Supreme Court: The President Is Not Above the Law

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For two weeks in the summer of 1974, the eight Supreme Court justices who were deciding on United States v. Nixon had been reviewing the details of the case and considering the lawyers' arguments.

Executive privilege was given as the defense's argument for not turning over the tapes that had been requested. But the real issue was: Is the president above the law?

The justices answered that question 40 years ago today.

And while the Supreme Court considered the matter, all kinds of things were happening in the Watergate case.

The day after the justices heard arguments, the House Judiciary Committee released its own versions of transcripts of eight conversations that had been released earlier by the White House. When the White House transcripts were compared to the Judiciary Committee's transcripts, it was clear that several long Watergate–related passages had been omitted in the White House version.

A week later, Nixon refused to comply with the House Judiciary Committee's last four subpoenas. In an interview that day, he called Watergate "the broadest but thinnest scandal in American history."

The day before that, the White House had furnished some John Ehrlichman notes to the Judiciary Committee, portions of which were blacked out. A few days later, Nixon attorney James St. Clair assured the committee that the deletions had been made by mistake, but the public relations damage had clearly been done.

The Judiciary Committee also made public five volumes of evidence that challenged the White House's argument that national security was the reason for the wiretaps. Without identifying which ones, Vice President Gerald Ford said he had listened to portions of two of the tapes and had reached the conclusion that it was "very understandable" that different interpretations could be made of words that were spoken on them.

Volume upon volume of evidence was released to the public, and both the majority and minority counsels on the Judiciary Committee urged a Senate trial on one or more of five impeachment charges: (1) obstruction of justice, (2) abuse of power, (3) contempt of Congress, (4) failure to adhere to the pledge to "take care that the laws be faithfully executed" and (5) denigration of the presidency through underpayment of income taxes and use of federal money for personal purposes.

In California, the president's press secretary said the majority counsel, John Doar, was running a "kangaroo court."

The minority counsel, Albert Jenner, was replaced a couple of days later — after saying the case for impeachment was persuasive.

A couple of days before the Supreme Court announced its ruling, St. Clair declined to say whether Nixon would comply if the Supreme Court ordered him to turn over the tapes.

The next day, House Judiciary Committee member Lawrence Hogan, a Republican from Maryland, announced he would vote for impeachment. Hogan had already decided not to seek re–election to the House and was instead seeking the governorship of his state.

Forty years ago today, Watergate special prosecutor Leon Jaworski told the Baltimore Sun that he was "appalled" by the White House's refusal to say whether it would obey a Supreme Court order to turn over the tapes.

And such an order was handed down later that day.

By an 8–0 vote, the justices ruled that Nixon had to turn over the records of 64 Watergate–related conversations. They acknowledged that there was a constitutional basis for executive privilege but said that, when such a claim is "based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice."

"In careful but clear language," Bob Woodward and Carl Bernstein wrote, "the Court ordered the president to turn over the tapes."

St. Clair, wrote Woodward and Bernstein, had been certain he would win the case. "He was shattered that he had lost. When he read the decision, it became clear to him that the tapes would have to go to [presiding Judge John] Sirica.

"'The president is not above the law. Nor does he contend that he is,' St. Clair had told the court. He hoped that the president understood what that meant. Nixon had never told him exactly what he would do if there were an adverse decision, but St. Clair knew that his own legal advice to the president had to be unqualified compliance.

"When St. Clair arrived at the residence, he told the president ... that he advised full compliance. The president was not convinced. He wondered if, in fact, to preserve the power of his office, he didn't have a constitutional duty to reject the court order."

Of Nixon's defenders, historian Theodore White wrote, "they were like German officers on the firing line in 1918 who knew long before the Kaiser that the time for surrender had come."

The president eventually agreed to a kind of compliance. He told St. Clair that he would need to time to review the tapes before turning them over — weeks, perhaps months. St. Clair wasn't sure he could arrange that. Jaworski was eager to get the tapes for use in the upcoming coverup trial.

Nixon also informed lawyer Fred Buzhardt that "there might be a problem with the June 23 tape."

Richard Nixon's S.O.B.

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"Every president needs an S.O.B. — and I'm Nixon's."

H.R. Haldeman

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My family was still out of the country when former White House chief of staff H.R. Haldeman took the witness stand at the Senate Watergate Committee's hearings 40 years ago today so I didn't see him testify, but I'm sure he was quite a sight.

He always was in those days. He was kind of a Mephistopheles with a crewcut, I guess; with the German surname, he always seemed more sinister than the rest — to me, anyway. Maybe it was the influence of those World War II movies I watched as a child.

Haldeman and former White House aide John Ehrlichman were known as Richard Nixon's "Berlin Wall" because of their Germanic surnames and their tendency to restrict access to the Oval Office.

They also had the shared trait of unquestioned loyalty to their leader — even when that leader had forced them to resign only a few months earlier.

Haldeman's testimony had been eagerly anticipated because of his special position in the Nixon White House as chief of staff. The job was still new and evolving when Haldeman became chief of staff, but he appeared to relish its reputation as a presidential "gatekeeper."

It was said Haldeman was closer to Nixon than anyone else in the White House (with the possible exception of Nixon's wife). The word around Washington was that he was the first person to see Nixon each morning and the last to see him each night — and, because of the nature of his job, he saw Nixon many, many times in between.

It was to be expected, therefore, that he would be a Nixon defender on the stand. And he was.

"I have full confidence," he told the Watergate committee 40 years ago, "that when the entire truth is known, it will be clear to the American people that President Nixon had no knowledge of or involvement in either the Watergate affair itself or the subsequent effort of a 'coverup' of the Watergate."

Ironically, the Watergate figure with whom Haldeman probably had the most in common 40 years ago today — at least on the surface — was John Dean, who had testified a month earlier.

Both men delivered lengthy statements on their first days on the witness stand and answered questions on the other days. But that was where the similarities ended. Their stories were quite different.

In his statement 40 years ago today, Haldeman insisted that he and Richard Nixon had no knowledge of the Watergate break–in and that Dean had "badly misled" them. He also said he had listened recently to the tape of the March 21, 1973 meeting between Nixon and Dean in which Dean warned Nixon that there was a "cancer ... close to the presidency."

Haldeman observed that he had participated in part of that meeting but had missed the first hour — and the edited transcripts that Nixon released the following spring confirmed that.

Dean, Haldeman told the committee, "[had], in a number of instances, misinterpreted the intent or implications of things that might have been said."

Haldeman went on to say that "[h]aving observed the president all those years, in many different situations, it was very clear to me on March 21 that the president was exploring and probing; that he was surprised; that he was trying to find out what in the world was going on; he didn't understand how this all fit together, and he was trying to find out."

However, "It is impossible," wrote Theodore H. White, "to misinterpret the flow of [Dean's and Nixon's] conversation; the president [had] ordered Dean to buy time for him ..."

On the stand the next day, Haldeman vigorously denied participating in a coverup, then he wrapped up his testimony on the third day by describing his proposal to link Communist protests to the campaign for the Democrats' nominee, Sen. George McGovern of South Dakota.

But as each member of the committee took his turn questioning Haldeman, it was increasingly clear that Haldeman knew little (or said he knew little) of the important details of key events that other witnesses had described.

For example, Haldeman — a man known for taking meticulous notes on large legal pads — said he could not recall when he first heard of the Watergate burglary. Even Haldeman admitted that was "incredible."

Haldeman's opening statement may also have included the public unveiling of one of the most noxious justifications for Watergate that was offered by the Nixon White House. In an almost offhand kind of way, Haldeman alleged that the Democrats engaged in far more serious sabotage during the 1972 campaign than the Republicans.

Lowell Weicker, a Connecticut Republican (and an unsuccessful candidate for his party's presidential nomination in 1980) who loathed the Nixon White House and considered its behavior a betrayal of GOP principles, challenged Haldeman on that point. He produced a memo from Haldeman to Dean suggesting that Dean spread a story linking Communists to protests in which McGovern supporters also participated.

The inescapable conclusion — for anyone who had been paying attention to the hearings — was that the memo confirmed what Dean had said about paranoia in the White House in general and in Nixon's and Haldeman's minds specifically.

Perhaps the most astonishing revelation came when Haldeman spoke of the White House tapes.

In just a couple of weeks since they learned of the tapes' existence, the senators on the committee had clearly come to regard the tapes as crucial to their investigation, but they had been denied access to them. However, Haldeman spoke almost nonchalantly about keeping several of the tapes at his home in a 48–hour period earlier that month and listening to a specific tape at the president's request.

This was only a few months after Nixon had asked for and received Haldeman's resignation.

Haldeman's lawyer read into the record a White House letter instructing Haldeman not to discuss the contents of the tapes, but Haldeman seemed oddly eager to speak about them, anyway. He asserted that the tapes proved that Nixon did not know as much about the coverup as Dean had claimed.

Committee chairman Sam Ervin was skeptical, contending that the White House and Haldeman had done some "canoodling together" to leak a sanitized version of the tapes in the hearings while keeping the originals from the committee's scrutiny.

Weicker wondered aloud how the White House could justify letting Haldeman listen to the tapes while denying that privilege to Dean and the others.

Sen. Daniel Inouye was skeptical that anyone could be sure the tapes had not been tampered with while they had been unguarded in Haldeman's possession.

And majority counsel Sam Dash pondered the question of how Nixon could claim the tapes were confidential when he allowed Haldeman — a private citizen at that point — to keep some in his home.

There were no answers from Richard Nixon's S.O.B.

A Man's Home Is His Castle

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Sen. Herman Talmadge of Georgia

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There were many memorable moments during the Senate Watergate Committee's hearings in the summer of 1973. They call them "sound bites" today, which isn't a bad description since such quotes almost always bite someone.

If you talk to folks who remember the Watergate scandal, you'll get a lot of responses — but no clear consensus — to the question, "What was the most memorable moment (or sound bite) for you?"

That is kind of a difficult question for me to answer because my family spent most of that summer out of the country, and we missed seeing and hearing many of the iconic moments when they happened. We kept up with the news — as did most of the Americans we encountered — through foreign editions of the news weeklies (TIME and Newsweek) or, when my parents were especially eager to learn what was happening, through daily editions of the International Herald Tribune (which is published today — and, I suppose, was published 40 years ago — by the New York Times).

Over the years, I have seen video clips of most, if not all, of those moments — several times. And, although it is a tough choice, I have concluded that my personal favorite "sound bite" came 40 years ago today when Sen. Herman Talmadge of Georgia was questioning John Ehrlichman, a former aide to Richard Nixon.

It was the second of five days of testimony for Ehrlichman. On the first day, he had defended, on grounds of national security, the break–in at the office of Daniel Ellsberg's psychiatrist — which, in fact, was intended to gather information that could be used to discredit Ellsberg in the eyes of the public. Ellsberg was a former military analyst who played a key role in the release of the so–called Pentagon Papers, an insider's history of American involvement in Vietnam.

Several senators objected to the break–in, but, as I say, Ehrlichman defended it. The next day, Talmadge was clearly wrestling with issues that had been raised earlier.

"Now, if the president could authorize a covert break–in [of Ellsberg's psychiatrist's office] and you do not know exactly what that power would be limited," Talmdage said, "you do not think it could include murder or other crimes beyond covert break–ins, do you?"

"I do not know where the line is, senator," Ehrlichman replied.

"Where is the check on the chief executive's power as to where that power begins and ends, that is what I am trying to determine," Talmadge told him. "Do you remember when we were in law school we studied a famous principle of law that came from England, and also is well known in this country, that no matter how humble a man's cottage is that even the king of England cannot enter without his consent?"

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John Ehrlichman testifies in July 1973.

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"I'm afraid that has been considerably eroded over the years, has it not?" Ehrlichman asked with what could only be described as a snarky grin on his face.

That grin remained frozen as he listened to Talmadge's reply — and the thunderous ovation it received. Perhaps he knew the cameras were focused on him as Talmadge made his response.

"Down in my country we still think it's a pretty legitimate principle of law," Talmadge said as a wave of approving applause swept over the room.

All my life (which, I admit, was quite brief at that time), I had heard that "a man's home is his castle," but I never completely understood what it meant until I read this exchange in one of those periodicals I mentioned earlier.

It left quite an impression on me, formed the foundation of everything that I believe and hold dear as an adult.

A man must have some domain that is his and cannot be violated without his consent — unless a warrant is issued, and that requires pretty solid evidence that something illegal is going on.

That is freedom. No American citizen can be subjected to unreasonable searches and seizures. It is a privilege that cannot be found everywhere, but it goes with being an American. It is why so many people around the globe still want to become Americans — even when there are so many other people who would like to do us harm.

American citizenship is about more than a person's physical address. It is about being treated with common respect and dignity.

Even in America, though, there is not total freedom. There are rules we all must observe.

People like to believe they have unlimited freedom in America, but that is not, never has been true. With freedom comes responsibility.

When I am away from my home, I take it for granted that I will have to observe rules that are made by others. When the light is red, I have to stop and permit others to go past me, even if I am late for something. I must wait my turn for anything I want to buy — even if the people ahead of me showed no respect for the rules that restrict the number of items to be purchased in certain checkout lines. At work, I must follow whatever rules have been set by the boss — even if I think some or all of those rules are unfair and/or unreasonable.

But, when I am at home, I need only concern myself with my agenda. That can mean a lot of things, but mainly it means that I am in control of my particular patch of earth. It does not matter if I rent it or own it outright. It is my home.

I do have to be considerate of others. If I live in an apartment (which I do) and it is late at night, I can't play my stereo or my TV loud enough to keep people who are trying to sleep awake. But, as long as I do not intrude on other people's space — or break the law — I am free to do as I please in my own space.

A person cannot always explain or justify things he/she does in private, but it is someone's personal space, and justification is not necessary. Not even a king — or a president — may violate my personal space or demand justification of anything.

It was true in 1973, and it is still true today — even when surveillance is applied to things that didn't exist 40 years ago, like email and cellular phones.

The Empire Strikes Back

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"You will be better advised to watch what we do instead of what we say."

John Mitchell
July 1969

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John Dean had wrapped up his testimony about a week and a half earlier, and Congress had adjourned for its July 4 recess.

When the Senate Watergate Committee resumed its business 40 years ago today, the former attorney general of the United States and former manager of Richard Nixon's re–election campaign, John Mitchell, was scheduled to testify. He testified for three days.

Mitchell and Nixon were friends before Nixon became president. They had been friends since 1946, and they were colleagues on the same law firm before Nixon launched his second campaign for the presidency. Mitchell managed Nixon's successful 1968 bid and Nixon's re–election campaign in 1972 as well.

For whatever reason, Mitchell had Nixon's full confidence. Many Americans did not realize this 40 years ago, but Mitchell seemed to understand Nixon's personality — and, as a result, occupied a unique role among Nixon confidantes.

He might have been better suited to be Nixon's chief of staff, but I suppose Nixon was drawn to Mitchell's accomplishments in the legal field.

When Mitchell joined Nixon's New York law firm in 1967, he occupied the office adjacent to Nixon's, Theodore White wrote in "Breach of Faith." The men had several things in common, White wrote — born only eight months apart, they were of the same generation, and both had been veterans of World War II.

"Nixon was lonely in New York," White wrote. "[H]e enjoyed visits to Mitchell's country home ... where he could pound the piano. Tart–tongued, bald–headed, Mitchell had an almost roguish charm — and an air of tough, unruffled calm. Smoking his pipe, he would sit at a conference table, almost always speak last, then speak with apparent good sense."

In his book about the 1972 campaign, White wrote that Mitchell was the "[h]ardest of all the hard men around the president, by far," and that truly was something in the Nixon White House. "[H]e was as charming a conversationalist as one could meet," White wrote, "and at the same time as cold a personality as one ever encounters in politics."

I didn't see Mitchell's testimony when it happened, but I saw clips from it many times after. And I would agree with White's assessment. Mitchell's cold public persona came across loud and clear.

When Mitchell began his testimony 40 years ago today, he was almost surely the most well–known representative of the Nixon administration to appear. Dean had made an instant splash because he was the first to point the finger at Richard Nixon. For that reason, more than any other, there had been much anticipation of his appearance. But he was virtually unknown before his testimony.

Two big names who would follow Mitchell into the witness chair in July 1973 — Bob Haldeman and John Ehrlichman — were highly placed Nixon loyalists, too, but they were not as well known. Like so many other things that summer, the relative anonymity of Haldeman and Ehrlichman would soon be things of the past, but, on this day in 1973, Mitchell was probably the most effective witness to make the case for Nixon in the aftermath of Dean's testimony.

And he took a bullet for Nixon 40 years ago today. He accused Magruder of lying in his testimony, and he disputed what Dean had said.

(Mitchell had a way with words. He was the one who labeled administration activities "White House horrors." It was a phrase members of the committee used when questioning Mitchell — sometimes incorrectly, in Mitchell's view. When Sam Dash, counsel for the majority, used the phrase in a reference to the Watergate break–in, Mitchell corrected him: "Those are not the White House horrors, Mr. Dash." The distinction? The planning of such an operation was a "White House horror;" the actual carrying out of the plan was not.)

But Mitchell's smug, often arrogant attitude, which may have been appropriate for a courtroom, made it hard for anyone, even Nixon's defenders on the Senate committee, to like him.

Dash asked Mitchell at one point about a meeting he had with G. Gordon Liddy at which illegal activities were discussed, "[W]hy didn't you throw Mr. Liddy out of your office?"

"Well, I think, Mr. Dash," Mitchell replied, "in hindsight I not only should have thrown him out of the office, I should have thrown him out of the window."

The remark drew a smattering of apparently sympathetic — and somewhat nervous — laughter.

"Well, since you did neither ..." Dash said as the committee room erupted in loud laughter, refusing to be diverted from his point, " why didn't you at least recommend that Mr. Liddy be fired from his responsible position at the [president's re–election] committee since obviously he was presenting to you an irresponsible program?"

To which Mitchell replied, "Well, in hindsight I probably should have done that, too."

Folks became more familiar with Haldeman and Ehrlichman when Mitchell testified for a second day.

After he returned to the stand, Mitchell said that Haldeman and Ehrlichman did participate in a coverup, but they did so to protect Nixon.

But first, he had to answer a question from Hawaii Sen. Daniel Inouye, who observed that Mitchell had testified that he regarded Nixon's re–election to be so important that he was "willing to engage in activities which have been well described as being irregular."

"To what length are you now willing to go to deceive in an effort to avoid further implication of the president in the activities under investigation by this panel?" Inouye asked. "More specifically, are you willing to lie to protect the president?"

"I do not have to make that choice," Mitchell answered, "because, to my knowledge, the president was not knowledgeable."

After being grilled by the committee chairman, Sen. Sam Ervin, on decisions he had made following the Watergate break‐in, Mitchell remarked, "It is a great trial being conducted up here, isn't it?"

On his third day of testimony, Mitchell was questioned about conflicts in his testimony and vigorously defended his credibility.

I have often wished that I could have seen Mitchell's testimony when it was happening because I get the feeling, from seeing brief video clips and reading transcripts of his testimony, that he wasn't persuasive.

If anything, he struck me as being evasive. I always thought he was a weaselly sort.

"[Y]ou enjoy the distinction ... that it was your purpose not to volunteer anything," Dash said at one point. "Is there a distinction between your not volunteering anything and lying? If you do not volunteer an answer to a direct question, you might say you do not volunteer anything, but actually you are lying."

Mitchell's reply? "I think we would have to find out what the specifics are, what the particular occasion and ..."

See what I mean?

The Smoking Gun

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In an historical context, it's ironic that Barack Obama should claim executive privilege this week.

For two years, Richard Nixon got away with telling the American people that he was not involved in the Watergate coverup.

As time passed, fewer and fewer Americans believed what Nixon said, but his story (until he was forced to acknowledge otherwise) was that he hadn't known of the involvement of high–ranking White House officials until long after the break–in — and he stuck by that story.

Until the summer of 1973, when the existence of Nixon's White House recording system was revealed, it was Nixon's word against former White House counsel John Dean's. The knowledge that there were tapes of Oval Office conversations meant there was evidence that could prove which one was telling the truth.

Nixon resisted all attempts to force him to relinquish the tapes; he insisted they were protected by the principle known as executive privilege. But, in August 1974, the matter was before the Supreme Court, which ruled that Nixon had to turn over recordings of Oval Office conversations that Congress had been demanding and that Nixon had been trying to keep confidential.

The tapes included a conversation Nixon had with his chief of staff, Bob Haldeman, 40 years ago today — less than a week after the break–in — that clearly showed Nixon's complicity.

Earlier in 1974, Nixon agreed to release edited transcripts of certain conversations that had been subpoenaed — and those transcripts included conversations that occurred long before the one in which Nixon claimed to learn of the involvement of the higher–ups, but the earliest conversation in those transcripts had taken place in September 1972.

But as I wrote a few days ago, taped evidence of the first known conversation about Watergate in which Nixon participated was tampered with. No one will ever know what was really said on that occasion.

The tape of the June 23, 1972, conversation came to be known as "the smoking gun" because it proved that Nixon was an active participant in the coverup long before he acknowledged learning the details.

But it revealed more than that. It exposed aspects of Nixon's personality that had been hidden from public view.

In fact, the real smoking gun may have been destroyed in the mysterious "18½–minute gap" in a tape of a conversation between Nixon, Haldeman and John Ehrlichman three days earlier. Nixon's secretary, Rose Mary Woods, took the fall for that one, claiming to have erased it by mistake while working on the transcription, but it remains suspicious.

The meticulous notes that Haldeman always took at such meetings suggested that the conversation dealt primarily with Watergate, and electronics experts concluded that the gap was the result of at least four separate erasures — not one long one.

Consequently, the conversation that took place 40 years ago today may not have been the first time that Nixon and Haldeman spoke about the matter. But it's the first one of which evidence is known to exist.

Nixon's "initiating personal crime" came about "casually," wrote Theodore H. White in "Breach of Faith," when Nixon blithely "authorized use of the CIA to halt the FBI in its investigation of the Watergate break–in."

That was what always struck me as ironic about the Watergate scandal — a decision that had such profound repercussions on people's lives and careers, not to mention a nation's relationships with its leaders, was made in such an offhand fashion.

It's hard to tell just from the transcript of the conversation, but my best guess is that the Watergate–related exchange couldn't have taken more than five or 10 minutes, then it was on to something else.

Discussing what he called the "Democratic break–in thing," Haldeman told Nixon that "we're back in the problem area because the FBI is not under control, because [FBI director] Gray doesn't exactly know how to control it ... and their investigation is leading into some productive areas — because they've been able to trace the money ... through the bank source."

That was certainly a telling comment.

As anyone who ever read Bob Woodward and Carl Bernstein's account of the Watergate investigation knew, the money was what their source, known as Deep Throat, advised them to follow. The money would lead them to the heart of the conspiracy, he said, and it did.

Nixon and Haldeman conversed for an hour and half that day. They had been away from Washington at the time of the break–in and in the days immediately following, when the president's lieutenants tried to control something that was already beyond their control.

Yet the transcript of their June 23 conversation suggests, as I say, that they spent little time on Watergate. Nixon instructed Haldeman to "Play it tough. That's the way they play it, and that's the way we're going to play it."

And it was on to other business. When I read the transcript of that conversation, I could imagine them speaking as casually as they would have if they were talking about sports.

In retrospect, maybe it was treated more as one item on the agenda for a single day — of no more significance and no more memorable than selecting the menu for a state dinner.

"Therefore," wrote White, "the matter had become an administrative matter for the underground, which successfully contained the scandal until after the election."

That was, after all, the supreme objective — the re–election of the president. No real thought ever seemed to be given by the conspirators to what they would do after they won the election and Nixon was inaugurated for a second time.

Those involved seemed to believe — at least, at this point — that Watergate would go away and cause no more trouble for them.

And, for awhile, it didn't seem they needed to worry about it. When the nation prepared to go to the polls in 1972, surveys indicated that a majority of Americans knew little or nothing about Watergate. To anyone who was paying attention, it seemed that Nixon and his co–conspirators would get away with it.

But that would change.

Rose Mary's Boo-Boo

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Rose Mary Woods re–enacts the "Rose Mary Stretch" for photographers.

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The official accounts of the Watergate break–in and its subsequent coverup all say that the Oval Office conversation in which the so–called "smoking gun" was found to be in Richard Nixon's hand occurred 40 years ago Saturday.

But it's possible — if not probable — that the gun had been smoldering for a few days.

Actually, all the evidence and testimony suggest that the Nixon White House's damage control machine was humming the day of the break–in, but Nixon and his chief of staff, H.R. Haldeman, were in Florida. There were things that could not be done until they returned.

On this day 40 years ago, the men who were ultimately held accountable for the coverup conspiracy held a series of meetings that were dedicated to damage control. The first newspaper story that linked White House operative Howard Hunt to the Watergate burglars had been published that day, and the president's men were determined that culpability for the break–in would stop with Hunt.

In mid–morning that day, Nixon had a phone conversation with his campaign director and former attorney general, John Mitchell, then he met for an hour with Haldeman and John Ehrlichman, a top adviser. The burglary was only three days old at that time, but Ehrlichman already had met with just about all of the principals by that time.

Nixon and Haldeman, as I say, had been out of Washington at the time of the break–in. On Tuesday, June 20, 1972, they were back in the White House and allegedly being brought up to speed on what had happened in their absence — and there may have been no one else who knew as much about Watergate at that point as Ehrlichman did.

Consequently, it made sense to many observers that Nixon learned many of the details of the break–in from Ehrlichman on that occasion, but the evidence that might support that theory was incomplete.

There was a recording of that conversation, and investigators subpoenaed the tape when the existence of the White House taping system was revealed in the summer of 1973, but, in November, it was learned that a portion of the tape had been mysteriously erased before Nixon's lawyers first listened to it.

The White House's position was that Nixon's secretary, Rose Mary Woods, who had been with Nixon for more than two decades and was decidedly loyal to her boss, had accidentally erased about five minutes of the tape.

According to her account, Woods had been transcribing the tape when the phone rang and she reached to answer it. Her feet controlled basic functions like stop, play and record with pedals that left her hands free for typing; she insisted that, somehow, while she was answering the phone and then carrying on a five–minute conversation, she stepped on the record pedal, erasing that section.

Her side of the story was met with quite a bit of skepticism. A rather short woman, there was no conceivable way that Woods could comfortably pull off the maneuver that she described (dubbed the "Rose Mary Stretch") — even if she was a contortionist.

But things were considerably worse than that.

The actual gap turned out to be more than three times as long as the one for which Woods claimed responsibility, and she denied that her erasure was anything like the 18½ minutes it turned out to be.

Because the pitch of the buzzing noise that was made by the erasure changed several times, the unavoidable conclusion was that several separate erasures had been attempted.

Privately (and, in some cases, not so privately), it was suggested that the tape had been deliberately erased. Alexander Haig, Nixon's chief of staff at the end of his presidency, openly suggested Nixon may have erased it himself, either accidentally or intentionally.

Nixon, he said, was never comfortable with mechanical devices, and he might well have erased a portion of the tape when he was trying to listen to it.

That provided a possible, unintentional explanation, but unless that can be proven, the alternate possibility — that someone, possibly Nixon himself, deliberately destroyed evidence — cannot be dismissed.

The tape of the June 20 conversation has always intrigued me. Of all the tapes of White House conversations, it is the only one that was destroyed — at least in part.

Ultimately, it was a tape of a conversation between Nixon and Haldeman on June 23, 1972, that came to be known as the "smoking gun." That was the tape that caused Nixon's base in Congress to crumble — and led him to conclude that resignation was his only option.

What must Nixon and Haldeman and Ehrlichman have said to each other 40 years ago that prompted whoever it was to repeatedly record over the tape until that portion of the conversation was entirely erased rather than risk having it revealed to the public?

Was it worse than anything else that was revealed in those tapes?

Could it have done any more damage to the relationship between the American people and their government?

Twenty years ago, in a TV program that commemorated the 20th anniversary of the Watergate break–in, I heard Woodward talking about the 18½–minute gap.

With all the evidence of a huge criminal conspiracy that went deep into the White House, Woodward said, Nixon would have needed something like an 18,500–minute gap to successfully conceal his involvement.

I believed that when I heard it. Twenty years later, I am even more convinced that is true.