Witness Richard Nixon is Excused

"All motions are denied. The trial will proceed."

The words were delivered crisply and without emotion by Federal Judge John J. Sirica. Yet they summed up a historic "memorandum opinion and order," which Sirica then passed out to the attorneys in the Watergate cover-up trial. The ruling meant that in all probability former President Richard Nixon may never have to face public questioning under oath about his role in the scandal.

The Sirica order quashed a subpoena served on Nixon by Defendant John Ehrlichman to testify at the trial. The judge also denied alternative motions by Defendants H.R. Haldeman, John Mitchell and Ehrlichman that depositions be taken from Nixon in California. Sirica's ruling was based primarily on the fact, certified by a court-appointed panel of doctors, that the recuperating Nixon's life might be endangered if he were asked to respond to any questioning before Jan. 6. Even then, Sirica noted, Nixon's recovery might not be satisfactory, and more time would also be required for him to review the complex case and prepare for testimony. Sirica ruled that it would be "unwarranted" to keep the jury sequestered "until an uncertain date in the somewhat distant future."

Sirica also had some less compassionate reasons for ruling out Nixon's testimony. Noting that Nixon had been named an unindicted co-conspirator by the original Watergate grand jury, he declared that even if Nixon were to appear, the trial jury would have to be warned that Nixon's words "should be received with caution and scrutinized with care." That was a thinly veiled suggestion that Nixon might not be a credible witness. Sirica also implied that the defendants were exaggerating the importance of Nixon's testimony. He wrote that the information they sought from Nixon "could be, and in many instances has been, elicited from other witnesses."

Immense Relief. Considering how poorly Defendants Mitchell and Haldeman have fared under the prosecution's incisive crossexamination, Nixon's relief at not having to undergo the same treatment must have been immense. It could be argued, however, that Nixon's own interest would be served by testifying in a court of law, admitting his transgressions, and clearing the record so that he could write and speak freely in the future about his years in office.

Such an act would clear the air for the fallen Chief Executive, though it seems unlikely he would perceive it that way.

Haldeman last week was serene and amiable under the gentle if confused questioning of his own attorney, John J. Wilson. But he turned evasive and sometimes stammered as Assistant Special Prosecutor Richard Ben-Veniste slashed at his testimony. With devastating effect, the combative prosecutor read excerpts from a March 21, 1973 White House tape in which Haldeman suggested that Watergate witnesses could always evade a question by saying they "forgot," and Nixon advised:

"Just be damned sure you say, 'I don't remember, I can't recall.' " Ben-Veniste then cited numerous "I don't recall" answers in Haldeman's subsequent grand-jury testimony. Inadvertently dramatizing the prosecutor's point, Haldeman in just one hour responded with "I don't recollect" no fewer than 18 times to Ben-Veniste's questions. Despite his forgetfulness, Haldeman conceded that he did have a reputation as a detail man in the White House, and had even approved a $25-a-month raise for a Nixon gardener at San Clemente.

Haldeman's bad memory gave Ben-Veniste a choice opportunity to try to refresh it by reading portions of previously undisclosed transcripts of White House tapes. They included revelations that shortly before Nixon sought the resignations of Haldeman and Ehrlichman in April 1973, he had offered them help for future legal costs and family support from one of two secret White House funds. One was a fund of $200,000 to $300,000 controlled by Nixon's pal,

Bebe Rebozo, and apparently intended for use in the 1974 congressional campaigns. Another was $100,000, which Nixon has indicated was held by his personal secretary, Rose Mary Woods. The source of this money was not explained, but Nixon's former attorney Herbert Kalmbach had told Senate investigators that Rebozo had given money from Howard Hughes to Miss Woods.

The transcripts showed that Nixon had suggested helping his two aides on April 17,1973.

NIXON: Let me ask you this, uh, legal fees will be substantial... But there's a way we can get it to you, and uh--two or three hundred thousand dollars ... I know the problems with families and all the rest. Just let me handle it. Now, how could we do it?

EHRLICHMAN: Let's wait and see if it is necessary.

NIXON: No strain. Doesn't come outta me. I didn't, I never intended to use the money at all. As a matter of fact, I told

B-B-Bebe, uh, basically, be sure that people like, uh, who, who have contributed money over the contributing years are, uh, favored and so forth in general.

And he's used it for the purpose of getting things out, paid for in check and all that sort of thing.

Nixon mentioned the matter again on April 25.

NIXON: As I said, there're a few, not much ... as much as -- I think -- as 200 . . . available in '74 campaign already.

HALDEMAN: That compounds the problem. That really does.

Under Ben-Veniste's questioning, Haldeman insisted that neither he nor Ehrlichman had ever accepted the offered cash from Nixon. He said he knew nothing about those funds and did not know what he had meant in telling Nixon that to have taken the money would have "compounded the problem." Asked Ben-Veniste: "It compounded the problem of all the money paid to the [original Watergate] defendants?" Insisted Haldeman: "No, sir. That is totally incorrect." When defense attorneys raised objections that Nixon's offers were irrelevant because "we're not trying the former President of the U.S.," Ben-Veniste replied: "The offer of money shows that they were all in it together. They were protecting each other in the cover-up."

Although immaterial to this trial, the transcripts also seemed to show that Nixon was contemplating the use of political contributions for a personal and noncampaign-purpose, which would have violated the campaign-funding laws. He also seemed to be suggesting that he had asked Rebozo to help make sure that heavy contributors were rewarded, presumably through Government favors. The special prosecutor's office is investigating Rebozo's fund.

Apart from these new revelations, Haldeman had great difficulty trying to explain away other prosecution testimony. He admitted following Nixon's instructions to ask top CIA officials to intercede in the FBI's investigation of money found on the arrested Watergate burglars. But he claimed that his interest was not to keep the funds from being traced to Nixon's re-election committee; he wanted to protect the anonymity of the political donors whose checks had been converted to this use. He also claimed that there were valid national-security reasons for calling off the FBI, but he could not explain why, then, he had agreed that Nixon should not get personally involved in diverting the investigation. "Isn't it a fact that the whole reason for this was political ... with criminal overtones to it?" Ben-Veniste asked. Haldeman insisted that there were "no criminal overtones."

Repeatedly, Haldeman's remarks on the tapes were cited by Ben-Veniste to contradict his current testimony. Repeatedly, Haldeman denied the incriminating implication of his recorded words, insisting that "there must be another explanation"--although he often failed to offer one. One tape showed that Haldeman was present, for example, when Mitchell reported that the cash demands of Burglar E. Howard Hunt "had been taken care of; Haldeman said he did not know what Mitchell had meant by that. Asked Ben-Veniste: "What did you think--Mitchell was going to take Hunt down to the Bankers Trust and co-sign a loan for him?" Repeated Haldeman: "I didn't know."

Although the tapes now gave Haldeman so much trouble and had led to Nixon's resignation, one surprising revelation was that both men on April 25, 1973 had thought the taping system a great idea that might save them. Said Nixon in a telephone call to Haldeman:

"You know, I always wondered about that taping equipment but I'm damn glad we have it, aren't you?" Noting that there were "very helpful" comments on the tapes, Haldeman agreed: "Yes, sir."

Later, he mused that mention of blackmail and payoffs might be a "hard thing to explain, but I think it's explainable."

Early Knowledge. The opening gambit of Ehrhlichman's defense backfired as his attorneys asked Sirica to call Charles W. Colson, imprisoned for his role in trying to defame Daniel Ellsberg, as a court witness. That allowed freer questioning and Colson promptly gave damaging testimony against Mitchell, Haldeman and even Ehrlichman. He helped Ehrlichman only in contending that an aborted White House effort to have Hunt leave the country before his arrest was John Dean's idea, not Ehrlichman's.

Cross-examined by William Hundley, Mitchell's lawyer, Colson struck back by recalling an incident shortly after the 1972 Watergate breakin. Colson said he had told Mitchell that he hoped Hunt was not involved. According to Colson, Mitchell replied: "He is up to his ears in it." That indicated an early knowledge that Mitchell has repeatedly denied.

Ben-Veniste got Colson to rebut Haldeman's testimony that he was unaware of hush-money payments. In January 1973, Colson said, he had been asked by Haldeman what would happen if Hunt "blew" (talked to investigators). "I said I thought it would be very bad... Bob [Haldeman] said, 'Then we can't let that happen.' " When Colson was finished, Chief Prosecutor James Neal told Sirica in a lawyers' conference that he was "more than willing" for the defense to "bring on more witnesses like Colson."

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