Damaging Deletions from the Tapes

His joyous reception in the Middle East and the assault on the prosecutorial mood of Watergate by Henry Kissinger in Salzburg undoubtedly gave President Nixon a hefty public relations lift last week in his struggle for survival. But at home, the impeachment process pushed on, producing revelations that in a less sensation-surfeited time would probably have stolen the nation's attention from the traveling presidential party. The new evidence solidly supported the already strong case that Nixon had engaged in a conspiracy to conceal his active role in the Watergate coverup.

The substance of two memos prepared by one of the House Judiciary Committee's staff lawyers and leaked by proimpeachment Democratic sources on the committee was highly damaging. It was that 1) Nixon had directed his former high aides to cover up the illegal coverup, and 2) the White House-released transcripts of Nixon's taped conversations had been deliberately edited to obscure that crucial fact. William P. Dixon, the writer of the memos, was careful to note that his was only "one possible interpretation" of Nixon's intent. Yet his comparison of the White House transcripts with those made by the Judiciary Committee directly from tapes in its possession virtually ruled out any other interpretation.

Stonewall It. According to Dixon, for example, the committee's tapes show that on March 22, 1973, the day after Nixon claims that he first learned about the cover-up from John Dean and was moving to "get the truth fully brought out," the President told former Attorney General John Mitchell: "I don't give a shit what happens. I want you to [unintelligible] stonewall it, plead the Fifth Amendment . . . even up to this point, the whole theory has been containment, as you know, John . . . that's the thing I was concerned with--we're going to protect our people, if we can." None of those directions appears in the White House transcripts.

Nixon, moreover, has consistently claimed that he had ordered his then counsel John Dean to go to Camp David in March 1973 and write a full report on everything Dean knew about Watergate.

Nixon contends that he did this as part of his own Watergate investigation. The White House transcripts indicated that Nixon Aide John Ehrlichman had suggested that the Dean report should deal solely with the Watergate burglary itself and not the resulting cover-up and that Dean should conclude "that nobody in the White House has been involved in burglary, nobody had notice of it, knowledge of it, participated in the planning, or aided or abetted it in any way. Well, that's what we could say, and it happens to be true--as for that transaction."

But according to the first Dixon memo, what the White House transcript failed to note was that Nixon had approved Ehrlichman's injunction to limit Dean's report. In fact, claimed the memo, Nixon laughed and said: "Sure. As for that transaction." Suggests Dixon: "The President never asked Dean to write a report for the purpose of giving him additional facts, but merely so it could be relied on as an excuse in the event things came 'unstuck' and the President needed justification for his inaction."

Similarly on March 22, Nixon told Mitchell, according to Dixon, that "we can't have a complete cave and have the people go up there and testify [to the Senate Watergate Committee]. You would agree on that?" Replied Mitchell: "I agree." The two then discussed how the Dean statement could be given to the Senate committee with the message, in Nixon's words: "This is everything we know. I know nothing more." In truth, of course, Nixon has since admitted that at the time of this conversation, he knew much more, including Dean's description of the cover-up activities of such aides as Ehrlichman, H.R. Haldeman, Mitchell, Herbert Kalmbach, Gordon Strachan, Jeb Stuart Magruder and Fred LaRue.

In the second memo, Dixon reported that the committee's transcript shows that the President told Dean on March 17 that Haldeman, then chief of staff, must not be implicated in Watergate. "We've got to cut that off. We can't have that go to Haldeman," Nixon is quoted as saying-- again in words not included in the White House transcripts.

Beyond strengthening the cover-up charges against Nixon, the revelations demonstrated the unreliability of the White House transcripts and supported the committee's case for insisting on the actual tapes of all subpoenaed conversations.

White House officials have said that the President was the final editor of the released transcripts, while his chief expert and adviser on the tapes was his counsel, J. Fred Buzhardt. Long overworked and showing the strain of continual 18-hour days, Buzhardt last week suffered a heart attack and was listed in "serious but stable" condition in a Virginia hospital. Whether the illness of Buzhardt, who apparently will be unable to return to his duties for at least two months, will further delay any of the various Nixon legal proceedings is not yet known. The President's chief Watergate lawyer, James St. Clair, said that his staff will "regroup" and proceed.

Not Impeachable. St. Clair offered a flurry of defense briefs on Watergate matters--including a 10,000-word argument defending Nixon against cover-up charges. Rejected as out-of-order at the current stage of the Judiciary Committee's inquiry by Chairman Peter Rodino, the St. Clair brief reportedly made the astonishing contention that for Nixon to conceal the role of his aides in the Watergate conspiracy would not, even if proved, be an impeachable offense. Since the St. Clair paper was neither admitted as evidence nor leaked, the basis for his reasoning could not be learned.

Draw a Line. St. Clair's agility in mustering procedural arguments against the impeachment process was evident in a letter signed by Nixon to Chairman Rodino, firmly rejecting for the fourth time a Judiciary Committee subpoena of presidential tapes. Contending that the White House had extensively cooperated with the committee, the Nixon letter argued that he must "draw a line" to prevent "unlimited search and seizure" of Executive Branch files by the Legislative Branch. This was necessary to preserve the delicate separation of powers among the three branches decreed by the Constitution. Totally ignored in the letter was the fact that the congressional power to remove a President from office by impeachment and conviction necessarily intrudes upon that separation as one of the Constitution's ultimate checks and balances among the three branches.

St. Clair took two other steps to strengthen Nixon's pending Supreme Court arguments against an order by Federal Judge John J. Sirica that the President must honor Special Prosecutor Leon Jaworski's subpoena for 64 tapes. St. Clair petitioned the Supreme Court to consider as part of that case whether a grand jury had the authority to name the President as an unindicted co-conspirator in the Watergate coverup, as it had secretly voted to do last Feb. 25, and, if so, whether it had acted on the basis of sufficient evidence. He also asked Judge Sirica to forward the grand jury proceedings both to the Supreme Court and to himself--but not necessarily to the public--to prepare for such an argument. St. Clair contends that the grand jury had both exceeded its powers and gone beyond the evidence.

Presidential Aide Patrick J. Buchanan last week charged that both the grand jury and the Watergate prosecutors had acted out of political bias against Nixon rather than on the evidence. He claimed, for example, that when Presidential Aide Dwight Chapin was found guilty of perjury on April 5, "members of the prosecution staff, gathered in court, cheered and embraced." Buchanan was not present when the jury announced its verdict; there was, in fact, no such unprofessional demonstration.

The Supreme Court at week's end agreed to take up the question of whether the grand jury had the authority to cite Nixon. The court also unsealed the jury's citation, which said it believed "that there is probable cause that Richard M. Nixon, among others, was a member of the conspiracy to defraud the United States and to obstruct justice."

In another St. Clair action, the attorney served notice that he will appeal an order by Judge Sirica that a 17-minute segment of one Nixon conversation dealing with the Internal Revenue Service be given to Jaworski. So far only Judge Sirica has had access to the tape. Sirica had originally withheld the segment in a belief that IRS matters were not relevant to Jaworski's Watergate investigations. Advised recently by Jaworski that White House attempts to use the IRS for political purposes were under investigation, Sirica changed his mind.

Indirectly, the St. Clair objection had the effect of preventing or delaying the House Judiciary Committee from acquiring the same tape segment. The committee spent much of its closed-door staff briefings last week in considering whether White House political influence had been brought to bear on the IRS.

Committee members seemed to be impressed by evidence that Nixon aides had attempted to use tax audits to harass the Administration's political "enemies," but the staff had not conclusively linked Nixon to these efforts. The committee seems confident that it will readily be given any evidence acquired by Jaworski bearing on impeachment.

The legal skirmishing over Watergate evidence also continued last week as defense attorneys and prosecutors prepared for trial in two Washington federal courtrooms:

P: In the Ellsberg burglary case, the White House waived its claim of Executive privilege and lifted some restrictions against granting Defendant Ehrlichman access to personal notes he had made while on the White House staff. The concession seemed a small one, since Ehrlichman's lawyers are still denied similar access necessary in order to advise him on what might be relevant to his defense. Yet the movement was enough to lead Judge Gerhard Gesell to drop his threat to cite the President for contempt of court. The judge ordered Ehrlichman and co-defendants G. Gordon Liddy, Bernard Barker and Eugenic Martinez to stand trial on June 26. Ehrlichman has subpoenaed the President, Kissinger and White House Chief of Staff Alexander Haig as defense witnesses at the trial, but apparently will accept written answers to questions put to Nixon rather than pushing for the President's appearance.

P: Faced with similar requests for White House documents by defendants in the Watergate cover-up case, Judge Sirica proposed an informal low-key approach. Since such defendants as Ehrlichman and Haldeman were on friendly terms with Nixon, Sirica suggested, they should go to him and say: " 'Look, Mr. President, our liberty and our reputation are at stake. It's true we can serve a subpoena on you, but we are talking about doing it the easy way.' " With no great enthusiasm, lawyers for Ehrlichman and Haldeman agreed to discuss this with their clients. Sirica said he would consider more formal action if the "easy way" does not work.

On all fronts, the legal maneuvering last week thus concerned itself more with procedure than with the ultimate substance of evidence. That was true too of the concerted White House assault on leaks from the Judiciary Committee. There is justification for such complaints, since those who disclose confidential material may want to influence unfairly the shape and pace of the inquiry into Nixon's conduct. Yet it is on the nature of the evidence, rather than on the motives and tactics of the leakers, that the fate of the President must finally be decided.

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