Mitchell: "What Nixon Doesn't Know..."

Caught by the piercing television cameras in the Senate Caucus Room, the two John Mitchells seemed too much of a contrast to be reconcilable:

The first Mitchell was the familiar figure of old, the nation's serenely confident chief lawman and the President's top political strategist. The voice was firm, the denials of personal wrongdoing scathing ("a palpable, damnable lie"), the humor bitingly heavy (on the Watergate conspirators: "It would have been simpler to have shot them all").

The second Mitchell, harshly questioned about his judgment and his truthfulness, seemed shrunken and subdued. His words slurred, his eyes watered, his face was flushed. This Mitchell, out of power and in eventual danger of being jailed, was bitter, muttering into the microphones: "It's a great trial being conducted up here, isn't it?"

Millions of viewers might admire, however grudgingly, the bravado of the first Mitchell, and sympathize at least fleetingly with the pained posture of the second. Yet as the former Attorney General undoubtedly would agree, those sentiments do not really matter. What was of possible historical consequence was whether Americans believed the insistent protestations of both these Mitchells about the innocence of Richard Nixon in all of the many Watergate-related crimes and deceptions.

Frail Peg. Where the President was concerned, said Mitchell, his policy in effect had been "speak no evil," and the President had been quite ready to see and hear no evil. Mitchell claimed that he withheld what he knew from the President in their many conversations. Mitchell also claimed to be convinced, not by anything the President said but by what was not said in those conversations, that no one else, including John Dean, had told the President who had been involved in the Watergate planning or its cover-up until at least nine months after the arrests at Democratic national headquarters. Moreover, despite the mounting public furor over the scandal, only once did Nixon even ask his close confidant what he knew about Watergate--in a phone conversation three days after the bungled burglary on June 17, 1972. Mitchell testified that in this conversation he merely apologized to the President for "not knowing what the hell had happened, and I should have kept a stronger hand on what the people were doing" at the Committee for the Re-Election of the President, which Mitchell then headed.

That was a frail peg on which to hang the contention that Nixon did not know. Obviously, the Mitchell version runs counter to the voluminous testimony by Dean, Mitchell's onetime protege at the Justice Department and the President's fired counsel. Dean had testified that beginning on Sept. 15, 1972, he and Nixon had discussed efforts to "contain" indictments to the seven low-level arrested Watergate wiretappers, offers of Executive clemency and payments of money to keep these men quiet, an attempt to influence a federal judge to delay Democratic civil suits until after Nixon's reelection, and ways to keep information from two impending congressional investigations.

Even accepting Mitchell's testimony completely, one still has to conclude that as the nation's highest law officer or as a close aide to Nixon, Mitchell 1) condoned serious illegal acts; 2) put the re-election of one man above the law and the Constitution; 3) arrogated to himself the huge responsibility of shielding the President from vital facts.

Unwise, unethical and perhaps even illegal, Mitchell's failure to inform the President about the criminal and deceitful activities of his associates was nevertheless based on a plausible rationale. To give Nixon such knowledge, Mitchell argued, would either make the President a party to the cover-up or would cause him "to lower the boom" on all those involved and thereby expose their activities. This would lead the public to blame Nixon for the wrongdoing of his associates. It would hinder his re-election chances--and this would be "absolutely unfair and unjustified."

Yet under critical questioning, Mitchell contended that he had made no parallel effort to persuade other knowledgeable officials to withhold similar facts from the President, and he denied taking any action to keep the arrested conspirators silent. Considering Mitchell's overriding concern for Nixon's reelection, his efforts to "keep the lid on," as he put it, seemed much too limited to ensure the President's insulation. To admit broader activities, of course, could make Mitchell--who was not testifying under any grant of immunity against criminal prosecution--more susceptible to a charge of conspiracy to obstruct justice.

If Mitchell's account of his conversations with the President was correct, it raised troubling questions about Nixon's lack of inquisitiveness. The testimony led a highly skeptical committee chairman Sam J. Ervin Jr. to declare: "Well, if the cat hadn't any more curiosity than that, it would still be enjoying its nine lives--all of them." Three highly damaging interpretations of that lack of presidential curiosity seemed possible: 1) Nixon did not ask Mitchell because he too shared the Mitchell rationale that he would be better protected politically by a lack of knowledge, and thus he did not want to know; 2) he already knew from others which officials were involved, and thus he had no need to inquire; 3) he suspected Mitchell's involvement and did not want to take action directly against his good friend. Another possibility is more distasteful: Mitchell's testimony could be false, and the two may have discussed Watergate candidly all along.

Horror Story. Mitchell never wavered in his rejection of much of Dean's testimony. Later, John Ehrlichman and H.R. (Bob) Haldeman are also expected to deny Dean's claim that Nixon was part of the cover-up conspiracy. With the testimony last week of Richard A. Moore, special counsel to the President, which also conflicted in some ways with Dean's claims, Nixon's defenders are building their case--and the worst hours of testimony from the White House point of view may indeed be past. As Dean predicted, this phase of the hearings could end with his word being pitted on some points against that of as many as four other men. Thus while impeachment or the President's resignation remains unlikely, his political effectiveness depends largely on how most Americans judge the credibility of the committee's key witnesses.

Mitchell opened his 2 1/2 days of testimony forcefully. Appearing under subpoena and against his will, he presented no overall statement and fielded the initial questions of Chief Counsel Samuel Dash briskly and pointedly. As expected, Mitchell admitted sitting through three meetings, the first two as Attorney General, at which the bizarre and illegal political espionage plans of G. Gordon Liddy, then the Nixon re-election committee's chief counsel, were presented. Indignantly, Mitchell said he was "angered" and "aghast" at these plans. They were "a complete horror story" and "beyond the pale." Each time, he said, he clearly and flatly rejected the plans. He told Liddy to burn the charts outlining his initial schemes, which included the use of call girls, mugging squads and kidnaping.

But, asked Dash, as "Attorney General of the United States, why didn't you throw Mr. Liddy out of your office?" Responded Mitchell coolly: "Well, I think, Mr. Dash, in hindsight I not only should have thrown him out of the office, I should have thrown him out of the window." Persisted Dash: "Well, since you did neither [laughter], why didn't you at least recommend that Mr. Liddy be fired?" Again Mitchell agreed: "Well, in hindsight, I probably should have done that, too."

Repeatedly the Senators asked why Mitchell had not taken any action against Liddy for proposing crimes to the nation's top law officer. Asked Senator Lowell Weicker: "Didn't it occur to you to call up the President and say, 'I have got some pinwheel in my office here that is going to be the counsel in your re-election campaign, and I think I ought to warn you, you have got a lot of trouble on your hands'?" Democrat Daniel Inouye asked what differences there were between the Justice Department's prosecution of antiwar Catholics for discussing the kidnaping of Henry Kissinger and "a discussion of criminal activities in your office." Mitchell said that the Kissinger case involved overt acts rather than mere discussion.

Mitchell's testimony on the period before the June 17 arrests at the Watergate clashed head-on with the testimony of Jeb Stuart Magruder, the Nixon committee's former deputy director. Magruder had insisted that Mitchell had clearly, if reluctantly, approved the Democratic wiretapping at the third meeting at Key Biscayne on March 30, 1972. But Mitchell said his reaction at that meeting was "We don't need this. I am tired of hearing it. Out! Let's not discuss it any further." Mitchell implied that his then assistant, Frederick LaRue, the only other person present, would confirm his story. Yet LaRue, in a talk with the Ervin committee staff, quoted Mitchell as putting the matter aside, saying there was "no need to make a decision at this time."

Damnable Lie. Quizzed on why the Liddy wiretapping proposal kept reappearing--and finally was carried out--if he was adamantly opposed, Mitchell suggested that there must have been "compulsion from some other areas" on Magruder to keep pushing the Liddy project. Mitchell said he did not know who would have applied such pressure, but implied that he suspected Charles W. Colson, a former special counsel, as the most likely source. Magruder had testified that Colson had called him and asked him "to get off the stick" and get Liddy's plans approved.

Other damning testimony by Magruder was even more heatedly denied by Mitchell. Magruder had claimed that after the initial Watergate burglary on May 27 he had shown some photographed Democratic documents and intercepted telephone conversations to Mitchell, who was described as so irate over the results that the burglars made their second and fateful raid on June 17. It was this charge that Mitchell termed "a palpable, damnable lie."

As for the immediate post-Watergate period, Mitchell also contradicted Magruder's testimony that there had been a decision in Mitchell's apartment on June 19 that Magruder should burn his records on the wiretapping results, code-named Gemstone. He denied Dean's allegation that he had asked Dean to seek the approval of Ehrlichman and Haldeman in enlisting the help of Herbert Kalmbach, Nixon's personal attorney, to raise and disburse payments to the arrested wiretappers. He scoffed at Dean's charge that he and other Nixon associates talked about out-of-court approaches to a Washington federal judge to persuade him to delay hearings on the Democratic civil suits until after the 1972 election. To talk to a judge would be "the quickest way to get the opposite results," Mitchell said.

There were still more conflicts with other witnesses in Mitchell's account. He denied Dean's contention that he had told Dean that convicted Wiretapper E. Howard Hunt had been assured of Executive clemency and that the same assurance could thus be given to another restive defendant, James McCord. Also untrue, said Mitchell, was Dean's claim that Mitchell had told Ehrlichman, Haldeman and Dean at a meeting on March 22 that "Hunt's money problem had been taken care of"--a reference to Hunt's attempts to blackmail the White House. He also contradicted Magruder's report that he had told Magruder on March 27 to expect Executive clemency if Magruder were to be convicted of a Watergate crime.

Many of Mitchell's denials were not categorical, however. He sprinkled his testimony with qualifying phrases: "to the best of my recollection" or "I can't recall." Clearly a sharp and wary lawyer, he is painfully aware that he is a prime target of Special Watergate Prosecutor Archibald Cox. Yet Mitchell did make several personally damaging admissions. Most notably, he admitted listening to Magruder on several occasions explain the story he intended to give--and later did give--to the original Watergate grand jury and at the Watergate trial. Mitchell conceded that the testimony planned by Magruder, designed to limit the indictments to Liddy's level, was false. In other words, Mitchell admitted that he knew Magruder was planning to commit perjury. Mindful of the law about suborning perjury, however, Mitchell carefully explained: "Magruder did it of his own free will. Nobody coerced him to do this." Sessions that Dean had described as efforts to rehearse Magruder on his perjury were described differently by Mitchell: "Mr. Magruder would seek an audience to review his story that he was going to tell."

As Mitchell told it, he was not part of any concerted, conspiratorial effort to cover up any of the Watergate-related activities. He and other Nixon committee officials, as well as such White House aides as Ehrlichman, Haldeman, Colson and Dean, simply shared a common view: "We weren't volunteering anything. We wanted to keep the lid on."

Precisely what was it that Mitchell wanted to keep this lid on? Repeatedly, he emphasized that he did not consider the Watergate wiretapping itself all that dangerous to the President. He was far more concerned about what he oddly, almost monotonously referred to as other "White House horror stories." By that he meant the activities of the White House plumbers, notably Liddy and Hunt.

The horrors, some of which Mitchell learned about from LaRue and another Mitchell assistant, Robert Mardian (both had talked to Liddy), included:

1) The 1971 burglary of a Los Angeles psychiatrist's office in a search for personal information on Pentagon Papers Defendant Daniel Ellsberg;

2) The spiriting to Denver of ITT Lobbyist Dita Beard, whose memo had linked a lenient antitrust settlement by the Justice Department against ITT with an ITT pledge to provide funds for the Republican National Convention;

3) The faking of a State Department cable in an attempt to blame the Kennedy Administration for the 1963 assassination of South Viet Nam's President Diem;

4) Investigations into Senator Edward Kennedy's Chappaquiddick automobile accident;

5) The wiretapping of White House aides and newsmen in a search for the source of new leaks. Mitchell said there were other such horrors, but strangely, no Senator asked if he knew of any not yet publicly revealed.

It was these activities, far more than any White House involvement in Watergate, that Mitchell claimed could have jeopardized Nixon's re-election if they became publicly known. While Mitchell felt he had fairly complete knowledge of these activities, most of which were illegal, by June 22, 1972, he contended that the President did not. And if Nixon had learned about them, he would have become so angry, Mitchell argued, that he would have exposed all of these incidents.

Except for Republican Senator Edward Gurney, who again lived up to White House expectations that he would prove to be the one member of the committee who would always "protect the President," the Senators had not been as openly skeptical or critical of any other Watergate witness. "Have you ever considered whether it was fair to the members of the opposition party or fair to the American people to conspire to keep them from the true facts of this matter?" asked Inouye. Replied Mitchell calmly: "Yes, I am sure that that subject matter has crossed my mind many, many times. But I do not believe now, I did not believe then, that the President should be charged with the transgressions of others. And it is just as simple as that."

Wholly unsatisfied, Republican Senator Howard Baker bore in with emotion. "Would you tell me, Mr. Mitchell, what is your perception of the institution of the presidency?" Replied Mitchell with a smile: "Is that part of the purpose of this committee, to ascertain from me the perception of the presidency?" Insisting that this was highly relevant, Baker asked: "Is the presidency so shrouded in mystique, is there such an aura of magnificence about the presidency, is there such an awe some responsibility . . . that the presidency in some in stances must be spared the detail, must be spared the difficulty of situations which . . . might be considered, by some at least, to be frank, open declarations of criminal offense?"

Mitchell's answer was baffling: "The President cannot deal with all of the mun dane problems that go on from day to day. He had to deal with the greater problems." But then he made his point: "He should not have been involved in these matters that bore directly upon his election, and he should have been protected from the knowledge of them."

Baker: Why?

Mitchell: In the interest of his reelection.

Baker: Why is that not a presidential-grade decision? Why, of all decisions that might be made by the man, the candidate for President of the United States, why should he not be permitted to make that decision? What is it that arrogates that authority to someone else?

Mitchell: Because of the consequences that obviously flow from it . . . If he were to make the decision, there would be no alternative. He would have a choice of being involved in what you all referred to as a coverup, or he would be involved in the disclosures which would affect his reelection.

Baker (after more sparring): What is the constitutional basis for arrogating unto yourself or anyone else . . . a presidential-level decision?

Mitchell: I have not found one in the Constitution, Senator . . . I was not about to countenance anything that would stand in the way of that reelection.

Lame Answer. Chairman Ervin sharply disagreed with Mitchell's prediction of dire consequences had Nixon been told the truth and suggested that even if the President had "lowered the boom," his decisiveness would have impressed voters, and "he would have made his election more sure than ever." That was mere speculation, and in a way beside the point. The point was that Mitchell put the re-election of one man, however deserving, above the law.

What bothered some Senators was why, after Nixon was reelected, Mitchell still did not tell the President what he knew about the crimes committed on Nixon's behalf. Mitchell's lame answer was that he thought the reshuffling of personnel in the new Administration would take care of the problem.

Inouye, especially, was unimpressed. He pointed out that even after Dean told Nixon everything he knew about who might be involved in the concealment of the crimes, and the crimes themselves, no one was immediately fired. Asked Inouye: "For the record, could you tell us where the President has really lowered the boom?" Replied Mitchell: "By his appointment of a special prosecutor [and] removing the people from the White House who were involved in the activities that were covered up."

But Inouye argued that the appointment of the special prosecutor was resisted by the White House and resulted from congressional pressure. Dean was later fired, but when Haldeman and Ehrlichman resigned, said Inouye, "the President most reluctantly accepted this and said publicly that these were the two finest men he has ever known."

Inouye: Is this lowering the boom, sir?

Mitchell: No, but it shows the streak in the President of warmth and kindness that most people have not attributed to him before.

Contradictions. While the agile-minded Mitchell stuck to his basic story about the President's noninvolvement and his own reasons for keeping Nixon uninformed, his serenity dramatically and visibly ebbed whenever his veracity came under fire.

Mitchell was singed first by Democratic Senator Herman Talmadge on a subject on which Mitchell almost cockily considered himself totally prepared. The crusty Georgian mentioned a well-publicized incident from Richard Kleindienst's Senate confirmation hearings to succeed Mitchell as Attorney General in March 1972. On that occasion Mitchell had testified that he had no political duties while serving as Attorney General. This assertion seemed to be contradicted by the testimony of many witnesses, including Mitchell himself, before the Ervin committee.

Responding eagerly, Mitchell said, "I was hoping that would come up." Surprisingly, he read from an account of the hearings in the Washington Post--the newspaper so often assailed by the Administration as wrong about Watergate. The Post quotations from the Kleindienst hearings seemed to back Mitchell's contention that he was asked only about "party responsibilities" and thus, since his part-time duties were with the Nixon re-election committee, his denial of official Republican Party activity was accurate. "Let's read a little further, Mr. Mitchell," said Talmadge, producing an official hearing transcript. The next question, not included in the Post, was Senator Edward Kennedy's query, "No re-election campaign responsibilities?" Mitchell's quoted reply: "Not as yet, I hope to." Actually, Mitchell's own testimony to the Ervin committee cited his frequent "consulting" role for the Nixon re-election committee before he became its director in April.

But that was only the first of what looked like several clear contradictions between Mitchell's previous and present sworn testimony. It was on the last day of his hearings that Counsel Dash, who had questioned Mitchell rather gently on the opening day, displayed his most cutting interrogation so far in the hearings. Just as Mitchell must have thought that the rough quizzing was all behind him, Dash in rapid-fire order raised four apparent Mitchell falsehoods:

1) That in his deposition on Sept. 5, 1972, for the Democratic civil suit, Mitchell had testified that neither Robert Mardian nor Frederick LaRue had reported to him any conversations that they had had with Wiretapper Liddy, except "to the extent that his service had been terminated in whatever way it was." Mitchell told the Ervin committee that Mardian and LaRue had reported extensively to him about Liddy's various illegal activities.

2) That in the same deposition he had denied having "any information as to the circumstances under which Mr. Liddy was hired" by the Nixon re-election committee. Mitchell told the Ervin committee that he had interviewed Liddy and indicated to Magruder his approval that Liddy be hired.

3) That on July 5, 1972, Mitchell had told FBI agents that the only thing he knew about the Watergate break-in was what he had read in the newspapers. By contrast, he told the Ervin committee that before July 5 he had been briefed by Mardian and LaRue about Liddy's multiple admissions.

4) That on Oct. 5 he again told an FBI agent that he had no knowledge of his own about the Watergate break-in--again contradicting what he has told the Ervin committee. Mitchell contended last week that the topic had never come up in this telephone interview and that the FBI records "are absolutely wrong" in showing, as Dash contended, that it did.

His voice quavering and his eyes misting, Mitchell insisted that Dash's interpretation was wrong. But Dash asked a typical prosecutor's question: "Since you may have given false testimony under oath on prior occasions, is there really any reason for this committee to believe your testimony before this committee?" Replied Mitchell meekly: "As far as the determinations of this committee, I think they can judge my testimony and make their own conclusions after my appearance here."

Memory Loss. The question was similar to an even sharper earlier one from Senators Inouye and Weicker: "Would you lie at the present time to protect the President?" Mitchell said he did not have to make that choice, because the truth in this case protects the President. Assuming the question to be a hypothetical one, Mitchell said he would not lie under oath. Yet if Nixon's re-election were at stake, Mitchell had conceded earlier, he would "have to give very long and very hard thought" to whether he might commit perjury. Nixon's reelection, of course, is no longer at stake; but at the least, his ability to function effectively as President certainly is.

The next witness was Richard A. Moore, 59, a White House special counsel. Moore had been called at the urging of the committee's minority counsel, Fred D. Thompson, who in turn had been prodded into doing so by White House lawyers. Florida's Senator Gurney hailed Moore as "one of the few witnesses who have no ax to grind."

The Republicans' reasoning apparently was that the fatherly, white-haired Moore, a former broadcasting executive from California, was in a particularly good position to refute the damaging testimony of Dean. Moore had been a confidant of Dean's and had been present at many of the White House staff meetings that Dean had previously described to the committee. But under driving cross-examination by Terry F. Lenzner, the committee's assistant chief counsel, Moore proved to be a distressingly bumbling witness. Indeed, his memory loss appeared to be so formidable at times as to jeopardize the credibility of what he had to say. Example:

Lenzner: I asked you [earlier today] if there was any discussion of the Democratic National Committee lawsuit or the Common Cause lawsuit, and your answer was not to your recollection. You say now there may have been?

Moore (hopelessly confused): I will let the answer stand--whatever it was.

In his opening remarks, Moore acknowledged that, as Dean had testified, the two men had attended a meeting with Haldeman and Ehrlichman last Feb. 11. According to Dean, the group discussed ways of raising "hush money" for the seven convicted Watergate conspirators. But Moore insisted that as he understood it the additional funds were needed for the Watergate lawyers. At the meeting he agreed to a request by either Haldeman or Ehrlichman--he was forever mixing the two men up, Moore chuckled to the committee--that Moore should go to Manhattan to ask John Mitchell to raise the money from "his rich New York friends." When he subsequently delivered the message, said Moore, Mitchell replied "something like, Tell them to get lost.' "

Dean had testified that as he left the La Costa Hotel meeting with Moore, he had said he was distressed that the subject of the money had come up in Moore's presence, but added that Moore "now had a very real idea of the dimensions of the situation." Moore declared flatly to the committee: "I have absolutely no recollection of any such conversation, and I am convinced it never took place."

Deep Conviction. Dean said last month he believed the President knew of the Watergate cover-up before last March 21--the day Dean had his long conversation with Nixon on the subject, and the day the President said he learned of it. Moore, on the other hand, mentioned four meetings that he and Dean had with the President in the days before March 21, and insisted that Nixon betrayed no knowledge of the cover-up on those occasions. "It is my deep conviction," said Moore, "as one who has known the President over the years and has had many private conversations with him, that the critical facts about the Watergate did not reach the President until March 21."

In crossexamination, Lenzner stumbled across a curious bit of detail as Moore described a private meeting with the President on April 19, 1973. At this meeting, Moore told Nixon that Dean had shown him a list of White House staff members who Dean believed could be indicted for one Watergate offense or another. In the case of Ehrlichman, however, Moore repeated Dean's remark that Ehrlichman's "problem might be involved with the Ellsberg case," a proposition that Moore did not understand at the time.

By way of explanation, the President told Moore that the investigation of Ellsberg could not have been left to the Federal Bureau of Investigation, since FBI Director J. Edgar Hoover "could not be counted on doing it because Mr. Hoover was a close friend of Mr. Ellsberg's father-in-law," Toy Manufacturer Louis Marx. Added Moore: "The point was that the White House had set up a security operation to investigate Mr. Ellsberg's activities in leaking top-secret documents and possibly giving them to a foreign embassy of the other great superpower, and that the President said in view of the fact that Mr. Hoover would not undertake this investigation, the White House undertook it . . ." Had Nixon specifically mentioned the burglary of Ellsberg's psychiatrist's office by the plumbers? "No," said Moore, "he did not."

The subject has come up before, of course. John Dean testified last month that Egil Krogh, the White House assistant who had been in charge of the plumbers, had said he "received his orders right out of the Oval Office," in other words, from the President--an astounding charge that Dean himself said he had not at first believed. The President, for his part, asserted in his May 22 statement that he had instructed the plumbers--the White House Special Investigations Unit, to be precise--to look into Ellsberg's "associates and motives" for reasons of national security. But the President insisted that he did not authorize or have knowledge of "any illegal means to be used to achieve this goal."

The Moore testimony was certainly not evidence that the President had had prior knowledge of the plumbers' felonious breakin. But it seemingly betrayed a curious nonchalance on the President's part toward questionable activities by White House staffers.

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