The Nixon Defense: What He Knew and When He Knew It (98 page)

The president had awakened at 5:30
A.M.
with a stabbing pain in his chest, which he later said reminded him of when he had cracked a rib playing football in college.
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At 5:43 he called the White House physician, Walter Tkach, who arrived with his colleague William Lukash. After they examined him, Tkach thought it pneumonia, while Lukash diagnosed it as a digestive disorder. Both believed the president should undergo a complete battery of tests. Nixon resisted but remained in bed until early afternoon. At 1:30
P.M.
Haig went to his bedroom to tell him that Senator Ervin was calling. As Nixon later reported, “We talked for sixteen minutes. My voice was subdued, because every breath I took caused a sharp pain.” Ervin was calling about his request for documents, which had been a front-page story in
The Washington Post
even before the request had been formally made.
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Nixon accused Ervin’s committee of having leaked, and then said, “You want your staff to go through presidential files. The answer is no. We disagree on that.” But Nixon said he would think about the letter Ervin had sent to be polite. The conversation with Ervin seemed to have energized him, for he dressed and went to the Oval Office.

But as the president and Haig were talking, a fragment from the bullet Nixon was sure he had dodged was heading his way. As a part of the follow-up on my testimony, the staff of the Senate Watergate committee was informally talking with other potential witnesses, one of whom was Alex Butterfield, whom they were now interviewing in the basement of the Dirksen Senate
Office Building.
*
Scott Armstrong, one of Dash’s investigators, was intrigued by the amount of detail in the Buzhardt information given to Fred Thompson about my conversations with the president, and he asked Butterfield, who had been a top administrative assistant to Nixon during his first term, if he knew how that information might have been assembled. Butterfield, who had been instructed by Haldeman to have the president’s secret recording system installed, immediately suspected that someone had listened to the recording of my conversations with Nixon. But rather than say anything, and because they had only asked him about Buzhardt’s memo, he set the document aside and said he’d like to think about it. Buzhardt had been concerned that the taping system might come up, and he did not know if the committee had or had not yet discovered it. Butterfield knew it was one of the best-kept secrets of the Nixon presidency, and had decided that only if he was asked a direct question would he answer. And Armstrong had not asked him a direct question.

Donald Sanders, one of Fred Thompson’s deputy minority counsel, was also present at the Butterfield interview, and after listening to Armstrong’s three hours of questions about how presidential schedule logs were maintained and compiled, the procedures for preparing memoranda of staff conversations with the president and other details of the Nixon White House operations, he had his own question. While no stenographic record was made of the interview, all present recall that Sanders, whose task it was to find errors in my testimony, noted that I had testified that I believed I had been recorded. More specifically, Sanders said, I had testified that the president had asked me a question “in a very low voice concerning a presidential exchange with Colson about executive clemency. Do you know of any basis for the implication in Dean’s testimony that conversations in the Oval Office are recorded?”
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Needless to say, Butterfield did know of a basis for my feeling I had been recorded by the president, and he proceeded to explain the president’s secret system to Sanders and Armstrong.

Back at the White House the president arrived at the Oval Office at 2:15, looked over his news summary, and then met with Kissinger and Haig.
Sounding surprisingly invigorated, he told Kissinger how tough he had been on Sam Ervin when he had called. “Not on your life, there ain’t gonna be no papers come out,” Nixon quoted himself as telling Ervin. Kissinger reported that the president had a new admirer in Norman Mailer: “He thinks you’re going to come out of this eventually stronger. That the public is beginning to identify with you, and somebody gets kicked so much and endures and overcomes it. That is what a lot of people experience in their own lives.” Kissinger reported that Mailer wanted “to write that it’s all a CIA conspiracy against you because you were on détente.” This filled the room with laughter. Returning to his conversation with Ervin, Nixon boasted, “I’m not going to allow this slick Southern asshole to pull that old crap on me. He pretends he’s gentle and trying to work things out. Bullshit.” They discussed how rough it was going to be at the Senate for Haldeman and Colson, but Haig thought not. And soon Nixon was retailing his version of the March 21 conversation for everyone.

Feeling well enough, the president proceeded with his afternoon schedule: a meeting with a German vice chancellor; a photo opportunity in the Rose Garden; a half-hour meeting in the Oval Office with a visiting dignitary; and a conversation with Bill Timmons about congressional affairs. Nixon complained that Howard Baker had been too easy on me during my testimony and for that would never forgive him: “Howard Baker will never be in the White House again, never, never, never. He will never be on a presidential plane again. I don’t care what he does, the softballs he threw up to Dean. But what he did to John Mitchell was unforgiveable.”
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Nixon said he found Baker’s actions “despicable,” noting, “He thinks he’s going to be president. He’s finished.” When Timmons departed, Nixon did another photo op, this one with a fire prevention group, and then called Rose Woods into the office. “Howard Baker will never be in the White House again, as long as I am in this office,” he ordered. “Never. Never. Never.”
¹¹⁶
He soon repeated this, and said, “I mean it, Rose.” “I agree with that, too,” she said. “His name will not be on the Christmas list,” he added.

Shortly after five o’clock Haig joined the president in the Oval Office. Nixon had received the results of his preliminary medical examination and said that the doctors wanted him to spend four to five days in the hospital. The doctors wanted him to have a chest X-ray at a nearby naval regional medical clinic (less than two miles and a five-minute drive away), but Nixon was more concerned with discussing protecting his papers from Ervin. He
thought senators like Carl Curtis (R-NE) and Barry Goldwater (R-AZ) would support him. He reminded Haig that Harry Truman had made the tough decision to not testify before Congress. Haig observed that the senior White House staff was solid, with the possible exception of Mel Laird. Nixon said letting the Senate have his papers was a no-win situation: If they provided any, they would say that they wanted more, claiming that incriminating documents had not been included or destroyed. Nixon felt as strongly regarding the inevitable demands for documents from Cox.

Nixon called for Ziegler to join the conversation, and when he arrived, the president said, “I’ve not missed a day in four and a half years. Not a day. Not an appointment, nothing.” And then he informed Ziegler that the doctors wanted him hospitalized. Never missing a political opportunity, Nixon told his aides that he could take advantage of the situation, and might even give a speech. President Suffers Viral Pneumonia. Reads Radio Address to Nation, Nixon said, framing the headline. The conversation returned to protecting his papers, and then Nixon mentioned he wanted to send George Bush on a trip: “Best thing with George, he doesn’t stand up well.” Returning again to the papers, he complained, “They struck out on Dean,” so now they wanted documents.

Dr. Tkach arrived in the Oval Office and said he had arranged for an X-ray at the naval clinic at 6:30
P.M.
Tkach explained that the X-ray would indicate how serious his condition was, but for “even a mild case,” he was recommending the president stay at the hospital that night. He further explained that the risks involved with viral pneumonia were heart attack or stroke or both. Tkach said that Lyndon Johnson, when president, would go to the hospital even with a bad cold. Nixon admitted that he did not feel well, and that he had a 101-degree temperature, which he had taken himself. But again, he was considering the PR aspects: “People don’t go to the hospital for a virus.” Tkach, not concerned with PR, corrected him. Shortly before six o’clock the president departed for the naval clinic, ordering Ziegler to make no announcement until he decided what he was going to do after he got the X-ray results. He said he was unconcerned about the press, and as he headed out the door, remarked: “The only time the press will be happy is when they write my obituary.”

The X-rays were not good, and after his dinner at the residence, the president was driven to the Bethesda Naval Hospital, where he was admitted at 9:15
P.M.
on July 12. He remained in the hospital until the morning of July
20, when he returned to the White House. While he was hospitalized, the entire dynamics of Watergate shifted with the revelation of his taping system. On Monday, July 16, at just after 2:00
P.M.
, Alex Butterfield appeared as a surprise witness before the Senate Watergate committee, where he told the world of the system, until then known only to Butterfield, Haldeman, Bull, Higby, the Secret Service technicians who installed and maintained the system and the president. Haig and Buzhardt were aware that select conversations of mine had been recorded, but as Haig later said, he thought the system could be switched on and off: “It never occurred to me that anyone in his right mind would install anything so Orwellian as a system that never shut off, that preserved every word, every joke, every curse, every tantrum, every flight of presidential paranoia, every bit of flattery and bad advice and tattling by his advisers.”
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Butterfield’s revelation confronted Nixon with the decision of whether he should or could destroy the tapes, and since they had not yet been subpoenaed, it was a choice he would have to make quickly, if it was not already too late.

There are three first-person accounts of Nixon’s decision to keep the tapes: Garment’s, Haig’s and Nixon’s own. Woodward and Bernstein also prepared an account based on off-the-record interviews with sources that cannot be evaluated. While there are minor differences in these accounts, their gist is consistent. With time seemingly of the essence if the president was going to have any options, the White House appears not to have learned about Butterfield’s Thursday, July 12, disclosure, until three days later:

• Fred Thompson said he informed Fred Buzhardt of Butterfield’s disclosure on Sunday, July 15, when he telephoned him to advise him of it, and Buzhardt did not seem particularly troubled by the information.
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• Len Garment reported that he first learned of the taping system from Larry Higby on July 10, when Higby was heading for a staff interview with the Senate Watergate committee. Higby wanted to know what to say if asked about the system. Garment counseled him not to volunteer anything, but if asked, he should answer honestly. Garment was informed of Butterfield’s disclosure to the Senate when he returned from out of town on Sunday, July 15, and was asked to come to his White House office on Sunday evening, where he met with Buzhardt.
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• Haig claimed that he did not learn of Butterfield’s disclosure until Monday, July 16, when Butterfield testified before the Senate. Haig says Nixon was incorrect in his account that Haig telephoned him early Monday morning to warn him of Butterfield’s disclosure and forthcoming testimony.
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• Nixon wrote in his memoir that he was informed early Monday morning, July 16, when “Haig called me to tell me that Haldeman’s former aide Alex Butterfield had revealed the existence of the White House taping system to the Ervin Committee staff and that it would become public knowledge later that day.”
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Nixon said he was “shocked” by the news; everyone else was shocked either by the fact that Nixon taped himself or that it had been disclosed, or both. Many on the White House staff thought the exposure of the system had been engineered by Nixon himself: “There were expressions of relief. At last there was something definitive. The tapes had been deliberately exposed. They would prove that John Dean was lying.”
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There was an almost universal consensus that Nixon’s tapes would provide a near indisputable way to answer the question Howard Baker had asked me during my testimony: “What did the president know and when did he know it?”
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The revelation created a very delicate problem for Nixon’s staff, for they, too, understood that the recordings could establish his innocence or his guilt. While many secretly believed he was guilty, such thoughts had to be suppressed in order to remain loyal and work for him. Based on Butterfield’s testimony that the Secret Service had installed the system, Al Haig had his deputy call them to “immediately” dismantle it and secure all the existing recordings. Haig made this decision without consulting the president, but then went to the hospital to discuss this situation. “Mr. President, it seems to me that you have two options. You can either keep the tapes or you can destroy them.” Nixon wanted to know the consequences of each option. “If you keep the tapes and refuse to make them public, you’ll spend the remainder of your presidency beating off the prosecutors, the Congress and the news media. In the end, you may very well have to give them up.” And if he destroyed them? “You will be violently attacked. Some will describe it as an admission of guilt. Others will admire your common sense. You will take a tremendous amount of heat, but, whatever happens, it will be over fairly
quickly.” Haig noted if he did not destroy them, the disclosure process would last forever, and reach into history.
¹²⁴

Nixon wanted to know what the lawyers thought of the legal implications. Garment reported that upon learning of the situation he had sent his associate Doug Parker to the law library, where he soon found
U.S. v. Solow
, a ruling with a similar fact pattern to Nixon’s tapes and an obstruction of justice under federal criminal law.
*
Because a president cannot be indicted while in office, but a presidential “felony” could be the basis for impeachment, Garment said the question of destroying the tapes was a matter of “virtually nonstop discussion among Haig, Buzhardt, Parker and [himself]” for the next two days.
¹²⁵
Both sides were presented to the president at the hospital: by Garment, who argued it would be an obstruction of justice under federal law, and the president should not destroy the tapes; and by Buzhardt, who said the tapes were his property and had not been subpoenaed, so he could do with them as he wished. Buzhardt did not believe Congress would impeach him if he did destroy the tapes. Nixon was also told that Charles Alan Wright had given them a “near categorical opinion” that the president had a powerful executive privilege argument, which the Texas law professor believed he could win should the case go to the U.S. Supreme Court.