richard Nixon’s participation in illegal ac- 
tivities will only unravel as accountability to the institution of jus- 
tice is accomplished. To deny that process by granting immunity to 
Mr. Nixon would materially detract from the necessity of a full 
exposition of the “nightmare.” 

It would also essentially deny the basic lesson that no man, “be he 
President or pauper,” is above the law. We upheld that principle when 
we forced the resignation of President Richard Nixon under the cer- 
tainty of impeachment and conviction. We would shatter that prin- 
ciple, so hard fought and dearly won, if we place Richard Nixon, 
citizen, above the law ; beyond accountability for his conduct. 

Jerome R. Waidie. 




ADDITIONAL VIEWS OF MESSRS. SARBANES AND SEI- 
BERLING, JOINED BY MESSRS. DONOHUE, EILBERG, 
MANN, DANIELSON, THORNTON, SMITH AND HOGAN 

While in the majority who voted against the proposed Article con- 
cerning President Nixon’s concealment from Congress of the bombing 
of Cambodia, we certainly did not intend our vote to indicate approval 
of such conduct on his part. In fact, as some of us stated during the 
debate, we consider his action to have been a usurpation of Congress’ 
power to declare war and to make appropriations. 

The issue in the proposed article was the wrongful withholding of 
information from the Congress and the falsification of reports to the 
Congress. On March 17, 1969, President Nixon, without consulting or 
informing the Congress and in spite of the fact that Cambodia was a 
neutral country, authorized the bombing of Cambodia and ordered that 
information on these bombing operations be held in the closest secrecy. 
The President’s orders led to the establishment by high ranking mili- 
tary officers of a dual reporting system for Cambodian bombing opera- 
tions. This reporting system circumvented both the normal chains 
of command and information within the Defense Department and 
the normal channels of communication between the Executive Branch 
and appropriate Congressional committees. A result of this dual 
reporting system was that Congressional committees were deceived 
about the existence of American air operations against Cam- 
bodian territory prior to the April 1970 “incursion”; official reports 
were formally submitted to Congress indicating that there had been no 
such operations when in fact extensive bombing activities in Cambodia 
had taken place. The policy of the President with respect to the re- 
porting of the bombing thereby deprived Congress of the ability to 
exercise its constitutional powers. 

Despite the grave and deplorable implications of this policy, there 
are certain reasons why impeachment is not the appropriate remedy in 
this instance. Although neither the House of Representatives nor the 
Senate nor any Congressional committee was advised of the bombing 
prior to May, 1970, when the clandestine air operations had been under-* 
way for 14 months, a few' key members of the Congress in positions of 
responsibility had been informally advised of the bombing. Clearly, 
the informing by the Administration of a few, carefully selected indi- 
viduals in the Congress is not the same as informing the Congress and 
cannot be considered proper or adequate notice. Nonetheless, the situa- 
tion as to executive responsibility is clouded by the fact that certain 
members of the Congress were made aware of the bombing. 

Furthermore, it appears likely that had the President formally con- 
sulted the Congress prior to April, 1970, the Congress v T ould have 
acquiesced in the bombing policy. Although air operations were openly 
conducted over Cambodian territory from July, 1970 until mid- August, 

( 301 ) 



302 


1973, it should be noted that the Congress took no action, until June, 
1973, to stop them. On the contrary, the Congress during this period 
repeatedly approved major authorizations and appropriations bills 
which provided authority for the continuation of these bombing op- 
erations. These considerations raise doubts about here invoking the im- 
peachment remedy, although they in no sense justify the concealment 
from Congress of information about the bombing. 

It is, moreover, difficult to separate in retrospect the Cambodian 
bombing operations either from the extensive American military 
involvement in Southeast Asia or from certain trends in recent years 
in the conduct of our Nation’s foreign policy. Impeachment of a 
President should not be foreclosed in situations where Congress was 
forced by events to support a military venture initiated by a President 
acting in excess of his authority ; indeed, such actions go to the very 
heart of the Constitutional allocation of powers and would require 
a serious impeachment inquiry. But where — as here — Congress over a 
considerable period of time had accepted and condoned Presidential 
encroachments on its powers, Congress’ own inaction makes it ques- 
tionable whether invoking the impeachment remedy in this instance is 
appropriate. 

Finally, it is not necessary for Congress to take such action in this 
case in order to establish a proper precedent for the future. By enact- 
ing, over a Presidential veto, the War Powers Resolution of 1973 (PL 
93-148) Congress has laid down specific guidelines requiring the Presi- 
dent to report promptly to Congress whenever United States Armed 
Forces are introduced into hostilities or into the territory, airspace or 
waters of a foreign nation. Certainly any President who violated the 
provisions of that Law would invite Congressional action through the 
impeachment remedy to protect the Constitutional separation of 
powers against abuse by the Executive. 

Paul S. Sarbanes. 

John F. Seiberling. 

Harold D. Donohue. 

Joshua Eilberg. 

James R. Mann. 

George E. Danielson. 

Ray Thornton. 

Henry P. Smith III 

Lawrence J. Hogan. 



ADDITIONAL VIEWS OF MB. DANIELSON 

IMPEACHABLE CONDUCT 

Precisely what constitutes impeachable conduct, or an impeachable 
offense, is the subject of endless debate. I concur in the definition in- 
cluded in the discourse contained in the Committee’s report of Feb- 
ruary 21, 1974, set forth above. I submit, however, that there probably 
can be no single answer which is suitable for all cases and for all times 
and the term had best be defined in the context of the events and the 
times in which the controversy has arisen. 

I am convinced, however, that impeachable conduct need not be 
criminal conduct. It is enough to support impeachment that the con- 
duct complained of be conduct which is grossly incompatible with the 
office held and which is subversive of that office and of our Constitu- 
tional system of government. With respect to a President of the 
United States it is clear, in my mind, that conduct which constitutes a 
substantial breach of his oath of office* is impeachable conduct. 

ROLE OP PRESIDENT’S COUNSEL IN IMPEACHMENT INQUIRY 

In the Nixon inquiry, the President’s counsel participated actively 
and to a degree that is without precedent in our history. His participa- 
tion was provided for by the rules adopted by the Committee at the out- 
set of the inquiry, but was expanded considerably as the inquiry pro- 
gressed, to the point where the President’s counsel filled the role of an 
advocate for the President and was permitted to examine and cross- 
examine at length. In my opinion, this expanded role of the Presi- 
dent’s counsel was improvidently permitted, for it gravely threatened 
to transform the proceeding from its constitutional role of the “Grand 
Inquest of the Nation” to that of an adversary proceeding similar to a 
judicial trial. I would urge that in any future impeachment inquiries 
the role of the counsel of the person subject to the impeachment proc- 
ess not be extended beyond that of an observer and auditor. In the 
Nixon hearings, the extensive participation was permitted out of 
an overabundance of caution that the hearings be conducted with 
fairness and that due process be observed. Those goals were not only 
achieved, but surpassed, and because of excessive participation by 
President’s counsel, both fairness and due process were threatened. 

THE SUFFICIENCY OF PLEADING THE ARTICLES OF IMPEACHMENT 

A careful reading of the three articles of impeachment returned by 
the Committee clearly demonstrates that they are finely drawn and suffi- 
cient to meet fully any objections or demands as to whether the person 
impeached would be adequately informed of the charges against him. 
Impeachment is neither a civil nor a criminal judicial procedure, jit is 

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37-777 0 - 74 - 20 



304 


a parliamentary procedure. Impeachment is not governed by either 
civil or criminal procedural rules or rules of pleading. Nevertheless, 
both civil and criminal rules and procedures serve as useful analogies 
and guidelines in the preparation of articles of impeachment. In the 
Nixon inquiry, much debate centered on whether the articles contained 
sufficient specificity. That was a false issue. It is submitted that each 
of the articles returned by the Committee was drawn with sufficient 
specificity to inform the person accused fully of the charges placed 
against him, thus enabling him adequately to prepare his defense. In 
addition, the President was furnished, through his counsel, with a full 
and complete copy of every item of evidence in the possession of the 
Committee. 

ALLEGED IMMUNITY OF PRESIDENTS FROM CRIMINAL PROSECUTION 

During the hearings, Members of the Committee commented in pass- 
ing, on three occasions, that an incumbent President of the United 
States cannot be indicted and tried for a criminal charge until after he 
is impeached and removed from office. 

Many Members of the Committee, including myself, do not agree 
with that statement. I am convinced that it has no basis in our Con- 
stitution, our statutes or the decisions of our courts. 

The argument that the President is immune from criminal process 
is based upon a misreading of Mississippi v. Johnson , 71 U.S. (4 Wall.) 
475. That case did not involve the question of whether or not a Presi- 
dent was subject to judicial process for a criminal offense. It had to 
do with a request for an injunction against President Andrew John- 
son to prevent him from executing a law. It is not authority for the 
contention that an incumbent President cannot be prosecuted for a 
criminal offense prior to impeachment. 

The language of the Constitution which is sometimes misinterpreted 
as to the indictability of a President is Article I, Section 3, Clause 7, 
which proves that “Judgment in Cases of Impeachment shall not ex- 
tend further than to removal from Office, and disqualification to hold 
and enjoy any Office of honor, Trust or Profit under the United States : 
but the Party convicted shall nevertheless be liable and subject to In- 
dictment, Trial, Judgment and Punishment, according to Law.” There 
is nothing in that language providing an exemption from criminal 
prosecution for Presidents. The framers of the Constitution were 
mindful of exemptions, and knew how to provide for them. In fact, 
they did so in providing for a limited immunity from arrest for Sena- 
tors and Kepresentatives under Article I, Section 6 of the Constitution. 
They provided no exemption for the President. 

The Constitutional remedy of impeachment is available against the 
President, Vice President, and all civil officers of the United States, 
which includes judges. In our history, there have been a number of 
instances when an incumbent judge or cabinet officer has been indicted, 
and even tried, judged and punished without first being impeached. 
Judge Keener was a recent example of this process. It would strain 
common sense to hold that the words of the Constitution have one 
meaning for Presidents, but another meaning for other officials who 
are also subject to the impeachment process. 



305 


THE CONDUCT CHARGED IN ARTICLE II CONSTITUTES IMPEACHABLE CONDUCT 

As I argued in committee, in opposition to a point of order against 
Article II, on Monday, July 29, 1974, in my opinion, this is the most 
important article being considered by the committee. 

The offenses charged in this Article II are truly high crimes and 
misdemeanors within the purest meaning of those words as established 
in Anglo-American parliamentary law over a period of now some 600 
years. The offenses charged against the President in this article are 
uniquely Presidential offenses. No one else can commit them. Anyone, 
the most lowly citizen, can obstruct justice. Anyone, the most lowly 
citizen, can violate any of the laws in our criminal code. But only the 
President can violate the oath of office of the President. Only the 
President can abuse the powers of the Office of the President. 

When our Founding Fathers put our Constitution together, it was 
no accident that they separated the powers and it was no accident that 
they included the impeachment clause. Against the backdrop of 400 
years of English constitutional history they realized the need to have 
a device, a constitutional means, of removing from office a chief 
magistrate who had violated his solemn oath of office. And I respect- 
fully submit that the impeachment clause of our Constitution which 
we use now for only the second time against a President, is that means. 

These are high crimes and misdemeanors, in that they are crimes 
and offenses against the very structure of the state, against the system 
of government, the system that has brought to the American people 
and has preserved for the American people the freedoms and liberties 
which we so cherish. This is uniquely a Presidential offense and the 
most important subject of these hearings. 

There are many conscientious, dedicated, Americans who harbored 
a feeling of fear and apprehension at this proceeding. Some of them 
believed that the inquiry should not be held because it might harm 
the Presidency. There is no reason for that fear. 

Only the President can harm the Presidency. No one but the Presi- 
dent can destroy the Presidency. It is our responsibility, acting under 
the impeachment clause, to preserve and protect the Presidency as we 
preserve and protect every other part of our marvelous structure of 
government, and we do it through this impeachment process. 

The American people want a government which they can honor 
and respect. They are entitled to a government which they can honor 
and respect. The American people want a President whom they can 
revere. They are entitled to a President whom they can revere. 

I ask “Is not the violation of the solemn oath of office an impeach- 
able offense?” It is not found in our criminal code. It is implicit in our 
Constitution. It is necessarily implicit in the Constitution for other- 
wise why would there be an oath of office ? 

EMOLUMENTS RECEIVED BY THE PRESIDENT 

Article II, Section 1, Clause 6 of the U.S. Constitution forbids the 
receipt by the President, during his term of office, of “any other 
emolument from the United States,” — other than his fixed compen- 
sation. 



306 


“Emolument” is defined as “the profit arising from employment, 
usually in the form of compensation or perquisites.” 

The investigations by the House Committee on Government Opera- 
tions, the General Accounting Office, the Internal Revenue Service, 
and the Joint Congressional Committee on Internal Revenue Taxation 
have all concluded that many of the expenditures on Mr. Nixon’s 
private homes were for his personal benefit. They were paid for by 
agencies of the United States Government. I submit that, therefore, 
the money value of those expenditures constituted “other emolu- 
ment from the United States” during Mr. Nixon’s term of office, and 
are unconstitutional under the provisions of Article II, Section 1, 
Clause 6 of the Constitution. It follows that since they are uncon- 
stitutional, and a fortiori , unlawful, they cannot constitute “income” 
to Mr. Nixon received from the Federal government, and the problem 
is not disposed of by having the money value included as added “in- 
come” to Mr. Nixon with “income tax” paid thereon, for that would 
leave a “net after taxes”, which itself would be an unconstitutional 
emolument. 

There is no way under the U.S. Constitution that Mr. Nixon can 
receive and retain such emoluments. Therefore, it necessarily follows 
that he is holding the full money value of those expenditures as a 
constructive trustee for the United States, and that the matter can- 
not be resolved until he has paid the full money value thereof to the 
United States. 

George E. Danielson. 



SUPPLEMENTAL VIEWS OF MR. DRINAN 


INTRODUCTION 

Contemporary commentators and future historians will have rea- 
son, it seems to me, to raise the most serious questions as to why the 
House Judiciary Committee did not more adequately investigate the 
deliberate and persistent cover-up by President Nixon of the clandes- 
tine bombing which he personally authorized over the neutral nation 
of Cambodia between March 18, 1969 and May 1, 1970. From the 
beginning of the impeachment inquiry I persistently raised with the 
members and with the staff of the Committee the possibility of an im- 
peachable offense based upon the usurpation of the power of Con- 
gress as well as the deception of Congress involved in the Cambodian 
bombing and the subsequent falsification of military records submitted 
to the U S. Senate. 

CAMBODIAN ISSUE ACCORDED LOW PRIORITY 

The fact is that the House Judiciary Committee made its decision 
against the Cambodian bombing as an impeachable offense upon in- 
adequate evidence. The concurring statement contained in this report 
by Congresswoman Holtzman, joined in by myself and several other 
members of the Committee, indicates that “the statistical information 
regarding [Cambodia] is incomplete because the inquiry staff de- 
clined to obtain it.” Congresswoman Holtzman continues by stating 
that “unfortunately, the investigation in general of the secret Cam- 
bodian bombing was not pursued as fully by the staff as its seriousness 
required.” 

The fact of the matter is that not a single subpoena was issued 
in connection with the Cambodia question, not a single witness was 
summoned and no apparent attempt was made to compel the declassi- 
fication of those documents essential to an investigation of the reasons 
why the air war in Cambodia was concealed from the American people 
until it was discovered quite by accident in July 1973. 

I am not minimizing the seriousness and the gravity of the three 
articles of impeachment set forth and justified in this report. I have 
concurred in the judgment that all of them constitute impeachable 
offenses. At the same time is seems paradoxical that a bipartisan 
majority emerged for votes to impeach the President on the basis of 
strictly domestic offenses whereas a bipartisan majority did not 
emerge with respect to the presumably bipartisan role which the Presi- 
dent fulfilled as Commander-in-Chief. Only history will be able to de- 
cide the reasons for this phenomenon. I feel compelled to state at this 
time, however, that I find it incongruous that a President be impeached 
for unlawful wiretapping but not for unlawful war making. Similarly, 
I find it disturbing that the Committee voted to impeach a President for 
concealing a burglary but not for concealing a massive bombing. 

( 307 ) 



308 


In the scant material in the Committee Report on the Cambodian 
question there is reference in a footnote to “the detailed findings of the 
Inquiry Staff concerning the bombing of Cambodia.” Not everyone 
will agree that those findings are “detailed”. The origins of those find- 
ings are described in this footnote as based on “all available sources of 
material”. This contention is also open to question. A careful review 
of the written record of the debate in the Judiciary Committee on the 
Cambodian question indicates that many of the members did not have 
answers to the questions which in their judgment were essential to a 
decision on the lmpeachability of the President’s conduct in ordering 
that information concerning bombing in Cambodia be withheld from 
Congress and the American people. 

Members did not have that information because from the beginning 
of the impeachment inquiry the Cambodian question was given a very 
low priority. The members of the Judiciary Committee did not estab- 
lish that low priority. Clearly the inherent seriousness of the matter 
could not justify the paucity of staff assigned to the Cambodian issue. 
Only history will be able to decide whether a Congress which funded a 
war in Indo-China even after it had repealed the Gulf of Tonkin Res- 
olution in December, 1970, was so confused about its own role in the 
Vietnam War that it was unable or unwilling to delve into presidential 
conduct more shocking and more unbelievable than the conduct of any 
president in any war in all of American history. 

THE PROPOSED ARTICLE ON IMPEACHMENT ON CAMBODIA 

The proposed article of impeachment which was rejected by the 
Judiciary Committee on July 30, 1974, by a vote of 26 to 12 reads as 
follows : 

In his conduct of the office of President of the United States, Richard M. 
Nixon, in violation of his constitutional oath faithfully to execute the office of 
President of the United States and, to the best of his ability, preserve, protect, 
and defend the Constitution of the United States, and in disregard of his con- 
stitutional duty to take care that the laws be faithfully executed, on and 
subsequent to March 17, 1969, authorized, ordered and ratified the concealment 
from the Congress of the facts and the submission to the Congress of false and 
misleading statements concerning the existence, scope and nature of American 
bombing operations in Cambodia in derogation of the power of the Congress 
to declare war, to make appropriations and to raise and support armies, and by 
such conduct warrants impeachment and trial and removal from office. 

The gravamen of this proposed article of impeachment is not the 
bombing itself nor even the secrecy of the bombing, but, rather, its 
concealment from the Congress. The concealment was carried out in a 
course of conduct by President Nixon which was a clear usurpation 
of the right of Congress to declare war. 

It is overwhelmingly clear that the Framers of the Constitution 
granted to Congress exclusively “the power of the sword”. Alexander 
Hamilton pointed out that the Constitution provides that it is “the ex- 
clusive province of Congress, when the nation is at peace, to change 
that state into a state of war.” Similarly in the Federalist Papers, 
J ames Madison states : 

The power to declare war, including the power of judging the causes of war 
is fully and exclusively vested in the legislature ; but the Executive has no 
right, in any case, to decide that question, whether or not there is a cause of 
declaring war. 



309 


One need not approach the ultimate scope of congressional power 
in the area of declaring war in order to recognize the unconstitutional 
conduct of the President in carrying out a policy of deception from 
March, 1969 until July 16, 1973, — more than four years after the 
bombing commenced. That deception included a violation of Article I, 
Section 9 of the Constitution which declares that “a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time.” One of the delegates to the 
Constitutional Convention, Colonel Mason, stated during the Virginia 
ratifying convention of 1787 that he could not conceive of any situation 
in which the receipts and expenditures of public money ought to be 
concealed. “The people,” he affirmed, “had a right to know the expendi- 
tures of their money.” The President violated both the letter and spirit 
of that constitutional mandate by misrepresenting the expenditure 
of 145 million dollars for the bombing of Cambodia as having been 
spent in South Vietnam. 

The article of impeachment reproduced above refers directly and 
exclusively to the massive cover-up of the facts during and after the 
secret bombing raids of 3,695 B52’s over Cambodia carried on over 
a period of 14 months. Although the evidence suggests that these 
bombings were not successful in eliminating the alleged sanctuaries 
of the North Vietnamese in Cambodia, one need not dispute the 
claimed merits of these bombings in order to condemn their conceal- 
ment. The proposed article of impeachment based on the secret bomb- 
ing in Cambodia takes no position on the war in Indo-China. The 
resolution was not designed to separate those who approved of the 
war from those who disapproved. Indeed one can hold that the 3700 
B52 sorties actually saved American lives in South Vietnam and still 
recognize that the cover-up of these bombings is such a serious offense 
against Congress and the Constitution that it reaches the level oi 
impeachability. 

PROPOSED JUSTIFICATIONS FOR CONCEALMENT 

Those who would justify the withholding of information from the 
Congress and the country on the basis that the bombing of Cambodia 
was necessary to preserve the lives of American troops in South Viet- 
nam cannot use that justification for the policy of deception which 
w T as continued until July 16, 1973, — more than four years after the 
bombing began. Indeed President Nixon never asserted any military 
justification for the secrecy and deception. The alleged justification of 
protecting Prince Sihanouk from embarrassment clearly ceased when 
Sihanouk was overthrown on March 18, 1970. 

There was no military justification for maintaining secrecy about 
the Cambodian bombings. There was no diplomatic reason, at least 
after the overthrow of Sihanouk on March 18, 1970. The only reason 
for the deception of Congress and of the country was President 
Nixon’s political objective of deceiving and quieting the anti-war 
movement. The President orchestrated a conspiracy to keep the lid on 
Cambodia until at least after the elections of November, 1972. 

Those who would justify the deception of Congress on the grounds 
of national security contend that the alleged communication of the 



310 


bombing in Cambodia to a handful of members of Congress satisfies 
the requirements of the Constitution. No one has ever revealed who 
communicated what information to the alleged 13 members of Con- 
gress who were reported to be advised about the secret bombing. In 
direct contradiction to the claim that some members of Congress knew 
about the bombing, there stands the testimony of General Wheeler on 
July 30, 1973 before the Senate Armed Services Committee in which 
the general reported that President Nixon had ordered him personally 
never to disclose the bombing of Cambodia to any member of Congress. 

THE UNRAVELLING OF THE COVER-UP 

The calculated cover-up of Cambodia like the cover-up of Water- 
gate, unravelled by accident. According to Senator Symington, the 
acting Chairman of the Armed Services Committee, during the hear- 
ings in July and, August 1973, he and other members of Congress 
heard of the secret bombings of Cambodia because of the circum- 
stances he describes in these words. 

I would like to point out that the knowledge of this whole bombing of B52’s 
in Cambodia resulted from a foreign correspondent in a small airplane going 
from Phnom Penh to Saigon seeing the craters that the B52’s had made in 
Cambodia. If it had not been for that, there would have been no knowledge of 
the subject on the part of the American people . . . 

This accidental unravelling of a calculated deception revealed the 
falsity of testimony given on a regular basis over a four year period 
by the highest military and civilian officials of the government. It is 
clear, moreover, that all of the persistent testimony on behalf of the 
cover-up of the bombing in Cambodia is directly traceable to the 
decree of the President that there should be absolute and abiding 
secrecy about the bombing in Cambodia. No other motivation except 
a presidential directive can explain the testimony of Secretary of the 
Army Stanley Resor on April 16, 1970, the testimony of General 
Earle Wheeler in May, 1970, and the report of Secretary of the Air 
Force Seamans in May, 1970, all of whom reported that no bombing 
strikes had occurred in Cambodia prior to May 1, 1970. 

Unfortunately the staff of the House Judiciary Committee declined 
to investigate the unprecedented and indefensible falsification of mili- 
tary documents by Pentagon officials. All of the documents related to 
the 3,695 raids were altered to indicate that these attacks had occurred 
in South Vietnam rather than in Cambodia. Pentagon officials testi- 
fied falsely to the Senate regularly and persistently. The Pentagon 
spokesman, Jerry Friedheim, distributed falsehoods to the press 
knowing them to be falsehoods. When confronted later, Mr. F riedheim 
said : “I knew at the time that it was wrong and I am sorry.” The 
President never urged that Mr. Friedheim be fired and he was not. 
Mr. Friedheim’s summary judgment of the long series of lies came 
to this : “We were not smart enough to foresee” that the secret bomb- 
ing and falsification would inevitably be disclosed. 

THE president’s RESPONSIBILITY 

No plausible explanation of this deception is sustainable except the 
conclusion that it originated in a Presidential command that no dis- 



311 


closure ever foe made of the clandestine Cambodian bombings. When 
the falsification of records became known in July, 1973, Dr. Kissinger 
deplored it. General Wheeler, the former chairman of the Joint Chiefs 
of Staff, expressed horror at the falsification of records but stated that 
if the President had ordered him to falsify them, “I would have done 
it.” If sail of the lying was done originally to diminish domestic opposi- 
tion to the war in Vietnam it was indefensible. If Prince Sihanouk 
had agreed to the bombing and the lies 'were to protect him from the 
wrath of his own people, the deception was still indefensible. 

One can come only to a single and inescapable conclusion : the decep- 
tion and falsification was ordered by the President so that he could 
pursue the bombing without objection from anyone in the Congress 
or in the country. Independent of whether one approves of that massive 
bombing, the conduct of President Nixon simply cannot be said to 
satisfy the requirement of the Constitution that Congress appropriate 
all funds necessary for the waging of war. 

The unconstitutionality of the conduct of President Nixon was 
cogently stated by Senator Symington in these words : 

I have been on this committee, this is my 21st year. I knew nothing whatsoever 
about this (the secret ibom'bing of Cambodia). I put up the money. Apparently 
nobody knew about this except two or three Senators at the most. If we are 
asked to appropriate money for one thing and it is used for another, regardless 
of its effectiveness, that puts us in a pretty difficult position. 

I personally think it is unconstitutional, because you dropped over a hundred 
thousand tons on this country, and I had no idea you dropped one ton, nor did 
other members of the committee except those chosen few, all of whom, I might 
add, supported the war, which I once did and later changed in 1967. 

Senator Harold E. Hughes, reflecting on the persistent deception 
engaged in by Pentagon officials about the Cambodian bombing came 
to these conclusions in a speech on -the Senate floor ; 

I deeply believe that the peril to our free institutions created by these official 
practices of official deceit and secret warfare are more ominous than any problem 
confronting our country. 

No group within our society, however well-intentioned, can be permitted to 
make the momentous decision to wage secret warfare while officially deceiving 
the Congress and the public. 

CONCLUSION 

The Framers of the Constitution came together in Philadelphia 
from May to September in 1787 in order to create a government where 
no one ever again would have to enter into an armed rebellion to 
vindicate his right to be free of tyranny. The framers of the Constitu- 
tion deemed the ultimate tyranny to be war carried on illegally by the 
executive. Mr. Kandolph of Virginia noted that the President would 
have great opportunities in the American system of abusing his 
power, — particularly in time of war. In order to prevent the Executive 
from engaging the entire nation in war, the Framers of the Constitu- 
tion carefully diffused that power among both bodies of the Congress. 
The authors of the Constitution, after an extensive debate, gave the 
power to “declare” war to Congress and the power to “make” that war 
to the Executive. The F ramers of the Constitution devised the remedy 
of impeachment for those members of the executive branch of govern- 
ment who would bring the ultimate tyranny of war on the people of 
America without the Congress officially and formally declaring that 
war. 



312 


The manner in which President Nixon unilaterally conducted an 
air war in Cambodia and the subsequent course of conduct in which 
he covered up that period of massive bombing in a neutral country 
cannot be justified by the Constitution, by the relevant laws, or by any 
traditional relationship between the Congress and the President in a 
period of war. The fact is that President Nixon, in the concealment 
and cover-up of the war in Cambodia, violated the most fundamental 
right of the Congress and usurped the most basic constitutional privi- 
leges of the people of America. He committed offenses for which the 
remedy of impeachment is uniquely suited and for which that extra- 
ordinary remedy was placed in the Constitution. Nothing in the 
exalted powers of the President as Commander-in-Chief can justify 
the manner in which President Nixon treated the Congress and the 
country when he entered into a course of conduct that began in March, 
1969, two months after he became President, and terminated in July, 
1973, to the embarrassment of the Pentagon and the White House. 
The dark series of events during that period and the habitual decep- 
tions of the American people by the President constitute conduct, as 
outlined in the proposed Article IV of Impeachment, which rivals, if 
not surpasses, the lawless activity set forth in the first three articles of 
impeachment as outlined in this report. 

It is exceedingly regrettable that the unconscionable and unconsti- 
tutional conduct of Richard Nixon with respect to the neutral nation 
of Cambodia was not also deemed by the Committee to be an im- 
peachable offense. I can only hope that future generations will not 
interpret this decision of the Judiciary Committee as implied consent 
and sanction of such conduct. 

Robert F. Drinan. 



SEPARATE AND ADDITIONAL VIEWS OF MR. RANGEL, 
CONCERNING ARTICLES OF IMPEACHMENT AGAINST 
THE PRESIDENT OF THE UNITED STATES, RICHARD 
M. NIXON 

INTRODUCTION 

These separate and additional views are submitted in an effort to 
establish the historical record of the facts and circumstances surround- 
ing the resignation of the 37th President of the United States. The 
38 members of the Judiciary Committee have recorded their sup- 
port for Article I of the three articles of impeachment voted by the 
Committee clearly established the existence of clear and convincing 
evidence of the President’s involvement in impeachable crimes; had 
not the President resigned, it is clear that he would have been im- 
peached by the House of Representatives and convicted in the Senate 
for his criminal activities. 

This record needs to be established for the sake of historical accuracy 
in view of the fact that even on the day of his resignation President 
Nixon attempted to convey to the American people the impression that 
his resignation was caused by erosion of his political base as a result 
of some poor judgments he made during his term of office. The record, 
as set forth in the Committee report makes it abundantly clear that 
Richard M. Nixon violated his oath of office as President of the United 
States, that he committed impeachable crimes, and that on the avail- 
able evidence he would have been impeached by the House of 
Representatives. 

For only the second time in the one hundred and ninety-eight years 
of our Constitutional history the House of Representatives is presented 
with articles of impeachment against the President of the United 
States. After seven months of staff preparation, ten weeks of concen- 
trated presentation of the evidence to the members of the Committee, 
and a week of debate, the Committee on the Judiciary by majority 
vote has recommended three articles of impeachment to the House. 
I voted in Committee for these three articles and associate myself 
with the majority report setting forth the recommended articles of 
impeachment and the evidence underlying them. I wish, however, to 
set forth my separate views supporting the articles of impeachment 
voted by the Committee and my dessenting views concerning the two 
articles of impeachment that were presented to the Committee, but 
rejected, and another possible article of impeachment that was not 
voted upon by the Committee. 

SUPPORT OF THE ARTICLES OF IMPEACHMENT VOTED BY THE 

COMMITTEE 

The articles of impeachment which the Committee on the Judiciary 
presents to the House of Representatives charge Richard M. Nixon 

( 313 ) 



314 


with the following high crimes and misdemeanors against the Presi- 
dency and against the people of the United States: obstruction of jus- 
tice in his participation in an effort to impede the investigation of the 
Watergate burglary and related crimes; abuse of power and misuse of 
the Office of the Presidency to achieve political and personal gain; 
and contempt of the Congress by his refusal to cooperate with the 
Constitutionally based and lawfully mandated investigation of the 
Committee on the Judiciary. We are asking the members of the House 
of Representatives to examine the evidence and find, as we did, that 
these offenses are sufficiently proven to mandate the impeachment of 
the President and his trial in the Senate to determine whether he 
should be removed from office. 

I also want to ask the members of the House to consider a responsi- 
bility which weighed upon us on the Committee on the Judiciary as 
we went through the great mass of evidence gathered by the impeach- 
ment inquiry staff — a responsibility to act to protect the Constitution, 
and with it our democratic system of government, from the type of 
usurpation of power which would have successfully occurred under 
this President if it had not been for the conscientious performance of 
his job by Frank Wills, a black, poorly paid night watchman at the 
Watergate on the night of June 17, 1972. 

As a black American, I have been especially struck by the poetic 
justice of the discovery of the Watergate burglars by a black man. 
Black people were not considered by the Founding Fathers of this 
nation when they undertook to issue the Declaration of Independence 
in the name of freedom. Although a black man was among the first 
to fall in the American revolution and blacks fought alongside the 
revolutionary heroes for freedom, we were not included when citizen- 
ship was defined in the Constitution. We have spent the one hundred 
and ninety-eight year history of this nation trying to become covered 
by the guarantees of freedom and equality contained in the Constitu- 
tion. Despite the ending of legal slavery with the Emancipation Proc- 
lamation, for which we had to wait eighty-seven years, black Ameri- 
cans have had to win their social and economic freedom in a revolu- 
tionary struggle which has characterized our American experience 
and which continues to the present day. It is only in the last two 
decades that black Americans have made significant progress in 
extending the coverage of Constitutional guarantees to us. We there- 
fore value, perhaps to a greater extent than most Americans, the guar- 
antees of freedom and equality expressed in the Constitution and the 
structure of government which provides, through democratic partici- 
pation, for the will of the people to prevail. 

The crimes to which Richard M. Nixon was a willing accessory 
threatened the system of law and justice, and for this alone they are 
impeachable offenses; but more fundamentally, this President has 
undermined the very basis of our government. If we do not impeach 
him for this, then we will be accessories to his crime and jointly respon- 
sible for raising the Presidency above the law. 

What Richard Nixon has done is to substitute power for law, to 
define and attempt to impose a standard of amorality upon our gov- 
ernment that gives full rein to the rich and powerful to prey upon 



315 


the poor and weak. What Richard Nixon has done is to demean the 
importance of national security by using it as a handy alibi to protect 
common burglars. What Richard Nixon has done is attempt to stain 
the reputation of the agencies of our government by using them to 
obstruct justice, harass political enemies, illegally spy upon citizens, 
and cover-up crimes. What Richard Nixon has done is show contempt 
for the Congress by refusing to provide information necessary for the 
Constitutionally legitimate conduct of an inquiry into the question of 
impeachment by the Committee on the Judiciary of the House of Rep- 
resentatives. What Richard Nixon has done is threaten the Constitu- 
tion by declaring himself and the Office of the Presidency beyond the 
reach of law, the Congress, and the courts. 

To a large extent he has succeeded- We have reached a state in our 
national life where responsible members of Congress argue that the 
President does not have to account for his actions to anyone or recog- 
nize any higher authority. Thus we stand on the brink of total sub- 
version of our Constitutional government and dictatorship. A few 
weeks ago the Supreme Court of the United States ruled unanimously 
that the President’s claim of executive privilege could not justify his 
refusal to provide the United States District Court for the District of 
Columbia and the Special Prosecutor with evidence necessary for the 
successful completion of the investigation and trial of charges of the 
involvement of White House and other high Administration officials 
in the Watergate cover-up The contempt in which the law is held by 
Richard Nixon was never more evident than in his persistent refusal 
to state that he would abide by the decision of the Supreme Court. On 
the day of the decision the American people had to wait for hours 
for the announcement that the President would comply with the 
unanimous decision of the United States Supreme Court. Some of the 
President’s defenders were even heard to praise the President for his 
decision to comply with the Supreme Court decision, as if Richard 
Nixon was not subject to the Supreme Court, and the law of the land, 
unless he wanted to be. If we do not act to impeach this President, 
will we still have a democracy ? 

We all have a large stake in preserving our democracy, but I main- 
tain that those without power in our society, the black, the brown, the 
poor of all colors, have the largest stake— not because we have the 
most to lose, but because we have worked the hardest, and given the 
most, for what we have achieved. The framers of the Constitution per- 
haps never conceived that the Republic they created would be de- 
fended by the underprivileged, but this has happened in every war 
in which this nation has been involved. The sons of slaves have joined 
the sons of poor immigrants on the front lines in disproportionate 
numbers to defend our democracy. I went to Korea from the streets 
of Harlem and fought, although I had no understanding of what 
that socalled “police action” was all about. But I had sworn on oath 
to defend the Constitution, and I went and fought to do so. Richard 
M. Nixon swore that oath on two inauguration days, but he had 
dishonored it. We have all sworn that same oath and we must live 
up to it by voting the articles of impeachment of Richard M. Nixon 
voted by the Committee on the Judiciary . 



316 


DISSENTING VIEWS CONCERNING THE TWO ARTICLES PRESENTED TO, 
BUT NOT VOTED BY THE COMMITTEE 

I do not believe, however, that we will have fulfilled our Constitu- 
tional duty if we vote impeachment solely on the basis of the three 
articles recommended by the Committee. The very nature of the im- 
peachment process, we have recognized in the Judiciary Committee, 
infuses our decision on the grounds for impeachment with the weight 
of historical precedent. We are not merely making a judgment on 
the conduct of the Richard M. Nixon Presidency, we are making 
judgments that will determine the limits of Presidential, legislative, 
and judicial power. For this reason I supported the two articles of 
impeachment which were recommended to the Committee on the 
Judiciary, but which have not been recommended by the Committee 
to the House. These two articles, based upon the President’s authori- 
zation of the secret bombing of Cambodia without the lawful direc- 
tion of the Congress and the President’s use of his office for his self- 
enrichment in derogation of the Constitutional provision forbidding 
the taking of emoluments, are as equally indicative of the President’s 
contempt for the law as the three articles recommended by the Com- 
mittee. The Presidential conduct to which these articles are addressed 
is as potentially destructive of the Constitution as the President’s 
obstruction of justice, abuse of power and contempt of Congress even 
though the particular activity involved did not appear to offend as 
large a number of members of the Judiciary Committee as the activity 
addressed in the first three articles. 

In the last twenty-five years we have become accustomed, it appears, 
to national involvement in undeclared war. The Korean police action, 
the invasion of Lebanon, the Bay of Pigs, the intervention in the 
Dominican Republic, and the Indochina war were all instances of 
American military involvement initiated by an American President 
without the Constitutionally required declaration of war by the Con- 
gress. In each of these instances the Congress acquiesced in the 
Presidential action, thus becoming a party to the erosion of the 
Congressional power to declare war. We in the Congress must 
share the blame for the taking on to the Presidency of a power 
■to involve our nation militarily that is not contemplated by the 
Constitution. Yet the secret bombing of Cambodia authorized by 
President Nixon during 1969 and 1970 is different from these earlier 
examples of Presidential war making. Instead of the traditional notifi- 
cation of and consultation with Congressional leadership, President 
Nixon moved unilaterally to authorize the bombing of a neutral coun- 
try. The evidence that has been presented of Congressional notifica- 
tion is not convincing. Selected members of the House and Senate were 
allegedly told that the bombing v T as going on, yet none of the men 
supposedly informed clearly remembers the notification. Whatever 
notice was given, it was certainly inadequate to provide the Congress as 
a whole with the information that was needed to articulate a judg- 
ment of the military and diplomatic wisdom of the President’s action. 
The information was insufficient, and its dissemination so controlled, 
that it was impossible for a position in opposition to be developed. This 
is Presidential war making, and if we are to preserve the integrity of 



317 


the Constitution’s reservation of the war-making power to the Con- 
gress, if we are to prevent future Presidents from committing the 
lives of American youth to adventurous forays, we have a duty to seri- 
ously consider President Nixon’s authorization of the secret bombing 
of Cambodia as an abuse of Presidential power constituting an im- 
peachable offense. 

Similarly, to check the potential excesses of future Presidents, the 
members of the House of Representatives should move to impeach 
Richard M. Nixon for willful taking of government property for his 
self -enrichment and his evasion of his lawful tax liability. 

Article II, Section I, clause 7 of the Constitution provides that the 
President shall not receive “any . . . emolument from the United 
States” during his term of office other than a stated compensation 
for his services. This explicit Constitutional prohibition applies solely 
to the President. The Founding Fathers recognized the potential for 
self -enrichment in the Presidency and provided this language to pre- 
vent “powers delegated for the purpose of promoting the happiness 
of a community” from being “perverted to the advancement of the 
personal emoluments of the agents of the people”. 1 From the wealth 
of evidence gathered by the investigation of the Government Opera- 
tions Committee into unlawful expenditures of government funds on 
President Nixon's private properties at Key Biscayne, Florida and 
San Clemente, California and presented to the Committee on the 
Judiciary, an article of impeachment was drawn charging Richard 
M. Nixon with violating the emoluments clause of the Constitution by 
knowingly receiving the benefits of expenditures on this personal prop- 
erties. Although the Judiciary Committee did not recommend this 
Article to the House, I urge its consideration by the full House. 

Summarizing from the staff report on the evidence on the question 
of the President’s violation of the emoluments clause, the evidence 
presented to the Committee on the Judiciary shows that since Richard 
M. Nixon became President the General Services Administration 
(GSA) has spent approximately $701,000 directly on his San Clemente 
property and $575,000 directly on his Key Biscayne property for capi- 
tal expenses, equipment, and maintenance. The evidence before the 
Committee further establishes that substantial expenditures for im- 
provements and maintenance services on the President’s properties 
were made by GSA that are unrelated to the lawful duty of the GSA 
to make expenditures at the direction of the Secret Service for the 
installation of security devices and equipment on the private property 
of the President or others to protect the President. Some of these 
expenditures were made by the GSA at the direction of the President 
or his representatives, with no Secret Service request. Others were 
made after Secret Service requests, but included substantial amounts 
to meet aesthetic or personal preferences of the President and his 
family. Yet others, while they served security purposes, involved items 
that are normally paid for by a homeowner, such as the replacement 
of worn-out or obsolete equipment or fixtures and routine landscape 
maintenance. The staff of the Joint Committee on Internal Revenue 
Taxation concluded that more than $92,000 of expenditures on the 

-Jill Elliott. The Debates on the Adoption of the Federal Constitution. 117 (reprint of 
2d edition) (Randolph). 



318 


President’s properties was for his personal benefit and constituted 
income to him (Joint Committee Report, p. 201). The Internal 
Revenue Service concluded that the President had realized $62,000 
in such imputed income (HJC Tax Report, Appendix 10). 

The evidence presented to the Committee on the Judiciary shows 
that President Nixon participated in an effort to evade his full income 
tax liability in 1969 by claiming a huge deduction for a gift of Presi- 
dential papers that was actually not made until after the date of final 
eligibility for claiming a deduction for such a gift. 

On December 30, 1969 President Nixon signed the Tax Reform 
Act of 1969 into law. That Act included a provision eliminating the 
tax deduction for contributions of collection of private papers made 
to the government or to charitable organizations after July 25, 1969. 
On April 10, 1970 the President, who is an attorney who in the past 
has engaged in tax practice, signed his income tax return for 1969, 
claiming a deduction for the donation to the National Archives of 
pre*Presidential personal papers allegedly worth $576,000. The Presi- 
dent and his attorney went over the return page by page and discussed 
the tax consequences of the gift of papers deduction. (Kalmbach testi- 
mony, 3 HJC 671) An appraisal valuing the donated papers al that 
amount and a sheet describing the gift were attached to the return. 
These documents, which constitute part of the return signed by the 
President assert that the gift had been made on March 27, 1969. 

There can be no doubt, the impeachment inquiry staff report on this 
matter concludes, that the President knew that the Tax Reform Act 
required that, for the claim of deduction to be valid, a gift must be 
completed by July 25, 1969. It is also clear that the President knew 
that his return indicated that the gift had been made on March 27, 
1969. The Internal Revenue Service has disallowed this deduction. 
The IRS found that, as a matter of fact, the gift of papers was not 
made on or before July 25, 1969. On the basis of its investigation, the 
IRS concluded that the President was negligent in the preparation 
of its taxes and assessed a negligence penalty of 5%. Because the IRS 
did not assess a civil penalty for fraud, those members of the Judiciary 
Committee who opposed this article during debate declared that the 
IRS Jiad reached a definitive conclusion that no civil fraud was in- 
volved, thus exonerating the President. It is clear, however, that the 
IRS investigation of the President’s negligence was less than complete 
out of that agency’s deference to his office. The President was never 
interviewed, nor were others with important information concerning 
the preparation of the return such as John Elirlichman. Thus the IRS' 
was unable to make a determination on the question of fraud. Simi- 
larly, the Joint Committee on Internal Revenue Taxation’s investiga- 
tion of the 1969 return, after concluding that the gift of papers had 
not been made by July 25, 1969 as claimed in the report, stopped 
short of addressing the question of fraud out of deference to the 
Judiciary Committee’s impeachment inquiry. 

The Judiciary Committee’s impeachment inquiry staff did address 
the question of criminal tax fraud in its investigation and, in my 
opinion, found evidence that the President did not file a false tax re- 
turn for 1969 through mistake or negligence, but knowingly partici- 
pated in a scheme to defraud the United States Government by 



319 


claiming falsely that he had made his gift of papers prior to July 25, 
1909, the date of expiration of the eligibility for valid tax deductions 
for such gifts. 

The Judiciary Committee heard the expert testimony of Fred 
Folsom, a consultant to the Committee who for 24 years was an 
attorney in the Criminal Section of the Justice Department's Tax 
Division and chief of that section for 12 years. Considering all the 
circumstances surrounding the alleged gift of papers and its inclu- 
sion as a deduction on the President's 1969 return, including the lack 
of a satisfactory response from the taxpayer, it was the judgment of 
Folsom that in this case “the case of an ordinary taxpayer, on the 
facts as we know them in this instance, the case would be referred 
out for presentation to a Grand Jury for prosecution.” (Folsom 
testimony, June 21. 1974, Tr. 1976). 

It is clear to me from the evidence that President Nixon directed 
or knowingly received the benefit of improper expenditures on his San 
Clemente and Key Biscayne properties in violation of the law and the 
emoluments clause of the Constitution. It is equally clear that Richard 
Nixon had knowledge of and bears full responsibility for the willful 
evasion of his income tax obligation. 

Richard M. Nixon did this while preaching economy in govern- 
ment and imposing devastating cuts on vital social programs in his 
budgets and through the impoundment of Congressionally appropri- 
ated funds. He enriched himself at the taxpayers’ expense while chil- 
dren were going hungry and uncared for, the poor and elderly were 
being denied adequate housing, and growing hope was being turned 
into despair as Federal assistance to help people out of the bondage of 
poverty was being brutally terminated in the name of economy. Per- 
haps the greatest indictment against Richard Nixon that can be voted 
by the House is that by his actions he created a moral vacuum in the 
Office of the Presidency and turned that great office away from the 
service of the people toward the service of his own narrow, selfish 
interests. 

CONCLUSION 

As I stated in my opening statement in the Judiciary Committee’s 
debate on the Articles of Impeachment which are now before the 
House, I do not approach the impeachment of Richard M. Nixon 
with a heavy heart. I regard the impeachment of this President, the 
impeachment of any President, as a grave Constitutional responsi- 
bility that cannot be taken lightly. I am saddened by the many 
personal tragedies that are the legacy of Watergate. A number of other- 
wise honorable and decent men let their hunger for power and their 
devotion to a leader overcome their integrity, judgment, and sense 
of responsibility to the law and the national interest. Because of this, 
their careers lie in ruin. Yet at the same time I am heartened, and my 
faith in the Constitution and in our democracy is strengthened by 
the now irrefutable proof that the Constitution is not a dead instru- 
ment, that truly no man is above the law, and that if a President acts 
unlawfully he can be inpeached and sent to the Senate for a trial to 
determine whether he should be removed from office. I am encouraged 
that our Constitution works, for I am especially dependent upon its 


37-777 0 - 74 - 21 



320 


protection. I am encouraged that the American system permits a 
black nightwatchman and the son of an Italian immigrant family 
sitting as a District Court judge, each through applying the law, to 
be the instruments of uncovering the most extensive and highly placed 
corruption in our national history and the bringing to justice of the 
most powerful men in our society. I am encouraged that what the 
Judiciary Committee has done, and what the full House must now do, 
in voting Articles of Impeachment against Richard M. Nixon, will 
begin a process of restoring the faith of the American people in our 
government. 

Charles B. Rangel. 



ADDITIONAL VIEWS OF MS. HOLTZMAN 

In view of President Nixon’s resignation on August 9, 1974, several 
footnotes should be added to the Judiciary Committee report. 

First, Richard Nixon’s resignation was in response to the certainty 
of his impeachment, conviction and removal from office. The evidence 
was overwhelming. 

Second, the Watergate break-in — which precipitated his downfall — 
was not an accident. It was the logical outgrowth of President Nixon’s 
repeated condonation of wiretapping and break-ins for political pur- 
poses. That pattern of lawlessness began only four months after 
President Nixon first took office when he authorized a program of il- 
legal wire-taps and permitted them to be used for political purposes. 
It continued with his adoption of the Huston Plan calling for routine 
use of criminal methods — wire-tapping, break-ins and mail openings — 
for political intelligence gathering. It continued with his creation of 
an extra-legal investigations unit in the White House (the Plumbers) 
whose members engaged in covert political surveillance and an illegal 
break-in, later condoned by Richard Nixon, to obtain political infor- 
mation. 

Given President Nixon’s long-standing approval of unlawful action 
for political purposes in a non -campaign context, his men had every 
reason to believe that when the election campaign began they would 
be allowed, even expected, to resort to illegal methods to obtain polit- 
ical information — and they did. In this sense, at the very least, Presi- 
dent Nixon authorized the Watergate break-in and was responsible 
for it. 

Third, the Watergate break-in was not an isolated abuse of Richard 
Nixon’s re-election campaign; it was but one element in a pervasive 
pattern of immoral, unethical and criminal conduct. Contempt for the 
electoral process spawned Segretti’s activities (libelous campaign 
materials distributed on opponents’ stationery), Sedan Chairs I and 
II (spies in opponents’ campaigns), “black advance” operations (dis- 
ruption of opponents’ campaigns), illegal corporate contributions, and 
offers of ambassadorships and high milk price supports in return for 
political contributions. 

Nor was President Nixon’s abuse of his powers restricted to attacks 
on the Constitutional freedoms of the American citizens and hi 9 po- 
litical opponents. He also systematically arrogated to himself the 
powers of Congress ; he waged a secret war in the neutral country of 
Cambodia; he unlawfully impounded funds appropriated by Con- 
gress; he attempted to dismantle social programs mandated by law. 

The conclusion is inescapable that Richard Nixon engaged person- 
ally in wrongful acts, allowed and encouraged his subordinates to do 
the same, and indeed stretched the Constitution beyond its breaking 
point, because he felt he would not have to answer for his conduct. Con- 
cealment, deception, and cover-up became a way of life in the Oval 
Office. 


( 321 ) 



322 


This impeachment proceeding — in the thoroughness, fairness and 
gravity of its approach, as well as the strength of its findings — stands 
as a warning to all future Presidents that they will be held accountable 
to their oaths of office. Nonetheless, it will be an empty warning un- 
less the American public and the Congress continue to demand from 
their Presidents and other public officials respect for the Constitution, 
acknowledgment of the supremacy of law and commitment to de- 
cency and honesty. 

Elizabeth Holtzman. 



DISSENTING VIEWS OF MS. HOLTZMAN, JOINED BY 
MESSRS. KASTENMEIER, EDWARDS, HUNGATE, 
CONYERS, WALD IE, DRINAN, RANGEL. OWENS AND 
MEZVINSKY 

PROPOSED ARTICLE IV : SECRET BOMBING OF CAMBODIA 

We believe that Richard Nixon committed a high crime and mis- 
demeanor when, as President, he unilaterally ordered the bombing of 
Cambodia and deliberately concealed this bombing from Congress 
and the American public, through a series of false and deceptive 
statements, for more than four years. Proposed Article IV — which 
would impeach Mr. Nixon for these acts — is one of the most serious 
the Committee on the Judiciary considered during the course of its 
inquiry. 

It is difficult to imagine Presidential misconduct more dangerously 
in violation of our constitutional form of government than Mr. Nixon’s 
decision, secretly and unilaterally, to order the use of American mili- 
tary power against another nation, and to deceive and mislead the 
Congress about this action. By depriving Congress of its constitu- 
tional role in the war-making and appropriations processes, the Presi- 
dent denied to the American people the most basic right of self- 
government: the right to participate, through their elected repre- 
sentatives, in the decisions that gravely affect their lives. 

The framers of our Constitution were well aware of the horrors of 
war. They knew it could impoverish a country; they knew the toll 
it could take in death and ruined lives; they knew the destruction it 
could wreak. They were therefore careful to construct checks and 
balances so that a decision to go to war would never be made casually 
or lightly, without a national consensus. As Jefferson put it, to check 
the “dog of war/’ it was necessary to take the war-making power out 
of the hands of a single person, the President, and place it in the 
hands of Congress where a majority vote — arrived at after debate 
and deliberation — would be required. 

The decision to make war has enormous human, economic and ethi- 
cal implications. It is intolerable in a constitutional democracy to per- 
mit that decision to be made in secret by a President and to be hidden 
through deception from the law-making bodies and the public. 

For that reason the Committee should have found that President 
Nixon, in waging a secret war in Cambodia, committed a high crime 
and misdemeanor. 

THE president’s ROLE 

The central facts with regard to Richard Nixon’s role in the con- 
cealment of the bombing of Cambodia are undisputed. 

On March 17, 1969 — less than 2 months after he took office — Presi- 
dent Nixon authorized a series of B-52 bombing strikes in Cambodia. 

( 323 ) 



324 


The bombing began on March 18, and in the succeeding 14 months, 
3,695 B-52 sorties were flown, dropping 105,837 tons of bombs, at a cost 
of more than 150 million dollars. 

President Nixon’s decision to conceal the Cambodia bombing opera- 
tions from the Congress was an integral part of the decision to bomb, 
made at the same time. On several occasions thereafter he ordered the 
highest secrecy for the raids and forbade their disclosure. 

In accordance with President Nixon’s instructions, the top officials in 
his administration, including the Secretaries of Defense and State, two 
Chairmen of the Joint Chiefs of Staff and the Chief of Staff for the 
Air Force, made false and misleading statements to the Congress, 
even though their testimony was usually given under the cloak of top 
secret communications. In order to carry out President Nixon’s direc- 
tions, the Defense Department falsified its own classified records and 
submitted false reports to Congress based on these records. 

President Nixon personally misrepresented to the Congress the facts 
concerning the bombing of Cambodia when, on February 25, 1971, he 
stated in his Foreign Policy Report to Congress : 

In Cambodia we pursued the policy of the previous administration until North 
Vietnamese actions after Prince Sihanouk was deposed made this impossible. 

This policy of deception continued until July 16, 1973, more than 
four years after the bombing began. 1 

When the secret Cambodia bombing was finally exposed, President 
Nixon told the American people, in his August, 1973, press conference, 
that the secrecy had been necessary. He thus ratified and approved the 
policy of concealment and deception, a policy which he had earlier 
ordered. 

PURPORTED JUSTIFICATION FOR SECRECY 

The bombing of Cambodia was initiated only two months after 
Richard Nixon became President in 1969. The concealment of that 
bombing and deception of the Congress continued uninterrupted for 
more than four years — and persisted even after all American troops 
had been withdrawn from Vietnam and our prisoners had been 
returned. 

President Nixon has attempted to justify this deceit on diplomatic 
grounds : that without the secrecy, Prince Sihanouk, the ruler of Cam- 
bodia, would have been compelled to abandon his position of “affirma- 
tive acquiescence” and publicly protest the bombing strikes. No mili- 
tary justification for the secrecy and deception has been asserted. The 
V.C. and North Vietnamese knew they were being bombed. The 
only people who did not know about the bombing operations were 
Members of Congress and the American people. 

Assuming, for the moment, that protecting Prince Sihanouk was a 
legitimate justification for the deception of Congress and the Amer- 
ican people, that justification ceased when Sihanouk was overthrown 
on March 18, 1970. After that date there was no justification for sec- 
recy or deception. Nonetheless, for three years after the fall of 
Sihanouk, Mr. Nixon persistently lied about the bombing. 

i in fact, absent persistent efforts in the Senate to uncover the full truth about Ameri- 
can military activities in Southeast Asia, the facts regarding American bombing operations 
in Cambodia might still be secret. 



325 


Thus, on April 30, 1970 (two months after Sihanouk’s overthrow 
and 13 months after the bombing had commenced), in announcing the 
invasion of Cambodia by American ground troops, President Nixon 
told the following lie to the American public in a televised address: 

American policy . . . has been to scrupulously respect the neutrality of the 
Cambodian people. 

***** * * 

For five years, neither the United States nor South Vietnam has moved against 
these enemy sanctuaries because we did not wish to violate the territory of a 
neutral nation. 

Again, on June 30, 1970, President Nixon repeated the lie : 

For five years, American and allied forces — to preserve the concept of Cam- 
bodian neturality and to confine the conflict in Southeast Asia — refrained from 
moving against those sanctuaries. 

Because Prince Sihanouk was no longer in office at the time of these 
Presidential statements, there was no justification for these or subse- 
quent falsehoods. 

The fact that the deception went on for years after any purported 
justification ceased to exist substantially impeaches what little validity 
that justification may have had for the period prior to March 18, 1970, 
when Sihanouk was still ruler. 2 

In any event, no authority exists for the proposition that the explicit 
provisions of the Constitution regarding the war-making and appro- 
priations powers of Congress may be overridden by a President in the 
interest of protecting a foreign prince. 

ARGUMENTS OFFERED AGAINST THE ARTICLE 

In the course of debate on this Article, many Members of the Judi- 
ciary Committee conceded that President Nixon’s deception was im- 
proper. The majority of those who voted against the Article, however, 
appeared to do so for reasons not directly related to the offense charged. 
Rather, they referred in the debate to assertions that Congress had 
acquiesced in the bombing or would have if it had been disclosed, that 
some Members of Congress had been notified of the secret bombing, 
that former Presidents had acted similarly, and that the recently 
enacted War Powers Resolution somehow alleviated the problem of 
future offenses. Examination of these arguments, however, demon- 
strates that they do not provide a viable defense to impeachment under 
Article IV. 

1. The President’s defenders contended that Congress ratified the 
secret bombing operations in Cambodia through the passage of various 
appropriations measures. 

In fact, there was no ratification of this bombing. Congress passed 
on the Indochina war for the last time on June 29, 1973, when it 
ordered an August 15th cut-off date for all bombing. The secret bomb- 
ing of Cambodia did not become known until July 16th — two weeks 
later. There is no way in which Congress could have ratified actions 
of which it was unaware. 


2 The evidence concerning Sihanouk’s alleged acquiescence in the bombing is inconclu- 
sive at best. 



326 


2. Other Members opposed to Article IV argued that the disclosure 
of the Cambodia bombing operations to selected Members of Congress 
constituted sufficient notification to Congress and satisfied the Consti- 
tutional requirement. 

This position is not supported by the facts or the law. According to 
the Department of Defense, President Nixon, and newspaper reports, 
thirteen Members of Congress were allegedly advised about the secret 
bombing. Of this number, three are deceased, three have denied being 
informed, and only four definitely recall being told. No record has 
been found of these briefings. There is no evidence that any Kepre- 
sentative or Senator was fully informed of the nature, extent and 
purpose of the secret bombing or the reasons for its secrecy. In fact, 
the evidence suggests otherwise. Thus, Senator Stennis, Chairman of 
the Senate Armed Services Committee and the only Member who has 
spoken to the issue, specifically stated that he was given “no indication 
of the massiveness of the bombing.” 

It is significant, too, that whatever procedures for notification were 
used in this case, they were not those established and regularly fol- 
lowed for the handling of the most highly secret matters such as the 
CIA budget and its intelligence activities, nuclear research and new 
weapons development. 3 

In any event, selective notification to persons who supported Presi- 
dent Nixon’s war policy hardly satisfied the Constitutional require- 
ment of Congressional participation in appropriations and war-mak- 
ing. That mandate of the Constitution — to require legislative debate 
and decision on grave matters such as the bombing of a neutral 
country— was frustrated by the concealment of the Cambodia bombing 
from the Congress regardless of the knowledge, or even consent, of a 
few members. 

3. It was also argued that the Cambodia bombing aided President 
Nixon’s efforts to end American, involvement in the Vietnam War, and 
that, therefore, Congress would have approved it. 

We do not question whether the Congress would have approved the 
bombing had it been informed. It might well have done so. On the 
other hand, Congress might have chosen to impose limitations on such 
actions, as it did with regard to American ground operations in Cam- 
bodia, and later, with regard to all other bombing in Cambodia. 

The question is not what Congress would have decided had it not 
been deceived, but whether Mr. Nixon had the right to order that 
deception. He clearly did not. 

4. Another argument advanced on behalf of President Nixon is that 
other Chief Executives, notably President Johnson, deceived the 
American people about the Vietnam War, and, thus, President Nixon 
should not be made to answer for wrongs that others have also com- 
mitted. 

The simple answer to this proposition is that the existence of prior 
misconduct does not justify its continuation or repetition, and that the 

3 Under such procedures, secret matters are treated as “classified line items,” hidden 
in the Federal budget, but accessible to the appropriate committees of Congress. These 
procedures would certainly have been adequate to meet whatever legitimate need for 
secrecy existed. For example, these procedures were used to report secret ground onera- 
tions in Laos, begun under President Johnson, providing full disclosure to all the Members 
of the relevant House and Senate committees. 



327 


imsanetioued wrongdoings of some do not justify the misdeeds of 
others. This Committee has firmly rejected the notion that because 
other Presidents may have abused their powers, the abuses of Presi- 
dent Nixon are acceptable. 

Moreover, the deception in prior administrations was not related 
to the very fact of U.8. involvement, as in the case of Cambodia, but 
to the purposes and motives of the disclosed involvement. When the 
Congress is misled about the purpose of governmental conduct, it can, 
at least, review the facts independently and adopt, or change that con- 
duct. If, however. Congress is unaware of military action, it has no 
way to decide whether that action should be allowed to continue. 

In addition, in this inquiry we are engaged in setting standards of 
conduct for Presidents. We should make it clear that Presidential 
lying and deception, in derogation of the Constitutional powers of 
Congress, are intolerable. James Iredell, one of the first Supreme 
Court Justices, made this point in the course of debate on the impeach- 
ment clause of the Constitution when lie said : 

The President must certainly be punishable for giving false information to 
the Senate. 

5. The final opposing argument advanced in the Committee debate 
was that the War Powers Resolution enacted by Congress in Novem- 
ber, 1973, is a sufficient deterrent against repetition of such activity 
in the future and that, therefore, impeachment of President Nixon 
on this ground was unnecessary. 

This argument is a thin reed. Do its proponents believe, analogously, 
that the fact Congress is considering a bill to increase the penalties 
for obstruction of justice bars impeachment of President Nixon under 
the obstruction count of Article I % 

The War Powers Resolution cannot and does not provide any deter- 
rent to secret decisions by a President to institute war in a neutral 
nation. If a President would violate the clear mandate of the Consti- 
tution, the passage of a mere statute reasserting those Constitutional 
proscriptions can add nothing further in the way of deterrence. 

The sole remedy which Congress can employ to bring a President 
to account for usurpation of the war-making and appropriations 
powers is impeachment. Only the use of that power is an effective 
deterrent ; and, failure to employ it, when necessary, sets a dangerous 
precedent. 

CONCLUSION 

In these proceedings we have sought to return to the fundamental 
limitations on Presidential power contained in the Constitution and 
to reassert the right of the people to self-government through their 
elected representatives Avithin that Constitutional framework. 

The Constitution does not permit the President to nullify the war- 
making and appropriations powers given to the Congress. Secrecy 
and deception which deny to the Congress its lawful role are destruc- 
tive of the basic right of the American people to participate in their 
government’s life- and -death decisions. Adoption of Article IV would 
give notice to all future Presidents that the American people and 
the Congress may not be excluded from those decisions. 

By failing to recommend the impeachment of President Nixon for 



328 


the deception of Congress and the American public as to an issue as 
grave as the systematic bombing of a neutral country, we implicitly 
accept the argument that any ends — even those a President believes 
are legitimate — justify unconstitutional means. We cannot permit a 
President to sidestep constitutional processes simply because he finds 
them cumbersome. 

This Committee has refused to accept that argument elsewhere 
in the course of our inquiry ; we should not do so here. It is inherent 
in any government committed to democracy that the representatives 
of the people must be permitted a voice in the great decisions of state, 
even if a President believes in good faith that the course of the dem- 
ocratic process itself will make it more difficult or even impossible 
to achieve the desired goal. 

Elizabeth Holtzman. 

Bob Kastenmeier. 

Don Edwards. 

William L. Htjnoate. 

John Conyers, Jr. 

Jerome R. Waldie. 

Robert F. Drinan. 

Charles B. Rangel. 

Wayne Owens. 

Edward Mezvinsky, 



ADDITIONAL SEPARATE VIEWS OF MR, HUNGATE 


I have joined in the foregoing dissenting views on proposed Article 
IV because I think they lay down the guidelines to which the Congress 
should adhere, and the statement is generally consonant with my views. 
I do not mean to indicate that President Nixon is the first or only Chief 
Executive to exceed what I consider the appropriate boundaries of 
the war-making powers. Nor would I assert that the Congress has cir- 
cumspectly met its responsibilities and opportunities to checkrein the 
Executive in his use of these powers. 

When the question is directly presented to us, as here, the problem 
as I see it is that if we do not condemn it, we may be seen to have con- 
doned it, and I fear the ultimate consequences of this to the Republic. 

William L. Hitngate. 


( 329 ) 




ADDITIONAL VIEWS OF MR. OWENS 


I concur with the majority views expressed in this Report and sup- 
port the Judiciary Committee’s recommendation to the House of Rep- 
resentatives that it vote to impeach the President and send him to trial 
in the Senate on the basis of the findings reflected in the three Articles 
of Impeachment. 

These Articles of Impeachment are the product of eight months of 
deliberation and intense work by the Committee. During this period of 
time I have studied the evidence before the Committee very carefully. 
I have participated in every single presentation of evidence. I have 
listened to every single witness. 

As a result of this study, 1 have concluded that impeachment of a 
president is a grave act, to be undertaken only in the most extreme of 
circumstances. In my view, impeachable conduct is presidential action 
which seriously violates the trust and responsibilities of that high 
Constitutional office. It need not be conduct prohibited by criminal 
statute, though it must be clearly offensive — that is, known to be wrong 
by the person who commits it at the time it was committed. It could be 
a substantial abuse of power, blatantly unethical conduct, or a flagrant 
violation of Constitutional duties. But it must not be a simple matter 
of disagreement over policies or politics. In the final analysis must 
be a violation of a principle of conduct which members of the House 
determine should be applied to all future presidents and established 
as a Constitutional precedent. 

Each member of Congress must determine for himself whether the 
evidence is sufficient to call the President to account before the United 
States Senate, whose Constitutional role is that of the final judge. I 
believe that we must vote to impeach if we believe the evidence that 
the President committed an impeachable offense is clear and convinc- 
ing and would support conviction of the President during a Senate 
trial. 

Our Committee’s task during these hearings has been made easier 
because we have had the benefit of the views of the President’s attorney 
on the sufficiency and meaning of the evidence, and we have had a par- 
tial presentation of the President’s legal and evidentiary defense both 
by Mr. St. Clair and by the acting minority counsel to the Committee. 
This assistance has been scholarly and helpful. 

However, much of the relevant evidence has been wrongfully and 
unconstitutionally withheld from this Committee by the President, 
preventing it and the House of Representatives from making a judg- 
ment on all of the facts. To a very great extent, the President has 
chosen the evidence which we shall see. We thus can assume for pur- 
poses of this decision, that all of the evidence which is favorable to the 
President is now before us. We can also reasonably infer, as any civil 
court would instruct its jury, that the additional evidence we have 
sought has been denied because it is detrimental to the President’s case. 

( 331 ) 



332 


On the basis of all the evidence, I am persuaded that the President 
has knowingly engaged in conduct which constitutes impeachable of- 
fenses under the requirements of the Constitution, and that he should 
now be called to account before the United States Senate. 

I support each of the three Articles of Impeachment as agreed upon 
by the House Judiciary Committee. 

ARTICLE i: THE WATERGATE COVER-UP 

I find the evidence convincing that the President knowingly and 
willfully directed and participated in a cover-up of the Watergate 
break-in. There is clear proof that the President made false statements 
to investigators; withheld evidence from the authorities; counseled 
witnesses to make false statements; interfered with the investigations 
of the FBI, the Justice Department, and the Special Prosecutor; ap- 
proved the payment of money and attempted to offer clemency and 
other favorable treatment to buy the silence or procure false testimony 
of witnesses ; tried to misuse the CIA to aid the cover-up ; disseminated 
secret Grand Jury testimony to suspects; and made false statements to 
the Nation. I have listened to the tape recordings of the President’s 
own words as he discussed the cover-up, and in particular, I have lis- 
tened repeatedly to the tape of the morning of March 21, 1973. I do not 
find any ambiguity in the President’s decision to allow payment of 
hush money to Howard Hunt. 

ARTICLE II : ABUSE OF POWER 

The evidence in this area demonstrates that the President repeatedly 
abused the powers of his office, violated the Constitutional rights of 
citizens, misused government agencies, and broke his oath of office. He 
tried to use the Internal Revenue Service as a tool of partisan, political 
intimidation and punishment ; he directed unlawful and illegitimate 
wiretapping and other secret surveillance to gather political intelli- 
gence, unrelated to any national security or law enforcement purposes ; 
and he created the Plumbers Unit which engaged in covert, unlawful 
activities. 


ARTICLE III*. REFUSAL TO OBEY LAWFUL SUBPOENAS 

The President’s refusal to respond to our Committee’s legal sub- 
poenas constitutes, in itself, an obstruction of the impeachment process 
which, in my view, is an extremely grave Constitutional offense. The 
Committee subpoenaed only carefully justified and relevant evidence 
relating to serious charges of impeachable conduct for which there 
already existed substantial evidence. By so acting, the Committee 
accepted a conservative reading of its subpoena powers, which I think 
go far beyond those which we have tried to assert. The Committee has 
been forced to compile its case from bits and pieces of evidence ex- 
tracted from other investigations and from tape recordings furnished 
by the District Court. The President’s refusal to comply with House 
subpoenas would make a nullity of the impeachment power if the 
House were not to judge this offense impeachable. 



333 


The Committee rejected two additional Articles of Impeachment, the 
first of which I supported. 

ARTICLE IV : THE CAMBODIAN WAR 

The Constitution grants Congress the sole power to declare war. 
Congress must know from the Commander in Chief what actions the 
armed forces of our nation are taking, so that Congress can act, if it so 
chooses, to exercise this power. In spite of this clear constitutional 
duty given to Congress, the President directed that false reports be 
submitted to Congress over four years of bombing of Cambodia, while 
the Administration publicly and in reports to Congress, claimed it 
was not engaged in hostilities with that country. The purpose of this 
secrecy could only have been to hide the Cambodian bombing from 
the Congress and the American people, since our adversaries knew 
about it. I believe that such conscious misleading of Congress in order 
to prevent us from exercising our Constitutional responsibilities is an 
impeachable offense, which Congress must enforce if it is to regain 
its proper Constitutional role. 

I fully realize that this matter involves the expansion of a war begun 
by Democratic Presidents, and at times one of those Presidents, 
Lyndon B. Johnson himself misled the Congress and the public about 
the course of that war. But past transgressions of this gravity, even 
if accepted or ratified by a Congress victimized by deceit, do not make 
a later repetition Constitutionally acceptable. 

I believe the Committee should have supported this article of 
impeachment, in addition to the three voted by the Committee, to set 
a precedent for the future. In this time of growing nuclear capability 
around the world, Congress must make clear to future presidents that 
which we have tried to set forward this Congress with passage over 
the President’s veto of the War Powers Act: No more wars of any 
nature must be started without the consent of the people’s elected 
representatives, exactly as set forth in the Constitution. 

ARTICLE VI THE PRESIDENT’S TAXES 

The evidence before the Congress demonstrates that the President 
engaged in unethical, shabby, and disgraceful conduct by grossly 
underpaying his income taxes while in office. There is, however, no 
clear and convincing evidence available to the Committee to show the 
two elements necessary to make this offense impeachable. 

To become an impeachable offense here, in my opinion, there must 
be clear proof of fraud by the President himself, coupled with clear 
indications that he used the power of his presidential office to avoid 
being audited by the IKS. 

This test is not met iby evidence available to us. Although I do not 
find that they rise to the level of impeachability, I do join other 
Americans in condemning these unconscionable acts which indicate 
serious violations of Richard Nixon's obligation as a taxpayer. 

But there are other remedies for these abuses. Prosecution by the 
IRS for civil or criminal fraud are still available, even if President 
Nixon were allowed to serve out his full term. The unique power of 



334 


impeachment is not needed here. The people of the United States have 
other remedies. The other impeachable offenses voted by the Com- 
mittee have only one method of correction— the ultimate weapon of 
impeachment — which should be used only when it is the sole adequate 
response. 


The report of this historic impeachment proceeding would not 
be complete without a record of how each member voted on the five 
proposed Articles of Impeachment. Because regular House procedures 
do not provide that such votes should be printed in the body of the 
report, I am here submitting that material to be printed as a part 
of my additional views. 



335 


COMMITTEE ON THE JUDICIARY . 

HOUSIC Or BCPfTrSENTATlVdS 
93D CONGRESS 


ROLL CALL 

No. DATE Juiy..2Z*„19ZA... 


H s. ... 



Article I 

£ 

COMMITTEE 

kj*% 

N.y, 

Pretenl 

Aj« 

N»y» 


MR donoHTTE 

X 





— 

MR BROOKS 

X 





MR KASTENATETER 

X 





MR. EDWARDS 

X 





— 

MR. HUNGATE 

X 





MR OONVERS 

X 





MR ETT/RERO 

X 





MR. WALDIE 

X 





MR. FLOWERS 

X 





— 

MR MANN 

X 





MR. SARBANES 

X 





— 

MR SEIBERLING 

X 





MR. DANIELSON 

X 





MR. DRINAN 

X 





MR. RANGEL 

X 





MS JORDAN 

X 





MR THORNTON 

X 





MS. HOT.TZMAN 

X 





ATR OWENS 

X 





MR ME7VTNSTCY 

X 











— 

MR HTTTOHTNSON 


X 




MR. McOLORY 


X 




— 

MR. SMITH - 


X 




MR SANDMAN 


X 




— 

MR R ATT .SR A OK 

X 





ATR WTOOTNS 


X 




ATR DENNTR 


X 




MR. FISH 

X 





MR. MAYNE 


X 




MR. HOGAN .... . 

X 





ATR RTTTT.RR 

X 





MR. COHEN 

X 





MR. LOTT 

~ 

X 




MR. FROEIILICII 






ATR ATOORTTEAD 


X 




MR. AT ARAZTTT 


X 




AIR. Tv ATT A 


X 










— 

MR. RODINO, Chairman 

J£_- 





Totai . 

1 1 1 



37-777 0 - 74 - 22 



336 


COMMITTEE ON THE JUDICIARY 

Mount: or tmrr.rr.rti r/rfvjm 
‘J3D co no w*r,:-. 


ROLL CALL 


July 29, 1974 









337 


COMMITTEE ON THE JUDICIARY 
houht: or ttcrnr.zr.tt rATivn 

93D CONCHK7; 


ROLL CALL 

No. DATE . Ju]X 30 a .J.?.?A 

H. S 



Article III 

1 

COMMITTEE 

Ajes 

N»y« 

Pre*ent 

Aje* 

Nij« 

■ 

MR DONOHUE 

X 





MR. BROOKS 

X 





MR. KASTENMEIER 

x 





MR. EDWARDS 

X 





— 

MR. HUNGATE 

X 





MR. CONYERS . 

X 





MR. EILBERG 

X 





MR. WALDIE . 

X 





— 

MR. FLOWERS . 


X 




MR. MANN 


X 

. 



MR. SARBANES 

X 





MR. SEIBERLING 

X 





MR D ANTE!, SON 

X 





MR. DRTNAN 

X 





MR. RANGET. 

X 





MS. JORDAN 

X 





MR. THORNTON 

_JL. 





ATS HOLTZ AT AN 

X 





ATR OWENS 

X 





ATR ME7VTNSHY 

X 











— 

MR. HUTCHINSON . . 


X 




MR. McCLORY 

X 


... ... __ .1 



MR. SMITH 


X 




MR. SANDMAN . 


X 

. 



ATR. R ATT .SHACK 


X 




MR. WIGGINS _.. . _ 


X 




ATR. DENNIS 


X 




ATR. FISH 


X 




AIR. MAYNE. _ 


X 



— 

MR. HOGAN. .... _ 

X 




MR. BUTLER 


X 




MR. COHEN 


X 




MR. LOTT.. ... .... ..... 


X 




MR. FROEIILICH 


X 




MR. MOORHEAD 


X 




AIR. MARAZITI 


X 




MR. LATTA 


X 



) 

1 






! 

— 1 

AIR. RODINO, Chairman 

X 




I 

f 

Total. . 






1 



338 


COMMITTEE ON THE JUDICIARY 
housi: or nrrnr.'zrti rATwr.'j 
<J3D CONCHI-r/; 


ROLL CALL 

date 

H S. 


Article IV 


1 

COMMITTEE 

Aye, | Nay. 

F ,e»enl 

Aye. 

N»y. 


MR. DONOHUE 


X 





MR. BROOKS 

X 





— 

MR. KASTENMEIER ... 

X 





MR EDWARDS 

X 





MR. HUNGATE 

X 





MR. CONYERS 

X 





MR. FTT/RERO 


X 




MR. WALDIE 

X 





MR FLOWERS 


X 




MR. MANN. 


X 




MR. SARRANES 


X 




MR SETRERLTNO 


X 




MR. DANIELSON 


X 




MR DRTNAN 

X 





MR. RANGEL 

X 





MS JORDAN 

X 





MR. THORNTON ... . 


X 




MS. HOLTZMAN 

X 





MR OWENS 

X 





MR ME7.VTNSTCV 

X 











— 

MR. HTTTCHTNRON 


X 




MR. Mr. (TORY . .... ... 


X 




MR. SMITH 


,x__ 




MR. SANDMAN. . .. 


X 




MR RA1T.SRACK 


X 




MR WIGGINS 


X 




MR DENNIS 


X 




MR. FISH . . .. 


X 




MR. MAYNE ...... . ... . . 


X 




“1 

MR. HOGAN 


V 




MR. BUTLER 


X 




MR. COHEN...... 


X 




MR. LOTT. 


X 




MR. FROEHLICH 


X 




MR. MOORHEAD.... 


X j 





MR. MARAZITI 


x ! 




— 

MR. LATTA 


X 










Li 

MR. RODINO, Chairman 

Total 


X 




i i 









339 


COMMITTEE ON THE JUDICIARY 

HOU5C OF REPRCSENTATIVCS 
93D CONGRESS 


No. 


ROLL CALL 


DATE 


July 3D, 1574 


H S. 



Article V 

£ 

committee 

Aye* 

Nays j Pre*enl 

t 

Aye, 

N'»y* 



MR. DONOHUE . 


I 

X i 



MR. RROORR 

X 





MR. KASTENMEIER 

X 





MR. EDWARDS 

X 





— 

MR. HUNGATE 


X 




MR. CONYERS 

X 





MR. ETT/RF.R. G 

X 





MR. WALDTE 


X 




MR. FLOWERS 


X 




MR. MANN 


| X 




MR. SARBANES 


X 




MR. SETRERTJNG 

X 





MR. DANIELSON 

X 





MR. DRTNAN 


X 




MR. RANGET, 

X 





MS. JORDAN 

X 





MR. THORNTON 


X 



L 

MS. HOLTZMAN . 

X 





MR. OWENS 


X 




MR. MEZVINSKY . 

X 











— 

MR. HUTCHINSON.. . .... 


X 




MR. McCLORY 


JL- 




MR. SMITH 


.A 




MR. SANDMAN 


X 




MR. RAILSBACK . 


X 




MR. WIGGINS 


X 




MR. DENNIS 


X 




— 

MR. FISH _ 


X 




MR. MAYNE 


X 




MR. HOGAN 


X 




MR. BUTLER 


X 




MR. COHEN 


X 




MR. LOTT 


X 




MR. FROEIILICII 


x : 




MR. MOORHEAD 


X 




MR. MARAZITI 


x ; 




SIR. LATTA.... 


X 










— 

MR. RODINO, Chairman 

Totai 

X 





1 1 

1 ! 1 



340 


CONCLUSION 

The Committee’s responsibility was perhaps more sobering and 
awesome than that faced by any Committee of Congress in the past 
century. I believe that the Committee fulfilled its responsibilities in 
a way that brought credit to the Congress and to our nation. The 
durability of our institutions of government has proven adequate to 
these difficult times. The Committee has moved to reinstate the rule 
of law 'as supreme, even in the Oval Office. Our democracy and our 
constitution have not only survived; they have been strengthened by 
this ordeal. 

Millions of Americans were able to see the Committee during the 
final week of its deliberations. I had the honor of authoring the House 
Resolution which made this public participation possible. In an his- 
torical innovation, America saw, through television, a panel of serious, 
responsible, and non-partisan Members of Congress wrestle with grave 
matters of evidence and reach sober judgments. 

In the end, the Committee supported three Articles of Impeachment 
because of overwhelming, undeniable evidence of grave Presidential 
misfeasance adjusted to be impeachable in nature and gravity. For 
months prior to our televised proceedings, the Committee painstak- 
ingly examined the mass of evidence which was before it. This evidence 
was applied carefully and selectively, and there was great debate over 
what acts, if proven, were serious enough to warrant impeachment. 
The Committee acted with restraint, ultimately rejecting two Articles 
of Impeachment. 

It was the- overwhelming cumulative effect of the evidence, viewed 
in its entirely, which persuaded so many members of the Committee — 
both liberal and conservative. Republican and Democratic — that Ar- 
ticles of Impeachment were required. Any member of Congress, or 
any citizen who carefully examines this evidence would, I believe, 
support the Committee’s actions. 

I feel it incumbent to express my reservations concerning the deci- 
sion to cite as supporting evidence in this report, transcripts of 
Presidential conversations which were released by President Nixon 
f ollowing completion of the Committee’s deliberations. The Committee 
carefully reviewed a massive amount of materials for an intensive 
twelve-week period, and a large majority of the Committee found the 
evidence in support of three Articles of Impeachment to 'be clear and 
convincing. The members made their decisions based solely on this 
evidence, which was, in my view, overwhelming and conclusive. The 
Committee report should reflect these salient facts upon which the 
members based their judgment, and should not, in my opinion, show 
supporting evidence which the Committee did not have available at 
the time of decision. 

The edited transcripts submitted by Mr. Nixon on August 5, 1974 
had been subpoenaed by the Committee, and refused to us by him. They 
were highly incriminating and reinforced the Committee’s decision 
and, in fact, were the catalyst for subsequent expressed support of 
Article I by the ten Committee members who had earlier voted against 
reporting that Article. But this new information should be segregated 
and appear as an addendum to the body of the report, not intermixed 



341 


with the evidence which led to the Committee’s action detailed in this 
report. 

By acting so responsible and by submerging their political al- 
legiances and fortunes for this difficult process, the members of the 
Committee have strengthened the Congress. By voting to impeach the 
President for conduct which violated our guarantees of liberty, the 
Committee has strengthened the Constitution and the Bill of Bights. 
And by creating clear precedents for future Presidential conduct, it 
will strengthen the Presidency. 

Awesome as the impeachment and removal of a President can be, 
the framers of our Constitution provided for this power, expecting it 
to be used rarely, but to be used, nevertheless, when necessary to 
maintain the rule of law. There should bo no fear, if Congress finds 
the evidence sufficiently strong, that impeachment and conviction will 
damage the presidency. The framers created a government of laws, 
not a government of men. And impeachment is the only tool the Con- 
stitution provides to control a President who has refused to obey the 
laws or his Constitutional obligations. 

I believe the significance of what this Committee has done will 
endure for many years to come. If our standards of impeachment had 
been too low or insubstantial, we would have seriously weakened the 
presidency and created a precedent for future use of the impeachment 
power when charges may be trivial or partisan. We have avoided this 
mistake. On the other hand, if we had rejected these Articles of Im- 
peachment with this clear and convincing evidence of serious wrong- 
doing before us, no president would ever have been impeached, and the 
impeachment power, which the Constitution vested in Congress as 
the last resort to prevent serious abuses of power by a president, would 
be rendered impotent. 

Wayne Owens. 




ADDITIONAL VIEWS OF MR. MEZVINSKY, JOINED 
BY MESSRS. BROOKS, KASTENMEIER, EDWARDS, 
CONYERS, EILBERG, DANIELSON, RANGEL, AND MS. 
HOLTZMAN CONCERNING INCOME TAN EVASION BY 
THE PRESIDENT 

We support the three Articles of Impeachment approved by the 
Committee for reporting to the House. 

The Committee had before it clear and convincing proof that Presi- 
dent Nixon committed the offenses described in those Articles. We 
believe that the Committee also was presented with clear and convinc- 
ing proof that the President willfully evaded the payment of his 
federal income taxes. In fact, the proof was such that the Committee 
was told by a criminal tax fraud expert that on the evidence presented 
to the Committee, if the President were an ordinary taxpayer, the 
government would seek to send him to jail. 

The President, however, is not an ordinary taxpayer; his willful tax 
evasion affects the very integrity of our government. Such conduct 
calls for the constitutional remedy of impeachment. 

The facts lead to no other conclusion. 

The Internal Revenue Service ruled on April 2, 1974 that Mr. Nixon 
had underpaid his federal income taxes by nearly $420,000 during his 
first term in office. (Book X, 410-11) The IRS found that, on his tax 
returns for 1969 through 1972, the President had claimed over $565,000 
in improper deductions and had failed to report more than $230,000 in 
taxable income, a total error in excess of $795,000 for those years. 

The key to the gross underpayment of taxes was his unlawful claim 
of a charitable deduction for an alleged gift of his personal papers 
(stated to be worth $576,000) 1 to the National Archives in 1969. The 
IRS and the Joint Committee on Internal Revenue Taxation, which, 
at the President’s request, also reviewed his taxes, found that deduc- 
tion to be improper because : 

(a) the gift was not made on or be foie July 25, 1969, the last 
date on which such gifts could be made to qualify for a tax deduc- 
tion; and 

(b) restrictions placed on the gift by President Nixon made 
the papers a gift of a “future interest” and therefore ineligible for 
tax benefits, even if the gift had been made prior to the change 
in the tax law\ 

On his tax return for 1969, the President stated that the gift was 
made “free and clear with no rights remaining in the taxpayer.” (Book 
X, 348) In fact, the deed of gift retained for Mr. Nixon substantial 
rights in the papers. 


1 Durinp the audit of the President’s returns, for the years 1000 through 1072, the IRS 
had a private independent appraiser value the papers claimed by the President on his 
returns to be worth $570,000. The conclusion of the independent appraiser >vas that the 
papers were worth $270,000. 


( 343 ) 



344 


On his tax return, the President also claimed that the gift was made 
before the July 25, 1969 cut-off date. (Book X, 348.) The deed of gift 
transferring those papers stated on its face that it was executed on 
April 21, 1969. In fact, that deed was executed on April 10, 1970 and 
backdated to make it appear that it was signed a year earlier. (Book 
X, 14-15) The National Archives, the recipient of this alleged half- 
million dollar gift, did not know until April 1970 that the President’s 
“1969” gift had been made. (Book X, 297) 

Considering the solid documentary evidence of the illegality of 
the gift of papers deduction, which was the key element of the Presi- 
dent’s gross underpayment of his lawful taxes, the responsibility of 
the Committee was to determine whether the President was aware 
of — and either acquiesced or actively participated in — this attempt 
to defraud the government. 

While the IRS assessed only a negligence penalty against the Presi- 
dent, and not a fraud penalty, IRS Commissioner Donald Alexander 
recommended to the Special Prosecutor that he conduct a grand jury 
investigation into the matter of the President's 1969 tax return. Alex- 
ander noted that the lack of cooperation of some witnesses and incon- 
sistencies in testimony prevented the IRS from completing its process- 
ing of the case. ( Book X, 404) 

When the Joint Committee staff issued its report on the President's 
taxes, it specifically noted that it had not attempted to determine 
the President's culpability for the irregularities on his tax returns. 
Instead, that question was referred to this Committee for resolution 
through the impeachment process. 

The Joint Committee staff did formulate and send to President 
Nixon a series of questions concerning the President's knowledge and 
participation in the preparation of his tax returns. (Book X, 416- 
22) The President failed to respond to those questions during the 
Joint Committee investigation, and later ignored a request that he 
respond to the inquiries for the benefit of this Committee. 

An analysis of the undisputed facts and circumstances makes it 
abundantly clear that the President knew that the gift of papers 
was not made on or before July 25, 1969 and did not legally qualify 
for the tax deductions he claimed on his tax returns. 

Mr. Nixon is a lawyer who has prided himself on his knowledge 
of tax law. The $576,000 gift was by far the largest gift ever made 
by ill*. Nixon in his lifetime. Tt was more than twice his statutory an- 
nual income as President. 

He was personally familiar with the procedures which had to be 
followed in order to make a valid gift of his papers so as to be 
entitled to the tax deduction. A much smaller gift of papers — amount- 
ing to approximately $80,000 — was made by the President in December 
1968. He was an active and interested participant at that time. He 
discussed the gift and its tax benefits with his attorneys, chose between 
alternate deeds of gift, and personally executed a deed which was 
co-signed by a representative of the GSA accepting the gift for the 
United States. The President also knew that the papers constituting 
the 1968 gift were selected prior to the end of 1968. (Book X, 41-61) 
Although the President claimed that less than 3 months later he made 



345 


a gift six times as large, the record shows that none of these procedures 
was observed. 

No contemporary written evidence has been produced to support 
the claim that the President intended on or before July 25, 1969 that 
a large gift be made or that he authorized anyone to sign a deed of 
gift on his behalf. Rather, the Committee was shown a February 1969 
memorandum — which the President received and endorsed — contem- 
plating not a large gift of papers which would use up all the Presi- 
dent’s charitable deductions for 1969 and the five succeeding years, 
but, instead, small periodic gifts of papers plus other charitable con- 
tributions. (Book X, 64—65) 

Two June 1969 memoranda show that the President was an indi- 
vidual interested in the minute details of his tax deductions. Neither 
these memoranda nor any other writings in 1969 refer to a gift of 
papers so large as to eliminate all other charitable deductions for six 
years. (Book X, 177-79) 

While the President’s papers were delivered to the Archives on 
March 27, 1969, they were paid of and intermingled with a much larger 
group of papers. The documentary evidence is overwhelming that the 
Archives did not consider that any of these papers had been given to 
the United States, but that it was routinely holding all of them in 
storage. The papers that ultimately were stated to constitute the “1969” 
gift were not finally selected until late March 1970. They were not 
even preliminarily valued until early November 1969, and then only 
as part of the larger group of papers delivered for storage on March 
27. The preliminary appraisal was promptly sent, to the President on 
November 7, 1969 who acknowledged to the appraiser, Ralph New- 
man, on November 16 that he knew of the appraisal. (Book X, 190-98) 

The backdated deed was executed on April 10, 1970, in the Execu- 
tive Office Building bv White House attorney Edward Morgan in 
the presence of Frank DeMarco, the President’s tax attorney. (Book 
X, 319-27) A few hours later, DeMarco met with the President for 
the execution of the President’s tax return. The Committee has heard 
testimony that the President went over his tax return with his 
attorneys page by page, and discussed the tax consequences of the gift 
of papers deduction. (Kalmbach testimony, 3 HJC 670-71) 

Finally, logic compels the conclusion that the President knew he 
made no gift of papers in March 1969. This is true because unless one 
could know in March 1969 that there would be a July 25, 1969 cut- 
off date, it would be contrary to rational tax planning for the Presi- 
dent: (a) to make a gift of papers in March 1969, which wrnuld elim- 
inate the opportunity to take other charitable deductions for six years 
(especially when he appeared to approve a contrary plan a month 
before) ; and (b) to make a gift that early in the year, when many of 
his financial matters were unsettled, instead of waiting until the end 
of the year when his income and deductions could be accurately 
estimated. 

The. fact is that neither President Nixon nor anyone else could know 
in March 1969 of a July 25, 1969 cut-off date. Not until May 27, 1969 
was there any indication that Congress might consider passing legis- 
lation eliminating the gift of papers deduction. And it was not until 
November 21, 1969 (when the Senate Finance Committee reported its 



346 


bill to the Senate with a December 31, 1968 cut-off date) that it became 
a serious possibility that individuals might not have until the end of 
1969 to make a gift of papers and take the deduction. On December 22, 
1969, Congress finally fixed July 25, 1969 as the cut-off date for the gift 
of papers deduction. ( Book X, 149-51 ) 

It is noteworthy that once officials outside of the White House began 
investigating the gift of papers deduction, the President’s attorneys, 
DeMarco and Morgan, and his appraiser, Newman, began to tell con- 
flicting versions of events which they had previously agreed upon. 
Also, documents central to the President’s deduction (including a deed 
allegedly executed in 1969) were found to be missing, and others (such 
as the affidavit of appraisal which was part of the President’s return) 
proved to be erroneous. 

The President’s failure to respond to the questions submitted to him 
by the Joint Committee staff adds an additional inculpatory circum- 
stance to a record which points to intentional wrongdoing in connec- 
tion with the gift of papers deduction. 

The facts and circumstances noted above demonstrate that when 
President Nixon signed his tax return on April 10, 1970 he knew that 
he did not make a gift of papers on or before July 25, 1969 valued at 
$576,000. With respect to how any other taxpayer would be treated 
under these facts and circumstances, this Committee has heard the 
expert opinion of Fred Folsom, an attorney who spent 24 years in, 
and who for 12 years was Chief of, the Justice Department's criminal 
tax section. Mr. Folsom stated that “in the case of an ordinary tax- 
payer, on the facts as we know them in this; instance, the case would 
be referred out for presentation to a Grand Jury for prosecution.” 
(Folsom testimony, HJC 6/21/74, TR. 1976) To state it more bluntly, 
under these facts and circumstances, the government would seek to 
send any other taxpayer to jail. 

The facts set forth above show that the Committee had before it 
evidence of tax evasion by the President which met the most stringent 
standards of proof. The use of tape recordings and similar documen- 
tary evidence to prove the charges set forth in the Articles recom- 
mended by the Committee perhaps led some to expect that type of evi- 
dence for all of the Articles. Most cases, however, whether criminal or 
civil, do not turn on the availability of tape recordings. They are de- 
cided on an evaluation of all the proven facts and circumstances and 
the logical inferences to be drawn from those facts and circumstances. 
Whatever the applicable standard of proof, the evidence presented to 
the Committee demonstrated that the President of the United States 
was guilty of willful income tax evasion for the years 1969 through 
1972. He should have been impeached for such conduct. 

TAX EVASION AS AN IMPEACHABLE OFFENSE 

Some question whether willful tax evasion by a President should 
be considered an impeachable offense. The President, who is obligated 
by the Constitution to faithfully execute the laws, is perforce con- 
strained to live within the statutes and regulations which govern all 
citizens. As with any other citizen, the President's evasion of taxes 
constituted a serious felony — which, even under the “criminality” 



347 


standards urged on the Committee by the President, constitutes an 
impeachable offense. But because of his position, the President’s acts 
went beyond criminal Avrongdoing; they necessarily involved taking 
advantage of the power and prestige of the Presidency. 

As Chief Executive, President Nixon could expect that his tax 
returns would not be subject to the same scrutiny as those of other 
taxpayers. The superficial examination of his 1971 and 1972 returns 
conducted in May, 1973, which caused the IRS to write the President 
commending him (instead of sending him a bill for the more than 
$180,000 by which he had underpaid his taxes for those two years) 
bears out this expectation of favoritism. 

The President had a special obligation to scrutinize his own re- 
turns— especially when those returns showed that he was paying only 
a nominal amount of tax on a very high income. Rather than so doing, 
he took advantage of his office to avoid paying his proper taxes. Had 
his entire Presidency not been subjected to public scrutiny— for the 
reasons contained in Articles I and II — Mr. Nixon’s tax evasion would 
have succeeded. 

A President’s noncompliance with the revenue laws does not merely 
deprive the Treasury of funds from one taxpayer ; it affects the very 
foundation of our voluntary system of tax collection. Allowing such 
conduct to go unchecked threatens to damage seriously the ability of 
the government to efficiently raise from all the citizens of the Nation 
the funds necessary to govern our society. If a President commits 
willful tax evasion and is not brought to account by the Congress, then 
not only the tax system, but our entire structure of government risks 
corrosion. I or this most fundamental reason we believe that the willful 
tax evasion by President Nixon should have been considered an im- 
peachable offense by the Committee, and that the Article charging 
this offense should have been reported to the House. 

Edward Mezvixsky. 

Jack Brooks. 

Bob Kastex meier. 

Don Edwards. 

John Conyers, Jr. 

Joshua Eilberg. 

George E. Daxielsox. 

C. B. Rangel. 

Elizabeth Holtzman. 




ADDITIONAL VIEWS OF MR. McCLORY ON ARTICLE III 
CONCURRED IN BY MR. DANIELSON AND MR. FISH 


The power of impeachment is the Constitution’s paramount power 
of self-preservation. This power is textually committed by the Consti- 
tution solely to the House of Representatives. The power to impeach 
includes within it the power to inquire. Without the corollary power 
to inquire, the power to impeach would be meaningless — and 
dangerous. 

The power of impeachment is made necessary by the allocation of 
jurisdiction among three separate branches. The Articles of Con- 
federation which reposed all powers in Congress found no need of an 
impeachment process. For there was no “other” branch whose excesses 
had to be checked by Congress. But the Constitution dispersed the 
powers among three separate branches to protect the liberties of the 
people and hold distant the spectre of tyranny. However, this protec- 
tion against tyranny raised the question of how Congress could make 
the executive — who under the Constitution would have the greatest 
potential for tyranny — answer for wrongs committed against the 
people. 

It was that question that led the framers to adapt the impeachment 
process to their new government. In addressing the question of possible 
Presidential misconduct at the Constitutional Convention, George 
Mason said : “No point is of more importance than that the right of 
impeachment should be continued.” And in The Federalist No. 66, 
Alexander Hamilton made clear that the purpose of the impeachment 
process was to serve as “an essential check in the hands of [the legisla- 
ture] upon the encroachments of the executive.” 

In the same passage and in others in The Federalist , it is explained 
that the doctrine of separation of powers is modified by the system 
of checks and balances. In explaining the “true meaning” of the doc- 
trine of separation of powers, Madison states that “it is not possible 
to give each department an equal power of self defense. In republican 
government, the legislative authority necessarily predominates. The 
remedy for this inconveniency is to divide the legislature into different 
branches. . . .” The Federalist , No! 51. 

Moreover, the doctrine of separation of powers does not mean that in 
a given instance no branch may have “control” over the acts of an- 
other; rather, all that is meant by the doctrine is that at no time may 
the whole power of one branch be exercised by another entity that 
possesses the whole power of a second branch. The Federalist , No. 47, 
(Madison). 

Hamilton refers to Madison’s explanation of the doctrine with 
approval and adds that in the context of the impeachment process the 
check on the arbitrary action of the House is the requirement of “con- 
currence of two-thirds of the Senate.” The Federalist , No. 66. Thus, 

( 349 ) 



350 


it is the Senate — not the President — that is the check on the House’s 
power to impeach and its corollary power to inquire. 

The doctrine of separation of powers does not mean that no branch 
can tell another branch what to do. Separation of powers is not the 
creation of three sovereign governments, but one government of three 
branches, each with an assigned role. Each branch within its assigned 
role may" “control” auother. Thus, for example, a President may “con- 
trol” a judicial decision by granting a pardon, or lie may “control” a 
legislative act by vetoing it* 

The framers not only foresaw hut intended that there exist a tension 
between branches. But the question in each case must be which branch 
has been, under the Constitution* assigned the role of checking and 
which branch has been deprived of its “self defense.” 

If the power of impeachment is assigned solely to the House and 
if its fundamental purpose is to check encroachments by the executive, 
it is clear that the separation of powers doctrine does not grant to the 
executive an institutional privilege which he may assert against either 
the power to impeach or the corollary power to inquire. For the 
framers to have granted such a defense to a President would have been 
a contradictory, irrational act. 

The power of impeachment, as stated above, is the Constitution’s 
paramount power of self-preservation. Tims, it has been recognized 
through our history by every President, every legislator, and every 
judge that has ever spoken on the question that the impeachment 
power was sufficient to require of everyone, including the President, all 
necessary evidence — recognized, that is. until the exigencies of the pres- 
ent inquiry have forced the incumbent President and his defenders to 
assert an institutional privilege against the House’s power to inquire. 
This assertion is not only legally mistaken but, upon analysis, frivolous. 
Whatever success such an assertion may have appears attributable to 
the fact that it plays to commonly mistaken notions that no branch can 
tell another branch what to do — a notion which in the everyday work- 
ings of our government is regularly disproved. 

The principle that is the subject of this discussion is clear and simple : 
the Constitution does not give to the House of Representatives, ex- 
ercising its power to impeach, a power to ask while giving to the 
President — as President — an equal power to refuse. It is respectfully 
submitted that our Constitution makes more sense than that. The Con- 
stitution does not give to the President a privilege to refuse by virtue 
of his office when his use or abuse of that office is at issue. 

When the trustee of the highest office in the land is called upon by 
the representatives of the people to make, an accounting of his per- 
formance, his assertion that Presidents need not answer is contemptu- 
ous of his trust and of the people who have placed their trust in him. 

In talking to my colleagues I am greatly disturbed that the issue in 
Article III is so misunderstood. All that Article III says is that 
Richard M. Nixon did not present a “lawful cause or excuse” for fail- 
ing to comply with subpoenas for evidence critically necessary to an 
impeachment inquiry. The President’s basic answer to the subpoenas 
was that Presidents do not have to comply with such subpoenas by 
virtue of the office and that if the power to impeach included within 
it the power to inquire, then no President ever again would be. safe. 



351 


All that I ask of my colleagues is to think through the ramifications 
of the President’s position. For me, I do not wish to have a Presidency 
that is safe from the power of the people’s representatives to demand 
an accounting. And that is precisely what is at stake in Article III. 

In discussions with my colleagues I am frequently beset with many 
hypothetical questions — questions that have not occurred. I am asked 
whether the President could assert “national security” or “diplomatic 
secrecy” or some such excuse against impeachment inquiry subpoenas. 

The only answer is that Article III does not treat those questions 
because the President offered no such excuses. We need not decide 
those questions at this time. Those special circumstances differ substan- 
tially from the excuse offered by this President that Presidents as such 
need not comply. And it is that excuse which Article III holds invalid. 

To be complete, I must also note that other excuses were offered by 
the President, but they appear secondary to his basic assertion. In his 
letter of June 9, 1974, to Chairman Rodino, the President complained 
that our requests were “unlimited” and suggested that each branch 
must be immune from unlimited searches by other branches. That 
excuse is factually without foundation. The facts set forth in this 
Report make clear that our subpoenas were modest in scope and 
thoroughly justified. 

Additionally, the President said in that letter that the Committee 
had “the full story of Watergate.” That answer had two defects: first, 
it was not true ; second, even if true, it was no answer to outstanding 
Committee requests for materials in other areas under investigation, 
such as ITT, the dairy contributions, and misuse of the Internal Reve- 
nue Service. When such materials were later subpoenaed, the Presi- 
dent offered no excuse for his failure to comply. Presumably, we were 
to try to fashion one for him. 

Finally, the President said that “the Executive must remain the 
final arbiter of demands on its confidentiality.” However, it should 
be noted that no special circumstances were offered as an excuse. 
Rather, the President was asserting a flat privilege not to comply 
based on general operational needs of his office lest “the Presidency 
itself ... be fatally compromised.” He was asserting, in other words, 
an executive privilege against the House’s power to inquire. 

Such a privilege was asserted in United States v. Nixon against the 
functions of the judicial branch. The Supreme Court unanimously 
rejected such a flat privilege as one that would make our government 
unworkable and would impair the role of the courts. That conclusion 
applies with even stronger force in an impeachment proceeding 
against the President, the occurrence of which is so rare and the needs 
of which relate so fundamentally to the welfare of society itself. 

Therefore, in sum, Richard M. Nixon has not offered any “lawful 
cause or excuse.” His offer of excuses on behalf of future Presidents 
is untenable when he has, in truth, no valid excuse of his own. 

It has been suggested we should interpolate an excuse on his behalf 
because he may have been reluctant to state it. That excuse is the con- 
stitutional privilege against self-incrimination which Richard M. 
Nixon possesses as private citizen. For purposes of Article III, it is 
sufficient to answer that he did not offer this excuse. But if he had, 
the Committee could have granted him “use” immunity and ordered 


37-777 0 - 74 - 23 



352 


him to produce the subpoenaed materials, and thereafter the House 
could have impeached him for high crimes or misdemeanors on the 
basis of the produced materials because removal from office is not a 
criminal sanction. 

But it appears that for some of my colleagues laying out an im- 
peachable offense on the basis of undisputed facts and clear law is not 
enough. For some unstated reasons unknown to me, special precondi- 
tions are postulated for Article III which were not applied to any 
other article. 

First, it is argued that the presence of a disagreement over an im- 
portant constitutional issue between the President and the Committee 
requires that we test our position in court before impeachment. What 
is incongruous is that this principle is applied only to Article III. Yet 
there are important constitutional questions relating to Article I and 
Article II over which the President and the Committee disagree. For 
example, do either Article I or Article II comply with due process 
requirements of fair notice of the charges ? Why don’t we go to court 
to find out? Is obstruction of justice an impeachable offense? The 
President’s statement on August 5, 1974, appears to say no. So why 
don’t we go to court to find out? Is misuse of executive agencies an 
impeachable offense? Since it is not an indictable offense, the Presi- 
dent’s position is no. So why don’t we go to court to find out ? 

In deciding on any article of impeachment, one must determine the 
facts and whether those facts constitute impeachable conduct. The 
latter is always a construction of the phrase “treason, bribery, or 
other high crimes and misdemeanors,” always a constitutional ques- 
tion. If all constitutional questions should be sent to a court first, not 
only Article III but all three of the Articles of impeachment must 
fail. 

It is also suggested that simply because two branches have disagreed 
over their respective roles, the third branch should be called on to 
referee. But is this how our government works? If the Congress 
and the Supreme Court disagree on the constitutionality of a bill, does 
the President act as referee, or does the Court’s view prevail because 
of its assigned role under the Constitution? If the Congress and the 
President disagree over whether our armed forces should act or 
continue to act against some foreign land and Congress cuts off appro- 
priations, does the Supreme Court act as referee, or does the Congres- 
sional view prevail because of its assigned role under the Constitu- 
tion? And when the President and the Supreme Court disagreed on 
the question of whether the President was obligated to produce sub- 
poenaed material, did Congress act as referee, or did the Court’s view 
prevail because of its assigned role under the Constitution? 

In short, the asserted principle does not explain how our govern- 
ment actually works. The worth of this assertion can be analyzed by 
hypothecating an inquiry into the conduct of a Justice of the Supreme 
Court or of the entire Supreme Court wherein a “judicial privilege” 
is asserted against Congressional subpoenas. Would the President be 
the proper referee in that case ? The question answers itself. 

It should not go without comment that the Constitution grants no 
such “referee power” to any branch in any of its provisions. The only 
approximation of such a grant is the “case or controversy” jurisdiction 



353 


of the judicial branch. And, as the Report demonstrates, the history 
of that phrase rejects any notion that the doors of the courts are open 
to resolve constitutional confrontations between the two other 
branches. 

It is also commonly argued that no branch can decide its own role 
under the Constitution, citing a sentence to that effect from The Fed- 
eralist, No. 49. Unfortunately, what is not explained is that the sen- 
tence is a paraphrase by Madison of an argument that Thomas 
Jefferson made on behalf of a provision written for a Virginia con- 
stitution which the framers rejected in drafting our Constitution. 
Jefferson argued that disputes between branches should be referred to 
the people, assembled in convention. Madison answered that this would 
be unworkable as a general proposition and that the best that could 
be done was to establish a system of checks and balances, The Fed- 
eralist , No. 51. Under such a system, each branch is supreme within 
its assigned role. It is this truth to which United States v. Nixon is 
living testament. 

So why didn’t we go to court to be sure? (1) Because the federal dis- 
trict courts can only exercise jurisdiction granted by Congress and 
none has been granted to cover such a case. (2) Because both the Presi- 
dent and the Committee agreed that such questions w T ere not justiciable. 
(3) Because the House has the sole power of impeachment, wdiich in- 
cludes the duty of deciding whether certain facts constitute impeach- 
able conduct. (4) Finally, because these constitutional questions are 
tried in a court specially set aside by the Constitution for this very 
purpose. It is the Senate, “the court of impeachment,” and it exercises 
judicial power, as Hamilton made clear in The Federalist , No. 66. 
And, as is the case in all trials of Presidents, the Chief Justice of the 
United States presides. 

Second, it is argued that the Committee should have initiated con- 
tempt proceedings as a precondition to recommending Article III to 
the House. However, it should be noted that Article III does not 
charge contempt. Article III does not charge the President merely 
with refusal to obey the subpoenas of a Congressional Committee. 
Rather it charges that the President violated the doctrine of separa- 
tion of powers by arrogating to himself the functions of the House in 
an impeachment inquiry and thereby attempted to nullify the Con- 
stitution’s ultimate check on what Hamilton referred to as the “mis- 
conduct of public men.” Of course, the Committee itself does not 
charge but only recommends that the House make the charge, just as in 
a statutory contempt proceeding pursuant to 2 U.S.C. § 192. The dif- 
ference is that in a contempt proceeding initiated by the House the 
defendant is heard in a district court whereas in an impeachment pro- 
ceeding the respondent is heard in the Senate. But in terms of due 
process requirements, there is no difference. In neither case is a sanc- 
tion imposed before the opportunity to be heard. If the House’s voting 
impeachment were viewed as a sanction, then all three articles would 
fall equally. And the House could never impeach without previously 
conducting its own trial to determine the facts. 

For those who still press that contempt proceedings should have 
been completed as a precondition to charging an impeachable offense, 
it should be noted that the Supreme Court in ZJnited States v. Nixon , 



354 


when confronted with the question of whether contempt proceedings 
should have been initiated against the President as a procedural pre- 
condition for determining the obligatory character of the subpoenas, 
said that such a precondition would be inappropriate against a Presi- 
dent since it would force an additional constitutional confrontation 
and delay resolution of the merits of the case. The same is true for us. 

I trust that those who contend that contempt proceedings should 
have been completed as a precondition believe that it is legally pos- 
sible to hold an incumbent President in contempt. If that is so, it would 
follow that an incumbent President may be indicted for other crimes as 
well. In which case, it might be asked why the Committee has not 
urged that charges against the President be filed by the Special 
Prosecutor as a precondition to recommending Article 1. 

Again, it seems peculiar that the doctrine of “failure to exhaust 
other remedies” should be raised against Article III alone. Moreover, 
those other remedies are, in fact, unavailable. As that doctrine is ap- 
plied in courts of law, that fact makes the doctrine inapplicable. 

Article III compares favorably with the other articles reported 
by the Committee. Its underlying facts are undisputed. It is the most 
specific and least duplicitous of the three articles. It is the only ar- 
ticle wherein the President was put on notice before he acted that 
his conduct could result in impeachment. And as a matter of law, since 
the charge is that the President, in effect, attempted to nullify the con- 
stitutional procedure whereby he is made accountable for his conduct 
to the people he serves, there can be no higher crime against the peo- 
ple with the possible exception of treason. 

Article III is no make- weight article. For posterity, it is the most 
important article. It preserves for future generations the power to 
hold their public servants accountable. 

When we began this inquiry many months ago, no one would have 
denied that the House of Representatives had the power to impeach a 
President. In the absence of our recommendation of Article III, seri- 
ous doubts about this power would have persisted. Indeed, this im- 
peachment will have been made possible by circumstances extraneous 
to our inquiry. It was not our subpoena that brought to light the addi- 
tional evidence on August 5, 1974. The same sadly can be said of much 
of the substantial evidence which we possess. Our subpoenas still stand 
unanswered. It was only by the coincidence of an investigation into 
the conduct of private citizens who formerly worked at the White 
House that evidence necessary to our inquiry into Presidential conduct 
fell into our hands. By experiencing that coincidence, have we ac- 
quitted ourselves of our responsibility to preserve for our grandchil- 
dren a workable government wherein even the highest remain account- 
able to the people through their representatives ? Shall we protect the 
people’s rights and prevent the crippling of the Constitution’s essen- 
tial check against unconstitutional government? 

In recommending Article III to the House the Committee has 
sought to answer these questions in the affirmative. 

The concur in full with the foregoing views on Article III. 

Robert McClory. 

George E. Danielson. 

Hamilton Fish, Jr. 



CONCURRING VIEWS OF MR. FISH 


AND THE PRESIDENT “SHALL TAKE CARE . . 

In reviewing the solemn proceeding in which we have been engaged, 
every Member of the Committee on the Judiciary, every other Mem- 
ber of Congress, and every other American must evaluate the evidence 
in the light of adherence to law, devotion to the Constitution and to 
the institutions of this land. Article II of the United States Constitu- 
tion sets forth the power and the responsibilities of the President. It 
opens with majestic simplicity : “The executive Pow T er shall be vested 
in a President of the United States of America.” The standard of con- 
duct required of all Presidents appeal's in Section 3 of that Article 
which commands that the President “shall take Care that the Laws 
be- faithfully executed.” Section I of the same Article requires that the 
President acknowledge the “take Care” duty when assuming office by 
affirming under oath that he will “preserve, protect and defend the 
Constitution of the United States.” 

The “take Care” clause “is a comprehensive description of the duty 
of the executive to watch with vigilance over all the public interests.” 
Field v. People , 2 Scan. 79 (111. 1839) (quoting a contemporary treatise 
on American law). President Benjamin Harrison described the duty 
to “take Care that the Laws are faithfully executed” as “the central 
idea of the office.” Justice Frankfurter observed that apart from the re- 
sponsibility for conducting foreign affairs, “the embracing function of 
the President is that ‘he shall take Care that the Laws be faithfully 
executed.' ” The Supreme Court has made it clear that the “Laws” 
to which the “take Care” clause refers are not limited solely to “the 
. . . Acts of Congress or treaties of the United States;” rather, the 
“Laws” also include those “rights, duties and obligations growing out 
of the Constitution itself . . . and all the protections implied by the 
nature of the government under the Constitution.” In re N eagle , 135 
U.S. 1,64 (1890). 

The Impeachment Clause is the sole exception to the system of sepa- 
ration of governmental powers provided by the Constitution. It is the 
ultimate check on a President’s abuse of the powers of his office. The 
duty to “take Care that the Laws be faithfully executed” circum- 
scribes the President’s authority with respect to overall conduct of the 
Executive Department and the administration of justice and is central 
to the exercise of the impeachment power. 

The three Articles of Impeachment recommended to the full House 
of Representatives charge that the great powers of the presidential 
office have been seriously abused. In words repeated in the preamble 
to each Article it is charged that the President, “in violation of his 
constitutional oath faithfully to execute the office of President of the 
United States and to the best of his ability preserve, protect and de- 
fend the Constitution of the United States, and in violation (or ‘dis- 

( 355 ) 



356 


regard,’ in Article II) of his constitutional duty to take care that the 
laws be faithfully executed,” performed acts therein specified. All 
three Articles thus frame the issue in constitutional terms. 

Much attention has been given, and properly, to the specific charges 
against the President; but there are also larger considerations in- 
volved. The isstie for history is the constitutional standard by which 
this President, or any future President, shall be held to account for his 
own acts or omissions and those of his immediate subordinates. 

The clear and understandable thrust of the “take Care” clause im- 
poses on a President the affirmative duty to take care that the laws are 
carried out fully, fairly, and justly. 

The “take Care” clause imposes on a President a personal obligation 
faithfully to honor, respect, obey and execute the laws. At the very 
least he is bound not to violate the law ; not to order others to violate 
the law ; and not to participate in the concealment of evidence respect- 
ing violations of law of which he is made aware. This is scarcely novel : 
the same could be said of any citizen, whether or not bound by oath 
of office. Unlike the misconduct of an ordinary citizen, of course, 
presidential actions which contravene an Act of Congress may raise 
ifitfidamental constitutional issues involving the overreach of the 
President’s powers, e.g., Y oungstown Sheet and Tube Co. v. Sawyer , 
343 U.S. 579 (1952) (steel seizure) ; United States v. United States 
District Court , 407 U.S. 297 (1917) (warrantless wiretapping) ; 
United States v. Nixon , U.S. -- - — - (1974) (executive privi- 

lege). In such case, since the President’s action can be effectively tested 
in the courts, resort to the extraordinary remedy of impeachment is not 
necessary. Impeachment is appropriate only where the President’s 
action involves an undermining of the integrity of office, an arrogation 
of power, a disregard of constitutional duties, or otherwise has a sub- 
stantial adverse impact on the system of government. 

The President’s constitutional duties extend beyond his personal 
obligation. The “take Care” clause includes the President’s superin- 
tendency of the vast bureaucracy of the executive branch, including 
all departments, agencies, commissions, and of course the immediate 
White House staff. The President’s general obligation in this regard 
was described by Attorney General William Wirt in advice he gave 
in 1823 to President John Quincy Adams: “[The President] is not to 
perform the duty but to see that the officer assigned by law performs 
his duty faithfully — that is, honestly ; not with perfect correctness of 
judgement, but honestly.” 1 Ops. Atty. Gen. 624 (1823). 

The President’s duty to supervise his principal subordinates is fur- 
ther emphasized by other provisions of the Constitution. Considered 
in conjunction, with the President’s constitutional power to “require 
the opinion in writing, of the principal officer in each of the Executive 
Departments, upon any subject relating to the duties of their respec- 
tive offices,” Article li. Section 2, the “take Care” clause implies an 
affirmative duty to be informed about the conduct of executive officers. 
Likewise, when considered in the light of the President’s power to 
appoint and remove executive officers, the intention of the Framers of 
the Constitution that there be a single, responsible executive, and the 
provision of Article II, Section 1 vesting the executive power solely in 



357 


the President, the “take Care” clause imposes a duty to oversee the 
conduct of executive officers. 

This general duty of supervision is necessarily subject to certain 
practical limitations. The President's constitutional duty does not 
require that he personally execute the laws. As Gouverneur Morris 
pointed out at the Constitutional Convention, “Without . . . minis- 
ters the Executive can do nothing of consequence.” II The Records of 
the Federal Convention 54 (M. Farrand ed.). Clearly he cannot ex- 
ercise direct supervision over any substantial segment of the executive 
branch. He should not be- held responsible under the “take Care” 
clause for acts of individual wrongdoing by executive officers in the 
performance of their duties, in which he is not in any way involved. 
He and his party may have to respond to the electorate for instances 
of revealed corruption at any level of the executive establishment, but 
unless the corruption serves to subvert the system of government, im- 
peachment is not warranted. 

Under the “take Care” clause, however, the President may not 
knowingly countenance — let alone authorize or direct — serious unlaw- 
ful conduct in an official capacity on the part- of any agency or execu- 
tive official within the executive establishment. Furthermore, what- 
ever may be the responsibility of the President for the conduct of 
those executive officers in the various agencies of government, his re- 
sponsibility for the conduct of his immediate subordinates in the White 
House is even more compelling. All members of the White House staff 
are selected by the President and are directly responsible to him alone. 
No member of the White House staff is subject to Senate scrutiny or 
approval on appointment; and of course discharge is also Avithin the 
sole discretion of the President. It is not unreasonable to suggest that 
the closer the relationship to the President, the greater is his responsi- 
bility for the misconduct of a particular subordinate in the discharge 
of his duties. 

Although the clause does not require day-to-day supervisory re- 
sponsibility for each executive department or agency, neither does the 
size and complexity of the executive branch excuse the President’s 
failure to take reasonable steps calculated to ensure that his subordi- 
nates have faithfully carried out his responsibility of faithful execu- 
tion of the laws. The President must exercise due diligence in 
overseeing the acts of his immediate subordinates. He can neither 
mislead them by offering ambiguous instructions and then fail to 
police their actions, nor can he with impunity simply ignore available 
facts bearing on their wrongf ul official conduct. He must remain always 
alert for any hint or suggestion of improper official conduct on their 
part. If a President has knowledge that the laws are being violated or 
improperly executed, he is under a duty to take appropriate steps to 
remedy these wrongs. Among other things, he must bring the matter 
to the attention of authorized law enforcement officials. Furthermore, 
a President may not deliberately position or arrange to screen himself 
with intent to avoid such knowledge, or notice of such actions. And if 
a President permits or directly or indirectly stimulates a course of 
activity on the part of his immediate subordinates which amounts to 
serious abridgement of the “take Care” clause, he is accountable for 



358 


that conduct in an impeachment proceeding directed against him, 
whether or not he had knowldege of its actual occurrence. 

The failure of a President to discharge his duty by disregarding or 
knowingly tolerating official dishonesty in the executive department 
or the faithless execution of the laws by his subordinates or executive 
department officials, may well, as President Andrew Jackson stated, 
subject a President to the same liability as his subordinates — removal 
from office. 3 Messages of the President 1352. 

The President, in short, may not use any department of the execu- 
tive branch, or any person within the executive establishment, to 
subvert the Constitution or the laws, or to serve the President’s per- 
sonal or political advantage in an unlawful manner. This is what 
Article II of the Constitution is all about. It puts the President upon 
his oath to preserve, protect and defend the Constitution and to take 
care that the laws will be faithfully executed. 

This is also what Impeachment Articles I and II are all about. 
Article I charges obstruction of justice by interfering with federal 
investigating agencies and concealing from them critical information. 
Paragraphs 1, 2 and 5 of Article II charge abuse of office by directing 
unlawful activities to be undertaken by the Internal Revenue Service, 
the Federal Bureau of Investigation, the 'Secret Service, the Criminal 
Division of the Department of Justice, the office of Watergate Special 
Prosecutor, and the Central Intelligence Agency. Paragraphs 3 and 4 
charge other illegal acts of the President, done “personally . and 
through his subordinates and agents,” in subversion of the political 
process ; in derogation of individual liberty ; and in the development 
of a plan to prevent discovery of illegal activities. Furthermore, the 
offenses charged in Article II are peculiarly presidential offenses, for 
the President is in a unique position to subvert and abuse the federal 
investigative and law enforcement agencies. Under the Constitution 
the President may properly exercise broad discretionary powers to see 
that the Department of Justice and other agencies serve the needs of 
law enforcement, but those powers are circumscribed by his corre- 
sponding duty to uphold the integrity of the administration of justice. 
The President has special obligations in the even-handed enforcement 
of the criminal laws of the land. Article II charges at the very least 
a gross disregard for those special obligations, and a total dereliction 
of the duty to take care that the laws be faithfully executed. 

Hamilton Fish, Jr. 



MINORITY VIEWS OF MESSRS. HUTCHINSON, SMITH, 
SANDMAN, WIGGINS, DENNIS, MAYNE, LOTT, MOOR- 
HEAD, MARAZITI AND LATTA 

P KELT MIX ARY STATEMENT 

A . General 

It is true, as President Gerald R. Ford said in his inaugural remarks, 
that “our long national nightmare is over,” at least in the sense that 
anxiety over the impact of a raging Watergate controversy on the 
ability of the country’s Chief Executive to govern effectively, or even 
to remain in office, abruptly ended upon the resignation of Richard 
Nixon from the Presidency. That resignation also rendered moot, in 
our view, the sole question to which this Committee’s impeachment 
inquiry was addressed, namely, whether sufficient grounds exist for 
the House of Representatives to exercise its constitutional power to 
impeach Mr. Nixon. We see no need for the Members of the House to 
take any action whatsoever with respect to the filing of this Committee 
Report, other than to read it and the individual and minority views 
included herein. 

It is perhaps less urgent , but it is surely no less necessary , that we 
record our views respecting the more significant questions of law and 
fact which we perceive to be posed by the record compiled by the Com- 
mittee in the course- of its Impeachment Inquiry. This remains impor- 
tant, not because whatever we in the minority or our colleagues who 
constituted the Committee’s majority on these issues now say about 
them will affect the tenure in office of any particular President, but 
because we have an obligation, both to our contemporaries and to pos- 
terity, not to perpetuate, unchallenged, certain theories of the evidence, 
and of law, which are propounded by the majority but which we be- 
lieve to be erroneous. 

It is essential that, as the emotional and intellectual tensions of the 
pre-resignation period subside, neither Members of the Committee nor 
other Americans so relax their efforts to analyze and understand the 
evidence accumulated by the Committee that they become indiscrimi- 
nate in their approach to the various allegations of misconduct which 
we examined. Our gratitude for his having by his resignation spared 
the Nation additional agony should not obscure for history our judg- 
ment that Richard Nixon, as President, committed certain acts for 
which he should have been impeached and removed from office. Like- 
wise, having effectively admitted guilt of one impeachable offense — 
obstruction of justice in connection with the Watergate investigation — 
Richard Nixon is not consequently to be presumed guilty of all other 
offenses with which he was charged by the majority of the Committee 
that approved recommending to the full House three Articles of Im- 
peachment against him. Indeed, it remains our view that, for the most 

( 359 ) 



360 


part, he was not guilty of those offenses and that history should so 
record. 

Our views respecting the merits of each of the major allegations 
made by the majority of the Committee against President Nixon are 
set out more fully in the separate discussions of the three proposed 
Articles Which follow. To summarize : 

(1) With respect to proposed Article I, we believe that the charges 
of conspiracy to obstruct justice, and obstruction of justice, which are 
contained in the Article in essence, if not in terms, may be taken as 
substantially confessed by Mr. Nixon on August 5, 1974, and corrob- 
orated by ample other evidence in the record. Prior to Mr. Nixon’s 
revelation of the contents of three conversations between him and his 
former Chief of Staff, H. R. Haldeman, that took place on June 23, 
1972, we did not, and still do not, believe that the evidence of presiden- 
tial involvement in the Watergate cover-up conspiracy, as developed 
at that time, was sufficient to warrant Members of the House, or dis- 
passionate jurors in the Senate, in finding Mr. Nixon guilty of an 
impeachable offense beyond a reasonable doubt, which we believe to 
be the appropriate standard. 

(2) With respect to proposed Article II, we find sufficient evidence 
to warrant a belief that isolated instances of unlawful conduct by 
presidential aides and subordinates did occur during the five-and- 
one-half years of the Nixon Administration, with varying degrees of 
direct personal knowledge or involvement of the President in these 
respective illegal episodes. We roundly condemn such abuses and un- 
reservedly favor the invocation of existing legal sanctions, or the cre- 
ation of new ones, where needed, to deter such reprehensible official 
conduct in the future, no matter in wdiose Administration, or by what 
brand or partisan, it might be perpetrated. 

Nevertheless, we cannot join with those who claim to perceive an 
invidious, pervasive “pattern” of illegality in the conduct of official 
government business generally by President Nixon. In some instances, 
as noted below, we disagree with the majority’s interpretation of the 
evidence regarding either the intrinsic illegality of the conduct studied 
or the linkage of Mr. Nixon personally to it. Moreover, even as to those 
acts which we would concur in characterizing as abusive and which the 
President appeared to direct or countenance, neither singly nor in the 
aggregate do they impress -us as being offenses for which Richard 
Nixon, or any President, should be impeached or removed from office, 
when considered, as they must he , on their own footing, apart from the 
obstruction of justice charge under proposed Article I which we 
believe to be sustained by the evidence. 

(3) Likewise, with respect to proposed Article III, we believe that 
this charge, standing alone, affords insufficient grounds for impeach- 
ment. Our concern here, as explicated in the discussion below, is that 
the Congressional subpoena power itself not be too easily abused as a 
means of achieving the impeachment and removal of a President 
against whom no other substantive impeachable offense has been 
proved by sufficient evidence derived from sources other than the Presi- 
dent himself. We believe it is particularly important for the House 
to refrain from impeachment on the sole basis of noiicompliance with 
subpoenas where, as here, colorable claims of privilege have been 



361 


asserted in defense of non-production of the subpoenaed materials, and 
the validity of those claims has not been adjudicated in any established, 
lawful adversary proceeding before the House is called upon to decide 
whether to impeach a President on grounds of noncompliance with 
subpoenas issued by a Committee inquiring into the existence of suffi- 
cient grounds for impeachment. 

Richard Nixon served his country in elective office for the better part 
of three decades and, in the main, he served it well. Each of the under- 
signed voted for him, worked for and w T ith him in election campaigns, 
and supported the major portion of his legislative program during 
his tenure as President. Even at the risk of seeming paradoxical, since 
we were prepared to vote for his impeachment on proposed Article I 
had lie not resigned his office, we hope that in the fullness of time it is 
his accomplishments — and they were many and significant — rather 
than the conduct to which this Report is addressed for which Richard 
Nixon is primarily remembered in history. 

We know that it has been said, and perhaps some will continue to 
say, that Richard Nixon was “hounded from office” by his political 
opponents and media critics. We feel constrained to point out, however, 
that it was Richard Nixon who impeded the FBI’s investigation of 
the Watergate affair by wrongfully attempting to implicate the Cen- 
tral Intelligence Agency; it was Richard Nixon, who created and pre- 
served the evidence of that transgression and who, knowing that it had 
been subpoenaed by this Committee and the Special Prosecutor , con- 
cealed its terrible import, even from his own counsel, until he could 
do so no longer. And it was a unanimous Supreme Court of the United 
States which, in an opinion authored by the Chief Justice whom he 
appointed, ordered Richard Nixon to surrender that evidence to the 
Special Prosecutor, to further the ends of justice. 

The tragedy that finally engulfed Richard Nixon had many facets. 
One was the very self-inflicted nature of the harm. It is striking that 
such an able, experienced and perceptive man, whose ability to grasp 
the global implications of events little noticed by others may well have 
been unsurpassed by any of his predecessors, should fail to comprehend 
the damage that accrued daily to himself, his Administration, and to 
the Nation, as day after day, month after month, he imprisoned the 
truth about his role in the Watergate cover-up so long and so tightly 
within the solitude of his Oval Office that it could not be unleashed 
without destroying his Presidency. 

We submit these Minority Views in the hope that we might thereby 
help provide to our colleagues in the House, and to the public at large, 
a broader perspective than might otherwise be available on these events 
which have come to play such a surprisingly large part in all of our 
lives. Joined, we are confident, by our colleagues on the majority of 
the Committee who, through these past nine months, struggled as we 
did to find the truth, we conclude by expressing a final, earnest hope : 
that these observations and all that we have said and done during the 
course of this Inquiry will prove to have served, as they were intended 
to serve, the security, liberty and general welfare of the American 
people. 



362 


B. Meaning of “Treason, Bribery or other high Grimes and Mis- 
demeanors” 

The Constitution of the United States provides that the President 
“shall be removed from Office on Impeachment for, and Conviction of, 
Treason, Bribery, or other high Crimes and Misdemeanors.” Upon 
impeachment and conviction, removal of the President from office is 
mandatory. The offenses for which a President may be impeached 
are limited to those enumerated in the Constitution, namely “Treason, 
Bribery, or other high Crimes and Misdemeanors.” We do not believe 
that a President or any other civil officer of the United States gov- 
ernment may constitutionally be impeached and convicted for errors 
in the administration of his office. 

1. ADOPTION OF “TREASON, BRIBERY, OR OTHER HIGH CRIMES AND MISDE- 
MEANORS” AT CONSTITUTIONAL CONVENTION 

The original version of the impeachment clause at the Constitu- 
tional Convention of 1787 had made “mal-praotice or neglect of duty” 
the grounds for impeachment. On July 20, 1787, the Framers debated 
whether to retain this clause, and decided to do so. 

Gouvemeur Morris, who had moved to strike the impeachment 
clause altogether, began by arguing that it was unnecessary because 
the executive “can do no criminal act without Coadjutors who may be 
punished.” 1 George Mason disagreed, arguing that “When great 
crimes were committed he [favored] punishing the principal as well 
as the Coadjutors.” 2 Fearing recourse to assassinations, Benjamin 
Franklin favored impeachment “to provide in the Constitution for 
the regular punishment of the executive when his misconduct should 
deserve it, and for his honorable acquittal when he should be unjustly 
accused.” 3 Gouverneur Morris then admitted that “corruption & some 
few other offenses” should be impeachable, but thought “the case ought 
to be enumerated & defined.” 4 

Rufus King, a co-sponsor of the motion to strike the impeachment 
clause, pointed out that the executive, unlike the judiciary, did not 
hold his office during good behavior, but during a fixed, elective term ; 
and accordingly ought not to be impeachable, like the judiciary, for 
“misbehaviour :” this would be “destructive of his independence and 
of the principles of the Constitution.” 5 Edmund Randolph, however, 
made a strong statement in favor of retaining the impeachment 
clause : 

Guilt wherever found ought to be punished . The Executive will have great op- 
portunitys of abusing his power, particularly in time of war when the military 
force, and in some respects the public money will be in his hands. 

. . . He is aware of the necessity of proceeding with a cautious hand, and of 
excluding as much as possible the influence of the Legislature from the busi- 
ness. He suggested for consideration . . . requiring some preliminary inquest 
of whether just grounds for impeachment existed . 0 

1 The Records of the Federal Convention of 1787 (M. Farrand ed., 1911) 64 (emphasis 
added). 

2 Id., at 64 (emphasis added) . 

3 Id., at 65 (emphasis added). 

4 Id., (emphasis added) . 

6 Id., at 67. 

0 Id., at 67 (emphasis added). 



363 


Benjamin Franklin again suggested the role of impeachments in re- 
leasing tensions, using an example from international alfairs involving 
a secret plot to cause the failure of a rendezvous between the F rench 
and Dutch fleets — an example suggestive of treason. 7 Gouverneur 
Morris, his opinion now changed by the discussion, closed the debate on 
a note echoing the position of Randolph : 

Our Executive . . . may be bribed by a greater interest to betray his trust ; 
and no one would say that we ought to expose ourselves to the danger of seeing 
the first Magistrate in foreign pay without being able to guard agst. it by dis- 
placing him. . . . The Executive ought therefore to be impeachable for treach- 
ery ; Corrupting his electors, and incapacity were other causes of impeachment. 
For the latter he should be punished not as a man, but as an officer, and pun- 
ished only by degradation from his office. . . . When we make him amenable 
to Justice however we should take care to provide some mode that will not 
make him dependent on the Legislature . 8 

On the question, “Shall the Executive be removable on impeach- 
ments, the proposition then carried by a vote of eight states to two. 9 

A review of this debate hardly leaves the impression that the F ram- 
ers intended the grounds for impeachment to be left to the discretion, 
even the “sound” discretion, of the legislature. On a fair reading, 
Madison’s notes reveal the Framers’ fear that the impeachment power 
would render the executive dependent on the legislature. The concrete 
examples used in the debate all refer not only to crimes, 10 but to ex- 
tremely grave crimes. George Mason mentioned the possibility that the 
President would corrupt his own electors and then “repeat his guilt,” 
and described grounds for impeachment as “the most extensive in- 
justice.” Franklin alluded to the beheading of Charles I, the possibility 
of assassination, and the example of the French and Dutch fleets, 
which connoted betrayal of a national interest. Madison mentioned the 
“perversion” of an “administration into a scheme of peculation or 
oppression,” 11 or the “betrayal” of the executive’s “trust to foreign 
powers.” Edmund Randolph mentioned the great opportunities for 
abuse of the executive power, “particularly in time of war when the 
military force, and in some respects the public money will be in his 
hands.” He cautioned against “tumults & insurrections.” Gouveneur 
Morris similarly contemplated that the executive might corrupt his 
own electors, or “be bribed by a greater interest to betray his trust” — 
just as the King of England had been bribed by Louis XIV — and felt 
he should therefore be impeachable for “treachery.” 

After the July 20 vote to retain the impeachment clause, the resolu- 
tion containing it was referred to the Committee on Detail, which 
substituted “treason, bribery or corruption” for “mal -practice or 
neglect of duty.” No surviving records explain the reasons for the 
change, but they are not difficult to understand, in light of the floor 
discussion just summarized. The change fairly captured the sense of 
the July 20 debate, in which the grounds for impeachment seem to 
have been such acts as vrnuld either cause danger to the very existence 


7 Id., at 68. 

8 Id., at 68-69. 

9 Id., at 69. 

10 The frequent use of the terms “punish,” “punishment,” and “guilt” in this debate 
indicates the tenor of the proceedings, and seems toi have occasioned Morris' suggestion 
that the “offenses” cognizable in an impeachment proceeding be “enumerated & defined.” 

11 “Peculation” and “oppression” were both technical words of law, and constituted 
indictable crimes at common law. 4 W. Blackstone Commentaries on the Laics of England 
(1771) 122 (peculation), 140 (oppression). 



364 


of the United States, or involve the purchase and sale of the “Chief of 
Magistracy,” which would tend to the same result. It is not a fair 
summary of this debate — which is the only surviving discussion of any 
length by the Framers as to the grounds for impeachment — to say that 
the Framers were principally concerned with reaching a course of 
conduct, whether or not criminal, generally inconsistent with the 
proper and effective exercise of the office of the presidency. They were 
concerned with preserving the government from being overthrown by 
the treachery or corruption of one man. Even in the context of that 
purpose, they steadfastly reiterated the importance of putting a cheek 
on the legislature’s use of power and refused to expand the narrow 
definition they had given to treason in the Constitution. They saw 
punishment as a significant purpose of impeachment. The changes 
in language made by the Committee on Detail can be taken to reflect 
a consensus of the debate that (1) impeachment would be the proper 
remedy where grave crimes had been committed, and (2) adherence 
to this standard would satisfy the widely recognized need for a check 
on potential excesses of the impeachment power itself. 

The impeachment clause, as amended by the Committee on Detail 
to refer to “treason, bribery or corruption,” was reported to the full 
Convention on August 6, 1787, as part of the draft constitution. 
Together with other sections, it was referred to the Committee of 
Eleven on August 31. This Committee further narrowed the grounds 
to “treason or bribery,” while at the same time substituting trial by the 
Senate for trial by the Supreme Court, and requiring a two-thirds 
vote to convict. No surviving records explain the purpose of this 
change. The mention of “corruption” may have been thought redun- 
dant, in view of the provision for bribery. Or, corruption might have 
been regarded by the Committee as too broad, because not a well- 
defined crime. In any case, the change limited the grounds for impeach- 
ment to two clearly understood and enumerated crimes. 

The revised clause, containing the grounds “treason and bribery,” 
came before the full body again on “September 8, late in the Conven- 
tion. George Mason moved to add to the enumerated grounds for 
impeachment. Madison’s Journal reflects the following exchange: 

Col. Mason. Why is the provision restrained to Treason & bribery only ? Treason 
as defined in the Constitution will not reach many great and dangerous offenses. 
Hastings is not guilty of Treason. Attempts to subvert the Constitution may not 
be Treason as above defined — as biUs of attainder which hiave saved the British 
Constitution are forbidden, it is the more necessary to extend : the power of im- 
peachments. He movd. to add after “bribery” “or maladministration.” Mr. Gerry 
seconded him — 

Mr. Madison. So vague a term will be equivalent to a tenure during pleasure 
of the Senate. 

Mr. Govr. Morris., it will not be put in force & can do no harm — An election 
of every four years will prevent maladministration. 

Col. Mason withdrew “maladministration” & substitutes “other high crimes 
and misdemeanors” agst. the State.” 13 

On the question thus altered, the motion of Colonel Mason passed 
by a vote of eight states to three. 

Madison’s notes reveal no debate as to the meaning of the phrase 
“other high Crimes and Misdemeanors.” All that appears is that 


u 2 Farrand 550. 



365 


Mason was concerned with the narrowness of the definition of treason ; 
that his purpose in proposing “maladministration” was to reach great 
and dangerous offenses ; and that Madison felt that “maladministra- 
tion,” which was included as a ground for impeachment of public 
officials in the constitutions of six states, including his own, 13 would 
be too “vague” and would imperil the independence of the President. 

It is our judgment, based upon this constitutional history, that the 
Framers of the United States Constitution intended that the Presi- 
dent should be removable by the legislative branch only for serious 
misconduct dangerous to the system of government established by the 
Constitution. Absent the element of danger to the State, we believe 
the Delegates to the Federal Convention of 1787, in providing that 
the President should serve for a fixed elective term rather than during 
good behavior or popularity, struck the balance in favor of stability 
in the executive branch. We have never had a British parliamentary, 
system in this country, and we have never adopted the device of a 
parliamentary vote of no-confidence in the chief executive. If it is 
thought desirable to adopt such a system of government, the proper 
way to do so is by amending our written Constitution — not by remov- 
ing the President. 


2. ARE “high CRIMES AND MISDEMEANORS” NON-CRIMINAL? 

a . . Language of the Constitution 

The language of the Constitution indicates that impeachment can 
lie only for serious criminal offenses. 

First, of course, treason and bribery were indictable off senses in 
1787, as they are now. The words “crime” and “misdemeanor”, as well, 
both had an accepted meaning in the English law of the day, and 
referred to criminal acts. Sir William Blackstone J s C omment aries on 
the Lares of England , (1771). which enjoyed a wide circulation in 
the American colonies, defined the terms as f ollows : 

I. A crime, or misdemeanor is an act committed, or omitted, in violation of 
a public law, either forbidding or commanding it. This general definition 
comprehends both crimes and misdemeanors ; which, properly speaking, are 
mere synonymous terms: though, in common usage, the word “crimes” is 
made to denote such offenses as are of a deeper and more atrocious dye ; while 
smaller faults, and omissions of less consequence, are comprised under the 
gentler name of “misdemeanors” only . 14 

Thus, it appears that the word “misdemeanor” was used at the time 
Blackstone wrote, as it is today, to refer to less serious crimes. 

Second, the use of the word “other” in the phrase “Treason, Bribery 
or other high Crimes and Misdemeanors” seems to indicate that high 
Crimes and Misdemeanors had something in common with Treason and 
Bribery — both of which are, of course, serious eidnunal offenses threat- 
ening the integrity of government. 

Third, the extradition clause of the Articles of Confederation 
(1781), the governing instrument of the United States prior to the 


13 The six were Virginia (“maladministration, corruption, or other means by which the 
safety of the State may be endangered”), Delaware (same), North Carolina (“violating 
any part of the Constitution, maladministration, or corruption”). Pennsylvania (“mal- 
administration”), Massachusetts (“misconduct and maladministration”). We believe it is 
significant that with such models before them, the Framers elected to define the grounds 
for impeachment under the Federal Constitution in narrow and seemingly criminal terms. 

14 4 Blackstone 1,5. 



366 


adoption of the Constitution, had provided for extradition from one 
state to another of any person charged with “treason, felony or other 
high misdemeanor.” 15 If “high misdemeanor” had something in com- 
mon with treason and felony in this clause, so as to warrant the use 
of the word “other,” it is hard to see what it could have been except 
that all were regarded as serious crimes. Certainly it would not have 
been contemplated that a person could be extradited for an offense 
which was non-criminal. 

Finally, the references to impeachment in the Constitution use the 
langauge of the criminal law. Removal from office follows “convic- 
tion,” when the Senate has “tried” the impeachment. The party con- 
victed is “nevertheless . . . liaJble and subject to Indictment, Trial, 
Judgment and Punishment, according to Law.” The trial of all Crimes 
is by Jury, “except in cases of Impeachment.” The President is given 
power to grant “Pardons for Offenses against the United States, ex- 
cept in Cases of Impeachment.” 

This constitutional usage, in its totality, strengthens the notion 
that the words “Crime” and “Misdemeanor” in the impeachment clause 
are to be understood in their ordinary sense, i.e., as importing crimin- 
ality. At the very least, this terminology strongly suggests the criminal 
or quasi-criminal nature of the impeachment process. 

b. English impeachment practice 

It is sometimes argued that officers may be impeached for non- crim- 
inal conduct, because the origins of impeachment in England in the 
fourteenth and seventeenth centuries show that the procedure was not 
limited to criminal conduct in that country. 

Early English impeachment practice, however, often involved a 
straight power struggle between the Parliament and the King. After 
parliamentary supremacy had been established, the practice was not 
no open-ended as it had been previously. 16 Blackstone wrote (between 
1765 and 1769) that 

[A] n impeachment before the Lords by the commons of Great Britain, in par- 
liament, is a prosecution of the already known and established law. . . . 17 

The development of English impeachment practice in the eigtheenth 
century is illustrated by the result of the first major nineteenth cen- 
tury impeachment in that country — that of Lord Melville, Treasurer 
of the Navy, in 1805-1806. Melville was charged with wrongful use 
of public moneys. Before passing judgment, the House of Lords re- 
quested the formal opinion of the judges upon the following question : 

Whether it was lawful for the Treasurer of the Navy, before the passing of 
the Act 25 Geo. 3rd, c. 31, to apply any sum of money [imprested] to him for 
navy [sumpsimus] services to any other use whatsoever, public or private, 
without express authority for so doing; and whether such application by such 
treasurer would have been a misdemeanor , or punishable by information or 
indictment f 18 


15 Articles of Confederation, Art. IV (emphasis added) ; printed in Documents Illustrative 
of the Formation of the Union of the American States , 69th Cong., 1st Sess., H. Doc. No. 
398 (1927), p. 28. 

10 For example, the House of Lords in the thirteenth century had not thought itself bound 
by the common law as used in the inferior courts, but it reversed that position in 1709, when 
It decided that cases of impeachment would thenceforth be tried “according to the Law 
of the Land.” Feerick, Impeaching Federal Judges: A Study of the Constitutional Provi- 
sions, 39 Fordham L. Rev. 1, 6, citing Hatsell, Precedents of Proceedings in the House of 
Commons. 

17 4 Blackstone 256 (emphasis added). 

18 A. Simpson, Federal Impeachments , 64 Univ. Pa. L. Rev. 651, 685 (1916) (emphasis 
added). 



367 


The judges replied : 

It was not unlawful for the Treasurer of the Navy before the Act 25 Geo. 3rd, 
c 31, ... to apply any sum of money inures ted to him for navy services, to other 
uses, . . . without express authority for so doing, so as to constitute a misde- 
meanor punishaUe hy information or indicetment , 19 

Upon this ruling by the judges that Melville had committed no crime, 
he was acquitted. The case thus strongly suggests that the Lords in 
1805 believed an impeachment conviction to require a “misdemeanor 
punishable by information or indictment.” The case may be taken to 
cast doubt on the vitality of precedents from an earlier, more turbid 
political era and to point the way to the Framers’ conception of a 
valid exercise of the impeachment power in the future. As a matter 
of policy, as well, it is an appropriate precedent to follow in the 
latter twentieth century. 

The argument that the President should be impeachable for general 
misbehavior, because some English impeachments do not appear to 
have involved criminal charges, also takes too little account of the 
historical fact that the Framers, mindful of the turbulence of parlia- 
mentary uses of the impeachment power, 20 cut back on that power in 
several respects in adapting it to an American context. Congressional 
bills of attainder and ex post facto laws, 21 which had supplemented 
the impeachment power in England, were expressly forbidden. Trea- 
son was defined in the Constitution 22 — and defined narrowly — so that 
Congress acting alone could not change the definition, as Parliament 
had been able to do. The consequences of impeachment and convic- 
tion, which in England had frequently meant death, were limited to 
removal from office and disqualification to hold further federal office. 23 
Whereas a majority vote of the Lords had sufficed for conviction, 24 
in America a two-thirds vote of the Senate would be required. 25 
Whereas Parliament had had the power to impeach private citizens, 
the American procedure could be directed only against civil officers 
of the national government. 26 The grounds for impeachment — unlike 
the grounds for impeachment in England — were stated in the Con- 
stitution. 27 

. In the light of these modifications, it is misreading history to say 
that the Framers intended, by the mere approval of Mason’s substitute 


19 Id. at 685 (emphasis added) ; 29 Howell’s State Trials 1468-1471. 

20 The most egregious example was probably the case of Lord Strafford, who after the 
result of his impeachment seemed in doubt in the House of Lords, was executed in 1641 
pursuant to the parliamentary bill of attainder. The bill of attainder was repealed (too late 
for Strafford) by the Act 13 and 14 Charles II, ch. 29, which stated, “That he [Strafford] 
was condemned upon accumulative treason, none of the pretended crimes being treason 
apart ; that he was adjudged guilty of constructive treason ; that the bill was forced through 
both houses by mobs of armed and tumultuous persons.” 4 Hatsell, Precedents of Proceed- 
ings in the House of Commons 239 (1796). The execution of Strafford for “accumulative 
treason,” whatever its role in the establishment of parliamentary power, illustrates the 
potential dangers of abandonment of a criminal standard. So too, perhaps, does the convic- 
tion of Judge Halsted Ritter in 1936 upon a seventh Article incorporating the substantive 
charges of the first six Articles. The opinion of Senator Austin, who voted Not Guilty on 
Article VII, urged that “six legal naughts cannot become a legal unit of general misbe- 
havior.” Proceedings of the Senate in the Trial of Impeachment of Halsted L. Ritter , 74th 
Cong., 2d sess., Sen. Doc. No. 200, p. 655. 

21 U.S. Const, art. I, sec. 9, cl. 3. 

22 Id. art. III. sec. 3. 

23 Id. art. I, sec. 3. cl. 7. 

24 Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions , 39 
Fordham L. Rev. 1, 6 (1970). 

25 U.S. Const, art. I, sec. 3, cl. 6. 

20 Id. art. II, sec. 4. 

27 Id. art. II, sec. 4. The power of either House of Congress to expel a Member by a two- 
thirds vote, by contrast, contains no such limiting statement of grounds. Id. art. I, sec. 5, 
cl. 2. 


37-777 0 - 74 - 24 



368 


amendment, to adopt in toto the British grounds for impeachment. 
Having carefully narrowed the definition of treason, for example, they 
could scarcely have intended that British treason precedents would 
guide ours. 

c. American impeachment practice 

The impeachment of President Andrew Johnson is the most impor- 
tant precedent for a consideration of what constitutes grounds for 
impeachment of a President, even if it has been historically regarded 
(and probably fairly so) as an excessively partisan exercise of the 
impeachment power. 

The Johnson impeachment was the product of a fundamental and 
bitter split between the President and the Congress as to Reconstruc- 
tion policy in the Southern states following the Civil War. Johnson’s 
vetoes of legislation, his use of pardons, and his choice of appointees 
in the South all made it impossible for the Reconstruction Acts to be 
enforced in the manner which Congress not only desired, but thought 
urgently necessary. 

On March 7, 1867, the House referred to the Judiciary Committee a 
resolution authorizing it 

to inquire into the official conduct of Andrew Johnson . . . and to report to this 
House whether, in their opinion, the said Andrew Johnson, while in said office, 
has been guilty of acts which were designed or calculated to overthrow or cor- 
rupt the government of the United States . . . ; and whether the said Andrew 
Johnson has been guilty of any act, or has conspired with others to do acts, 
which, in contemplation of the Constitution, are high crimes and misdemeanors, 
requiring the interposition of the constitutional powers of this House . 28 

On November 25, 1867, the Committee reported to the full House 
a resolution recommending impeachment, by a vote of 5 to 4/® A 
minority of the Committee, led by Rep. James F. Wilson of Iowa, 
took the position that there could be no impeachment because the Presi- 
dent had committed no crime : 

In approaching a conclusion, we do not fail to recognize two stand-points from 
which this case can be viewed — the legal and the political. 

. . . Judge him politically, we must condemn him. But the day of political 
impeachments would be a sad one for this country. Political unfitness and inca- 
pacity must be tried at the ballot-box, not in the high court of impeachment. A 
contrary rule might leave to Congress but little time for other business than the 
trial of impeachments. 

. . . [C] rimes and misdemeanors are now demanding our attention. Do these, 
within the meaning of the Constitution, appear? Rest the case upon political 
offenses, and we are prepared to pronounce against the President, for such offenses 
are numerous and grave . . . [yet] we still affirm that the conclusion awhich 
we have arrived is correct . 30 

The resolution recommending impeachment was debated in the 
House on December 5 and 6, 1867, Rep. George S. Boutwell of Mas- 
sachusetts speaking for the Committee majority in favor of impeach- 
ment, and Rep. Wilson speaking in the negative. Aside from char- 
acterization of undisputed facts discovered by the Committee, the only 
point debated was whether the commission of a crime was an essential 
element of impeachable conduct by the President. Rep. Boutwell began 
by saying, “If the theory of the law submitted by the minority of the 


28 H. R. Rep. No. 7. 40th Cong., 1st Seas., p. 1 (emphasis added). 

29 Id., at 59. 

30 Id., at 105. 



369 


committee be in the judgment of this House a true theory, then the 
majority have no case whatsoever.” 31 “The country was disappointed, 
no doubt, in the report of the committee,” he continued, “and very 
likely this House participated in the disappointment, that there was no 
specific, heinous, novel offense charged upon and proved against the 
President of the United States.” 32 And again, “It may not be possible, 
by specific charge, to arraign him for this great crime, but is he there- 
fore to escape?” 33 

The House of Representatives answered this question the next day, 
when the majority resolution recommending, impeachment was de- 
feated by a vote of 57 to 108, 34 The issue of impeachment was thus laid 
to rest for the time being. 

Earlier in 1867, the Congress had passed the Tenure- of- Office Act, 35 
which took away the President’s authority to remove members of his 
own Cabinet, and provided that violation of the Act should be pun- 
ishable by imprisonment of up to five years and a fine of up to ten thou- 
sand dollars and “shall be deemed a high misdemeanor” 36 — fair 
notice that Congress would consider violation of the statute an im- 
peachable, as well as a criminal, offense. It was generally known that 
Johnson’s policy toward Reconstruction was not shared by his Secre- 
tary of War, Edwin M. Stanton. Although Johnson believed the 
Tenure-of-Office Act to be unconstitutional, he had not infringed its 
provisions at the time the 1867 impeachment attempt against him 
failed by such a decisive margin. 

Two and a half months later, however, Johnson removed Stanton 
from office, in apparent disregard of the Tenure-of-Office Act. 37 The 
response of Congress was immediate: Johnson was impeached three 
days later, on February 24, 1868, by a vote of 128 to 47 — an even greater 
margin than that by which the first impeachment vote had failed. 

The reversal is a dramatic demonstration that the House of Repre- 
sentatives believed it had to find the President guilty of a crime be- 
fore impeaching him. The nine articles of impeachment which were 
adopted against Johnson, on March 2, 1868, all related to his removal 
of Secretary Stanton, allegedly in deliberate violation of the Tenure- 
of-Office Act, the Constitution, and certain other related statutes. The 
vote had failed less than three months before ; and except for Stanton’s 
removal and related matters, nothing in the new Articles charged 
Johnson with any act committed subsequent to the previous vote. 38 

The only other case of impeachment of an officer of the executive 
branch is that of Secretary of War William W. Belknap in 1876. All 
five articles alleged that Belknap “corruptly” accepted and received 
considerable sums of money in exchange for exercising his authority to 


31 Cong. Globe, 40th Cong., 2d Sess., Appendix, p. 55. 

* 2 Id, at 60. 

33 Id., at 61. 

34 Id., at 68. 

35 Act of March 2, 1867, 14 Stat. L., p. 430. 

36 Id, sec. 6 ; U.S. Rev. Stat. (1878), p. 315. 

37 There was some question whether Stanton was actually covered by the Tenure-of- 
Office Act, but this technical issue did not receive thorough consideration at the time. 

38 The House later added a Tenth Article, charging Johnson with making an inflamatory 
speech impugning the authority of Congress. However, since that speech had been made 
on August 18, 1866, if the House had thought its delivery to have been an impeachable 
offense, it would have been at liberty to impeach the President on that ground when it 
voted in December of 1867. 

The Tenth Article received the lowest margin of House approval of any of the Articles. 
Cong. Globe , 40th Cong., 2d Sess. 1641. The Senate never voted on it. 



370 


appoint a certain person as a military post trader. 39 The facts alleged 
would have sufficed to constitute the crime of bribery. Belknap re- 
signed before the adoption of the Articles and was subsequently 
indicted for the conduct alleged. 

It may be acknowledged that in the impeachment of federal judges, 
as opposed to executive officers, the actual commission of a crime does 
not appear always to have been thought essential. However, the debates 
in the House 40 and opinions filed by Senators 41 have made it clear 
that in the impeachments of federal judges, Congress has placed great 
reliance upon the “good behavior” clause. The distinction between offi- 
cers tenured during good behavior and elected officers, for purposes of 
grounds for impeachment, w T as stressed by Rufus King at the Constitu- 
tional Convention of 1787. 42 A judge’s impeachment or conviction rest- 
ing upon “general misbehavior,” 43 in whatever degree, cannot be an 
appropriate guide for the impeachment or conviction of an elected 
officer serving for a fixed term. 

The impeachments of federal judges are also different from the case 
of a President for other reasons: (1) Some of the President’s duties, 
e.g n as chief of a political party, are sufficiently dissimilar to those of 
the judiciary that conduct perfectly appropriate for him, such as 
making a partisan political speech, would be grossly improper for a 
judge. An officer charged with the continual adjudication of disputes 
labors under a more stringent injunction against the appearance of 
partisanship than an officer directly charged with the formulation and 
negotiation of public policy in the political arena — a fact reflected in 
the adoption of Canons of Judicial Ethics. (2) The phrase “and all 
civil Officers” was not added until after the debates on the impeach- 
ment clause had taken place. The words “high crimes and misde- 
meanors” were added while the Framers were debating a clause con- 
cerned exclusively with the impeachment of the President. There was 
no discussion during the Convention as to what would constitute 
impeachable conduct for judges. (3) Finally, the removal of a Presi- 
dent from office would obviously have a far greater impact upon the 
equilibrium of our system of government than the removal of a single 
federal judge. 

d . The need for a standard : criminal intent 

When the Framers included the power to impeach the President in 
our Constitution, they desired to “provide some mode that will not 
make him dependent on the Legislature.” 44 To this end, they withheld 


30 15 Cong. Rec. 2160 (1876). Commenting upon the possibility that a certain investiga- 
tion might have been directed toward impeachment of an executive officer, the United 
States Supreme Court stated in Kilhourn v. Thompson , 103 U.S. 168, 193 (1881), “[T]he 
absence or any words implying suspicion of criminality repel the idea of such purpose, 
for the Secretary could only be impeached for ‘high crimes and misdemeanors.’ ” 

40 g ee> remarks of Rep. Sumners, 76 Cong. Rec. 4924 (Louderback case ; “good 

behavior” tenure expressly contrasted with, fixed term of President). 

41 See, e.g., Proceedings of the Senate in the Trial of Impeachment of Harold Louder - 
hack, 73rd Cong., 1st Sess., pp.837 (opinion of Senator Bailey), 841 (opinion of Senator 

T ^3? a Farra n d 67. It was the more necessary to establish some system for the trial of 
“bad behavior” in judges, because the Framers had rejected the English system of removal 
of judges by address, provided by the Act of Settlement (1700), wherehy the King could 
remove a judge upon a formal request by both Houses of Parliament. 

43 The charges upon which Judge Ritter was convicted in the Senate were characterized 
by the Chair, in overruling a point of order, as “general misbehavior.” Proceedings of the 
Senate in the Trial of Impeachment of Halsted L. Ritter , 74th Cong., 2d Sess., Doc. No. 200, 
at p. 638. 

44 2 Farrand 69 (remarks of Gouverneur Morris.) 



371 


from the Congress many of the powers enjoyed by Parliament in Eng- 
land ; and they defined the grounds for impeachment in their written 
Constitution. 45 It is hardly conceivable that the Framers wished the 
new Congress to adopt as a starting point the record of all the ex- 
cesses to which desperate struggles for power had driven Parliament, 
or to use the impeachment power freely whenever Congress might 
deem it desirable. The whole tenor of the Framers’ discussions, the 
whole purpose of their many careful departures from English im- 
peachment practice, was in the direction of limits and of standards. 46 
An impeachment power exercised without extrinsic and objective 
standards would be tantamount to the use of bills of attainder and ex 
post facto laws, which are expressly forbidden by the Constitution 
and are contrary to the American spirit of justice. 

It is beyond argument that a violation of the President’s oath or 
a violation of his duty to take care that the laws be faithfully executed, 
must be impeachable conduct or there would be no means of enforcing 
the Constitution. However, this elementary proposition is inadequate 
to define the impeachment power. It remains to determine what kind of 
conduct constitutes a violation of the oath or the duty. Furthermore, 
reliance on the summary phrase, “violation of the Constitution,” would 
not ahvays be appropriate as a standard, because actions constituting 
an apparent violation of one provision of the Constitution may be 
justified or even required by other provisions of the Constitution. 

There are types of misconduct by public officials — for example, 
ineptitude, or unintentional or “technical” violations of rules or stat- 
utes, or “maladministration” — which would not be criminal ; nor could 
they be made criminal, consonant with the Constitution, because the 
element of criminal intent or mens rea would be lacking. Without a 
requirement of criminal acts or at least criminal intent, Congress 
would be free to impeach these officials. The loss of this freedom should 
not be mourned; such a use of the impeachment power was never in- 
tended by the Framers, is not supported by the language of our Con- 
stitution, and, if history is to guide us, would be seriously unwise as 
well. 

As Alexander Simpson stated in his Treatise on Federal Impeach- 
ments (1916) : 

The Senate must find an intent to do wrong. It is, of course, admitted that a 
party will be presumed to intend the natural and necessary results of his volun- 
tary acts, but that is a presumption only, and it is not always inferable from 
the act done. So ancient is this principle, and so universal is its application, 
that it has long since ripened into the maxim, Actus non facit ream, [nisi] mens 
sit rea , and has come to be regarded as one of the fundamental legal principles 
of our system of jurisprudence, (p. 29). 

The point w r as thus stated by James Iredell in the North Carolina 
ratifying convention : “I beg leave to observe that, when any man is 
impeached, it must be for an error of the heart, and not of the head. 

45 See above, p. 367. 

M A thoughtful historian has assessed the Chase impeachment as follows : “Its gravest 
aspect lay in the theory which the Republican leaders in the House had adopted, that im- 
peachment was not a criminal proceeding but only a method of removal, the ground for 
which need not be a crime or misdemeanor as those terms were commonly understood.” 

1 Charles Warren. The Supreme Court in United States History , 293 (1922). 

It has also been argued that impeachment of federal judges has been used as a partisan 
weapon in more recent cases. Ten Broek, Partisan Politics and Federal Judgeship Im- 
peachments Since 1903, 23 Minn. L. Rev. 185 (1939) ; Thompson and Pollitt, Impeach- 
ment of Federal Judges: An Historical Overview , 49 N. Car. L. Rev. 37 (1970). 



372 


God forbid that a man, in any country in the Avorld, should be liable 
to be punished for want of judgment. This is not the case here. 47 

C. The evidence before the Committee on the Judicially 

On August 5, 1974, the President released to the Committee and to 
the public the transcripts of three conversations between himself and 
H. R. Haldeman on June 23, 1972. Suffice it to say that these trans- 
cripts, together with the circumstances of their belated disclosure, fore- 
closed further debate with respect to the sufficiency of proof of the 
charges embodied in proposed Article I and led inevitably to the Presi- 
dent’s resignation three days later. 

In the wake of these sudden and decisive events it may seem academic 
to discuss the character of the evidence which, prior to August 5, 1974, 
had been adduced in support of the allegations against the President. 
We are nevertheless constrained to make some general observations 
about that- evidence, for two reasons. First, the disclosure of the June 
23, 1972 transcripts, though dispositive of the case under proposed 
Article I, did not substantially affect the nature of the evidence in sup- 
port of proposed Article II. Second, the fact that this disclosure cured 
the evidentiary defects earlier associated with proposed Article I 
must not be allowed to obscure the fact that a majority of the Mem- 
bers of the Committee had previously, and in our view wrongly, voted 
to recommend to the House the adoption of that Article on the basis 
of information then at their disposal. 

1. RELIANCE ON HEARSAY EVIDENCE 

The “evidence” relied on in the committee report is based essen- 
tially on the Summary of Information prepared by the majority staff. 
The facts and inferences contained in this one-sided document were 
drawn selectively from Statements of Information also prepared by 
the inquiry staff. The Statements of Information comprise a compila- 
tion of documentary materials already produced by other proceed- 
ings and investigations, for the impeachment inquiry staff initiated 
surprisingly little investigative work of its own. The source most fre- 
quentty cited in the Statements of Information is the record of the 
1973 proceedings of the Senate Select Committee on Presidential Cam- 
paign Activities. 

The testimony before that Committee by John Dean, H. R. Halde- 
man, John Ehrlichman, and John Mitchell, was not limited to the 
actions of the persons testifying, but concerned statements made to 
them by others, motives supposed by them to have been shared by 
others, assumptions regarding the purposes of others, opinions of the 
guilt or innocence, truthfulness or perjury, of others. The witnesses 
before the Senate Select Committee were not always in agreement as 
to what had happened. 

In the face of the sharply conflicting testimony and hotly contested 
issues of fact, the Committee’s staff, unfortunately in our view, relied 
upon the printed record of proceedings held in another forum, for 
another purpose. The Committee staff was not able to interview H. R. 


47 4 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal 
Constitution 125-126. 



373 


Haldeman, nor did he give testimony before this Committee. The Com- 
mittee staff was not able to interview John Ehrlichman, nor did he 
give testimony before this Committee. Despite a public invitation to 
do so, the Chairman and Ranking Minority Member of the Committee 
did not interview the President of the United States under oath, nor, 
despite a public invitation to do so, did the Committee submit written 
interrogatories to the President to be answered under oath. The staff 
did, of course, interview a number of witnesses, such as John Dean, 
and nine of them gave testimony before this Committee. 

Much has been made of the voluminousness of the “evidence” which 
was accumulated in support of impeachment, and upon which the ma- 
jority of the Members of the Committee has relied in reporting out 
three proposed Articles of Impeachment. However, a fair examination 
of the character of that “evidence” reveals that it is comprised of layer 
upon layer of hearsay. We venture to say that ninety per cent of the 
“evidence” against the President would have been inadmissible in any 
court of law in the United States. We do not regard this as a legal 
quibble. Multiple hearsay evidence is inadmissible in our system of 
justice, not for some arcane and technical reason, but because it is con- 
sidered unreliable. 

Hearsay evidence is not subject to the test of cross-examination — 
described by the preeminent American scholar of the law of evidence 
as “beyond any doubt the greatest legal engine ever invented for the 
discovery of truth.” 48 Our courts have been particularly sensitive to 
government proceedings which affect an individual’s employment, and 
have required that an individual be afforded an opportunity to cross- 
examine his accusers before such governmental action can be taken. In 
Greene v. McElroy , 360 U.S. 474 (1959), for example, the United 
States Supreme Court held that the Government could not revoke an 
individual’s security clearance on the basis of written records of testi- 
mony and reports by persons whom the individual had no opportunity 
to cross-examine. This result was reached even though the individual 
had been able to take several appeals from the action complained of. 

In Greene v. McElroy the Court explained the basis of its holding 
as follows : 

Certain principles have remained relatively immutable in our jurisprudence. 
One of these is that where governmental action seriously injures an individual, 
and the reasonableness of the .action depends on fact findings, the evidence used 
to prove the Government’s case must be disclosed to the individual so that he 
has an opportunity to show that it is untrue. While this is important in the case 
of documentary evidence, it is even more important where the evidence consists 
of the testimony of individuals whose memory might be faulty or who, in fact, 
might be perjurers or persons motivated by malice, vindictiveness, intolerance, 
prejudice or jealousy. We have formalized these protections in the requirements 
of confrontation and cross-examination. They have ancient roots. . . . This court 
has been zealous to protect these rights from erosion. It has spoken out not only 
in criminal cases . . . but also in all types of cases where administrative and 
regulatory actions were under scrutiny. (360 U.S. at 496-97) 

It might be argued that the rights of confrontation and cross-examina- 
tion have less vitality in an impeachment proceeding than in other 


48 5 Wigmore. Evidence^ § 1367. Dean Wigmore further states : 

“For two centuries past, the policy of the Anglo-American system of Evidence has been 
to regard the necessity of testing by cross-examination as a vital feature of the law. The 
belief that no safe-guard for testing the value of human statements is comparable to that 
furnished by cross-examination, and the conviction that no statement (unless by special 
exception) should be used as testimony until it has been probed and submitted by that 
test, has found increasing strength in lengthening experience.” (Id.) 



374 


contexts, because the occupancy of public office is not an individual 
right of the respondent. But this is precisely the reason why the Com- 
mittee’s reliance on hearsay evidence, untested by cross-examination, 
is so disturbing. For it is not the personal rights of the President which 
were at stake, but rather the collective rights of the electorate which 
chose him to serve as the Chief Executive for a fixed term of four years. 

To emphasize the importance of cross-examination and the deficien- 
cies of hearsay evidence is not to say that the Committee should have 
declined to take cognizance of any evidence which could not meet the 
formal tests of admissibility. Surely it was appropriate for the im- 
peachment inquiry to conduct a wide-ranging search for all informa- 
tion relevant to allegations of presidential misconduct. In this respect 
the Committee may be thought to resemble a grand jury, whose in- 
vestigation is not circumscribed by narrow rules of admissibility. 
However, in fulfilling its role in the impeachment process the Com- 
mittee should equally have been influenced by the House’s potential 
prosecutorial function. In our view it would have been irresponsible 
to recommend to the House any Article of Impeachment grounded 
upon charges which could not be proved at trial, to whatever standard 
of proof and under whatever rules of evidence the Senate might rea- 
sonably be expected to apply. Because of the Committee’s excessive 
reliance on hearsay and multiple hearsay evidence, we were obliged 
to conclude — like the subcommittee which investigated the conduct 
of Judge Emory Speer in 1914 — “that the competent legal evidence 
at hand is not sufficient to procure a conviction at the hand of the 
Senate.” 49 

Furthermore, even if liberal latitude were properly accorded by 
the House in considering certain types of inadmissible evidence, it 
does not follow that any other procedural or evidentiary rule need 
be relaxed. As the United States Supreme Court has stated, in de- 
scribing the function and procedures of an administrative agency : 

The Commission is an administrative body and, even where it acts in a 
quasi-judicial capacity, is not limited by the strict rules, as to the admissi- 
bility of evidence, which prevail in suits between private parties. . . . But the 
more liberal practice in admitting testimony, the more imperative the obligations 
to preserve the essential rules ... by which rights are asserted or defended. . . . 
All parties must be fully apprised of the evidence submitted or to be considered, 
and must be given opportunity to cross-examine witnesses, to inspect documents 
and to offer evidence in explanation or rebuttal. In no other way can a party 
maintain its rights or make its defense. In no other way can it test the sufficiency 
of the facts to support the findings . 60 

2. RELIANCE OX ADVERSE INFERENCES 

Again putting aside the President’s disclosures on August 5, 1974, 
we would draw attention to a second defect of the approach which the 
majority of the Committee has taken with respect to the evidence. 
Seemingly recognizing that even if every fact asserted in hearsay 
evidence were taken to be true, the case against the President might 
still have failed, the majority relied further upon inferences from 
inadmissible evidence, and upon the legal doctrine known as the “ad- 
verse inference” rule. 


49 VI Cannon Precedents of the House of Representatives § 527. 

50 Interstate Commerce Commission v. Louisville <0 Nashville R. Co.> 227 U.S. 8S, 93 
(1913). 



375 


The drawing of an inference is a process whereby a fact not directly 
established by the evidence is deduced as a logical consequence of 
some other fact, or state of facts, which is directly established by the 
evidence. The process is never mandatory; indeed, the same set of 
facts may give rise to conflicting inferences. However, an inference 
must lie within the range of reasonable probability, and some courts 
have held that it is the duty of the judge “to withdraw the case from 
the jury when the necessary inference is so tenuous that it rests merely 
upon speculation and conjecture.” 51 

It has long been accepted in both civil and criminal cases that an 
inference may be drawn from a party’s withholding or destruction of 
relevant evidence. The inference which may be drawn is that the un- 
available evidence, if produced, would be adverse to the party who has 
not produced it. This rule is stated by Wigmore as follows : 

The opponent’s spoliation (destruction) or suppressions of evidential facts . . . 
and particularly of a document . . . has always been conceded to be a circum- 
stance against him, and in the case of a document, to be some evidence that its 
contents are 'as alleged by the first party. But that a rule of presumption can be 
predicated is doubtful . 5 ' 2 

The operation of the adverse inference rule may be illustrated by the 
following language from a Supreme Court antitrust decision : 

The failure under the circumstances to call as witness those officers who did 
have authority to act for the distributors and w T ho were in a position to know 
whether they had acted in pursuance of agreement is itself persuasive that their 
testimony, if given, would have been unfavorable to appellants.^" 

The operation of the adverse inference rule is subject to several re- 
strictions. First, the party who has the burden of persuasion as to an 
issue cannot avail himself of the inference until he has produced suffi- 
cient evidence to shift the burden of going forward to his opponent . 54 
Second, an adverse inference cannot arise against a person for failing to 
produce evidence which is merely corroborative or cumulative . 55 Third, 
the adverse inference rule cannot be applied where the evidence sought 
is the subject of a privilege 56 or where the party has a constitutional 
right to withhold the evidence . 57 


51 Wratchford v. 8. J. Groves and Sons Co 405 F. 2cl 1061, 1066 (4th Cir. 1969). 

52 9 Wigmore, Evidence (3d ed.) § 2524. 

53 Interstate Circuit. , Inc. v. United States , 306 U.S. 208. 225-26 (1939). 

54 Vanity Fair Paper Mills, Inc. v. Federal Trade Commission , 311 F. 2d 480 (2d Cir. 
1962). 

65 Gafford v. Trans-Te&as Airways, 299 F. 2d 60 (5th Cir. 1962). 

56 2 Wigmore, Evidence (3d ed), § 291. 

In Griffin v. California , 380 U.S. 609 (1965), a case involving the privilege against self- 
incrimination, the Supreme Court held that it was constitutionally forbidden for the 
prosecution to make any comment upon the failure of a defendant to take the stand, or 
for a judge to instruct a jury that such failure constitutes evidence of guilt. 

The proposed Federal Rules of Evidence provide as follows : 

Rule 513 

COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE : INSTRUCTION 

“(a) Comment on inference not permitted. The claim of a privilege, whether in the 
present proceeding or upon a prior occasion, is not a proper subject of comment by judge 
or counsel. No inference may be drawn therefrom. 

“. . . (c) Jury instruction. Upon reguest, any party against whom the jury might 
draw an adverse inference from a claim of privilege is entitled to an instruction that no 
inference may be drawn therefrom.” 

The Advisory Committee's Note to Rule 513 states, 

“Destruction of the privilege by innuendo can and should be avoided. Tallo v. United 
States, 344 F. 2d 467 (1st Cir. 1965) ; United States v. Tomaiolo, 249 F. 2d 683 (2d Cir. 
1957) ; San Fratello v. United States, 343 F. 2d 711 (5th Cir. 1965) ; Courtney v. United 
States, 390 F. 2d 521 (9th Cir. 1968) ” 

56 F.R.D. 183, 260-61 (1973). The proposed Rules are not yet effective, but Rule 513 
is intended to be declarative of existing law. 

67 International Union ( U.A.W .) v. National Labor Relations Board, 459 F. 2d 1329 
(D.C. Cir. 1972). 



376 


As the statement of the adverse inference rule by Dean Wigmore 
indicates, the most familiar application of the rule is in a situation 
where one party to a suit demands a specific document from another 
party, and the other party refuses to produce it. F requently, that docu- 
ment will have operative legal significance — e.g., in a contract dispute, 
or, in a criminal case, where the document sought might constitute a 
means or instrumentality of crime (written threat, attempt to bribe, 
etc.). 

In the present case, the Committee has issued subpoenas for tapes, 
transcripts, diotabelts, memoranda, or other writings or materials re- 
lating to 147 presidential conversations, as well as for the President’s 
daily diaries for an aggregate period of many months, and for various 
other materials and documents. It is true that these subpoenas have 
been issued only after the Committee’s staff submitted to the Commit- 
tee memoranda justifying each set of requests, in terms of their ne- 
cessity to the Committee’s inquiry. But in most cases, what these justi- 
fications tend to show is that given the chronology of facts known to 
the Committee, the President was, at a certain point in time, in a posi- 
tion where he could receive certain information, or have discussions 
with his aides on certain topics. In other words, in many cases the 
Committee lacks any independent evidence as to the content of the 
conversations and other materials subpoenaed. 

Despite this tenuous basis for the operation of the adverse infer- 
ence rule, on May 30, 1974, the Committee informed the President by 
letter: 

The Committee on the Judiciary regards your refusal to comply with its law- 
ful subpoenas as a grave matter . . . Committee members will be free to consider 
whether your refusals warrant the drawing of adverse inferences concerning 
the substance of the materials. 

Upon examination, however, this portentous statement does little to 
advance the analysis of the evidence. For even if it were proper to 
apply the adverse inference rule here, what inferences could plausibly 
be drawn? The inferences presumably would suggest that the mate- 
rial withheld was in some way damaging to the President; but there 
is no way of knowing why the material would be damaging. The 
President might have been reluctant to disclose conversations in 
which he had used abusive or indelicate language ; or had engaged in 
frank discussions of his political opposition, or of his personal and 
family life ; or had discussed campaign strategy and revealed an in- 
terest in raising a great deal of money for his re-election campaign. 
In short, there are a myriad of reasons why materials withheld from 
the Committee might have been embarrassing or harmful to the Pres- 
ident if disclosed, without in any way constituting evidence of grounds 
for impeachment. In the absence of extrinsic evidence as to the partic- 
ular content of a given presidential conversation or memorandum, 
the application of the adverse inference rule would be a futile exer- 
cise. 

Finally, the justification for applying the adverse inference rule in 
the first instance is severely undercut, if not eliminated, by the presi- 
dential assertion of executive privilege. The President claimed that 
disclosure of the subpoenaed materials would destroy the confiden- 
tiality of the executive decision-making process — a reasonable and 



377 


presumptively valid argument. The Committee might have challenged 
this argument in court, but instead voted 32- to 6 in late May 1974, not 
to seek the assistance of the federal judiciary in enforcing its sub- 
poenas. The Committee also consistently declined to seek an “adjudi- 
cation” of the validity of its demands upon the President for evidence, 
or potential evidence, by resort to formal contempt proceedings, 
whereby the President would have been afforded the opportunity to 
show cause before the full House why his invocation of executive 
privilege rendered non-contemptuous his failure to p r °ciuce sub- 
poenaed materials. 

Having thus declined to take some action better calculated to secure 
the production of the evidence sought, if the Committee was entitled 
to it, the majority of the Committee can scarcely be heard to argue 
that the evidence is superfluous because its non-production gives rise 
to adverse inferences as to its contents. 

D. Standard of Proof 

The foregoing discussion of the character of the evidence which was 
adduced in support of impeachment would not be complete without 
reference to the standard of proof which that evidence was expected 
to satisfy 

In this context a threshold distinction must be drawn between the 
sufficiency of the allegation and the sufficiency of the proof. In decid- 
ing whether to vote for or against an article of impeachment, each 
Member of the Committee was obliged to make two separate judg- 
ments. First, it was necessary to consider whether a particular offense 
charged to the President, if proved, would constitute a ground for 
impeachment and removal. For example, certain Members intimated 
in debate that even if it were established to a certainty that the Presi- 
dent had been guilty of tax fraud, this offense was too peripheral to 
the performance of his official duties to warrant removal from office. 
Second, where the charge was deemed sufficiently serious to justify 
removal, it was necessary to judge whether the evidence was com- 
pelling enough to “prove” the case. Prior to the disclosure of the June 
23, 1972 conversations between the President and H.R. Haldeman, for 
instance, we believed that the evidence adduced in support of Article 
I did not constitute adequate proof of presidential involvement in the 
Watergate cover-up. 

Neither the House nor the Committee on the Judiciary has ever 
undertaken to fix by rule the appropriate standard of proof for a vote 
of impeachment, nor would w T e advocate such a rule. The question is 
properly left to the discretion of individual Members. The discussion 
which follows is intended only to outline the process of reasoning 
which has persuaded us that the standard of proof must be no less 
rigorous than proof by “clear and convincing evidence.” 

1. STANDARD OF PROOF FOR CONVICTION BY THE SENATE 

Our jurisprudence has developed a number of formulaic phrases 
which comprise a spectrum of the various standards of proof applicable 
in different types of legal proceeding. A Member of the House might 
most easily resolve his dilemma by simply choosing one of these 



standards, basing his judgment on some perception of the impeach- 
ment process. For example, a Member might require a very strict 
standard, such as proof beyond a reasonable doubt, on the ground that 
the drastic step of impeaching a President should not be undertaken 
except on the most compelling proof of misconduct. 

This approach, however, is insensitive to the express terms of the 
Constitution, which provides that “the House of Representatives 
shall have the sole Power of Impeachment” 58 but that “the Senate 
shall have the sole Power to try all Impeachments.” 59 The Members 
of the House might best give effect to this distinction by adopting a 
standard of proof wdiich reflects the reservation of the ultimate deci- 
sion of factual issues to the Senate. In other words, Members would be 
required to make a judgment as to whether the Senate could reasonably 
convict the respondent on the evidence before the House. That judg- 
ment would of course necessitate a prior judgment as to the appro- 
priate standard of proof to be applied in the Senate. 

Because the Senate proceeding is a trial, the inquiry may sensibly 
be narrowed to focus on trial-type standards of proof. In general, the 
courts recognize three types of burden of persuasion which musi be 
borne by litigants in civil actions and in criminal prosecutions . 60 In 
most civil actions the party who has the burden of proof must adduce 
evidence which will sustain his claim by a “preponderance of the evi- 
dence.” In a certain limited class of civil actions the facts must be 
proved by “clear and convincing evidence,” which is a more exacting 
standard* of proof than is “preponderance of the evidence.” In crimi- 
nal prosecutions the burden is on the prosecutor to prove all elements 
of the crime “beyond a reasonable doubt.” These familiar formulas 
are not particularly susceptible to meaningful elaboration. One com- 
mentator has suggested that the three standards respectively denote 
proof that a fact is probably true; highly probably true; and almost 
certainly true . 61 

The Senate has never promulgated a rule fixing the standard of 
proof for conviction, but the overwhelming weight of opinion from 
past impeachment trials favors the criminal standard of proof beyond 
a reasonable doubt , 62 Similarly, during the pendency of the present 
impeachment inquiry at least three Senators have stated on the record 
that proof of guilt beyond a reasonable doubt would be required . 63 

This view finds strong support in the Constitution, whose provisions 
pertaining to impeachment are couched in the language of the criminal 
law. The respondent is to be “tried,” and the trial of “all Crimes 
except . . . Impeachment” shall be by jury. The offenses cognizable 
in an impeachment trial are “Treason, Bribery, or other high Crimes 


58 U.S. Const., art. I, sec. 2, cl. 5. 

™Id., art. I, sec. 3, cl. 6. 

60 9 Wigmore, Evidence (3d ed. 1940) 


i 2497, 2498 ; McCormick, Evidence (2d ed. 1972) 


§ 339. 

61 McBaine, Burden of Proof: Degrees of Belief , 32 Calif. L. Rev. 244, 246-47 (1944) ; 
cited with approval in McCormick, Evidence (2d ed. 1972) § 339, n. 47. 

62 A typical example is the following excerpt from the memorandum opinion of Senator 
Pittman, filed in protest to the conviction of Judge Ritter in 1936 : 

“The Senate, sitting as a Court, Is required to conduct its proceedings and reach its 
decision in accordance with the customs of our law. In all criminal cases the defendant 
comes into court enjoying the presumption of innocence, which presumption continues 
until he is proven guilty beyond a reasonable doubt.” Proceedings of the United States 
Senate in the Trial of Impeachment of Halsted L. Ritter 642. 

63 See remarks of Senator Biden, 120 Cong. Rec. S5574 (April 10, 1974) ; Senator Stennis, 
id. S5738 (April 11, 1974) ; Senator Ervin, id. S5737 (April 11, 1974). 



379 


and Misdemeanors.” The Senators are asked to vote Guilty or Not 
Guilty on each article of impeachment, and if two-thirds vote Guilty 
the respondent is “convicted.” 

Even if it were admitted that the Senate impeachment proceeding 
is a criminal trial, and that the grounds for impeachment are limited 
to criminal offenses, the argument might still be made that the tradi- 
tional criminal standard of proof should not necessarily apply. Adher- 
ents of this view point out that the requirement of a more exacting 
standard of proof in criminal cases was introduced to mitigate the 
rigors of the criminal code in Eighteenth Century England, where 
nearly all crimes were punishable by death . 64 The use of capital punish- 
ment has virtually disappeared; but though his life is no longer at 
stake, the criminal defendant still stands to be deprived of his liberty. 
The purpose of the rigorous standard of proof in criminal cases is 
to guard against the possibility that an innocent man might be wrong- 
ly convicted and subjected to this severe punitive sanction. By contrast, 
it is argued, the primary purpose of impeachment is not punitive 
but remedial. Since removal from office is not punishment, there is 
no reason to apply the strict criminal standard of proof. 

This argument is refuted by reference to the intentions of the 
Framers, w 7 ho clearly conceived of removal from office as a punish- 
ment . 65 Thus, Mason favored “ punishing the principal” for “great 
crimes”; Franklin thought that the Constitution should provide for 
“the regular punishment of the executive”; Kandolph stated that 
“guilt wherever found ought to be punished” ; and Mason said that 
the executive should be “ punished only by degradation from his office.” 
No one who has witnessed the recent agony and humiliation of Presi- 
dent Nixon can seriously doubt that removal from office is a punish- 
ment . 66 

Because of the fundamental similarity between an impeachment 
trial and an ordinary criminal trial, therefore, the standard of proof 
beyond a reasonable doubt is appropriate in both proceedings. More- 
over, the gravity of an impeachment trial and its potentially drastic 
consequences are additional reasons for requiring a rigorous standard 
of proof. This is especially true in the case of a presidential impeach- 
ment. Unlike a federal judge, an appointed officer who enjoys lifetime 
tenure during good behavior, the President is elected to office for a 
fixed term. The proper remedy for many instances of presidential 
misbehavior is the ballot box. The removal of a President by impeach- 
ment in mid-term, however, should not be too easy of accomplishment, 
for it contravenes the will of the electorate. In providing for a fixed 
four-year term, not subject to interim votes of No Confidence, the 
Framers indicated their preference for stability in the executive. That 


e4 May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 Am 
L. Rev. 642, 656 (1876). 

® 5 , s ,ee pp ' 7 " 12 ’ supra * Article Section 3, Clause 7 of the Constitution, which provides 
that the party convicted at an impeachment trial “shall nevertheless be liable and subject 
to Indictment, Trial. Judgment and Punishment,” is often cited as evidence that the 
framers meant to distinguish removal from punishment. But the clause may also fairlv 
be read to mean that after the respondent has been punished by removal from office, he 
su hject to the additional punishment provided by the criminal laws. 

-c, R^resentative Weaver’s remarks during the debate over the impeachment of Judge 
English in 1926 have a poignant application to the present case : 

^ntlemen. It is true the punishment does not go to his life or his liberty or his 
property It does not touch those things. It does not reach the physical man. but, gentlemen. 
(1926) t0 the destructlon of his soul > the ver y essence of the man . . 67 Cong. Rec. 6706 



380 


stability should not be jeopardized except on the strongest possible 
proof of presidential wrongdoing. 

2 . standard of proof for impeachment by the house 

In the light of the foregoing considerations, the temptation is great 
to insist that the standard of proof for impeachment by the House 
should also be proof beyond a reasonable doubt. It might be objected 
that if the House and the Senate were to adopt the same standard, the 
trial in the Senate would lose all of its significance since the House 
would have already adjudicated the case. This conclusion does not 
necessarily follow, however, because conviction in the Senate requires 
a two-thirds majority as against the simple majority of the House 
required for impeachment. Furthermore, as a logical proposition there 
is no intrinsic reason why the respondent should not be separately tried 
in each House and removed from office only after an effective vote in 
both — a procedure which would reflect the equal importance of the 
two Houses as in the exercise of their legislative functions. 

The principal defect in applying the criminal standard of proof in 
both Houses of Congress is that this approach is not contemplated in 
the Constitution, which gives to the Senate the sole power to try all 
impeachments. If the vote on impeachment in the House, required 
proof beyond a reasonable doubt, the House would effectively become 
the trier of fact. Instead, the Constitution intends that the House 
should frame the accusation but without adjudicating the ultimate 
guilt or innocence of the respondent. 

The proper function of the House in an impeachment inquiry has 
often been described as analogous to the function of the grand jury. 
Both conduct an investigation which is not limited to evidence admis- 
sible at trial. Both are charged with determining whether that evi- 
dence warrants binding the case over for trial by another body, in 
which the standard of proof beyond a reasonable doubt is applied. In 
both cases the operative question is whether the trier of fact could 
reasonably convict the defendant. 

The House differs from a grand jury, however, in that after return- 
ing the “indictment” it has an ongoing responsibility to bring the case 
to trial. In this respect the House more nearly resembles a public 
prosecutor. Like the grand jury, the prosecutor must also ask whether 
the trier of fact could reasonably convict. But his decision of whether 
or not to prosecute is typically founded on a greater mass of evidence 
than was available to the grand jury ; and his perspective may involve 
an analysis of certain pragmatic factors, such as the availability or 
admissibility at trial of key testimony or evidence, with which the 
grand jury need not concern itself. These pragmatic factors must also 
affect the judgment of the House whether or not to impeach, particu- 
larly in a case like this one where so much of the evidence is multiple 
hearsay which might be ruled inadmissible at the Senate trial. 

In order to justify bringing a case to trial, the prosecutor must per- 
sonally believe in the guilt of the accused. It is not necessary, however, 
that he personally believe the accused to be guilty -beyond a reasonable 
doubt ; to impose such a requirement would in effect preempt the role 
of the trier of fact. Bather, the prosecutor should allow for the pos- 



381 


sibility that the trier of fact may find the evidence to be even more 
convincing than he does. Conversely, the prosecutor’s mere belief that 
the accused is more likely guilty than not (i.e., proof by a preponder- 
ance of the evidence), would not be a sufficient basis on which to bring 
the case to trial. On balance, it appears that prosecution is warranted 
if the prosecutor believes that the guilt of the accused is demonstrated 
by clear and convincing evidence. 

Without unduly overemphasizing the aptness of the analogy to a 
public prosecutor, we therefore take the position that a vote of im- 
peachment is justified if, and only if, the charges embodied in the 
articles are proved by clear and convincing evidence. Our confidence 
in this proposition is enhanced by the fact that both the President’s 
Special Counsel and the Special Counsel to the Committee independ- 
ently reached the same conclusion. 



Article I 


INTRODUCTION 

On February 25, 1974, the Federal grand jury that investigated the 
circumstances surrounding the June, 1972 unlawful entry into the 
Democratic National Committee headquarters in the Watergate Office 
Building voted to name Richard M. Nixon, President of the United 
States, as an unindicted member of the conspiracy to defraud the 
United States and to obstruct justice charged in Count One of the in- 
dictment that it subsequently returned in the case of United, States v. 
Mitchell et al ., Cr. No. 74-110, United States District Court for the 
District of Columbia. 1 

Simultaneously with the issuance of that indictment, on March 1, 
1974 the grand jury filed with the court a Report and Recommendation 
requesting that certain evidentiary materials bearing upon the Presi- 
dent’s involvement in the alleged conspiracy which the grand jury had 
accumulated in the course of its investigation be forwarded to this 
Committee for such consideration as we might deem proper. On 
March 26, 1974, by order of Chief Judge John J. Sirica, the Report 
and Recommendation and accompanying evidentiary materials were 
delivered to the Committee in accordance with the grand jury’s 
request. 

We view proposed Article I as the analogue of Count One of the 
indictment in United States v. Mitchell et al ., believing that it sub- 
stantially charges President Nixon with conspiracy to obstruct justice, 
and obstruction of justice, in connection with the official investigation 
of the Watergate offenses. 

We recognize that the majority of the Committee, as well as its 
Special Counsel, apparently do not consider it necessary or appropri- 
ate to charge impeachable offenses in terms of the violation of specific 
Federal criminal statutes, such as Title 18 U. S. C. § 371 (conspiracy), 
§ 1001 (false statements to a government agency) or §§ 1503, 1505 and 
1510 (obstruction of justice). The Special Counsel, indeed, has 
expressly disclaimed viewing the case as one of conspiracy, stating: 
“I don’t believe that it is possible to have a conspiracy involving the 
President of the United States.” (Summary of Information, 10) 

We disagree. To the contrary, we believe the evidence warrants the 
conclusion that the President did conspire with a number of his aides 
and subordinates to delay, impede and obstruct the investigation of 
the Watergate affair by the Department of Justice. The Special Coun- 
sel’s thesis that the President cannot be treated as a co-conspirator 
because “[y]ou don’t have co-equals when you are dealing with the 
President of the United States” (Summary of Information, 11) seems 
to be not so much a proposition of law as a rhetorical device to bridge 


1 See Opinion of the Court in United States v. Nixon, No. 73-1766, Supreme Court of the 
United States, July 24, 1974, reprinted in “Criminal Cases,” 163-64. 

( 382 ) 



383 


a number of gaps in the evidence relating to Presidential knowledge 
or direction of specific acts performed by his subordinates and asso- 
ciates, and thus to magnify Presidential culpability in the cover-up. 

Simply as a matter of sound legal analysis, we think it more con- 
sonant with the Constitutional scheme 2 to determine Presidential 
liability for the acts of his subordinates in accordance with established 
rules of vicarious liability derived from the ordinary criminal law’, 
and to assess the seriousness of Presidential misconduct on the basis 
of the evidence bearing upon his actual knowdedge of, and involvement 
in, particular acts performed in furtherance of the aims of the con- 
spiracy. It is not only of doubtful Constitutionality to resort to 
exotic theories of Presidential accountability for the Watergate cover- 
up in order to arrive at a proper disposition of proposed Article I, but 
on the record before us it is patently unnecessary to do so. 

WATERGATE AND THE PRESIDENT’S “POLICY 5 5 

In the Summary of Information which he presented to the Commit- 
tee before our debate on proposed Articles of Impeachment, the 
Special Counsel dealt with the question of Presidential responsibiliy 
for the two unlawful entries and wiretapping of the Democratic 
National Committee headquarters in a manner which continues to 
disturb us : 

The evidence available to the Committee establishes that oil May 27 and 
June 17, 1972, agents of CRP, acting pursuant to a political intelligence plan 
(which included use of illegal electronic surveillance), authorized in advance 
by John Mitchell, head of CRP, and H. R, Haldeman, the President’s chief of 
staff, broke into the DNC Headquarters at the Watergate for the purpose of 
effecting electronic surveillance ; and that this teas part of the Presidents policy 
of gathering political intelligence to he used as part of his campaign for 
re-election . (Summary of Information, 29 ; emphasis added) 

We consider this to be a careless and unfair characterization of the 
weight of the evidence then before the Committee. The quoted para- 
graph assumes (1) that H.R. Haldeman authorized in advance a 
political intelligence plan that he knew’ contemplated the use of 
illegal electronic surveillance; (2) that he knew that implementation 
of that plan w r ould or reasonably could involve the commission of 
unlawful entries; and (3) that, in approving such planned or fore- 
seeable activities, Haldeman was carrying out the President’s wishes. 
The point is made more explicit elsewhere on the same page of the 
Summary of Information : “It is a fair inference that Haldeman 
w’as implementing the President’s policy with respect to the tactics 
he wanted used in his re-election campaign.” 

This sweeping allegation will not withstand close scrutiny in the 
light of the available evidence. In support of the statement last quoted 
above, the only purported citation of direct evidence that the Presi- 
dent approved of illegal electronic surveillance and burglary as cam- 
paign techniques is as f ollows : 

The President endorsed the belief that in politics everybody bugs everybody else, 
and said that he could understand the desire for electronic surveillance, prior 
to the Democratic Convention. (House Judiciary Committee, “Transcripts of 
Bight Recorded Presidential Conversations,” 4, hereinafter cited as HJCT, ) 

2 See discussion of Article II, Paragraph (4), below. 


37-777 0 - 74-25 



384 


However, if one examines the material on page 4 of the Committee’s 
publication “Transcripts of Eight Recorded Presidential Conversa- 
tions,” upon which the Special Counsel relies to support his allegation 
that the President evidenced, after the fact, approval of the kind of 
activities represented by the Watergate offenses, he quickly observes 
how very misplaced that reliance was. 

The pertinent Presidential remarks were made during the course 
of a discussion among Dean, Haldeman and the President on Septem- 
ber 15, 1972 concerning the apparent finding of a second “bug” in the 
offices of the Democratic National Committee. The statements by 
which the President supposedly “endorsed the belief that in politics 
everybody bugs everybody else” consist of the President’s quoting Sen- 
ator Barry Goldwater as saying that “everybody bugs everybody else” 
and the President himself responding : 

The President. Well, it’s true. It happens to be totally true. 

Dean. [Unintelligible.] 

The President. We were bugged in ’68 on the plane and bugged in ’62, uh, even 
running for Governor. God damnedest thing you ever saw. (HJCT, 4) 

Thus, the President supported Senator Goldwater’s view of the 
prevalence of “bugging” as a campaign practice by reference to in- 
stances in which he felt that Ad, Nixon, had been “bugged” by his polit- 
ical opponents. There was no reference to the President ever having 
approved the electronic surveillance of his own political opponents, nor 
was there any reference by any participant in the conversation to the 
commission of unlawful entries by partisans of any political 
persuasion. 

In contrast to the “inference” — which we feel should more accurately 
be labelled as “suspicion” — that the President’s wishes with regard to 
electronic surveillance were implemented by his close aides and asso- 
ciates, such as Haldeman and Mitchell, we cite our colleagues to the 
recently released transcripts of the earliest of three conversations be- 
tween the President and Haldeman on June 23, 1972. However damag- 
ing this transcript may have been to the President for other reasons, it 
nevertheless supplies convincing evidence that the Watergate burglars 
were not acting in furtherance of any “policy” adopted by Richard 
Nixon. 

Alone with Haldeman in the Oval Office, nearly a year before the 
existence of the White House taping system was publicly disclosed, 
the President’s motive to speak less than candidly “for the record” 
would seem logically to have been minimal. The incriminating nature 
of what he did say on that occasion should suffice to prove that point. 
Yet in his dialogue with Haldeman, the President appears quite clearly 
to be chagrined and upset with those who “masterminded” — a mala- 
propism ? — the break-ins : 

The President. . . . Well what the hell, did Mitchell know about this? 

Haldeman. I think so. I don’t think he knew the details, but I think he knew. 

The President. He didn’t know how it was going to be handled through — with 
Dahlberg and the Texans and so forth? Well who was the asshole that did? 
Is it Liddy? Is that the fellow? He must be a little nuts? 

Haldeman. He is. 

The President. I mean he just isn’t well screwed on is he? Is that the problem? 

Haldeman. No, but he was under pressure, apparently, to get more information, 
and as he got more pressure, he pushed the people harder to move harder — 

The President. Pressure from Mitchell? 



385 


Haldeman. Apparently. 

The President. Oh, Mitchell, Mitchell was at the point (unintelligible). 

Haldeman. Yeah. (WHT, June 23, 1972, 10 :09^-ll :39 a.m., 6) 

Concededly, the Summary of Information was prepared before the 
release of the transcript from which the foregoing excerpt was taken, 
and we recognize that the view of the Special Counsel and the ma- 
jority of the Committee regarding presidential responsibility for the 
unlawful entries and wiretapping of the Democratic National Com- 
mittee headquarters may well have been modified as a result of this 
new evidence. 

^ candor, however, we believe that the insubstantialitv of the 

Presidential policy” thesis was apparent long before President 
Nixon made his last, fateful disclosure of evidence. 

The President’s unfamiliarity with the various political intelligence 
schemes devised by some of his aides and associates was well illus- 
trated, we think, by his response to Ehrlicliman on April 14, 1973, 
after the latter told him in some detail how Mitchell blamed the 
White House for having originated the “grandfather” of the Water- 
gate break-in plan, “Operation Sandwedge.” The President replied 
simply, “What is Operation Sandwedge?” (WHT 526) 

Evidence supporting the very linchpin of the thesis, that Haldeman 
knew or anticipated that illegal electronic surveillance and burglaries 
would be committed as part of the intelligence gathering program of 
the Committee to Re-elect the President, is sparse. The first evidence 
of Haldeman’s knowledge of the general nature of the “Liddy Plan” 
arises from a conversation which he had with Dean in the spring of 
1972, in which Dean told him essentially what Liddy had proposed to 
Mitchell. On that occasion, Haldeman agreed with Dean that Liddy’s 
elaborate plan for muggings, buggings, prostitutes and the like was 
not necessary and that Dean should have no part of it. (Book I, 66) 
On March 21, 1973, Dean described this conversation to the President : 

The President. Who else was present? Besides you — 

Dean. It was Magruder, Magruder. 

The President. Magruder. 

Dean, uh, Mitchell, Liddy and myself. I came back right after the meeting and 
told Bob, I said, “Bob, we’ve got a growing disaster on our hands if they’re think- 
ing this way,” and I said, “The White House has got to stay out of this and I, 
frankly, am not going to be involved in it.” He said, “I agree John.” And, I 
thought, at that point, the thing was turned off. That’s the last I heard of it, 
when I thought it was turned off, because it was an absurd proposal. 

The President. Yeah. (HJCT, 83) 

The extent of Haldeman’s appreciation of the true nature of Liddy’s 
political intelligence gathering program as it later evolved is also 
uncertain. On March 31, 1972 Gordon Strachan sent Haldeman a “po- 
litical matters memorandum” relaying Magruder’s report that CRP 
then had a “sophisticated political intelligence gathering system.” 
Strachan illustrated the operation of the system with samples of re- 
ports from “Sedan Chain II” which could not fairly put the reader of 
the memorandum on notice that the commission of criminal offenses 
was contemplated by the intelligence-gathering operatives. 3 Further, 
it is not even established that Haldeman read or knew the contents of 


tt 3 “Sedan Chair II” was the code name of Michael McMinoway, who operated as an 
'undercover political intelligence agent for CRP during the 1972 primary season. 



386 


the entire memorandum when he first received it. Three days after 
the arrest of the Watergate burglars, when Strachan reminded Halde- 
man about the March 30th memorandum and showed it to him again, 
Haldeman acknowledged that he had probably read part of it when 
it was first given to him but denied that he had ever read the tab con- 
cerning “Sedan Chair II.” Haldeman then did read the tab and re- 
marked to Strachan, “Maybe I should have been reading these, these 
are quite interesting.” (Book 1, 165) 

Although Strachan prepared a “talking paper” for Haldeman’s 
meeting with Mitchell on April 4, 1972 which included a reference to 
the CRP political intelligence plan, Haldeman neither recalls nor 
denies having discussed the subject with Mitchell on that occasion. Im- 
mediately after the meeting for which the “talking paper” was pre- 
pared, Haldeman and Mitchell both met with the President. The 
White House has furnished the Committee with an edited transcript of 
a tape recording of that conversation, and it reflects no mention of the 
subject of political intelligence whatsoever. 

At several points during their conversation on March 13, 1973 the 
President and Dean speculated about the extent of Haldeman’s ad- 
vance knowledge of the DNC entries or his knowledge of the wire- 
tapping while it was in progress : 

The President. Ultimately, uh, Haldeman, uh, Haldeman’s problem is Chapin, 
isn’t it? 

Dean. Bob’s problem is, is circumstantial. 

The President. What I meant is, looking at the circumstantial. I don’t know 
that [unintelligible]. On top of that, Bob had nothing — didn’t know any of those 
people — like the Hunt’s and all that bunch. Colson did. But, uh, Bob, Bob did 
know Chapin, 

Dean. That’s right. 

The President. Now, what — Now however the hell much Chapin knew I’ll be 
God damned. I don’t know. 

Dean. Well, Chapiu didn’t know anything about the Watergate, and — 

The President. You don’t think so? 

Dean. No. Absolutely not. 

The President. Did Strachan? 

Dean. Yes. 

The President. He knew? 

Dean. Yes. 

The President. About the Watergate? 

Dean. Yes. 

The President. Well, then, Bob knew. He probably told Bob, then. He may not 
have. He may not have. 

Dean. He was, he was judicious in what he, in what he relayed, and, uh, but 
Strachan is as tough as nails. I — 

The President. What’ll he say? Just go in and say he didn’t know? 

Dean. He’ll go in and stonewall it and say, “I don’t know anything about what 
you are talking about. 1 ’ He has already done it twice, as you know, in interviews. 

The President. Yeah. I guess he should, shouldn’t he, in the interests of — Why? 
I suppose we can’t call that justice, can we? We can’t call it [unintelligible] 

Dean. Well, it, it — 

The President. The point is, how do you justify that? 

Dean. It’s a, it’s a personal loyalty with him. He doesn’t want it any other 
way. He didn’t have to be told. He didn’t have to be asked. It just is something 
that he found is the way he wanted to handle the situation. 

The President. But he knew? He knew about Watergate? Strachan did? 

Dean, Uh huh. 

The President. I’ll be damned. Well, that’s the problem in Bob’s case, isn’t 
it. It’s not Chapin then, but Strachan. ’Cause Stratchan worked for him. 



387 


Bean. Uh huh. They would have one hell of a time proving that Strachan 
had knowledge of it, though. (HJCT, 70-71) 

* * * * * * * 

Bean. ... I think that Bhuck had knowledge that something was going on 
over there. A lot of people around here had knowledge that something was going 
on over there. They didn’t have any knowledge of the details of the specifics of, 
of the whole thing. 

The President. You know, that must, must be an indication, though, of the 
fact that, that they had God damn poor pickings. Because naturally anybody, 
either Chuck or Bob, uh, was always reporting to me about what was going on. 
If they ever got any information they would certainly have told me that we got 
some information, but they never had a God damn [laughs] thing to report. What 
was the matter? Bid they never get anything out of the damn thing? 

Bean. No. I don’t think they ever got anything. 

The President. It was a dry hole, huh? 

Bean. That’s right. 

The President. Jesus Christ. 

Bean. Well, they were just really getting started. 

The President. Yeah. Yeah. But, uh. Bob one time said something about the 
fact we got some information about this or that or the other, but, I, think it 
was about the Convention, what they were planning. I said [unintelligible]. So 
I assume that must have been MacGregor, I mean not MacGregor, but Segretti. 
(HJCT, 72) 

******* 

The President. Who is “they” ? The press ? 

Bean. The press — 

The President. The Bemocrats? 

Bean. — the Bemocrats, the intellectuals — 

The President. The Packwoods? 

Bean. Right. Right. “They” would never buy it, uh, as far as (1) White House 
involvement in the Watergate which I think there is just none, uh, for that 
incident that occurred over in the Bemocratic National Committee Headquarters. 
People just, here, would— did not know that that was going to be done. I think 
there are some people who saw the fruits of it, but that’s another story. I am 
talking about the criminal conspiracy to, to go in there. The other thing is that, 
uh. the Segretti thing. You hang that out. uh. they wouldn’t believe that. They 
wouldn’t believe that, that. uh. Chapin acted on his own to put his old friend, 
friend [unintelligible] Segretti in to be a Bick Tuck on somebody else’s campaign. 
They would, they would have to paint it into something more sinister, something 
more involved, a part of a general plan. (HJCT, 74-75) 

These passages indicate not only that, in Dean’s mind, Haldemau’s 
connection with the Watergate offenses was tenuous at most, but even 
more significantly, that Haldeman had apparently never told the 
President what he did or did not know prior to June 17, 1972 about 
Liddy’s political espionage program. 

On the morning of March 21, 1973, Dean reiterated his belief that 
Haldeman had no specific advance knowledge of the Watergate break- 
in : 

The President. Bid Colson— had he talked to anybody here? 

Bean. No: I think this was an independent — 

The President. Bid he talk to Haldeman? 

Bean. No. I don’t think so. Now, but here’s the other the thing where the next 
thing comes in the chain. I think that Bob was assuming that ithey had some- 
thing that was proper over there, some intelligence gathering operation that 
Biddy was operating. And through Strachan, uh, who was his tickler, uh, he 
started pushing them. 

The President. [Sighs] Yeah. 

Bean. To get something, to get some information and they took that as a 
signal— Magruder took that as a signal— to probably go to Mitchell and say, 
“They are pushing us like crazy for this from the White House.” And so Mitchell 



388 


probably puffed on his pipe and said, “Go ahead,” and never really re — , reflected 
on what it was all about. So, they had some plan that obviously had, I gather, 
different targets they were going to go after. They were going to infiltrate, and 
bug, and do all this sort of thing to a lot of these targets. This is knowledge I 
have after the fact. [Coughs] And, apparently, they, uh, they, they had, they 
had after they had initially broken in and bugged the Democratic National 
Committee, they were getting information. The information was coming over 
here to Strachan. Some of it was given to Haldeman, uh, there is no doubt about 
it. Uh — ■ 

The President. Did he know what it was coming from ? 

Dean. I don’t really know if he would. 

The President. Not necessarily. 

Dean. Not necessarily. That's not necessarily. Uh — 

The President. Strachan knew what it was from. 

Dean. Strachan knew what it was from. No doubt about it, and whether 
Strachan — I had never come to press these people on these points because it, 
The President. Yeah. 

Dean. It hurts them to, to give up that next inch, so I had to piece things 
together. All right, so Strachan was aware of receiving information, reporting 
to Bob. At one point Bob even gave instructions to change their capabilities from 
Muskie to McGovern, and had passed this back through Strachan to Magruder 
and, apparently to Liddy. And Liddy was starting to make arrangements to go 
in and bug the, uh, uh, McGovern operation. They had done prelim — 

The President. They had never bugged Muskie, though, did they? 

Dean. No, they hadn’t but they had a, they had, uh, they’d 
The President. [Unintelligible] 

Dean, infiltrated by a, a, they had 
The President. A secretary. 

Dean, a secretary and a chauffeur. Nothing illegal about that. (HJCT, 84—85) 
******* 

Dean, and Liddy was charged with doing this. We had no knowledge that he 
was going to bug the DNC. Uh — 

The President. Well, the point is, that’s not true. 

Dean. That’s right. 

The President. Magruder did know that— 

Dean. Magruder specifically instructed him to go back in the DNC. 

The President. He did? 

Dean. Yes. 

The President. You know that? Yeah. I see. Okay. 

Dean. Uh. I honestly believe that no one over here knew that. I know, uh, as 
God is my maker. I had no knowledge that they were going to do this. 

The President. Bob didn't either [unintelligble] 

Dean. Uh. But — 

The President. They know you’re not the issue. Bob, Bob, now — he wouldn’t 
know. 

Dean. Bob — I don’t believe specifically knew they were going in there. 

The President. I don’t think so. 

Dean. I don’t think he did. I think he knew there was a capacity to do this but 
he wouldn’t, wasn’t giving it specific direction. 

The President. Strachan, did he know? 

Dean. I think Strachan did know. (HJCT, 87-88) 

INVOLVEMENT OF PRESIDENT IN COVER-UP 

We will not belabor the abundant evidence tending to establish the 
existence of a conspiracy to obstruct and impede the official investiga- 
tion of the Watergate break-in. We do question, however, any sug- 
gestion that the evidence shows Presidential knowledge and involve- 
ment from the very beginning. That beginning, as John Dean has 
testified, occurred literally within hours after the arrest of the burglars 
inside the Democratic National Committee headquarters : 

Mr. St. Clair. . . . Now, sir, I would like to go way back to the break-in at the 
DNC, if I may. You were actually in Hawaii, as I understand it? 



389 


Mr. Dean. No sir, I was in Manila. 

Mr. St. Clair. In Manila. When you returned to the United States, I think you 
have testified that you became involved in the coverup almost from the very 
beginning, or words to that effect? 

Mr. Dean. That is correct. 

Mr. St. Clair. I think at one point, you said it just sort of happened, it grew 
like Topsy, or words to that effect? 

Mr. Dean. It made me wish I had stayed in Manila. 

Mr. St. Clair. I am sure in retrospect, that is so. But is it true that you 
testified that this was not any set policy of any kind, it just sort of grew, and you 
just sort of fell into it, or words to that effect? 

Mr. Dean. That is correct. 

Mr. St. Clair. All right. And that state of affairs commenced almost immedi- 
ately upon your return to the United States? 

Mr. Dean. Correct. (Dean testimony, 2 HJC282) 

In his earlier testimony before the Senate Select Committee on 
Presidential Campaign Activities, Dean had described the inception 
of the cover-up in similar terms : 

Senator Montoya. When was the first real meeting to organize the coverup 
and who was present at that first meeting? 

Mr. Dean. I think that the coverup is somewhat similar to the planning of 
this whole thing, that just sort of happened. I know that when I came back 
from out of the country there had already been significant events which had 
occurred. The coverup was already — it had begun and was, in fact, in place 
and was going. (Dean testimony 3 SSC 1091) 

* * * * * * * 

Mr. Dean. . . . When I came back to the office on the 18th and talked to Mr. 
Strachan, I realized that the coverup was already in effect, in being, and I 
realized that when Mr. Strachan told me of the documents that he had destroyed 
and Mr. Haldeman’s instruction, that there certainly wasn’t going to be a revela- 
tion of the White House involvement in the matter. I didn’t at that point in 
time know the potentials of the White House involvement. 

***** * * 

Senator Gurney. Who set the policy on the coverup? 

Mr. Dean. I would say the policy was just — I do not think it was a policy 
set. There was just no alternative at that point in time. 

Senator Gurney. It sort of grew like Topsy, and you were a part of it, is that 
not right? 

Mr. Dean. That is correct. 

Senator Gurney. Now, since this thing started out with such a flurry and 
a spate of phone calls and meetings between everybody, did you advise the 
President of what was going on ? 

Mr. Dean. Senator, the first time I ever talked to the President was on Septem- 
ber 15. (Dean testimony, 4 SSC 1357) 

POINTERS IN THE WRONG DIRECTION 

Without in any way suggesting that the President himself was 
not fully and genuinely responsible for his decision to join the cover- 
up conspiracy; no later than June 23, 1972, we must point out, ad- 
mittedly only in slight mitigation, that when the President desperately 
needed sound advice from good men, he was surrounded by aides and 
advisers who were themselves inclined by the circumstances to give 
him the worst possible advice. Haldeman, Ehrlichman, Mitchell, Col- 
son and Dean each had selfish, personal reasons for wanting the full 
story of Watergate concealed from official investigators, the general 
public, indeed, in varying degrees, from the President himself. In 
addition, they shared a misguided desire to shield the President, as 
much as possible, from the need to assume personal responsibility for 
such a sorry episode in the middle of his re-election drive. 



390 


Haldeman 

Whatever Haldeman did or did not know about the precise nature 

of the Liddy Plan as it finally evolved (see discussion on pp. 

above), it was his job to oversee, through Gordon Strachan, on behalf 
of the White House the operations of the Committee for the Re-elec- 
tion of the President. At the very least, Haldeman had obviously failed 
to take adequate steps to control Liddy and his bizarre surveillance 
schemes, and this failure had made possible an incident of great poten- 
tial embarassment to the President, namely, the Watergate fiasco. 

The majority relies heavily upon the testimony before the Commit- 
tee of Alexander P. Butterfield, former Deputy Assistant to the Pres- 
ident and aide to Haldeman, to lend credence to the proposition that 
anything Haldeman knew, the President knew. That very concept is, 
on its face, inconsistent with Haldeman’s role as Chief of Staff, neces- 
sarily the filterer and organizer of the flow of information to the Presi- 
dent. A more accurate description of the matter, it seems to us, would 
be “anything Haldeman thought the President ought to know, the 
President knew.” 

Moreover, the majority ignores testimony by former Special Coun- 
sel to the President Charles W. Colson which is more plausible and 
more clearly probative of the likelihood that Haldeman would have 
told the President all he knew about the Watergate break-in : 

Mr. Hogan. There has been some testimony before the committee about what 
got to the President through Haldeman. On the basis of your knowledge of White 
House operations, if Mr. Haldeman had made a mistake or fouled up on some 
activity, would he likely admit that and bring that to the President’s attention, 
or would he likely try to isolate the President from that? 

Mr. Colson. Well, it’s the kind of speculation that I really don’t like to engage 
in. But, there were some other instances, and I think Bob teas very reluctant to 
admit he made a mistake to anyone . He's by nature the kind of guy who doesn't 
like to acknowledge any errors , and I think he would be unlikely to do so. 

Mr. Hogan. Could you tell the committee what some of those instances were? 

Mr. Colson. Oh, I can remember some mistakes in scheduling and Bob said, 
don’t, you know, this wasn’t a mistake. We did it and don’t go into this with the 
President. There were some things that I from time to time that I knew he had 
made mistakes with. He asked me not to talk about it. Bob just didn’t like to 
admit that kind of a thing. I don’t think anybody does. 

Mr. Hogan. Well, is it conceivable then that he and other White House staff 
people might have been engaged in certain activities following the Watergate 
break-in that the President had no knowledge of? 

Mr. Colson. Well, let me give you an illustration that I gave to the staff, Mr. 
Hogan. 

We had a thing in the campaign called Chapman report, which was a very use- 
less document. It would come 3 days after you had read the same stuff in the 
newspapers, and Murray Chotiner’s galfriend who was a reporter was sending 
this back from the campaign. I asked Mr. Haldeman if I could receive copies of 
that and he said yes, but under one strict instruction. And I said what’s that. And 
he said, you don’t tell the President where the information comes from if you 
ever discuss it with him, and I said that this is silly, this stuff is not that hot to 
begin with, and he said, that’s the condition, il you discuss the Chapman report 
with i he President, you don’t identify it as the Chapman report or identify from 
where it came from. (Colson testimony, 3 HJC 478 ; emphasis added) 

In any event, from the dialogue between Haldeman and the Presi- 
dent on the morning of June 23, 1972, quoted above, regarding the 
extent of John Mitchell’s role in authorizing the Watergate folly, 
it is obvious that either (1) Haldeman did not actually know a 
great deal about the involvement of senior CRP officials in the insti- 



gation of the DNC break-ins and wiretapping, or else^ (2) he did not 
impart to the President on that occasion the full benefit of his knowl- 
edge on the subject. 

Ehrlichman 

On the day of the second Watergate entry, John Ehrlichman was 
the senior White House staff member in Washington, since Halde- 
nian was in Key Biscayne with the President. That afternoon, Ehr- 
lichman was informed by Secret Service Agent Boggs that the White 
House telephone number of Howard Hunt had been found among the 
effects of the Watergate burglars. (Book II, 118) Through Haldeman, 
the President placed Ehrlichman in charge of learning what had 
happened at the Watergate, and on June 19th, Ehrlichman turned the 
matter over to John Dean to look into the question of possible White 
House involvement. (“Presidential Statements,” 8/22/73, 46; Book II, 
150) That afternoon, Dean told Ehrlichman that Liddy had person- 
ally confirmed to Dean an earlier report by Magruder that the break- 
in had been a CUP operation which Liddy directed. (Book II, 144- 
45) 

During 1971, Ehrlichman himself had been overall supervisor of the 
White House Special Investigations Unit — the “Plumbers” — of which 
both Hunt and Liddy were members. Ehrlichman had never told the 
President about the “Plumbers” September, 1971 burglary of the 
office of Dr. Lewis Fielding, Daniel Ellsberg’s psychiatrist. (In fact, 
Ehrlichman never did tell the President about that; John Dean did, 
on March 17, 1973.) (WHT, 157-58) Thus, Ehrlichman would have 
been motivated to discourage official investigation of Hunt’s and Lid- 
dy’s previous activities, not only to preserve the secrecy of legitimate 
“Plumbers” national security investigations, but also to prevent the 
revelation of his and other White House staff members’ roles in an 
enterprise of such questionable legality as the Fielding break-in, of 
which the President remained totally unaware for nine more months. 

We readily acknowledge that one statement by the President on 
the morning of June 23, 1972 gives rise to the possibility — at the 
most it is no more than a suspicion — that the President may on that 
date have been aware of the Fielding break-in. The President re- 
marked to Haldeman : 

The President. Of course, this Hunt, that will uncover a lot of things. You 
open that scab there’s a hell of a lot of things and we just feel that it would 
be very detrimental to have this thing go any further. This involves these 
Cubans, Hunt, and a lot of hanky-panky that we have nothing to do with 
ourselves. . . . (WHT, June 23, 1972, 10:09-11:39 a.m., 6) 

It is more likely, however, that the President is simply “rehearsing” 
with Haldeman what kind of remark might be dropped with C.I.A. 
Director Helms or Deputy Director Walters to alert them to the 
potential for embarrassment to the Agency if Hunt’s comings and 
goings were too closely scrutinized by the F.B.I. Even if the Presi- 
dent was addressing a specific concern of his to Haldeman, the refer- 
ence is obviously too vague and general to permit- an inference that 
it was the Fielding break-in, rather than some other covert activity 
of Hunt as a member of the Special Investigations Unit, about which 
the President was concerned. 



392 


Mitchell 

The weight of the evidence is that John Mitchell had indeed author- 
ized Liddy to undertake some form of intelligence-gathering opera- 
tion for CEP of which the Watergate break-ins and bugging were 
the disastrous upshot. Even if he did not, Mitchell acknowledges that 
after the break-in he learned of both Magruder’s involvement as over- 
seer of the Liddy operation and of certain so-called “White House 
horrors,” but he did not tell the President about these things for 
fear that 

he would lower the boom on all of this matter and it would come back to hurt 
him and it would affect him in his re-election. (Mitchell testimony, 4 SSC 1666) 

Upon learning of the arrest of the burglars in the Watergate office 
building, the thought of his own possible criminal liability as an ac- 
cessory before the fact or co-conspirator to the Watergate offenses 
must have crossed Mitchell’s mind ; it could reasonably have influenced 
his actions as well. In any event, the President did not learn the truth 
about Watergate from his former Attorney General and political con- 
fidant who, among his other motives for concealment, may genuinely 
not have wished to put the President in a position of having to take 
some action by telling him how the Watergate crimes were instigated. 

It is clear from all the transcripts of tape recorded presidential con- 
versations available to the Committee that even by March of 1973, 
Mitchell had not acknowledged to the President his role in approving 
the “Liddy Plan.” Specifically, the President’s question to Haldeman in 
their morning conversation on June 23, 1972 — “Well what the hell, did 
Mitchell know about this?” — should establish beyond doubt that 
Mitchell did not, during his telephone conversation with the President 
on the evening of June 20, 1972 (which was not recorded because the 
President placed the call from a residence telephone not connected 
to the recording system) tell the President that the Watergate burglars 
w T ere carrying out an “official” CEP assignment. 

Colson 

Like Ehrlichman, Colson had reason to be concerned about where 
an exhaustive investigation of Hunt and Liddy might lead. Colson 
had recommended Hunt’s hiring as a White House consultant the pre- 
vious summer and had raised the money to pay for Hunt’s and Liddy’s 
1971 Labor Day weekend excursion to California during which the 
Fielding break-in was committed. (Book VII, Part 3, 1248-49) 

Moreover, in February of 1972, in response to a complaint from 
Hunt and Liddy, Colson called Magruder and, without specifically 
mentioning anything relating to wiretapping or espionage, urged 
him to “get off the stick and get the budget approved for Mr. Liddy’s 
plans.” (Book I, 105, 110-14) In the aftermath of the DNC arrests, 
Colson may well have worried about how his February call to Ma- 
gruder might appear to the President, as well as to investigators, in 
view of his relationship with Hunt. Dean and the President considered 
the very point on March 21, 1973 : 

Dean. . . . They came up with, apparently, another plan, uh, but they couldn’t 
get it approved by anybody over there. So Liddy and Hunt apparently came to 
see Chuck Colson, and Chuck Colson picked up the telephone and called Mag- 
ruder and said, “You all either fish or cut bait. Uh, this is absurd to have these 



393 


guys over there and not using them, and if you’re not going to use them, I may 
use them.” Things of this nature. 

The President. When was this? 

Dean. This was apparently in February of ’72. 

The President. That could be — Colson know what they were talking about? 
Dean. I can only assume, because of his close relationship with 
The President. Hunt. 

Dean. Hunt, he had a damn good idea of what they were talking about, a 
damn good idea. He would probably deny it, deny it today and probably get 
away with denying it. But I, uh, I still — 

The President. Unless Hunt — 

Dean. Unless Hunt, uh, blows on him — 

The President. But then Hunt isn’t enough. It takes two doesn’t it? 

Dean. Probably. Probably. But Liddy was there also and if, if Liddy were 
to blow — 

The President. Then you’ve got a problem — I was saying as to the criminal 
liability in the 
Dean. Yeah. 

The President. White House- Okay. 

Dean. I will go back over that, and tell 
The President. Was that Colson? 

Dean. You where I think the, the soft spots are. 

The President. Colson — that, that, that Colson, uh, you think was the, uh, 
was the person who 
Dean. I think he. 

The President, pushed ? 

Dean. I think he helped to get the push, get the thing off the dime. Now some- 
thing else occurred, though — (HJCT, 84) 

***** * * 

The President- The absurdity of the whole damned thing, 

Dean. But it — 

The President, bugging and so on. W r ell, let me say I am keenly aware of the 
fact that, uh, Colson, et al., and so forth, were doing their best to get information 
and so forth and so on. But they all knew very well they were supposed to comply 
with the law. 

Dean. That’s right. 

The President. No question. 

Dean. Uh — 

The President- [Unintelligible] you think — you feel that really the man, the 
trigger man was Colson on this then ? 

Dean. Well, no, he was one of s — , he was just in the chain. He was, he helped 
push the thing. 

The President. Called [unintelligible] and said, “We’ve got a, we’ve got a good 
plan.” I don’t know what the Christ he would be doing. Oh, I’ll bet you. I know 
why. That was at the time of ITT. He was trying to get something going there 
because ITT, they were bugging us. I mean they were 
Dean. Right. 

The President, giving us hell. 

Dean. Well, I know, I know he used, uh, 

The President. Hunt to go out there? 

Dean. Hunt. (HJCT, 100) 

Colson had better reason than most to know how the President would 
react to news that one of his own White House aides had played a- part 
in spurring Liddy on. On Sunday, June 18 th, the day after the Water- 
gate arrests, the President had displayed his anger over the publicized 
involvement of McCord, the CEP security consultant: 

Mr. Jenner. All right. You had two conversations with him on that day? 
Mr. Corson. Yes, sir. 

Mr. Jenner. Were they in person or by telephone? 

Mr. Colson. The President was calling me from Key Biscayne both times. 

Mr. Jenner. Now, tell us to the best of your recollection that conversation, and 
any benchmark you might have to refresh your recollection. 



394 


Mr. Colson. Well, I had no recollection of those two calls at all, but a former 
assistant of mine 

Mr. Jenner. Please name him. 

Mr. Colson. Mr. Desmond Barker said that he came into my office on that 
Monday or Tuesday following the DNC break-in and that we were talking about 
it and I was describing to Mr. Barker, no relation to the Barker who was involved 
in the break-in, I was describing to Mr. Barker how incensed I was and how 
stupid I thought the whole thing was. And he asked me what the President’s 
reaction was and I told him that the President had called me a couple of times 
on Sunday and he was so furious that he had thrown an ashtray across the room 
at Key Biscayne and thought it was the dumbest thing he had ever heard of and 
was just outraged over the fact that anybody even remotely connected with the 
campaign organization would have anything to do, anything to do with some- 
thing like Watergate. At that point we knew, of course, from the newspaper 
accounts that Mr. McCord, whom I had never heard of before that day, nor had 
the President, we knew that Mr. McCord was one of those that had been caught at 
the Watergate and was a consultant or on the payroll in some way of the Repub- 
lican National Committee and the Committee for the Re-Election. 

Mr. Jenner. You used the expression “we knew.” Are you referring to knowing 
as of, knowing that fact or those facts respecting Mr. McCord as of June 18, 1972? 

Mr. Colson. I remember, I think I remember it being on the front page of the 
newspapers on Sunday morning. (Colson testimony, 3 HJC 259) 

Dean 

Dean had been instrumental in getting Gordon Liddy hired as 
General Counsel of the Committee to Re-Elect the President at a 
higher salary than he had been receiving as a member of the White 
House Domestic Counsel staff, contrary to an established CRP policy 
against such raises. (Book I, 50) Moreover, Dean had been involved in 
discussions pertaining to the abortive “Sand wedge’ 5 political intelli- 
gence plan during the latter half of 1971 (Book I, 44), had under- 
taken some relatively tame political intelligence himself at the request 
of Haldeman (Dean testimony, 2 HJC 221, 347-48), and had partic- 
ipated in meetings in Attorney General Mitchell’s office on January 27 
and February 4, 1972 at which Liddy had presented his proposals for 
an elaborate political intelligence operation— a fact known to Halde- 
man as well as to the other participants in the meetings. (Book I, 59- 
GO) Mitchell, indeed, looked to Dean for assistance in developing a 
political intelligence capability after “Sand wedge” was scrapped. 
(Book I, 34) 

Obviously, from Dean’s standpoint, the less said to anyone who did 
not already know about his relationship with Liddy and his knowl- 
edge of the pre-Liddy and early Liddy political espionage plans, the 
better. 

In any event, it is undisputed that Dean did not personally disclose 
to the President any information he had or suspicions he may have 
harbored concerning the involvement of White House or top CRP of- 
ficials in the advance planning of the Watergate crimes until some 
time in March 1973. 

Just how much Dean had to fear from complete disclosure of the 
facts surrounding the Watergate offenses remains to this day unclear. 
Honoring a claim of attorney-client privilege, the Committee chose 
not to explore the tantalizing remark made by William O. Bittman, 
former attorney for Howard Hunt, during his testimony before the 
Committee : 

Mr. Cohen. Now, as I recall your testimony earlier this morning, you had a 
conversation with Mr. Colson during which time you were discussing Mr. Hunt’s 



396 


safe or the safe of the TJ.S. Government in the Executive Office Building, and 
Colson told you to talk to Mr- Dean, as I recall, and correct me if I am wrong, 
and you said that you didn’t want to talk to Dean because he was involved? 

Mr. Bittman. Yes, sir. 

Mr. Cohen. Now, when was that conversation that you had with Mr. Colson? 

Mr. Bittman. January 3, 1973. 

Mr. Cohen. What do you mean, Mr. Dean was involved in what? 

Mr, Bittman. In the initial Watergate planning and break-in. 

Mr. Cohen. And you knew this, I take it, as a result of your conversations with 
your client? 

Mr. Bittman. Well, based on the hearsay information of my client. Mr. Hunt 
never had any personal knowledge of anything. It is all hearsay. (Bittman testi- 
mony, 2 HJC 89-90) 

Whether Hunt had reference only to Dean’s presence at the two 
meetings in Mitchell’s office when the Liddy plans was discussed, we 
may never know. 

THE PRESIDENT ENTERS THE CONSPIRACY 

Given the varied motives of these principal actors to suppress the 
facts in their own interests* as well as in what they jointly, but mis- 
takenly, perceived to be the best interests of the President, it is wholly 
plausible that the cover-up conspiracy arose immediately and sponta- 
neously as word of the arrest of McCord et al. spread, just as Dean sug- 
gested (see above). Since there is no logical need to hypothesize 
an all-knowing, all-powerful President at the center of the conspiracy 
from its beginning, organizing and directing the cover-up activities of 
each of his aides and subordinates (at least in general outline), in order 
adequately to explain the events that transpired in the first several 
days following the discovery of the burglars, ive consider it our Con- 
stitutional mandate not to do so unless and until specific evidence con- 
vinces us that it is at least more probable than not that the President 
had become involved. 

The edited transcripts of three conversations between the President 
and H. K. Haldeman on June 23, 1972 which were submitted to the 
Committee on August 5, 1974 provide, in our view, the first direct and 
persuasive evidence of Presidential knowledge and intent to partici- 
pa f e in an ongoing conspiracy to obstruct justice in 1972. 

In the morning conversation, after telling the President that the 
FBI had been able to trace the source of cash in the possession of 
Bernard Barker, one of the arrested burglars, Haldeman recommended 
as a solution: 

Haldeman. . . . Mitchell came up with yesterday, and John Dean analyzed 
very carefully last night and concludes, concurs now with Mitchell’s recommen- 
dation that the only way to solve this, and we’re set up beautifully to do it. . . 

* * * * * * * 

That the way to handle this now is for us to have [CIA Deputy Director L. 
Vernon] Walters call Pat Gray and just say, ‘Stay to hell out of this— this ah, 
business here we don’t want you to go any further on it.’ That’s not ail unusual 
development, and ah, that would take care of it. (“Submission of Recorded 
Presidential Conversations to the Committee on the Judiciary of the House of 
Representatives by President Richard Nixon, August 5, 1974,” hereinafter cited 
as WHT) (WHT, June 23, 1972, 10 :09-ll :39 a.m., 3) 

The President inquired as to the source of the funds and was told 
that Minnesota industrialist Kenneth Dahlberg’s $25,000 contribution 



396 


check had gone directly to Barker. Then the following dialogue 
ensued : 

The President. It isn’t from the Committee though, from Stans? 

Haldeman. Yeah. It is. It’s directly traceable and there’s some more through 
some Texas people that went to the Mexican bank which can also be traced to 
the Mexican bank — they’ll get their names today. 

Haldeman, — And (pause) 

The President. Well, I mean, there’s no way — I’m just thinking if they don’t 
cooperate, what do they say? That they were approached by the Cubans. That’s 
what Dahlberg has to say, the Texans too, that they — 

Haldeman. Well, if they will. But then we’re relying on more and more people 
all the time. That’s the problem and they’ll stop if we could take this other 
route. 

The President. All right. 

Haldeman. And you seem to think the thing to do is get them to stop? 

The President. Right, fine. 

Haldeman. They say the only way to do that is from White House instruc- 
tions. And it’s got to be to Helms and to — ah, what’s his name . . . ? Walters. 

The President. Walters. 

Haldeman. And the proposal would be that Ekrlicliman and I call them in, and 
say, ah — 

The President. All right, fine. How do you call him in — I mean you just — 
well, we protected Helms from one hell of a lot of things. 

Haldeman. That’s what Ehrlicliman says. ( Id ., 4-5) 

While there are references to the belief of FBI agents investigating 
the break-in that the affair was a CIA operation, nowhere in the tran- 
script does there appear any indication that either Haldeman or the 
President believed or suspected that the Democratic National Com- 
mittee headquarters entry was in fact a CIA operation. 

The President was clearly put on notice during the conversation 
that the break-in was both sponsored and financed by the Committee 
to Re-elect the President : 

The President. . . . Well what the hell, did Mitchell know about this? 

Haldeman. I think so. I don’t think he knew the details, but I think he knew. 

The President. He didn’t know how it was going to be handled though — 
with Dahlberg and the Texans and so forth? Well who was the asshole that did? 
Is it Liddy ? Is that the fellow ? He must be a little nuts ! 

Haldeman. He is. 

The President. I mean he just isn’t well screwed on is he? Is that the 
problem ? 

Haldeman. No, but lie was under pressure, apparently, to get more information, 
and as he got more pressure, he pushed the people harder to move harder — 

The President. Pressure from Mitchell? 

Haldeman. Apparently. 

The President. Oh, Mitchell. Mitchell was at the point (unintelligible). 

Haldeman. Yeah. 

The President. All right, fine, I understand it all. We won’t second-guess 
Mitchell and the rest. Thank God it wasn’t Colson. ( Id ., 6-7) 

The manner in which Haldeman broached the subject suggests that 
he and the President had discussed at least some aspect of the Water- 
gate investigation previously : 

Haldeman. Now, on the investigation, you know the Democratic break-in 
thing, we're back in the problem area because the FBI is not under control, 
because Gray doesn’t exactly know how to control it and they have — their 
investigation is now leading into some productive areas — because they’ve been 
able to trace the money — not through the money itself — but through the bank 
sources — the banker. And, and it goes in some directions we don’t want it to go. 
{Id., 2-3 ; emphasis added) 



397 


Even though the burglars had been in custody since their arrest six 
days earlier, Haldeman told the President that certain “things” had 
begun “filtering in” to the FBI : 

Haldeman. Ah, also there have been some things — like an informant came in 
oft the street to the FBI in Miami who was a photographer or has a friend who 
is a photographer w T ho developed some films through this guy Barker and the 
films had pictures of Democratic National Committee letterhead documents and 
things. (Id., 3) 

And the President himself, in the materal quoted above, asked 
whether Liddy had been responsible for the arrangements. Ac- 
cording to the evidence available to the Committee, Liddy’s partic- 
ipation in the break-in had not been learned by the FBI on June 23rd, 
meaning that someone on the White House staff or in CRP who 
was knowledgeable as to the facts must have discussed the matter 
with the President prior to this conversation with Haldeman. Like- 
wise, Haldeman’s remark about the photographer/informant in Miami 
appears to presume knowledge on the part of the President that CRP 
agents had some opportunity to photograph DNC documents prior to 
the night of the arrests — a fact not known publicly or to official 
investigators until a few days later when Alfred Baldwin became an 
FBI informant. 

INTERPRETING EVENTS IN LIGHT OF THE JUNE 2 3, 1972 TRANSCRIPTS 

We do not consider it nit-picking to suggest that, even with the 
benefit of the additional evidence produced by the President on 
August 5, 1974, some of the specific allegations made against him in the 
majority report are not well founded. It is still important — perhaps 
even more important, now that Mr. Nixon is not able to mount a formal 
defense to the Committee’s accusations in an appropriate forum — for 
us to caution against the indiscriminate adoption of each and every 
adverse interpretation that could be placed upon specific presidential 
actions and statements, merely because the President has been shown 
to be culpable to some extent at an early stage of the cover-up. 

F alse or Misleading Public Statements 

Paragraph (8) of Article I, for example, charges President Nixon 
with “making false or misleading public statements” in order to de- 
ceive the public as to the adequacy of his investigation into allegations 
of misconduct on the part of White House and CRP personnel. While 
the Paragraph itself does not specify which presidential statements 
material to the subject matter of the Committee’s inquiry were false, 
or which of them were misleading, the Introduction to the discussion 
of evidence relating to proposed Article I found above in this Com- 
mittee report does contain a list of sixteen public utterances and three 
comments made by the President in published writings, which, by 
virtue of their enumeration there, are allegedly false or misleading 
and part of a “pattern of concealment, deception and cover-up.” 

We are satisfied that most of these statements were actually false 
or misleading when made. In some cases, however, it remains to be seen 
whether the President knew of their false or misleading character 
when he made them. 



398 


June 22, 1972 

The first example given is the President’s statement in a news con- 
ference on June 22, 1972 that his Press Secretary, Ronald Ziegler, had 
spoken “accurately” when he had said of the Watergate break-in, 
“the White House has had no involvement whatever in this particular 
incident.” There is, however, no evidence that prior to his making that 
statement facts had come to his attention, from any source, giving 
him reason to believe that the statement was untrue. We now know 
that on the following morning, June 23, 1972, the President appeared 
already to have received some information regarding Hunt and 
Liddy’s role in the Watergate offense, but we are left only to speculate 
whether he received that information before or after his June 22 
news conference, and whether he was given any reason to believe that 
the involvement of either Hunt or Liady amounted to “White House 
involvement.” 

It should be noted that nothing in the White House edited tran- 
scripts of that conversation between Haldeman and the President on 
the morning of June 23, 1972 suggests that the President was told at 
that time, or was conscious of having been previously told, that anyone 
at the White House had been involved in the Watergate matter. 

In the Conclusion of the Committee report’s discussion of proposed 
Article I, the same presidential statement of June 22, 1972, appears 
to be listed as the third in a pattern of thirty “undisputed acts” in 
which the President was involved after the break-in which the ma- 
jority asserts cannot be “rationally explained” except in terms of the 
President’s guilt as charged in Article I. Curiously, at that point in 
the report it is alleged that the President publicly denied on June 22, 
1972 that members of the Committee for the Re-election of the Presi- 
dent were involved in the Watergate break-in. We have been unable to 
find any evidence in the record showing clearly that the President’s 
denial of involvement was intended by him to extend beyond members 
of the White House staff. 

While the President appeared to adopt, by general reference, the 
denials of either White House or official CRP involvement made ear- 
lier in the week by both Mitchell and Ziegler, the President’s specific 
reference was more narrow : 

. . . And, as Mr. Ziegler has stated, the White House has no involvement what- 
ever in this particular incident (“Presidential Statements,” 6/22/72, 2) 

In view of McCord’s arrest inside the Watergate office building, surely 
any presidential statement asserting the non-involvement of CRP per- 
sonnel would have to have been as carefully qualified as were the press 
releases made by Mitchell on June 18 and 20, 1972. (LaRue testimony, 
1 HJC 212 ; Book II, 29) 

August 29,1972 

The second false or misleading public statement listed in the Intro- 
duction to the Committee report on Article I is one about which there 
has been controversy since the Senate Select Committee conducted its 
public hearings into the Watergate affair in 1973, namely, the Presi- 
dent’s statement in his news conference of August 29, 19*72 that 

. . . within our own staff, under my direction, Counsel to the President, Mr. 
Dean, has conducted a complete investigation of all leads which might involve 



399 


any present members of the White House staff or anybody in the Government. I 
can say categorically that his investigation indicates that no one in the White 
House Staff, no one in this Administration, presently employed, was involved 
in this very bizzare incident. (“Presidential Statements,” 8/29/72, 3) 

The quoted statement refers, of course, to the so-called “Dean 
investigation” during the summer of 1972, which Dean himself has 
denied ever having conducted. 

So oil after the arrest of the Watergate burglars, the President in- 
structed Elirlichman to investigate possible White House involvement 
in the incident. (“Presidential Statements,” 8/22/73, 46) On June 19, 
1972 Elirlichman delegated this responsibility to Dean, who was Coun- 
sel to the President. (Book II, 144^46, 152) Colson testified that in Au- 
gust, 1972 Dean “was handling the Watergate matter and handling 
the investigation and acting as Counsel for all of us ” (Colson testi- 

mony, 3 HJC 275) On June 21, 1972, Ehrlichman told Acting FBI 
Director Pat Gray that Dean would be handling an inquiry into 
Watergate for the White House. (Book II, 314) On the same day, 
Dean informed Gray that he would sit in on any F. B. I. interviews 
of White House staff personnel, and that he would do so in his official 
capacity as counsel to the President. (Book II, 314) 

According to Attorney General Richard Kleindienst, Dean unsuc- 
cessfully requested permission from him to receive raw F. B. I. investi- 
gative reports, representing to Kleindienst and Assistant Attorney 
General Henry Petersen that he was dealing strictly with the Presi- 
dent. (Kleindienst testimony, 9 SSC 3564, 3575-76) To induce Gray 
to permit him access to the raw F. B. I. files, Dean on at least two occa- 
sions assured Gray that he was reporting directly to the President on 
the Watergate matter. (Gray testimony, 9 SSC 3450-51, 3482) 

Despite these representations to Kleindienst, Petersen and Gray, 
Dean in fact never saw the President during June or July of 1972, and 
he met with him only once, briefly and in a group, that August. (Book 
111,598) 

On the morning of April 16, 1973, Dean and the President met and 
discussed, among other things, the applicability of the attorney-client 
privilege to various activities of Dean on behalf of the President. In 
that connection, the subject of the 1972 “Dean investigation” came up : 

The President. Let me say, on this point, I would, uh, would not waive. You 
could say, “I reported to the President.” Uli, that “The President called me in.” 
I mean, “The President has authorized me to say — He called me in, and, uh, and, 
uh, asked me — ” 

Dean. Uh huh. 

The President. Uh, make that, that before, that when the event first occurred, 
you conducted an investigation and passed to the President the message : “No 
White House personnel, according to your investigation, was involved.” You did 
do that, didn't you? 

Dean. I did that through Ehrlichman an<l Haldeman. 

The President, That’s it. You did do that. 

Dean. If I’m under oath, now, I’m, I’m going to have to say I did that through 
Ehrlichman and Haldeman. 

The President. No. But I know you did that. I didn’t see you. 

Dean. That’s right. (HJCT 195) 

The fact that Dean did not meet personally with the President to 
discuss the progress of his “investigation” casts no more doubt on 
whether, from the President’s standpoint, he was actually conducting 
an investigation under the President’s direction, than does the same 


37-777 0 - 74-26 



400 


absence of private, personal contact call into question whether during 
that period Dean was really serving as “Counsel to the President.” 

The sixth item on the list of thirty presidential acts set out in the 
Conclusion of the Committee report on proposed Article I is de- 
scribed as : “The President's public statement on August 29, 1972, a 
statement later shown to he untrue , that an investigation by John Dean 
‘indicates that no one in the White House staff, no one in the Admin- 
istration, presently employed, was involved in this very bizarre in- 
cident/ ” (Emphasis added.) 

It is not clear precisely what the majority there alleges to have been 
untrue : the assertion that Dean had conducted an investigation ? the 
implication that any such investigation was legitimate ? the assertion 
that the investigation indicated that no one then employed at the 
White House or elsewhere in the Administration had been involved 
in the Watergate incident? or the fact that no one then employed at 
the White House or elsewhere in the Administration had actually 
been involved in the Watergate incident? 

As late as April 16. 1973 Dean assured the President that no one 
at the White House had been involved in the original Watergate 
offenses : 

Dean. It’s unfortunate that I, you know. I’m hoping that the ultimate resolu- 
tion of this thing is that no one has any problems. And that’s possible, 

The President. Legally. 

Dean, legally. 

The President. That’s right. Which I hope is your case, too. In other words, 
when I say no one, nobody at the White House staff — not you, not Colson, not 
Ehrlichman, not Haldeman, because God damn it — Let me, let me, let me 
summarize this specific point again, because I need to, uh, you know, they, w T e 
know there was no — on the Dean report. Ziegler has always said it was oral. 

Dean. That’s right. 

The President. Right. But you remember when you came in, I asked you the 
specific question: “Is anybody on the White House staff involved?” You told 
me “No.” 

Dean. That’s right. And I have no knowledge — 

The President. You still believe that? 

Dean. Yes sir, I do. (HJCT 192) 

In view of the above dialogue, Dean’s professed uncertainty in 
March, 1973 about Haldeman’s knowledge of the Watergate operation 
prior to the arrests, and the tenor of the Nixon-Haldeman conversation 
on the morning of June 23, 1972, it should come as no surprise if 
Dean’s investigation in the summer of 1972 had actually revealed no 
White House involvement in the DNC entries and wiretapping, in 
the sense apparently meant by both Dean and the President in their 
discussion on April 16, 1973, just quoted above. There would be no 
reason, of course, why Dean could not convey such a conclusion to the 
President “through channels” in August, 1972, just as there is no 
reason why the “channels” themselves could not exaggerate to the 
President the good faith and vigor with which the “Dean investiga- 
tion” had been pursued, particularly if any of the “channels” had a 
motive to minimize the extent of Dean’s own awareness, before or dur- 
ing the fact, of Liddy’s Watergate operation. 

If the President had no reason to doubt the truth of his August 29, 
1972 statement token he mode it , no subsequent revelations could viti- 
ate its essential truthfulness for purposes of our inquiry. 



401 


Obviously, the statement at issue was still defective, but because it 
was misleading, not because the evidence demonstrates that it was false. 
Several weeks earlier, the President had been put squarely on notice 
by Haldeman that the highest officials in his re-eleetion committee 
were probably behind the Watergate break-ins. It is that which the 
President chose not to acknowledge publicly in a press conference 
that took place two-and-one-half months before the 1972 Presidential 
election. His statement was probably substantially true, as far as it 
went, but it carefully avoided going far enough either to be untrue 
or to damage the President in the heat of his re-election campaign. 

President Nixon’s seeming obsession with the narrow question 
whether any of his White House aides had in some fashion been 
involved in the planning or execution of the actual entries and wire- 
tapping of the Democratic National Committee headquarters, as con- 
trasted with their obvious involvement in the cover-up of the CRP 
connection with the crimes, is paradoxical. It is both an aggravating 
and a mitigating factor, when considered for different purposes. 

On the one hand, the President’s “tunnel vision” on this question, 
if genuine, tends to negate the existence of a ifnens rea with respect to 
“covering up the cover-up.” It may help explain the President’s 
apparent slowness to appreciate the imp o it of what Dean told him 
on the morning of March 21, 1973, about the details of the cover-up : 

Dean Uh, but some people are going to have to go to jail. That’s the long 

and short of it, also. 

The President. Who? Let’s talk about that. 

Dean. All right. Uh, I think I could, for one. 

The President. You go to jail? 

Dean. That’s right. 

The President. Oh, hell no. I can’t see how you can. But I — no, 

Dean. Well, because — 

The President. I can’t see how, that— Let me say I can’t see how a legal 
case could be made against you, J — , uh, John. 

Dean. It’d be, it’d be tough but, you know, uh, 

The President. Well. 

Dean., I can see people pointing fingers, you know, to get it out of their own, 
put me in the impossible position, disproving too many negatives. 

The President. Oh, no. Uh let me say I — not because you’re here — But just 
looking at it from a cold legal standpoint : you are a lawyer, you were a coun- 
sel — you were doing what you were doing as a counsel, and you were not, uh, 

Dean. [Clears throat.] 

The President, doing anything like that. You mean — What would you go to 
jail on [unintelligible] ? 

Dean. The obstruc — , the obstruction of justice. 

The President. The obstruction of justice? 

Dean. That’s the only one that bothers me. 

The President. Well, I don’t know. I think that one. I think that, I feel, could 
be cut off at the pass. Maybe the obstruction of justice — (HJCT 102-03) 

Even if the President failed to appreciate the gravity of the situa- 
tion from the standpoint of individual criminal liabilities because, m 
part, he was looking at the crux of the matter in the M 7 rong focus, we 
would concede that this, in itself, would suggest a certain insensitivity 
to the demands of his high office for the exposure, rather than the 
concealment, of serious misconduct on the part of his subordinates and 
close political associates acting to further his personal political 
interests. 



402 


CLEMENCY 

Paragraph (9) of proposed Article I alleges that the President 
sought to induce criminal defendants and convicts to remain silent 
about their knowledge of the criminal involvement of others, in ex- 
change for the expectation of some favorable treatment or considera- 
tion which presumably the President would be in a position to grant. 
The Members of the Committee know full well, however, that the gist 
of this allegation is that the President offered or authorized the offer- 
ing of executive clemency to those who were or might be convicted of 
the original Watergate offenses. 

We earnestly submit that, taken as a whole, the evidence simply does 
not fairly permit the inference that the President ever offered or au- 
thorized the offer of clemency to any person in exchange for his silence 
or false testimony. 

When the subject was first broached to him in July, 1972, the Presi- 
dent firmly and categorically rejected even the idea of discussing it. 
Later, in January, 1973, in an unguarded moment the President did 
tell his Special Counsel, Charles Colson, who was seeking some assur- 
ance of help for his friend Howard Hunt, that clemency was a possi- 
bility only because of Hunt’s tragic family circumstances. Then, on 
March 21, 1973, the President firmly and unhesitatingly rejected the 
possibility of offering clemency to Hunt in order to maintain his 
silence with regard to “seamy things” he had done for the White 
House. It does not appear from the evidence that the President ever 
considered the use of clemency as an enticement to the hapless Water- 
gate defendants. 

The first time clemency was discussed with the President by anyone 
in the White House was on or about July 8, 1972 when the President 
met with John Ehrlichman. (Book III, 181-97) In the course of a 
long, rambling discussion on the beach about different matters, 
Ehrlichman raised the point that, because of the political nature of the 
Watergate case, the question of presidential pardons would inevitably 
become a problem for the White House. After a brief discussion, the 
President expressed his “firm view” that he would never be in a posi- 
tion to grant these particular individuals any form of clemency. The 
two men agreed that clemency for the Watergate suspects was the 
kind of subject which should be excluded forever from the Presi- 
dent’s consideration. (Book III, 183) 

As a result of his wife’s death in an airplane crash on December 8, 
1972, Howard Hunt decided to plead guilty. (Bittman testimony, 2 
HJC 21) Hunt and Charles Colson were close personal friends. 
(Colson testimony, 3 HJC 275, 416-17) On December 31, 1972, Hunt 
wrote to Colson asking him to see Hunt’s attorney, William Bittman. 
(Book III 458) Colson forwarded the letter to Dean, since Dean 
was responsible for Watergate matters within the White House, with 
a covering memo stating, “[n]ow, about what the hell do I do?” 
(Colson testimony, 3 HJC 457.) 

On January 3, 1973, Colson, Dean and Ehrlichman discussed Hunt’s 
letter. (Book III, 460, 463-64, 466-68) Colson was anxious to assure 
Hunt of his continued friendship and willingness to help. Ehrlichman 
told Colson he could see Bittman, but that there could be no commit- 



403 


ments regarding clemency. Ehrlichman restated the President’s posi- 
tion of July, 1972. (Book III, 463-64) Colson, however, wanted to 
see the President about clemency but Ehrlichman forbade it. (Book 
III, 460; WHT 419-21) 

Dean has testified that Ehrlichman told him he would see the Presi- 
dent on the matter and that the next day Ehrlichman told him that 
he had given Colson “an affirmative” regarding clemency for Hunt. 
(Book III, 460-61) Erlichman denies discussing anything concerning 
Hunt with the President at that time. (Book III, 464) 

On both January 3 and 4, 1973, Colson met with Bittman. Bittman 
has testified : 

We went into much more detail [than on January 3], or I did, with respect 
to Howard Hunt’s plea of guilty, and the fact that Howard Hunt was very 
concerned about his children when he would go to jail, and he was very con- 
cerned about the possibility of Judge Sirica giving him a substantial sentence. 

In view of the fact that his wife had been killed less than a month earlier, 
he was terrified with the prospect of receiving a substantial sentence. Mr. Colson 
indicated that he w T as a very close, dear friend of Howard Hunt, that if neces- 
sary he would take Howard Hunt’s children into his own home, that in his 
opinion it would be outrageous if Judge Sirica would give him a substantial 
sentence because of his own health problems, his family’s health problems and 
his service to the country, and because of the nature of the offense. 

And he told me to go back to Howard Hunt to indicate to him that he would 
always be a close friend of Howard Hunt’s and that he would do anything what- 
soever to assist Howard Hunt as a friend, whether he was in or out of the 
White House. (Bittman testimony, 2 HJC 23) 

Bittman testified that he conveyed Hunt’s desire to know 7 whether 
Colson could help him if he received a substantial sentence. (Bittman 
testimony, 2 HJC 24) Colson has substantiated Bittman’s testimony 
by his own testimony, an affidavit to the Special Prosecutor and a 
memo of the conversations he wrote on January 5, 1973. (Book III, 
469, 472-74; Colson testimony, 3 HJC 303-04) Colson has also stated: 

In addition, I may well have told Bittman that I had made “people” aware 
that, if it were necessary. I was going to come back to the White House to 
speak for Hunt. Indeed, since I wanted to do all I could to comfort Hunt, it is 
most probable that I did say this. I do not know how Bittman evaluated my 
position and influence at the White House, but despite my insistence that I 
could do no more than try to help Hunt as a friend, Bittman might have inferred 
that if Hunt received an unreasonably long sentence, my willingness to go to 
bat for Hunt would result in Hunt’s sentence being reduced by executive action 
of some sort. (Colson testimony, 3 HJC 311) 

Dean has testified that after January 5th Colson told him that he 
had spoken to the President about clemency despite Ehrlichman’s in- 
structions. (Book III, 461) Colson, however, has testified that he dis- 
cussed the matter wfitli the President in late January. (Colson testi- 
mony, 3 HJC 311,318) 

Tapes or transcripts of recorded presidential conversations twice 
reflect mention by the President of a conversation with Colson about 
possible clemency for Hunt. On the morning of March 21, 1973 he 
told Dean: 

. . . there was some discussion over there with somebody about, uh, Hunt’s 
problems after his wife died and I said, of course, commutation could be consid- 
ered on the basis of his wife, and that is the only discussion I ever had in that 
light. (HJCT 93) 



404 


On April 14, the President told Haldeman and Ehrlicliman : 

... As I remember a conversation this day was about five thirty or six o’clock 
that Colson only dropped in in sort of parenthetically, said I had a little problem 
today, talking about Hunt, and said I sought to reassure him, you know, and so 
forth. And I said, well. Told me about Hunt’s wife. I said obviously we will do 
just, we will take that into consideration. That was the total of the conversation. 

( WHT 419) 

It seems beyond question that whatever assurances Colson may have 
made to Bittman, they were given before he had talked to the Presi- 
dent. (Summary of Information, 78) 

It is important to distinguish between what the President said to 
Colson and his knowledge, if any, of commitments already made by 
Colson before he talked to the President. There is no evidence that 
the President was aware of any specific assurances given by Colson 
until April 14, 1973. On February 28, the President inquired of Dean 
whether the defendants had any expectation of clemency : 

The President. What the hell do they expect , though ? Do they expect that 
they will get clemency within a reasonable time t 

Dean. I think they do. [Unintelligible] going to do. 

The President. What would you say f What would you advise on that? 

Dean. Uli, I think it’s one of those things we’ll have to watch very closely. 
For example — 

The President. You couldn’t do it, you couldn’t do it, say in six months? 

Dean. No. 

The President. No. 

Dean. No, you couldn’t. This thing may become so political as a result of these 

The President. Yeah. 

Dean, hearings that it is, it, it. is more — 

The President. A vendetta V 

Dean. Yeah, it’s a vendetta. This judge may, may go off the deep end in 
sentencing, and make it so absurd that, uh, it’s clearly an injustice, uh — 
(HJC-T 40 ; emphasis added) 

On March 21, 1973 the President showed awareness of Colson’s 
having talked to Hunt about the possibility of clemency but not of 
what assurances had been made : 

The President. . . . But the second thing is, we’re not going to be able to 
deliver on, on any kind of a, of a clemency thing. You know Colson has gone 
around on this clemency thing with Hunt and the rest. 

Dean. Hunt, Hunt is now talking in terms of being out by Christmas. 

Haldeman. This year? 

Dean. This year. Uh, he was told by O’Brien, avIio is my conveyor of doom 
back and forth. 

Haldeman. Yeah. 

Dean, uh, that, uh, hell, he’d be lucky if he were out a year from now, after 
the Ervin hearings were, uh, you know, over. He said, “How in the Lord’s name 
could you be commuted that quickly?” He said, “Well, that’s my commitment 
from Colson.” 

Haldeman. By Christmas of this year? 

Dean. Yeah. 

Haldeman. See that, that really, that’s very believeable ’cause Colson, 

The President. Do you think Colson could have told him — 

Haldeman. Colson is an, is an — that’s, that’s your fatal flaw, really, in Chuck, 
is he is an operator in expediency, and he will pay at the time and where he is 

The President. Yeah (HJCT 115) 

Finally, on April 14, 1973, Ehrlichman explained to the President 
his understanding of the events surrounding Colson’s January meet- 
ings with Bittman : 

Ehrlichman. Well, I had, we had had a couple of conversations in my 
office — 



405 


The President. With Colson? 

Ehrlich man. I had with Colson. Yeah. 

The President. Well how was, who was getting, was Bittman getting to 
Colson? Was that the point? Who — 

Ehrlichman. Hunt had written to Colson. 

The President. Oh? 

Ehrlichman. Hunt wrote Colson a very, I think a I’ve been abandoned kind 
of letter. 

The President. When was this, John? 

Eriilichman. I am sorry — 

The President. After the election ? 

Ehrlichman. Oh yes. Yeah. 

The President. Oh. And Colson, you knew about this letter? 

Ehrlichman. Colson came in to tell me about it. And he said, “What shall I 
do?” And I said, “Well, better talk to him.” I thought somebody had better talk 
to him, the guy is obviously very distraught. 

The President. Right. 

Ehrlichman. And has a feeling abandoned. 

The President. Right. 

Ehrlichman. And he said, “What can I tell him about clemency or pardon.” 
And I said, “You can’t tell him anything about clemency or pardon.” And I 
said, “ITider no circumstances should this ever be raised with the President.” 

The President. (Unintelligible). Well, he raised it, I must say, in a tangential 
way. Now he denies that, as I understand it, that he said they’d be out by 
Christmas. He says — 

Ehrlichman. I’ve never talked to Chuck about that, have you? 

The President. What did he say he said? Well, I’ll tell you what I, what Dean, 
or somebody, tells me he said he said. He said that he didn’t. He just talked or 
saw Bittman causally — were off on (unintelligible) or something of that sort. 
(WHT 419-21) 

Later that same day Haldeman and Ehrlichman discussed with 
the President the possible criminal liability of Colson for having- 
offered Hunt clemency. 

Ehrlichman. My guess is that a fellow like Bittman [sic] has probably nego- 
tiated immunity for himself, and lias — 

Haldeman. Dean strongly feels they wouldn’t give it to him. 

The President. They would. 

Haldeman. Will not- — 

Ehrlichman. He is going to tell them about a lot of conversations he had with 
a lot of people. 

The President. Bitman is? 

Ehrlichman. Y r eah. 

The President. Do we know that? 

Ehrlichman. I don’t know that but I know, for instance, that Bitman had 
a conversation with Colson that was a W T atergate conversation. And I know what 
Colson says about it — that he was brilliant and adroit, avoided any— 

Haldeman. And he says Bitman’s recollection of it would be exactly the same 
as Colson’s — his recollection of the specific conversation — but he says Bitman 
may draw conclusions from it. 

The President. This is the clemency conversation ? And his conclusion would be 
that lie felt the President had offered clemency ? 

Haldeman. No. His conclusion he, Colson, will have Hunt out by Christmas. 
He says you know what kind of pull I have at the White House. I will be able 
to to work that. That’s what he would have thought. That by saying — 

The President. How does Colson handle that? 

Ehrlichman. He says he has a paper or a memo or something that says 
exactly what he said. 

The President. Just a minute. 

Haldeman. He wrote a memorandum of the conversation immediately after 
the conversation. That’s all it is— his side of the story. 

The President. You don’t think this would lead to an indictment of Colson 
do you? 

Ehrlichman. I don’t know. Dean thinks everybody in the place is going to get 
indicted. 



406 


Haldeman. They’re all doing the same thing. Look, Dean said just looking at 
the worst possible side of the coin that you could make a list of everybody who 
in some way is technically indictable in the cover-up operation. And that list 
includes, in addition to Mitchell, Haldeman, Elirlichman, Colson, Dean— 

The President. Because they all discussed it? 

Haldeman. Strachan, Kalmbach, Kalmbach’s go-between, Kalmbach’s source, 
LaRue, Mardian, O’Brien, Parkinson, Bittman, Hunt and you know just to keep 
wandering through the impossibles, maybe for everybody on that list to take a 
guilty plea and get immediate — what do you call it — 

Ehrlichman. Clemency. 

Haldeman. Clemency. That shows you the somewhat incredible way of some of 
John Dean’s analytical thinking. 

Ehrlichman. No way. 

The President. It’s a shame. There could be clemency in this case and at the 
proper time having in mind the extraordinary sentence^ of Magruder, etc. etc., 
but you know damn well it is ridiculous to talk about clemency. They all knew 
that. Colson knew that , I mean token you talked to Colson and he talked to me. 

( WHT 542^4 ; emphasis added) 

Two days later, on April 16, 1973, the President brought up the 
problem of the criminal liability of others for offering clemency and 
expressed a desire to know what had been offered and what the legal 
considerations thereof would be : 

The President. Yeah. Well, you take, for example, the clemency stuff. That’s 
solely Mitchell, apparently, and Colson’s talk with, uh. Bittman where lie says, 
“I’ll do everything I can because as a, as a friend — ” 1 ' 

Dean. No, that wa.s with Elirlichman. 

The President. Huh? 

Dean. That was Ehrlichman. 

The President. Ehrlichman with who? 

Dean, Elirlichman and Colson and I sat up there, and Colson presented his 
story to Ehrlichman 
The President. I know. 

Dean, regarding it and, and then John gave Chuck very clear instructions on 
going back and telling him that it, you know, “Give him the inference he’s got 
clemency but don’t give him any commitments.” 

The President, No commitment ? 

Dean. Right. 

The President. Now that’s all right. But first, if an individual, if it’s no com- 
mitment — Fvc got a right to sit here — Take a fellow like Hunt , or, uh, or , or a 
Cuban tohose wife is sick and something — that* s what clemency’s about. 

Dean. That’s right. 

The President. Correct? 

Dean. That’s right. 

The President. But, uh, but John specifically said, “No commitment,” did he? 
He— 

Dean. Yeah. 

The President. No commitment. Then, then Colson then went on to, appar- 
ently — 

Dean. I don’t know how Colson delivered it, uh — 

The President. Apparently to Bittman— 

Dean, for — 

The President. Bittman. It that your understanding? 

Dean. Yes, but I don’t know what his, you know, specific — 

The President. Where did this business of the Christmas thing get out, John? 
What the hell was that? 

Dean. Well, that’s, a, that’s a — 

The President. That must have been Mitchell, huh ? 

Dean. No, that was Chuck, again. I think that, uh — 

The President. That they all, that they’d all be out by Christmas? 


1 Two days earlier, on April 14th, Ehrlichman had told the President that Colson and 
his attorney, David Shapiro, had said that Mitchell had promised Hunt a pardon. (WHT 
412 ; see also WHT 435) 



407 


Dean. No, I think he said something to the effect that Christmas is the time 
that clemency generally occurs. 

The President. Oh, yeah. 

Dean. Uh— 

The President. Well, that doesn’t — I, I, I don’t think that is going to hurt him. 

Dean. No. 

The Peesident. Do y ou ? 

Dean. No. 

The President. “Clemency,” he says — One [unintelligible] he's a friend of 
Hunt's. I'm just trying to put the best face on it. If it's the wrong — if it is — I've 
got to knoiv. (HJCT 204-05 ; emphasis added.) 

In his March 21, 1973 morning conversation with Dean, after Dean 
had recited the facts of the cover-up as he saw them, the President 
brought up the subject of clemency and, after a brief discussion, de- 
cisively rejected the idea : 

The President. One problem : you’ve got a problem here. You have the prob- 
lem of Hunt and, uh, his, uh, his clemency. 

Dean. That’s right. And you’re going to have the clemency problem for the 
others. They all would expect to be out and that may put you in a position that’s 
just 

The Peesident. Right. 

Dean, untenable at some point. You know, the Watergate Hearings just over, 
Hunt now" demanding clemency or he is going to blow. And politically, it’d be im- 
possible for, you know, you to do it. You know, after everybody — 

The President. That’s right. 

Dean. I am not sure that you will ever be able to deliver on the clemency. It 
may be just too hot. 

The Peesident. You can’t do it till after the ’74 elections, that’s for sure. But 
even then 

Dean, [clears throat] 

The President, your point is that even then you couldn’t do it. 

Dean. That’s right. It may further involve you in a way you shouldn’t be in- 
volved in this. 

The President. No it’s wrong; that’s for sure. (HJCT, 103-04. 

For our present purposes, of course, it is wholly immaterial whether 
the President rejected the possibility of granting clemency because 
it was morally “wrong” or because it was “wrong” as a practical mat- 
ter. The essential point is that once again the President appears quite 
firmly opposed to the granting of clemency ; thereafter, he consistently 
put down any notion of awarding clemency to any of the Watergate 
defendants: 

. . . we’re not going to be able to give them clemency. (HJCT 107) 

. . . we’re not going to be able to deliver on, on any kind of clemency thing. 
(Id. 115) 

... you couldn’t provide clemency. (Id. 116) 

We can’t provide clemency. (Id.) 

• . . you know damn well it is ridiculous to talk about clemency. (WHT 544) 

The allegation contained in Paragraph (9) is without substantial 
support in the evidence, whether viewed according to the state of the 
record when the Committee voted to recommend the adoption of 
Article I to the full House, or according to the state of the record as 
we file these views. Paragraph (9) is a bad charge; it should never 
have been lodged against President Nixon. 

THE MARCH 21, 1973 PAYMENT TO HOWARD HUNT 

When the June 1972 grand jury of the United States District Court 
for the District of Columbia returned its now famous indictment in 



408 


the case of United States v. Mitchell , et al . on March 1, 1974 there 
began a five-month period of intense public preoccupation with the 
events of a single day — March 21, 1973 — such as has seldom been seen 
in the history of this country. This occurred because the content and 
sequence of the overt acts alleged to have been perpetrated in further- 
ance of the aims of the Watergate cover-up conspiracy charged in 
Count One of the indictment appeared to allege, in essence, that the 
final payment of “hush money” to Howard Hunt was set in motion 
by a direct order of the President, conveyed by Haldeman to Mitchell, 
then by Mitchell to LaRue, who actually saw to the execution of the 
order. 

The central thrust of this allegation was reiterated when the same 
grand jury forwarded to this Committee its Report and Recommenda- 
tion and supporting evidentiary materials relating to the possible 
involvement of the President in the criminal conspiracy charged in 
Count One of the Mitchell indictment. 

When we voted in Committee against recommending to the House 
the adoption of proposed Article I, we were already convinced that the 
President’s criminal liability as a co -conspirator in the Watergate 
cover-up did not turn upon whether the payment of $75,000 made to 
Hunt on the evening of March 21, 1973 was the result of a direct 
Presidential order, as the Watergate grand jury apparently felt was 
the fact, or even upon whether the payment was one of “hush money.” 
Rather, it seemed to us, the question of the President’s c rrirnmal ■ liabil- 
ity turned upon whether the President had, during his conversation 
with John Dean on the morning of the 21st, acted affirmatively and 
intentionally in some fashion to associate himself with the ongoing 
conspiracy. 

From the standpoint of Presidential liability to impeachment, we 
thought it to be relevant, but not controlling, whether the President 
had knowingly ordered the payment of “hush money” to Hunt, to 
“buy time” or for whatever purpose. Even this question was over- 
shadowed, in our estimate, by another, more critical one : if the Presi- 
dent ever did become criminally liable for participating in the Water- 
gate cover-up conspiracy, did he do so early in the course of the con- 
spiracy, and was his role active and leading, or did he first join the 
conspiracy long after it was underway, such as in March of 1973, by 
virtue of his imprudent and unlawful response to having, to put it 
colloquially, the entire mess dumped suddenly in his lap as a result 
of the Dean disclosures of March 13 and 21, 1973. 

While the President’s revelation of new evidence on August 5, 1974 
effectively resolved this latter question for us, as it seems to have done 
for the rest of the Nation as well, the enormous amount of public 
attention focused upon this issue during most of 1974 persuades us that 
it is still important that we set down our analysis of the evidence 
bearing upon the manner in which the final payment of CRP funds 
to Hunt came to be made. Our view of the evidence on this point differs 
substantially from that of the grand jury, as well as from that set 
out in the Committee report. 

The majority of the Committee has, we believe, rendered a version 
of the facts relating to the March 21, 1973 payment to Hunt that flies 
in the face of a considerable amount of evidence in the record. One 



409 


who reads the “Payments” section of the discussion of proposed 
Article I in the Committee report is led to believe that Dean met with 
the President and Haldeman on the morning of the 21st; that follow- 
ing that meeting Dean telephoned LaRue to arrange the making of 
the payment to Hunt; that LaRue and Mitchell then conferred by 
telephone, whereupon Mitchell authorized the payment to go forward ; 
and that later that day LaRue effectuated the delivery of the money 
to Hunt. 

We think this construction of the facts is mistaken. The evidence 
clearly shows that Dean talked to both LaRue and Mitchell before 
meeting with the President on the morning of March 21st, that ar- 
rangements for the delivery of the money were made independently 
of that meeting or any of its results, and that in all probability the 
deliver}' of the money to Hunt would have taken place even if Dean 
had not talked with the President that day. 

On or about March 16, 1973, Howard Hunt met with Paul O’Brien, 
a CRP attorney. Hunt informed O’Brien that commitments had been 
made to him but not met; that he had done “seamy” things for the 
White House; and that, unless his commitments were met (including 
$130,000 for attorney’s fees and support), he might be forced to review 
his options. (Book III, 902, 906, 915; Bittman testimony, 2 HJC 25). 
On Mar ch 16th, Hunt also met with Colson’s attorney, David Shapiro. 
According to Colson, Hunt requested of Shapiro that Colson act as 
Hunt’s liaison with the "White House, but was told that this was im- 
possible. (Book III, 924; Colson testimony, 3 HJC 323, 331). 

Colson has testified that Shapiro informed his after Shapiro’s meet- 
ing with Hunt that Colson should have no further contact with either 
Hunt or anyone in the White House concerning Hunt. Shapiro also 
told Colson that the situation in the White House was getting serious. 
Shapiro said, “for God’s sake, the President has to get the facts. Who 
knows what’s going on in that place. The fox may be guarding the 
chickens.” Colson reminded Shapiro that Colson had earlier voiced 
to the President suspicions about Mitchell, but the President had re- 
sponded that Mitchell swore he was innocent. Colson told Shapiro 
that it was impossible to know what advice the President was getting, 
or from whom lie was getting it, and that Colson suspected the Presi- 
dent would not know whom to believe. (Book III, 926) 

O’Brien has testified that he went immediately from his meeting 
with Hunt to see Dean at his office in the Executive Office Building. 
(O’Brien testimony, 2 HJC 125-28; Dean testimony, 2 HJC 238- 
240) 

Paul O’Brien’s name appears on Dean’s telephone logs for March 20, 
March 21, and March 23, 1973. Dean’s logs for the period January 3 
through April 30, 1973 reflect almost daily contact with both O’Brien 
and Mitchell until March 22, 1973, when contact with Mitchell 
dropped off sharply. (Dean testimony, 2HJO 314-16; Dean logs, im- 
peachment inquiry files) Dean has testified, and the White House 
appointment records verify, that O’Brien met with Dean on March 
19th in the Executive Office Building. Because of the frequency of 
contacts between the two men, however, it is unclear whether this 
meeting was the one that O’Brien contended took place on Friday, 
March 16th, immediately following his meeting with Hunt. 



410 


Dean, in any event, testified that it was on the 19th that O’Brien 
conveyed to him Hunt’s grim message suggesting that commitments 
made to him were not kept, and that if money for his attorney’s fees 
and family support was not forthcoming he might have to reconsider 
his options, in which case he might have some very “seamy” things 
to say about Ehrlichman. (Book III, 946H9) Dean testified that he 
told O’Brien that he was “out of the money business.” 

On March 20, 1973, Ehrlichman met with Dean at the White House. 
They discussed Hunt’s demand for money, and the possibility that 
Hunt might reveal the “seamy” things he had done for Ehrlichman if 
the money was not forthcoming. Ehrlichman has said that he thought 
Hunt was referring to his previous activities as a member of the White 
House “Plumbers” unit when he mentioned “seamy” things. (Book 
III, 952-59) According to Dean, Ehrlichman said he wondered what 
Hunt meant and suggested that Dean discuss the matter with Mitchell. 
Ehrlichman, on the other hand, claims that he suggested Dean talk to 
Colson. (Book III, 955, 957) 

That same afternoon Ehrlichman had a telephone conversation with 
Egil Krogli in which he told Krogh that Hunt was asking for a lot of 
money. Krogh has testified that Ehrlichman told him that Hunt might 
“blow the lid off” and that Mitchell was responsible for “ the care and 
feeding of Howard Hunt.” (Book III, 961-62) 

Also on March 20tli, Dean had a conversation with Richard Moore, 
a Special Counsel to the President, before they met with the President 
to discuss a draft of a proposed public statement relating to possible 
appearance of White House personnel before the Senate Select Com- 
mittee. Dean told Moore that Hunt was demanding a lafge sum of 
money before his sentencing, then scheduled for that Friday, March 
23rd, and that if the demand was not met, Hunt was threatening to 
say things that would be serious for the White House. (Book III, 
966-68) 

Dean has testified that after their meeting with the President that 
day he told Moore that lie did not think the President understood all 
the facts involved in Watergate, and particularly the implications of 
those facts, and that he felt he had to lay the facts and implications out 
for the President. Moore, however, has testified that it was he who told 
Dean of his own feeling “that the President had no knowledge of the 
things that were worrying Dean” and that Dean should tell the Presi- 
dent what he knew. The next day, according to Moore, Dean told him 
that he talked with the President and told him “everything,” and that 
the President had been surprised. (Book III, 966-68) 

Dean has testified that he and LaRue met in Dean’s office on either 
the afternoon of March 20th or the morning of March 21st, and that he 
told LaRue of Hunt’s latest demand for money. LaRue then asked 
Dean if he was planning to do anything about Hunt’s demand, and 
Dean said no, he was out of the money business. LaRue asked Dean 
what he (LaRue) should do, and Dean suggested that he contact 
Mitchell. (Dean testimony, 2 HJC 250) 

Whether this meeting occurred on the early morning of March 21st 
or on the previous afternoon, it is Dean’s “best recollection” that it took 
place some time before Dean met with the President on the morning 
of the 21st. (Dean testimony, 2 HJC 260) 



411 


During the afternoon of the 20th, Dean was visited by Krogh who, 
as a result of his conversation with Ehrlichnian about Hunt, had be- 
come alarmed as to his potential liability for perjury in connection 
with his knowledge of the activities of Hunt and Liddy. Dean told 
Krogh about Hunt’s demands and told him that the President was 
being ill-served, that something had to be done. (Dean testimony, 2 

On the evening of March 20, 1973, Dean talked with the President 
by telephone and in the course of the conversation he arranged to see 
the President the next day. (WHT 164) 

Apparently Dean also spoke by telephone with John Mitchell at his 
home in New York that evening and told him of Hunt’s demand for 
money. (Dean testimony, 2 HJC 248) During his conversation with the 
President the next morning, Dean described the conversation as 
follows : 

Dean. . . . Apparently, Mitchell has talked to Pappas, and I called him last — 
John asked me to call him last night after our discussion and after you’d met 
with John to see where that was. And I, I said, “Have you talked to, to Pappas?” 
He was at home, and Martha picked up the phone so it was all in code. “Did you 
talk to the Greek?” And he said, uh, “Yes, I have.” and I said, “Is the Greek 
bearing gifts?” He said, “Well, I want to call you tomorrow on that.” (HJCT 122) 

Dean did not, however, tell the President at any point during this 
conversation that he had also already spoken with LaRue about the 
Hunt situation, even though by advising Mitchell of the problem and 
by urging LaRue to talk with Mitchell about it, Dean had already 
taken all the steps which would be necessary to set in motion a payment 
of cash to Hunt in response to his demand. 

Notwithstanding the extensive discussion among Dean, Haldeman 
and the President on the morning of March 21st about the desirability 
of taking some action to “buy time” lest Hunt begin talking and elim- 
inate all of the conspirators’ “options,” the content of the conversation 
taken as a whole and the subsequent behavior of the three participants 
in it suggests that the only firm conclusion that can be drawn regarding 
the President’s attitude toward meeting Hunt’s immediate demand is 
that he considered it . 

While at several other points in the conversation the President ap- 
peared favorably disposed toward making a payment to Hunt as a 
temporary expedient, there are indications near the end of the conver- 
sation that the President had not actually settled on that course : 

The President, That’s right. Try to look around the track. We have no choice 
on Hunt but to try to keep him — 

Dean. Right now, we have no choice. 

The President. But, but my point is, do you ever have any choice on Hunt? 
That’s the point. 

Dean. [Sighs] 

The Piesident. No matter what we do here now, John, 

Dean. Well, if we — 

The President. Hunt eventually, if he isn’t going to get commuted and so 
forth, he’s going to blow the whistle. ( HJCT 125) , 

The conversation concludes on a distinctly indecisive note: 

The President. All right. Fine. And, up, my point is that, uh, we can, uh, 
you may well come — I think it is good, frankly to consider these various options. 
And then, once you, once you decide on the plan — John — and you had the right 
plan, let me say, I have no doubts about the right plan before the election. And 
you handled it just right. You contained it. Now after the election we’ve got to 



412 


have another plan, because we can’t have, for four years, we can’t have this 
thing — you're going to be eaten away. We can’t do it. (HJOT 129-30) 

The only evidence of contact between either Mitchell or LaRue 
and anyone at the White House following the morning conversation 
among Dean, Haldeman and the President is the telephone call placed 
to Mitchell by Haldeman at 12 :30 pan. During the morning conversa- 
tion, the President had ordered that Mitchell be brought to Washing- 
ton to meet with Haldeman, Ehrlichman and Dean to discuss alter- 
native means of extricating the group from the cover-up : 

The President. . . . Second, you’ve got to get Mitchell down here. And you 
and Ehrliehman and Mitchell and let’s — and — by tomorrow. 

Haldeman. Why don’t we do that tonight? 

The President. I don’t think you can get him that soon, can you? 

Haldeman. John? 

The President. It would be helpful if you could. 

Dean. I think it would be. 

The President. You need — 

Dean. Get him to come down this afternoon. (HJCT 129) 

Haldeman has testified that his only purpose in calling Mitchell 
was to arrange for him to come to Washington. (Book III, 1121) 
Mitchell testified before this Committee that he has a definite recol- 
lection of Haldeman’s having called him shortly after noon asking 
him to come to Washington. Moreover, he recalls that this conversa- 
tion took place after he had talked with LaRue about whether Hunt’s 
demand should be met. (Mitchell testimony, 2 II JC 179-87) In his 
June, 1973 testimony before the Senate Select Committee, Dean indi- 
cated that it came to his attention in some fashion that, after the 
morning meeting with the President broke up, Haldeman “called 
Mitchell and asked him to come down the next day for a meeting with 
the President on the Watergate matter. 51 (3 SSC 1000) 

During a conversation among Haldeman, Ehrlichman, Dean and 
the President in the late afternoon of March 21st, an ambiguous re- 
mark by Dean may give rise to a suspicion — but only a suspicion — 
that someone in the group there assembled had discussed the Hunt 
problem with either Mitchell or LaRue since Dean’s morning meeting 
with the President : 

The President. So then now — so the point we have to, the bridge you have 
to cut, uh, cross there is, uh, which you’ve got to cross, I understand, quite soon, 
is whether, uh, we, uh, what you do about, uh, his present demand. Now, what, 
what, uh, what [unintelligble] about that? 

Dean. Well, apparently Mitchell and, and, uh, uh. 

Unidentified. LaRue. 

Dean. LaRue are now aware of it , so they know what he is feeling. 

The President. True. [Unintelligible] do something. 

Dean. I, I have, I have not talked with either. I think they are in a position 
to do something, though. (HJCT 133 ; emphasis added) 

Since that very morning Dean had told the President that he had 
talked with Mitchell the previous evening about Pappas and the 
money situation generally, it is reasonable to infer that Dean meant 
he had not talked with either Mitchell or LaRue since meeting with 
the President earlier that day. Dean’s comment that Mitchell and 
LaRue “are now aware of it 55 suggests that someone other than Dean 
had talked with one of the two and told Dean about it, but the re- 
mark is still puzzling, since Dean had known when he talked with the 



413 


President in the morning that both Mitchell and LaRue were well 
aware of the situation — Dean himself had informed both of them. The 
most likely explanation, then, it seems to us, is that Dean was covering 
the fact that he had earlier withheld from the President the fact that 
lie had already spoken with both Mitchell and LaRue specifically 
about meeting the Hunt demand but had allowed the President to 
think that he was being presented with a problem which Dean had not 
yet taken concrete steps to address. 

The evidence is highly persuasive that none of the participants in 
the March 21st morning conversation seems to have formed the im- 
pression that the President had affirmatively sought to insure that the 
payment to Hunt would be made. This in itself is probative of the fact 
that the President’s role in arranging for the making of that payment 
was, at most, quite passive and certainly not instrumental. 

In testifying before the Senate Select Committee in June of 1973, 
only three months after the events in question, Dean evidenced no be- 
lief that the President had authorized or directed “hush money” to 
be paid to Hunt. Nowhere in his lengthy testimony did he make sucli 
an allegation. To the contrary, although Dean seems erroneously to 
have recalled that some aspects of raising “hush money” over a long 
period of time were discussed with the President on March 13, 1973, 
Dean makes it clear throughout his SSC testimony that at the conclu- 
sion of his discussions of “hush money” with the President, 

the money matter was left very much hanging at that [March 13th] meeting. 
Nothing was resolved. (Dean testimony, 4 SSC 1423) 

. . . The conversations then turned back to a question from the President re- 
garding the money that was being paid to the defendants. He asked me how this 
was done. I told him I didn’t know much about it other than the fact that the 
money was laundered so it could not be traced and then there were secret deliv- 
eries. I told him I Avas learning about things I had never known before, but the 
next time I would certainly be more knowledgeable. This comment got a laugh 
out of Haldeman [who did not, in fact, attend the March 13-th meeting]. The 
meeting ended on this note and there was no further discussion of the matter and 
it Avas left hanging just as I liaA r e described it. (Dean testimony, 3 SSC 996) 

Likewise, in his recitation of the content of his March 21, 1973 morn- 
ing com r ersation with the President, Dean did not in any way suggest 
that a presidential decision to order or encourage the payment of “hush 
money” to Hunt or any other Watergate defendant had been made. 
(Dean testimony, 3 SSC 998-1000) 

What perplexes us is this : if Hunt’s demand for cash alarmed Dean 
enough to precipitate his going in to see the President and lay out the 
“full” story about the cover-up, is it reasonable to believe that he left 
that momentous meeting with the President without knowing Avhat 
was to be done about Hunt’s demand? Dean, of course, had a very 
personal interest in the maintenance of Hunt’s silence, at least until 
the cover-up might be unravelled in some orderly, tolerable manner, 
because of Dean’s own potential criminal liabilities which he so viv- 
idly described to the President during the course of their conversa- 
tions on March 21st. 

It is truly remarkable, therefore, that in the course of reading his 
veritable litany of charges levelled by him against President Nixon 
during five days of testimony before the Senate Select Committee 
Dean did not once allege that the President authorized, directed or even 
expressly approved the payment of $75,000 in “hush money” to Howard 



414 


Hunt— unless, of course, the President took no such action and made no 
such decision. 

According to remarks made during their conversation with Ehrlich- 
man and Ziegler in the Oval Office on April 17, 1973, it appears that 
neither Haldeman nor the President had any recollection that the 
President had manifested on the morning of March 21st a desire that 
Hunt be paid : 

Haldeman. You explored in that conversation the possibility of whether such 
kinds of money could be raised. You said, “Well, we ought to be able to raise — ” 

The President. That’s right. 

Haldeman. “How much money is involved?” and he said, “Well it could be 
a million dollars.” You said, ‘That’s ridiculous. You can’t say a million. Maybe 
you say a million, it may be 2 or 10, and 11” 

The President. But then we got into the blackmail. 

Haldeman. You said/ ‘Once you start down the path with blackmail it’s con- 
stant escalation.” 

The President. Yep. That’s my only conversation with regard to that. 

Haldeman. They could jump and then say, “Yes, well that was morally wrong. 
What you should have said is that blackmail is wrong not that it’s too costly.” 
(WHT 1034) 

This last remark by Haldeman bespeaks a recollection that it was 
the amoral appearance of the President's reason for refusing to go 
along with the payment of “blackmail” which might pose a political 
or public relations problem, not that the President was vulnerable on 
the more serious count that he had actually approved the payment of 
“hush money” to Hunt. It should be noted, parenthetically, that there 
is no evidence that either Haldeman or the President had listened 
to a tape recording of the March 21st morning conversation as of the 
date on which Haldeman spoke the lines quoted above, April 17, 1973. 

Indeed, as of March 22, 1973 there was evidence that the President 
had rejected, not approved, the payment of money to maintain Hunt’s 
silence. The White House edited transcript of his conversation with 
Haldeman between 9:11 and 10 :35 a.m. that day shows the President 
saying : 

Damn it — when people are in jail there is every right for people to raise money 
for them, (inaudible) and that’s all there is to it. I don’t think we ought to 
(inaudible) — there’s got to be funds — I’m not being — I don't mean to be black- 
mailed by Hunt — that goes too far , but for taking care of these people that are 
in jail — my God they did this for — we are sorry for them — we did it out of 
compassion, yet I don’t (inaudible) about that — people have contributed (in- 
audible) report on that damn thing — there's no report required (inaudible) what 
happens. . , . (WHT, March 22, 1973; 9:11 — 10:35 a.m., 1 — 2; emphasis added) 

White House Relationship With the Office of the Watergate 

Special Prosecutor 

The President felt that putting a special prosecutor on the Water- 
gate case would be a negative reflection on the efficacy and the integrity 
of the Department of Justice. (WHT, April 15, 1973, 712.) The 
President felt that the U.S. Attorney’s Office was doing a fine job and 
he was inclined to let them stay in charge of the case, especially since 
a special prosecutor w^ould have to familiarize himself with the facts. 

President. Oh, they’re [Mitchell et al] all going to be indicted. Well, that’s 
my point. I thought, I think if the course just goes like it is they’re going to be 
indicted. You mean you’d [Kleindienst] have a special prosecutor immediately? 



415 


Here’s my point, if they’re going to indict anyway that sort of — that shows 

that . . . the thing does work These gnys are crowding in — Silbert and 

the rest — they aren’t taking any program — we’re not giving them any — 

I could call in Titus and Silbert I’d say, look — you are totally independent 
here and you ought ... to tear this case up. Now go to it. See my point is, you 
call in a special prosecutor, he’s got to learn the whole damn thing. . . . (WHT 
716-17). 

Kleindienst. No, the special prosecutor would not try the case, Mr. President. 
What he would do is substitute himself for the Attorney General. Silbert would 
try the case. What he would do would have overview with respect to what they 
were doing and participating in the prosecuting decisions that are made from 
time to time. (WHT 737) 

The President did not initially envision a completely independent 
special prosecutor. The concept as explained by Kleindienst would be 
that of an independent overseer. 

On April 15, 1973 the President told Haldeman he had concluded 
that he would have to have a special prosecutor. The President then 
explained to Haldeman his concept of a special prosecutor. 

President. This is not to prosecute the case. A special prosecutor, to look at 
the indictments to see that the indictments run to everybody they need to run 
to, so that it isn’t just the President’s men, you see. 

Haldeman. In other words, he is above Silbert rather than replacing Silbert? 

President. Oh no, Silbert runs the case and that’s all. But he is just in there 
for the purpose of examining all this to see that the indictment covers everybody. 
(Telephone conversation between the President and Haldeman, April 15, 1973, 
(WHT 752-53) 

On April 30, 1973 the President announced that Elliot Richardson 
would be the new Attorney General and would have absolute author- 
ity to make all decisions bearing upon the prosecution of the Water- 
gate case. He also stated that Richardson would have the authority 
to name a special’ supervising prosecutor for matters arising out of 
the case. The President still regarded the special prosecutor to be in 
the role of a general supervising attorney who would provide a careful 
overview. (Book IX, 134— 135) 

On May 21, 1973 Richardson announced his selection of Archibald 
Cox as Special Prosecutor. (Book IX, 146) Richardson also presented 
the Senate Judiciary Committee with guidelines created by the Attor- 
ney General’s Office, giving Cox a great degree of independence and 
an extensive jurisdiction. Cox became the Special Prosecutor officially 
on May 25, 1973. (Book IX, 150) The President was caught by sur- 
prise. He was definitely not committed to the terms of that charter. 
Richardson has testified : 

[T]he President was not personally committed to tlie terms of the charter. He 
approved of it. At least he acquiesced in it. But he was not consulted in any way 
during the course of the development of the so-called guidelines under which 
Mr. Cox worked, and he was never in a position where he was called upon 
directly to say “I personally stand back of and will adhere to these terms and 
conditions.” 

The second problem was that the charter itself could not and did not purport 
to guarantee access by the Special Prosecutor to Presidential papers, memoranda 
or notes and, of course, there was no reason at that point to foresee the potential 
availability or existence of tape recordings. (Richardson testimony, Special 
Prosecutor Hearings, 238) 

Richardson never defined what he meant bv the fact that the Presi- 
dent acquiesced or approved of the charter. The clear inference is that 
the President only “acquiesced and approved” of Richardson’s having 


37-777 0 - 74-27 



416 


the right to draw up a charter and to negotiate this charter with the 
Senate Judiciary Committee and with the new Special Prosecutor and 
not to the charter itself. (Special Prosecutor Hearings, 250) 

On May 25, 1973 the President told Richardson that although he 
had waived executive privilege as to testimony referred to, he was not 
waiving executive privilege as to documentary evidence. (Book IX, 
15) The President had specifically given Richardson authority for 
all decisions with regard to Watergate. However, the then At- 
torney General never informed Cox of President Nixon’s stated 
intention not to waive executive privilege with regard to non-testi- 
monial evidence, although Richardson had created the office of the 
Special Prosecutor and was Cox’s superior. The President never com- 
municated directly to Cox, but always through Richardson or some 
other intermediary. It can be inferred that the President believed that 
Cox was aware of his intention and could therefore only regard his 
constant requests for non-testimonial evidence as being subject to the 
President’s discretion. 

In an interview with the inquiry staff, Cox stated that it never 
occurred to him that the White House would make a distinction be- 
tween testimony and documents. Cox stated specifically that “nobody 
in May” thought that executive privilege was limited to oral testi- 
mony. (Staff Interview with Cox, May 10, 1974) 

As Richardson was to testify later : 

Senator McClellan. In other words, the right to executive privilege has not 
yet been waived? 

Mr. Richardson. That is correct. 

Senator McClellan. It is still reserved? 

Mr. Richardson. It is still reserved. When I appeared here originally, and 
Mr. Cox appeared with me after he had been selected, neither of us thought . . . 
of asking in effect for a waiver of executive privilege by the President. (1 Special 
Prosecutor Hearings 243) 

Cox accepted the position of Special Prosecutor on May 18, 1973. 
The staff which he immediately began to assemble included in the top 
positions a number of Democratic attorneys who had served in the 
Department of Justice during the Kennedy Administration. This 
caused great alarm at the White House and set a tone of White House 
mistrust and hostility toward the Special Prosecutor. 

On June 19, 1973 Haig complained to Richardson about Cox. 
Haig stated “The President was upset about references to subpenaing 
the President or indicting the President or what he interpreted as 
references to that general effect”; that “the Republicans were shocked 
by this, it was indicative of an unlimited hunting license to Cox, that 
the whole thing was blatantly partisan, or to that effect.” (Richardson 
testimony, 2 Special Prosecutor Hearings 405) 

From June 25 through June 29, 1973 John Dean testified exten- 
sively about the Watergate affair and made many charges against 
the President. On June 27, 1973 Cox wrote J. Fred Buzhardt, the 
President’s lawyer, and formally requested that the President furnish 
a detailed narrative answering the allegations mentioned in Dean’s 
testimony before the Senate Select Committee. (Book IX, 314, 316, 
3i8) 

On or about July 3, the Los Angeles Times reported that the Special 
Prosecutor’s office was investigating expenditures relating to the 



417 


“Western White House” at San Clemente. The President was very 
upset about this and demanded to know if, in fact, he was being 
investigated. Cox later issued a statement that the Western White 
House was not under investigation by the Office of the Special 
Prosecutor. Haig complained to Richardson that it could not be part 
of the Special Prosecutor’s charter directly to investigate the Presi- 
dent of the United States. Haig commented that the President might 
fire Cox. (Book IX, 330) 

On July 23, 1973 General Haig again contacted Richardson and 
complained that “the boss” was very “uptight” about Cox because 
the Office of the Special Prosecutor was seeking information from 
the IRS and the Secret Service including guidelines for electronic 
surveillance. The President apparently felt that the information which 
the Office of the Special Prosecutor was seeking from these agencies 
was overbroad, and Haig told Richardson, “if we have to have a con- 
frontation we will have it.” He added that the President wanted “a 
tight line drawn with no further mistakes” and that “if Cox does not 
agree we will get rid of Cox.” Richardson communicated the Presi- 
dent’s displeasure to the Office of the Special Prosecutor and Cox 
agreed that the request for information contained in the letter sent by 
his office to the Treasury Department agencies had been overbroad. 
(Book IX, 404) 

On August 22, at a hearing on the Grand Jury tapes subpoena of 
July 23, 1973 issued to the President, Charles Alan Wright argued 
that- one of the reasons the President was not obliged to turn over 
the tapes was that of presidential privilege. He stated, “there are, 
in the United States today, 400 district judgeships authorized by law. 
A holding that the court has power to pass on a President’s claim of 
privilege as to his most private papers and to compel him to give up 
those papers would be a precedent for all 400 of those district judges.” 
(In re Grand Jury, Misc. No. 47-73, 5) 

During this same hearing before Judge Sirica, Cox argued against 
the applicability of presidential privilege in the instant case: 

They tell us that the privilege is needed to keep secret conversations, in 
which corruption like the Teapot Dome might be planned, to hide a business- 
man’s discussion with the President of violations of the Sherman Act, or to 
protect against charges of perjury a general who may bomb a country secretly with 
which we are at peace or who may then lie to a Senate committee and the 
general public, and discuss his perjury with the President. (In re Grand Jury , 
Misc. No. 47-73, 34-35) 

Cox, in arguing that executive privilege must fall when there is 
an overriding reason to challenge it, states, “There is not merely 
accusation, but strong reason to believe that the integrity of the Ex- 
ecutive offices has been corrupted, although the extent of the rot is 
not yet clear.” (Id. 28) Cox stated that “the case is one that weighs 
heavily upon me. At some points I may have pressed the arguments 
too sharply in an effort to make the nature of the point. I certainly 
intended no disrespect to either the Presidency or to respondent.” 
(Id. 48) 

During this same hearing, Cox alluded to the President’s power to 
dismiss both the case and the prosecutor. 

I think the executive can’t have it both ways. If he wishes to leave the matter 
to the courts, then he must leave the matter to the courts to be decided in 



418 


accordance with rules of law, and counsel should not bring in the back door 
the mention of this ultimate power to dismiss the case. If he wishes to dismiss 
the case, if he has the power, then he should exercise it and people know where 
the responsibility lies. 

But it is unfair to the court to put it in the position of saying, I think, we 
rule as a matter of law that these papers may be withheld, when in fact, what 
is influencing it is the executive ultimate power of dismissal. That, if I may 
venture without any disrespect, would seem to me to be almost a deceit which 
would undermine confidence in the processes of justice. {In re Grand Jury , 
Misc. No. 47-73, 52) 

The Court. One final question. Are you presently empowered to make the 
final decision or not to pursue further prosecutions in the Watergate matter, 
and, if so, are you committed to pursue such prosecutions, provided the evidence 
in your opinion warrants and a grand jury votes the indictment? 

Mr. Cox. I am unquestionably committed to pursue it. And, as I understand 
it, I have the final authority by delegation from the Attorney General, who has 
the authority under the statutes. The only conceivable way to putting an end 
to it would be to exercise the power that the President interjects and exercises 
when he several times dismissed his Secretary of the Treasury until he got one 
who would proceed as he wished. But short of that, I think I have such authority, 
Your Honor. Yes, I certainly am so committed. {Id. 53-54) 

In late September or early October, 1973 after one of the final 
meetings regarding the Agnew matter, the President stated to 
Richardson that now that they had disposed of this problem, they 
could go ahead and get rid of Cox. (Book IX, 332) 

On October 12, 1973 the United States Court of Appeals for the 
District of Columbia ordered the President to turn over recordings 
for in camera inspection by Judge Sirica. (Book IX, 748) 

On October 15, 1973 Richardson attended a meeting at the White 
House, which was not attended by the President, to discuss the tapes 
litigation and the appellate court decision. The President’s aides 
discussed the possibility of producing a version of the tapes and then 
firing Cox. Richardson stated that this was unacceptable to him, and 
he then agreed to try to persuade Cox to accept the “Stennis proposal.” 
(Book IX, 756, 757, 759, 762) 

On October 17, 1973 Richardson submitted to Cox a proposal of 
the Stennis compromise which dealt only with the tapes covered by 
the subpoena. Richardson’s explanation to Cox did not refer to Cox 
being unable to seek access to future documents. (Book IX, 766) 

On October 18, 1973 Cox replied that he was not unalterably opposed 
to the essential idea of providing an impartial but non- judicial means 
for reviewing the tapes, so that an accurate version thereof could be 
obtained. However, he did submit certain distinct comments on the 
proposal, among which was a provision that, should the transcripts 
prepared by “special masters” not be acceptable for use at trial, the 
relevant portions of the tapes must be furnished. This of course left 
the door open for the tapes themselves to come into evidence and in a 
sense nullified the ultimate objectives of the President’s Stennis 
compromise. It was Cox who brought up the question of access to 
other documents by his comment No. 9 : “The narrow scope of the 
proposal is a grave defect, because it would not serve the function of a 
court decision in establishing the Special Prosecutor’s entitlement to 
other evidence. We have long-pending requests for many specific docu- 
ments. The proposal also leaves half a law suit hanging (i.e., the sub- 
poenaed papers). Some method of resolving these problems is 
required.” (Book IX, 774) 



419 


On October 19, 1973 Cox wrote to the President’s attorney, Charles 
Alan Wright, to say that he could not accept a number of proposals 
by the White House, notably that he agree not to subpoena any other 
White House tapes, papers or documents. Cox felt that to agree to 
waive his right to go to court would violate the promises which he had 
made to the Senate Judiciary Committee at the time of the confirma- 
tion of Attorney General Richardson. (Book IX, 791) 

On October 19, 1973 Wright replied to Cox’s letter of that same 
date, explaining that “categorically agreeing not to subpoena any 
other White House tape, paper or document” referred only to “private 
Presidential papers and meetings;” a category that Wright regarded 
as “much, much smaller than the great mass of White House documents 
with which the President has not personally been involved.” Charles 
Alan Wright stated that in his professional opinion the Stennis com- 
promise was “very reasonable — indeed an unprecedentedly generous — 
proposal that the Attorney General put to you in an effort, in the 
national interest, to resolve our disputes by mutual agreement at a 
time when the country would be particularly w T ell served by such an 
agreement,” (Book IX, 795) 

On October 19, 1973 the President wrote to Richardson commanding 
him to direct the Special Prosecutor to make no further attempts by 
judicial process to obtain tapes, notes or memoranda or presidential 
conversations. The President had stated earlier in the letter that he 
reluctantly had agreed to a limited breach of presidential confidential- 
ity (the Stennis proposal) “in order that our country might be spared 
the agony of further indecision and litigation about these tapes at 
a time when we are confronted with other issues of much greater 
moment to the country and the world.” (Book IX, 798) 

At this time the President wus dealing w r ith the Mideast crisis 
precipitated by the October War. 

On October 20, 1973 Richardson wrote the President and stated, 
inter alia , that “of course you have every right as President to with- 
draw 7 or modify any understanding on which I hold office under you.” 
Richardson then went on to state that, although the President could 
tell the Attorney General w 7 hat to do, he could not dictate to the Special 
Prosecutor, w 7 ho in effect was a creature of the Attorney General’s 
office and that Richardson had made many promises to the Senate 
Judiciary Committee regarding the independence of the Spcial Prose- 
cutor and had reaffirmed his “intention to assure the independence of 
the Special Prosecutor.” Richardson described the Stennis compromise 
as “reasonable and constructive” and stated that he had done his best 
“to persuade Mr. Cox of the desirability of the solution of the issue.” 
Richardson did balk at the concept of precluding Cox from seeking 
further access to presidential documents. (Book IX, 812) 

On October 20, 1973 Cox held a press conference at 1 :00 p.m. and 
asserted that “there was clearly prima facie evidence of serious wrong- 
doing on the part of high government officials.” (Cox Press Confer- 
ence, October 20, 1973, 3) In making his case public before the nation, 
Cox elaborated on his reasons for rejecting the Stennis proposal. He 
complained, “I would be instructed not to use the judicial process in 
order to obtain tapes or documents, memoranda relating to other 
Presidential conversations . . . and I think the instructions are in- 



420 


consistent with pledges that were made to the United States Senate, 
and through the Senate to the American people before I was appointed 
and before Attorney General Richardson’s nomination was confirmed.” 
(Id., 6-7) Cox catalogued all of the logs and documents he had 
requested, and explained how he had been frustrated by the White 
House. (Id., 9-15) He stated his intention to continue his duties and 
to pursue the mandate of the court of appeals in seeking the tapes. (Id., 
p. 16) He intimated that he might seek an order to show cause why 
the President should not be held in contempt of court, (Id. 17) 

On September 29, 1973 an article had been published by the noted 
constitutional scholar Alexander M. Bickel. The central point of the 
article was that Special Prosecutor Cox was “not only the President’s 
adversary, he is also the Presidents subordinate”. Bickel elaborated on 
this proposition as follows : 

Mr. Cox has no constitutional or otherwise legal existence except as he is a 
creature of the Attorney General who is a creature of the President. Both exer- 
cise on behalf of the President and subject to his direction the President’s 
constitutional responsibility and authority to take care that the laws be faith- 
fully executed. To the extent therefore that the President’s adversary is Mr. Cox, 
the President is litigating with himself .... The President is in fact litigating 
with himself and has it in his lawful power to nullify the result of litigation in 
the end by collapsing his creature Mr. Cox into his creature Mr. Wright — if 
this is so, then this law suit is no law suit, it is an internal controversy between 
the President and one of his subordinates, which the President at the moment : 
but only for the moment, is \inwilling to conclude by discharging Mr. Cox .... 
the Federal courts have no jurisdiction to hear such contrived controversies. 
They do not sit to resolve the executive’s family quarrels. It is not their function 
to render advisory opinions. Hence, the case must be dismissed.” 

Bickel’s point is that the President could destroy the lawsuit by dis- 
charging Cox. (New Republic, September 29, 1973, 13-14.) Accord- 
ing to Cox, Charles Wright also initially assured the President that 
he did not have to surrender the tapes. Wright apparently maintained 
a strong position on this point until shortly before Cox was fired. (Cox 
interview, May 10, 1974) 

On October 20, 1973, after the press conference of the Special 
Prosecutor, President Nixon discharged Cox and abolished the Office 
of the Special Prosecutor. (Book IX, 816, 818, 821-25) 

In the eyes of the President and his advisors, lie had made a 
monumental concession of executive privilege in acceding to the Stennis 
compromise. At that point in time, it was not at all clear that the 
President would ever have had to surrender the tapes. Charles Wright, 
Alexander Bickel and Archibald Cox, all eminent constitutional schol- 
ars, had indicated in diverse ways that the President could legally 
end present tapes litigation by discharging Special Prosecutor Cox. 
Instead, in acceding to the Stennis compromise President Nixon had 
agreed to what in his eyes was an unprecedented breach of presidential 
privilege. It was the President’s opinion, as expressed in his press con- 
ference of October 26, 1973, that Cox had rejected the Stennis com- 
promise, a compromise which President Nixon believed had been 
accepted by Attorney General Richardson, Senator Baker, Senator 
Irvin and others. This obstinacy on the part of Cox was regarded by 
the President as a severe breach of etiquette and loyalty at a time of 
grave national crisis (the Mideast situation), and the President felt 
that, he could not govern effective with Cox as Special Prosecutor. 



421 


There is strong reason to believe that President Nixon dismissed Cox 
as Special Prosecutor because lie regarded Cox as a disaffected em- 
ployee and disagreed with his methodology of prosecution. 

There is absolutely no evidence that President Nixon discharged the 
Special Prosecutor in an attempt to obstruct justice. 

In this testimony before the Senate Judiciary Committee during 
the Special Prosecutor Hearings, Richardson summed up the situation 
as follows : 

All I can testify to is what I know about what happened, and while there was 
this chronic sense of friction and strain arising out of the very existence of the 
Cox role, and that feeling erupted from time to time in some reaction, neverthe- 
less, the ultimate firing of Cox is proximately related to the attempt to negotiate 
an arrangement whereby he would be shut off from further access to presidential 
documents and so on. You can, if you choose, draw inferences with respect to the 
history as a whole. I am saying to you that while that is a possible inference, 
then one could well conclude that these frustrations and irritations to a degree 
had been cumulative ; nevertheless, I think it would be going beyond the evidence 
as I know it to conclude that the only explanation of all this was a determination 
to get rid of Cox going back to July as distinguished from a combination of con- 
cern with the exercise of his role, the character of his staff, impressions of that 
staff, coupled with the frustration arising out of the failure to get an agreement 
on what the President thought was a major concession. (2 Special Prosecutor 
Hearings 420, 421) 

On October 23, 1973 the President authorized Special Counsel 
Wright to inform Judge Sirica that the subpoenaed tapes would be 
turned over to the court. (Book IX, 828) On October 26, 1973, the 
President stated that the new Special Prosecutor would have total 
independence and cooperation from the executive branch. (Book IX, 
833) The President immediately made provisions for a new Special 
Prosecutor less than one week after Cox had been dismissed. The 
Special Prosecutors office continued to function at full strength and 
efficiency. On October 31, 1973 new Special Prosecutor Leon Jaworski 
met with General Haig and received assurances of complete inde- 
pendence both jurisdietionally and in the sense of being able to take 
the President to court. This independence was guaranteed to Jawor- 
ski personally by Haig after immediate consultation with the Presi- 
dent ( Book IX, 838-843) 

On November 19, 1973 Acting Attorney General Bork filed an 
amendment to the Special Prosecutor’s charter which provided that 
the jurisdiction of a Special Prosecutor would not be limited, nor 
would the Special Prosecutor be fired unless the President first con- 
sulted with the Majority and Minority leaders in the Congress and 
the Chairman and Ranking Minority Members of the Judiciary Com- 
mittees of the Senate and House of Representatives, and ascertained 
that their consensus was in accord with his proposed action. Jaworski 
was made aware of these assurances and commitments. (Book IX, 
862-866) 

On November 20, 1973. while testifying before the Senate Judiciary 
Committee during the Special Prosecutor Hearings Jaworski was 
questioned by Senator Hruska regarding the obtaining of evidence 
from the White House. Hruska was interested in Jaworski’s concept 
of what presidential non-cooperation might constitute. The following 
colloquy occurred : 

Senator Hruska. So that by the charter, by your agreement and your dis- 
cussions you are not to be denied access to the courts. Would you consider that 



422 


at that point where General Haig would assert, on behalf of the President, a 
privileged character to public documents, ... he was acting for or on behalf of 
the President beyond the law or above the law? 

Mr. Jaworski. No ; if he has a right to take that position — I have to recognize 
that I am not infallible — it may be that I am in error. It may be that my con- 
struction of what our rights are is in error. This is why we have the right to go 
to court and let the court determine who is correct. , 

Senator Hruska. So that it w T ould be a difference in judgment on a particular 
document, or a particular line of documents, but it would not be construed at 
that point that the President or somebody on his behalf was proceeding in de- 
fiance of law? 

Mr. Jaworski. Certainly I agree with that. And I do not intend to leave any 
impression to the contrary. (2 Special Prosecutor Hearings, 600) 

On January 31, 1974 Jaworski was quoted by the Washington Star 
Neivs as having stated “So far I 5 ve gotten what I insisted we were 
entitled to” (referring to the materials he requested from the White 
House). (Washington Star News , January 13, 1974, p. 12.) On Janu- 
ary 18, 1974 Jaworski appeared on the Today show, and the following 
exchange took place : 

Interviewer. A few weeks ago you said the White House was being quite open 
and cooperative in furnishing you all the information that you wanted. Is this 
still the case? Do you have any reservations about the cooperation you are getting 
from the White House? 

Jaworski. I have none at this point because the things I have asked for have 
either been furnished or have not yet been refused. I’m not saying that every- 
thing has been found that I have asked for. That’s another question. But I have 
not been refused the matters I have asked for. . . . Now, there are some requests 
outstanding.” January 18, 1974. Today show interview with Jaworski. 

On February 4, Jaworskrs public attitude changed a bit toward the 
President and he stated on Issues and Answers, “Any idea that this 
material has been spoon fed to me is an error . . . I’ve had to go after 
it . . . There was not one occasion when something was handed to me 
that I hadn’t asked for.” (Washington Star News , February 4, 1974. 

On February 14, 1974 Jaworski sent a letter to Senator Eastland, 
Chairman of the Senate Judiciary Committee, stating that full com- 
pliance and cooperation regarding information from the White House 
had not been forthcoming. Jaworski itemized the disputed areas and 
stated that he was sending this letter in response to a promise he had 
made to the Committee during the Saxbe confirmation hearings that 
he would inform them of the cooperation he received from the White 
House. Jaworski stated that he had experienced difficulty getting mate- 
rials of the Watergate investigation, the dairy industry investigation, 
and the Plumbers investigation. However, he stated that he had 
received a great amount of information from the White House and 
that the White House had allowed him to examine some files in the 
custody of the White House on various occasions. The Office of the 
Special Prosecutor was provided with documents from those files 
which were relevant to their investigations. Furthermore, the White 
House had provided the Office of the Special Prosecutor with four 
additional presidential conversations not subpoenaed and had allowed 
Jaworski access to six other conversations which were also not sub- 
poenaed. Jaworski went on to state that in his opinion the grand jury 
would be able to return indictments Avithout the benefit of some of the 
tapes requested of the White House. However, he stated that the mate- 
rials sought and not turned over to date were “important to a com- 



423 


plete and thorough investigation and may contain the evidence neces- 
sary for any future trials.” ( Jaworski’s letter to the Senate Judiciary 
Committee of February 14, 1974, reprinted verbatim in the New York 
Times, February 15, 1974, 12; Rook IX, 936) 

On February 20, 1974 the Office of the Special Prosecutor sent a 
grand jury subpoena to President Nixon requesting, inter alia, com- 
munications containing recommendations to the President with re- 
spect to personnel selections and nominations, telephone logs, appoint- 
ment calendars ; and other documents pertaining to Mr. Maurice Stans. 
On May 31, 1974 the White House filed a formal claim of privilege 
to this subpoena and the matter is presently in litigation. (Book IX, 
1045-1052) 

On March 6, 1974 President Nixon announced at a press conference 
that in addition to the tapes which were subpoenaed by the Office of 
the Special Prosecutor on July 23, 1973, he had turned over eleven 
additional tapes bringing the total to 19 tapes that he had surrendered. 
The President stated further that he had turned over 700 documents, 
in addition to case loads of documents from five executive depart- 
ments and two agencies, enough material to enable Jaworski to state 
that the Special Prosecutor and the grand jury had enough evidence 
for indictments. (“Presidential Statements,” March 6, 1974, 71.) On 
March 15, 1974 the Special Prosecutor served a grand jury subpoena 
on the White House calling for materials needed for investigation 
independent of both the Watergate cover-up and the Fielding break- 
in. On March 29, 1974 the White House agreed to comply with the 
subpoena. (Book IX, 970-72) 

On April 1, 1974 Jaworski publicly stated that he owed his survival 
as Special Prosecutor to an agreement between himself and Richard 
Nixon. He is quoted as saying “When I took this job one of the things 
that the President and I agreed on was my right to sue and to 
get whatever testimony I needed, and he has respected that.” ( Wash- 
ington Post , April 2, 1974, B3 ) 

On April 12, 1974 Special Prosecutor Jaworski Avrote Senator 
Percy and stated that he still needed evidentiary material from the 
White House in order adequately to prepare for trial and to provide 
the defendants with possible Jencks Act material. (Book IX, 984-985) 

On April 18, 1974 Judge Sirica issued a trial subpoena requested 
by the Special Prosecutor for 64 presidential conversations. It is this 
subpoena which was the subject of the recent Supreme Court decision 
in United States v. Nixon (U.S. S. Ct. July 24, 1974) “Criminal 
Cases,” 159-92). The Court held in a unanimous 8-0 decision that 
under the particular circumstances of the case, the President’s asser- 
tion of executive privilege on the ground of a generalized interest 
in confidentiality must yield to the demonstrated, specific need for 
evidence in a pending criminal trial. Accordingly, the President 
promptly complied with the Court’s ruling by turning over to the 
district court all of the subpoenaed materials with the exception of 
nine tapes which were subsequently discovered not to exist. 

In conclusion, the charge that the President deliberately obstructed 
the Office of the Special Prosecutor is principally grounded on two 
facts : his discharge of Special Prosecutor Cox, and his resistance to cer- 
tain subpoenas issued on behalf of the Special Prosecutor. Both presi- 



424 


dential actions, however, can be explained in terms of proper motives 
and need not give rise to any inference of an intention, to obstruct 
justice. 

A fair reading of the evidence suggests that the discharge of Cox 
was motivated at least in part by the President’s perception of Cox as 
a long-term member of the “Kennedy clique”, and therefore a political 
opponent whose impartiality was subject to question. Whether or not 
this perception was accurate is immaterial ; the point remains that the 
President may have feared that he would not receive fair treatment 
from the Office of the Special Prosecutor while Cox was in charge. Sig- 
nificantly, the President was able to maintain a satisfactory relation- 
ship with Jaworski right to the end. 

It is true that the President stoutly resisted compliance with certain 
subpoenas, notably the April 18, 1974 trial subpoena. His resistance 
was consistently premised on the ground of executive privilege, a doc- 
trine whose general validity the Supreme Court reaffirmed in United 
States v. Nixon even while holding that in the instant case it was out- 
weighed by the demands of due process in the fair administration of 
criminal justice. Indeed, the Court specifically remarked on the pro- 
priety of the President’s course of action : 

If a president concludes that compliance with a subpoena w T ould be injurious to 
the public interest he may properly, as was done here, invoke a claim of privi- 
lege on the return of the subpoena. (U.S. v. Nixon, slip opinion at 28) 

The same principle was enunciated over a hundred years ago by Repre- 
sentative James Beck of Kentucky, in the course of House debate dur- 
ing the impeachment of President Andrew Johnson : 

I maintain that the President of the United States in duty bound to test the 
legality of every law which he thinks interferes with his rights and powers as the 
Chief Magistrate of this nation. Whenever he has powers conferred upon him 
by the Constitution of the United States, and an act of Congress undertakes to 
deprive him of those powers or any of them, he would be false to his trust as 
the Chief Executive of this nation, false to the interests of the people whom he 
represents, if he did not by every means in his power seek to test the constitu- 
tionality of that law, and to take whatever steps w T ere necessary and proper to 
‘have it tested by the highest tribunal in the land, and to ascertain whether he 
has a right under the Constitution to do what he claims the right to do, or 
whether Congress has the right to deprive him of the powers which he claims 
have been vested in him by the Constitution of the United States. 

. . . The humblest citizen has the undoubted right to try judicially his consti- 
tutitional rights. (Congressional Globe (1868), 1349-51) 

“missing” or incomplete tapes 

18 1 /* 2 Minute Gap 

On September 29, 1973, Alexander Haig called Rose Mary Woods 
and informed her that the President’s conversation with Haldeman on 
the June 20, 1972 tape was not covered by the subpoena. (Transcript, 
In re Grand Jury Misc . 47-73, Tr. 1231, 1938-40). Haig received this 
information from J. Fred Buzhardt, who confirms advising Haig and 
President Nixon that the Haldeman portions of the June 20 tape 
referred to in the subpoena were not required. (T 1470-71) 

On November 26. 1973, Rose Mary Woods testified that she did not 
transcribe the Haldeman portion of the conversation at Camp David 
and did not begin doing so until she returned to the White House 
because she did not believe it was required by the subpoena. 



425 


(T 1228-30.) Since the Hal deman conversation was never fully 
transcribed because neither Miss Woods nor the President believed it 
was subpoenaed, there would have been no reason for it to have been 
delivered to the President or for him to have known what was on the 
Haldeman portion of the tape. Therefore, he would have had no reason 
to have ordered its destruction. 

There is absolutely no evidence that President Nixon was ever in 
actual personal possession of the June 20 tape or the Uher 5000 tape 
recorder. Indeed, all the evidence is to the contrary. The tape and the 
recorder were stored in a safe in the office of Rose Mary Woods and 
Rose Mary Woods has testified that she is the only person with the 
combination to that safe. 

The notes of H.R. Haldeman taken on June 20, 1972, in no way 
suggest that the President received incriminating knowledge regarding 
the Watergate break-in. The notes refer entirely to a possible public 
relations counter-offensive. Since President Nixon and H.R. Haldeman 
were both known to be conscious of public relations, this would have 
been a completely normal subject for them to have discussed in response 
to a potential problem during the presidential campaign. There is 
nothing in these notes to suggest that any illegal activity was discussed : 

be sure EOB office is thoroly ckd re bugs at all times — etc. 
what is our counter-attack? 

PR offensive to tip this — 

hit the opposition w/ their activities 
pt. out libertarians have created public [unreadable] 

do they justify this less that 

stealing Pentagon papers, Anderson file etc.? 
we slild be on the attack — for diversion — (Book II, 246. ) 

Judge Sirica conducted 15 days of hearings over a 3-month period 
in an effort to determine the cause and significance, if any, of this and 
ot her missing tape segments. 

The Grand Jury supplemented an FBI probe of this matter and 
called numerous witnesses in its investigation of the tapes. To date, no 
indictment has resulted from this investigation. 

Should the President be expected personally to solve the mystery of 
the 18 1/2 minute gap when the Office of the Special Prosecutor, Judge 
Sirica, the FBI, and the Grand Jury have been unable thus far to do 
so? 

Should he discharge his personal secretary or any other employee 
when no charges have been placed ? 

President Nixon in his public address on April 29, 1974, has denied 
any knowledge of how the 18 y 2 minute gap occurred. There has not 
been any direct evidence produced by anyone to show that the Pres- 
ident ever listened to the original June 20th tape with the Uher 5000 
machine. The only time the President listened to this tape, according 
to the evidence, is on September 29 at Camp David while Rose Mary 
Woods was using the 800B Sony machine. 

Other “Missing” Tapes 

There has been no evidence introduced to contradict the explana- 
tions given by the White House for the absence of the June 20, 1972 
telephone call between the President and Mr. Mitchell and the non- 
recording of the April 15, 1973, conversation between the President 
and J ohn Dean. 



426 


The telephone call was made from a phone which was not equipped 
to record conversations. This phone was in the private residence of 
the White House. The presidential log shows that at the time the call 
was made, the President was in fact in the residential wing of the 
White House. 

Technical experts have testified regarding the procedures for chang- 
ing reels on the Executive Office Building tape recorder. They have 
testified that one reel was usually left on over weekends in order to 
avoid necessitating a Technical Division officer’s coming in to change 
it; that, due to the unusually heavy traffic in the Executive Office 
Building over the particular weekend in question, this reel of tape ran 
out in the early afternoon, long before the conversation between Dean 
and the President. 

Moreover, in oral argument, the Minority Counsel offered a detailed 
explanation for his view that Henry Petersen’s report that a record- 
ing of the April 15tli conversation between Dean and the President 
existed was mistaken. (Minority Memorandum on Facts and Daw, 
argument of Minority Counsel) 

There has been no testimony that the gaps on the June 20, 1972, diet- 
abelt and on the March 21, 1973, cassette were caused by erasures, 
deliberate or accidental. These were personal recordings in which the 
President expressed his private thoughts. He may simply have hesi- 
tated or paused during the recording process. 



Article II 


A. LEGAL CONSIDERATIONS 

1. Duplicity 

Five proposed Articles were considered by the Committee on the 
Judiciary. Four of these were structured according to a common-sense 
classification by factual subject matter: Watergate ; noncompliance 
with subpoenas; Cambodian bombing; and personal finances. Article 
II, by contrast is a catch-all repository for other miscellaneous and 
unrelated presidential offenses which were thought to have sufficient 
support among Committee Members to warrant inclusion. If this Arti- 
cle has any organizing principle at all, it is not a common factual basis 
but rather a common legal theory supposedly applicable to each speci- 
fied offense. 

The charge encompassed by Article II is that the President “repeat- 
edly engaged in conduct” which constituted grounds for impeachment 
on one or more of the following three legal theories. 

(1) “Violating the constitutional rights of citizens,” or 

(2) “Impairing the due and proper administration of justice and the 
conduct of lawful inquiries,” or 

(3) “Contravening the laws governing agencies of the executive 
branch and the purposes of these agencies.” 

The Article then states, “This conduct has included one or more of the 
following,” whereupon five completely disparate types of activity are 
alleged : 

(1) Attempt to misuse the Internal Revenue Service to harass politi- 
cal opponents. 

(2) Warrantless wiretapping. 

(3) Authorization and maintenance of the “Plumbers.” 

(4) Failure to prevent subordinates from impeding inquiries. 

(5) Interference with agencies of executive branch. 

Our opposition to the adoption of Article II should not be misunder- 
stood as condonation of the presidential conduct alleged therein. On 
the contrary, we deplore in strongest terms the aspects of presidential 
wrongdoing to which the Article is addressed. However, we could not 
in conscience recommend that the House impeach and the Senate try 
the President on the basis of Article II in its form as proposed, because 
in our view the Article is duplicitous in both the ordinary' and the legal 
senses of the word. In common usage, duplicity means belying one’s 
true intentions by deceptive words; as a legal term of art, duplicity 
denotes the technical fault of uniting two or more offenses in the same 
count of an indictment. 1 We submit that the implications of a vote 


1 In criminal law, an indictment is void for duplicity if it joins two or more separable 
charges in the same count, and the jury does not come to a unanimous verdict as to eacft 
offense. United States v. Warner , 400 F. 2d 130, 735 (8th Cir.) cert, demed, 4-0 U.S. 930 
(1970) : United States v. Bachman, 164 F. Supp. 898, 900 (D.D.C. 1958). 

( 427 ) 



428 


for or against Article II are ambiguous and that the Committee debate 
did not resolve the ambiguities so as to enable the Members to vote 
intelligently. Indeed, this defect is symptomatic of a generic problem 
inherent in the process of drafting Articles of impeachment, and its 
significance for posterity may be far greater than the substantive 
merits of the particular charges embodied in Article II. 

As a starting point for discussion, one might wonder why the five 
specifications of this Article were lumped together rather than being 
expressed in five separate Articles. The specifications are not bottomed 
in the same operative set of facts, nor were the presidential actions in 
question related* to one another as part of a common scheme or plan. 
Of course, it could be argued that any separate actions taken by a 
President are elements of the overall administration of his office and 
are thus loosely related. As a realistic organizing principle, however, it 
does not aid analysis to combine such widely disparate events as the 
wiretapping of National Security Council staff members in 1969 and 
the testimony of Richard Kleindienst during his 1972 confirmation 
hearings. Nor does the Article even suggest that there is a factual sub- 
ject-matter connection between the five specifications. It merely states 
that the President “repeatedly engaged” in certain “conduct.” 

One must therefore look for an organizing principle in the three le- 
gal theories advanced in Article II. Parenthetically, it may be observed 
that if the Article had been restricted to the first three specifications 
(discriminatory use of the IRS; warrantless wiretapping; the Plumb- 
ers), a specific and possibly useful legal theory could have been es- 
tablished as a framework for analysis. These three alleged offenses all 
potentially involve violations of individual rights guaranteed under 
the First Amendment, the Fourth Amendment, or both. The fourth 
and fifth specifications, however, do not fit within that framework. 
Consequently the legal theories applicable to the charges had to be 
so broadened that they are not useful as an organizing principle. For 
example, it is hard to understand why the fourth specification (failure 
to prevent subordinates from impeding inquiries) is included in this 
Article at all, since it seems much more germane to Article I. 

We submit that the recitation of legal theories, far from being an 
organizing principle, was in fact a disingenous rationalization added 
as an afterthought in an effort to bind together the five unrelated spe- 
cifications. The real reason for collecting those specifications in a single 
Article was purely pragmatic. It was correctly perceived that each of 
the five charges, standing alone in a separate Article, might be unable 
to command a majority vote. The strategy was therefore adopted of 
grouping the various charges together under a single umbrella, in the 
hope that enough Members of the Committee, the House, and ulti- 
mately the Senate would be persuaded by one or another specification 
that the aggregate vote for Article II would be sufficient for impeach- 
ment and conviction. The superimposition of the three legal theories 
was a secondary strategem designed to make it more difficult for the 
Article to be split, by subsequent amendment, into separate Articles. 

We do not take the position that the grouping of charges in a single 
Article is necessarily always invalid. To the contrary, it would make 
good sense if the alleged offenses together comprised a common scheme 
or plan, or even if they were united by a specific legal theory. Indeed, 



429 


even if there were no logical reason at all for so grouping the charges 
(as is true of Article II), the Article might still be acceptable if its 
ambiguous aspects had been satisfactorily resolved. For the chief vice 
of this Article is that it is unclear from its language whether a Mem- 
ber should vote for its adoption if he believes any one of the five charges 
to be supported by the evidence ; or whether he must believe in the suf- 
ficiency of all five; or whether it is enough if he believes in the suf- 
ficiency of more than half of the charges. The only clue is the sentence 
which states, “This conduct has included one or more of the following 
[five specificatoions] ”. This sentence implies that a Member may — in- 
deed, must — vote to impeach or to convict if he believes in the suf- 
ficiency of a single specification, even though he believes that the ac- 
cusations made under the other four specifications have not been 
proved, or do not even constitute grounds for impeachment. Thus Ar- 
ticle II would have unfairly accumulated all guilty votes against the 
President, on whatever charge. 2 The President could have been re- 
moved from office even though no more than fourteen Senators be- 
lieved him guilty of the acts charged in any one of the five 
specifications. 

Nor could the President have defended himself against the ambig- 
uous charges embodied in Article II. Inasmuch as five specifications 
are included in support of three legal theories, and all eight elements 
are phrased in the alternative, Article II actually contains no fewer 
than fifteen separate counts, any one of which might be deemed to con- 
stitute grounds for impeachment and removal. In addition, if the Pres- 
ident were not informed which matters included in Article II were 
thought to constitute “high Crimes and Misdemeanors,” he would have 
been deprived of his right under the Sixth Amendment to “be in- 
formed of the nature and cause of the accusation” against him. 

This defect of Article II calls to mind the impeachment trial of 
Judge Halsted Ritter in 1936. Ritter was narrowly acquitted of specific 
charges of bribery and related offenses set forth in the first six Articles. 
He was convicted by an exact two-thirds majority, however, under 
Article A II. That Article charged that because of the specific offenses 
embodied in the other six Articles, Ritter had “[brought] his court 
into scandal and disrepute, to the prejudice of said court and public 
confidence in the administration of justice . ...” 3 The propriety of 
convicting him on the basis of this vaque charge, after lie had been 
acquitted on all of the specific charges, will long be debated. 4 Suffice it 
to say that the putative defect of Article VII is entirely different from 
that- of Article II in the present case, and the two should not be 
confused. 


-The failure of the Committee to vote separately on each specification did a disservice 
not only to the President, but also to Members of the Committee. The undifferentiated vote 
for or against Article II obscured the Members’ views with respect to particular specifica- 
tions, and conveyed the impression that each Member was convinced by all five specifications 
orhy none of them. Similarly, if the Senate had convicted the President under Article II 
without voting separately on each specification, it would be impossible to know upon what 
basis and for what offenses the President was removed from office. 

Proceedings of the United states Senate in the Trial of Impeachment of Halsted L. 
Ritter , 74th Cong., 2d Sess. at 637 (1936). 

4 J? the impeachment of Judge Robert Archbald in 1912, Article XIII reiterated in gen- 
eral terms the charges specified in the ot^er twelve Articles Arch bald’s conviction under 
this omnibus charge was less controversial, however, because he had already been found 
guilty on several of the specific charges. 



430 


A more relevant precedent may be found in the House debates dur- 
ing the impeachment of Judge Charles Swayne in 1905. In that case 
the House had followed the earlier practice of voting first on the gen- 
eral question of whether or not to impeach, and then drafting the 
A rticles. Swayne was impeached in December 1904, by a vote of 198-61, 
on the basis of five instances of misconduct. 5 During January 1905 
these five grounds for impeachment were articulated in twelve Articles. 
In the course of debate prior to the adoption of the Articles, it was dis- 
covered that although the general proposition to impeach had com- 
manded a majority, individual Members had reached that- conclusion 
for different reasons. This gave rise to the embarrassing possibility 
that none of the Articles would be able to command a majority vote. 
Representative Parker regretted that the House had not voted on each 
charge separately before voting on impeachment : 

[W]here different crimes and misdemeanors were alleged it was the duty of 
the House to have voted whether each class of matter reported was impeachable 
before debating that resolution of impeachment, and that the committee was en- 
titled to the vote of a majority on each branch, and that now for the first time 
the real question of impeachment has come before this House to be determined — 
not by five men on one charge, fifteen on another, and twenty on another coming 
in generally and saying that for one or another of the charges Judge Sw T ayne 
should be impeached, but on each particular branch of the case . 6 

When we were asked to vote upon ten charges at once, that there was something 
impeachable contained in one or another of those charges, w r e have already per- 
haps stultified ourselves in the mode of our procedure. . . . 7 

In order to extricate the House from its quandary, Representative 
Powers urged that the earlier vote* to impeach should be construed to 
imply that a majority of the House felt that each of the separate 
charges had been proved; 

At that time the committee urged the impeachment upon five grounds, and 
those are the only grounds which are covered by the articles, . . . and w T e had 
assumed that when the House voted the impeachment they practically said that 
a probable cause was made out in these five subject-matters w^hich were discussed 
before the House . 8 9 

Powers’ retrospective theory was ultimately vindicated when the 
House approved all twelve Articles. 

If this episode from the Swayne impeachment is accorded any 
precedential value in the present controversy over Article II, it might 
be argued by analogy that the Committee’s vote to adopt that Article 
must be construed to imply that a majority believed that all five speci- 
fications had been proved. Because the Committee did not vote sepa- 
rately on each specification, however, it is impossible to know whether 
those Members who voted for Article II would be willing to accept 
that construction. If so, then one of our major objections to the Article 
would vanish. However, it would still be necessary to amend the Arti- 
cle by removing the sentence “This has included one or more of the 
following,” and substituting language which would make it plain that 
no Member of the House or Senate could vote for the Article unless 

5 The five grounds were : false certification of expenses ; private use of railroad car in 

possession of receiver ; failure to reside in judicial district ; and two cases of maliciously 
punishing a lawyer for contempt of court. Like the five specifications in Article II, these 
charges were quite unrelated to each other. Therefore it is not surprising that Members 

varied widely with respect to which charges they considered to make out a case for 

impeachment. 

9 39 Cong. Rec. 810 (1905). 

t Id. 813. 

810. 



431 

he was convinced of the independent sufficiency of each of the five 
specifications. 

However, there remains another and more subtle objection to the 
lumping together of unrelated charges in Article IT : 

There is indeed always a danger when several crimes are tied together, that 
the jury will use the evidence cumulatively ; that is, that although so much as 
would be admissible upon any one of the charges might not have persuaded them 
of the accused’s guilt, the sum of it will convince them as to all . 0 

It is thus not enough protection for an accused that the Senate may 
choose to vote separately upon each section of an omnibus article of 
impeachment: the prejudicial effect of grouping a diverse mass of 
factual material under one heading, some of it adduced to prove one 
proposition and another to prove a proposition entirely unrelated, 
would still remain. 

S. “ Abuse of Power ” as a Theory of Impeachment of a President 

Just as Article I is drawn from Section I of the Majority staff’s 
Summary of Information, entitled “Watergate,” so the allegations of 
Article II are drawn from Section II of the Summary of Information, 
entitled “Abuse of Presidential Powers.” Section II of the Summary 
of Information lists six Watergate-related and seven non- Watergate- 
related instances of alleged misuse of Presidential powers. According 
to the Summary of Information, “The issue in each of these areas is 
whether the President used the powers of his office in an illegal or 
improper manner to serve his personal, political or financial interests .” 4 
The sponsor of the proposed form of Article II which was adopted 
by the Committee stated during the Committee debate that the Article 
was not a criminal charge, but that it recognized the President was 
subject to a “higher standard” than the criminal law . 5 Another Member 
supporting Article II stated that it would apply to an undertaking “to 
do something legal for political or improper purposes.” 6 

It is respectfully submitted that allegations of “abuse of power” fail 
to state a “high Crime and Misdemeanor” within the meaning of the 
Constitution. Abuses of power in general terms may have been the 
occasion for the exercise of the impeachment power in England in the 
Fourteenth and Seventeenth Centuries, during the great struggles for 
Parliamentary supremacy; but “abuse of power” is no more a high 
crime or misdemeanor in this country than “maladministration” — 
which was explicitly rejected by the Framers of our Constitution be- 
cause it was too “vague.” 7 

It is a far-reaching and dangerous proposition, that conduct which 
is m violation of no known law , but which is considered by a temporary 
majority of the Congress to be “improper” because undertaken for 
“political” purposes, can constitute grounds for impeachment. We 
wonder whether the Majority have fully considered the implications 
of this concept in terms of the liability to impeachment of an elected 
official, or a political appointee, or for that matter, by analogy, in terms 
of the liability of an elected Member of Congress to expulsion. 


5 HJC Debates, 7/29/74, TR. 809. 

6 HJC Debates, 7/29/74, TR. 1063. 

7 See discussion above. 

9 United States v. Lotsch, 102 F. 2d 35. 36 (2d Cir.), cert, denied, 307 US. 622 (1939). 
4 Summary of Information, p. 123 (emphasis added). 


37-777 0 - 74-28 



432 


For Congress to impeach a President for an act which could not 
reasonably be known to be punishable when it was committed, however 
much Congress may disagree with that act, would meet the textbook 
definition of a bill of attainder or ex post facto law — both so hated by 
the Framers of our Constitution that they were prohibited not only to 
the Congress but also to the States. (U.S. Constitution, Article I, Sec- 
tion 9, clause 3 ; Article I, Section 10, clause 1.) 

Have we slipped so far since the Eighteenth Century that we can 
no longer rely on our laws to tell us what is right and wrong? Why is it 
now, suddenly, necessary to go outside those laws? Blackstone wrote 
between 1765 and 1769 : 

An impeachment before the Lords by the Common of Great Britain, in Parlia- 
ment, is a prosecution of the already known and established law, . . . being a 
presentment to the most high and supreme court of criminal jurisdiction by the 
most solemn grand inquest, of the whole kingdom . 8 

Woddeson wrote in 1777 : 

[Impeachments] are founded and proceed upon the law in being. 0 

Joseph Story wrote in 1833, in this country : 

Impeachments are not framed to alter the law; but to carry it into more 
effectual execution . 10 

Why is it now necessary to impeach the President for conduct which 
is thought “improper”? We submit it is a violation of history and of 
our Constitution to do so. 

Entirely apart from the requirement of “high Crimes and Misde- 
meanors” contained in the Impeachment Clause of the Constitution, 
demands of fundamental fairness are also imposed by the Due Process 
Clause of the Fifth Amendment, which provides, “No person shall . . . 
be deprived of life, liberty, or property, without due process of law.” 
It is settled law that governmental action having an impact upon an 
individuars employment or employment prospects affects not only 
“property” interests, but also the individuars “liberty” as well. 11 

Under the due process clause, the vice of a formulation like 
“abuse of power” as the gravamen of allegedly impeachable offenses 
is its elasticity — it would be completely unmanageable as a standard 
even if the charge contained only one specification. It appears from 
the Summary of Information that to use power “improperly” for 
“political” purposes is an “abuse” of power, but what is the test for im- 
propriety ? Does an action, otherwise lawful or proper, become per se 
illegal or improper if it is motivated by a desire to discredit members 
of the opposition party* by a desire to conceal politically embarrassing 
information, by “political” considerations? 

Like members of Congressional staffs, White House staff members 
are exempt from the prohibition on certain forms of political activity 
by federal employees imposed by the Hatch Act. 12 This fact ought to 


s 4 W. Blackstone Commentaries on the Laws of England (1771) 256-57. (Emphasis 
added.) 

11 2 K. Wooddeson Laws of England Oil, 612. (Emphasis added.) 

10 1 J. Storv, Commentaries on the Constitution (3d ed. 1858) § 79S. 

31 Greene v. McElroy, 360 U.S. 474, 496-97 (1959) ; McNeill v. Buts, 480 F.2d 314, 320 
(41 h Cir. 1973) ; Perry v. Sindermann , 408 U.S. 593, 597, 601 (1972) : Willner v. Committee 
on Character and Fitness , 373 U.S. 90, 103 (1963) ; In re Ming, 469 F.2d 1352 (7th Cir. 
1972) ; Bottcher v. State of Florida Dept, of Agric . and Consumer Services , 361 F. Supp. 
1123, 1129 (N. D. Fla., 1973) ; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 
123, 185 (1951) (Jackson. J., concurring). 

13 5 U.S.C. § 7324(d)(1). 



433 


shed some light on the difficulty that Congress has perceived in the past 
in separating the political from the governmental functions of elected 
officials and those who serve directly under them. As approved by the 
Committee, moreover Article IT leaves unclear the Committee’s view as 
to whether the President’s action, in order to be impeachable, must be 
motivated by a criminal intent, as argued above, by only an “im- 
proper” intent, or with particular reference to Paragraph (4), by any 
intent at all. 

Finally, it is difficult to understand how content can be given to 
terms such as “abuse of power,” or “improper” use of power, unless 
some attempt is made to determine the historical practice in prior Ad- 
ministrations in the areas described by Article II — efforts to prevent 
leaks of national security information, for example, or the general 
scope of activities conducted by the Central Intelligence Agency. No 
such meaningful comparisons were undertaken by either the Com- 
mittee or its staff during this impeachment inquiry. If the Con- 
gress may remove an elected President for conduct which is vio- 
lative of no known law, but is merely in its view “improper”, and if 
the Congress refuses to consider what has been thought “proper” or 
“improper’ in the past, but will address only the question of what 
now seems “improper” in the subjective view of a temporary majority 
of legislators, we will have traded in the Constitution for new Articles 
of Confederation. We will have established a government essentially 
by one branch, not three. 

B. HISTORICAL CONTEXT 

Proposed Article II represents an umvieldy agglomeration of al- 
leged abuses of power by President Nixon : efforts to procure discrim- 
inatory income tax audits, warrantless wiretapping, covert activities 
of the “Plumbers”, etc. In order to evaluate the gravity of these al- 
legations, it is instructive to compare them with certain historical in- 
cidents illustrative of the alarming growth of executive power during 
the past forty years. 

Frustrated by the intransigent opposition of the Supreme Court to 
his New Deal legislation in 1937, President Roosevelt attempted, under 
color of the most transparently specious rationalization, to pack the 
court with additional Justices who would be more sympathetic to 
his political ideology. Later in his Administration the wartime emer- 
gency was invoked to justify the suspension of the constitutional rights 
of thousands of Japanese- Americans who were interned in detention 
camps. It was also Roosevelt who, in 1940, initiated the practice of 
warrantless “national security” wiretapping which has been carried 
on by each of his successors. 

President Truman took the law into his own hands with his un- 
constitutional seizure of the nation’s steel mills in 1952. His successors 
in office were responsible for the involvement of the United States in 
a protracted but undeclared war in Southeast Asia. 

During his first year in office, President Kennedy also indulged in 
an irresponsible military adventure in Cuba. Later in his Adminis- 
tration, the Department of Justice was used, many feel, for the im- 
proper purpose of discriminatory harrassment both of certain labor 



434 


union leaders and of steel company executives who thwarted the 
President’s economic policies. 

This eclectic catalogue of arguable abuses of power by recent Presi- 
dents is not intended to suggest necessarily that there are precedents 
for each of the specific instances of misconduct charged against 
President Nixon in proposed Article II. If President Nixon was guilty 
of misconduct justifying removal from office, no one would argue that 
he should have been spared simply because previous Presidents were 
not impeached for their similar excesses. Rather, these, historical in- 
cidents are mentioned only to illustrate a point which is all too easily 
lost in the current preoccupation with President Nixon’s alleged 
offenses : no President who attempts to make full use of the lawful 
powers of his office is likely to complete his term without having 
committed, even in good faith, a constitutional violation. The Presi- 
dent’s duties and responsibilities frequently expose him to conflicting 
constitutional demands. In these situations he must choose either to 
act, knowing that any action may prove to involve a violation of the 
Constitution, or to refrain from acting, knowing that inaction — 
though technically not a violation of his oath of office — may be the 
worst policy of all. 

To constitute an impeachable offense, therefore, it is not enough 
merely to show a presidential violation of the Constitution (or, in 
the jargon of proposed Article II, an “abuse of power” or failure to 
“take care that the laws be faithfully executed”). The critical ques- 
tion is whether the President’s action was undertaken in good faith : 
whether he acted under color of law and in furtherance of his con- 
stitutional duties as he honestly saw them. 

The phrase “national security” is presently in bad odor because of 
a widespread intuition that it has been too often unnecessarily in- 
voked as a talisman to justify otherwise indefensible exercises of ex- 
ecutive power. Yet each of the presidential actions listed above, like 
many of those specified in proposed Article II, was undertaken for the 
avowed purpose of protecting the national security, in response to 
what the President perceived to be a legitimate military, economic or 
diplomatic imperative. 


C. FACTUAL ALLEGATIONS 

Paragraph (/) 

This paragraph charges the President with having endeavored to 
violate the constitutional rights of citizens in relation to the official 
governmental activities of the Internal Revenue Service in two prin- 
cipal ways: by obtaining confidential information from income tax 
returns, and by instigating tax audits and investigations on a politi- 
cally discriminatory basis. 

Ineffectual attempts 

This paragraph does not charge the President with actual misuse 
of the IRS. Indeed, no evidence before this Committee could support 
such a charge. Instead the President is charged with responsibility 
for the unsuccessful attempts by his subordinates to achieve allegedly 
improper or unlawful goals. 



435 


We think, however, that the majority gives too little thought to 
the potential implications in an impeachment proceeding of ineffectual 
efforts by presidential staff to execute presidential wishes. Because 
such efforts were unsuccessful, certainly the conclusion that the Presi- 
dent was seriously intent on, or interested in the misuse of the IRS 
is negated. Given the plenary powers of a President to manage, direct 
and control the operations of the executive branch of government, if 
he had desired an illegitimate goal to be accomplished, it would have 
been accomplished. As in pulling or pushing on a string, the ability 
of a President to succeed in accomplishing some affirmative objective 
is quite different from his ability to prevent or correct subordinate 
conduct of which he is actually unaware. 

The case of John Dean’s September, 1972 attempt to initiate IRS 
audits of 575 people named on a list of McGovern staff and contrib- 
utors illustrates the point. After John Dean had given IRS Com- 
missioner Walters the list on September 11, 1972, and after Dean’s 
alleged discussion with the President about the IRS on September 15, 
Dean did not make his second effort to influence IRS Commissioner 
Johnnie Walters to order the audits until September 25, ten days after 
his conversation with the President. The majority argues that Dean’s 
second approach to W alters was a result of his conversation with the 
President. However, the record fails to disclose any evidence that the 
President at any time followed up the matter with Dean, either di- 
rectly or through Haldeman or Ehrliehman. 

To us, this raises at the very least a serious question as to the degree 
of the President’s true interest in the matter, one aspect of his mens 
re a . Such a factor would be considered relevant in possible mitigation 
of punishment in an ordinary criminal proceeding. Since fitness for 
office is the ultimate question in all impeachment cases, the depth of 
the President’s personal commitment to the achievement of some 
specific improper objective must likewise be held relevant to a deter- 
mination of the iinpeaehdbility of his conduct relative to such im- 
propriety. The evidence of the President’s interest and involvement 
in the “Enemies List” case is therefore exceedingly weak, and the 
majority is faced merely with John Dean’s unsuccessful attempts to 
misuse the IRS. 

There is, of course, no question that Dean’s attempts were unsuccess- 
ful. The Joint Committee on Internal Revenue taxation conducted a 
detailed and thorough investigation of the whole matter of the enemies 
list. The conclusion of that Committee’s staff was as follows: 

The staff lihs found absolutely no evidence that audits of people on the polit- 
ical opponents lists were on the average conducted more harshly than normal. 
(Joint Committee Report, 11) 

Established practice or custom 

We also believe that the Committee’s inquiry pertaining to the al- 
legations of this Paragraph was fatally flawed by our failure to 
develop substantial evidence concerning the routine practices of tlx© 
IRS, over a period of years spanning several previous Administra- 
tions, with respect to the impingement of political or other “extra- 
neous” considerations upon the interpretation and implementation of 
pertinent regulations and statutory provisions. 



436 


Since the point we now make is one easily misunderstood, it bears 
some elaboration. We do not suggest as a general proposition that the 
commission of clear-cut violations of law by any President can or 
should be excused on the sole ground that similar offenses can be 
shown to have been committed by his predecessors. We do suggest that 
where the presidential conduct embodied in some enactment of posi- 
tive law, it is helpful, if not absolutely essential, to consider whether 
such conduct is rare or commonplace in attempting to place the con- 
duct outside the parameters of permissible “use” of presidential power. 

There is evidence in the record indicating that the operations of the 
IRS have not traditionally been held aloof from political considera- 
tions. For example, in his affidavit to this Committee former IRS 
Commissioner Randolph Thrower referred to the existence of a “Sen- 
sitive Case Report” which for years had been circulated within the 
Commissioner’s staff and also delivered to the Secretary of the 
Trcasuiy. Thrower stated : 

I understand that customarily the Secretary of the Treasury would advise 
the President of any matters in the sensitive case report about which the Presi- 
dent, by reason of his official duties and responsibilities , should be advised. 
(Book VIII, 40; emphasis added) 

The- emphasized phrase, in context, strikes us as being patently 
euphemistic. 

During 1972 it was IRS policy to postpone investigations involving 
sensitive cases until after the November elections whenever possible. 
(Book VIII, 233) John Ehrliclnnan testified in executive session be- 
fore the Senate Select Committee that it was because he suspected 
IRS favoritism for Democratic National Chairman Lawrence 
O’Brien, as contrasted with the pre-election audit policy toward Re- 
publicans, that he tried to move the O’Brien audit along. (Book VIII, 
224-25 ) 

In the light of the foregoing indications that IRS policy-makers 
were traditionally sensitive to political considerations, we think the 
Committee was under an obligation to make inquiry into the cus- 
tomary or routine practices of the Service in situations comparable to 
those with which this Paragraph is concerned. Had the Committee 
found : — and we categorically do not assert it to be the fact — that the 
specific instances of alleged attempted abuse of the IRS by White 
House personnel in this Administration typical conduct of presiden- 
tial aides in other administrations, the House might perceive a need 
for appropriate remedial legislation to deal with the problem pros- 
pectively without concluding that the President should be impeached 
for failing to put a stop to practices that had sprung up during the 
tenure of his predecessors. 

Repeated conduct 

Article II charges that President Nixon “repeatedly engaged in 
conduct violating the constitutional rights of citizens.” We must point 
out, therefore, that with respect to only one of the specific allegations 
made under this Paragraph — that involving the McGovern supporters 
list — is there any competent, credible evidence from which the Com- 
mittee could infer that the President actually knew of the nature of 
his aides’ dealings with the IRS. We reject the notion that one such 



437 


instance in five-and-one-balf years can fairly be. viewed as “repeated” 
misconduct, rather than as a genuinely isolated incident. We concede 
that if the President were aware and approved of all of the question- 
able contacts of, say, Caulfield and Dean with IRS officials during the 
1971-72 period, it would then be reasonable to argue that, through his 
subordinates and agents, the President had “repeatedly” sought to 
misuse the facilities of the IRS for purposes not sanctioned by Con- 
gress. As a matter of fact, however, we are satisfied that the evidence 
simply does not support any such conclusion. 

The President’s state of mind that government agencies had been 
neither “repeatedly” abused nor abused at all during his first term was 
strongly evidenced during his conversation with Dean and Haldeman 
on the late afternoon of September 15, 1972 : 

The President. We, we have not used the power in this first four years, as you 
know. 

Dean. That’s right. 

The President. We have never used it. We haven’t used the Bureau and we 
haven’t used the Justice Department, but things are going to change now. And 
they’re going to change, and, and they’re going to get it right — 

Dean. That’s an exciting prospect. 

The President. It’s got to be done. It’s the only thing to do. 

IHaldeman. We’ve got to. 

The President. Oh, oh, well, we’ve just been, we’ve been just God damn fools. 
For us to come into this -election campaign and not do anything with regard to 
the Democratic senators who are running, and so forth. [Characterizations de- 
leted] That’d be ridiculous. Absolutely ridiculous. It’s not going, going to be 
that way any more, and, uh — 

Haldeman. Really, it’s ironic, you know, because we’ve gone to such extremes 
to do every — You know, you, you and your damn regulations with — 

The President. Right. 

Haldeman. Everybody worries about, 

The President. That’s right. 

Haldeman. about picking up a hotel bill or anything. 

Dean. Well, I think, we can, I think, I think we can be proud of the White 
House staff. It really has, 

The President. That’s right. 

Dean, had no problems of that — 

The President. Well, that’s right. (HJCT 10-11) 

This statement by t-lie President indicates to us that at that moment 
he was considering an effort to make the agencies more politically 
responsive than they had been. Musing over the question could not in 
itself constitute an impeachable offense, however, absent clear and con- 
vincing evidence, of his effort to implement the idea in concrete terms. 

We note also that in this comment the President did not refer spe- 
cifically to the IRS. 

a . Endeavoring to Obtain Confidential Tax Information 
(i) The President's authority to obtain information . — While we 
believe the evidence shows no extensive presidential involvement in 
Dean’s and Caulfield’s activities with respect to the IRS, it should be 
noted that the President himself has an absolute right of access to tax 
returns and data of the Internal Revenue Service. Article II, Section 
2 of the Constitution provides : 

The President . . . may require the Opinion, in writing, of the principal 
officer in each of the executive Departments, upon any subject relating to the 
Duties of their respective offices, 



438 


More specifically, Section 6103(a) (1) of the Internal Revenue Code 
of 1954 provides: 

(a) Public Record and Inspection. — 

(1) Returns made with respect to taxes imposed by chapters 1, 2, 3 and 6 
upon which the tax had been determined by the Secretary or his delegate shall 
constitute public records ; but, except as hereinafter provided in this section, they 
shall be open to inspection only upon order of the President and under rules and 
regulations prescribed by the Secretary or his delegate and approved by the 
President. 

An opinion dated April 22, 1970 from the Chief Counsel of the IRS 
to Commissioner Randolph W. Throwef iHSted : 

... It is inconceivable that the President should be bound by rules and regu- 
lations [under Section 6103] in prescribing the circumstances or manner in which 
returns are to be disclosed to a member of his staff for his use. Since any such 
rules and regulations are subject to revision or modification by the Secretary at 
any time with the approval of the President, and the Secretary is the subordinate 
of the President appointed to serve at the pleasure of the President, it cannot be 
believed that he should be limited by the requirements of any such rules and 
regulations or that Congress so intended. 

******* 

... To assume that a ‘presidential request.’ must comply with such regulations 
assumes that the Secretary of the Treasury or the Commissioner of Internal 
Revenue could frustrate a request of the President for returns — in the face of the 
fact that the statutory provision says that they should be open for inspection on 
his order. 

The statute as I interpret it, and as interpreted by my predecessors, is not the 
source of the right of the President to inspect returns, but merely sets forth 
the manner in which returns may be made available to other persons without 
Presidential order. 

This opinion concludes as follows : 

. . . Thus, there would seem to be no question about the President’s right of 
access to these returns through a designated member of his staff. While . . . 
there is no legal requirement that such requests be written, the procedure you 
have followed requiring that all requests be detailed in v T riting is procedurallv 
preferable to accepting oral requests. 1 

The general question of access to by a member of the President’s 
staff apparently first arose, in 1961 in regard to Carmine Bellino, who 
was then Special Consultant to President Kennedy. In a memorandum 
of March 23, 1961 to the General Counsel of the Department of the 
Treasury from then IRS Commissioner Mortimer M. Caplin, the fol- 
lowing statement concerning the legality of Bellino’s inspection of 
returns was set forth : 

On January 26, Mr. Bellino, Special Consultant to the President, called at my 

office and requested permission to inspect our files on 

and others. Although w T e had no precedent to guide us, we decided that Mr. Bel- 
liuo, iii his capacity as a representative of the President, could inspect our files 
without a written request. This reflects the view 7 that Section 6103 of the Code 
specifically provides that returns shall be open to inspection upon order of the 
President, and since Mr. Bellino’s official capacity constitutes him the representa- 
tive of the President, the action taken is regarded as conforming to law 7 . Based 

on this decision, w r e permitted Mr. Bellino to inspect the files relating to 

Since that time we have also permitted him to inspect tax returns 

and related documents pertaining to other persons. 2 * * 


1 Definitive opinion of K. Martin Worthy, Chief Counsel to Randolph W. Thrower. 

Commissioner, dated April 22. 1970. . . _ „ 

2 Compare this opinion with the conclusion reached in a legal opinion dated April 9. 

1970, rendered to Mr. Lawrence F. O’Brien by former Commissioner Caplin, which 

appears In the [Congressional Record , April 16, 1970, S 5911—12]. 



439 


Again in 1964 the office of the Chief Counsel of IES concluded that 
the Warren Commission was entitled to access to TES returns on the 
basis of Executive Order 11130, which generally indicated that all 
agencies and departments should furnish the Commission with such 
facilities, service, and cooperation as might be requested. The TES 
opinion stated : 

... [I] is axiomatic that in the exercise of power of his office the President 
is not required to personally take care of day to day details but may, in his dis- 
cretion, delegate certain functions to others. . . . Manifestly, Sec. 6103(a) (1) 
could not have been designed tq, require the Secretary or his delegate and the 
President to prescribe and approve rules and regulations regarding a personal 
inspection of returns by the President. Such construction should apply equally 
to an inspection by the Commission acting for the President. 

Thereafter a question arose as to whether the Warren Commission 
could publish the returns disclosed to it. This resulted in a request by 
Sheldon S. Cohen (then IES Chief Counsel) to the Director of the 
Legislation and Eegulations Division of IES for his opinion as to 
whether the Commission had authority to inspect returns. The Legis- 
lation and Eegulations Division advised Cohen by opinion of Septem- 
ber 24, 1964 that it concurred in the January 6, 1964 opinion of the 
Enforcement Division, reiterating that : 

. . . [T]he Commission is the “alter ego” of the President, and since there is 
no restriction on the President’s authority to inspect, tax returns, likewise there 
is no restriction on the right of the Commission as his “alter ego”, to inspect tax 
returns within the scope of the Executive order. 

Tn light of the strong stand the IES has consistently taken regard- 
ing the right of access of the President and his authorized repre- 
sentatives to tax returns and other data of the service, it is obvious that 
there is no illegality or impropriety involved in the receipt of such 
information by authorized White House staff members per se. If the 
receipts were not authorized, of course, we would not view those 
actions by presidential subordinates as constituting grounds for im- 
peachment of President Nixon. 

(U) Gerald Wallace reports — The Majority Eeport charges the 
President with responsibility for the unlawful disclosure to a Wash- 
ington newsman of confidential IES information concerning a 1970 
tax investigation of the brother of Alabama Governor George Wal- 
lace. 3 It is conceded that the unauthorized disclosure occurred and that 
the information may have been disclosed by someone in the White 
House. Nevertheless, there is no competent credible evidence connect- 
ing the President to this “news leak.” 

The only suggestion of presidential involvement in this matter is a 
hearsay statement by the ex-White House employee who obtained the 
information from the IES that Haldeman had said that the Wallace 
tax information was to be obtained at the request of the President. 
(Book VIII, 38). There is no evidence to indicate that the President 
was involved in the disclosure of the information to the newsman. 

Even if the hearsay statement of the aide is credited, it is an estab- 
lished principle of IES law and procedure that the disclosure of tax 
information to White House aides is proper. Both the White House 


3 Under 26 U.S.C, § 7213, the unauthorized disclosure of tax information by any officer 
or employee of the United States is prohibited. 



440 


staff member who obtained the information, and IRS Commissioner 
Randolph Thrower, who authorized releases of the information to him. 
have stated in affidavits given to this Committee that the disclosure 
of the information to the White House was legal and proper. (Book 
VIII, 38,40) 

There is no evidence that the President received the report. There is 
no evidence that the President knew of, approved, or had anything to 
do with the transmission of information to the newsman. 

There is no evidence of any interference by anyone at the White 
House with the IRS investigation, or of any request with respect 
thereto by any White House staff member, certainly not by the 
President. 

(Hi) Other tax information . — The majority also charges the Presi- 
dent with culpability for the acts of a member of John Dean’s staff, 
John Caulfield, who, from time to time in 1971 and 1972 obtained con- 
fidential tax information about various individuals from the IRS and 
on occasion attempted to have audits conducted. There is no evidence 
that the President knew anything about the activities of Caulfield. 

b. Endeavoring to Instigate Tax Audits 

(?) Lawrence O^Brien . — The evidence establishes that during the 
summer of 1972. John Ehrlichman attempted to get the IRS to investi- 
gate the possibility that Democratic National Committee Chairman 
Lawrence O’Brien had received large amounts of income which had 
not been reported properly. (Book VIII, 217-35) After IRS agents 
had interviewed O’Brien and his returns were found to be in order, 
Commissioner Walters and his assistant met with Shultz and agreed 
that the investigation should be closed, and they so informed Ehrlich- 
man. No other action was taken in the O’Brien case by the IRS. 

Evidence of presidential involvement in this episode is virtually non- 
existent. An affidavit by the Minority Counsel to the Senate Select 
Committee states that he was told over the telephone by J. Fred Buz- 
hardt, a White House Special Counsel, that during the meeting between 
the President and John Dean on September 15, 1972 Dean reported on 
the IRS investigation of O’Brien. It is on this third-hand hearsay alone 
that the Majority would connect the President to the case. However, 
when Dean was interviewed by this Committee’s staff, he said that he 
had no recollection of having discussed the O’Brien tax audit with the 
President on that or any other occasion. Dean also stated that he would 
have had no reason to report on the O’Brien case since he was not 
involved in it and knew nothing of its details. (Dean interview, HJC 
files.) Thus, there is no competent evidence to connect the President to 
the O’Brien tax investigation. 

(ii) List of McGovern, Supporters —The, record before the Com- 
mittee suggests that on September 11, 1972 John Dean gave IRS Com- 
missioner Johnnie Walters a list of McGovern supporters and requested 
that the IRS begin tax investigations of the individuals named on the 
list. Pursuant to Ehrlichman’s instructions, Dean told Walters that 
he had not been asked by the President to have this done and that he 
did not know whether the President had asked the action to be under- 
taken. (Book VIII, 240) Walters told Dean that compliance with the 
request would be disastrous. Two days later, Walters met with Shultz 



441 


and they agreed they should not comply with Dean’s request. Shultz 
told Walters to do nothing with respect to the list and Walters put it 
in his office safe. (Book VIII, 275-79) 

On September 15, 1972, the President and Haldeman were discuss- 
ing Dean : 

Haldeman. Between times, he’s doing, lie’s moving ruthlessly on the investiga- 
tion of McGovern people, Kennedy stuff, and all that too. I just don’t know how 
much progress he’s making, ’cause I — 

The President. The problem is that’s kind of hard to find. 

Haldeman. Chuck, Chuck has gone through, you know, has worked on the list, 
and Dean’s working the, the thing through IRS and, uh, in some cases, I think, 
some other [unintelligible] things. He’s — He turned out to be tougher than I 
thought he would . . . (HJCT1) 

Shortly thereafter, Dean entered the room, and the conversation 
turned to a number of topics, chiefly matters related to the Watergate 
area. There is no mention of the IRS during the portion of the tape 
which was available to the Committee, but Dean has testified that dur- 
ing the last seventeen minutes of that meeting he, Haldeman and the 
President discussed the use of the IRS. (Dean testimony, 2 HJC 229) 
As Dean recalled the conversation, Dean told the President and Halde- 
man of his difficulty in getting Walters to commence audits, and the 
President complained that Shultz had not been sufficiently responsive 
to White House requirements. (Dean testimony, 2 HJC 229; Book 
VIII, 334-36) 

Dean has testified that because of this conversation with the Presi- 
dent, he [Dean] again contacted ten days later Walters, but Walters 
still refused to co-operate. (Dean testimony, 2 HJC 250) 

In his testimony before this Committee, Dean w r as unable to recall 
precisely what he and the President discussed on September 15th re- 
garding Dean’s meeting with Commissioner Walters four days earlier : 

Mr. Fisii. It was my understanding that this morning, in response to Mr. 
Doar, you said that at the time you met the President on the 15th, you told the 
President about your meeting with Mr. Walters and, as I had you down here, 
you say “I related this to the President.” 

My question to you is, Did you relate to him the specifics of why you went to 
Mr. Walters and of the meeting with Mr. Walters? 

Mr. Dean. I cannot recall with specificity lime much of that matter was raised. 
X just have this vivid recollection of the discussion about Mr. Shultz’ role and 
the fact that the IRS was not performing and I think that the best evidence of 
that is obviously the tape. (Dean testimony, 2 HJC 311 ; emphasis added) 

Apparently, when Dean returned to see Commissioner Walters on 
September 25, 1972 he did not indicate to Walters that it was the 
President’s wish that Dean make another attempt at getting the Mc- 
Govern list audits underway, even though on other occasions Dean 
had represented himself to be acting under direct presidential super- 
vision when that was not actually the case. (Kleindienst testimony, 
9 S'SC 3564, 3575-76) Even if Dean felt that he was this time genuinely 
following presidential instructions, he may have continued to heed 
Ehrlichman’s earlier pointed admonition that he should not tell Wal- 
ters that the President had anything to do with his visit. 

(in) Segment of September I5 y 1972 tape . — On May 28, 1974 the 
Special Prosecutor moved the United States District Court for the 
District of Columbia to turn over to the appropriate grand jury the 
last seventeen minutes of the tape recording of the conversation among 



442 


Haldeman, Dean and the President on September 15, 1972. The Special 
Prosecutor alleged, in support of his motion, that that portion of the 
recording — which Judge John J. Sirica had earlier withheld from the 
grand jury after sustaining a particularized claim of executive privi- 
lege by the President — was relevant to alleged White House efforts to 
abuse and politicize the IRS, including the unlawful attempt in Au- 
gust and 'September of 1972 to instigate an IRS investigation of Law- 
rence O’Brien. 

On July 12, 1974 Judge Sirica granted the motion as to that portion 
of the conversation occurring between approximately 6 :00 and 6:13 
p.m., but his order was stayed pending appeal by the President. [So 
far as we are presently informed, the grand jury and the Special 
Prosecutor have not yet received this segment of the tape recording.] 
On June 24, 1974 this Committee issued a subpoena to the President 
for tapes, dictabelts, memoranda and other records of this portion of 
the conversation, but President did not furnish any such materials to 
the Committee before leaving office. 

Standing alone, Dean’s testimony before this Committee that the 
President told him on September 15, 1972 to come back to the Presi- 
dent if Dean had any problems with Shultz over the IRS audits, so 
that the President could “get it straightened out” (Dean testimony, 
2 HJC 229) could, if true, be taken as evidence only of some “tough 
talk” among copartisans during an election campaign, taking place in 
the privacy of an office where such talk is cheap. The late Stewart 
Alsop once, with characteristic insight, commented upon the abundant 
evidence produced during the 1973 hearings of the Senate Select Com- 
mittee that CRP and the White House were inhabited by a personality 
type which Alsop labelled— without benefit of the White House trans- 
cripts — the “phony tough people like Dean who ivere given to dis- 
plays of bravado, arrogance and insensitivity to the rights of others 
because they seemed to feel that such attitudes were expected of them. 4 

The Haldeman comment to the President at the beginning of the 
recorded September 15th conversation — “Chuck, Chuck has gone 
through, you know, has worked on the list, and Dean’s working the, 
the thing through IRS . . (HJCT 1) — provides evidence of Presi- 
dential knowledge that some political use of the IRS was contemplated 
by his aides, however, which simply cannot be ignored. Taken together, 
the Haldeman remark and the Dean testimony before this Committee 
make it reasonable to infer that the thirteen-minute segment of the 
September 15, 1972 tape recording which both we and the Special 
Prosecutor have been seeking to obtain from either the White House or 
Judge Sirica may , indeed, contain additional evidence damaging to 
Mr. Nixon. 

We think, however, that the appropriate response of the Committee 
under these circumstances was not to accept the word of a witness — 
Dean— who has been demonstrated to be of doubtful credibility (See, 
for example, the evidence in Book III, 415-26, relating to Dean’s 
possible perjury concerning his disposition of certain notebooks taken 
from Howard Hunt’s White House safe on the evening of June 19, 
1972.) Rather, we believe that the President should have been ac- 


* Newsweek^ September 10, 1973, p. 94. 



443 


corded a presumption of innocence as to each and every allegation 
against him and that, lacking evidence to corroborate Dean’s assertion 
that the President had instructed him to go back to Commissioner 
Walters in an effort to get the McGovern list audits instituted, the 
Committee should not have voted to recommend impeachment on the 
basis of this allegation under Paragraph (1) . 

Our view, of course, is readily subject to change if additional rele- 
vant evidence, such as is suspected to be contained on the thirteen- 
minute September 15, 1972 tape segment, should come to light. 
Whether or not Dean’s efforts to procure audits of the McGovern 
supporters violated positive law, they were reprehensible. If the Presi- 
dent, did, in fact, countenance such activity on the part of his own 
White House counsel, it might then be appropriate for the House, and 
the American people, to consider him liable to censure, even if such 
conduct, as an isolated event, did not render the President liable to 
impeachment. 

Paragraph (£) 

The gravamen of the charge in Paragraph (2) is that the President 
misused the Federal Bureau of Investigation, the Secret Service, and 
other personnel from the executive branch, to cany out at his direction 
the unlawful electronic surveil lance of citizens. Paragraph (2) refers 
in particular to the authorization, execution and concealment of the 
so-called 1969-71 wiretaps; the surveillance of Joseph Kraft in 1969; 
the surveillance of Donald Nixon in 1970; the investigation of Daniel 
Schorr in 1971 ; and the Huston plan. These incidents are individually 
analyzed below, except for the Schorr investigation which does not 
appear even colorably to have constituted an unlawful or otherwise 
improper action. 

a. The 1969-71 Wiretaps. 

The 1969-71 wiretapping program, and the applicable statutory and 
constitutional law, are treated at great length in the Minority Memo- 
randum of Law and the Evidence. Because the facts of the case are 
presented in detail in that document, 5 no factual summary will be 
reiterated here. With respect to the allegation that 1969-71 wiretaps 
constituted grounds for impeachment, we believe that the following 
points have not received the attention they deserve. 

(i) “Leaks” as a Justification for Wiretapping . — Not every leak of 
classified information, to be sure, represents a bona fide threat to the 
national security. The 1969-71 wiretapping program, though trig- 
gered by William Beecher’s article of May 9, 1969 about the Cam- 
bodian bombing, was really a response to a whole series of news 
articles based on leaks during the spring of 1969. Kissinger has 
described the effect of these leaks as follows : 

During this period, policies were being considered which would establish the 
fundamental approach to major foreign policy issues such as the United States’ 
strategic posture, Strategic Arms Limitation Talks (SALT), Vietnam and many 
other national security issues. Because of the sensitive nature of these matters, 
the secrecy of each was of vital importance and the success or failure of each 
program turned in many instances upon the maintenance of the necessary secu- 
rity. These leaks included discussions of National Security Council deliberations, 


“Minority Memorandum on Facts and haw, “Abuse of Presidential Powers, Wiretaps.’’ 



444 


intelligence information, negotiating positions and specific military operations. 
In several cases, significant consequences resulted from these premature releases 
of internal policy deliberations. In addition, the release of such classified infor- 
mation had obvious benefit for the potential enemies of this country. Of particular 
concern to the President were news leaks which occurred from early April until 
June 1969, involving Vietnam policy, strategic arms and the Okinawa reversion. 6 

The first leak was reflected in articles published in the New York 
Times on April 1 and April 6, 1909 indicating that the United States 
was considering unilateral withdrawal from Vietnam. Kissinger stated 
that these disclosures were “extremely damaging” in that they “raised 
a serious question as to our reliability and credibility as an ally” and 
“impaired our ability to carry on private discussions with the North 
Vietnamese.” 7 

The second leak was the basis for an article of May 1, 1969 in the 
New York Times reporting the five strategic options under study for 
the SALT negotiations : these options were published before they wore 
considered by the NSC. Kissinger said that this disclosure was “of the 
most extreme gravity” because it revealed the apparent inability of 
U.S. intelligence to assess accurately the Soviet missile capability ; and 
because it “raised serious questions as to the integrity of the VS1B and 
created severe doubts about our ability to maintain security ...” 8 

The third leak allegedly resulted in Beecher's May 9, 1909 article 
revealing the air strikes in Cambodia. This article had “obvious ad- 
verse diplomatic repercussions,” according to Kissinger, and raised 
“a serious question in the mind of the President as to . . . whether in 
the future he could make critical foreign policy decisions on the basis 
of full and frank discussions.” 0 

The fourth leak produced a New York Times article of June 3, 1969 
reporting that the President had determined to remove nuclear weap- 
ons from Okinawi in the upcoming negotiations with Japan over the 
reversion of the island. This decision bad not yet been formally com- 
municated to Japan. Kissinger stated that this article compromised 
negotiating tactics, prejudiced the government’s interests, and com- 
plicated our relations with Japan ; and that it “clearly preempted 
any opportunity we might have had for obtaining a more favorable 
outcome” from the negotiations. 10 

The fifth leak was the foundation for articles on June 3 and 4, 1969 
in the Washington Evening Star and the New York Times reporting 
the President's decision to begin withdrawing troops from Vietnam 
before this decision had been communicated to the South Vietnamese. 
Kissinger characterized these disclosures as “extremely damaging with 
respect to this Government’s relationship and credibility with its 
allies.” 11 

(H) Historical Precedent . — The argument has been advanced that 
no reliance can be placed on the warrantless wiretapping carried on 
by the Department of Justice between 1940 and 1968, because these 
wiretaps were in violation of § 605 of the Federal Communications 


0 Statement of Information Submitted on Behalf of President Nixon, Book IV. 143—44. 
7 Jd. 145. 
s Id. 171-72. 

165. 

Id, 1S2. 

11 Id. 159. 



445 


Act of 1934. 12 Til a sense, though, whether or not the prior practice 
of the Department, of Justice was technically legal is academic. The 
practice was continued uninterruptedly and virtually unchallenged for 
nearly thirty years, under five Presidents and their Attorneys General. 
Under these circumstances it would be too much to expect President 
Nixon to challenge the legality of the investigative technique he be- 
lieved proper and necessary. Moreover, Title III of the Omnibus 
Crime Control and Safe Streets Act of 1968 had recently been enacted 
and on its face appeared to represent a relaxation of the earlier statu- 
tory prohibition of wiretapping. 

(in) Title III. — The majority opinion in the Keith case clearly re- 
jects the proposition that a warrantless national security wiretap must 
first satisfy the criteria of 18 U.S.C. § 2511(3) and then be judged ac- 
cording to Fourth Amendment standards. Bather, v’hen the President 
or the Attorney General deems electronic surveillance to be necessary 
for one of the reasons listed in § 2511(3), Title III no longer has any 
application at all. Nothing in Justice Powell s opinion suggests that 
judicial review is or should be available to inquire into the soundness 
of the President’s determination. 

If we could accept tlie Government’s characterization of §2511(3) as a con- 
gressionally prescribed exception to the general requirement of a warrant, it 
would be necessary to consider the question of whether the surveillance in this 
case came within the exception. . . . But . . . we hold that the statute is not 
the measure of the executive authority asserted in this case. Rather, we must 
look to the constitutional powers of the President. 3 * 

Justice Pow ell quite properly assumed that the President would not 
abuse his power thus to withdraw from the ambit of Title III cases 
which bore no relation to national or domestic security; and if an 
abuse of this sort ever took place, the Fourth Amendment would 
render unconstitutional wdiat the statute could not touch. 

Nor can it be argued that § 2517 applies to warrantless wiretaps, and 
thus governs the uses which were made of the 1969-71 wiretaps. The 
phrase, “by any means authorized by this chapter” clearly does not 
contemplate warrantless wiretaps as an authorized means. It could 
be argued, of course, that even a w arrantless wiretap w T as “authorized” 
by §2511(3), That section also states, however, that “ nothing con- 
tained in this chapter . . . shall limit the constitutional power of the 
President, to take such measures as he deems necessary . . .” (empha- 
sis supplied). 


12 Howover, the more modern view readies a contrary interpretation of § 605 in cases 
which involve the national security. United States v. Butenko, 494 F. 2d 593 (3d Cir. 
1974), for example, the court held that not only the interception but also the divulgence 
was permissible under § 605, where the wiretap was conducted in the foreign affairs 
field pursuant to Executive order. (494 F. 2d at 598). Nardone was distinguished because 
it involved the routine investigation of domestic criminals as opposed to foreign intelli- 
gence gathering. Coplon , a celebrated espionage case, was rejected as authority because 
the court in that case (Judge Learned I rand wrote the opinion) never addressed the 
precise question raised in Iintenko. The court drew attention to the fact that there was 
virtually no discussion in Congress of such a situation under § 605. 

The absence of legislative consideration of the issue does suggest that Congress 
may not have intended § 605 to reach the situation presented in the present case, 
lid. 601). 

The opinion concluded that the legislators simply did not consider the possible effect 
ot § 605 in the foreign affairs field, and that the statute must therefore be read so as 
not to interfere with the President’s various foreign powers. 

18 United States v. United States District Court, 407 U.S. 297, 30.8 (1972). As the court 
observed in United Staes v. Butenko, 494 F. 2d 593, 600 n. 25 (3d Cir. 1974) : 

JVith the passage of the Omnibus Crime Control and Safe Streets Act of 
1968, it appears that the only limitations on the President’s authority to engage 
m some forms of electronic surveillance are those set forth in the Constitution. 



446 


(iv) Exception to Fourth Amendment Warrant Requirement.— 
The decision of the Supreme Court in Keith does not apply to the 
1969-71 wiretaps, because that case was not decided until 1972. Dur- 
ing the period in question there was very little applicable case law to 
which the President could look for guidance. Indeed, as of May 1969 
none of the lower courts had addressed the question whether the 
Fourth Amendment permitted an exception to the warrant require- 
ment in wiretap cases involving national or domestic security. 14 The 
first case which dealt with this issue was United States v. Brown, 
317 F. Supp. 531 (E.D, La. July 1970) afd, 484 F.,2d 4J8 (5th Cir. 
1 973) , which upheld the validity of the warrantless wiretaps : 

The surveillance as here in question should be declared lawful on the ground 
that they were authorized by the President or the Attorney General for the pur- 
pose of national security . 15 

This proposition laid down in Brown has not been affected by subse- 
quent decision except to the extent that Keith limited the scope of 
“national security 15 matters to those which have a “significant connec- 
tion with a foreign power, its agents or agencies.” 16 

Even if that limitation were retrospectively applied to the case 
of the 1969-71 wiretaps, they would meet the test of a “significant 
connection.” For the effect of disclosure of classified information in 
the news media and its transmittal to some foreign power for subse- 
quent use against this country is clearly equivalent to the effect of the 
operations of a foreign intelligence service. Whether the information 
is leaked to the newspapers or covertly transmitted to a foreign agent 
is immaterial, since the result is the same in both cases. 

In any event, as of 1969-71 the Keith distinction between national 
and domestic security had not been authoritatively formulated. The 
wiretapping program initiated by the President may have raised con- 
stitutional issues, but in that event he deserved to have his actions 
tested in the Supreme Court. It woidd be an abuse of the impeach- 
ment power to impeach the President for a decision made in good 
faith, where circumstances of compelling urgency favored a program 
whose constitutionality was not questioned by clear authority. 

Reliance on the principles which justify warrantless searches can 
be misleading if those principles are applied indiscriminately to the 
case of national security wiretaps. In the 1969-71 wiretaps there was 
admittedly no urgent immediacy, such as exists in a search incident 
to an arrest; the delay involved in obtaining a court order was not a 
factor in the President’s decision. In view of the fact that the need 
for electronic surveillance arose because of leaks of confidential infor- 
mation by government officials, it is understandable that the Presi- 
dent was anxious lest the effectiveness of the wiretapping program 
itself should be compromised by further leaks. His decision not to 
apply for court orders was therefore, justified by his realistic fear that 
the purpose of the wiretaps would be frustrated unless their very 


14 United States v. Stone , 305 F. Supp. 75 (l).D.C. September 1969) and United States 
v. Clay, 430 F. 2d 165 (5th Cir. July 1970) are admittedly not on point because in both 
cases the wiretaps antedated Katz, so the Fourth Amendment was inapplicable. 

15 317 F. Supp. at 535. 

10 United States v. United States District Court, 407 U.S. 297, 309 n. 3 (1972). Cf. 
United States v. Butenko, 31S F. Supp. 66 (D.N.J. 1970), aff'd, 494 F. 2d 593 (1974) : 
United States v. Hoffman , 334 F. Supp. 504 (D.D.C. 1971) : United States v. Dellinger, 
472 F. 2d 340 (7th Cir. 1972) ; Zweibon v. Mitchell, 363 F. Supp. 936 (D.D.C.1973) . 



447 


existence was known only to a handful of trusted subordinates: 
Mitchell, Kissinger, Haldeman and his administrative assistant, 
Elirlichman, Hoover and a few other top F.B.I. officers. 

(^) Reasonableness of the “Search” : Probable Cause . — A wiretap 
cannot be initiated, with or without a warrant unless there is “prob- 
able cause.'’ In the ordinary criminal context this phrase means prob- 
able cause to believe that the suspect has committed, is committing, 
or is about to commit a crime. We would call attention to 18 U.S.C. 
§ 793, entitled “Gathering, transmitting, or losing defense informa- 
tion.” Section 793(d) provides heavy criminal penalties for anyone 
who, “lawfully having possession of . . . any . . . information re- 
lating to the national defense, which information the possessor has 
reason to believe could be used to the injury of the United States or 
to the advantage of any foreign nation, willfully communicates . . . 
the same to any person not entitled to receive it . . .” Section 793(e) 
refers to any one who, “having unauthorized possession of . . . 
any . . . information relating to the national defense,” etc. Daniel 
Ellsberg was indicted under both subsections, and both subsections 
are relevant here. 

Furthermore, in the case of a search which is not undertaken for 
purposes of criminal prosecution, the probable cause requirement need 
not be the same as the criminal context : 

The standard [of probable cause] may be modified when the government 
interest compels an intrusion based on something other than a reasonable belief 
of criminal activity . 17 

In the case of non-criminal administrative searches, for example, spe- 
cific probable cause is often not determinable, and no warrants for this 
type of search could issue if the traditional showing of probable cause 
were required. 18 Likewise, in the case of wiretaps initiated for the 
purpose of intelligence gathering rather than criminal prosecution, 
it is reasonable to take into account the function of the “search” in 
applying a standard of probable cause. 

During the course of the 1969-71 wiretaps seventeen persons were 
placed under electronic surveillance. Seven of these persons were em- 
ployees of the National Security Council (Halperin, B, O, C, I, L, 
and K) ; two were State Department officials (A and H) ; and one was 
at the Department of Defense (General Pursley). All ten had access 
to the classified information which was leaked, and it is therefore 
beyond argument that sufficient probable cause existed to justify the 
surveillance of these persons. 

Four were newsmen, at least two of whom (Beecher and D) were 
known to have published newspaper articles, based on leaks, which 
were extremely damaging to the effectiveness of U.S. foreign policy 
initiatives. The other two newsmen (M and P) were known to have 
frequent contact with Soviet-bloc personnel; though perhaps not in 
itself a sufficient reason to justify wiretapping, this fact must be 
considered as an aggravating factor under the circumstances. 

With respect to the three remaining persons who were wiretapped 
(White House staff members E, F, and J), it is true that none of 


17 United States v. Butenko, 494 F. 2d 593, 606 (3d Cir. 1974). 

1H E.g., Adorns v. Williams. 407 U.S. 143 (1972) : Camara v. Municipal Court , 387 U.S. 
523 (1967). 


37-777 0 - 74 - 29 



448 


them had direct access to classified foreign policy information. It is 
possible, however, that any one of these persons might have inadver- 
tently come into possession of this type of information simply by virtue 
of their close contact with other White House pei'sonnel. For example, 
E was an aide to John Elirlicliman, one of the President’s closest con- 
fidantes . In any event, even if there was not a sufficient showing of 
probable cause to justify wiretapping these three persons, the entire 
wiretapping program cannot be condemned simply because of an in- 
advertent and good faith error in judgment with respect to two or 
three of the seventeen persons who were placed under surveillance. It 
is appropriate to keep in mind that the decisions as to which persons 
should be wiretapped were made, for the most part, in the context of an 
emergency situation. 

It should also be recalled that in each of the seventeen cases the 
decision to place a wiretap was reviewed by F.B.I. Director Hoover and 
specifically authorized by Attorney General Mitchell. Both of these 
men were better qualified than the President to judge the legality of 
a particular wiretap, and the President properly relied on them to 
warn him if there was not a sufficient legal basis for one of the sur- 
veillances. 

( vi ) Reasonableness of the “Search”: Duration of Wiretaps . — 
There is no denying that the 1969-71 wiretaps, by and large, were 
maintained for longer periods of time than is customary in the case 
of ordinary criminal investigations. However, the wiretapping pro- 
gram was no ordinary criminal investigation; it was undertaken in 
response to a serious and ongoing threat to the national security. When 
a Title III wiretap is used as a weapon against organized crime, be- 
cause of the inherent nature of the activity being monitored the wire- 
tap will usually achieve its objective or prove unsuccessful within a 
relatively short time. The opposite is apt to be true of intelligence 
surveillance, whose purpose is not simply to accumulate a critical mass 
of incriminating evidence sufficient to obtain an indictment. One of the 
major purposes of the 1969-71 wiretaps, in President Nixon’s words, 
was to “tighten the security of highly sensitive materials.” 19 This is an 
objective which can never be completely achieved; rather its is a con- 
tinuous process. Viewed in this light, the lengthy duration of the 
wiretaps may be regarded as a rational and justifiable means toward 
that end. 

(vii) Reasonableness of the “Search” : Interception of Innocent 
Conversations . — It may also be true that the 1969-71 wiretaps inter- 
cepted & number of conve nations which turned out to be irrelevant or 
innocent. Again, this was not an ordinary criminal investigation. For 
example, a typical Title III wiretap might have to do with gambling or 
narcotics activities. In cases of that sort, it can be determined without 
great difficulty whether a particular conversation does or does not 
involve the criminal conduct under investigation. By contrast, a sur- 
veillance whose purpose is to gather intelligence must be attentive to 
many details of conversation which, on their face, have nothing to do 
with the subject of the “search”. Subtle nuances of meaning or inflec- 
tion which would not constitute admissible evidence at a criminal trial 


10 Statement of Information , Book VII, 147. 



449' 


may provide vital clues toward the resolution of a national security 
problem. 

Furthermore, even in criminal cases the courts have differed widely 
as to the seriousness of a failure to minimize the interception of irrele- 
vant conversations. Some courts have held that it requires the exclusion 
of all the wiretap evidence, whether relevant or not ; 20 other courts 
have excluded only the wrongfully seized conversations. 21 While the 
excessive interception of irrelevant conversations is unconstitutional 
under Berger v. New York , it may be doubted whether this abuse is of 
comparable gravity to the failure to obtain a warrant. In short, this 
defect of the 1969-71 wiretapping program is not sufficiently important 
to warrant the removal of a President from office. 

(viii) Use of Wiretap Information . — Much has been made of the 
fact that in a handful of isolated instances the wiretaps yielded infor- 
mation which was of incidental political usefulness to the President. 
This has not been shown to be anything more than an accidental 
by-product of surveillance undertaken for a different and proper 
purpose, nor can such a showing be supported by the facts. 

The wiretapping program has also been criticized because the 
identity of the source of the leaks was not discovered, and because no 
prosecutions or personnel actions were taken as a result of information 
generated by the wiretaps. But these conclusions do not necessarily 
follow from the facts, nor do they hold any significance even if true. 
The objective of the wiretapping program was not to provide the basis 
for criminal prosecutions nor even to bring about the removal of un- 
trustworthy government employees, but rather to tighten the security 
of classified information. Three NSC staff members (Halperin, L, and 
O) resigned while they were under surveillance; one or more of these 
persons may have been the source of the leaks, in which case an objec- 
tive of the wiretaps would have been accomplished without any visible 
governmental action. 22 Similarly, information yielded by the wiretaps 
may have resulted in the institution of new procedures designed to 
improve security; this result would not be highly visible either, but 
would nonetheless vindicate the usefulness of the surveillance. 

It has been asserted that there could have been no proper purpose 
for wiretapping Halperin and L after May, 1970, since the govern- 
ment would not have been able after that date to take personnel action 
or to bring criminal prosecution against them. It is not necessarily 
true, however, that these ex-NSC employees could not have been 
prosecuted on the basis of evidence obtained through the warrantless 
wiretaps. If the wiretap was justifiable for the purpose of protecting 
classified information against foreign intelligence operations (if, for 
example, even after leaving the NSC Halperin and L still possessed 
certain secret information), then some courts have suggested that 
incriminating evidence obtained incidentally in the course of the sur- 
veillance is admissible at a criminal trial : 

Since the primary purpose of these searches is to secure foreign intelligence 
information, a judge, when reviewing a particular search must, above all, be 


20 E.g., United States v. Scott , 331 F. Supp. 233 (D.D.C. 1971). 

21 E.g., United States v. King , 335 F. Supp. 523 (S.D. Cal. 1971). 

22 Indeed, there is substantial evidence that O did not voluntarily resign, but was dis- 
missed. For example, in an intercepted conversation he mentioned that his employment on 
the NSC staff was being terminated because he had been seeing reporters. (Statement of 
Information , Book VII, 1f7.1, unpublished). 



450 


assured that this was in fact its primary purpose and that the accumulation of 
evidence of criminal activity was incidental . 23 

(ix) Concealment of the Wiretap Records . — The allegation that 
President Nixon ordered the records of the 1969-71 wiretaps not to be 
entered in the FBI indices is based on the following excerpt from 
an internal FBI memorandum of May 11, 1969 : 

Haig came to my office Saturday to advise me the request [for wiretaps on 
Halperin, Pursley, B, and O] was being made on the highest authority and 
involves a matter of most grave and serious consequence to our national security. 
He stressed that it is so sensitive it demands handling on a need-toknow basis, 
with no record maintained . 24 

As evidence of what the President may have ordered, this statement 
is hearsay upon hearsay. Furthermore, it is wholly ambiguous. First, 
it is not clear whether “the highest authority,” which may be under- 
stood to refer to the President, is meant to govern the second sentence 
as well as the first. Second, even if the President had directly ordered 
the FBI “to handle the case on a need-to-know basis, with no record 
maintained,” this would not justify the conclusion that he intended 
the FBI to act in dereliction of its legal duty to maintain such wire- 
tap indices as are necessary to supply logs of conversations to the 
courts in Alderman “taint” hearings. The President may not even have 
been aware of this duty, much less what specific procedures (the 
ELSUR index) were customarily employed by the FBI to discharge 
the duty. These are the responsibilities of the Director of the FBI, 
on whom the President properly relied to carry out his orders in an 
appropriate and legal manner. 

The failure to maintain records of the wiretaps on the FBI indices, 
and the subsequent retrieval of all the 1969-71 wiretap records from 
the FBI, have been cited as evidence of the President’s awareness 
that the wiretapping program might be illegal. This inference is re- 
butted, however, by a more compelling inference that the President’s 
actions had an innocent motivation. Whatever his precise instructions 
to Haig may have been the President was understandably anxious to 
take all appropriate measures which would ensure that the existence 
of the wiretaps would not, through leaks, become known to the very 
persons on whom the surveillance had been placed. The recovery of the 
wiretap records from the FBI in July 1971 was motivated by the alle- 
gation of William Sullivan, Assistant to the Director, that Director 
Hoover intended to use those records for an improper purpose. 25 No 
doubt the President was skeptical about this allegation, but felt that 
no harm would be done by taking prophylactic action. 

(x) Termination of the Wiretaps . — All of the wiretaps still in 
force, of which there were nine, were terminated on February 10, 
1971. There is no apparent reason for this abrupt and total discontinua- 
tion of the wiretapping program. It may be noted, however, that in 
January 1971 two separate district courts held, for the first time, that 
there is no exception to the warrant requirement of the Fourth Amend- 
ment in the case of domestic security wiretaps. 26 Prior to Smith and 


23 United States v. Butenko, 494 F. 2d 573, 606 (3d Cir. 1974). 

=4 Book VII, 189. 

Book VII. 757. 

20 United States v. Smith , 321 F. Supp. 424 (C.D. Cal. January 8, 1971) ; United States 
v. Sinclair , 321 F. Supp. 1074 (E.D. Mich. January 26, 1971). Sinclair was decided by 
Judge Keith and became popularly known as the Keith case. 



451 


Sinclair , the lower courts had uniformly upheld warrantless “national 
security” wiretapping, but the earlier cases had all involved wiretaps 
for the gathering of foreign intelligence so that there had been no need 
to draw the distinction between domestic and national security. If the 
President’s opinion as to the legality of the wiretapping program had 
previously been influenced by the decisions of the lower courts, the 
termination of the wiretaps shortly after the decisions in Smith and 
Sinclair might be considered evidence of his willingness to abide by 
developing law in the area. 

b. Wiretap and Surveillance of Joseph Kraft 

The surveillance of Washington newspaper columnist Joseph Kraft 
took four forms, each of which must be analyzed separately in order 
to determine whether any wrongful actions were taken, and if so, 
whether the President may properly be held responsible for them. 

First, in June, 1969 John Ehrlichman directed his assistant, John 
Caulfield, to have a wiretap installed on the office telephone in Kraft’s 
residence in Washington, D.C. (Book VII, 314). According to Ehr- 
lichman, there was a national security justification for this wiretap 
(Book VII, 317, 323) . Caulfield enlisted the aid of John Kagan, former 
Security Chief for the Republican National Committee, in installing 
the wiretap. The telephone was wiretapped for one week during which 
time Kraft was out of the country, so that none of his conversations 
was intercepted. (Book VII, 314^19, 324). At the end of that short 
period, Ehrlichman directed the removal of the wiretap for the reason 
that the operation was going to be turned over to the FBI. (Book VII, 
315). Despite its short duration and unproductive yield, this wiretap 
might be argued to constitute a violation of Kraft’s constitutional 
rights. The question is academic, however, since there is no evidence 
that the President authorized or even retrospectively approved the 
wiretap. Testifying before the Senate Select Committee, Ehrlichman 
stated only that he had at some point “discussed” the Kraft wiretap 
with the President. (Book VII, 323). There is no indication of presi- 
dential approval; indeed, Ehrlichman himself claimed not to have 
been aware that the wiretap actually took place. (Book VII, 323). 

Second, after the discontinuation of the Caulfield wiretap, the 
FBI considered placing Kraft under electronic surveillance. No wire- 
tap was ever installed on Kraft’s telephone by the FBI, however, 
because the Attorney General never authorized it. (Book VII, 356; 
unpublished material from Book VII, f[ 14.3, p. 2.) 

Third, in June 1969 the FBI arranged to have a microphone 
installed in Kraft’s hotel room in a European country. William 
Sullivan, Assistant to the Director of the FBI, apparently with the 
knowledge and consent of Director J. Edgar Hoover, traveled to the 
foreign country and supervised the installation of the microphone. 
(Book VII, 356; unpublished material from Book VII, If 14.3, p. 1.) 
In this case the evidence does not even clearly establish that Hoover 
knew about and approved the surveillance, let alone that it was 
performed on the President’s authority. 

Fourth, from November 5 to December 12, 1969, the FBI placed 
Kraft under “spot physical surveillance” in Washington, D.C. This en- 
tailed no more than agent following Kraft to report on his evening 



452 


social activities. (Book VII, 356-57 ; unpublished material from Book 
VII, v 14.3, pp. 2-3.) It may be doubted that this surveillance con- 
stituted a violation of law or of Kraft’s constitutional rights (under 
the Fourth Amendment or any other provision of the Constitution). 
In any event, there is no evidence at all to suggest that the President 
authorized or approved this spot physical surveillance. 

c. Wiretap and Surveillance of Donald Nixon 

In 1969 H. R. Haldeman and John Ehrlichman asked the Central 
Intelligence Agency to conduct physical surveillance of Donald Nixon, 
the President’s brother, who was moving to Las Vegas and who, it was 
feared, might come into contact with criminal elements. (Report of 
CIA Inspector General and Deputy Director Robert Cushman, 
June 29, 1973.) The CIA refused, since it has no jurisdiction under 50 
U.S.C. § 403(d) (3) to engage in domestic law enforcement activities. 

In the latter part of 1970, Ehrlichman contacted his assistant John 
Caulfield and asked him to monitor a project which involved a wiretap 
which had been placed by the Secret Service on the telephone of Donald 
Nixon at his residence in Newport Beach, California. (Book VII, 
508-09.) The apparent reason for this wiretap had to do with the 
fact that in 1969 Donald Nixon had visited the Dominican Republic 
where he had been a guest of President Balaguer ; there is a suggestion 
that Mr. Nixon’s traveling companions may have been “unsavory”. 
(Book VII, 509-20.) The wiretap was conducted with the knowledge 
of Mr. Nixon, and was terminated after only three weeks. (Book VII, 
510, 522.) During that period the Secret Service also kept Mr. Nixon 
under physical surveillance. (Book VII, 512-15.) 

There are several reasons why the surveillance of Donald Nixon 
does not constitute an offense, let alone an offense for which the Presi- 
dent should be removed from office. First, there is no evidence, that the 
surveillance was ordered by the President or even known to him until* 
after the fact. Second, the Secret Service is responsible for protecting 
the physical safety of the President and his immediate family. While 
the primary concern in the case of Donald Nixon may have been that 
his associations would cause embarrassment to him and therefore to 
the President, in view of the criminal elements and unsavory charac- 
ters with whom he was thought to have had contact it is not unreason- 
able to suppose that the Secret Service was concerned as well for his 
physical safety. In this regard it is appropriate to concede to the Secret 
Service a certain latitude of discretion to err on the side of caution. 
Third, the surveillance was conducted with Donald Nixon’s knowledge 
and consent. Technically, under 18 IT.S.C. § 2511(2) (b) such consent 
must be obtained in advance of the installation of the wiretap ; but since 
Mr. Nixon subsequently approved of the surveillance, it would be pre- 
posterous to suggest that the President should be removed from office 
because of this technicality. 

d. The “ Huston Plan ” 

(i) Facts . — On June 5, 1970, the President held a meeting with 
FBI Director J. Edgar Hoover, Defense Intelligence Agency Director 
Donald Bennett, National Security Agency Director Noel Gayler, and 
Central Intelligence Agency Director Richard Helms. (Book VII, 
375.) Also present were H. B. Haldeman, John Ehrlichman, and 



453 


Presidential Staff Assistant Tom Huston. (Book VII, 375.) The 
President discussed the need for better domestic intelligence operations 
in light of an escalating level of bombings and other acts of domestic 
violence. (Book VII, 377) The President asked the Intelligence Agency 
Directors for their recommendations on whether the government’s 
intelligence services were being hampered by restraints on intelligence 
gathering methods. Huston has testified that it was the opinion of the 
Directors that they were in fact being hampered. (Book VII, 378.) 
The President appointed Hoover, General Bennett, Admiral Gayler, 
and Helms to be an ad hoc committee to study intelligence needs and 
cooperation among the Intelligence Agencies, and to make recommen- 
dations. Hoover was designated Chairman and Huston served as White 
House liaison. (Book VII, 377-78, 382) 

On J line 25, 1970 this ad hoc committee completed its report, entitled 
“Special Report Interagency Committee on Intelligence (Ad Hoc)” 
(hereafter “Special Report”). 

The first page of the Special Report, immediately following the 
title page, bore the following notation : 

“June 25, 1970 

This report, prepared for the President, is approved by all members of this 
committee and their signatures are affixed hereto. 

/s/ J. Edgar Hoover, 

Director, Federal Bureau of Investigation, Chairman. 

/s/ Richard Helms, 
Director, Central Intelligence Agency, 
/s/ Lt. General D. V. Bennett, USA, 

Director, Defense Intelligence Agency, 
/s/ Vice Admiral Noel Gayler, USN, 

Director, National Security Agency.” 

(Book VII, 385) 

^ Part One of the Special Report, entitled “Summary of Internal 
Security Threat,” was a lengthy threat assessment, including assess- 
ments of the current internal security threat of various domestic 
groups, of the intelligence services of communist countries, and of other 
revolutionary groups. (Book VII, 389-410) 

Part Two, entitled “Restraints on Intelligence Collection,” was a 
discussion of official restraints under which six types of United States 
intelligence collection procedures operated, and of the advantages 
and disadvantages of continuing or lifting such restraints. (Book 
VII, 411-29) V 

Part Three, entitled “Evaluation of Interagency Coordination,” 
assessed the degree of coordination between the Intelligence Agencies 
and recommended means to improve it. (Book VII, 430-31) 

Although the Special Report took no position with respect to the 
alternative decisions listed, it included statements in footnotes that 
the FBI objected to lifting the restraints discussed, except those on 
legal mail coverage (keeping a record of the return address of com- 
munications addressed to an individual) and National Security 
Agency communications intelligence. (Book VII, 41G, 419, 421, 424, 
427) 5 

Duripg the first week of July, 1970, Huston sent, the Special Report, 
together with a memorandum entitled “Operational Restraints On 
Intelligence Collection,” to Hal deman. In the memorandum Huston 



454 


recommended that most, although not all, of the present procedures 
imposing restraints on intelligence collection activities should be 
changed. Huston’s recommendation included the following : 

“Electronic & inrveillancea and Penetrations. 

Recommendation : 

Present procedures should be changed to permit intensification of coverage of 
individuals aud groups in the Uuited States who pose a major threat to the 
internal security. 

. . . Mail Coverage . 

Reco mmendati on : 

Restrictions on legal coverage should be removed. 

ALSO, present restrictions on covert coverage should be relaxed on selected 
targets of priority foreign intelligence and internal security interest. 

Rationale: . . . Covert coverage is illegal and there are serious risks in- 
volved. However, the advantages to be derived from its use outweigh the risks. 
This technique is particularly valuable in identifying espionage agents and other 
contacts of foreign intelligence services. 

. . . Suri'eptitious Entry. 

Recommendation : 

Present restrictions should be modified to permit procurement of vitally needed 
foreign cryptographic material. 

ALSO, present restrictions should be modified to permit selective use of this 
technique against other urgent and high priority internal security targets. 

Rationale: 

Use of this technique is clearly illegal : it amounts to burglary. It is also 
highly risky and could result in great embarrassment if exposed. However, it 
is also the most fruitful tool and can produce the type of intelligence which 
cannot be obtained in any other fashion. 

The FBI, in Mr. Hoover’s younger days, used to conduct such operations with 
great success and with no exposure. The information secured was invaluable.” 
(Book VII, 438-40) 

On July 14, 1970, Haldeman sent a memorandum to Huston stat- 
ing, “The recommendations you have proposed as a result of the re- 
view have been approved by the President. . . . The formal official 
memorandum should, of course, be prepared and that should be the 
device by which to carry it out.” (Book VII, 447) 

On July 23, 1970 Huston sent a “decision memorandum” entitled 
“Domestic Intelligence” to each of the Directors of the four In- 
telligence Agencies, informing them of the options approved by the 
President. (Book VII, 454) 

Shortly after the decision memorandum of July 23, 1970 had been 
received by Mr. Hoover, Huston received a telephone call from 
Assistant FBI Director William Sullivan indicating that Hoover had 
been very upset by the decision memorandum, and that Hoover either 
had talked or intended to talk to the Attorney General to undertake 
steps to have the decisions reflected in the memorandum reversed. 
(Book VII, 470) On or before July 27, 1970, Director Hoover met with 
Attorney General Mitchell, who joined with Hoover in opposing the 
recommendations contained in the memorandum of July 23, 1970. 
(Book VII, 463) 

Shortly after his telephone conversation with Sullivan, Huston 
received a call from Haldeman indicating that the Attorney General 
had talked to the President, or that Haldeman had talked to the 
Attorney General and then to the President, but that, in any event, 
Huston was instructed to recall the decision memorandum ; that the 
President desired to reconsider the matter, and that Haldeman, 
Hoover, and the Attorney General would have a meeting in the near 
future to discuss the matter. (Book VII, 470) 



455 


Huston arranged for the recall of the document through the White 
House Situation Room. (Book VII, 470) Copies of the decision memo- 
randum on “Domestic Intelligence” were returned by each of the four 
Intelligence Agencies to the White House Situation Room on or about 
July 28, 1970. (Book VII, 472, 474) Although Huston continued 
to press for adoption of his recommendations (Book VII, 48CU85), 
the plans for lifting operational restraints on intelligence collection 
activities were not reinstituted. 27 

(ii) Discussion . — (a) With respect to electronic surveillance and 
penetrations, the Special Report of the Interagency Committee stated, 
“The President historically has had the authority to act in matters 
of national security. In addition, Title III of the Omnibus Crime 
Control and Safe Streets Act of 1968 provides a statutory basis.” 
(Book VII, 415) The Special Report also stated that routine mail 
coverage was legal. (Book VII, 417) Other intelligence collection 
activities, such as development of campus sources, appeared to pre- 
sent political rather than legal questions. 

However, with respect to both covert mail coverage and surreptitious 
entry, both the Interagency Committee’s Special Report and the “Op- 
erational Restraints” memorandum prepared by Huston stated that 
such intelligence collection activities were illegal. (Book VII, 418, 
420, 439 and 440) The President’s approval of Huston’s recommenda- 
tions in these areas may consequently be viewed as approval of other- 
wise illegal actions by government agencies. 

(b) The Special Report was prepared by a committee consisting 
of intelligence professionals from each of the four Intelligence Agen- 
cies. Although it did not make recommendations, it listed as options 
the relaxation or removal of restrictions on all categories of intel- 
ligence collection activities. The recommendations made by Huston 
in the “Operational Restraints” memorandum are taken verbatim 
from among the options listed by the Special Report of the Inter- 
agency Committee; they do not go beyond options listed by the 
Committee. The Special Report was approved by all members of the 
Committee, consisting of the Directors of the four Intelligence Agen- 
cies, and their signatures were affixed to the first page. This approval 
might have been taken by Haldeman or by the President to indicate 
that the options listed were not regarded as improper by the profes- 
sional United States intelligence community, despite the footnoted 
objections of Mr. Hoover contained in the body of Part Two of the 
Special Report. 

. ( c ) The options of lifting restraints on intelligence gathering activ- 
ities, listed in Part Two of the Special Report, were intended to be 
taken in the context of the threat assessment contained in Part One 
of the Special Report. There had been a substantial number of bomb- 
ings and riots in the spring and summer of 1970. (Book VII, Part 1, 
p. 3( ( ) Part One stated that communist intelligence services possessed 
a capability for actively fomenting domestic unrest, although it also 


--In or before December, 1970, when John Dean had assumed responsibility for matters 
or domestic intelligence for internal security purposes, an Intelligence Evaluation Com- 
t( \ improve coordination among the intelligence community and to 
piepare evaluations and estimates of domestic intelligence. (Book VII, 487 497) This step 
may be seen as an outgrowth of the recommendations in Part Three of the Special Report, 
entitled Evaluation of Interagency Coordination.” (Book VII, 430-31) 



456 

stated that there had been no substantial indications that this had 
yet occurred. (Book VII, 402) 

(d) The recommendations by Huston contained in the memoran- 
dum entitled “Operational Restraints on Intelligence Collection” are 
cast in general terms, e.g., “present procedures shoidd be changed” 
(electronic surveillance), or “relaxed” (mail coverage), or “modified” 
(surreptitious entry). (Book VII, 438-89) Much might have depended 
upon how the modifications might have been implemented. 

(e) The President’s approval in principle of modifying some oper- 
ational restraints which had been in existence since 1966 was with- 
drawn within five days after the circulation of Hustons decision 
memorandum, which was the device for carrying out the recommenda- 
tions. (Book VII, 447, 472, 474) There is no evidence before the 
Committee that any illegal mail coverage, surreptitious entry, or 
electronic surveillance or penetration was ever undertaken, during 
these five days, under the authority of the decision memorandum. 

(f ) It has occasionally been urged that the formation and operation 
of the “Plumbers” group is evidence that the Huston Plan was not 
actually rescinded. This is untenable. The two matters were handled 
by entirely different groups of White House staff members and they 
arose a year apart. The problem to which the Huston Plan was directed 
was, essentially, domestic violence, whereas the “Plumbers” were 
concerned with news leaks and the theft of the Pentagon Papers. It 
strains the facts to find any connection between the two. 

Paragraph ( 3 ) 

Paragraph (3) of proposed Article IT charges that President 
Nixon, “acting personally and through his subordinates and agents,” 
authorized the maintenance of a “secret investigative unit” within the 
White House, which (1) unlawfully utilized the resources of the Cen- 
tral Intelligence Agency, (2) engaged in covert and unlawful activi- 
ties, and (3) attempted to prejudice the constitutional right of an ac- 
cused to a fair trial. Paragraph (3) also alleges that the Special In- 
vestigations Unit was financed in part with money derived from cam- 
paign contributions. 

The language employed by the majority of the Committee to frame 
these charges stops short — but just barely — of echoing the near- 
hysterical cry of some that the President established in the White 
House a personal “secret police” force that gravely threatened the civil 
liberties of the entire population. We think it helps to place the matter 
in better perspective to note at the outset that the “secret investigative 
unit” mentioned in the Paragraph appears never to have numbered 
more than four persons at any one time ; its members received no special 
training for their work ; they carried no weapons: they made no arrests 
nor otherwise asserted any power or authority to engage in either 
general or localized law enforcement. 

Any willful violation of an individual's civil liberties by government 
employees acting at the direction of the President, if proved, would 
be a matter of deep concern to us all, but we frankly feel that much 
of the discussion of the White House Special Investigations Unit is 
characterized by rank hyperbole. All of the evidence before the Com- 



457 


mittee bears out the truth of President Nixon’s description of the 
group’s mission : 

This was a small group at the White House whose principal purpose was to 
xtop security leaks and to investigate other sensitive security matters. (Book 
VII, 593 ; emphasis added ) 

Thus, the now-popular nickname “Plumbers.” 

a. Establishment of Special Investigations Unit in June , 1971. — On 
June 13, 1971 the New York Times began publication of a top secret 
Defense Department study of American involvement in the Vietnam 
war — the so-called “Pentagon Papers,” which had been removed 
from Defense Department files. (Book VII, 593) On July 23, 1971 the 
New York Times published details of the United States negotiating 
position on the Strategic Arms Limitations Talks. (Brief on Behalf 
of the President, 95) 

These two unauthorized disclosures of sensitive government infor- 
mation in quick succession were not the- first such instances to plague 
the President and his top foreign policy planners. Earlier in his first 
Administration on April 6, 1969, the President had directed that the 
possibility of unilateral troop withdrawals from Vietnam be studied. 
On April 6, 1969 the New York Times reported that the United States 
was considering unilateral troop withdrawal from Vietnam. (Brief 
on Behalf of the President, 83) In early June of the same year, the 
l nited States Intelligence Board issued a report setting forth its 
estimates of the Soviet Union’s strategic strength and possible first- 
strike capability. On June 18, 1969 the New York Times published this 
official estimate of the first-strike capabilities of the Soviet Union. 
(Brief on Behalf of the President, 85) 

1 lie evidence before the Committee establishes that the President 
was genuinely concerned about the leaks of national security that had 
occurred. During the first week following the publication of the Pen- 
tagon Papers by the New York Times , the President ordered an FBI 
investigation of the leaks, and ordered a security clearance review by 
each department and agency of the government having responsibility 
for the, classification of information affecting the national defense. 
In addition the President ordered that a legal action be instituted to 
prevent further publication of the Papers which ultimately resulted in 
the Supreme Court’s 6 to 3 decision in the case of New York Times v. 
United States. Finally, lie authorized the establishment of a small 
special investigations ’ unit within the White House for the purpose 
of investigating and preventing leaks of national security information. 

( Brief on Behalf of the President, 91, and authorities cited; Book VII, 
619-32) 

In the two weeks following the publication of the Pentagon Papers, 
the President called a series of meetings with senior advisors to discuss 
the adverse effect of the publication of the Pentagon Papers upon na- 
tional security and foreign policy. (Book VII, 619) The participants 
at, these meetings discussed the possibility that Daniel EUsberg, who 
had been identified as the person who stole the Pentagon Papers from 
the Defense Department, possessed additional sensitive information 
which he might disclose. (Book VII, 619) At one of the meetings, the 
Assistant Attorney General in charge of the Internal Security Division 
told the White House staff members present that some or all of the 



458 


Pentagon Papers had been delivered to the Soviet Embassy on June 17, 
1971. (Book VII, 619) At a meeting between the President, his Na- 
tional Security Advisor Henry Kissinger, and John Ehrlicliman, Dr. 
Kissinger told the President that Ellsberg was a “fanatic” and that 
he had “knowledge of very critical defense secrets of current validity, 
such as nuclear deterrent targeting.” (Book VII, 621) 

The President stated on a number of occasions closely following the 
publication of the Pentagon Papers that if the leaks continued, there 
could be no “credible U. S. foreign policy,” and that the damage to 
the government and to the national security at a very sensitive time 
would be severe. (Book VII, 626) The President referred in these dis- 
cussions to many of the sensitive matters which were then either being 
negotiated or considered by the Administration, e.g„ the Strategic 
Arms Limitations Talks, Soviet Detente, the Paris Peace Negotiations, 
and his plan for ending the war in Vietnam. In addition, the President 
had already formed a desire to visit the Peoples Republic of China, 
(Book VII, 625) 

With respect to the purpose of the Special Investigations Unit, it is 
the sworn testimony of Egil Krogh that on or about July 15, 1971 he 
was given oral instructions by Mr. John Ehrlicliman “to begin a 
special national security project to coordinate a government effort to 
determine the causes, sources, and ramifications of the unauthorized 
disclosure of classified documents known as the Pentagon Papers.” 
(Book VII, 796). 

Under all the circumstances, we believe that if the President had 
not acted decisively against epidemic leaks of national security ma- 
terial, that would have been a breach of his responsibilities for the 
protection of the nation’s security. 

b. President's knowledge of the Ellsberg break-in . — The evidence 
before the Committee is that Egil Krogh and David Young received 
authorizaton from John Ehrlicliman for Liddy and Hunt to fly to 
California over Labor Day weekend, 1971, to complete an investi- 
gation of Daniel Ellsberg. It is alleged that the trip to California was 
financed with funds solicited by Charles Colson from the dairy indus- 
try. Assuming that this was the case, there is no evidence whatsoever 
to indicate that the President was aware of any part of the transaction. 
In the memorandum on which John Ehrlicliman initialed his ap- 
proval, the project was described as a “covert operation.” Interestingly, 
Patrick Buchanairs memorandum to Ehrliehman dated July 8, 1971 
stating that the political dividends would not justify the magnitude of 
the investigation recommended for “Project Ellsberg,” referred to 
the investment of personnel resources in a “covert operation” over 
a 3-month period , timed to undercut the McGovern-Hatfield opposi- 
tion by linking the theft of the Pentagon Papers with “Ex-NSC types,” 
“leftist writers” and “left-wing papers.” (Book VII, 708-11 ; 1024) It 
seems unlikely that Mr. Buchanan was referring to a three-month 
burglary. 

After the fact, Egil Krogh reported to Ehrliehman that there had 
been a break-in in California. The sworn testimony of Mr. Krogh 
is that Ehrlicliman’s response “was one of surprise, that lie con- 
sidered what had been done to be in excess of what he contemplated 
was going to be carried out.” (Book VII, 1315) Ehrliehman, how- 



459 


ever, was, recently convicted of conspiring with Krogh and others to 
violate the civil rights of Dr. Fielding. 

The weight of the evidence before the Committee is that the Presi- 
dent neither authorized the Fielding break-in nor Avas even aware 
of its occurrence until March 17, 1973. It is true that the President 
was deeply concerned about the leaks of national security information. 
Ehrlichman has testified that the President stated to him that Krogh 
“should, of course, do whatever he considered necessary to get to the 
bottom of the matter — to learn what Ellsberg’s motives and potential 
further harmful action might be.'- (Book VII, 1001) We do not be- 
lieve that this can reasonably be interpreted to mean that the Presi- 
dent intended to authorize an unlawful act. 

Tlie President has stated : 

Because of the extreme gravity of tlie situation, and not then knowing what 
addi tonal national secrets Mr. Ellsberg might disclose, I did impress upon Mr. 
Krogh the vital importance to the national security of his assignment. I did not 
authorize and had no knowledge of any illegal means to be used to achieve this 
goal. (“Presidential Statements,” 5/22/73, 23) 

We think it is relevant here to consider the President’s remarks 
made in a different but analogous context. During a conversation with 
John Dean on March 21, 1973 speaking of Colson's possible role in 
tlie Watergate matter the President said : 

The President. The absurdity of the whole damned thing. 

Dean. But it — 

The President, hugging and so on. Well, let me say I am keenly aware of the 
fact that, uh, Colson et al., and so forth, were doing their best to get informa- 
tion and so forth and so on. But they all knew very well they were supposed 
to comply with the law. (HJCT 100) 

The evidence is virtually undisputed that the President did not 
know in advance about the break-in at I)r. Fielding’s office. Ehrlich- 
man has testified that he did not inform President Nixon of the break- 
in after Ehrlichman learned of it from Krogh. (Book VII, 1334) 
Charles Colson testified before this Committee that not only did lie 
not have any evidence that the President authorized tlie Fielding 
entry, but also that Ehrlichman had told Colson that he, Ehrlichman, 
had not discussed the Ellsberg entry with the President. (Colson 
testimony, 3 HJC 450) Ehrlichman allegedly made this statement 
to Colson in connection with preparing for his recent trial in the Dis- 
trict of Columbia, and it would have been greatly to Ehrliclmian’s 
advantage, in establishing his defense on national security grounds, 
to disclose any discussions he had had with the President regarding 
the entry into Dr. Fielding's office which might tend to prove Presi- 
dential authorization of the “covert operation.’’ 

David Young has testified that he “had no discussions with the 
President about the . . . Ellsberg-Fielding matter.” [David Young testi- 
mony ; United States v. Ehrlichman* Cr. 74-llfi (I). D. C. 1974), 1120- 
21 ; Brief on Behalf of the President, 99.] 

The President’s sworn answers to interrogatories submitted to him 
in connection with the Ehrlichman trial state that he first learned of 
the Ellsberg break-in on March 17, 1973. The White House edited 
transcript of the conversation between the President and Dean on 
March 17. 1973 reveals that Dean told the President that Hunt and 
Liddy had worked for Ehrlichman, stating “These fellows had to be 



460 


some idiots as we Ye learned after the fact. Tliey went out and went 
into Dr. Fielding's office and they had, they were geared up with all 
this CIA equipment — cameras and the like. v The President stated: 

President. What in the world — what in the name of God was Ehrlich man 
having something (unintelligible) in the Ellsberg (unintelligible)? 

Dean. They were trying — this was part of an operation that — in connection 
with the Pentagon papers. They were — the whole thing — they wanted to get 
Ellsberg’s psychiatric records for some reason. I dont know. 

President. This is the first I ever heard of this. (WHT 158) 

Upon hearing of the Fielding operation, and having knowledge of 
all the other unrelated national security work carried on by the Special 
Investigation In it, the President was concerned that disclosure of the 
Fielding break-in would lead to exposure of all the Unit's efforts to 
determine the source of various national security leaks. The first re- 
action of the Justice Department was that it was not necessary to dis- 
close the Fielding operation to the judge presiding over the Ellsberg 
trial since it appeared that the operation had not provided any infor- 
mation which could have tainted the evidence being offered by the 
government. Henry Petersen has testified as follows : 

And I consulted with Mr. Maroney, in whom I had confided, and with the chief 
of my appellate section to whom I put it in a hypothetical case as to whether or 
not the disclosure for this information was mandated by Brady v. Maryland 
[373 TJ.S. 83(1963)], which, in effect, holds that material in the hands of the 
prosecution which touches on guilt or innocence needs to he disclosed. 

Mr. Maroney and some of his associates suggested that since this information 
did not go to guilt or innocence, that nothing had been obtained, and that since 
at most it would lead to a motion to suppress, which if granted would have 
meant there was nothing to suppress, we were under no obligation to disclose 
to the court. (Petersen testimony, 3 IIJO 98) 

Notwithstanding the view of these Justice Department officials, when 
Petersen and Klein dienst concluded that the information should be 
transmitted to the judge trying the Ellsberg matter, as a matter of good 
practice, they so informed the President, the President agreed, and 
the information was disclosed to Judge Byrne on April 25, 1973. 

In considering whether the President failed in a duty to inform 
law enforcement officials, either federal or state, about the Fielding 
break-in when lie learned of it, we think the conduct of Assistant 
Attorney General Petersen is illuminating. When lie was informed 
that the United States Attorneys for the District of Columbia had 
been told about the break-in by “an informant'' — Dean— it appears 
that Petersen's sole concern was with the impact of this revelation upon 
the course of the Kusso-EUsberg trial then underway. In both his con- 
versations with the President and those with associates within the 
Department of Justice, Petersen did not manifest a concern about dis- 
closing the facts about the break-in to California authorities, or about 
the conduct of an FBI in rest igat ion of the break-in . 

We think this was essentially the focus of the President's concern as 
well. While Ehrlichman had indicated to the President on March 22, 
1973 that revelation of the Fielding break-in might result in a 
mistrial in the Ellsberg case, it is entirely possible that Ehrlichman, 
Dean or one of Dean's assistants in the office of the White House Coun- 
sel researched the question of the duty of the government to disclose 
unlawful government acts from which no evidence is gained. The same 
legal conclusion may have been reached and conveyed to the President 



461 


as was reached within the Department of Justice, namely, that dis- 
closure was probably not legally required. Unfortunately, our record is 
completely silent on whether the President asked for or received from 
any of his legal advisors (other than Henry Petersen) an opinion on 
the legal duty to disclose to Judge Byrne the fact of the Fielding 
break-in. 

There are many reasons why it may not have occurred to Henry 
Petersen to suggest to the President that he advise the local California 
authorities of an apparent violation of state law. We think, however, 
that Petersen’s concentration on the Russo-Ellsberg implications of 
the crime, rather than the need for a criminal investigation of it, is 
probative of what would constitute a reasonable reaction by the Presi- 
dent himself upon learning of the break-in from Dean on March I7tli. 
If it is urged by the majority that President Nixon is impeachable for 
what essentially was a misprision of federal and state felonies, the 
apparent parallel between the focus of the President’s concern and 
that of Petersen would argue strongly against the existence of any 
mens rea on the part of the President when he remained silent about 
his knowledge of the offense. 

<?. Alleged Public Relations Campaign to Discredit Ellsberg • — The 
majority believes that the President’s concern with the Ellsberg case 
was not with espionage or national security, but with politics and 
public relations. The Special Counsel has argued that the “primary 
purpose [of the “Plumbers” was] to discredit Daniel Ellsberg for the 
President’s political advantage.” (Summary of Information, 133) As 
the Summary of Information indicates, John Ehrliclnnan’s hand- 
written notes of a meeting with the President on July 6, 1971, three 
weeks after the publication of the Pentagon Papers, indicate that the 
President said to John Mitchell, “Get conspiracy smoked out through 
the papers. Hiss and Bently cracked that way.” (Summary of In- 
formation, 130.) However, the notes also state, u No Ellsberg {since 
already indicted) (Ehrlichman notes, July 7, 1971, 39; emphasis 
added) It is thus clear that President Nixon did not contemplate a 
public relations campaign against Dr. Ellsberg , who was already under 
indictment. 

The testimony of Charles Colson before this Committee was that the 
President never asked Colson to disseminate any information that was 
not true. (Colson testimony, 3 IIJC 414) Colson also testified 
that he was assigned the responsibility of working with Congress in 
an effort to have a Congressional hearing on the problem of security 
leaks. (Colson testimony, 3 IIJC 197-98) 

Even if the President did wish to conduct a public relations cam- 
paign to smoke out the persons who were leaking national security 
information, it must be remembered that a public relations campaign 
is not illegal. Public relations campaigns, in fact, are not uncommon 
in either politics or government. 

cl. Assistance given by the Central Intelligence Agency to the Spe- 
cial Investigations Unit — The majority argues that the President 
interfered with the lawful functioning of the Central Intelligence 
Agency by requiring it to provide assistance for the Special Investi- 
gations Unit (the “Plumbers”). 

Ehrlichman got in touch with CIA Deputy Director Cushman on 
July 6, 1971 notifying him that Hunt was working on security prob- 



462 


lems for the President and might be requesting assistance of Cush- 
man. On July 22, 1971, Hunt requested Cushman to provide disguise 
material and alias identification which the CIA provided the next day. 
The complaint is that this action by the CIA violated a provision of 
a 1947 statute, which states that the CIA has no “internal security” 
functions. The CIA’s jurisdiction extends to foreign matters only. 

On any reasonable interpretation of the events of June and July, 
1971 the involvement of the CIA was altogether proper. The top 
secret Defense Department study of American policy in the Vietnam 
War had been published on the front page of the New York Times on 
June 13, 1971. Robert C. Mardian, the Assistant Attorney General for 
Internal Security had told a meeting of White House staff members 
that a copy of this top scecret document, which had been, in effect, 
stolen from the Defense Department files, had been delivered to the 
Soviet Embassy on June 17, 1971. The New York Times had published 
the details of the United States’ negotiating position in the Strategic 
Arms Limitation Talks. Earlier leaks had led to newspaper publica- 
tion of the Administration’s decision to study the possibility of uni- 
lateral troop withdrawal from Vietnam, and publication of the United 
States’ intelligence board’s official assessment of the nuclear first-strike 
capacity of the Soviet Union. The President had been told by his Chief 
National Security Advisor, Henry Kissinger, that Ellsberg had 
“knowledge of very critical defense secrets of current validity, such 
as nuclear deterrent targeting.” 

We find it simply beyond reason to argue that, in these circum- 
stances, the leaks of national security information had no relation to 
foreign intelligence information or foreign affairs. The point is not 
whether Dr. Ellsberg was or was not an American citizen. The point 
is not whether Howard Hunt would travel abroad in connection with 
his assignments with the Special Investigations Unit — although he 
had certainly done so for the CIA in the past. The point is, that if top 
secret defense, documents are published on page 1 of the New York 
Times , that constitutes an effective publication and delivery of the in- 
formation to foreign intelligence sources. An action Avhich jeopardizes 
the success of American policy in a foreign war or in talks with the 
Soviet Union to limit the spread of nuclear weapons, is clearly the 
proper concern of the Central Intelligence Agency. The President’s 
action, which was limited to authorizing CIA assistance to a legitimate 
national security project, was entirely proper. 

Paragraph (If) 

Paragraph (4) of Article IT charges that the Piesident “has failed 
to take care that the laws were faithfully executed by failing to act 
when he knew or had reason to know that his close subordinates 
endeavored to impede and frustrate lawful inquiries.” These inquiries 
concerned the Watergate break-in and cover-up, and “other unlawful 
activities” including those relating to electronic surveillance, the 
Fielding break-in, the campaign financing practices of the Committee 
to Re-elect the President, and the confirmation of Richard Kleindienst 
as Attorney General. 



463 


a. Legal theory 

The theory upon which Paragraph (4) is based deserves careful 
examination. The President is charged with violation of the “take 
care” duty, and specifically with violation of his duty of supervision, 
in that he failed to exercise liis authority when he should have done 
so in order to prevent his close subordinates from interfering with 
investigations into criminal or improper conduct. 

(i) The “take care ” duty . — Article I, Section 3 of the Constitution 
commands that the President “shall take care that the Laws be faith- 
fully executed.” Since he cannot execute the laws alone and unaided, 
he must rely on his subordinates : the vast bureaucracy of the executive 
branch, including all departments, agencies, commissions, and of course 
the immediate White House staff. As Gouvemeur Morris pointed out 
at the Constitutional Convention, “Without . . . ministers the Execu- 
tive can do nothing of consequence.” 1 

The “take care” clause therefore imposes on the President the im- 
plied duty of supervising his subordinates in the discharge of their 
delegated responsibilities. 

This supervisory responsibility is further emphasized by other pro- 
visions of the Constitution. For example, Article II, Section 2 author- 
izes the President to “require the Opinion, in writing, of the principal 
Officer in each of the executive Departments, upon any Subject relat- 
ing to the Duties of their respective Offices.” Head in conjunction with 
the “take care” clause, this provision implies an affirmative duty to 
be informed about the official conduct of executive officers. Article II, 
Section 1 vests the executive power exclusively in the President, which 
reflects the intention of the Framers that there be a single, respon- 
sible. executive answerable for the conduct of his subordinates. The 
President’s duty of supervision is also implicit in his power to appoint 
and remove executive officers. 2 Two years after adoption of the Con- 
stitution, James Madison argued in the First Congress that the Presi- 
dent’s power to remove subordinates would 

subject, liim to impeachment himself, if he suffers them to perpetrate with im- 
punity high crimes or misdemeanors against the United States, or neglect to 
superintend their conduct, so as to check their excesses . 3 

The general duty of supervision is necessarily subject, however, to 
significant practical limitations. First, with respect to the particular 
persons whom the President is expected to supervise, common sense 
dictates that he cannot exercise direct personal supervision over more 
than a fraction of the enormous executive establishment. He is imme- 
diately responsible for the official acts of the Cabinet Secretaries, the 
Joint Chiefs of Staff, the Attorney General, and his close subordinates 
on the White House staff. These officers are all hand-picked by the 
President and serve at his pleasure ; members of the White House staff 
are not even subject to Senate approval on appointment. Beyond this 
inner circle, however, the President’s supervisory responsibility is 
much more attenuated. He and his political party are accountable to 


1 II The Records of the Federal Convention 54 (M. Farrand etU. 

“ Myers v. United States , 272 TT.S. 117 (1926). 

3 1 A nn ?l s Congress 372-73 (1789). The reliability of this statement is called into 
Question, however, by the fact that in the course of the same debate Madison stated that 
the President would be removable for “maladministration” — although this ground for im- 
peachment had been explicitly rejected at the Federal Convention. Id. 498. 



464 


the electorate for widespread official misconduct in the lower echelons 
of the executive branch, but this would not ordinarily be grounds for 
impeachment. 

Second, with respect to the nature of the President's duty to super- 
vise his immediate subordinates, no one would contend that he is 
strictly liable to removal on account of the actions of these subordi- 
nates. The responsibility to sec to the execution of the laws lias been 
interpreted by the Supreme Court to mean a general superintendence 
of administration, rather than day-to-day supervision with attention 
to every detail. 4 The President must exercise due diligence in over- 
seeing the official conduct of his immediate subordinates. Mere negli- 
gence in failing to discover official misconduct, however, is not in our 
opinion sufficient to justify removal from office unless the President 
becomes so habitually and egregiously negligent in this regard that 
his failure to supervise his subordinates assumes the character of a 
willful abdication of responsibility. 

Needless to say, the President may be removed for directing a sub- 
ordinate to perform a serious illegal act.; and this proposition would 
not be limited to his inner circle of immediate subordinates. By the 
same token, when he obtains actual knowledge of official misconduct 
he must make an appropriate response, which means that at the very 
least he must bring the matter to the attention of law enforcement 
officials. The difficult question arises in a situation where he did not 
in fact know, but arguably should have known, that an immediate 
subordinate had committed an unlawful act. We submit that the Presi- 
dent should not be removed from office for the act of a subordinate, 
unless he took some step to make that act his own — by knowingly 
assisting or approving it. or knowingly failing to exercise his control 
over a subordinate to prevent the commission of the act. The require- 
ment of mens rea is a basic principle of Anglo-American jurispru- 
dence. 5 As a matter of common sense, it serves no purpose to impose 
sanctions on a person for that of which lie has no knowledge. This 
simple proposition is abundantly supported by the hostility of our 
jurisprudence toward strict criminal liability and criminal liability 
for the acts of others. 

For example, in Burkhardt v. United States , 13 F. 841, 842 (6th 
Cir. 1926), the court dismissed the indictment of a sheriff, one of 
whose deputies had paiticipated in a criminal conspiracy. The court 
found the evidence insufficient to demonstrate that the defendant had 
knowledge of the criminal violations, and stated the applicable legal 
test to be as follows : 

. . . [L]ack of vigilance ... is not enough ; there must also be proof of knowl- 
edge of facts, coupled with an intention to aid in the unlawful act by refraining 
from doing that which he was duty bound to do. These essential elements cannot 
be inferred from inaction alone. 

To similar effect is Jezewskl v. United States , 13 F. 2d 599, 603 (6th 
Cir. 1926), where convictions of public officials were upheld because 
the facts established that 

the refusal of these officers to perform their sworn duty was not attributable 
to neglect and indifference only , but rather that it was part and parcel of the 


4 Williams v. United States , 1 How. (42 U.S.) 29 (1843). 

*E.g., Dennis v. United States ■, 341 U.S. 494, 500 (1951), reh. denied , 342 U.S. 842 
(1951). See discussion of the requirement of criminal intent as an element of ‘‘High 
Crimes and Misdemeanors Preliminary Statement. 



465 


l)lan of the conspiracy . . . and practically essential to its perpetuity and 
success. (Emphasis added). 

The rule of these cases, which we believe sound, is that a public official 
may be found guilty of a criminal conspiracy whose object he has a 
duty to prevent, only if the evidence proves that he had actual knowl- 
edge of the crime but failed to enforce the law, with the result that the 
crime was promoted or furthered. 

The legal theory underlying Paragraph (4) is potentially a dan- 
gerous principle, unless the President/s supervisory responsibility is 
limited to cases where he actually knew that a subordinate had com- 
mitted or was about to commit an unlawful act. 6 If he is also made 
liable in impeachment for subordinates’ misconduct of which he 
‘‘should have known”, by what standard could his failure to discover 
be judged? We reiterate our strong conviction that the President 
should not be removed from office for failure to meet the standard of 
care of ordinary civil negligence (the “reasonable man” standard). 
But if that standard were applied, let it be observed that the Presi- 
dent's acts or omissions would properly be judged with reference to a 
reasonable man in his position . The President labors under the most 
extraordinary pressures and responsibilities. Particularly in a time of 
complex problems in both domestic and foreign affairs, as an efficient 
administrator he must so delegate the mechanical details of his super- 
visory function as to reserve to himself the greatest possible amount 
of time for making the decisions which he alone may make. In effect- 
ing that delegation, the President must- place his trust somewhere; 
and who shall say that if he is deceived, he must be removed ? 

(it) Misprision of felony . — In the context of Paragraph (4), the 
standard of conduct required of a President by the “take care” clause 
may reasonably be expressed in terms of the federal criminal offense 
of misprision of felony. 

Title 18 IT.S.C. § 4, entitled “Misprision of felony,” provides: 

Whoever, having knowledge of the actual commission of a felony cognizable 
by a court of the United States conceals and does not as soon as possible make 
known the same to some judge or other person in civil or military authority under 
the United States, shall he fined not more than $500 or imprisoned not more 
than three years, or both. 

The statutory offense of misprision of felony has four elements: 

To sustain a conviction . . . for misprision of felony it (is) incumbent upon 
the government to prove beyond a reasonable doubt 

(1) That. . . . the principal had committed and completed the felony alleged 
prior to (the date of the alleged misprision) ; 

(2) That the defendant had full knowledge of that fact ; 

(3) That he failed to notify the authorities ; and 

(4) That he took (an) affirmative step to conceal the crime of the principal. 7 

(a) Affirmative act of concealment . — As the Supreme Court has 
pointed out, 18 IT.S.C. § 4 “has been construed ... to require both 
knowledge of a crime and some affirmative act of concealment or 


(i Of course, the President may not avoid actual knowledge by deliberately isolating him- 
self from the normal channels of communication. Nor may he escape responsibility by 
deliberately issuing ambiguous instructions to his subordinates and then failing to police 
their actions. 

7 Neal v. United States, 102 F. 2d 643, 646 (Rtli Cir. 1939) ; Lance)/ v. United States, 
550 F. 2d 407, 409 (9th Cir. Ii966), cert. den. 385 U.S. 922 ; United States v. King, 402 F. 2d 
094. 695 (9th Cir. 1968). 



466 


participation. ’ 8 The basic reason for the affirmative act requirement 
is that to punish mere nondisclosure would impose an undue burden 
on the citizen : 

To suppose that Congress reached every failure to disclose a known federal 
crime, in this day of myriad federal tax statutes and regulatory laws, would 
impose a vast and unmeasurable obligation. It would do violence to the unspoken 
principle of the criminal law that “as far as possible privacy should be re- 
spected/’ United States v. Worcester, 190 F. Supp. 548, 565-67, (D. Mass. 1960) 

( dictum ) (Wyzanski, J.). 

Another reason for the affirmative act requirement is to afford some 
basis for an inference of evil intent. It has been held that “the motive 
prompting the neglect of a misprision must be in some form evil as 
respects the administration of justice.” 9 

In State v. Michaud , 114 A. 2d 352, 355 (Me., 1955) the court simi- 
larly suggested that the requirement of an affirmative act was necessary 
to prevent overbroad application of the statute : 

The act of concealment must be alleged. Otherwise, a person could be tried 
and erroneously convicted on slight evidence that was only to the effect that 
he was in the vicinity of where a felony was “actually” committed, and from that 
improperly argue (sic) that he must have “known,” and that he concealed be- 
cause he knew and did “not disclose.” He might not have seen. He might not 
have known or understood all the facts. 

A dictum of Chief Justice Marshall also reflects the reluctance of 
the Judiciarv to construe misprision statutes so as to punish bare non- 
disclosure of information : 

It may be the duty of a citizen to accuse every offender, and to proclaim every 
offense which comes to his knowledge ; but the law which would punish him in 
every case, for not performing this duty, is too harsh for man. Marhury v. Brooks , 
7 Wheat. 556, 575-76 (1822). 

(b) Degree of knowledge required . — Several federal case's state that 
in order to support a conviction for misprision, it is necessary to prove 
that the defendant had “full knowledge” of the commission of the crime 
by the principal. 10 In Cornmonwealtli v. Lopes , 318 Mass. 453, 458-59 
(1945), the court intimated that mere “suspicion” that a felony had 
been committed could not render the defendant’s silence criminal. 

(c) Duty of a President of the United States under the Misprision 
statute . — The federal misprision statute requires that felonies be re- 
ported to “some judge or other person in civil or military authority 
under the United States." The President of the United States is the 
chief officer of the executive branch of the federal government. 11 He 

is the commander in chief of the Army and Navy of the United 
States. 12 

In view of the unambiguous language of the statute, it is difficult to 
resist the conclusion that the President is a “person in civil or military 


8 Branzburg v. Hayes , 408 U.S. 605, 096 n. 86 (1972) ( dictum ) ; and see cases cited in 
note 6. supra. 

p State v. Wilson , 80 Vt. 249, 67A, 588, 584 (1907). Accord, Commonwealth v. Lopes, 818 
Mass. 453, 458, 61 N.E. 2d 849 (1945) ; State v. Michaud, 114 A. 2d 852. 857-58 (Me 
1955) (concurring opinion) . 

10 Weal v. United States, 102 F. 2d 643, 646 (8th Cir. 1939) ; Lanncett v. United States, 
856 F. 2d 407, 409 (9th Cir. 1966), ccrt. den. 385 U.S. 922: United States v. Kina, 402 
F. 2d 694, 695 ( 9th Cir. 1968). 

11 U.S. Const, art. II, sec. 2, cl. 1. 

12 Id. 



467 

authority under the United States,” within the meaning of the 
statute. 13 

Under our Constitution, the President is situated differently from 
any other person of authority in the government. He appoints the 
Attorney General of the United States, and in this sense stands at the 
apex of the system of law enforcement. 14 The President commissions 
all officers of the United States. 15 The President can pardon any per- 
son for any felony, before or after the initiation of prosecution. 16 The 
President is responsible for the national security. 17 In view of all 
these constitutional duties and responsibilities, which may, after all, 
with each other in a given case, the President is properly entitled to 
balance considerations of national security and the public interest in 
the punishment of persons who infringe the provisions of a criminal 
statute. 

b. Factual allegations . 

(i) Concealment of electronic surveillance as an obstruction of the 
Ellsberg trial . — During the period from May 1969 to February 1971, 
the FBI wiretapped the home telephone of Morton Halperin and 
thereby incidentally intercepted a number of conversations to which 
Daniel Ellsberg was a party. The subsequent failure of the Depart- 
ment of Justice to produce logs of these conversations at Ellsberg ? s 
trial was due to the fact that the FBI had not, in the case of the 1969- 
71 wiretaps, followed its usual procedure of entering records of the 
wiretapped conversations in a data retrieval bank (the ELS U It in- 
dex). 18 This action does not constitute a ground for impeachment of 
President Nixon, for reasons which have been, previously discussed. 19 

The principal reason is that while the President may have expressed 
to then Colonel Haig, in May 1969, a general desire that the wiretap 
program be handled by the FBI on a particularly confidential basis, 
there is no evidence at all that he specifically directed the FBI not to 


13 In England, the offense of misprision could be avoided by making a report to the King. 
Concerning the punishment for concealment of felonies. Lord Coke wrote : 

“From which punishment if any will save himself he must follow the advice of Bracton. 
to discover it to the King, or to some judge or magistrate that for the administration of 
justice supplleth his place, with all speed that he can.” 

3 Inst. Cop . (15. 

. . w .28 n.S.C. § 503. The discretionary power exercised by a prosecuting attorney in 
initiation and discontinuance of a prosecution is universally recognized as being Very 
extensive. The Federal courts have no power to control or compel the initiation of criminal 
proceedings, that being the prerogative and duty of the U.S. Attorney. Smith v. United 
States, 375 F. 2d 243, 247 (1967) : United States v. Brakoiv, 60 F. Supp. 100 (1945) : 
l mted States v. Thompson , 251 U.S. 407 (1920) ; 28 U.S.C.A. § 507. Mandamus will not 
lie to control the exercise of this prosecutorial discretion. Confiscation Cases, 74 U.S. (7 
Uall ) 454 (1868) ; Moses v. Katsenbach, 359 F. 2d 234 (1965) ; Goldberg v. Hoffman , 225 
f • 2d 464 (1955). A United States Attorney cannot be required or forced to sign an 
indictment. United States v. Cox, 342 F. 2d 167 (1965). The discretionary power of the 
attorney for the United States, in determining whether or not a prosecution shall be com- 
menced or maintained, may well depend upon matters of policy wholly apart from the 
question of probable cause. United States v Cox , supra. 

15 F.S. Const, art II, sec. 3. 

10 Id. art. II, sec. 2. cl. 1 : ex parte Grossman. 267 U.S. 87, US-20 (1925) 

37 U.S. Const, art. II, sec. 2, cl. 1. 

18 The function of the ELSUlt index is to provide a cross-referencing system containing 
tne names of all persons who are overheard in conversations intercepted by' the FBI, so that 
it one of those persons should be indicted, the logs of his overhears can be quickly produced 
from the files. In July 1971 all logs, suninuiaries and other records of the 1969—71 wiretaps 
^om the FBI to the White House, where they ended up in John Elirlichman’s 
7 t SvA • s, i vr e argued that even it Fllsberg's name hud been properly entered in the 

t ^ inc * e y /he Department of Justice would still have been unable to produce the logs. 
In that event, however, knowledge of the fact that Ellsberg had been overheard would have 
directed the court’s attention to the White House to explain why the logs had been removed 
irom the FBI. 

39 See discussion of Article II, paragraph (2), supra. 



468 


enter the wiretap records on the ELSUR index. First, there is no 
reason to suppose that the President was familial* with the responsi- 
bility of the FBI to produce wiretap logs at “taint” hearings, as 
required by Alderman v. United States (which had been decided by the 
Supreme Court only two months before). Second, even if the Presi- 
dent was aware of the Alderman holding in May 1969, it seems very 
improbable that he would also have known precisely what procedure 
(the ELSUR index) had been established by the FBI to enable the 
Bureau to discharge its duty of furnishing wiretap logs. Third, even 
in the unlikely event that the President was familiar with the ELSUR 
index, there is no evidence that he intended — let alone directed — that 
in adopting special security procedures for the 1969-71 wiretaps, the 
FBI should go so far as to ignore its legal duty of maintaining records 
so that wiretap logs could be produced in court when necessary. A 
reasonable man in the President’s position would surely have relied 
on the vast experience and discretion of FBI Director Hoover to 
ensure that appropriate and legal measures were taken to provide extra 
security for the wiretapping program. 

If the failure of the Department of Justice to produce the wiretap 
logs at Ellsberg’s trial was an obstruction of justice, therefore, the 
FBI itself should be held accountable — not the President. Further- 
more, regardless of whether that failure was technically an obstruction 
of justice, its only effect was to cause Judge Byrne to dismiss the case 
against Ellsberg. Since the President could have ordered the prosecu- 
tion of Ellsberg to be dropped anyway, as a valid exercise of prosecu- 
torial discretion, the actual result hardly justifies his impeachment- 

(ii) Obstruction of Watergate inquiries. — The belated disclosure of 
the June 23, 1972 conversations between the President and II. R. Halde- 
man made it clear for the first time that the President did indeed 
conspire to obstruct justice, and did obstruct justice, by impeding the 
lawful inquiries into the Watergate break-in and cover-up. Since this 
obstruction of justice represents the gravamen of the charge under 
Article I and has been treated at length in the discussion of that 
Article, it requires no further comment here. 

(Hi) Obstruction of inquiries into campaign financing practices and 
use of campaign funds . — Paragraph (4) alleges that the President, 
after learning that his subordinates were trying to obstruct lawful 
investigations into allegedly illegal campaign financing practices of 
the Committee to Re-elect the President, failed to take action to in- 
form the appropriate authorities of his subordinates’ conduct. The 
Majority Report offers four examples in support of this proposition. 
We submit that in at least three of these cases, a further elaboration 
of the facts is necessary in order to reach an intelligent judgment as 
to whether the President is properly accused of wrongdoing. 

First, it is charged that the President failed to inform the authori- 
ties after learning on March 13, 1973 from John Dean the method used 
by Allen and Ogarrio to make “illegal campaign contributions.” In 
fact, on February 28, 1973, the President had told Dean that he ex- 
pected the Watergate investigation to explore the financing trans- 
action through Mexico ; to which Dean had replied that it could be 
explained and that “When they get the facts, they are going to be 
disappointed.” (HJCT 43). In the conversation on March 13, the 



469 


President raised the question again : “What happened to this Texas 
guy that took his money back?” Dean replied that “All hell broke loose 
for Allen” because “The money apparently originally came out of a 
subsidiary . . . down in Mexico.” Dean briefly described the problems 
Allen had but then went on to explain that the money was not used 
for the Watergate break-in. (HJCT 65) These conversations scarcely 
seem to corroborate the allegation that the President was made aware 
of illegal acts. Indeed, the characterization of the transactions in ques- 
tion as “illegal campaign contributions” is rather misleading in view 
of the fact that Allen had been called before a grand jury on Septem- 
ber 7, 1972 in connection with these contributions, and no indictment 
had issued. (FBI memorandum from Mr. Bolz to Mr. Bates, Septem- 
ber 15, 1972) As of March 197o, therefore, the President would have 
been justified in concluding that, insofar as the contributions had been 
subjected to judicial scrutiny, their legality had been vindicated. In 
any event, there was no reason for him to have brought to the atten- 
tion of a prosecutor a matter which had been resolved six months 
earlier by a grand jury’s refusal to indict. 

Second, it is charged that the President failed to stop plans, of 
which he was informed on September 15, 1972, to interfere with pro- 
posed hearings of the House Banking and Currency Committee on 
campaign financing practices of the Committee to Re-elect the Presi- 
dent. Whether or not this statement is technically correct, it omits 
pertinent information. The Chairman of the House Banking and Cur- 
rency Committee, Representative Patman, announced in September, 
1972 that his Committee intended to conduct an investigation into the 
campaign financing practices, of CRP. In point of fact, Mr. Patman 
ordered the investigation on his own initiative, without first submitting 
the proposal to his Committee for a vote. Indeed, it is questionable 
whether the Banking Committee even had jurisdiction to inquire into 
campaign financing practices, and the Committee subsequently de- 
cided not to hold any hearings. With all due respect to Mr. Patman, 
we suggest that his rather precipitous action may have been motivated 
in part by political considerations — such as a desire to make public, 
before election day, the facts respecting CEP practices. While there is 
nothing at all improper about a political motive of this sort, neither 
does an attempt to impede such an investigation necessarily rise to the 
level of an obstruction of justice. 

Third, we would draw attention to the conversation on the after- 
noon of March 21, 197$ between the President, Haldeman, and Elirlich- 
man. Ehrliehman stated that he thought that Straehan ivas “an ac- 
cessory in ... a undeclared campaign fund.” Haldeman disputed 
this opinion, but Ehrliehman replied that the law included Straehan. 
The President was unconvinced and said, “well that was . . . un- 
declared for a while I think it was ’70, ’68.” (This is clearly a refer- 
ence to the funds under Kalmbach’s control from 1969 to early 1972.) 
Ehrliehman agreed with the President blit went on to indicate his 
belief that St radian’s control of unreported political funds after 
April 7, 1972 was a violation of law : “Yeah. But then it got back into 
the coffers and, uh, was used in this campaign.” (HJCT 142) . It would 
be fair to say that the participants in this conversation did not reach a 
consensus that Straehan had in fact violated the law. Furthermore, it 



470 


was known that Strachan would soon be called to testify before the 
grand jury. Under these circumstances, the President might reasona- 
bly have believed that the demands of the orderly administration of 
justice did not require him to rush to the prosecutor with news of a 
possible violation of law, particularly when he was personally un- 
convinced that it was in fact a violation. 

(iv) Kleindienst confirmation hearings. — (a) Fact*.— On February 
15, 1972, the President nominated Deputy Attorney General Richard 
Kleindienst to be Attorney General of the United States to succeed 
John Mitchell, who was leaving the Department of Justice to partici- 
pate in the President’s re-election campaign. 

The Senate Committee on the Judiciary held brief hearings on the 
nomination and quickly voted to recommend that the nomination be 
confirmed. ( Book V, 605 ) 

On February 29, 1972, Jack Anderson, a uewpaper columnist, pub- 
lished the first of three articles alleging that three antitrust cases, 
commenced .'by the Department of Justice in 1969, had been settled 
favorably to the defendant, the International Telephone & Telegraph 
Corporation (ITT), in 1971 in return for a large financial contribution 
to the 1972 Republican National Convention in San Diego. Ivleindienst 
immediately asked that the Senate Judiciary Hearings be recon- 
vened in order that he might answer these allegations. (Book V, 633) 

On March 2, 1972, pursuant to Kleindienst’s request, the hearings 
reconvened. The purpose of the hearings was to determine wliat con- 
nection, if any, existed between the settlement of the ITT antitrust 
cases and the ITT convention contributions. In connection with the 
investigation, the Senate Committee op the Judiciary inquired into 
several areas including: (1) the extent of involvement of the White 
House in the filing, handling and settling of the ITT antitrust cases; 
(2) the circumstances under which the ITT convention pledge was ob- 
tained; and (3) the actions of the Department of Justice personnel in 
the ITT antitrust cases. (Book V, 677-904, passim) 

Richard Kleindienst testified that he had never been interfered 
with by anyone at the White House in the exercise of his responsibili- 
ties in the ITT antitrust cases. (Book V, 677-80, 729-34, 755-58, 
849-53) In fact, on April 19, 1971, the day before an appeal was due 
to be filed in the Supreme Court in the ITT-Grinnell case, the Presi- 
dent telephoned Kleindienst and ordered that the appeal not be filed. 
(Book V, 311) In his Senate testimony, Kleindienst also described 
the circumstances of the decision to delay this appeal without men- 
tioning the President's phone call. (Book V, 729-34, 751-54) 

On May 16, 1974 Kleindienst pleaded guilty to an information 
charging a failure to answer accurately and fully questions pertinent 
to the Senate Judiciary Committee's inquiry, in violation of 2 U.S.C. 
§ 192. (Book V, 965) 

John N. Mitchell testified in part as to his involvement in the 
handling of the ITT antitrust cases. Mitchell testified that he had 
recused himself in the ITT cases. (Book V, 771) In fact, Mitchell had 
been involved in contacts with ITT officials concerning the cases during 
1970 and had various discussions with White House staff members 
about the ITT antitrust cases. (Book V, 143) In his Senate testimony, 
Mitchell denied that he had ever discussed the ITT antitrust cases with 



471 


the President, although lie had discussed the ITT-GrinneZ appeal with 
the President on April 21, 1971, two days after the President's order 
to Ivleindienst. (Book V, 371-76; 771-75) In that discussion Mitchell 
had persuaded the President not to interfere with the appeal of ITT- 
Grinnell to the Supreme Court. (Book V, 371) 

(b) Evidence relating to President's knowledge 

The^evidence of Presidential knowledge of this testimony given by 
Mr. Ivleindienst and Mr. Mitchell in March and April, 1972 is 
circumstantial. 

The President returned from China on the evening of February 28, 
1972. After spending a few days in Key Biscayne the President began 
his first full day in the White House on Monday, March 6. (Book V, 
141-42) Three days earlier, on March 3, Richard Kleindienst had 
testifiocl about the circumstances surrounding the delay of the appeal 
of the ITT-Grinnell case a year earlier. (Book V, 729-34) 

On Monday, March 6, the President met, and talked by telephone, 
with three of his top aides, Haldeman, Ehrlichman and Colson. (Book 
Y, 735) Also on March 6, Richard Kleindienst' s diary reflects the fact 
that he was at the White House for a Cabinet meeting with the Pres- 
ident. (Richard Kleindienst diary, submitted to the Inquiry staff after 
the initial presentation to the Committee of information regarding the 
ITT matter.) The next day Kleindienst in a detailed statement to 
the Senate Committee described the events of April 19, 1971 without 
mentioning the President’s order to him not to file the ITT-Grinnell 
appeal. (Book V, 751) 

On March 14, 1972, John Mitchell appeared before the Senate Ju- 
diciary Committee and twice testified that there had been no commu- 
nications between the President and with him with respect to the ITT 
antitrust litigation or any other antitrust litigation. That evening the 
President and Mr. Mitchell had their only telephone conversation 
during March of which the Committee- staff is aware. (Book Y, 771) 
Mr. Mitchell has denied in an unsworn interview with the inquiry 
staff that he discussed his testimony, or the testimony of any other wit- 
ness before the Senate Committee with the President, with Mr. Klein- 
dienst, or with any members of the President’s staff. 

According to Charles Colson’s calendar, he spent the morning of 
March 18, 1972 on “ITT” matters. He had three telephone conversa- 
tions with Mr. Mitchell during the morning. That afternoon the Pres- 
ident and Colson met for over two hours. 

On March 24, 1972, the President held his only press conference of 
this period. He said that : 

... as far as the [Senate Judiciary Committee] hearings are concerned, there 
is nothing that has happened in the hearings to date that has in one way shaken 
my confidence in Mr. Kleindienst as an able, honest man, fully qualified to be 
Attorney General of the United States. (Book V, 801) 

In this press conference, the President also said that, “we moved on it 
[ITT] and moved effectively. . . . Mr. McLaren is justifiably very 
proud of that record ... [aiid he] should be.” (Book Y, 802) He said 
that Administration action had prevented ITT from growing further 
and quoted Solicitor General Griswold as to the excellence of the ITT 
settlement. (BookY, 799) 


37-777 0 - 74 - 30 



472 


Charles Colson testified before the Committee as to a meeting during 
this time period that he attended with the President and Haldeman. 
Colson testified that the President recalled that lie had made a tele- 
phone call to Kleindienst : 

Mr. Colson. I recall one instance when the President was basically talking to 
Haldeman, but I was in the room and obviously the question of his involvement 
in the ITT settlement had somehow come up. 

Mr. Jenner. When you say his you are referring to who? 

Mr. Colson. The President. 

Mr. Jenner. All right. 

Mr. Colson. Because he said do you, he said to Haldeman, he said do you re- 
member the time I called Kleindienst and got very agitated or very excited with 
Dick and did I discuss the ITT case or was I talking about policy. And Bob said 
no you were talking about policy, you weren’t discussing the case. 

And the President said are you sure? 

And Haldeman said yes, either I was there while you called or Ehrlicliman 
was there and heard your call and the President said thank God I didn’t dis- 
cuss the case. 

Mr. Jenner. Do you have a recollection with better certainty that this con- 
versation you have now described took place during the span of the ITT-Klein- 
dienst hearings? 

Mr. Colson. Yes, I think it did. I can’t imagine why it would come up at an- 
other time. I think it must have — I know it is the first time I ever knew the 
President talked to Kleindienst about this matter at all. And I don’t think I 
learned about it until late in the month and I remember learning about it in 
that fashion, that the President was trying to recall what lie had said to Klein- 
dienst hearings? 

Colson also testified that on March 27 and 28, 1972 he and Clark 
MacGregor met with the President and presented to him the reasons 
why they felt the nomination of Kleindienst should be withdrawn. 
Colson testified that he left that meeting feeling that the President 
was inclined to agree that the nomination should be withdrawn. (Col- 
son testimony, 3 HJC 384-85) 

On March 29, Colson and MacGregor met with H. R. Haldeman 
who informed them that the President was going to meet with Klein- 
dienst that afternoon to determine whether or not Kleindienst would 
withdraw his name from consideration. (Colson testimony, 3 HJC 
385) Colson also testified that on the morning of March 30, he and 
MacGregor met with Haldeman who described the President’s meet- 
ing with Kleindienst in which Kleindienst convinced the President 
that the nomination should not be withdrawn. (Colson testimony, 3 
HJC 386) 

Colson took notes of his meeting with Haldeman and MacGregor 
(Colson Exhibit No. 22, 3 HJC 387-91) and later returned to his office 
to dictate a memorandum to Haldeman that argued that the nomina- 
tion should be withdrawn. (Colson testimony, 3 HJC 393-97) His 
reasons included the fact that he had reviewed documents that would 
tend to contradict Mitchell’s testimony to the Senate Committee. 
(Book V, 805-09) Later that day Colson met with the President and 
informed him that he had written such a memorandum. After meet- 
ing with the President, Colson sent the memorandum to H. R. Halde- 
man. Colson testified that by normal practice the memorandum would 
be given by Mr. Haldeman to the President. (Colson testimony, 3 HJC 
397) 

Mr. Mitchell has told the inquiry staff that, near the end of March, 
he recalls generally that he conveyed to the President, either directly, 



473 


or through Mi*. Haldeman, his view that the Ivleindienst nomination 
should not be withdrawn but that he recalls no specific conversations. 

On April 4, 1972 the President met four times with Haldeman and 
talked once by telephone with Colson. During the afternoon the Presi- 
dent met. with Haldeman and Mitchell and discussed, among other 
things, changing the convention site from San Diego to Miami. An 
edited transcript of this conversation lias been supplied to the Com- 
mittee. The transcript indicates no evidence of Presidential knowledge 
of the testimony of Kleindienst or Mitchell, and indeed shows that 
there was very 1 ittle discussion of the hearings. 

On June 8. 1972, Kleindienst was confirmed by the Senate. On 
June 12, 1974, Kleindienst was appointed to the office of the Attorney 
General, and was sworn in at a ceremony at the White House attended 
by the President. (Book V, 901) 

During the period that the Kleindienst nomination was pending 
before the Senate, the press provided extensive coverage of the hear- 
ings, the debates and the final vote. (Book Y, 855) This press coverage 
was reflected in the news summaries prepared daily by the White 
House staff for the President. 

On January 8, 1974 the office of the White House Press Secretary 
issued a “White Paper” entitled, “The ITT Antitrust Decision”, de- 
scribing the President's role in the ITT antitrust cases and their 
settlement. The White Paper denied that the President had any 
involvement in the ITT settlement and denied that the settlement was 
made in exchange for an ITT convention pledge, but admitted the 
telephone call to Kleindienst. (Book Y, 956) 

( c ) Was the testimony of Kleindienst or Mitchell perjury ? 

In the course of their testimony before the Senate Committee on the 
Judiciary, Kleindienst and Mitchell appear to have given incorrect or 
misleading testimony several times. Kleindienst apparently misled 
the Committee about the nature of his contacts with the White House 
in the filing, handling and settlement of the ITT antitrust cases. 
Mitchell apparently misled the Committee about his contact with the 
White House, and with ITT officials regarding the ITT cases, and he 
further was evasive about his involvement in the Administration’s 
decision to select San Diego as the site of the 1972 Republican National 
Convention. Certain statements by Kleindienst and Mitchell appear 
to be clearly incorrect. On March 7, 1972, Kleindienst described the rea- 
sons for the decision to delay the ITT -Grmnell appeal on April 19, 

1971, without mentioning the President’s telephone call of that day in 
which the President ordered the appeal to be dropped. On March 14, 

1972, Mitchell stated that lie never discussed the ITT antitrust cases 
with the President, whereas actually he had discussed the appeal with 
the President on April 21, 1971. 20 

A factual issue may be raised as to the intent of Mitchell in his 
misstatements. In his interview with the inquiry staff, for example, 
Mr. Mitchell indicated that what lie meant when he denied talking to 


To date, neither Kleindienst nor Mitchell lias been prosecuted for perjury in connection 
with the ITT hearings. Kleindienst has pleaded to the lesser offense of failure to fully 
respond under 2 U.S.C. § 192. Mitchell has not been prosecuted for any act relating to the 
ITT/Kleindienst hearings. 



474 


the President about the ITT cases was that he had never talked to the 
President about the merits of those cases. In such a case his testimony 
would not be perjury. 

The alleged misstatements by Kleindienst concerning the ITT-Grin- 
nell appeal to the Supreme Court in April 1971 are subject to the 
defense of “literal truth.” For example, the lengthy statement which 
Kleindienst read to the Committee on March 7, 1972, omitting any 
mention of the President's telephone call, may be misleading but not in 
fact false. Kleindienst’s statement related only actual events of April 
19, minus the telephone call, and therefore it may be literally true but 
incomplete. Therefore, under the recent Supreme Court decision in 
Brans ton v. United States , 409 U.S. 352 (1973), in which the Court 
held that testimony that is literally true but arguably misleading by 
negative implication is not perjury, Kleindienst 's remarks on March 7 
would not constitute perjury. 

The alleged misstatements of both Mitchell and Kleindienst were 
not perjurious because they were not material to the Senate Inquiry. 
The test of materiality is whether the testimony has a natural effect 
or tendency to influence, impede or dissuade the investigative body 
from pursuing its investigation. 21 The Senate Committee on the Judici- 
ary was charged with evaluating the qualifications of Richard Klein- 
dienst to be Attorney General. In the exercise of this constitutional 
responsibility the Senate Committee was investigating the connection 
between the ITT antitrust cases and the ITT convention pledge. The 
Senate Committee’s investigation into the ITT scandal was focused 
properly only on the settlement of the ITT cases and the reasons for 
the settlement. Thus an alleged misstatement about an appeal in the 
ITT-GrinneU case would not be material to the Committee’s inquiry. 

It may be questioned, furthermore, whether disclosure of the Presi- 
dent’s telephone call to Kleindienst and the latter’s successful resistance 
would have had any adverse impact upon the Committee’s judgment 
as to Mr. Ivleindienst’s qualifications. In omitting to mention the 
telephone call Kleindienst also omitted to mention that his response 
to the call was to threaten to resign. In part because of that threat, the 
President rescinded his order two days later. Kleindienst’s strong 
resistance to presidential intervention could only have reflected favor- 
ably on his integrity and qualifications for the office of Attorney Gen- 
eral. In such a case it makes no sense to attempt to impeach a President 
because his nominee withheld information that would have markedly 
enhanced the nominee's chances of confirmation. 

(d) Was the President aware of the false testimony of his 
subordinates? 

To charge the President with knowledge that his close subordinates 
had endeavored to frustrate the Senate inquiry, two facts must be 
proven. First, it must be shown that the President had knowledge of 
the specific testimony of Kleindienst and Mitchell. Second, it must be 
shown that the President knew that testimony to be false. 

The Majority Report offers several facts to prove that the President 
had knowledge of the testimony. First, the “extensive press coverage” 


21 United States v. Morgan , 194 F. 2d 623 (2d Cir. 1952), cert, denied, 343 U.S. 965 
(1952). 



475 


of the Kleindienst hearings supposedly reflected in the President’s 
daily news summaries is suggested as a source of information from 
which the President is presumed to have learned about the testimony. 
Second, the President had a telephone conversation with Mitchell on 
the evening of March 14, the day of Mitchell's allegedly perjured testi- 
mony. The inference is drawn that during this telephone call Mitchell 
informed the President of his testimony that day. Third, the President 
indicated in his March 24 press conference that lie was familiar with 
the hearings and testimony of the witnesses. Because the President 
quoted the general statements about the ITT settlements by then 
Solicitor General Griswold, the majority charges the President with 
knowledge of the testimony of other witnesses about the appeal. Fourth, 
Colson testified to the Committee that Haldeman informed him on 
March 29 and 30 that the President intended to meet, and did in fact 
meet, with Kleindienst on the afternoon of March 29. It is inferred 
from this meeting that the President learned of and discussed Klein- 
dienst 's misleading testimony. Fifth, Colson’s March 30 memorandum 
to Haldeman cites certain documents in White House files that contra- 
dicted Mitchell's testimony about his role in the settlement and tended 
to show that the President was involved in the ITT case im 1971. It is 
argued that if the President read this memorandum, lie would have 
realized that evidence existed that contradicted the testimony of 
Mitchell about the ITT-Grhrnell appeal. 

Under close scrutiny, however, this evidence does not persuasively 
establish presidential knowledge. Fiist, no direct evidence of actual 
presidential knowledge exists. Except for the President’s general state- 
ment in his press conference of March 24, the evidence is irely 
inferential. Nor does the press conference itself indicate specif! i knowl- 
edge of the actual testimony of either Kleindienst or Mitchell. Colson 
and other witnesses have informed the inquiry staff that the President 
does not prepare for news briefings by studying primary news sources. 
Instead he utilizes a briefing book prepared by his staff. There is no 
evidence before the Committee as to what the briefing book for the 
President’s March 24 press conference contained, nor has the Com- 
mittee requested production of this briefing book. An inference 
of presidential knowledge of testimony from the press conference is 
therefore wholly unwarranted. 

Second, although the Majority Report attaches great significance 
to the “extensive press coverage,” the specific testimony by Kleindienst 
concerning the appeal was actually not reported. The focus of the 
news media was on the allegations concerning the settlement of the 
ITT cases, not the appeal of the ITT-Grmnell case. Thus by reading 
the newspaper or the news summaries the President could not have 
learned of the critical testimony of either Kleindienst or Mitchell. 

Third, although Haldeman may have told Colson that Kleindienst 
and the President met on the afternoon of March 29, Kleindienst has 
specifically denied this to the inquiry staff. Kleindienst said that he 
had no conversations with anyone at the White House during March, 
April and May of 1972. As uncorroborated hearsay, Colson’s testi- 
mony is not entitled to much weight. 

Fourth, although Colson’s memo of March 30 does indicate that 
documents contradicted Mitchell's testimony, the testimony concerned 



476 


the settlement and not the appeal. In any event, Colson testified that 
he does not know whether the President received or read the memo. 
In fact, Colson has testified to the Committee that he did not discuss 
with the President either his memo, the documents describe therein, 
or the testimony of Mitchell or Kleindienst. Nor did the President 
ever indicate to Colson any awareness that Kleindienst had not told 
the truth to the Senate Committee. (Colson testimony, 3 HJC 401) 
Finally, Colson has said that he did not follow the testimony of any of 
the witnesses before the Senate Judiciary Committee. Because Colson 
was the White House staff man in charge of the Kleindienst confirma- 
tion fight, if he never followed the testimony and never talked about 
the testimony with the President, it is difficult to see how the Presi- 
dent could have learned of the testimony. 

Even if the evidence established that the President was aware of 
the testimony of Kleindienst and Mitchell — which we believe it does 
no t — the allegation of wrongdoing on the President’s part further 
depends on proof that he also would have known the testimony to be 
false. This conclusion is urged by the majority because the President 
had participated in the events of April, 1971 about which Kleindienst 
and Mitchell testified falsely. But those events can hardly be said to 
have been of critical importance to the Nixon Presidency. The Presi- 
dent’s telephone call to Kleindienst on April 19, 1971 in which he 
ordered Kleindienst to drop the ITT -Grinnell appeal, lasted no more 
than three minutes. The President’s discussion two days later with 
Mitchell about the appeal lasted less than five minutes. One is scarcely 
compelled to conclude that, after the passage of ten and a half months 
filled with events of the order of importance of his trip to China, the 
President would advert to and recall those comparatively trivial 
conversations. 

Moreover, the evidence supports the conclusion that in fact the Presi- 
dent inaccurately recalled the substance of the telephone call to Klein- 
dienst. Colson has testified that sometime in March. 1972, the President 
was assured by Haldeman that the call was not about the ITT case 
but rather was about the antitrust policies of McLaren. According 
to Colson, the President responded. . . thank God I didn’t discuss 
the case.” (Colson testimony, 3 HJC 383) 

In conclusion, the evidence establishes that the testimony of Klein- 
dienst and Mitchell, though perhaps misleading, was not perjurious; 
that the President was probably not aware of the substance of their 
testimony ; and that even if he had been aware of it, he would not 
have recognized it as false. This fair reading of the evidence does not 
even make out a case of negligence against the President, let alone 
support the charge that he knowingly failed to take care that the laws 
be faithfully executed. 

Paragraph (5) 

Paragraph (5) charges that the President “knowingly misused the 
executive power by interfering” with the Federal Bureau of Investi- 
gation, the Criminal Division of the Department of Justice, the 
Watergate Special Prosecutor, and the Central Intelligence Agency. 
This charge is essentially a repetition of allegations which are encom- 
passed by Article I, Paragraphs (4) and (6). 



477 


If the allegations in Article II, Paragraph (5) are regarded as 
having an independent significance apart from the Watergate con- 
spiracy, then they are reduced to describing a few isolated incidents 
which do not, in our opinion, rise to the level of a ground for impeach- 
ment. Conversely, if the allegations are concerned with the Watergate 
conspiracy, then Paragraph (5) merely duplicates Article I and is 
redundant. 



Article III 


Article III charges that the President, “without lawful cause or ex- 
cuse,” failed to produce papers and things subpoenaed by the 
Committee on the Judiciary, which were deemed necessary by the 
Committee in order to resolve questions relating to Presidential knowl- 
edge or approval of certain actions “demonstrated by other evidence 
to be substantial grounds for impeachment of the President.” Pro- 
ponents of the Article urged that its adoption was necessary to estab- 
lish, as a matter of law, that no President may resist a duly authorized 
impeachment inquiry by the House of Representatives. It was sug- 
gested in the Committee’s debate on this Article that impeachment 
should be “automatic” if a President refuses to surrender evidence in 
a legitimate impeachment inquiry. 1 

We believe that adoption of Article III would have unnecessarily 
introduced an element of brittleness at the heart of our system of Con- 
stitutional checks and balances, and for this reason would have been 
unwise. Furthermore there may appear to be an element of unfairness, 
or even circularity, in removing a President from office for failure to 
cooperate in his own impeachment — for failure to furnish information 
to his accusers, as it were — particularly where other grounds for im- 
peachment are thought to exist. 

If this were nevertheless to be done, certainly it should be done only 
after a formal adjudication by the House of Representatives as to the 
relevance of the material sought, the adequacy of the President’s re- 
sponse, and the applicability of any privilege or other “lawful cause 
or excuse” claimed by the President. Such is the time-honored pro- 
cedure of the House, and to abandon it in this, of all cases, could only 
cause grave doubts as to the fairness of a vote to impeach on this 
ground. 

FACTUAL BACKGROUND 

The question of the limits of the President’s obligation to waive 
claims of confidentiality and make available, to investigators and to 
the public, information and records pertaining to the work of the 
Executive Branch, has perplexed the Government for more than a 
year. On May 22, 1973, the President formally waived Executive privi- 
lege “as to any testimony concerning possible criminal conduct or dis- 
cussions of possible criminal conduct in the matters presently under 
investigation, including the Watergate affair and the alleged cover- 
up.” 2 The Senate Select Committee on Presidential Campaign Activi- 
ties issued subpoenas for various taped conversations and documen- 
tary materials, and eventually brought suit to enforce its subpoenas 
pursuant to specially enacted legislation conferring jurisdiction on 
the United States District Court for the District of Columbia. The 


1 HJC Debates, July 30, 1974, TR. 1105. 

2 “Presidential Statements,” May 22, 1973, p. 25. 

( 478 ) 



479 


President successfully resisted these demands for information, and 
prevailed in the suit brought against him. 3 

Also in 1973, the Federal grand jury investigating the Watergate 
matter issued its own subpoenas for tapes and other materials which 
it declared to be necessary to its investigation. Its subpoenas were 
eventually upheld in the courts, 4 and the President released the tapes 
in question. 

More recently, the Office of the Watergate Special Prosecutor issued 
trial subpoenas for tapes and other documentary material, for use 
in the upcoming trials in the case of United States v. Mitchell et al ., 
now pending in the United States District Court for the District of 
Columbia. 5 The President’s challenge to the validity of these sub- 
poenas resulted in a recent decision of the United States Supreme 
Court, reaffirming the doctrine of Executive privilege but holding 
that, under the circumstances of that case, the President was obliged 
to turn over the material. 0 The President stated that he would com- 
ply with this decision, and accordingly surrendered the tapes in ques- 
tion to the Special Prosecutor in compliance with this decision. 

The authority for the subpoenas issued by this Committee derives 
from the adoption, on February 6, 1974, of H. Res. 803, which con- 
ferred subpoena power on the Committee for the purposes of its im- 
peachment inquiry. 

We believe that the following matters have some bearing upon 
whether the President should be impeached because of his responses to 
the Committee’s subpoenas : 

On February 25, 1974, following initial discussions between the 
Special Counsel to this Committee, John Doar, and the Special Coun- 
sel to the President, James D. St. Clair, Mr. Doar wrote to Mr. St. 
Clair, stating in part as follows : 

We believe the next logical step is to have you outline for us how the 
White House files are indexed, how Presidential papers are indexed, and how 
Presidential conversations and memoranda are indexed. We are particularly 
interested in knowing how the files of Mr. Haldeman, Mr. Ehrlichman, Mr. 
Colson and Mr. Dean are indexed. If we could work out a way whereby mem- 
bers of the Inquiry staff may examine these files for the purpose of selecting 
materials which, in our opinion, are necessary for the investigation, I believe 
that the inquiry would be expedited. 

On April 4, 1974, following further discussions, Mr. Doar sent 
another letter to Mr. St. Clair, stating in part as follows : 

Of course, if any of the conversations requested in our letter of February 25, 
concerns a subject entirely unrelated to the matters that I have outlined, 
the Committee would have no interest therein. In the filial analysis, however, 
the Commitee itself would have to make that determination. I am sure it would 
give careful initial consideration to your response in making its determination 
as to a particular conversation which you might believe to be totally unrelated 
to the matters that I have outlined . 

On April 19, 1974 Mr. Doar wrote to Mr. St. Clair requesting, in 
part, the following material : 

All papers and things prepared by, sent to, received by, or at any time con- 
tained in the files of, H. R. Haldeman, John D. Ehrlichman, Charles W. Colson, 


3 Senate Select Committee v. Nixon, D.C. Cir. Civ. No. 74-1258 (May 23, 1974). 

^ Nixon v. Sirica , 487 F. 2d 700 (D.C. Cir., 1973). 
s Cr. No. 74-110. 

o United States v. Nixon, (U.S.S.Ct., July 24, 1974). 



480 


John Dean 3d, Gordon C. Strachan, Egil Krogh, David Young, E. Howard Hunt, 
G. Gordon Liddy and John Caulfield to the extent that such papers or things 
relate or refer directly or indirectly to one or more of the following subjects : 

1. The break-in and electronic surveillance of the Democratic National Com- 
mittee Headquarter^ in the Watergate office building during May and June of 
1972, or the investigations of that break-in by the Department of Justice, the 
Senate Select Committee on Presidential Campaign Activities, or any other legis- 
lative, judicial, executive or administrative body, including members of the 
White House staff ; 

2. The . . . Huston Plan; 

3. The activities of the White House Special Investigation Unit. 

On April 11, May 15, May 30, and June 24, 1974, the Committee, 
after considering factual memoranda prepared by the Inquiry staff 
outlining the need for the materials sought, issued eight subpoenas 
for (i) tape recordings and other materials related to 147 Presidential 
conversations, 98 related to Watergate and 49 related to the dairy 
inquiry, the ITT matter, the domestic surveillance area, and the al- 
leged misuse of the IRS; (ii) all documents in the files of Messrs. 
Haldeman, Ehrlichman, Colson, Dean and Strachan relating to the 
Watergate matter;, 7 (iii) all documents from the files of Haldeman, 
Ehrlichman, Colson, Krogh and Young relating to the White House 
Special Investigations Unit; (iv) all Presidential daily diaries for the 
months of April, May, June and July, 1972, February, March, April, 
October, and part of July, 1973; and (v) certain other Presidential 
daily diaries and daily news summaries delivered to the President. 
Of the 147 conversations for which the Committee has subpoenaed 
tape recordings, dictabelts, memoranda and other related documents, 
it is known that 126 cover a period of approximately 90 hours (5,361 
minutes) . The duration of the remaining 21 conversations has not been 
ascertained by the Committee. 

On March 6, 1974, the President’s Special Counsel announced that 
the President would give to the Committee all material which he had 
previously submitted to the Watergate Special Prosecutor, including 
nineteen tape recordings relating to Watergate, ITT, “Plumbers,” and 
the dairy areas of the inquiry, and over 700 documents. 8 

On April 29, 1974, the President announced that he would submit 
to the Committee the transcripts of subpoenaed conversations dealing 
with Watergate, as well as transcripts of some other taped conversa- 
tions dealing with Watergate which had not been subpoenaed. These 
transcripts were delivered to the Committee the next day in a docu- 


7 The subpoena of May 30, 1974 required the production of : 

“All papers and things (including recordings) prepared by. sent to, received bv or at 
any time contained in the files of H. R. Haldeman, John D. Ehrlichman, Charles W. 
Colson, John Dean III, and Gordon Strachan to the extent that such papers or things 
relate or refer directly or indirectly to the break-in and election surveillance of the 
Democratic National Committee Headquarters in the Watergate office building during May 
and June of 1972 or the investigations of that break-in hv the Department of Justice, the 
Senate Select Committee on Presidential Campaign Activities, or any other legislative, 
judicial, executive or administrative body, including members of the White House staff.” 

8 The materials entitled “Facts Respecting Defense of Subpoenas,” prepared by the 
Inquiry staff and submitted to the members of the Committee before the vote on Article 
III states that “the twelve Watergate tape recordings were already on their way to the 
Committee as part of the Grand Jury submission.” (pp. 2, 6) Actually, the hearing at 
which the President’s Special Counsel announced that the material would be turned over 
was held by Judge John J. Sirica for the purpose of determining whether the Grand Jury 
submission would or would not be turned over to this Committee. It is only in retrospect 
that it appears that the materials “were already on their ’way” to this Committee ; there 
is no reason to think that the hearing and decision by Judge Sirica were empty formalities, 
mere “window-dressing” to ratify a course of action already chosen by the Special 
Prosecutor. 



481 


ment of 1,308 pages entitled, “Submission of Recorded Presidential 
Conversations to the Committee on the Judiciary of the House of 
Representatives by President Richard Nixon” hereinafter cited as 
[WHT. 9 

On August 5, 1974, the President released to the Committee and to 
the public the transcripts of three conversations between himself and 
H. R. Haldeman on June 23, 1972, together with a formal statement. 
The President said : 

On April 29, in announcing my decision to make public the original set of 
White House transcripts, I stated that “as far as what the President personally 
knew and did with regard to Watergate and the cover-up is concerned, these 
materials — together with those already made available — will tell it all.” 

Shortly after that, in May, I made a preliminary review of some of the 64 
taped conversations subpoenaed by the Special Prosecutor. 

Among the conversations I listened to at that time were two of those of June 23. 
Although I recognized that these presented potential problems, I did not inform 
my staff or my Counsel of it, or those arguing my case, nor did I amend my 
submission to the Judiciary Committee in order to include and reflect it. At the 
time, I did not realize the extent of the implications which these conversations 
might now appear to have. As a result, those arguing my case, as well as those 
passing judgment on the case, did so with information that was incomplete and 
in some respects erroneous. This was a serious act of omission for which I take 
full responsibility and which I deeply regret. 

Since the Supreme Court’s decision twelve days ago, I have ordered my Counsel 
to analyze the 64 tapes, and I have listened to a number of them myself. This 
process has made it clear that portions of the tapes of these June 23 conversa- 
tions are at variance with certain of my previous statements. Therefore, I have 
ordered the transcripts made available immediately to the Judiciary Committee 
so that they can be reflected in the Committee’s report, and included in the 
record to be considered by the House and Senate. 

This submission was later supplemented by the delivery to the Com- 
mittee of an edited transcript of a conversation which took place 
between the President, H. R. Haldeman and John Mitchell on 
April 11, 1972, for which tapes and other materials have been sub- 
poenaed by the Committee. 

MATERIALS TURNED OVER TO THE COMMITTEE 

In addition to the edited transcripts mentioned above, the White 
House submitted to the Committee the materials listed in the 
Committee’s “Index to Investigative Files — Materials Received from 
the White House,” given to the Members of the Committee on May 9, 
1 974. These materials included the following : 

1. Handwritten Notes of the President and H. R. Haldeman 
(5 items) 

2. Memoranda, Daily Diaries and Other Material. (11 items) 

3. White House Political Matters Memoranda, 8/13/71-9/18/ 
72, to H. R. Haldeman from Gordon Strachan. (21 items) 

4. Documents regarding the Special Investigations Unit 
(“Plumbers”). (38 categories or items) 

5. Documents regarding ITT. (73 categories or items) 

6. Documents regarding the Dairy Industry. (20 categories or 
items) 


0 As to the adequacy of this submission for the Committee’s purposes, see discussion under 
heading “Substantial Compliance” below. 



482 


7. Documents from the files of the Federal Home Loan Bank 
Board. (98 documents and 8 sets of documents) 

8. Documents from the files of the Environmental Protection 
Agency. (12 files) 

9. Documents from the files of the Interior Department. (5 
files) 

10. Tape recordings of Presidential conversations. (19 record- 
ings) 

The Committee was also subsequently furnished copies of certain 
of the President’s daily news summaries and notes of John D. Ehrlich- 
man previously supplied to the Special Prosecutor. 


ARGUMENTS ADVANCED BY THE PRESIDENT 


The unsigned memorandum accompanying the President’s submis- 
sion of edited White House transcripts to the Committee on April 30, 
1974 stated: 

[The Committee’s] subpoena called for the production of tapes and other mate- 
rials relating to 42 presidential conversations. With respect to all but three of 
these conversations, the subpoena called for the production of the tapes and re- 
lated materials without regard to the subject matter, or matters, dealt with in 
these conversations. In the President's view, such a broad scale subpoena is un- 
warranted. ... As the President has repeatedly stated, he will not participate in 
the destruction of the office of the Presidency of the United States by permitting 
unlimited access to Presidential conversations and documents. 

... In order that the Committee may be satisfied that lie has in fact disclosed 
this pertinent material to the Committee, the President has invited the Chairman 
and Ranking Minority Mem her to review the subpoenaed tapes to satisfy them- 
selves that a full and complete disclosure of the pertinent contents of these tapes 
has , indeed , been made. If, after such review they have any questions regarding 
his conduct, the President has stated that he stands ready to respond under oath 
to written interrogatories and to meet with the Chairman and Ranking Minority 
Member of the Committee at the White House to discuss these matters if they so 
desire. (Emphasis added.) 

Prior to the Committee's issuance of the subpoena of May 15, the 
President’s Special Counsel submitted “Responses on Behalf of the 
President to Requests of Special Staff'’ that a subpoena issue for tapes 
of Presidential conversations of April 4, 1972 and June 23, 1972. These 
Responses argued that the evidence then before the Committee demon- 
strated that these tapes were unnecessary to the Committee’s inquiry, 
and that therefore subpoenas should not be issued for them “to satisfy 
curiosity or to seek confirmation of undisputed facts.” 

The letter of May 22, 1974, from the President to the Chairman 
Rodino, referring to the two subpoenas dated May 15, 1974, stated : 

... It is clear that the continued succession of demands for additional Presi- 
dential conversations has become a never-ending process, and that to continue 
providing these conversations in response to the constantly escalating requests 
would constitute such a massive invasion into the confidentiality of Presidential 
conversation that the institution of the Presidency itself would be fatally 
compromised. 

. . . Continuing ad infinitum the process of yielding up additional conversa- 
tions in response to an endless series of demands would fatally weaken this office 
not only in this administration hut for future Presidencies as well. 

Accordingly, I respectfully decline to produce the [documents subpoenaed]. 

However, I again remind you that if the Committee desires further information 
from me about any of these conversations or other matters related to its inquiry, 



483 


I stand ready to answer , under oath , pertinent written interrogatories, and to he 
interviewed under oath by you and the ranking minority member at the White 
House . (Emphasis added.) 

The President’s letter of June 9, 1974, to the Chairman of the Com- 
mittee stated as follows : 

The question at issue is not who conducts the inquiry, but where the line is to 
be drawn on the apparently endlessly escalating spiral of demands for confiden- 
tial Presidential tapes and documents. The Committee asserts that it. should be 
the sole judge of Presidential confidentiality. I cannot accept such a doctrine. . . . 

What is commonly referred to now as ‘executive privilege’ is part and parcel of 
the basic doctrine of separation of powers — the establishment, l>y the Constitu- 
tion, of three separate and co-equal branches of Government. 

While many functions of Government require the concurrence or interaction 
of two or more branches, each branch historically has been steadfast in main- 
taining its own independence l>y turning back attempts of the others, whenever 
made, to assert an authority to invade without consent, the privacy of its own 
deliberations. 

... If the institution of an impeachment inquiry against the President were 
permitted to override all restraints of separation of powers, this would spell the 
end of the doctrine of the separation of powers ; it would be an open invitation 
to future Congresses to use an impeachment inquiry, however frivolously, as a 
device to assert their own supremacy over the Executive, and to reduce executive 
confidentiality to a nullity. 

My refusal to comply with further subpoenas with respect to Watergate is 
based essentially on two considerations. 

First, preserving the principle of separation of powers — and the Executive as 
a co-equal branch— requires that the Executive, no less than the Legislative or 
Judicial branches must be immune from unlimited search and seizure by the other 
co-equal branches. 

Second, the voluminous body of materials that the Committee already has — 
and which I have voluntarily provided, partly in response to Committee requests 
and partly in an effort to round out the record — does give the full story of 
Watergate, insofar as it relates to Presidential knowledge and Presidential 
actions. 

. . . The Executive must remain the final arbiter of demands on its confiden- 
tiality, just as the Legislative and Judicial branches must remain the final arbi- 
ters of demands on their confidentiality. 

SU1VPOENA POWER OF THE HOUSE OF REPRESENTATIVES 
IN AN IMPEACHMENT INQUIRY 

Each House of Congress possesses an implied Constitutional power 
to compel the production of documents and the testimony of witnesses, 
as an aid to the intelligent exercise of its Constitutional functions. 
The power was first judicially recognized in the context of a legisla- 
tive investigation, 10 but it applies u a fortiori , where [a House of Con- 
gress] is exercising a judicial function,” 11 such as impeachment. 

The power of the Houses of Congress to compel the production of 
evidence, however, like all their other powers under our Constitution, 
is not unlimited. 

Limits on the Poioer 

A. Subject Matter of Investigation 

All Congressional powers of inquiry exist to be exercised not as ends 
111 themselves, but only as a means of providing Congress information 

10 McGrain v. Daugherty, 273 U.S. 135, 174 (1927). 

11 Barry v. United States ex rel. Cunningham, 279 U.S. 587, G16 (1929). A House of 
Congress may punish a person for contempt either through its own process or through the 
judicial process established by 2 U.S.C. §§ 192-194. 



484 


on which to found actions and decisions which it is charged by the Con- 
stitution to make. 32 Accordingly, the power cannot be exercised to 
compel the production of information which is not related to a decision 
or action entrusted to Congress by the Constitution. As the Supreme 
Court has stated. 

Congressional investigating Committees . . . are restricted to the missions 
delegated to them, i.e., to acquire certain data to be used by the House or the 
Senate in coping with a problem that falls within its . . . sphere. No witnesses 
can be compelled to make disclosures on matters outside that area. This is a 
jurisdictional concept of pertinency drawn from the nature of a Congressional 
Committee’s source of authority . 13 

President Nixon consistently took the position that the Committee’s 
subpoenas were overbroad in failing to specify the subject matter of 
many conversations sought. This raised the issue of the relevance of the 
information sought to any proper subject matter of the Committee’s 
inquiry. 14 Ordinarily the recipient of a subpoena duces tecum in a ju- 
dicial proceeding may not himself judge the relevance of the sub- 
poenaed materials to the subject matter of the case. It is equally true, 
however, that, the decision as to relevance is not left solely to the party 
demanding production of the evidence. In a judicial proceeding the 
final determination of relevance is for the Court. 

Even though the Committee never formally acknowledged its in- 
quiry to be an adversary proceeding, the Committee’s position was not 
strictly analogous to that of the Court in a judicial proceeding: the 
Committee was also the party seeking to compel the production of the 
material in question. Under these circumstances, if the Committee 
were to act as the final arbiter of the legality of its own demand, the 
result would seldom be in doubt. 

/. Adjudication before full House of Representatives . — It is for 
the reason just stated that, when a witness before a Congres- 
sional Committee refuses to give testimony or produce documents, 
the Committee cannot itself hold the witness in contempt. Rather, the 
established procedure is for the witness to be given an opportunity to 
appear before the full House or Senate, as the case may be, and give 
reasons, if he can, why he should not be held in contempt. For example, 
he might argue that his refusal was justified, or excusable, or based 
on some mistake. The Supreme Court has held that this kind of notice 
and opportunity for hearing are constitutionally required, under the 
Fifth and Fourteenth Amendments, before a legislative body may 
punish a person for contempt of its prerogatives. 15 

It may be argued that the President had an opportunity to “show 
cause” before the Committee why his response was satisfactory. 
(The brief dated July 19, 1974, and submitted to the Committee on 


12 See Marshall v. Gordon , 243 U.S. 52, 547 (1927), indicating that even In an Impeach- 
ment inquiry, the House would not have the power to punish for contempt of its preroga- 
tives unless the exercise of that power were in aid of its impeachment function under the 
Constitution. 

i® Watkins v. United States , 354 U.S. 178, 187, 198, 206 (1957). 

u The Committee is authorized under H. Res. 803 to compel the production of all items 
it deems “necessary” to its Inquiry. The alternative of limiting the Committee’s authority 
to securing items necessary and relevant, or reasonably calculated to lead to the produc- 
tion of relevant evidence, was considered, hut not adopted by the House. 

tus Groppi v. Leslie 3 404 U.S. 496, 500 (1972). As the Supreme Court there noted, 
Congress had long followed these procedures as a matter of policy, in order to ensure 
fairness to witnesses and persons summoned to produce evidence, rather than as a matter 
of Constitutional command. 



485 


behalf of the President, did not address this issue, although it stated 
that the President’s Special Counsel would welcome the opportunity 
to respond to any Committee requests for further submissions.) How- 
ever, there was no opportunity to make this showing before the 
full House, as is the traditional practice. 

Arguably, the President’s statement of August 5, 1074 (see above) 
and the transcripts of the three conversations of June 23, 1072, 
recently released make clear that, in fact, the President did withhold 
relevant evidence from the Committee, so that a hearing would have 
been unnecessary. However, we believe the answer is still the same: 
the merits of the question of compliance must be determined by the 
full House. 

A confession of error by the President does not predetermine the 
result of a hearing before the House, nor foreclose the possibility that 
the House would decide the President did not stand in contempt. For 
one thing, even if the President’s withholding of the June 23, 1972 
conversations was in contempt of the House, it might have been found 
that the President had purged himself of contempt by turning over 
the transcripts on August 5, 1974. Alternatively, the House might have 
found, as the President’s statement of August 5 suggested, that the 
President had not earlier realized the significance of the June 23 con- 
versations, so that his withholding of them was originally based upon 
a mistake on his part. 

If a Member of the House or Senate believed that the President 
withheld the tapes or transcripts of the June 23, 1972 conversations 
from the Judiciary Committee for the purpose of concealing his own 
involvement in a criminal conspiracy to obstruct justice in the Water- 
gate matter, this would have been relevant to a determination of the 
President’s guilt or innocence under proposed Article I, whether or not 
the withholding of the materials was technically lawful. As noted 
above, even an act lawful in itself but directed toward an unlawful 
end may be proved as an overt act in furtherance of a criminal 
conspiracy. 16 

It seems somewhat strained to rely upon a trial of the President in 
the Senate to “arbitrate” the initial dispute between the President 
and the House as to whether the Presidential response to all Com- 
mittee subpoenas was satisfactory. Impeachment by the House is a 
sufficiently important step so that every reasonable effort should have 
been made to ensure the integrity and accuracy of the result reached 
in the House. Due process cannot be held in abeyance until Senate 
proceedings commence. 

2. Judicial Determination . — Some of us * believe that the Committee 
failed to pursue the most obvious means of securing an adjudication of 
its entitlement to the subpoenaed materials, namely, the institution of 
a court action seeking a declaration of the validity of our subpoenas 
and an order to compel compliance with them. 

Congress can authorize judicial enforcement of its subpoenas 
through appropriate legislation, and there is recent precedent for 


10 Braver man v. United States , 317 II. S. 49. 53 (1942). 

* Subsection 2, “Judicial Determination.’' sets out the views of Messrs. Smith, Rails- 
back, Dennis, Mayne, Froehlich, Moorhead, Maraziti, Latta ! and Flowers ; the remaining 
undersigned Members do not necesarily concur in the opinions expressed in this subsection. 



486 


taking such a step. On October 17, 1973, Chief Judge John J. Sirica 
dismissed a suit brought against the President in the United States 
District Court for the District of Columbia by the Senate Select 
Committee on Presidential Campaign Activities to enforce that Com- 
mittee’s subpoenas for certain tape recordings then in the possession 
of the President, on the grounds that the court could find no jurisdic- 
tional statute supporting the action. Judge Sirica stated in his opinion : 

The Court lias here been requested to invoke a jurisdiction which only Con- 
gress can grant but which Congress has heretofore withheld. Senate Select 
Committee v. Nixon , 366 F. Supp. 51 (D.C. I).C. 1973) 

While the case was pending on appeal. Congress enacted S. 2641 
(Pub. Law 93-160), conferring jurisdiction upon the United States 
District Court for the District of Columbia to entertain the commit- 
tee's suit. S. 2641 was passed by the Senate by unanimous consent 
shortly after Judge Sirica’s dismissal of the Senate Select Commit- 
tee's suit. On November 13, 1973, Senator Sam Ervin wrote to Chair- 
man Rodino requesting expedited consideration of S. 2641 by this 
Committee. This request was granted, and the bill was passed by the 
full House less than three weeks later. 

Now pending before the Committee is H.R. 13708, a bill similar in 
purpose and effect 4o S. 2641. Under this proposed legislation, the 
Committee would have authority to prosecute such civil actions as it 
might deem necessary to secure a declaration of the validity of its 
subpoenas to the President, or to seek judicial enforcement of them. 
H.R. 13708 also provides for expediting such proceedings in the courts. 

It is plain that the Constitution does not expressly state whether 
the Congress has an absolute right to demand information of the 
President or the President lias an absolute discretion to refuse to 
supply such information. Essentially this is a dispute about the scope 
of intersecting powers. In Federalist No. 49, Madison said: “One 
branch cannot finally decide the reach of its own power when the 
result is to curtail that claimed by another. Neither of the two depart- 
ments can pretend to an exclusive or superior right of settling the 
boundaries between their respective powers.” 

In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at 177, the 
Supreme Court stated that “It is emphatically the province and duty 
of the judicial department to say what the law is.” Moreover, the Su- 
preme Court proceeds from the premise that it has the authority to 
interpret claims with respect to powers alleged to derive from powers 
enumerated in the Constitution. 17 

In late May, 1974, the Committee voted 32 to 6 not to seek the assist- 
ance of the Federal judiciary in enforcing its subpoenas. 

We recognize that most of our colleagues who joined with us in op- 
posing the adoption of Article III also opposed the Committee’s seek- 
ing judicial assistance in enforcing our subpoenas. 

Whatever may have been his true motives, in withholding any por- 
tion of the materials sought by the Committee, w T e do not believe that 
this or any President should be impeached for acts based on his color- 
able claim of important Constitutional rights, absent a prior judicial 
determination that such claim was ill-founded. Where, as here, the 


17 United States v. Nixon, (U.S.S.Ct., July 24, 1974), printed in (“Criminal Cases,” 180.) 



487 


situation seemed literally to cry out for an arbiter, we believe that the 
Committee should have sought an early resolution of the Controversy 
by invoking the aid of the Federal judiciary, the branch of govern- 
ment which tradition and the Constitution have deemed the best suited 
to undertake the arbiter’s role. 

We recognize that some of our colleagues who joined with us in 
opposing the adoption of Article III also sided with the majority on 
May 30, 1974 when the Committee voted 32 to 6 not to seek the aid of 
the Federal judiciary in enforcing our subpoenas to the President. 
The issue before us now is different from that which confronted the 
Committee in May, however, for some Members then felt that it was 
already too late to begin the process of enacting necessary legislation 
and instituting litigation with any reasonable prospect of reaching a 
final adjudication of the matter in time for the Committee to conclude 
its inquiry with the dispatch that the people of the Nation had every 
right to demand of us. 

Frankly, we presume that the President would have complied with 
any final judicial decree that he must honor our subpoenas, just as he 
had complied whenever the courts ordered him to surrender evidence 
subpoenaed by the Special Prosecutor, however damaging that evi- 
dence proved to be. If a favorable court ruling had been obtained early 
enough to produce additional evidence for the Committee’s impeach- 
ment inquiry that was not otherwise available, then obviously the pub- 
lic interest in knowing the truth of the allegations being investigated 
bv the Committee would have been better served. 

On the other hand — and we consider this to be of vital importance — 
had the President chosen to disobey a final court order for the produc- 
tion of materials subpoenaed by this Committee, he would have there- 
by become liable to citation for contempt of court, itself a punishable 
offense. We are satisfied that any wilful disobedience of lawful judicial 
process which Avas duly adjudicated to be a contempt of the court 
Avoid d also have constituted an impeachable offense. 

B . Priv ilege.H to Wi th hold I v form a ti on 

Despite the public interest in Congress securing of necessary in- 
formation, sometimes our laAv recognizes a countervailing public inter- 
est in permitting a person \a t 1io is subpoenaed to Avithhold information. 
For example, the Fifth Amendment privilege against self -incrimi- 
nation has been held applicable in an impeachment inquiry . 18 Simi- 
larly, the privilege for confidential communications between attorney 
and client has been recognized and honored as a matter of policy by 


18 In 1879, impeachment proceedings were brought against George Seward, Consul-General 
and Minister of the United States in China during the administration of President Hayes. 
The report of the House Judiciary Committee in that case stated : 

“The Committee procured a subpoena . . . Mr. Seward appeared in obedience to the sub- 
poena, but declined to be sworn as a witness in a case where crime was alleged against him, 
and where articles of impeachment might be found against Mm. claiming, through his 
counsel, his constitutional privilege of not being obliged to produce evidence in a criminal 
case tending to criminate himself. 

. . If these books of Mr. Seward’s are his private books ... or whether they contain 
records of his action as a public officer intermixed or otherwise with his private trans- 
actions, it is believed he cannot be compelled to produce them.’’ 

H.R. Rep. No. 141, 45th Cong., 3d Ress. (1879). 

Dean Wigmore also states that the Fifth Amendment is applicable in impeachment 
proceedings. 8 AA’igmore. Evidence (McNaughton rev., 1961) § 2257, p, 357. citing United 
States v. Collins, 25 Fed. Cas. 545, 549 (No. 14, 837) (C.C.S.C. Ga. 1873) ; Thruston v. 
Clark, 107 Cal. 285, 40 P. 435 (1895) ; Daugherty v. Nagel , 28 Idaho 302, 154 P. 375 
(1915) ; Nye v. Daniels , 75 Vt. 81, 53 Atl. 150 (1902). 


37-777 0 - 74-31 



488 


committees of Congress in both legislative and impeachment investi- 
gations . 19 

Presidential privilege 

In the present case, the President claimed a privilege to with- 
hold information based upon the need to maintain confidentiality 
between the President and liis advisers, so as to promote the candid 
exchange of advice and views among them and ensure efficient and 
fully-informed decision-making at the Presidential level. The Presi- 
dent argued that, despite a felt Congressional need for access to his 
conversations to support and assist a Congressional decision, it is essen- 
tial that a President be able to maintain the privacy of those conversa- 
tions, when lie deems it essential, in order to preserve the unfettered 
character of liis conversations with his aides, and hence the integrity 
of all the decisions which he makes as head of the co-equal Kxecutive 
branch. Conversely, the Committee asserted the directly contrary 
proposition “that the sole power of impeachment” vests with it 
the sole authority to determine which documents shall be produced 
and which withheld. The result is a direct Constitutional clash. 

In its recent decision in United States v. Nixon , holding that a 
Presidential claim of privilege did not, in the circumstances of that 
case, prevail over the Special Prosecutor’s need for materials sub- 
poenaed for criminal trials , 20 the Supreme Court of the United States 
nevertheless recognized “the valid need for protection of communica- 
tions between high government officials and those who advise and 
assist them in the performance of their manifold duties,” and stated 
that “the importance of this confidentiality is too plain to require fur- 
ther discussion.” 21 

The Court’s opinion also stated : 

Human experience teaches that those who expect public dissemination of their 
remarks may well temper candor with a concern for appearances and for their 
own interests to the detriment of the decision-making process. . . . The privilege 
can he said to derive from the supremacy of each branch within its own assigned 
area of constitutional duties. ("Statement of Information, Appendix II/ t>. 181.) 

The expectation of a President as to the confidentiality of his conversations 
and correspondence, like the claim of confidentiality of judicial deliberations, for 
example, has all the values to which we accord deference for the privacy of all 
citizens and added to those values the necessity for protection of the public in- 
terest in candid, objective, and even blunt or harsh opinions in presidential 
decision-making. A President and those who assist him must be free to explore 
alternatives in the process of shaping policies and making decision and to do 
so in a way many would be unwilling to express except privately. These are 
the considerations justifying a presumptive privilege for presidential communi- 
cations. The privilege is fundamental to the' operation of government and in- 


19 Impeachment inquiries : see Proceedings of the House of Representatives in the follow- 
ing impeachment investigations: Marshall, pp. 687, 68S, 698 (“The Committee will enforce 
the rule, as long as counsel raises the question of privilege. Even if the counsel were 
disposed to testify about a privileged matter, the Committee would not permit him to do 
so.”) 

During the course of this Inquiry, the Committee chose to respect a claim of attorney- 
client privilege asserted on behalf of E. Howard Hunt by his former attorney. William O. 
Bittman. On the other hand, a claim asserted by John N. Mitchell with respect to proposed 
testimony by Faul L. O’Brien, counsel to the Committee for the Re-election of the President 
when Mr. Mitchell was its Director, was not honored bv this Committee during our hearings, 
for reasons which do not clearly appear from the record. See O’Brien testimony, 1, HJC 
129-34. 

The Court stated, “We are not here concerned with the balance between . . . the 
confidentiality interest and Congressional demands for information.” “Criminal Cases,” 
188, fn 19. 

21 “Criminal Cases,” 181 



489 


extrieably rooted in the separation of powers under the Constitution. (“Criminal 
Cases,” 184.) 

. . . [A] President's communications and activities encompass a vastly wider 
range of sensitive material than would be true of any ‘ordinary individual.’ 
It is therefore necessary in the public interest to afford presidential confiden- 
tiality the greatest protection consistent with the fair administration of justice. 
The need for confidentiality even as to idle conversations with associates in 
which casual reference might be made concerning political leaders within the 
country or foreign statesmen is to obvious to call for further treatment. (“Crimi- 
nal Cases,' ’ 191.) 

It has been contended by some that there can never be a valid claim 
of privilege by a President in an impeachment inquiry, because im- 
peachment is an exception to the separation. of powers. 22 We believe, 
however, that the values referred to in the Supreme Court’s opinion, 
quoted above, compel the rejection of a flat “no-privilege” rule for im- 
peachment inquiries. 

The fact that the power of “impeachment” is an exception to the 
separation of powers does not answer the question of how far the 
exception was meant to extend, and how far the impeachment power 
was meant to cut across Presidential powers (other than the under- 
lying “power” to remain in office.) For example, in cases of impeach- 
ment the President loses his pardoning power — but the Framers 
thought it necessary to spell this out in the Constitution. (Article IT, 
Section 2, clause 1) It seems highly plausible that the “exception” 
represented by the impeachment clause is limited to Congress’ power to 
bring the President to trial in the Senate and to remove him from 
office if he is convicted, and that it does not extend to requiring him to 
spread his records before the Congress as a condition of his remaining 
in office. 

It may also be argued that the public interest in maintaining the 
confidentiality of the Presidential decision-making process, when the 
President deems it necessary to do so, supports a privilege independ- 
ently of the separation of powers. Counsel to the President argued 
that the need for confidentiality is both broader and deeper than the 
Constitutional separation of the three branches. For those who hold this 
view, it may make little difference that the impeachment power rep- 
resents an exception to the doctrine of separation of powers. 

Some have urged that an incumbent President should obviously have 
no privilege in a proceeding designed to test- his incumbency. It should 
be pointed out, though, that the President consistently bottomed 
his argument not upon his interest in the privacy of his own conver- 
sations, but upon the undesirability of a no-privilege rule which would 
apply to all Presidents, present and future. His argument, in other 
words, did not rest upon the fact of his incumbency, but upon the re- 
quirements of the Presidential decision-making process. 


“It is probably for this reason that many past Presidents have stated that their 
power to withhold information from Congress would cease to apply in an impeachment 
proceeding. The statement of President Polk, that in an impeachment situation the 
House s power of inquiry “would penetrate into the most secret recesses of the Executive 
Departments/* is perhaps the best known. It should be noted, however, that these state- 
ments by past Presidents arose in the context of Congressional investigations which were 
not impeachment inquiries. Often they represented a harmless nod in the direction of 
Congress inquisitorial power, in the context of a Presidential refusal to turn over docu- 
ments. It may therefore seem less appropriate to view these statements as settling the 
‘law of Presidential privilege in an impeachment situation. The limit of Congress’ 
subpoena power was not an issue in the only prior Presidential impeachment investiga- 
tions, those involving Andrew Johnson in 1867 and 1S68. 



490 


It is also asserted by some that the power of impeachment would be 
rendered completely nugatory if it did not include the power to com- 
pel the production of documents. (The power to compel the testimony 
of witnesses is not at issue, since the President waived Executive 
privilege as to the testimony of all White House personnel and offered 
to be interviewed and answer interrogatories under oath.) 23 The power 
of impeachment plainly was not rendered nugatory in the present case, 
however, even if its exercise was little assisted by the President, since 
the majority of the Committee believed it had already secured sufficient 
information to warrant a recommendation of impeachment of the 
President, even before his submission of additional edited transcripts 
on August 5, 1974. 

The President never suggested that the Committee and the House 
could do nothing more than vote on the impeachment proposal. He 
denied not the power of Congress to conduct an inquiry, which this 
Committee has done in any event, but its power to compel production 
of Presidential documents as against a Presidential assertion that 
their production would not be in the public interest. 

Finally, a flat no-privilege rule for impeachment investigations 
would almost necessarily foster unfortunate developments. The Presi- 
dent raised the possibility, in his letter of June 9, 1974, that such a 
rule “would be an open invitation to future Congresses to use ail im- 
peachment inquiry, however frivolously, as a device to assert their 
own supremacy over the Executive, and to reduce Executive confi- 
dentiality to a nullity.” (10 Presidential Documents, 592-93) While 
the mere possibility of abuse of a power of inquiry is no conclusive 
argument against its exitence, 24 we are not concerned here with the 
existence of a pow T er of inquiry but with the existence of a limit to that 
power. It “will not do to say that the argument is drawn from ex- 
tremes. Constitutional provisions are based on the possibilities of 
extremes.” 25 

The occasion for misuse of the impeachment power by unduly en- 
croaching upon Executive confidentiality is not the greatest potential 
abuse which can be foreseen. An even more disturbing possibility 
would be the removal of a President for no other grievance than his 
refusal to comply with an impeachment committee’s subpoena. 20 

Did the President’s overall response to the inquiry demands for 
information standing alone , warrant his impeachment? — that is the 
question which Article III would have posed for the House. 

Relations between Congressional investigating committees and the 
Executive have not always been so tranquil in our history as to indi- 
cate that the possibility of abuse of an “automatic impeachment” rule 
is fanciful. 27 One might well pause before encouraging a bare major- 


23 The argument sometimes advanced that in waiving his privilege with respect to testi- 
mony, the President should be deemed to have waived it with respect to other forms of 
evidence of “related'' Presidential conversations, appears not to have been taken as a 
serious point by the tribunals which have adjudicated the various demands for production 
of the White House tapes, for the question has been raised and briefed. 

« McGrain v. Dauqhert t/, 273 U.S. 135, 175 (1927). 

*5 General Oil Co. v. Crain, 209 U.S. 211, 226-27 (1908). 

It should be borne in mind that the question whether a refusal to comply with a sub- 
poena in itself constitutes an impeachable offense is distinct from the question whether a 
refusal to produce evidence can give rise to an “adverse inference" regarding other, inde- 
pendent substantive charges. 

27 The relations between President Lincoln and the Committee on the Conduct of the War 
come to mind. 

It has been suggested that the operation of Presidential privilege may be more limited 
during a trial in the Senate, when the issues have been narrowed, than during the initial 
stages of an inquiry by a House Committee, whose investigation will of necessity be more 
broad -ranging than that of the Senate. C. Black, Impeachment: A Handbook (1974) 22. 



491 


ity of any committee looking into a civil officers performance to 
recommend that he stand trial for his office because it was not fully 
satisfied with the completeness of the information he produced. Yet 
if the rule is laid down that, as a matter of Constitutional law, a 
President can under no circumstances enjoy any privilege to with- 
hold documents or testimony from a duly designated impeachment 
committee which considers such evidence “necessary” to the conduct 
of an impeachment inquiry, then the mere attempt to exert such a 
privilege would afford sufficient grounds for his removal— a sort of 
default judgment, in the most grave proceeding contemplated by our 
Constitution. Such a rule would severely and excessively weaken the 
office of the Presidency. Adherence to such a proposition reflects a 
dangerous rigidity in Constitutional interpretation seldom contem- 
plated by the F ramers. 

SUBSTANTIAL C OMPLIANCE 

Much was made of the inadequacy of the White House edited 
transcripts as ,a substitute for the original tapes and other materials 
subpoenaed. It may be noted, however, that on October 18, 1973, 
Special Prosecutor Archibald Cox, in commenting upon a proposal 
by the Attorney General, stated that for the purposes of his and the 
grand jury’s investigation he would be satisfied with transcripts of 
tapes of Presidential conversations, prepared without the participa- 
tion of the Special Prosecutor’s office, omitting national security 
material and material not pertinent, and paraphrasing material em- 
barrassing to the President, if certain conditions were observed to 
guarantee the integrity and accuracy of the transcripts, including 
court appointment of Special Masters to undertake the work. 
(Book IX, 774) 

It should also be noted that the Committee did not accept the offer 
of the President to have the Chairman and Ranking Minority Mem- 
ber of the Committee verify the accuracy of the transcripts submitted 
by the President to the Committee. 

The Committee published a comparison of the White House 
edited transcripts with the transcripts prepared by the Inquiry staff. 
The “Materials Respecting Proposed Article III” submitted by the 
staff to the Members of the Committee before the vote on Article III 
was taken included a section entitled “Comparison: HJC Transcripts 
with White House Transcripts,” containing 10 instances in which the 
Committee transcript and the White House transcript of the same 
conversation differ and the White House transcript appeared to omit 
matter unfavorable to the President, or to state it differently. These 
examples, however, were selected from hundreds of instances in which 
the Committee transcripts and the White House transcripts varied. 
Furthermore, the Committee transcripts represent the product of sev- 
eral months’ continuous work by members of the Inquiry staff. Even so, 
members of the Committee who listened to the Committee’s tapes dur- 
ing the 10-week initial evidentiary presentation will recall that some 
transcripts, notably those of March 21, p.m., and March 22, 1973, ap- 
peared to contain inaccuracies and misattributions when they were first 
heard by the Committee Members. Eventually, entirely new transcripts 



492 


of these conversations were prepared by the Inquiry staff, in some cases 
many pages longer than the transcripts first prepared by the staff. 
Inquiry staff personnel have estimated unofficially that they listened 
to each minute of taped conversation at least sixty times in attempt- 
ing to verify the words spoken. 

The circumstances under which the White House transcripts were 
prepared, by way of contrast, are not known. Absent an awareness of 
the personnel and staff resources available to prepare the White House 
transcripts which were released on April 30, 1974, it may be an error 
to attribute the great number of omissions, apparent misattributions 
of statements, careless punctuation and the like, to any willful effort 
to obscure the meaning of the tapes. A more likely explanation seems 
to be the White House staff simply did not spend as much time in 
preparing its transcripts as the Inquiry staff did in preparing our 
own. 

CONCLUSION 

The adoption of proposed Article III by the full House would have 
set an unwise and potentially mischievous precedent. No President 
should be impeached for failing to comply with subpoenas issued by an 
impeachment inquiry Committee for materials which were subject to a 
colorable claim of Executive or other privilege, unless his noncompli- 
ance amounted to contempt of the House, adjudicated in the customary 
manner, after notice and opportunity for him to appear personally or 
by counsel before the House and show cause why his failure to com- 
ply was not contemptuous. 

To those Members who may believe that in this case the claim of 
Executive privilege was asserted by the President in bad faith, at least 
as to some materials, we would reiterate our view that this alone should 
not have deprived the President of an opportunity to make his defense 
before the full House, like any putative contemnor. Even so, the Ilouse 
would not have been without recourse, inasmuch as a willful refusal to 
furnish relevant subpoenaed material based on a bad faith claim of 
privilege, if proved or admitted, would have been relevant to the 
obstruction of justice charge contained in Article I. It is in that context 
that we believe the President’s response to the Committee’s subpoenas 
should have been examined. 

We, the undersigned Members of the Committee on the Judiciary, 
hereby subscribe to the “Minority Views” respecting Articles I, II 
and III of the proposed Bill of Impeachment ordered reported to the 
House on July 30, 1974, which views, together with a “Preliminary 
Statement,” are* to be filed with the Committee Report on said Bill 
of Impeachment : 

Edward Hutchinson. 

Henry P. Smith, III. 

Charles W. Sandman, Jr. 

Charles E. Wiggins. 

David W. Dennis. 

Wiley Mayne. 

Trent Lott. 

Carlos J. Moorhead. 

Joseph Maraziti. 

Delbert L. Latta. 



493 


I concur in the views of the minority with respect to Articles I and 
III but not Article II. 


Wiley Mayne. 


We, the undersigned Members of the Committee on the Judiciary, 
hereby subscribe to the “Minority Views” respecting Article III of 
the proposed Rill of Impeachment ordered reported to the House on 
July 30, 1974, which views are to be filed with the Committee Report 
on said Bill of Impeachment : 

Tom Railsback. 

Walter Flowers. 

M. Caldwell Butler. 

Harold V. Froehlich. 




INDIVIDUAL VIEWS OF MR. HUTCHINSON 

I joined in tlie minority report of the ten Members of the Judiciary 
Committee who voted against all articles of impeachment and I sub- 
scribe to that report. I set forth here those considerations, persuasive 
to me, which led me to oppose impeachment of the President in the 
Committee and the subsequent developments which brought me to a 
decision that a case for impeachment had been made on one count. 


GENERAL 

Impeachment of a President is a drastic remedy and should be re- 
sorted to only in cases where the offenses committed by him are so 
grave as to make his continuance in office intolerable. Unlike criminal 
jurisprudence, where the sentencing judge has large discretion as to 
the punishment to be inflicted, the conviction of an impeached Presi- 
dent removes him from office, nothing less. The charges against him 
should be so serious as to fit removal. The three articles of impeach- 
ment, when measured against this standard, fall short in all but a single 
count in my opinion. 

I reject the proposition that the impeachment function of the House 
is nothing more than the indictment function of a grand jury, and 
that a Member who votes to impeach is merely sending the case to the 
Senate for trial. When the House votes a bill of impeachment, the 
House has the burden of proving its case. It becomes the prosecutor 
before the Senate. It represents that it believes the President is guilty 
of the offenses charged ; that it has legally admissible evidence to prove 
that guilt ; and that it believes the President should be removed from 
office because of those offenses. This is a much greater burden than that 
of a grand jury which represents only that there is probable cause to 
believe a particular offense was committed and that the indicted person 
committed it. The grand jury has no burden to maintain its cause be- 
fore any court. 

In my judgment, a Member who votes to impeach is recommending 
to the Senate the removal of the President from office, nothing less. In 
order to warrant such drastic action, the offenses charged should be 
serious and grievous violations by the President of his Constitutional 
duties. They should be described in the articles of impeachment with 
the particularity required in criminal law. The evidence supportive of 
each overt act charged should be proof of guilt beyond a reasonable 
doubt. The lowliest person in the land, charged with wrong-doing, is 
accorded no less. 

If the strict standards of criminal jurisprudence are not required 
in cases of Presidential impeachment, the issue falls away from the 
high plane of law and becomes political. In a divided government, with 
the Congress in control by one political party and the President .of 
another, impeachment becomes a threatening political tool, if one 

( 495 ) 



496 


group of politicians can decide over another what is an abuse of 
power. 

In weighing the evidence, if an inference or conclusion favorable to 
the President can be drawn as well as an inference or conclusion un- 
favorable to him, I believe the President should be given the benefit of 
the doubt. 

In my judgment, not any of the three articles of impeachment are 
drawn with the particularity which is required to give the House infor- 
mation of the precise offenses charged and the overt acts claimed to 
be supportive of them ; nor to give the President the notice which con- 
stitutional process accorded him, had he chosen to defend agaihst 
those charges in the Senate. 

ARTICLE I 

The first article charges the President with conspiracy to obstruct 
justice: in the words of the article, that the President “engaged per- 
sonally and through his close subordinates and agents in a course of 
conduct or plan designed to delay, impede and obstruct the investiga- 
tion of (the Watergate break-in) ; to cover up, conceal and protect 
those responsible ; and to conceal the existence and scope of other un- 
lawful covert activities.” 

Until the August 5th release of conversations held between the 
President and Mr. Haldeman on June 23, 1972, there was no direct evi- 
dence of complicity by the President in the cover-up. The President 
said he knew nothing about any cover-up until his conversations with 
John Dean in mid-March, 1973; there was no direct evidence to the 
contrary and he was entitled to the benefit of the doubt. 

It is now evident that the President knew as early as June 23, 1972, 
six days following the Watergate break-in, of a plan to obstruct the 
FBI investigation into that event, and that he authorized the plan. 
Here are the words spoken : 

Haldeman. Now, on the investigation, you know the Democratic break-in thing, 
we're back in the problem area because the FBI is not under control, because 
Gray doesn’t exactly know T how to control it and they have — their investigation 
is now leading into some productive areas — because they’ve been able to trace 
the money — not through the money itself — but through the bank sources — the 
banker. And it goes in some directions we don’t want it to go. Also there have 
been some things — like an informant came in off the street to the FBI in Miami 
who w T as a photographer or has a friend who is a photographer who developed 
some films through this guy Barker and the films had pictures of Democratic 
National Committee letter head documents and things. So it’s things like that that 
are filtering in. Mitchell came up with yesterday, and John Dean analysed very 
carefully last night and concludes, concurs now with Mitchell’s recommendation 
that the only way to solve this, and we’re set up beautifully to do it . . . is for 
us to have Walters call Pat Gray and just say, “Stay to hell out of this — this is 
business we don’t want you to go any further on it.” That’s ’not an unusual de- 
velopment, and that would take care of it. 

President. What about Pat Gray — you mean Pat Gray doesn’t want to? 

Haldeman. Pat does want to. He doesn’t know how to, and he doesn’t have any 
basis for doing it. Given this, he will have the basis. He’ll call Mark Felt in and 
the two of them — and Mark Felt wants to cooperate because he’s ambitious — he’ll 
call him in and say, “We’ve got the signal foam across the river to put the hold 
on this” and that will fit rather well because the FBI agents who are working on 
the case, at this point feel that’s what it is. 

President. This is CIA? They’ve traced the money? Who’d they trace it to? 

Haldeman. Well, they’ve traced it to a name, but they haven’t gotten to the 
guy yet. 



497 


President. Would it be somebody here? 

Haldeman. Ken Dalilberg. 

President. Wlio the hell is Ken Dalilberg? 

Haldeman. He gave .$25,000 in Minnesota and the check went directly to this 
guy Barker. 

President. It isn’t from the Committee though, from Stans? 

Haldeman. Yeah, it is. It’s directly traceable and there’s some more through 
some Texas people that went to the Mexican bank — which can be traced to the 
Mexican bank— they’ll get their names today. 

President. Well, I mean, there's no way — I’m just thinking if they don’t 
cooperate what do they say? That they were approached by the Cubans. That’s 
what Dalilberg has to say, the Texans too, that they 

Haldeman. Well, if they will. But then we’re relying on more and more people 
all the time. That’s the problem and they’ll stop it if we take this other route. 

President. All right. 

Haldema*n. And you seem to think the thing to do is to get them to stop ? 

President. Right. Fine. 

The Watergate burglary occurred in the early hours of Saturday, 
June 17, 1972. The Committee to Re-elect the President was already 
organized and functioning. By the time the pieces of the Watergate 
event were put together the Democrats had nominated their candidates. 
If in July President Nixon had disclosed the excesses of the Committee 
to Re-elect and denounced their foolhardy and illegal performance, 
that’s all there ever would have been to Watergate. Those who broke 
the law would have been punished in the Courts. 

Even the evidence set forth above would not have greatly disturbed 
the Congress or the country had it been disclosed in the spring of 1973. 
The damage was done by the apparent policy of the President to with- 
hold until he finally was forced to yield information which because of 
the timing of disclosure put him in the worst possible light. 

But without the evidence of the June 23, 1972, conversation I was 
prepared to defend the President against the charge of obstructing 
justice on the basis that lie had no knowledge of it until March 1973. 
At that time he moved to purge his administration of those involved 
in the conspiracy and had accomplished that by April 30. Until the 
disclosures of August 5, 1974, which set forth the June 23, 1972, con- 
versations, proponents for impeachment pinned their case for com- 
plicity of the President in the cover-up largely on eight taped conver- 
sations between the President and John Dean et.al, running from 
September 15, 1972, to April 16, 1973. The Committee published these 
conversations in a separate volume entitled Transcripts of Eight 
Recorded Presidential Conversations. 

If one assumed that the President had knowledge of the conspiracy 
and was directing it, these conversations are damaging indeed to his 
claim of innocence. But if one assumed he didn’t know, as he said he 
didn’t, these conversations are filled with statements of supportive 
of his cause. And without the evidence on the June 23, 1972, conver- 
sations I felt justified in making the assumption that he didn’t know, 
giving him the benefit of doubt. 

Through all of these conversations, the President’s position was 
that there should be no withholding from a grand jury. He urged 
everyone in his administration who was implicated to testify freely 
and truthfully. He waived the doctrine of Executive privilege and 
even the attorney-client, relation, before a grand jury. 



498 


In fact, it is clear that when the implications of the whole mess 
were laid out to him on March 21, 1973, he proposed that it all be 
presented to a grand jury. This would not be the position of a man 
engaged in a plan to obstruct justice. That he was dissuaded from 
that immediate course by his advisors, who were so engaged would 
not make him part of the conspiracy himself. 

The President’s position regarding the Senate Watergate Com- 
mittee was different. He viewed that legislative investigating com- 
mittee for what it was, a political attack against him and his adminis- 
tration. Resistance to the demands of the Senate committee was not 
an obstruction of j ustice, since that committee was no part of the system 
of justice. Its legitimate function was to inquire into the need for 
changes in statute law. The timing of its investigation, publicly 
exposing the scandal at the same time the grand jury was inquiring 
under the strictures of secrecy, probably delayed the work of the 
grand jury, and in the opinion of many people, constituted a political 
intrusion into an arena which should have been left to law enforce- 
ment agencies and the courts. The President may have viewed the 
Senate committee as a political move to embarrass him and his ad- 
ministration, and he reacted to it politically. Certainly his initial as- 
sertion of executive privilege, and his discussions with his aides as 
to how to deal with the Senate committee are not relevant to an obstruc- 
tion of justice charge. Such discussions were had with a view to public 
relations and political response, not at all with a view to law enforce- 
ment and the administration of justice. Those conversations should 
be considered in that light. 

The taped conversations clearly exhibit the President’s instructions 
to his subordinates to talk freely with the prosecutors and to tell the 
truth, and to appear willingly before the grand jury. 

In the face of his personal policy of cooperation with law enforce- 
ment agencies, and his expressions to his subordinates that they do like- 
wise, why did the President resist delivery of taped conversations to 
the Special Prosecutor, even until the Supreme Court directed his com- 
pliance? Drawing an inference in the President’s favor, perhaps he 
did not think of a taped conversation as essential evidence of that 
conversation, since the parties to them were available as witnesses. 
At the time of the conversations, most of the parties to them were 
unaware they were being recorded and they might not have spoken 
exactly as they did had they been so aware. Perhaps the President 
was concerned about the possible constitutional rights of those par- 
ticipants. Obviously, the taping system was not installed for eviden- 
tiary purposes, but for historical purposes, to enable the President 
to refresh his memory in writing his memoirs. Since the witnesses 
were available for questioning, the President did not think of the 
tapes as evidence; he thought of them as his personal papers. And 
since he never thought of himself as a party in any wrong-doing, 
his personal papers, in his view, were not properly to be brought into 
question. 

But even more importantly, the President felt that he was con- 
stitutionally bound to defend the doctrine of executive privilege, a 
doctrine as old as the Presidency itself. All of his predecessors had 
stubbornly defended their office against the intrusion of either the 



499! 


Congress or the Courts. The doctrine of executive privilege runs back 
to the administration of George Washington. It is based on the prin- 
ciple of the separation of powers between three co-equal branches of 
government; legislative, executive, and judicial. Just as this House 
asserts its privileges and will not answer the subpoena of any court 
without its consent, and would tolerate no order of any President 
directing any action by the House, so the President asserts the privi- 
leges of his office under the same constitutional right. 

His reluctance in surrendering tapes must be viewed as an assertion 
by the President of constitutional privileges as against the other 
co-equal branches of government. It is based upon a claim of constitu- 
tional duty to preserve the character of his office in a struggle to keep 
that office co-equal. It cannot fairly be evidentiary of any attempt to 
obstruct justice, and no inferences of wrong-doing by the President 
can properly be drawn from that reluctance. 

The conversation in the morning of March 21, 1973, must be com- 
mented upon under this article of impeachment. At that time Dean 
revealed to the President the full extent of the mess his subordinates 
had gotten themselves into. They had even stooped to yielding to 
Hunt’s blackmail. During that conversation, the President fell into his 
practice of examining all of the options. The majority staff of the 
impeachment inquiry apparently concluded that the President came to 
two resolutions : That in the long run Hunt’s demands w T ere wrong and 
intolerable, but that Hunt’s immediate demand for $120,000 must be 
met. The grand jury named the President an unindicted co-conspirator 
on the theory that following this conversation Hal deman called Mitch- 
ell at the President’s suggestion, that Mitchell called LaRue, and 
that LaRue caused $75,000 to be delivered to Hunt’s lawyer, Bittman, 
before that day was out. 

But Dean says he talked with LaRue on that morning before he saw 
the President and LaRue corroborates this. Their conversation was 
that LaRue told Dean of Hunt’s demands and that Dean said he was 
out of the money business. When LaRue asked what to do, Dean sug- 
gested that LaRue might call Mitchell. LaRue did call Mitchell in New 
York but told Mitchell only about the $75,000 Hunt needed for lawyer’s 
fees, not about an additional $60,000 Hunt was demanding for family 
support during his incarceration. Mitchell apparently said that if it 
were for attorney’s fees, he would probably pay it if he were LaRue, 
and LaR ue did so. 

The President had no input into the matter, and knew nothing about 
the payment until mid- April. So the hush money charge against the 
President has been demolished by the facts and the testimony of 
Mitchell and LaRue before the Committee. 

There remains the question whether the evidence making the Presi- 
dent part of a conspiracy to obstruct justice rises to the magnitude of 
an impeachable offense. In my opinion, standing by itself, it probably 
would not have provoked the House to exercise its impeachment 
powers. The timing of the disclosure, which for the first time tied the 
President to the conspiracy, was his undoing. Those who had been 
defending the President were left without a defense and without time 
to build a new defense. Under the circumstances impeachment became 
a certainty and resignation the only viable alternative. 


37-777 O - 74 - 32 



500 


ARTICLE II 

This article accuses the President of abusing the powers of his 
office, in that he “has repeatedly engaged in conduct violating the 
constitutional rights of citizens, impairing the due and proper admin- 
istration of justice and the conduct of lawful inquiries, or contraven- 
ing the laws governing agencies in the Executive branch.” During 
the inquiry this area was called agency practices. It was apparent that 
Watergate and its aftermath had been the events which provoked 
the inquiry, especially the dismissal of Special Prosecutor Archibald 
Cox by the Acting Attorney General at the orders of the President, 
and the searching for occasional excesses in the attempt to exercise 
power by the White House over the agencies of government was at 
the outset a mere adjunct. Yet, this article gained the largest affirma- 
tive vote of the three articles reported by the Judiciary Committee. 
In my opinion, Article II is as weak a basis for removing a President 
from office as is Article III. 

Article II is a catch-all. Culling from tens of thousands of trans- 
actions between the White House and the agencies of the Executive 
branch a few isolated instances of conceived pressure described as 
abuses of power, and with no evidence of the President’s personal in- 
volvement, the proponents allege repeated engagement, that is time 
after time, by the White House in such a course of action. 

Would you remove a President from office because one of his sub- 
ordinates asked for some income tax audits, which requests were 
denied out of hand by the Commissioner of Internal Revenue whom 
the President had appointed? Would you remove a President because 
on a single occasion another of his subordinates did succeed in obtain- 
ing income tax information on a political candidate’s brother, which 
information was leaked to a newspaper columnist? Would you remove 
a President because some wiretaps were installed in the name of na- 
tional security, at a time when such installations were clearly legal, 
and there were serious leaks in the confidentiality of negotiations with 
foreign nations ? 

Article II next charges that the President should be removed from 
office because the so-called plumbers unit was set up in the White 
House. How many times have modern Presidents set up operating 
units within the White House? If Congress thinks they ought not 
to do so, then Congress should forbid it by law, not impeach a Presi- 
dent who does so with a great number of precedents behind him. But 
perhaps the evil here is not the creation of the unit, but rather the 
secret creation of an investigative unit. Was not the CIA secretly 
organized by another administration ? And even today can a Member 
of Congress find out what that agency is doing or how it is funded, or 
what its budget is? A Member cannot. There is no evidence the Presi- 
dent ever armed the plumber's with any pretended power to operate 
outside the law, and if the plumbers did that on one or more occasions, 
those guilty of breaking the laws should be held accountable, as they 
are, and not the President. 

In considering this abuse of pow T er article, whether it be the IRS, 
the FBI, the CIA or the Justice Department or any other agency of 
the government which might have been asked by the subordinates of 



501 


the President for special action in the name of the President, the 
House should be reminded of what has gone on in other administra- 
tions. The House is entitled to a standard by which to measure this 
administration. In the absence of proof, I believe the public generally 
believes that most administrations have been about alike, and that 
this one is no different. If the inquiry had researched prior administra- 
tions it is a fair assumpton such research would have turned upon 
several so-called abuses of power, perhaps as many on the average as 
are now alleged. That, is why, in my judgment, it is manifestly unfair 
to attack the present President for these things. 

Early in this impeachment inquiry the minority requested that a 
qualified individual be employed to undertake the research of how 
prior administrations dealt with agencies of government. But we were 
denied our request. We are thus without a standard of past perform- 
ance to measure this one, and the abuse of power charge is therefore 
not fairly sustainable. 

The proponents for impeachment rely on the conversation of Sep- 
tember 15, 1972, to connect the President with the use of some agencies 
for political purposes. It must be remembered that the September 15 
conversation was the mere talk, without action, of partisans in a politi- 
cal campaign. How many times in their experience have not Members 
talked to tlieir campaign directors about the opposition? There is 
absolutely no evidence that anything ever came of any of the mere talk 
at that September 15 meeting. 

Paragraph (4) of Article II alleges that the President has “failed 
to take care that the laws were faithfully executed” because of the 
unlawful activity carried on by his close subordinates, when he “had 
reason to know” of such activities. 

The President’s duty to take care that the laws be faithfully executed 
does not impose a liability upon him for the misdeeds of others, but 
to discharge them. Unquestionably, when serious charges were brought 
to his attention, he should be permitted a reasonable time in which to 
satisfy himself of the probability of the truth of them, and in this 
case the period of examination ran for about six weeks, during which 
he worked with the Criminal Division of the Department of Justice, 
and delayed the discharge of Dean at the request of the chief of the 
Criminal Division. This cannot be fairly said to amount to failure of 
his constitutional duty. 

article m 

The idea that a President should be removed from office because he 
does not comply with a subpoena of a committee of the House, even 
if the precedent be limited to impeachment cases, is frightening. The 
committee issues its subnoena under the constitutional power of the 
House to impeach. The President refuses to comply with a subpoena 
because the constitutional separation of powers demands of him that 
he maintain the office of President as a co-equal with the House; that 
t° yield to its mandate would make the office of President subservient 
to the House. How can the House determine that the President should 
be removed from office, when his failure to comply is based on a consti- 
tutional principle as strong as the one on which the House relies? 



502 


I opposed issuance of subpoenas by the Committee to the President 
because such subpoenas would be unenforceable ; and because I do not 
believe the House can order presidential action any more than the 
President can order the House. The President and the House are 
co-equal in our system. Neither is above or below the other. 

I think Article III does not state an impeachable olfense. 

CONCLUSION 

History will deal more kindly with Richard Nixon than did his 
contemporaries. As the Watergate affair moves into the past it may be 
seen for what a little thing a President was forced to resign from 
office when compared with the accomplishments of his administration. 
A legal case of obstruction of justice was made against him. But 
instructions by other Presidents have undoubtedly altered the course of 
other investigations without controversy. The abuses of power charged 
against the President were probably no greater than have occurred in 
some other administrations. What to one man seems an abuse of power 
appears to another to be strong executive discretion. The President 
should not have been impeached under Article II. And I believe the 
House would have rejected Article III. 

Edward Hutchinson. 



ADDITIONAL VIEWS OF ME. RAILSBACK, JOINED BY 
MESSRS. SMITH, SANDMAN, DENNIS, MAYNE, BUTLER, 
FROEHLICH, MOORHEAD, MARAZITI AND LATTA, IN 
OPPOSITION TO ARTICLE III 

Refusal to fully comply with a Congressional subpoena in and of 
itself without further action on the part of the Congress is not a 
ground upon which an impeachment can be based. The House has 
neither exhausted available remedies on this issue nor can the House in 
this instance be the ultimate judge of the scope of its own power. 

Presently, Congress has two methods of enforcing compliance with 
its subpoenas. First, is its inherent common la^vv authority and second, 
is its statutory authority under Title 2, United States Code 192~~94. 
Both methods are forms of criminal contempt. Under its common law 
power, the House may conduct its own trial for contempt of Congress. 
By a majority vote, the House may find a person in contempt of Con- 
gress. A person adjudged in contempt under this procedure may, under 
an order of the House, be subjected to one of the three enforcement 
procedures : 

(1) containment in close custody by the Sergeant -at- Arms; 

(2) commitment to a common jail in the District of Columbia; 
or 

(3) commitment by the Sergeant -at- Arms to the guardroom of 
the Capitol Police. 

Confinement under the common law procedure cannot extend beyond 
a particular Congress. In recent times the Congress has not chosen to 
utilize its common law power but has turned to its statutory provisions 
contained in Title 2, United State Code 192. 

Under Title 2, United States Code 194, when a witness refuses to 
comply with an order of a Committee that fact is reported to the 
House of Representatives and if the House agrees by a majority vote 
the Speaker is required to certify to a IJ.S. Attorney the question of 
contempt. The U.S. Attorney will present the matter to a grand jury. 
If the grand jury should return an indictment, then there would have 
to be a regular criminal trial before a judge and jury. If the individual 
subpoenaed should be found guilty of the misdemeanor, it is manda- 
tory under 2 United States Code 192 that the defendant be punished 
by a fine of not more than $1,000 nor less than $100 and that the de- 
fendant be imprisoned in a common jail for not more than 12 months 
nor less than one month. 

A third method available to the Congress for enforcing compliance 
with it-s subpoenas would be through legislation. On November 9, 
1973, the Other Body passed by unanimous consent S. 2641, conferring 
jurisdiction upon the District Court of the U.S. for the District of 
Columbia of civil actions brought by the Senate Select Committee to 
enforce or secure a declaration concerning the validity of any sub- 

( 503 ) 



504 


poena or order issued by it. Prior to its enactment, on October 17, 
1973, an action of the Senate Select Committee to enforce its subpoenas 
requesting certain tape recordings which were in the possession of the 
President was dismissed by the U.S. District Court for the District of 
Columbia because the court found that there was no jurisdictional 
statute upon which the action could be based. Judge John J. Sirica 
stated in his opinion, 

The Court has here been requested to invoke a jurisdiction which only Congress 
can grant but which Congress has heretofore withheld. ( Senate Select Committee 
v. Nixon, 366 Fed. Supp. 51) 

On November 13, Senator Ervin sent a letter to Chairman Rodino 
requesting that S. 2641 be expedited by the House Judiciary Com- 
mittee. In less than three weeks following Senator Ervin’s letter the 
House enacted S. 2641. This Act became law December 18, 1973, with- 
out the President’s signature (P. Law 93-190). 

The Senate Select Committee investigating “Watergate” chose not 
to attempt an adjudication of the matter by resort to a contempt pro- 
ceeding under Title 2, United States Code 192, or via congressional 
commonlaw powers which permit the Sergeant-at-Arms to forcibly 
secure attendance of the offending party. Either method, the Select 
Committee stated, “would be inappropriate and unseemly” when the 
offending party is the President. 

Pending before the House Judiciary Committee is a bill similar 
to S. 2641, H.R. 13708. The purpose of H.R. 13708 is to confer upon 
the U.S. District Court for the District of Columbia jurisdiction over 
civil actions brought by the House Judiciary Committee to enforce 
any subpoena or order issued by it for the production of information 
relevant to the Committee’s constitutional inquiry. Under this legis- 
lation the House Judiciary Committee would have authority to prose- 
cute such civil actions to enforce or secure a declaration concerning 
the validity of such subpoenas. The Committee may be represented by 
such attorneys as it may designate in any action brought under the 
bill. H.R. 13708 also contains a provision that would expedite such 
civil proceedings through the courts. 

Irving Younger in a study of separation of powers stated that : 

We should not forget that the Supreme Court has decided disputes between 
Congress and the President under its general power to hold the other two depart- 
ments within the ambit of the Constitution. (20 U. Pitt. L. Rev. 755, 777 N. 100, 
1959; Raoul Berger, “Executive Privilege” Harvard XJniv . Press , 1974, p. 332) 

Alexander M. Bickel, an eminent constitutional lawyer, also sup- 
ported the Committee’s use of the Courts to enforce its subpoenas. 
In his article that appeared in The New Republic , June 8, 1974, pp. 
11-14, Mr. Bickel wrote that: 

There is no way open to Congress other than a lawsuit of actually getting its 
hands on the evidence it wants. ... To be sure if it does not go to Court, and 
does not run the risk of a court’s refusal to enforce a subpoena, the House might 
cite the President for contempt and base a separate Article of impeachment on 
his refusal to honor the subpoena. But these are gestures. The contempt citation 
by itself is pure gesture. An additional Article of impeachment based on it is 
a makeweight. It is difficult to imagine that the House would vote it without 
also approving other Articles, or that the Senate would convict on it without 
convicting on other Articles. So what is gained? 



505 


The Supreme Court proceeds from the premise that it is the “ulti- 
mate interpreter of the Constitution 5 ’ vested with the responsibility 
to decide “whether the action of another branch . . . exceeds what- 
ever authority has been committed.” ( United States v. Nixon , decided 
July 24, 1974, Slip Opinion, Page 18 : Powell v. McCormack, 395 U.S. 
486 at 521). In Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 
(1803), the Court stated that “It is emphatically the province and 
duty of the judicial department to say what the law is.” 

Whether the Congress has an absolute right to demand information 
or the President the absolute discretion to refuse such information is 
plainly not stated in the Constitution. Essentially this is a dispute 
about the scope of intersection powers. “One branch cannot finally de- 
cide the reach of its own power when the result is to curtail that 
claimed by another. Neither of the two departments, said Madison 
in Federalist No. 49, ‘can pretend to an exclusive or superior right of 
settling the boundaries between their respective powers. Some arbiter, 
said Justice Jackson, is almost indispensable when power is . . . bal- 
anced between branches, as the legislative and executive . . . Each 
unit cannot be left to judge the limits of its own power . . ” (Raoul 

Berger, “Executive Privilege” Harvard Univ . Press , (1974) pp. 330- 

In late May, 1974, the Judiciary Committee by a vote of 32-6 chose 
not to seek the assistance of the courts in enforcing compliance with 
its subpoenas. The Committee also chose not to utilize its common law 
power or its contempt of Congress power under Title 2, United States 
Code 192-94. The President does have certain inherent constitutional 
rights and privileges. What the President’s true motives are in with- 
holding information only history may know but this President or any 
President should not be impeached for acts based on his assertion of 
certain constitutional rights. The Supreme Court is the ultimate judge 
of the boundaries of conflicting constitutional powers, not the 
Congress. 

The enactment of Article III would seriously weaken the Presi- 
dency. Such enactment would be dangerous, and a pure exercise of 
raw legislative power. Article III should be rejected by the House of 
Representatives. 

Thomas F. Railsback. 

Henry P. Smith III. 

Charles W. Sandman, Jr. 

David W. Dennis. 

Wiley Mayne. 

M. Caldwell Butler. 

Harold V. Froeiilich. 

Carlos J. Moorhead. 

Joseph J. Maraziti. 

Delbert Latta. 




ADDITIONAL VIEWS OF MR. DENNIS 


I concur generally in the Minority Views which I have signed in 
company with my colleagues Messrs. Hutchinson, Smith, Sandman, 
Wiggins, Mayne, Lott, Moorhead, Maraziti, and Latta, and I com- 
mend particularly the discussion of the evidence contained in Part C 
of the Preliminary Statement of those Minority Views. I desire, how- 
ever, to add some additional observations of my own, which I set out 
below. 

I was one of the ten members of the Committee on the Judiciary 
who voted in the Committee against all three Articles of Impeach- 
ment. 

While the revelation — after the Committee vote — of the taped con- 
versation of June 23, 1972 between President Nixon and H.R. Halde- 
man, and the President’s statement on that subject dated August 5, 
1974, led me to change my view as to Article I, so that I would have 
voted for impeachment on that Article had it been put to a vote of the 
House, it is my view that my nine colleagues and I were correct on the 
state of the evidence and the record as it stood before the Judiciary 
Committee at the time of the Committee vote; and I remain of the 
opinion that we are still correct today in respect to our opposition to 
Articles II and III. 

On July 25, 1974 I stated my views in formal debate in the Judiciary 
Committee. That statement still reflects, as well as I can do it in a 
brief compass, my general position as to Articles II and III (taking 
them in reverse order) and I therefore report here what I then said : 

Article III — Failure To Comply With Committee Subpoenas 

Turning first to the matter of failure to observe or to comply with the sub- 
poenas of the Committee on the Judiciary : 

We have, of course, had a landmark decision of the Supreme Court of the 
United States just yesterday which decided, for the first time, that a generalized 
and unlimited executive privilege cannot be exercised to over-ride specific sub- 
poenas issued by a 'Special Prosecuting Attorney in furtherance of the prosecu- 
tion of a criminal case. 

This decision does not bear directly on nor, as a matter of law, does it enhance 
the power of this Committee to issue subpoenas in these impeachment proceed- 
ings against the President of the United States, because, very unfortunately, as 
I 'believe, this Committee has declined and refused to test and to determine its 
Constitutional powers in the Courts of this country, despite the well-known state- 
ment of Chief Justice Marshall in Marbwry v. Madison that “it is emphatically 
the province and duty of the Judicial Department to say what the law is/’ 

I believe, however, that the power of this Committee in respect to the issuance 
of subpoenas in impeachment proceedings is at least equal to — and is, in all 
probability, the superior of — the power of the Special Prosecuting Attorney. 

This decision, therefore, although we are not a party to the litigation, and 
derive no actual rights therefrom, very well may — and in my judgment in all 
probability will — result in the furnishing to this Committee of additional relevant 
and highly material evidence which, up to this time, we do not have. 

It is my judgment that should it appear that such evidence will be available 
to us within a reasonably short period of time, then it will become our positive 
duty to delay a final vote in these important proceedings until we have examined 
this additional evidence. 


(507) 



508 


In assessing the President’s past treatment of the subpoenas of this Committee, 
however, we have no right whatever to consider yesterday’s decision of the 
United States (Supreme Court because, in addition to the fact that we are not a 
party to the cause, this decision, of course, had not been handed down when 
our subpoenas were served, or when the President took his stand in respect 
thereto. 

At that point the President simply asserted what he stoutly maintained to be 
a Constitutional right — and which lie is, in fact, still legally free to assert to 
be a Constitutional right so far as this Committee is concerned ; and we, on the 
contrary, asserted a Constitutional right in opposition to the Presidential claim. 

iSuch a conflict is properly one for resolution by the Courts, and absent a 
binding and definitive decision between the parties by the Judicial branch, it 
escapes me on what ground it can properly be asserted that a claim of Consti- 
tutional right is, in any sense, an abuse of power. 

It will be observed that I noted at that time that the Committee had 
not obtained — nor had it taken the obvious legal steps to obtain — all 
the relevent evidence; that it was probable, due to the decision of the 
Supreme Court in United States v. Nixon , that such evidence would 
Shortly be forthcoming ; and that I suggested that we should defer our 
final vote pending that event. 

Ten days later that evidence — the tape of June 23, 1972 which made 
all the difference — was indeed produced. 

As to Article //, on July 25 I spoke as follows : 

Turning to further alleged abuses of power , I look to the proposed articles 
which we have before us. 

In proposed Article II these abuses of power are alleged to be : 

1. Illegal Surveillance, but the 17 wire-taps chiefly complained of under this 
heading were all instituted before the Keith decision, and were not only pre- 
sumptively legal at that time, but are probably legal in large part also today 
since many, if not all of them, had international aspects, a situation in which 
the need for a court order was specifically not passed upon in the Keith decision. 

2. Use of the executive power to unlawfully establish a special investigative 
unit “ — to engage in unlawful covert activities — But it was not unlawful, so 
far as I am advised, to establish the plumbers’ unit ; and I suggest that proof is 
lacking that the President intended for it to, or authorized it to, engage in unlaw- 
ful covert activities. In like manner it is certainly not established as a fact that 
the purpose of the Fielding burglary was “to obtain information to be used by 
Richard M. Nixon in public defamation of Daniel Ellsberg”, nor is there any 
substantial evidence that the President knew of or authorized this burglary 
before it took place. In fact when Dean told the President about the Fielding 
break-in on March 17, 1973, the President said, “What in the world — what in the 
name of God was Ehrlichman having — in the Ellsberg . . . This is the first I 
ever heard of this.” 

3. Alleged Abuse of the IRS. Without going into detail I suggest that the evi- 
dence here — so far as the President is concerned — is one of talk only, and not of 
action ; that the independent attempted actions of Dean, Haldeman, and Ehrlich- 
man were unsuccessful and ineffective; and that the only direct evidence of an 
alleged Presidential order (in the Wallace case) is a hearsay statement of Clark 
Mollenhoff that, Mr. Haldeman said to him that the President requested him to 
obtain a report — which is, of course, not competent proof of anything. 

Other allegations of alleged misuse and abuse of the FBI and the CIA can, 
in the interests of time, be best considered under the heading of alleged obstruc- 
tion of justice; and the matter of refusing to honor Judiciary Committee sub- 
poenas has already been discussed. 

I will add that I consider it improper to seek to multiply offenses 
by making the identical acts regarding the CIA and the FBI which 
establish the case under Article I, serve also as the basis for a separate 
offense called an “Abuse of Power” under Article II. 



509 


As to Article I — Obstmction of Justice , I then said, in part : 

Whether the President had a design to, or attempted to, interfere with or 
obstruct the Watergate investigation conducted by the FBI, by a phony attempt 
to enlist the possibility of CIA involvement, or whether lie genuinely believed — 
due to the personnel concerned, the Mexican connection, and other circum- 
stances — that there might well be a CIA or national security involvement, appears 
to me to be a debatable proposition. 

It is, of course, the subsequently produced tape of the conversation 
of June 23, 1972 between Haldeman and the President which makes 
this proposition no longer debatable. 

At that time, I also said : 

And v T here cover-up is considered we need to remember that, after all, the 
President became fully aware and took charge on March 21 and by April 30 
Haldeman, Ehrlichman, Kleindienst and Dean had all left the government for 
good, and now are dealing as they should with the strictures of the criminal law. 

The conversation of June 23, 1972 and the President’s statement of 
August 5, 1974, of course, knock the props out from under this argu- 
ment because we now know that President Nixon, so far from first 
becoming aware of the Watergate cover-up on March 21, 1973, was in 
fact actively and personally engaged therein from at least June 23, 
1972, just- six days after the Watergate break-in took place. 

During our investigation of this case the Committee made no effort 
to call H. R. Haldeman or John Ehrlichman as witnesses (with some 
excuse due to their personal legal entanglements) and neither — with- 
out any clearly established excuse — did we make any effort to call E. 
Howard Hunt, the purported blackmailer to whom “hush money” is 
alleged to have been paid. As to this particular, and important, phase 
of the cover-up I said in my remarks to the Committee on July 25th : 

* * * the March 21 payment to Hunt was the last in a long series of such pay- 
ments, engineered by Mitchell, Haldeman, Dean and Kahnbach, and later on 
LaRue, all so far as appears, without the President’s knowledge or complicity. 
And as to the payment of March 21 the evidence appears to establish that it was 
set up and arranged for by conversations between Dean and La Rue and LaRue 
and Mitchell, before Dean talked to the President on the morning of the 21st 
of March. So that even if the President was willing, and even had he ordered 
it (as to which the proof falls short) it would appear that this payment was in 
train and would have gone forward, had Dean never talked to the President on 
March 21 at all. 

And, while Presidential participation in the over-all cover-up plan 
is now conceded to be established, I see no reason, on the basis of the 
record, to change my statement as to this specific matter. 

In addition — despite an invitation to do so — no effort was made to 
address either oral questions or written interrogations to President 
Nixon. These omissions as to the procurement of evidence all con- 
tributed — quite legitimately as I think — to my reluctance to resolve 
doubtful points against the President of the United States. The now 
self -revealed concealment of the facts on the President’s part from all 
concerned, including not only the Committee but even his own Counsel, 
make such doubts easier to resolve. 

This case is an American tragedy, in which a fatal decision to con- 
ceal the facts, made early in the game and — so far as I can see — with- 
out any prior implication on the part of the President, led inexorably 
to one shift and stratagem after another, and finally to the shattering 
events of the recent past. 



510 


Other matters in the voluminous record, which are referred to and 
relied upon by the majority, show, in some cases, shoddy practices in- 
consistent with the better spirit of America, but fail, in my judgment, 
to establish by any clear and convincing proof the existence of an im- 
peachable offense. 

It is the Watergate cover-up which gave birth to this inquiry — and 
it is that and that alone which has finally been susceptible of proof. 

This is proof not as to all of the alleged details, nor need we, nor do 
we, accept each adverse inference so glibly drawn by the majority. 
Over-all, adequate legal proof is now available to establish the offense, 
and on the record we can say of the evidence, in the words of Mercutio, 
“No, ’tis not so deep as a well, nor so wide as a church-door; but ’tis 
enough, ’twill serve . . 

So be it. 

We must follow the facts, and we must vindicate the law. But we 
must do this without vindictiveness ; and w 7 e ought not further pursue 
or harass a man who, wliatever his mistakes or his faults, has neverthe- 
less served his country and all of humanity well, as probably the fore- 
most international statesman and the most able architect of world 
order w 7 ho has occupied the Presidency during our time. 

David W. Dennis. 



ADDITIONAL AND SEPARATE VIEWS OF MR, MAYNE 

I join in the minority views of my colleagues insofar as Articles I 
and III are concerned. I do not join the minority views as to Article 
II because I believe the admissions made by the President on August 5, 
1974, when added to the evidence previously submitted to the Com- 
mittee, make a case for impeachment under Paragraphs 1, 4 and 5 of 
that Article. 

Article I 

I support the result reached by my colleagues in the minority views 
discussion of Article I but wish to add the following additional views : 

I voted against Article I on July 27, 1974, after carefully consider- 
ing such evidence as was available to the Committee at that time. It 
was my conscientious best judgment that no direct evidence had been 
presented to prove the President was personally involved in the Water- 
gate cover-up or any obstruction of justice in connection with it. I was 
particularly impressed by the testimony of witnesses who appeared to 
testify before our Committee in person on this subject. Some stated 
their strong conviction that the President was in no way inv^^ed in 
the cover-up. Others expressed a conijdete lack of any inf nation 
connecting him to it although they were in a position to know if he 
had been implicated. Only John Dean indicated an impression that 
the President had any knowledge of the cover-up prior to March 21, 
1973. 1 did not feel his testimony and the inferences drawn from purely 
circumstantial evidence constituted the clear and convincing proof 
necessary to link the President personally to a high crime or misde- 
meanor sufficient to impeach under constitutional standards. 

The state of the evidence changed completely on August 5, 1974, 
when the President made his statement admitting he knew at least as 
early as June 23, 1972, that the break-in was directed by employees of 
his re-election committee for political purposes. He not only withheld 
this important relevant information from the American people and 
the investigating authorities but obstructed the investigation by having 
his subordinates tell the FBI it should stop the investigation because 
it was exposing important undercover operations of the CIA. 

The President also admitted on August 5 that he had continued 
to conceal these important facts and to deceive and mislead the Amer- 
ican people and our Committee right up until that date when he made 
the transcripts of three conversations with PI. R. Haldeman on June 23, 
1972, available to the public and the Committee. These transcripts 
and the presidential admissions contained in his two-page statement 
of August 5 supply the direct evidence of personal involvement of 
the President in the cover-up which had previously been lacking. 
They furnish clear and convincing evidence that the President com- 
mitted an obstruction of justice sufficient to constitute grounds for 

(511) 



512 


impeachment under the Constitution. I would, therefore, vote in the 
full House to impeach on Article I. 

Article II 

I file views separate from those of my minority colleagues for the 
following reasons : 

1. I would vote in the House to impeach under Article II because 
I believe a case for impeachment has now been made under Para- 
graphs 1, 4 and 5 of that Article. 

2. The minority views do not give sufficient treatment to the evi- 
dence in support of the grave allegations of Paragraph 1, Article II 
that the President tried to obtain income tax audits or other income 
tax investigations to be initiated or conducted in a discriminatory 
manner, i.e. to harass political opponents. During the debate I voted 
against an amendment to this Paragraph offered by the gentleman 
from California Mr. Wiggins which in my opinion would have seri- 
ously diluted the President’s responsibility to prevent the improper 
use of the Internal Revenue Service for political purposes. The 
amendment would have stricken the words “acting personally and 
through his subordinates and agents” and added the following words 
“personally and through his subordinates and agents acting mith his 
hnowldege or pursuant to his instructions ”. (italics added) page 819, 
Report of Proceedings. 

I spoke in opposition to this amendment stating that I certainly 
did “not want to do anything to dilute or limit in any way whatever 
responsibility the President may have for the very outrageous at- 
tempts to use the Internal Revenue Service for political purposes.” I 
further stated “I consider the evidence shows that the approaches 
that were made by Mr. Dean and Mr. Ehrlichman to Commissioner 
Randolph Thrower and Commissioner Johnnie Walters to be abso- 
lutely indefensible. Our tax collection system in this country is based 
on a voluntary contribution assessed and paid by people on a volun- 
tary basis and it will certainly be destroyed if people can not have 
confidence that it is not being used to reward political friends and to 
harass political opponents. 

“I think that not only does the President have a responsibility 
not to directly approve such indefensible action but he has a respon- 
sibility not to ratify it after it has occurred and has a responsibility 
over and above that to have enough idea of what is going on in his 
Administration to be very sure that this kind of political prostitution 
of the Internal Revenue Service does not occur. There is nothing in 
this record which to me is more disappointing or more cause for con- 
cern for the continuation of free government than the way in which 
the Internal Revenue Service was attempted to be used for this base 
purpose.” 

The minority views fail to give sufficient attention to the follow- 
ing significant evidence : 

(a) The affidavit of former IRS Commissioner Johnnie Walters 
that on September 11, 1972, John W. Dean gave him a list of persons 
on the 1972 Presidential campaign staff of George McGovern and of 
contributors to that campaign and requested that IRS undertake 



513 


examinations or investigations of those on the list. Mr. Walters re- 
plied this would be disastrous for the IRS and the Administration 
and he would recommend to Secretary of the Treasury Shultz that 
nothing be done on the request. On September 25, 1972, Mr. Dean 
telephoned Mr. Walters inquiring “as to what progress I had made 
with the list. I told him that no progress had been made. He asked if 
it might be possible to develop information on fifty-sixty-seventy of 
the names. I again told him, that although I would reconsider the 
matter with Secretary Shultz, any activity of this type would be 
inviting disaster.” Mr. Walters’ affidavit states that he discussed these 
requests with Secretary Shultz on September 13 and September 29 and 
on both occasions was told to do nothing with the list. At no time 
did he furnish any name from the list to anyone or request any IRS 
employee or official to take any action with respect to the list. (“State- 
ment of Information,” Book VIII, 238-240) 

(b) The conversation between the President and Haldeman on 
September 15, 1972, four days after Dean had delivered the list to 
Walters. Dean’s activities were discussed by the President and Halde- 
man in the following recorded conversation : 

Haldeman. Between times, lie’s doing, he’s moving ruthlessly on the investi- 
gation of McGovern people, Kennedy stuff, and all that too. I just don’t know how 
much progress he’s making, ’cause I — 

President. The problem is that’s kind of hard to find. 

Haldeman. Chuck, Chuck has gone through, you know, has worked on the 
list, and Dean’s working the, the thing through IRS and, uh, in some cases, 
I think, some other (unintelligible) things. (HJCT 1) 

(c) The following testimony by Dean describing his taking the 
list of McGovern contributors drawn by Murray Chotiner to Walters 
and discussing it subsequently with the President : 

Mr. Doar. What was the purpose of that meeting? 

Mr, Dean. I had then received the Chotiner list, and my assignment was to 
ask Mr. Walters if it was possible to have audits conducted on all or any 
of these people. 

Mr. Doar. Did you discuss your assignment with respect to the IRS with the 
President during your meeting on September 15? 

Mr. Dean. I am not sure how directly or specifically it came up, but there 
was a, indeed, a rather extended discussion with the President on the use of 
IRS. He made some rather specific comments to me, which in turn resulted in 
me going back to Mr. Walters again. 

Mr. Doar. When you say the use of IRS, what are you talking about? 

Mr. Dean. Well, as I recall the conversation, we were talking about the prob- 
lems of having IRS conduct audits, and I told him that we hadn’t been very suc- 
cessful at this because Mr. Walters had told me that he just didn’t want to do 
it. I did — I did not push him. As far as I was concerned I was off the hook. I had 
done what I had been asked, and I related this to the President. 

And he said something to the effect, well, if Shultz thinks he’s been put over 
there to be some sort of (expletive), he is mistaken, and if you have got any 
problems, you just come tell me, and I will get it straightened out. (HJCT 229) 

Mr. St. Clair. Well, on September 15, 1972, you did meet with the President? 

Mr. Dean. Yes, I did. 

Mr. St. Clair. And you say that during the course of that conversation, among 
other things, you discussed a list being prepared for submission to the IRS? 

Mr. Dean. I am not sure we got into the so-called list of 500 at that time. It 
may well have come up. I recall general discussions by IRS and the fact that the 
President — telling the President that I had been less than successful in dealing 
with IRS and the President became quite annoyed at it. And then that he got 
very explicit about his thinking about IRS being responsive to the White House. 
(Dean testimony, 2 HJC 285) 



514 


The above affidavit and testimony clearly established that Dean and 
Haldeman were guilty of trying to use the IRS for illegal purposes 
and gave rise to strong inferences that the President was personally 
involved. In weighing whether a sufficient case had been made against 
the President under Araticle II, I had to consider the fact that 
Paragraph 1 alleging abuse of the Internal Revenue Service had 
unfortunately been lumped together with 4 other Paragraphs, which 
had little if any connection with each other and were supported by less 
proof than Paragraph 1. Pargraph 3 relative to a special investigative 
unit set up in the White House to identify and plug national security 
leaks struck me as especially weak. I could not accept the argument 
based on inferences alone that a President who had been advised by his 
closest foreign policy and national defense advisers that it was neces- 
sary to take decisive action to stop leaks which were threatening the 
security of the United States, could be subject to impeachment for 
taking such action, even though he did not implement it in the best 
way and it would have been much wiser to rely on the FBI which is the 
established agency responsible for National Security investigations. 
My argument in opposition to Paragraph 3 appears at pages 1016- 
1018 of the Report of Proceedings. 

Faced with the choice of voting for a 5 paragraph Article in which 
there did not seem to me to be clear and convincing evidence sufficient 
to impeach on 4 of the 5 Paragraphs. I voted against Article II on 
July 29. 

Thereafter the President’s admissions of August 5 made available 
direct evidence sufficient to make a case for impeachment on Para- 
graphs 4 and 5. It is now clear that he did indeed fail to take care that 
the laws were faithfully executed and failed to exercise his authority 
to adequately supervise his close subordinates when he should have 
done so to prevent their obstructing and interfering with investiga- 
tions into criminal or improper actions as stated in Paragraph 4. 

When the presidential admissions of August 5, 1974, are viewed 
against the background of the evidence already considered by the 
Committee with reference to Paragraph 5, I must conclude that the 
President did in fact misuse his executive power in the manner in 
which he interfered with the Federal Bureau of Investigation, the 
Criminal Division of the Department of Justice and the Central In- 
telligence Agency. 

His admissions of August 5 also further strengthen the evidence 
that he violated the constitutional rights of citizens as alleged in Para- 
graph 1 relating to abuse of the Internal Revenue Service. 

Three of the 5 Paragraphs of Article II having now been proved 
by clear and convincing evidence I would vote to impeach on this 
Article in the full House. 

Article III 

I join in and support the minority views of my colleagues on Ar- 
ticle III. No case for impeachment has been made on this Article. 

Wiley Mayne. 



ADDITIONAL VIEWS OF MR. COHEN ON ARTICLE III 

It is the opinion of this member that neither the President of the 
United States nor any other official of the United States can lawfully 
refuse to comply with subpoenas issued by the House Judiciary Com- 
mittee relevant to issues raised in the course of an impeachment in- 
vestigation. As the United States Supreme Court held in 1882, “All 
officers of the Government, from the highest to the lowest, are crea- 
tures of the law and are bound to obey it; no officer of the law may set 
that law at defiance with impunity.” 

In the case of subpoenas issued by this Committee in the course of 
its impeachment investigation, the powers of the Committee under 
the law are clear. The Constitution gives to the House of Representa- 
tives the sole power of impeachment. Acting under this provision, 
the House of Representatives, on February 6, 1974, adopted H. Res. 
803. This resolution directed the House Judiciary Committee to con- 
sider the possible impeachment of Richard M. Nixon, President of the 
United States, and conferred subpoena power upon this Committee for 
purposes of its impeachment inquiry. 

Acting under that power, the Committee subsequently voted more 
than 40 separate subpoenas for tapes, documents, and other materials 
relevant to its investigation. The President failed to comply with those 
subpoenas. 

In his refusal to comply, the President repeatedly asserted that he 
was carrying out a Constitutional responsibility to uphold the separa- 
tion^ powers among the branches of government by protecting the 
confidentiality of communications within the executive branch. It has 
been suggested that the protection of confidential communications, 
which appears to have been used synonymously with executive priv- 
ilege, may, as a doctrine, have taken on mythical proportions. (See 
Berger, Executive Privilege : A Constitutional Myth). But, while not 
necessarily rising to the level of a Constitutionally conceived and pro- 
tected doctrine, executive privilege nonetheless serves a valuable pur- 
pose in protecting the confidentiality of the decision-making process in 
the executive branch. Indeed, the Supreme Court recently acknowl- 
edged importance of this privilege in its decision, The United States v. 
Nixon, (House Judiciary Committee “Statement of Information,” Ap- 
pendix II). Although holding that a Presidential claim of privilege 
did not, ixnder the specific circumstances of that case, prevail over 
the Special Prosecutor’s need for subpoenaed materials for criminal 
trials, the Court recognized “the valid need for protection of com- 
munications between high government officials and those who ad- 
vise and assist them.” Noting that “Human experience teaches that 
those v-ho expect public dissemination of their remarks will temper 
candor with a concern for appearances ... to the detriment of the 
decision-making process,” the Court further asserted that “the im- 
portance of this confidentiality is too plain to require further 
discussion.” 

( 515 ) 


37-777 0 - 74 - 33 



516 


In voting to issue subpoenas to the President, this Committee made 
no concession to the doctrine of executive privilege. It asserted the 
absolute right to subpoena whatever materials it deemed relevant to 
its inquiry. In short, the Committee’s subpoenas, coupled with the 
President’s refusal to comply, presented a constitutional confronta- 
tion : the President’s judicially recognized interest in maintaining the 
confidentiality of private tapes, papers, and documents, stood in direct 
conflict with the Constitutional power of the Congress to compel the 
production of evidence for an impeachment proceeding. 

Several courses of action were available to the Committee to resolve 
the confrontation. It could have sought a judicial review and deter- 
mination of the scope and power of the Committee’s process, or sought 
a citation of contempt before the full House of Representatives. In 
addition, in reaching a final decision on articles of impeachment the 
Committee could have drawn negative or adverse inferences from the 
President’s refusal to comply with its subpoenas. 

While I am not satisfied that it is essential or desirable to have the 
judicial branch pass final judgment on the merits of the respective 
positions of the President and the Committee, I believe the Supreme 
Court would have reached a result similar to that in United States v. 
Nixon , supra — namely, that the need of the Congress for subpoenaed 
materials for an impeachment inquiry would have prevailed over the 
President’s claim of privilege. 

Although I do not believe it was essential to seek a judicial resolution 
of the Judiciary Committee’s powers, I do not suggest the Committee 
should be the final arbiter in disputes arising from the issuance of sub- 
poenas. Under accepted Congressional procedure, when a witness be- 
fore a Congressional Committee refuses to give testimony or produce 
documents, the Committee itself cannot hold the witness in contempt. 
Rather, the established procedure is for the witness to be given an 
opportunity to appeal before the full House or Senate, as the case may 
be, and give reasons, if he can, why he should not be held in contempt. 
For example, he might argue that his refusal was justified, or ex- 
cusable, or based on some mistake. The Supreme Court has held that 
this kind of notice and opportunity for hearing are constitutionally 
required, under the Fifth and Fourteenth Amendments, before a 
legislative body may punish a person for contempt of its prerogatives. 
(Minority Views of Honorable Edward Hutchinson, et. al., “Article 
III : President’s Response to Committee Subpoenas.”) 

Before Presidential refusal to comply with Committee subpoenas 
can be raised to the level of an impeachable offense, the Committee, at 
a minimum, should wait, until the House of Representatives lias found 
the non-compliance to be willful, contemptuous, and illegitimate. Since 
the Committee did not pursue this course of action, it should not now 
seek to raise non-compliance to the level of a separate and independent 
impeachable act. 

While the President’s stated reasons for his refusal to comply with 
our Committee’s subpoenas may have had a colorable claim or basis, 
the evidence before the Committee (even before the release of the June 
23, 1972, transcript) was more than sufficient to find that the claim of 
executive privilege was illegitimately and improperly invoked, not to 
protect the Office of the President, but to protect a particular President 



517 


from the disclosure of his personal participation in the obstruction of 
justice. Accordingly, the President’s non-compliance with the sub- 
poenas formed an integral part of Article I (and possibly Article II) 
and rests more soundly and solidly within that factual framework. 

Concern for setting a precedent for history’s review or need must 
take into account the need not to arrive at an unnecessary, and in my 
opinion, unwise conclusion, such as that set forth as Article III. Hope- 
fully, the sword of impeachment will never have to be withdrawn from 
its scabbard again. But should events summon forth so drastic a consti- 
tutional weapon in future years, let the sword be wielded by the guard- 
ians of our Constitutional system with a sharp but not overhoned edge. 

William S. Cohen. 




ADDITIONAL VIEWS OF MR. FROEHLICH IN OPPOSITION 

TO ARTICLE III 

Article III charges that Richard M. Nixon “failed without lawful 
cause or excuse to produce papers and things as directed by duly 
authorized subpoenas issued by the Committee on the J udiciary of the 
House of Representatives on April 11, 1974, May 15, 1974, May 30, 
1974, and June 24, 1974, and willfully disobeyed such subpoenas.” On 
July 30, 1974, the Committee voted to send this third article of 
impeachment to the full House for consideration. The vote was 21 to 
17. Because I believe this article represents a wholly inadequate and 
improper basis upon which to impeach, try, and remove a President 
from office, I opposed the article in committee and now T respectfully 
urge its rejection. 

The Constitution of the United States, in Article I, Section 2, 
Clause 5, provides that “The House of Representatives . . . shall 
have the sole Power of Impeachment.” This clause contains a clear, 
exclusive grant of power. Inherent in this grant of power is the 
authority to conduct a comprehensive inquiry into alleged grounds 
for impeachment and to employ all reasonable means, including sub- 
poenas, to secure evidence for that inquiry. 

There is no question that the House of Representatives is empowered 
to confer upon its “impeachment committee” an expansive subpoena 
power; and there is no question that the House properly conferred 
that power in this matter by approving House Resolution 803, on 
February 6, 1974. 

It does not follow, however, that the Committee’s power to secure 
evidence is unlimited. The impeachment power of the House, like every 
other power possessed by Congress, must be read together with at 
least some of the other provisions in the Constitution. If this were 
not the case, the Impeachment Committee could degenerate into a 
lawless inquisition, a kangaroo court, wholly at odds with our legal 
traditions. 

Surely, the clause in the Constitution that gives the House of Repre- 
sentatives “the sole Power of Impeachment” does not imply that any 
procedure is acceptable in an impeachment inquiry. 1 Suppose, for 
instance, that in this inquiry the Committee had insisted that H. R. 
Hal deman appear to testif y, despite his forewarning that he would 
assert his Fifth Amendment privilege against self -incrimination. Sup- 
pose, further, that if Mr. Haldeman failed to testify without a grant of 


1 The principal thrust of the clause is to confine the power of impeachment to the House 
of Representatives. What this plainly means is that no other institution of government has 
the power to impeach : not the Senate, not the Judiciary, and not the President. For 
example, non-compliance with a Senate subpoena is not grounds for impeachment in the 
Senate, even if the subpoena is fully litigated and approved by the courts, unless the 
House of Representatives first cites such non-compliance in an article of impeachment. 

( 519 ) 



520 


immunity, he was confined to a room in the basement of the Rayburn 
Building and held there incommunicado without adequate sleep or 
nourishment in an effort to coerce his testimony. Is there any doubt 
that the House’s “sole Power of Impeachment” does not carry with 
it the right to employ these kinds of improper tactics to secure evi- 
dence ? Is there any doubt that a court could have intervened to protect 
Mr. Haldeman’s constitutional rights, even in an impeachment 
inquiry? 

It should be self-evident then that there are limitations upon the 
power of the House of Representatives, and its Impeachment Com- 
mittee to secure evidence ; and hence it becomes highly important to 
consider what those limitations are and how they are determined. 

B 

The Committee on the Judiciary issued a total of eight subpoenas to 
the President. Although the President supplied partial transcripts of 
many of the items requested in the first subpoena, lie clearly failed to 
comply with the Committee’s demands. But that is not the real issue. 
The real issue is whether the President failed to comply with the sub- 
poenas “ without lawful cause or excuse\ as charged in the Article. 
This issue was never litigated, and it was never settled, unless one as- 
sumes that the Committee has unlimited,, unrevieioable authority to 
demand and receive evidence from a witness in an impeachment 
inquiry. 

Some Members asserted at the outset of these proceedings that the 
House did possess unlimited subpoena power. Against this background, 
President Nixon had a rational reason for resisting the Committee’s 
demands. Almost any president would have resisted subpoenas issued 
under such sweeping claims of authority. To have complied fully with 
all eight subpoenas, without testing the subpoenas in relation to the 
Committee’s constitutional authority, would have been to abandon 
privileges, and establish precedents that could radically alter the bal- 
ance of power between the Executive and Legislative branches of 
government. 

The argument is made that if President Nixon honestly believed 
that the Committee’s subpoenas improperly encroached upon the prov- 
ince of the Executive, he would have moved to quash the subpoenas 
in court. To do that, however, the President would have had to argue 
that the courts possessed the jurisdiction to intervene in this dispute 
and to rule on his claim of executive privilege — a position that would 
have seriously undermined his legal posture in the then pending case 
of United States v. Nixon , U.S. (1974) . It is entirely possible that had 
the circumstances been somewhat different, President Nixon would 
have gone to court in an effort to quash the subpoenas, for there appear 
to be a number of arguable bases upon which the subpoenas might 
successfully have been resisted. 

Several Members of the Committee urged the Committee to seek 
court approval of the subpoenas. But this suggestion was rejected on 
May 30, 1974, by a vote of 32 to 6. At that same meeting, the Com- 
mittee directed the Chairman to write the President, advising him that 
“it is not within the power of the President to conduct an inquiry into 



521 


his own impeachment, to determine which evidence, and what version 
or portion of that evidence, is relevant and necessary to such an in- 
quiry. These are matters which, under the Constitution, the House has 
the sole power to determine.” 

What this means is that the Committee claims the sole power to de- 
termine what evidence is relevant and what evidence is necessary in 
an impeachment inquiry. It asserts that the courts have no jurisdiction 
to review a Committee determination in this regard. Any objections 
raised by a witness to the scope or content of a subpoena duces tecum 
will be recognized, if at all, in the sole discretion of the Committee. 2 
The witness has no option to enforce any of his normal “rights” be- 
fore a neutral court. The potential penalty for non-compliance with 
the Committee’s demand for evidence is impeachment, and non-com- 
pliance with a Committee subpoena, hy itself , is sufficient grounds for 
impeaching the President and removing him from office. 

This is the real meaning of Article III, and this is why Article III 
is not only an improper basis for impeachment but also a dangerous 
precedent for our constitutional system. If the Committee had sought 
to enforce its subpoenas before a neutral arbiter and given the Presi- 
dent the opportunity to litigate his objections to the Committee’s de- 
mands, I would have no difficulty in supporting an article of impeach- 
ment based on non-compliance. But that did not happen. In these pro- 
ceedings, the Committee rejected court review of its legal process. It 
refused to seek court enforcement, and it even declined to subpoena 
the exact same material from Judge John Sirica that it had previously 
subpoenaed from the President. 3 Under these circumstances, it would 
be a travesty of justice to impeach President Nixon on the basis of the 
third article voted by the Committee. 

C 

There appear to be a number of arguable bases upon which the Com- 
mittee’s eight subpoenas to the President might have been quashed or 
limited, had they been litigated in a court. A review of these bases is 
relevant to the question whether President Nixon failed to comply 
with the subpoenas “without lawful cause or excuse,” and it is relevant 
in considering whether Article III, as it was developed, represents a 
legitimate and proper basis upon which to impeach, try, and remove a 
President of the United States. 

1. Executive Privilege . — In United States v. Nixon — U.S. — (1974), 
the Supreme Court ruled on the nature of executive privilege, saying: 
“If a President concludes that compliance with a subpoena would be 


2 Compare Turney v. OMo, 273 U.S. 510 (1927). In this case a defendant accused of 
violating the Prohibition Act was tried and sentenced by a judge who benefited financially 
from Ms conviction. The Court, sneaking through Chief Justice Taft, declared: **. . . T I] t 
certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal 
case of due process, to subject his liberty or property to the judgment of a court the judge 
of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion 
against him in his case.” 273 U.S. at 523. The parallel in this situation is obvious. The 
Committee members would have a direct, personal, substantial, political interest in 
reaching conclusions adverse to the objectives raised by the subpoenaed party. It is hard 
to conceive a more clear-cut. obvious conflict of interest. 

3 On June 24, 1974, the Committee tabled my motion to subpoena from United States 
District Judge John J. Sirica the exact same taoe recording of a September 15, 1972, 
conversation between President Nixon, H. R. Haldeman. and John W. Dean that hours 
earlier It had subpoenaed from the President. The vote to table was 23 to 15. In response 
to questions, both John Doar and Albert Jenner agreed that the tape recording In question 
was “necessary and relevant” to the Committee’s inquiry. 



522 


injurious to the public interest lie may properly . . . invoke a claim of 
privilege on the return of the subpoena. Upon receiving a claim of 
privilege from the Chief Executive, it became the further duty of the 
District Court to treat the subpoenaed material as presumptively privi- 
leged and to require the Special Prosecutor to demonstrate that the 
presidential material was ‘essential to the justice of the [pending crimi- 
nal] case.’.. . . Here . . . the Special Prosecutor . . . made a sufficient 
showing to rebut the presumption and [the Court] ordered an in 
camera examination of the subpoenaed material.' 7 

In the court’s in camera review of subpoenaed presidential materials : 
“Statements that meet the test of admissibility and relevance 
must be isolated ; all other material must be excised.” 

. (T)he District Court has a very heavy responsibility to 
see to it that presidential conversations, which are either not rele- 
vant or not admissible, are accorded that high degree to respect 
due to the President of the United States.” 

“It is . . . necessary in the public interest to afford presidential 
confidentiality the greatest protection consistent with the fair 
administration of justice.” 

The Court’s assessment of the claim of executive privilege is sub- 
stantially different from the Committee's assessment. One Member of 
the Committee even declared: “I will state that I do not think we are 
compelled to set forth . . . reasons” for the evidence we subpoena. 
Clearly, the question whether executive privilege has any place in an 
impeachment inquiry is a substantial question, and it should not be 
decided arbitrarily by either of the two contending branches of 
government. 

2. Fifth Amendment Right Against Self -Incrimination. — In United 
States v. Onassis , 125 P. Supp. 190 (D.C. 1954), the court, citing the 
Fifth Amendment, said that a person has cause to refuse the production 
of his personal papers whenever he thinks that the production might 
reasonably tend to incriminate him. “The sole question is whether the 
subpoenaed documents were Augenthaler’s personal records. If so, then 
compulsory production certainly offended his constitutional rights. 
As was said in Boyd v. United States , 1886, 116 U.S. 616, 683, . . . 
it is impossible Ho perceive that, the seizure of a man’s private books 
and papers to be used in evidence against him is substantially different 
from compelling him to be a witness against himself.’ ” 125 F. Supp. 
at 206. If this is a correct statement of law, a court might well have 
suppressed incriminating tape recordings of the President’s private 
conversations as well as his personal memoranda of his thoughts and 
actions. 

3. Unreasonable Search and Seizure . — “The Constitution requires 
that the forced production of documents by subpoena be not unreason- 
able.” Application of Harry Alexander , 8 F.K.D. 559, 560 (S.D.N.Y. 
1949). Whether a particular subpoena duces tecum is “reasonable” is 
clearly a legal question that ought to be decided in each instance on the 
basis of the facts arising from the subpoena itself. 

1}. A ttorney -Client Privilege . — In Colton v. United States , 306 F.2d 
633, 637 (2d Cir. 1962), the court noted that the policy underlying the 
attorney-client privilege does not justify “any member of the bar 
from refusing to testify as to all transactions he may have had with 



523 


any person whom he chooses to designate a ‘client.’ ” But , “It is self- 
evident that individual documents and files may still be withheld 
insofar as they thus are or report confidential communications between 
Colton and his clients . . 306 F.2d at 639. That the President’s pri- 

vate conversations with the White House Counsel were at least partly 
covered by the attorney-client privilege is not so outlandish a proposi- 
tion that it can be dismissed out of hand. 

5. Competent , Relevant , Material Evidence . — “Generally speaking, 
a subpoena duces tecum may be used to compel the production of any 
proper documentary evidence, such as books, papers, documents, ac- 
counts, and the like, which is desired for the proof of an alleged fact 
relevant to the issue before the Court or office issuing the subpoena, 
provided that the evidence which it is thus sought to he obtained is 
competent , relevant , and material .” 97 C.J.S. § 25 Witnesses, at 381- 
382 (1957) (Emphasis supplied). Items demanded do not become 
competent, relevant, and material merely because they are included in 
a committee subpoena. If there is no test of the worthiness and rele- 
vance of the materials subpoenaed, then the subpoena power may be 
used to conduct a “fishing expedition” that could seriously breach 
the independence of the Executive Branch. 

6. Discovery. — “A subpoena duces tecum may not be used for the 
purpose of discovery, either to ascertain the existence of documentary 
evidence, or to pry into the case of the prosecution.” United States v. 
Carter , 15 F.R.D. 367, 369 (D.C. 1954). It can certainly be argued 
that some of the items demanded in the Committee’s eight subpoenas 
were included therein principally as a means of discovering other 
evidence. 

In view of the strength and number of arguments the President 
might have raised to quash or limit the Committee’s subpoenas, it is 
not surprising that the Committee avoided court review. However, 
inasmuch as court review was not only avoided but also specifically 
rejected, it is unseemly for the Committee to insist that the President’s 
non-compliance was “without lawful cause or excuse.” 

D 

An impeachment inquiry — the Grand Inquest of the Nation — is 
an extraordinary political process. Though quasi- judicial in nature, 
impeachment is inevitably a political undertaking in which the leading 
actors are political figures. As a consequence, it is vitally important 
that impeachment proceedings be fair, both in fact and in appearance, 
so that they merit the confidence of the American people. 

The impeachment of a President of the United States on the 
grounds stated in Article III is fundamentally unfair in fact and 
highly political in appearance. To impeach a President and thereby 
attempt to overturn the mandate of the American people on grounds 
as suspect and insubstantial as these, would, in any circumstances, 
engender distrust and jeopardize the legitimacy of the entire impeach- 
ment proceedings. 

The House must assure the integrity of its impeachment process. 
But this does not mean that the House must uphold the Committee’s 
action on Article III in order to preserve its constitutional preroga- 



524 


tives. The House always had and always will have the option of 
seeking enforcement of its subpoenas in court. Subpoenas from a House 
Committee in an impeachment inquiry are entitled to great respect, 
and we can safely assume that the courts would require the production 
of at least as much evidence as could be obtained by a party in a court 
proceeding. 

For all these reasons, Article III should not be approved as grounds 
for impeaching the President of the United States. 

Harold V. F roe h licit. 



ADDITIONAL SUPPLEMENTAL VIEWS OF ME. LATTA 

Article I charges Richard Nixon with obstruction of justice in con- 
nection with the Watergate affair. Obstruction of justice is a federal 
crime under Title 18 of the United States Code, Sections 1503 and 1510, 
punishable by a fine of not more than $5,000 or imprisonment for not 
more than five years, or both. On the sixth day of March, 1974, then 
President Nixon, in answer to a question at a news conference as to 
whether or not he considered an obstruction of justice to be an impeach- 
able offense, replied, “the crime of obstruction of justice is a serious 
crime and wou ld be an impeachable offense.” 1 

Paragraph 4 of Article I charges Richard Nixon with “interfering 
or endeavoring to interfere with the conduct of investigations by the 
Department of Justice of the United States, the Federal Bureau of 
Investigation, the Office of Watergate Special Prosecution Force, and 
Congressional Committees.” 

Paragraph 6 of Article I charges Richard Nixon with “endeavoring 
to misuse the Central Intelligence Agency, an agency of the United 
States.” 

On August 5, 1974, then President Nixon admitted that he had given 
certain incomplete and erroneous information to his staff, his attorney, 
and to the House Judiciary Committee and, thereupon, released tran- 
scripts showing that he in fact had used the Central Intelligence Agen- 
cy to thwart the investigation by the Federal Bureau of Investigation 
of the Watergate break-in as early as six days after it had occurred, to 
wit, on June 23, 1972. By so doing, the then President was in effect 
admitting to the charges of obstruction of justice as contained in Para- 
graphs 4 and 6 of Article I. This admission coupled with Mr. Nixon’s 
own statement of March 6, 1974, that an obstruction of justice would 
be an impeachable offense would have been sufficient evidence to cause 
me to vote affirmatively on these two Paragraphs. However, at the time 
the vote was taken in the Judiciary Committee in this matter, this 
evidence of direct presidential involvement had not been revealed and 
was not before us. 

Delbert L. Latta. 


1 “Presidential Statements,” 71, 73. 


( 525 ) 



ABBREVIATIONS 

CIA Central Intelligence Agency 

CRP 3/71-9/71 Citizens for the Re-election of the President 

9/71-1973 Committee for the Re-election of the President 
DNC Democratic National Committee 

FBI Federal Bureau of Investigation 

FCRP 10/71-2/72 Finance Committee for the Re-election of President Nixon 
2/72-4/72 Finance Committee for the Re-election of the President 
4/72-present Finance Committee to Re-elect the President 
GAO General Accounting Office 

GSA General Services Administration 

ICC International Controls Corporation 

IRS Internal Revenue Service 

ITT International Telephone and Telegraph Corporation 

OMB Office of Management and Budget 

OMBB Office of Minority Business Enterprise (Department of Commerce) 
RNC Republican National Committee 

SEC Securities and Exchange Commission 

SSC Senate Select Committee on Presidential Campaign Activities 

(526) 



CITATIONS 


Form 

1. Book I, 34-35 

Book I 

Book II 

Book III„__ 

Book IV 

Book V 

Book VI___ 

Book VII__ 

Book VIII_ 
Book IX 

Book X„_. 

Book XI___ 
Book XIK. 


2. WHT 586. 


3. HJCT 85. 


4. Butterfield testimony, 1 HJC 

9 - 10 . 

5. Political Matters Memorandum, 

12/6/71, 51. 


6. HJC, Background — White 
House/CRP, 6. 


7. “Presidential Statements,” 8/ 

15/73, 24-25. 

8. President’s Submission, Book I, 

14-16. 

Book I 


Source 

House Judiciary Committee, “Statement of 
Information,” Books I-XII. 

Events Prior to the Watergate Break-In 
December 2, 1971-June 17, 1972 
Events Following the Watergate Break-In 
June 17, 1972-February 9, 1973 
Events Following the Watergate Break-In 
June 20, 1972-March 22, 1973 
Events Following the Watergate Break-In 
March 22, 1973-April 30, 1973 
Department of Justice/ITT Litigation- 
Richard Kleindienst Nomination Hear- 
ings 

Political Contributions by Milk Producers 
Cooperatives : The 1971 Milk Price Sup- 
port Decision 

White House Surveillance Activities and 
.Campaign Activities 
Internal Revenue Service 
Watergate Special Prosecutors Judiciary 
Committee’s Impeachment Inquiry April 
30, 1973-July 1, 1974 

Tax Deduction for Gift of Papers (includes 
materials submitted on behalf of Presi- 
dent Nixon) 

Bombing of Cambodia 

Impoundment of Funds ; Government Ex- 
penditures on President Nixon’s Private 
Properties at San Clemente and Key 
Biscayne 

“Submission of Recorded Presidential Con- 
versations to the Committee on the Judi- 
ciary of the House of Representatives by 
President Richard Nixon, April 30, 1974.” 
House Judiciary Committee, “Transcripts 
of Eight Recorded Presidential Conver- 
sations.” 

House Judiciary Committee, “Testimony of 
Witnesses.” Books 1-3. 

Series of memoranda prepared by Gordon 
Strachan for H. R. Haldeman in 1971 and 
1972 and submitted to the House Judi- 
ciary Committee by President Nixon. 
House Judiciary Committee, “Background 
Memorandum : White House Staff and 
President Nixon’s Campaign Organiza- 
tions.” 

House Judiciary Committee, “Presidential 
Statements on the Watergate Break-In 
and Its Investigation.” 

Counsel for the President, Statement of In- 
formation Submitted on Behalf of Presi- 
dent Nixon, Books I-IV. 

Events Following the Watergate Break-in 
June 19, 1972-March 1, 1974 


( 527 ) 



528 


Book II_ 
Book III 


Book IV 

9. Haldeman testimony, 7 SSC 
2871. 

10. Gray logs, 6/21/72 


11. Meetings and Conversations be- 

tween tlie President and 
John Ehrlichman, 4/18/73. 

12. Report of conversation between 

CIA Inspector General and 
Robert Cushman, 6/29/73. 

13. Ehrlichman notes 


14. Joint Committee Report, 94- _ 


15. WHT, June 23, 1972, 10:04- 
11 :39 a. m., 19-30 


16. “Criminal Cases,” 17. 


17. Kehrli affidavit, 3. 


18. Roger Barth testimony, SSC 
Executive Session, June 6, 
1974, 3-6 


19. May 1974 Tape Report 


20. Stanford Research Institute 
(SRI) Report. 


21. HJC Debates, July 27, 1974, 

TR. 288. 

22. Memorandum from Director, 

FBI, to Attorney General, 
June 24, 1974. 


Department of Justice — ITT Litigation 

Political Contributions by Milk Producers 
Cooperatives: The 1971 Milk Price Sup- 
port Decision 

White House Surveillance Activities 

Senate Select Committee on Presidential 
Campaign Activities, Hearings. Books 1- 
15. 

L. Patrick Gray, Appointment Logs, re- 
ceived by the House Judiciary Committee 
from the Senate Select Committee on 
Presidential Campaign Activities. 

Document submitted to the House Judiciary 
Committee by President Nixon. 

Document received by the House Judiciary 
Committee from the CIA. 

John Ehrlichman handwritten notes of 
meetings with the President, received by 
the House Judiciary Committee from the 
Watergate Special Prosecution Force. 

Joint. Committee on Internal Revenue Tax- 
ation, “Staff Report — Examination of 
President Nixon’s Tax Returns for 1969 
through 1972.” 

Edited transcripts of three recorded Presi- 
dential conversations submitted to the 
House Judiciary Committee by President 
Nixon on August 5, 1974. 

House Judiciary Committee, “Papers in 
Criminal Cases Initiated by the Water- 
gate Special Prosecution Force — June 27, 
1973-August 2, 1974.” 

Bruce Kehrli, Affidavit submitted to the 
House Judiciary Committee, July 25, 
1974. 

Senate Select Committee on Presidential 
Campaign Activities, Executive Session 
testimony, received by the House Judici- 
ary Committee from the Senate Select 
Committee. 

“The EOB Tape of June 20, 1972 : Report on 
a Technical Investigation Conducted for 
the U.S. District Court for the District of 
Columbia by the Advisory Panel on White 
House Tapes, May 31, 1974.” 

“Review of a Report Submitted to the U.S. 
District Court for the District of Colum- 
bia Entitled ‘The Tape of June 20, 1974, 
May 31, 1974.’ ” 

House Judiciary Committee, Debates on 
Proposed Articles of Impeachment, July 
24—30, 1974. 

Documents received by the House Judiciary 
Committee from the FBI. 


o