John Ehrlichman (Part 2) Watergate Hearings Testimony

[0:10] I understand you're a good one. [0:12] Well, I'm certainly not a constitutional lawyer, Senator. [0:14] Well, you remember when we were in law school, [0:17] we studied a famous principle of law that came from England [0:21] and also is well-known in this country, [0:25] that no matter how humble a man's cottage is, [0:28] that even the king of England can't enter without his consent. [0:33] I'm afraid that's been considerably eroded over the years, hasn't it? [0:36] Down in my country, we still think it's a pretty legitimate principle of law. [0:41] In the Senate of the United States, [0:48] a resolution to establish a select committee of the Senate [0:51] to conduct an investigation and study of the extent, if any, [0:55] to which illegal, improper, or unethical activities [0:58] were engaged in by any persons acting individually [1:01] or in combination with others in the presidential election of 1972 [1:05] or any campaign, canvas, or other activity related to it. [1:10] From Washington, NPAC brings you gavel-to-gavel videotape coverage [1:14] of today's hearings by the Senate Select Committee [1:17] and presidential campaign activities. [1:19] Here is NPAC senior correspondent, Robert McNeil. [1:24] Good evening. [1:25] It's a brave man who comes to debate the Constitution [1:28] and the powers of the presidency with Sam Irvin, [1:31] but John Ehrlichman did that today. [1:33] A good part of his second day before the Senate committee [1:36] was spent in legal argument [1:37] in an attempt to justify the burglary [1:39] of Daniel Ellsberg's psychiatrist by the White House plumbers. [1:44] The rest of the time, [1:45] Ehrlichman spent in denying the testimony of other witnesses [1:47] and accusing the late J. Edgar Hoover of bureaucratic puffery. [1:52] He accused John Dean of lying [1:54] and John Mitchell of having a hazy memory. [1:57] And he reiterated that he had no complicity [1:59] in the Watergate cover-up. [2:01] The committee will spend at least another day with Ehrlichman [2:03] and possibly two. [2:06] Outside the caucus room world [2:07] of Ehrlichman and Wilson versus Irvin [2:10] and his applauding audience, [2:11] there were other developments [2:12] related to the Watergate crisis. [2:14] President Nixon met this morning [2:16] with the Republican congressional leadership. [2:18] Vice President Agnew was there, [2:20] and so was Republican National Chairman George Bush. [2:23] When the meeting broke up, [2:24] GOP Senate leader Hugh Scott [2:26] said he felt the Irvin committee was correct [2:28] in pursuing the subpoena [2:30] of White House tapes and documents, [2:32] but he predicted that the president [2:33] would ultimately triumph in the Supreme Court. [2:36] The Republican House leader, Gerald Ford, [2:39] said he did not feel [2:40] that the president's decision to withhold the tapes [2:42] was having any adverse effect [2:44] on the president's support in Congress. [2:46] He said there had been a solidification [2:47] of Republican backing of the president. [2:50] But Senator Robert Dole of Kansas, [2:53] Bush's predecessor as head of the Republican Party, [2:56] said on the NBC's Today Show [2:57] that he felt the president should tell all about Watergate. [3:01] If the president's not involved, [3:03] why not inform some of us? [3:04] I think it's long past that we can say [3:06] that Watergate will just go away, [3:08] said the senator. [3:09] Also, a Lou Harris poll released today [3:11] contained, among other things, [3:13] the results that 60% of its sample [3:15] feel that the president should release [3:17] the tapes and papers. [3:19] The next round in the confrontation [3:20] will come tomorrow, [3:22] and Peter Kaye has a report on that. [3:24] Tomorrow will bring another milestone [3:26] in the continuing constitutional battle [3:28] among the White House, [3:29] the Senate Watergate Committee, [3:31] and Special Prosecutor Archibald Cox. [3:34] Subpoenas direct President Nixon [3:35] to deliver presidential documents and tapes [3:38] to the committee and the Cox [3:39] by 10 o'clock tomorrow morning. [3:41] But nobody really expects that to happen. [3:44] Instead, Senator Sam Irvin told reporters today [3:47] that he expects the White House [3:48] to seek to quash the subpoenas. [3:51] That legal maneuver would propel the thing [3:53] into federal court [3:54] and eventually to the U.S. Supreme Court. [3:57] If the White House doesn't act, [3:59] Irvin says the committee has two choices. [4:02] First of all, [4:02] it can seek a contempt citation [4:04] by the whole Senate against the president, [4:06] but Irvin indicates he doesn't want to do that. [4:09] The other alternative [4:10] is to seek a declaratory judgment. [4:13] The declaratory judgment [4:14] declares rights and responsibilities, [4:17] and under the Declaratory Judgment Act, [4:21] while the court could run the decision, [4:24] it was duty that the Senate committee [4:27] had a right to the tapes [4:29] and the papers they were seeking, [4:33] and that it was duty to the president [4:35] to make those tapes [4:37] and papers available to the committee. [4:41] Well, if the Supreme Court [4:42] should render such a verdict [4:43] and in the favor of the Senate committee, [4:46] is it clear to you [4:46] that the president would intend to obey it? [4:50] Well, unless the president, [4:53] I would think he would obey it [4:55] if he has any respect for law and order. [4:58] What if he chooses to ignore it [4:59] on the same grounds [5:00] that he's already cited, [5:01] that there is a separation of powers? [5:04] Well, that battle would, [5:05] if the Supreme Court sustained [5:07] the committee's position, [5:10] that would be an adjudication [5:12] that there was no such right [5:14] as that on his part. [5:16] In a few minutes, [5:17] right off the bat, [5:18] you're going to be treated [5:18] to 43 minutes of an argument [5:20] over the constitutional powers [5:22] of the president of the United States. [5:24] John Kramer of the Georgetown University Law Center [5:26] is with us now. [5:28] Mr. Kramer, what guidance can you offer [5:29] in understanding this argument? [5:31] Well, assume you're a Supreme Court justice [5:33] and the basic issue you have to decide [5:35] was the break-in [5:36] of Mr. Ellsberg's psychiatrist's office [5:38] justified by an inherent power [5:41] residing in the president [5:42] to waive the Fourth Amendment rights [5:44] that normally protect your home [5:46] and your office [5:46] against unauthorized intrusions. [5:49] Yesterday, there was a question [5:50] that perhaps this was a statutory power. [5:52] But today, as you will see, [5:53] the statute is not involved at all. [5:56] All that is concerned [5:56] is whether or not the Constitution [5:57] authorizes the president to so do. [6:00] So the first question is, [6:01] does the power exist? [6:03] And you will hear some talk [6:03] about the steel seizure case [6:05] in which the powers of the president [6:07] were quite limited. [6:08] Some talk about the New York Times case [6:09] in which the president's power [6:10] to abrogate the First Amendment [6:11] was limited. [6:13] Then the question arises, [6:14] if it exists, [6:15] what are its preconditions? [6:16] And there seem to be three [6:17] which are gone over very heavily [6:19] in the testimony. [6:19] But first of all, [6:20] there must be some express authorization [6:22] by the president. [6:23] And here we have a president [6:24] who on May 22nd [6:26] said, [6:26] I at no time approved the break-in. [6:28] Secondly, [6:29] the matter must involve [6:30] national security. [6:31] And the question there [6:32] is who decides [6:33] whether national security [6:34] is at stake? [6:35] Is it up to the president alone [6:36] or may his judgment [6:37] be reviewed by the courts? [6:39] And the third issue [6:39] is even if there is this power, [6:41] can it be directed [6:42] against innocent third parties [6:43] who are not themselves [6:44] the source of concern [6:45] for national security? [6:46] In this case, [6:47] a psychiatrist. [6:48] And finally, [6:49] if the power exists, [6:51] what are its limitations? [6:52] Does it extend [6:53] as far as robbery [6:54] or murder? [6:54] That too will be discussed. [6:56] Okay, [6:57] and you'll see [6:57] the argument for yourself, [6:58] the argument basically [7:00] between Mr. Wilson [7:00] and Senator Irvin. [7:01] You can make your own decision. [7:03] John Kramer [7:03] will be back [7:04] at the close [7:05] of tonight's broadcast [7:06] to talk about this [7:07] and other subjects [7:08] concerning today's [7:09] hearing session. [7:10] He will be joined [7:11] at that time [7:11] by Alan Barr, [7:12] long-time Washington [7:14] journalist and author. [7:16] Today's committee meeting [7:17] was a short one. [7:18] This will be one [7:19] of the few evenings [7:20] our replay ends [7:21] before midnight. [7:22] Here is our nightly summary [7:23] of the day's chronology. [7:25] In the first hour, [7:26] Chairman Irvin [7:27] and Ehrlichman lawyer [7:28] John Wilson [7:29] argue about presidential powers, [7:31] with Wilson suggesting [7:32] that the president [7:33] holds a reservoir [7:34] of constitutional power [7:35] that has not been [7:36] defined in court. [7:38] And Irvin argues [7:38] that the existence [7:39] of the plumbers, [7:40] not the problem [7:41] of Ellsberg leaps, [7:42] was an instance [7:43] of domestic subversion. [7:45] Ehrlichman resumes [7:46] his testimony [7:46] and in the second hour [7:48] he says he never [7:49] discussed clemency [7:50] for the Watergate 7 [7:51] because the president's [7:52] marching orders [7:53] would that there would [7:54] be no clemency. [7:55] And he argues [7:56] with earlier testimony [7:57] saying he did not [7:58] propose the destruction [7:59] of sensitive documents [8:00] from Howard Hunt's safe [8:01] that were given [8:02] to L. Patrick Gray. [8:03] In the third hour, [8:05] Ehrlichman argues [8:06] that he had no part [8:07] in any cover-up [8:08] and he disparages [8:09] the FBI investigation [8:10] of the Pentagon Papers leak. [8:12] Saying that a progress report [8:13] from J. Edgar Hoover [8:14] to Eagle Chrome [8:15] was nothing but window dressing. [8:18] Senator Irvin is now [8:19] about ready [8:20] to begin the day's activity. [8:30] Yes, yes, yes. [8:32] I understand [8:37] that Mr. Wilson [8:39] wishes to address [8:40] the committee [8:40] on the legal question [8:42] we discussed [8:43] with Mr. Erdickman [8:44] and Mr. Wilson yesterday [8:45] and without objection [8:47] on the part [8:47] of any member [8:48] of the committee. [8:50] I will extend to him [8:51] the opportunity [8:51] to do so at this time. [8:52] Thank you, Mr. Chairman. [8:56] I want to say sincerely [8:57] I'm very grateful [8:58] to you [8:59] for giving me [9:01] this opportunity. [9:02] I have a feeling [9:04] you have your own thoughts [9:05] about this. [9:06] This may turn out [9:07] to be an exercise [9:08] in mental calisthenics, [9:10] but it'll be fun anyway. [9:13] I can't quote the Bible [9:16] like you can, [9:16] but I'm reminded [9:17] of the high school [9:19] physics anomaly [9:22] of what happens [9:23] when the irresistible force [9:24] hits an immovable body. [9:27] And I don't know [9:28] which is which [9:29] at the moment. [9:30] Thank you, sir. [9:31] Now, seriously, [9:32] if I may, [9:34] in connection [9:35] with section 2511, [9:41] our exchange yesterday [9:42] was so rapid [9:43] that I was not able [9:45] to get across to you [9:46] the genesis [9:47] of my thinking. [9:50] 2511 to me [9:51] is a symbol. [9:53] I would not rely [9:54] upon 2511 [9:56] as a source of power. [9:58] It's a recognition [10:02] of the possibility [10:03] of a source of power. [10:06] And I want to make [10:11] a distinction immediately [10:13] between domestic security [10:20] and foreign security [10:21] because I want to take [10:25] my text from the Supreme Court's [10:29] decision of last year [10:30] in the case which has [10:33] been embarrassingly [10:34] called the Keith case [10:36] because it involved [10:37] a mandamus against Judge Keith [10:40] in the Eastern District [10:42] of Michigan [10:42] or the Plamondon, [10:45] P-L-A-M-O-N-D-O-N case [10:47] because he was the one, [10:49] the principal of three conspirators [10:52] in that action. [10:56] The case formally [10:57] is known as [10:58] United States Petitioner [10:59] against the United States [11:02] District Court [11:03] for the Eastern District [11:04] of Michigan. [11:04] It is found in [11:07] 407 United States, [11:14] 32 L.A. [11:15] 2nd, [11:16] 752, [11:17] and 92 Supreme Court. [11:20] I'm sure the chairman, [11:21] maybe all members [11:22] of the committee, [11:23] have familiarity [11:24] with this decision. [11:26] It's a tremendous decision. [11:29] written by Mr. Justice Powell [11:33] with concurring opinions [11:36] by Mr. Justice Douglas [11:39] and Mr. Justice White. [11:45] Now, the state of the law today [11:48] is that the point [11:52] which I am arguing [11:56] has not yet been passed upon [12:02] by any court that I know of. [12:05] But the Supreme Court [12:07] has left the question [12:09] wide open, [12:10] if you please. [12:13] I thought I had before me [12:15] and I don't want to take [12:16] too much time [12:17] because I promised [12:18] Senator Talbidge [12:18] I wouldn't take more [12:19] than 20 minutes [12:20] to get through this [12:21] because I'm usurping [12:22] his time at the moment. [12:25] But there is a, [12:29] the Senate report, [12:32] 1096 I think it is, [12:33] on the Safe Streets Bill [12:35] of 1968, [12:37] of which 2511 is a portion. [12:42] And of course, [12:43] as far as the chairman [12:43] is concerned, [12:44] and I know that [12:45] this is an old hat for him. [12:47] But there is, [12:48] in the report, [12:49] a section on national security [12:51] which recognizes [12:53] a reservoir of power [12:55] in the presence [12:57] of the United States [12:58] with respect to [13:00] foreign intelligence, [13:03] foreign leaks, [13:04] this sort of thing. [13:06] Now, I anticipated [13:12] that if anybody [13:15] has inquired [13:17] into some of the things [13:19] which I've done [13:20] in the practice of the law, [13:22] 21 years ago, [13:23] though I was in the steel [13:24] seizure case. [13:25] I filed the first suit [13:27] on behalf of [13:27] Youngstown Sheet and Tube, [13:30] and the case today [13:32] bears the name [13:32] of my client. [13:34] In that case, [13:35] I fought vigorously [13:36] against the inherent power [13:39] of President Truman [13:41] to seize the coal mines. [13:45] We were met [13:46] with the defense, [13:47] and I had a video to do [13:51] with the argument [13:51] before Judge Pine, [13:53] which was the first decisive opinion. [13:56] I carried the whole matter [13:59] in the Court of Appeals [14:00] for a day or two, [14:01] whatever it took, [14:03] and then there were 35 of us lawyers [14:05] who wanted to argue [14:06] in the Supreme Court, [14:08] and we all agreed upon [14:08] Mr. John W. Davis, [14:11] who I would call the greatest. [14:12] And the Supreme Court, [14:16] as you know, [14:17] sustained our contention [14:18] that there was not [14:20] a package of inherent powers [14:24] in President Truman [14:26] to make that seizure. [14:28] Now, this case [14:30] is unlike that case, [14:32] because there is a reservoir [14:34] of constitutional power [14:35] recognized, [14:38] at least hypothetically, [14:39] by the Congress, [14:41] by your own committee, sir, [14:42] by the bill [14:45] which was passed. [14:49] In the Keith [14:51] or Klamaton decision, [14:54] both Senator McClellan, [14:56] who I believe [14:57] was the chairman [14:57] of the Judiciary Committee, [14:59] and Senator Hart [14:59] were quoted [15:01] in their debates [15:02] on the floor, [15:05] and they make it plain [15:06] that Section 2511 [15:10] was not intended [15:11] to restrict [15:13] or extend [15:14] the power [15:15] of the president. [15:17] It was simply [15:18] a reserving clause [15:21] with respect [15:23] to whatever power [15:24] he had. [15:26] Now, my proposition is, [15:27] and I want to come [15:28] to the Klamaton case, [15:30] my proposition is, [15:31] succinctly stated [15:32] on the basis [15:34] of my reading [15:35] of the Supreme Court's [15:37] decision [15:37] in the Klamaton case, [15:40] is that [15:41] in a domestic [15:45] security case, [15:47] and that was that case, [15:50] despite the fact [15:51] that Klamaton [15:51] bombed the CIA [15:53] headquarters in Chicago. [15:56] It was treated [15:57] by the Supreme Court [15:59] time and time again [16:01] as a domestic [16:02] security case. [16:04] And I do not have [16:05] to rely upon [16:06] inferences [16:06] when I tell you [16:08] that the Supreme Court [16:09] said, [16:11] we are not passing [16:12] upon them [16:12] the power [16:14] of the president [16:15] with regard [16:16] to foreign intelligence. [16:19] Now, [16:19] the proposition [16:21] that I'm offering [16:22] to you [16:22] and other members [16:23] of the committee, [16:23] if you please, sir, [16:24] is that while [16:27] it has been settled [16:28] in the Klamaton case [16:29] that for [16:31] domestic security [16:33] purposes, [16:35] the Fourth Amendment [16:36] rears its [16:39] protective head [16:40] and despite [16:43] whatever may be [16:44] the constitutional [16:45] power of the president, [16:48] he must apply [16:49] for a prior judicial [16:51] action [16:51] in order to [16:54] carry out [16:56] wiretapping [16:59] of a domestic [17:01] security case. [17:03] As you well know [17:04] and as other members [17:05] of the committee [17:06] who are students [17:07] of constitutional law [17:08] know that [17:09] I'm not sure [17:10] he was the first one [17:11] to say this, [17:11] but Mr. Justice Douglas [17:13] calls the Fourth Amendment [17:14] the warrant clause. [17:16] And he does what [17:20] I think all scholars [17:21] do in this area [17:22] and I'm [17:24] Paul Patting [17:24] Paul Patting them. [17:27] Did I get that [17:28] out right? [17:28] I'm not sure. [17:30] In that, [17:31] the warrant clause [17:34] seems to be [17:35] a clear part [17:38] of the [17:38] preceding provision [17:41] in the same [17:41] article for [17:42] that there shall not [17:44] be any unreasonable [17:45] searches and seizures. [17:49] As you know, [17:52] seizures which are [17:53] reasonable [17:53] may be done. [17:57] You know, [17:58] of course, [17:58] that the warrant clause [17:59] does not always [18:01] apply to [18:02] searches and seizures. [18:04] You know that [18:05] an arrest by a [18:06] police officer [18:06] of a felony, [18:09] an unpopular belief [18:10] that a felony [18:11] was committed, [18:12] where he arrests [18:13] a man inside his [18:14] house, [18:14] he may search [18:15] the house [18:15] or the immediate [18:17] vicinity where [18:18] the arrested man is. [18:21] He does not have [18:22] a warrant. [18:23] He did not have [18:24] the warrant for [18:25] the arrest. [18:26] He did not have [18:26] the warrant for [18:27] the search. [18:28] So there is some [18:29] incursion upon [18:31] the idea of [18:34] searches and seizures. [18:36] But coming directly [18:38] to how I read [18:41] the Keith or [18:43] Plamedon case, [18:44] it is extremely [18:47] interesting that [18:50] I don't remember [18:55] ever reading [18:59] before that the [19:01] Supreme Court [19:02] would call upon [19:03] the oath of [19:05] the president [19:06] in the second [19:08] article of the [19:09] Constitution, [19:10] the fourth clause, [19:11] as a source of power. [19:15] As you know, [19:16] it says to preserve, [19:17] protect, and defend [19:17] the Constitution [19:18] of the United States. [19:19] And I have not [19:22] found, perhaps the [19:24] chairman is way [19:25] ahead of me on this, [19:26] I have not found [19:27] any case where a [19:29] source of presidential [19:31] power has been [19:33] drawn from the [19:34] language of the [19:34] oath, whether it [19:36] has before or [19:37] whether it has not. [19:39] The imprimatur of [19:40] the Supreme Court [19:41] through Justice Powell [19:42] has now been put [19:43] upon the language [19:45] of the oath as a [19:46] source of power. [19:48] And it is a source [19:49] of power, as the [19:52] court says, and I [19:53] will read the [19:55] beginning of this [19:55] paragraph. [19:56] We have begun the [19:57] inquiry by noting [19:58] that the president [19:59] of the United States [20:00] has the fundamental [20:01] duty, under article [20:02] 2, section 1 of [20:03] the Constitution, [20:05] quote, to preserve, [20:06] protect, and defend [20:07] the Constitution of [20:08] the United States. [20:09] Close quote. [20:10] Implicit in that [20:11] duty is the power [20:12] to protect our [20:13] government against [20:14] those who would [20:15] subvert or overflow [20:16] it by unlawful [20:17] means. [20:19] And it goes on to [20:20] say, in the exercise [20:21] of that power, the [20:23] Attorney General may [20:24] be authorized to [20:26] issue a [20:27] permissions to [20:28] tap wires. [20:30] Now, mind you, this [20:31] case ends up with [20:33] the result that [20:35] because the tapping [20:36] in this case, with [20:37] the approval of the [20:38] Attorney General, and [20:40] on the basis, let's [20:42] say, of the philosophy [20:44] of 2511, the Supreme [20:48] Court said that [20:50] because it involved [20:51] domestic security, it [20:55] did not abrogate, [20:57] supersede, or otherwise [20:59] lay aside the Fourth [21:01] Amendment. [21:01] But the question is [21:03] wide open, if you [21:04] please, as to whether [21:08] in the case of [21:09] foreign intelligence, [21:13] the cloak of the [21:16] Fourth Amendment wraps [21:18] itself around the [21:19] President and requires [21:21] prior judicial action. [21:24] Now, 2511 has had the [21:29] effect of saying that in [21:34] law, in certain instances [21:37] mentioned therein, the [21:40] President will not [21:44] violate the wiretapping [21:47] law by proceeding to [21:50] tap for purposes stated in [21:54] there. [21:55] It goes on to say that the [21:57] taps which are obtained are [21:59] admissible in evidence and [22:01] are not subject to the, I'm [22:05] adding this, are not subject [22:06] to judicial attack. [22:09] Now, the Supreme Court in [22:10] the Pramitan case. [22:15] Is that, isn't that the [22:16] same case as United States [22:18] versus United States [22:19] District Court? [22:20] I gave it a few minutes [22:21] ago as being the formal [22:23] citation, but I didn't want [22:25] to have to say that every [22:26] time I cite the case. [22:27] I don't want to like to have [22:28] to use that to be hard to [22:31] pronounce surname. [22:31] You and I are thinking [22:34] about the same case. [22:35] Yes, sir. [22:36] Now, nobody can dispute me [22:41] on one point, and I'm [22:42] being, I'm sticking my neck [22:43] way out, that the Supreme [22:45] Court reserved the question [22:47] of the use of the reservoir, [22:51] of a possible reservoir, let [22:53] me put it that way, of [22:55] constitutional power reposed [22:58] in the President to violate [23:01] the law in respect of [23:05] foreign intelligence. [23:06] foreign espionage, foreign [23:09] collaboration. [23:10] That is in here, I can turn [23:12] a half a dozen times to [23:15] Justice Powell's position in [23:17] making it clear that he was [23:20] not deciding that question. [23:22] Now, my position is that if [23:26] there is this reservoir of [23:30] power, and your own [23:33] committee, sir, in reporting [23:35] out the Safe Streets Act, a [23:38] bill in 1968, was the [23:43] was willing to give an [23:47] indication that there existed a [23:51] reservoir of power for the [23:54] purpose of, well, what I say, [23:56] and this is my language, for the [23:58] purpose of permitting the [23:59] President to otherwise, to do [24:03] what would otherwise be a crime [24:05] to protect the nation against [24:10] foreign intelligence and for the [24:13] purpose of obtaining foreign [24:14] intelligence. [24:15] Now, I know I'm open to the [24:19] attack, well, can he shoot [24:21] somebody on the street? [24:24] I'm not going that far, and [24:28] that is driving myself to a [24:33] conclusion, not ad absurdum. [24:36] But my view is that, as you know, [24:40] you all know, wiretapping is a [24:44] form of invasion of the premises [24:47] of the person who is overheard. [24:52] And in the cats and the burger [24:53] cases, with which I'm sure all of [24:55] you are familiar, the Supreme Court [24:59] has said, and now in this [25:01] sophisticated age, wiretapping is [25:04] another kind of invasion of the [25:07] privacy and premises of the man [25:09] whose conversation is being [25:12] bugged, so to speak. [25:14] So that we have squarely, we're not [25:20] driving this problem any further [25:22] today than saying that it is not a [25:28] silly proposition. [25:30] Now, Mr. Chairman, you didn't call [25:32] it silly. [25:32] You made me feel it was, but you [25:36] didn't say it. [25:37] It is not a silly proposition. [25:40] And for us to contend that an entry [25:44] into the psychiatrist's office under [25:50] grounds which would be technically [25:52] state burglary, because there's no [25:55] federal crime in that respect, is no [25:59] different from an entry through his [26:03] telephone system. [26:07] Your committee, by your committee, [26:10] I'm not speaking of this august body, [26:12] I'm speaking of another august body, [26:14] that is the Judiciary Committee. [26:17] And I don't find that you, sir, or [26:21] anyone else dissented from the [26:24] philosophy of the report of the [26:27] Senate, which went out on the floor [26:30] in support of that bill, that there [26:33] is very likely a reservoir of [26:38] constitutional power, unlike the [26:41] steel case in the president, in the [26:45] matter of national security. [26:48] That's the reason, sir, that I made so [26:50] bold yesterday, and I want to [26:53] apologize for what might have been a [26:54] rude interruption. [26:55] When I asked you to read the latter part [26:59] of the first sentence, or to protect [27:02] national security information against [27:05] foreign intelligence activities, this [27:08] is the kind of thing which I pick out of [27:11] the symbol of 2511, lay it on top of the [27:16] Panama case, and say that today there is [27:21] no one living, indeed there is no one in [27:25] this room, who can assert with categorical [27:30] certainty that the president of the [27:32] United States does not have the [27:36] constitutional power to cause the [27:40] entry under what would be otherwise [27:44] illegal circumstances in pursuit of [27:48] foreign intelligence. [27:51] And I say again, without fear of [27:53] contradiction, that we are invited to [27:57] consider, when we get to that point, [28:01] that the Fourth Amendment may have [28:04] vanished from the scene. [28:07] I think I must be running close to my [28:09] 20 minutes. [28:11] And I'm like you are, Mr. Chairman, I [28:13] don't want to trespass upon it. [28:16] I do have some very excellent phrases [28:22] from Justice Powell's decision. [28:26] Let me just conclude by quoting one [28:31] from a section of his brief which has [28:33] the Roman numeral four. [28:37] We emphasize before concluding this [28:39] opinion the scope of our decision. [28:41] As stated at the outset, this case involves [28:45] only the domestic aspects of national [28:49] security. [28:51] We have not addressed and expressed no [28:53] opinion as to the issues which may be [28:55] involved with respect to the activities of [28:58] foreign powers or their agents. [29:02] And there's a footnote that is interesting. [29:06] For the view that warlikeless surveillance, [29:10] though impermissible in domestic security [29:13] cases may be constitutional where foreign [29:16] powers are concerned, see United States [29:19] against Smith in a fence-up case [29:21] decided in 1971 and a treatise, I'm adding [29:25] the word treatise, by the American Bar Association [29:28] Criminal Justice Project standards related [29:32] to electronic surveillance in February 1971. [29:36] See also United States versus play in 430, [29:42] federal second, 165. [29:44] Thank you, Mr. Chairman. [29:46] Well, Mr. Wilson, I've enjoyed your argument. [29:52] I have long known you to be one of the [29:54] nation's truly great lawyers. [29:57] And I would like to say if I was, I'm a sort of a [30:00] country lawyer myself. [30:01] And sometimes I get sort of emphatic in the [30:08] statement of my views because I don't want to, [30:11] I've never been able to straddle fences very well. [30:16] I agree with your interpretation of the case of [30:20] United States versus United States District Court. [30:24] In this case, the government was taking a position [30:26] which was long maintained by former Attorney General [30:30] Mitchell that the president had inherent power to [30:35] exercise surveillance without a warrant from any court [30:42] under, in respect to, to detect subversive [30:50] or domestic subversion. [30:52] And of course, in this case, in the case you referred to, [30:57] the government took the position that Section 25.11.3 [31:02] argued that except the national security surveillance [31:08] from the act's warrant requirement, [31:11] Congress recognizes the president's authority to conduct such [31:14] surveillances without prior judicial approval. [31:19] Justice Powell said, Section 25.11.3 [31:22] certainly confers no power, as the language is wholly [31:26] inappropriate for such a purpose. [31:28] It merely provides that the act shall not be interpreted to [31:31] limit or disturb such power as the president may have under [31:34] the Constitution. And then his ultimate decision was that we [31:39] therefore think the conclusion inescapable that Congress only [31:42] intended to make clear that the act simply did not legislate with [31:46] respect to national security surveillance. [31:48] And I served on the Judiciary Committee when the Section 25.11 of [31:55] Title 18 was drawn. And of course, if we hadn't put this in there, [32:03] the same thing would have resulted because Congress couldn't take away [32:06] any constitutional power of the president. [32:09] So they merely, they put that in there because it was a controversy [32:13] between some members of the committee, have an opinion that the president [32:17] has almost powers that would make an Eastern potentate turn green with envy. [32:21] And some people, like myself on the committee, believe that the Constitution [32:26] limits and defines the powers of the president. [32:31] Some people believe in the doctrine of inherent powers. [32:34] I don't think the president has any power at all, except what the [32:38] Constitution expressly gives him, or such powers as are necessarily [32:42] inferred from the express powers. [32:46] I think that's the reason he wrote the Constitution, to keep the president [32:49] as well as Congress and the courts from exercising tyrannical power. [32:54] And, well, I don't agree with that this case has any application [33:04] whatever to the situation. I agree with you it has no application [33:08] to the situation we discuss it. But why are you and I, the private [33:12] companies, on the facts? I don't think we have a rather anomalous [33:20] situation. Here was the government. They weren't prosecuting Ellsberg [33:23] through the agency of the Department of Justice for giving papers to Russia. [33:28] They were just merely charging him with stealing some papers that belonged to [33:33] the government, as I recall. And here is some employees of the White House go out [33:40] and, for some strange reason, I guess, trying to further the didn't trust the [33:46] Justice Department to do the prosecuting all by itself. So they decided that they [33:50] ought to go and steal some documents from the doctor of a man who was being [33:55] prosecuted from stealing from the government, which is quite a peculiar situation, really. [34:00] Now, I can see the slightest relationship between Dr. Field, as I believe his name was, [34:12] notions of the mental state of Daniel Ellsberg and foreign intelligence activities. The only [34:25] activity I think the doctor was engaged in was trying to determine what the mental state of [34:30] this patient was. He wasn't engaged in any foreign intelligence activities. And I think, [34:37] just my interpretation of the Constitution, I think that the emissaries that were sent out there by the [34:43] plumbers to try to steal the doctor's notes were domestic subversion and not a defense of this [34:53] country against foreign intelligence activities. Now, I think your steel case, which I think is one of the [35:00] remarkable cases. They held in that case, and I'm sure by largely on the basis of the very persuasion and [35:09] convincing arguments you made, that the President, that even though the United States was engaged in war [35:15] in Korea and needed steel in order that the men fighting that war might have weapons and munitions, and even [35:30] though industrial disputes were about to close down the source of that steel, namely the steel plants, they held at the [35:38] that the present United States didn't have any inherent power in the Constitution to seize steel mills for the [35:47] purpose of securing the flow of munitions and weapons to American soldiers locked in battle with a foreign [35:54] foe. And I think that's pretty persuasive authority. If that's so, the President doesn't have any inherent power under the [36:05] Constitution to seize steel mills in order that he might carry on a war and punish weapons and munitions and able to [36:14] the soldiers to fight and protect themselves against destruction at the hands of the enemies, I just think that is [36:20] authority for the proposition that the President has no, a President has no inherent power to seize steel mills in time of war, to carry on the war, has no inherent [36:31] authority to steal a document from a psychiatrist's office in time of peace. [36:37] Mr. Chairman, may I, may I have two minutes to, pardon me, Mr. Sir. [36:43] If I may, Mr. Wilson, before you respond, and I'll be glad to yield if you care to respond in advance. But before you do, I'd like to, if [36:50] Senator Talmadge is agreeable, to yield for a few moments so I can inject one or two other thoughts on this. [36:56] I'd like to yield to my friend from Tennessee. [36:58] Thank you, sir. I'd like to suggest two or three more points that you might like to reply to when you do reply to the [37:06] statements made by the Chairman, if that's agreed. To begin with, the Chairman is fond of pointing out from time to time that he is just a country lawyer. He omits to say that he graduated from Harvard Law School with honors. [37:24] If the Senator from Tennessee will yield, I'd like to say a word, and I'm on defense on that point. [37:46] I have a friend who introduced me to North Carolina audience. He said he understood I was graduating at Harvard Law School, but thank God nobody would ever suspect it. [37:56] I'm also reminded, Mr. Chairman, by this really remarkable colloquy between Mr. Wilson, the distinguished attorney, and the Chairman, the distinguished lawyer. [38:11] A case that a young lawyer argued before the U.S. Supreme Court, his first one, and he argued very eloquently and persuasively. [38:22] And the Chief Justice said, young man, that's not the law. And the young fellow says, well, it was the law until your honor spoke. [38:31] So really, it seems to me that both of you have identified a basic and fundamental element of this colloquy. [38:38] That is, the court has not spoken on the theorem to which you address your attention. [38:44] But that then launches me into two or three other things that I'd like to suggest for your consideration. [38:49] There is no doubt in my mind that there is the doctrine of implied power, implied power of the presidency in certain respects that I shan't enumerate at this time, and implied powers of the Congress. [39:04] There is no reference in the Constitution to the authority of the Congressional Committee to conduct this investigation, but the power is clearly ancillary and necessary to the functioning, to the intelligent functioning of a legislative body. [39:25] That is, the inquiry into a factual situation in predetermination of the desirability or the undesirability of legislative remedies. [39:34] So the doctrine of implied powers appears clear. [39:39] The question is how they are implied, to what extent, and what do they say? [39:43] If we address ourselves carefully to the proposition and the theorem that Mr. Wilson suggests, that there is a reservoir of power in terms of national security, not spelled out with particularity in the Constitution, but necessary as an aid to the functioning of the presidential role as commander-in-chief and as chief executive officer of the government. [40:08] And that they include an abridgment, if you please, of the Fourth Amendment in the event that the National Security Rule applies, then it seems to me that the traditional and ordinary rules of construction require us first to try to look at the four corners of the document, which is a fairly cavalier way to refer to the charter document, the Constitution. [40:31] But to look at the Constitution and all of the amendments to see where and from what source and from what clause or amendment such implied powers might flow. [40:43] And that if we find conflict, as your theorem suggests, between the inherent authority of the commander-in-chief or the chief executive officer of the government to protect the national security vis-à-vis the determination of foreign intelligence activity, [40:58] we have a further responsibility under the doctrine of construction to reconcile apparent conflicts within the Constitution. [41:06] In this case, the role of the commander-in-chief and the requirements of national security and the fairly explicit and direct requirements of the Fourth Amendment of the Constitution, [41:15] to reconcile them if we can, just as we try to reconcile the apparently conflicting testimony of witnesses who appear before this committee. [41:24] And that if we can't reconcile them, then we resort to the most logical inferences we can in determining what the authors decided. [41:32] The doctrine of construction itself, you determine legislative history only if the document will not speak unambiguously for itself. [41:42] That then finally leads me into the question I'd like to put. [41:47] It seems to me that we have a factual question here. [41:52] It is entirely possible to construct an attractive legal theorem that the president does or does not have this inherent authority, this reservoir of power in terms of national defense. [42:05] It is entirely possible to construct a theorem that that does not subsist and endure in the face of a contravening requirement of the Fourth Amendment, as Senator Irvin indicates. [42:15] But don't we really then have to test both of those theorems against a range of factual situations? [42:25] Wouldn't it be appropriate then to test, since the court has not spoken on the subject, to test the proposition by saying, [42:31] could the president authorize a trespass, which otherwise would be a criminal trespass, against the private property of a person or a physician, [42:40] in order to determine whether or not a domestic legislative proposal had leaped to the press? [42:48] Or would the president be authorized to do such things if they had reason to believe that preliminary planning for foreign policy formulation was in jeopardy of disclosure? [43:04] Or would the president have such activity if he believed that a signal communication system, for instance, for a foreign power was about to initiate a preemptive nuclear strike against the United States? [43:17] Now, the theorem would apply to all three situations, but the factual situation would be very different, it seems to me. [43:25] And the court in construing this situation might look at it very differently. [43:29] It would call to a varying degree on his authority to protect this nation against invasion, whether by troops or by nuclear weapons, [43:39] or to guarantee the privacy and the integrity of private premises and function. [43:45] So, if we do apply a range of factual situations to this theorem, how does it wear? How durable is it? [43:55] How sensitive is the Irvin theorem or the Wilson theorem to the application of these several factual situations? [44:02] And thus, how does that aid us in arriving at a logical solution to the problem? [44:09] Ultimately, I suppose a court will have to decide that. [44:12] But until a court does, this committee has the ongoing and further responsibility to examine it according to the present law, which is uncertain. [44:22] And therefore, isn't the central fact issue probable cause? [44:29] That is, what basis was there for believing that there was a foreign security threat before the Wilson theorem would apply, even in opposition to the Irvin theorem? [44:46] So, aren't we confronted with what we've been confronted with more or less throughout these hearings? [44:50] And that is, what do the facts show? [44:52] What is the reasonable basis for believing that a national security problem existed? [44:58] And of what gravity before we can apply ourselves to the abstract theorem of the law? [45:03] Thank you. [45:04] Well, since the term is endorsed, I'll make one more observation and I'll subside. [45:08] I would like to argue, but I'm not going to, that you can't imply a power that contradicts an express power of provision. [45:16] But that's not my point. [45:18] I don't believe that Mr. Erickman conceded that the President of the United States was the man that ordered this burglary. [45:24] I thought this burglary was carried out by Mr. E. Howard Hunt, and I don't think that Mr. E. Howard Hunt has any implied or inherent power in the Constitution of the United States to commit burglary. [45:38] Mr. Chairman, just so the record is clear in the description of the legal dilemma we find ourselves in, I hope I do not imply that the President authorized this. [45:49] I'll stand on the record whatever develops in that respect, and that certainly was not the implication. [45:53] I used that language simply for the sake of simplification and to direct the attention of the Chairman and Mr. Wilson to the correlated requirements of the statute. [46:02] I'd like to put in the record, here, an objection, a copy, or a bottom copy of this. [46:07] May I reply to both of you for a moment, Mr. Senator Taubes? [46:13] Immediately to Senator Baker. [46:16] In this really Bible on the subject of this Pampaton case, Justice Powell discusses, and I think in a footnote, that at times it's difficult to find the line between domestic security and foreign security. [46:39] National security is a broad word. It's a misleading word in itself because national security might envelop both. [46:48] But he recognizes that trying to answer both of you with this one answer, and that is, as Senator Baker puts it, probable cause. [47:02] That's as good a name for anything. [47:06] I think if you'll go back to my symbol, 2511, you'll see that the Chairman's Committee on the Judiciary reposed in the President's own absolute discretion by the use of the words he deems necessary to protect the nation. [47:29] So that I'm arguing that when it comes to the exercise of this reservoir of power in a foreign intelligence case, and I want to come to the facts for a moment on that quick, that in that case it's the President's discretion which is to be guided. [47:55] Now, there is testimony here by Mr. Ehrlichman that the Russians either had or were getting this information. [48:03] Now, this isolation that the Chairman puts Mr. Ellsberg and his psychiatrist in is, I submit, I'm looking for a general adjective, Mr. Chairman. [48:17] I would say that it's unfair for you to do that, if you'll forgive the brusqueness of that observation. [48:25] The genesis of this was either the fact that the papers had been passed to the Russians or that there was reasonable ground to be, probable cause, Senator Baker, to believe that they were going to the Russians. [48:43] Now, this puts the cap of foreign intelligence, not a cap, not even an umbrella, a complete clunk upon this whole transaction. [48:54] Now, I want to end by reading what the Judiciary Committee, with no dissent from the Chairman, whom I respect very greatly, and I wish to return the compliment to him. [49:12] I think it's one of the greatest, the following under the heading of national security. [49:17] It is obvious that whatever means are necessary should and must be taken to protect the national security interest, period. [49:34] Wiretapping and electronic surveillance techniques are proper means for the acquisition of counterintelligence against the hostile action of foreign powers. [49:45] Next sentence. [49:46] Nothing in the proposed legislation seeks to disturb the power of the President to act in this area. [49:54] And the final sentence. [49:55] Limitations that may be deemed proper in the field of domestic affairs of a nature, of a nation, become artificial when international relations and internal security are at stake. [50:11] Mr. Chairman, may I end with a respectful quip about the country lawyers? [50:18] I have a story, too. [50:20] I was testifying before Senator Dirksen's committee one time on the Trading with the Enemy Act. [50:26] And one of the distinguished lawyers from Senator Baker's state, Mr. Cecil Sims, I imagine you know him, gentlemen, was testifying against me. [50:36] And he started out by saying, I'm just a country lawyer. [50:41] Well, of course, he's as smart as a whip. [50:43] And when he said that, I said, well, I've always been scared of anybody who describes himself as a country lawyer. [50:50] And Senator Dirksen, in his lovable way, said, well, Mr. Wilson, I've seen you pounding the asphalt streets of Washington for the last, I don't know how many years it was then, probably 35. [51:01] And I don't think anybody would ever charge you for being a country lawyer. [51:05] Thank you, sir. [51:06] The temptation to trespass on time on the committee is very great. [51:12] But I will refrain. [51:13] And when my turn comes around next, I'll make some more observations on this point. [51:17] Maybe I'll have a rebuttal then. [51:20] Thank you, Mr. Chairman. [51:23] Mr. Ehrlichman, following up the same line of thought. [51:28] I believe you testified yesterday the president has the power to authorize an inherent break-in in matters concerning national security. [51:41] Was that your testimony? [51:43] I don't think I could add very much to the much more learned discussion this morning, Senator. [51:48] But that I was referring to this body of law that has been discussed here this morning. [51:53] Your answer is in the affirmative. [51:55] Yes, sir. [51:56] Now, in matters involving national security, could the president authorize a forgery? [52:03] Well, again, you're getting me into an area that obviously is a subject for the experts. [52:12] And as Mr. Wilson pointed out this morning, the question of degree here can be carried to unreasonable lengths. [52:23] And I'm not prepared to answer where that line is. [52:26] That's obviously a judicial question. [52:27] You don't think he could authorize a murder, do you? [52:30] I don't. [52:31] As I say, I don't think I'm the one to try and respond to that kind of question as to where the line is. [52:38] Well, you authorized this break-in, didn't you? [52:40] I was trying to. [52:41] No, sir. [52:42] I did not. [52:43] You affirmed it yesterday in a memorandum that I saw. [52:46] You said it was your signature, provided it could not be traced. [52:50] No, sir. [52:51] I submit that that is not what that memorandum says. [52:54] Wait. [52:55] What that memorandum says is that the investigation, which had previously been authorized by me, [53:03] should also include an attempt to ascertain the contents of these files. [53:11] There's nothing in there about the means to be pursued. [53:14] And my testimony was and continues to be that my assumption was that that could be done by completely conventional investigatory means. [53:24] Read the language. [53:25] Covert operation to be undertaken to examine all of the medical files still held by Ellsberg's psychiatrist. [53:35] How do you think you could examine all the medical files without a break-in? [53:39] Well, it has occurred to me since, because I've been asked this question before, that one way that it could be done is through false pretenses or through perfectly honest means one doctor to another by recruiting the assistance of another psychiatrist or of a doctor or of someone who could get at them that way. [54:07] Now, I'm not a trained investigator, Senator, and what I know from my own experience is that people who are trained investigators, as I mentioned yesterday, insurance adjusters, people of that kind, have over the years brought to attorneys information of this kind, which they've been given the assignment of gaining. [54:30] And it simply was not in contemplation that a break-in as such would be engaged in. [54:38] I don't think there's any need in rehashing all of that you coveted yesterday, but you did state that you approved it, if done, under your assurance that it is not traceable. [54:51] Do you affirm that? [54:52] Approved what, Senator? [54:54] The covert operation to be undertaken to examine all of the medical files still held by Ellsberg psychoanalysts. [55:04] I explained yesterday, Senator, that my concern there and the thing to which that handwritten note refers is that I was not keen to have anyone go out and be flashing White House credentials as a White House investigator. [55:21] And I think that was sound. [55:24] Now, if the president could authorize a covert break-in and you don't know exactly where that power would be limited, you don't think it could include murder or other crimes beyond covert break-ins, do you? [55:40] Oh, I don't know where the line is, Senator. [55:42] Well, where is the check on the chief executive's inherent power as to where that power begins and ends? That's what I'm trying to determine. [55:51] Well, again, I would have to incorporate by reference the, I think, the very valuable discussion that has taken place here this morning. I couldn't add to that. [56:00] You're a lawyer, and I understand you're a good lawyer. [56:02] Well, I'm certainly not a constitutional lawyer, Senator. [56:05] Well, 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, [56:15] that no matter how humble a man's cottage is, that even the king of England can't enter without his consent? [56:22] I'm afraid that's been considerably eroded over the years, hasn't it? [56:26] Down in my country, we still think it's pretty legitimate principle of law. [56:32] You authorize this in the name of national security, I believe. [56:45] We believe that we had a serious national security problem at that time, yes, sir. [56:51] Well, what relationship did Dr. Fielding have with national security? [56:55] Well, the CIA has perfected a technique, as I understand it, and again, I'm not your best witness on this, [57:03] in which they can find out a lot about a foreign agent, a foreign official, [57:16] someone who is the object of their investigation through the device of what they call a psychiatric profile. [57:24] Two people in this special unit, Mr. Young and Mr. Hunt, had both had experience with the use of these profiles in the past, [57:33] and they felt strongly that in this case, where there were so many unknowns, [57:38] we didn't know whether we were dealing here with a spy ring or just an individual kook, [57:46] or whether we were dealing with a serious penetration of the nation's military and other secrets, [57:56] in such an uncertain situation that a profile of this kind might, certainly not positively, [58:02] but might add some important additional ingredient which would help to understand the dimensions of the problem. [58:09] You don't know? [58:10] Now, sir, I can't vouch for this. [58:12] I have a kind of an inherent personal doubt about the psychiatry in general, but I can't second guess. [58:23] I can't second guess the investigation experts who have used this technique, [58:28] and as I say, the CIA maintains a staff and they do this thing on a regular basis and it is used in our government. [58:36] Now, I understand from testimony before the McClellan Committee that the CIA's position is that they have not ever used it before [58:45] in a case of espionage involving a United States citizen. [58:50] I don't know whether that is so or not. [58:53] But in any event, the people involved here were very concerned about what they were dealing with, [59:01] and they felt that this would be a helpful technique. [59:04] You didn't think that Dr. Fielding was a security risk to the country, did you? [59:09] Of course not. [59:10] Now, the identity of the individual here had nothing to do with it, the doctor. [59:17] The CIA had prepared a psychiatric profile, and it was not helpful. [59:25] And when Mr. Young went back to the CIA and said this is not helpful, they said, [59:29] well, we don't have enough raw material to go on. [59:32] You're going to have to get us some more factual information. [59:37] And so this was then an expansion of the original covert investigation of this individual and his co-conspirators [59:46] and his pattern and how he got these documents and so on to include the assemblage of such other information [59:53] as might be helpful to the CIA in finishing this psychiatric profile project. [59:59] Let me give you a similar situation and see how you would compare it. [1:00:03] Suppose someone you knew to be subversive had rented a lockbox in one of the banks here in Washington [1:00:13] and had put some suspected documents in that lockbox involving the national security. [1:00:19] Do you think that would give you the authority to rob that bank and go in there and take those documents? [1:00:25] I haven't any idea what the extent of such a power would be. [1:00:34] Don't you think it's a good comparison? [1:00:36] No, I don't think it's a good comparison, sir. [1:00:38] You look in medical records in one instance, and I'm telling you there was some documents in the bank [1:00:43] that might really involve national security. [1:00:45] Yes, but you've put the case where we're going to rob the bank. [1:00:48] I don't think anybody, at least I certainly didn't contemplate, that anybody was going to rob the doctor. [1:00:53] You change the word. Burglarize the bank. [1:00:55] Well, let's suppose that it were possible. [1:00:57] On behalf of the committee, I want to make a request to the audience, and that is that the audience refrain from expressing its approval or disapproval of anything which occurs in connection with the interrogation of a witness. [1:01:20] Mr. Chairman, I share that view, and I commend the chair for preserving order. [1:01:26] I think it's in the national interest to do so, regardless of what feelings or the emotions of the audience may be. [1:01:34] This committee is engaged in trying to ascertain the facts. We're not conducting a show or an entertainment program here. [1:01:42] What I'm trying to do is find out what the authority of the President of the United States is to break and enter under what conditions and what other acts do not conform to the law his authority may be. [1:01:57] Mr. Chairman, could I say a word on that subject? [1:02:00] I yield to the Senator of Tennessee. [1:02:03] I thoroughly concur in the Chairman's statement and the statement of Senator Talmadge. [1:02:07] This committee has a tough job, and anybody who doesn't think so just ought to think about it for a little while. [1:02:12] But believe me, it makes it infinitely tougher if we are cast in the role of conducting a circus or entertainment. [1:02:21] It does not help the demeanor of these hearings. It does not help a witness. It does not help this committee, and it positively detracts the objectivity and the even-handedness with which we've tried to conduct this undertaking. [1:02:36] So I join with the Chairman and compliment the Chairman in making that observation. [1:02:42] I very much hope that the guests of this committee present today and future guests of the committee will scrupulously adhere to that admonition from the Chairman. [1:02:54] Public Television's coverage at the Senate hearings will continue after a brief pause for station identification. [1:02:59] Unabridged coverage of these hearings is provided as a public service by the member stations of PBS, the Public Broadcasting Service. [1:03:08] From Washington, NPACT continues its coverage of hearings by the Senate Select Committee on Presidential Campaign Activities. [1:03:18] Here again, correspondent Robert McNeil. [1:03:21] As we go back to the hearings, Senator Talmadge is inquiring about the authorization for the break-in at the office of Daniel Ellsberg's psychiatrist. [1:03:30] If you had thought that the psychiatrist's profile had been in a lockbox in a bank in Washington, you wouldn't authorize the entry, would you, Mr. Ehrlichman? [1:03:41] Mr. Chairman, I wonder if we could perhaps escalate this to the level of seriousness that it was viewed in the government at the time. [1:03:50] This was not simply an effort to pick up gossip. [1:03:57] This was an effort to crack what was, at that moment, the largest raid on top-secret documents that had ever been made in the history of this government. [1:04:08] I agree with your statement that I thought it was a thoroughly reprehensible act. [1:04:12] But does one reprehensible act authorize another? [1:04:15] Let me suggest the magnitude or the co-magnitude might be this kind of a situation. [1:04:21] Let us suppose that you knew that in that safe deposit box there was either a device or the conclusive information about some attack that was going to be made, a nuclear attack that was going to be made the next day. [1:04:36] Now, does the power then extend to getting into that safe deposit box? [1:04:42] Or do we say a man's home is his castle, his safe deposit is his castle, and so let the bombs come? [1:04:49] Don't you think under those conditions you could have gone to the bank, gotten those documents very hurriedly? [1:04:56] I think probably there would be a very cooperative banker. [1:04:59] And my assumption was that there might be a very cooperative psychiatrist or nurse or nurse's aide or someone who, without breaking and entering, would have permitted the— [1:05:11] I don't argue with your statement that the president has power to repel an immediate attack. [1:05:16] He has that power. [1:05:17] But what we're talking about here is an unauthorized entry and burglarizing a man's premises who wasn't even involved in stealing the papers in the first instance. [1:05:27] I have to say to you that as the seriousness of the problem is presented, I think you're exactly right in your suggestion, [1:05:36] that you could enlist the cooperation of individuals to avoid the cracking of the bank or the cracking of the doctor's office. [1:05:46] And my reaction when I first heard about this was one of disapproval because it certainly wasn't in my contemplation that there was going to be a breaking in and entering here. [1:05:57] My contemplation from the beginning was that this could be done without that. [1:06:01] Now, did the president authorize that break in? [1:06:04] Not in express terms, no, sir. [1:06:07] At least not to my knowledge. [1:06:08] Matter of fact, in the subsequent statement, he expressly denied it, didn't he? [1:06:12] I read his statement, and I have heard testimony here. [1:06:16] I would not be totally responsive to your question, however, if I did not add one thing, Senator. [1:06:23] On the 24th of July, I sat in a meeting where the president gave Mr. Krog his charter, his instructions. [1:06:35] I must say that the president put it to Mr. Krog very strong that he wanted Mr. Krog and the people in this unit to take such steps as were necessary. [1:06:51] And I can recall in that conversation specific reference to the use of polygraphs and summary procedure for the discharge of federal employees who might have been involved in this episode. [1:07:10] Let me read the president's own language to you taken from the congressional record of May the 23rd, 1973. [1:07:18] Consequently, as president, I must and do assume responsibility for such acts, despite the fact that I at no time approved or had knowledge of them. [1:07:33] And he was talking about the break in of Fielding's office. [1:07:36] Senator, I think it's important in that same connection, however, to read the previous two paragraphs, which say, [1:07:45] At about the time the unit was created, Daniel Ellsberg was identified as the person who had given the Pentagon Papers to the New York Times. [1:07:52] I told Mr. Krog, this is the president speaking, that as a matter of first priority, the unit should find out all it could about Mr. Ellsberg's associates and his motives. [1:08:02] Because of the extreme gravity of the situation and not then knowing what additional national secrets Mr. Ellsberg might disclose, I did impress upon Mr. Krog the vital importance to the national security of his assignment. [1:08:16] I did not authorize and had no knowledge of any illegal means to be used to achieve this goal. [1:08:22] However, because of the emphasis I put on the crucial importance of protecting the national security, I can understand how highly motivated individuals could have felt justified in engaging in specific activities that I would have disapproved had they been brought to my attention. [1:08:38] Now that refers to this July 24 conversation between the president and Mr. Krog, and I must say that I think that is a fair characterization of the urgency which the president expressed to Mr. Krog and undoubtedly a recognition of the fact that one in Mr. Krog's situation might well believe that he had been charged with taking extraordinary measures to meet what the president described in very graphic terms. [1:09:10] Now you should also know that at this same time the strategic arms limitation treaty negotiation documents had been compromised so that the president by the 24th of July knew that his negotiating position versus the Russians in the strategic arms limitation treaty negotiations were known to the Russians and literally the negotiations had been compromised. [1:09:40] He discussed with Mr. Krog in very graphic terms the disadvantage at which he found himself now in trying to conduct this country's foreign policy and work out this arms limitation having had these secrets displayed. [1:09:55] Mr. Mr. Erlichman, isn't it a fact, assuming for the sake of argument, that your theory is correct, the president could authorize such a break-in? [1:10:06] Isn't it a fact that the president himself and not Mr. Erlichman would have to authorize that break-in? [1:10:13] Sir, I did not ever authorize a wiretap or any other extraordinary measure on my own say-so. [1:10:27] When I answered Mr. Dash yesterday about whether I had authorized such-and-such, in no case was that on my own say-so. [1:10:42] In every case in which I transmitted an authorization to the attorney general, it was after referral to the president and his express approval. [1:10:57] When was the fielding break-in? [1:11:00] As I said yesterday, Senator, I have heard two dates, but it was sometime over the Labor Day weekend. [1:11:06] September 1941, in any event. [1:11:09] 1971, yes, sir. [1:11:10] Now, when was the New York Times case tried and they authorized the publication of those papers in the New York Times? [1:11:21] I don't think I have the date of decision- [1:11:24] June 1971. [1:11:27] I don't have the date of decision of that. [1:11:28] I can't disagree with you, Senator. [1:11:30] Isn't it a fact that the break-in occurred more than 60 days after publication of those papers in the New York Times? [1:11:38] Oh, I think two things have to be said here. [1:11:41] One, the investigation was not to prevent the newspapers from publishing the Pentagon papers, because that was, of course, an accomplished fact. [1:11:51] The investigation here was to find out who had stolen top-secret documents and disseminated them, not only to the newspapers, but-and we have, at the time, strong reason to believe that the documents delivered to the Soviet embassy were not the same documents as were printed in the New York Times. [1:12:10] I think you know, Senator, that there was a disparity, there was a difference between what was printed in some of the newspapers on the one hand and what was, for instance, delivered to the Congress on the other. [1:12:24] And there were actually about three different versions of these documents in existence. [1:12:31] By versions, I mean different documents in different sets going around. [1:12:35] And so it was entirely reasonable to believe that the Soviet embassy had received more sensitive documents than those that had been printed in the New York Times. [1:12:48] But the main point here is that the investigation was not to stop the publication in the newspaper. [1:12:53] The investigation here was to determine how so many vital, top-secret documents could get out of the federal government and into the hands of a foreign power. [1:13:05] Assuming, for the sake of argument, that you're entirely correct on your legal premise, which I don't, I could conceive of a break-in on Ellsberg, but I can't conceive of a break-in on his doctor. [1:13:17] Well, as I- [1:13:18] You have nothing whatever to do with national security. [1:13:20] I understand, as I've said before, Senator, the investigative technique here of the psychiatric profile required information, just as the determination of who the co-conspirators were required various kinds of information. [1:13:41] Now, you might go to a service station attendant to get information about who Mr. Ellsberg's friends were. [1:13:49] That doesn't mean, necessarily, that the service station attendant was a co-conspirator. [1:13:56] And certainly there's no suggestion here that the psychiatrist was in any way a co-conspirator. [1:14:01] He was the holder of what they considered to be important investigation information, as I understand it. [1:14:08] Why didn't the FBI handle the job? [1:14:10] Well, I've explained that yesterday. [1:14:14] The situation was a unique one, which the Attorney General described to us, in which the director simply refused to permit his top people, Mr. Brennan particularly, to conduct interviews of some of Mr. Ellsberg's family. [1:14:33] And it was a situation where the case was not being treated as a primary case by the Bureau. [1:14:43] And Mr. Krogh came to us and said, I can't move the Bureau on this with the kind of cooperation that this case deserves. [1:14:51] You're not saying that the President of the United States was helpless in trying to get cooperation of the FBI, are you? [1:14:57] I'm saying that the Attorney General reported to the President an extremely difficult situation with the director, which he felt could lead to the resignation of some of the top people in the Bureau. [1:15:12] That while the Attorney General felt that he could reverse the director's decision with regard to the suspension of Mr. Brennan, he did not think at the time that he could force the director to an acceleration of the Bureau effort on this subject without a total rupture with the director. [1:15:34] You don't mean to animate in any way, shape, fashion, or form, do you, Mr. Ellsbergman, that J. Edgar Hoover was in any way soft on communism or national security, do you? [1:15:47] J. Edgar Hoover clearly was not that. At the same time, it appears that Dr. Ellsberg's father-in-law was a very close friend of his. [1:15:59] And I think everyone who knew the director knew of his loyalty to his close friends. [1:16:04] Mr. Chairman, my time has expired. I yield at this point. Thank you, Mr. Ellsbergman. [1:16:09] Thank you, Senator. [1:16:13] Mr. Ellsbergman, since we're on this Ellsberg break-in again, I would like to clarify the record of yesterday just a bit. [1:16:27] As I understand it, you testified in response to questions from Mr. Dash that the Justice Department, and more particularly Mr. Peterson, [1:16:35] had the information about the Ellsberg break-in a year ago. [1:16:40] That was not of your own knowledge, was it? [1:16:44] No, sir. [1:16:45] Where did that come from? [1:16:46] That came from Mr. Dean in the first instance, and then it came one step removed from Mr. Crow, who quoted to me what Mr. Dean had also told him. [1:16:55] That is what I would like to clear up, because, of course, this is a very serious allegation against both the Justice Department, [1:17:02] and especially Mr. Peterson, who was the chief of the criminal division. [1:17:10] He has made an affidavit on this subject, and I understand this is on file in the Ellsberg case, which is otherwise known as United States against Russo. [1:17:19] And I would like to submit the affidavit at this point in the record, Mr. Chairman. [1:17:28] I won't bother to read it, but to summarize quickly what it says, it says, and this is an affidavit of Mr. Henry Peterson, [1:17:37] who is the assistant attorney general in charge of the criminal division of the Justice Department. [1:17:43] He says, I have no information, I've had no information regarding an alleged unlawful entry on or about September the 3rd, 1971, [1:17:51] into the office of Daniel Ellberg, psychiatrist, until April the 16th, 1973, [1:17:57] when the allegation contained in a memorandum from Earl Silbert was submitted to me. [1:18:03] I am unaware of any information received by the Justice Department in connection with its investigation [1:18:08] of the unauthorized disclosure of the Pentagon Papers, [1:18:11] and in the case of the United States against Russo, which came or could have come from the alleged burglary [1:18:24] by E. Howard, Hodgie, Gordon, Liddy, and others of the office of Daniel Ellberg, psychiatrist, Dr. Feeling. [1:18:30] The Xerox copies of the photographs of what apparently are exterior shots of the building and parking lot [1:18:36] in which Dr. Feeling's office is located were first delivered to the criminal division of the Justice Department [1:18:41] in about October of 1972 by the CIA [1:18:45] in connection with requests made by the Prosecutor's staff of the so-called Watergate case [1:18:50] for background information pertaining to certain defendants, including Hunt. [1:18:56] The significance of these copies of photographs to the then-unknown alleged break-in of Dr. Feeling's office [1:19:01] was, of course, not then realized, since I had no knowledge whatsoever [1:19:05] of the Department of Justice file and the Pentagon Papers [1:19:08] until that matter was transferred to the criminal division [1:19:12] as a result of the abolition of the internal security division, March 26, 1973. [1:19:19] And the significance did not thereafter become apparent [1:19:22] until a check was made of the CIA material in the criminal division [1:19:25] on or about May 3, 1973 [1:19:28] in connection with the case of the United States against Russo [1:19:31] as a result of the government disclosure of the memorandum of April 16, 1973 to me. [1:19:37] I thought it was only fair to Mr. Peterson to put that affidavit [1:19:42] which gives his version of how he came to have knowledge [1:19:48] of the alleged break-in of Ellsberg's psychiatrist [1:19:53] and that, of course, was not until this year. [1:19:57] Senator, I certainly have brought you only hearsay on this. [1:20:06] I did it not for the purpose of the truth of the statement [1:20:10] but I did it in response to a question about what I thought at the time [1:20:15] about who knew about this. [1:20:18] Now, what the affidavit doesn't say [1:20:20] that you all might be able to determine [1:20:24] is whether or not Mr. Dean was correct in what he told me [1:20:28] about what those pictures showed [1:20:30] because he told me that one of the pictures [1:20:33] was a picture of G. Gordon Liddy [1:20:35] standing in front of Dr. Fielding's nameplate [1:20:38] and that the other pictures were pictures of ransacked premises. [1:20:46] Now, if in fact the affidavit's correct [1:20:50] and they got these things in the Justice Department [1:20:53] back in October of 1972 [1:20:55] which would have been some time ago [1:20:58] with G. Gordon Liddy standing in the foreground [1:21:01] that might cast more dignity [1:21:05] upon Mr. Dean's statement to me [1:21:08] than just taking the bare affidavit. [1:21:11] But again, I hesitate to say out of fairness to Mr. Peterson [1:21:14] that I don't vouch for the truth [1:21:17] of what Mr. Dean told me about this [1:21:19] I just have to tell you what I thought at the time. [1:21:22] Well, I realize that [1:21:23] and my introduction of the affidavit [1:21:25] was in no way to impeach your testimony [1:21:28] but only to show that Mr. Peterson [1:21:30] has an entirely different viewpoint of this [1:21:32] which I think is important from his point of view [1:21:35] as well as the Justice Department. [1:21:37] It also raises an interesting point, too [1:21:39] about how Mr. Dean could have found out a year ago [1:21:42] if the Justice Department itself [1:21:45] didn't receive the information [1:21:46] until October of last year. [1:21:48] That certainly is a conflict of testimony. [1:21:51] I may have better put it in the record [1:21:54] that this affidavit which you've offered [1:21:57] without objection on the part of any member of the committee [1:21:59] has received as an exhibit [1:22:00] and the reporter will mark it appropriately as such. [1:22:04] Thank you, Mr. Chairman. [1:22:06] One of the important pieces of testimony [1:22:09] that we have received in these hearings, Mr. Ehrlichman, [1:22:15] involves this whole matter of executive clemency. [1:22:18] Whether the President ever authorized anybody [1:22:21] to offer executive clemency to any of the defendants. [1:22:25] And as I'm sure you know, [1:22:26] this has come up in our testimony. [1:22:29] And I'd like to examine that area for a moment. [1:22:32] First of all, did you have your log shows [1:22:36] that you had meetings with John Dean [1:22:39] on January 3rd, 1973, January 4th, and January 5th? [1:22:46] Would you tell the committee [1:22:48] what the subject of those meetings were, [1:22:51] beginning with the 3rd? [1:22:54] If I could... [1:22:55] On January 3rd, I met twice with Mr. Dean, [1:23:17] once alone at noon and once at 7 p.m. with Mr. Colson. [1:23:23] The meeting with Mr. Colson related to a letter [1:23:31] which Mr. Dean had told me about [1:23:35] at our earlier brief meeting. [1:23:37] And this was a letter which I believe Mr. Colson [1:23:44] had received from Mr. Hunt. [1:23:47] I believe I'm correct about it. [1:23:49] It was a very melancholy [1:23:53] and a very passionate kind of letter. [1:23:58] I think the letter is in record, as a matter of fact. [1:24:00] And it talks about his being abandoned by his friend [1:24:03] and so on. [1:24:05] And it was on the heels of Mr. Hunt having lost his wife. [1:24:09] Mr. Colson was genuinely concerned and shaken by this. [1:24:19] He'd had a long friendship with the Hunts, [1:24:21] both Mr. and Mrs. [1:24:23] And he had proposed to Mr. Dean [1:24:26] that he get together with Hunt [1:24:29] or with Hunt's attorney at least [1:24:32] to register his continuing friendship [1:24:38] and his compassion for Hunt's loss of his wife and so on [1:24:45] and so that Hunt would not feel that he'd been abandoned [1:24:47] by his friend. [1:24:49] This is the thing that we discussed [1:24:51] with Mr. Colson that evening at 7 o'clock. [1:24:56] I took it as almost a given in the meeting [1:25:02] that there would be some contact [1:25:06] between Mr. Hunt or his attorney and Mr. Colson. [1:25:13] And it was simply a question of what the proper conduct [1:25:18] would be under the circumstances being obviously delicate [1:25:23] to have a White House contact of one of the defendants [1:25:28] right at this particular point in time. [1:25:30] So it was discussed and it was discussed in terms [1:25:33] not of a personal meeting between them, [1:25:36] which is what Mr. Hunt apparently wanted in the letter, [1:25:40] but Mr. Colson talking with William Bittman, [1:25:43] who was then Hunt's attorney [1:25:47] and conveying this message of support, [1:25:52] personal support, through that avenue. [1:25:57] Mr. Dean raised the cautionary warning [1:26:03] that if anybody from the White House [1:26:06] sat down with Mr. Bittman in a situation like this, [1:26:10] that there was an inevitable opportunity [1:26:14] for misunderstanding as to the purpose of the meeting, [1:26:20] as to assurances that might or might not be given [1:26:22] and so forth. [1:26:25] Clemency was obviously at the forefront [1:26:28] of everybody's mind in this meeting [1:26:30] as one of the things which was a potential danger area. [1:26:35] And I advised both people at the meeting, [1:26:37] Mr. Dean and Mr. Colson, [1:26:39] of a previous conversation that I had had [1:26:41] with the President on that subject [1:26:42] and indicated to them... [1:26:45] That was back in July, was it? [1:26:47] Yes, sir. [1:26:48] Indicated to them the substance of that conversation, [1:26:52] which was that the President wanted [1:26:53] no one in the White House [1:26:55] to get into this whole area of clemency [1:27:01] with anybody involved in this case [1:27:03] and surely not make any assurances to anyone. [1:27:06] Mr. Colson said that he was sure [1:27:08] that he could avoid that pitfall [1:27:10] and have the conversation. [1:27:13] He was advised by Mr. Dean [1:27:14] to either take notes [1:27:17] or make such mental notes of the conversation [1:27:20] that he could reconstruct the conversation [1:27:21] if the question ever came up again. [1:27:25] And that is what Mr. Colson did. [1:27:27] We had a subsequent meeting where... [1:27:29] Before we go to the subsequent meeting, [1:27:32] could you be a little more explicit [1:27:34] in your testimony [1:27:35] as to how the discussion arose [1:27:37] about executive clemency, [1:27:39] who brought it up, [1:27:40] and who said what on the subject [1:27:42] at the January 3rd meeting? [1:27:44] I can't say who brought it up, Senator. [1:27:47] We were going over the potential problems [1:27:52] that could come from Mr. Colson [1:27:55] having a contact either with Mr. Hunt [1:27:57] or his attorney. [1:27:59] It had been his firm practice [1:28:04] not to have any contact with Mr. Hunt [1:28:07] because of the imputation, [1:28:10] because, frankly, [1:28:12] everybody knew they were close, [1:28:15] that they had been close friends. [1:28:16] There had been a lot of suspicion [1:28:17] that somehow Mr. Colson [1:28:19] might be implicated in the Watergate [1:28:20] because he was a close friend of Mr. Hunt's, [1:28:23] and Mr. Colson was leaning over backwards [1:28:25] to do everything he could [1:28:26] to avoid giving any credence [1:28:28] or credibility to that suspicion. [1:28:30] So when we got into the decision [1:28:36] that he would have contact with Bittman [1:28:39] rather than Hunt, [1:28:43] I think it was John Dean [1:28:45] who said you're going to be asked [1:28:48] whether you're willing [1:28:51] to get Hunt out [1:28:54] at some time in the future. [1:28:56] How did Dean know [1:28:57] that he was going to be asked? [1:28:58] Well, it was conjecture, [1:29:00] but it was in the realm [1:29:02] of what kinds of problems [1:29:03] are you liable to confront [1:29:05] and you better be ready for this [1:29:06] and look out [1:29:07] and what's your response going to be? [1:29:09] I think both Dean and I [1:29:11] had some mental reservations [1:29:13] about the desirability of this, [1:29:15] but Mr. Colson [1:29:16] had a very strong friendship urge, [1:29:22] so to speak. [1:29:22] I mean, here was this really moving letter [1:29:25] and he was saying, [1:29:27] I just can't leave this fellow [1:29:28] without hearing from him. [1:29:30] Now, how do we go about this? [1:29:32] All right, now you have a meeting [1:29:33] on January the 4th, the next day. [1:29:36] Did that involve this subject at all? [1:29:39] No, that included [1:29:40] Attorney General Kleindienst. [1:29:43] And it had nothing to do [1:29:44] with the Hunt problem? [1:29:46] I don't believe so. [1:29:47] I don't think it was ever mentioned. [1:29:48] I see you had a meeting, too, [1:29:51] on that day, January 4th, [1:29:52] with the President. [1:29:54] Did you discuss Watergate [1:29:55] in any fashion on that meeting? [1:29:59] I don't recall, Senator. [1:30:02] That would have been [1:30:07] my first meeting with the President [1:30:10] after I came back [1:30:11] from about a two-week absence. [1:30:14] My guess is that the, [1:30:17] well, let's see, [1:30:20] about an hour of that, [1:30:21] I think, was by my, [1:30:23] no, let's see, [1:30:24] that was with the President, [1:30:25] Mr. Haldeman, [1:30:25] and then Dr. Kissinger came in [1:30:27] for about 45 minutes [1:30:29] of that meeting. [1:30:30] And I believe [1:30:31] that was a catch-up session [1:30:32] on just the problems [1:30:35] that had accumulated [1:30:36] during my long absence. [1:30:37] But I just don't have [1:30:39] any recollection [1:30:40] of specific topics. [1:30:41] Do you have notes [1:30:42] on that meeting at all? [1:30:43] Well, I do, [1:30:44] but they're not in my custody. [1:30:47] And I have to go [1:30:50] like an elephant [1:30:51] and suck up the contents [1:30:54] and then come somewhere [1:30:55] and try and regurgitate them. [1:30:59] It's a laborious process [1:31:01] because we, as you know, [1:31:03] are not in a position [1:31:04] to make any notes or copies. [1:31:08] Have you checked [1:31:09] that meeting recently, [1:31:10] the notes of that meeting? [1:31:11] No, sir, I haven't. [1:31:13] And all I have [1:31:15] is the President's log [1:31:16] that shows who was in the meeting. [1:31:17] Let's turn to January 5th now, [1:31:19] a meeting with Dean and Coulson. [1:31:21] Right. [1:31:22] Does this involve [1:31:23] the haunt and clemency again? [1:31:27] I don't know, Senator, [1:31:30] whether that is the meeting [1:31:33] where Mr. Coulson reported [1:31:35] on his meeting [1:31:38] with Mr. Bittman [1:31:39] or whether it was [1:31:40] on the 25th of that month. [1:31:42] There were two meetings [1:31:43] with both Dean and Coulson [1:31:45] following the January 3rd meeting. [1:31:48] My recollection is [1:31:49] that at some point in time, [1:31:51] rather soon after, [1:31:52] he had met with Bittman, [1:31:54] Coulson and John Dean [1:31:57] and I sat down again [1:31:58] and Coulson recounted to us [1:31:59] what the conversation had been. [1:32:02] Well, why don't you [1:32:03] describe that to the committee, [1:32:05] whether it was on January 5th [1:32:07] or at a later date? [1:32:09] He gave us [1:32:10] the strongest kinds of assurances [1:32:11] that he had not [1:32:14] made any sort of commitments, [1:32:19] that he felt [1:32:21] that Mr. Bittman [1:32:22] had very guardedly [1:32:23] and, if you'll pardon [1:32:26] the expression, [1:32:27] covertly, [1:32:28] advanced feelers to him, [1:32:30] which he rebuffed. [1:32:32] And he made a rather long, [1:32:36] detailed memorandum [1:32:38] for his file [1:32:38] about the conversation [1:32:40] in all its subjects [1:32:41] and gave a copy [1:32:43] to Mr. Dean, [1:32:44] either at that meeting [1:32:45] or, I guess, [1:32:46] subsequently thereafter, [1:32:47] very shortly thereafter. [1:32:49] Now, if you recall, [1:32:51] Mr. Dean testified [1:32:54] before this committee [1:32:55] and was very positive [1:32:56] in his testimony [1:32:57] that as a result [1:32:59] of this meeting [1:33:01] that occurred [1:33:01] on January 3rd, [1:33:05] Ehrlichman [1:33:05] checked with Nixon [1:33:08] and told Coulson [1:33:10] to give Bittman [1:33:11] assurance [1:33:11] clemency would be offered. [1:33:12] Now, I'm not quoting him, [1:33:14] but that's the gist [1:33:15] of what he testified to. [1:33:17] Would you comment on that? [1:33:19] Yes, sir. [1:33:20] That is a story [1:33:21] that had an out-of-town [1:33:23] tryout, [1:33:24] like many of Mr. Dean's [1:33:26] episodes. [1:33:30] What we'd see is [1:33:31] that the story [1:33:32] would appear [1:33:32] in one of the news magazines [1:33:34] or in a newspaper [1:33:35] in a certain version. [1:33:37] And then, [1:33:38] when Mr. Dean [1:33:39] got here to testify, [1:33:40] he had a slightly [1:33:41] different version, [1:33:41] but the differences [1:33:42] were extremely material. [1:33:44] And this is one of those. [1:33:46] The version [1:33:48] which got the tryout [1:33:49] was that I had jumped up [1:33:50] from the meeting, [1:33:52] run out, [1:33:52] presumably, [1:33:53] to the president's office, [1:33:55] come back and said, [1:33:56] fine, fellas, [1:33:57] it's all set. [1:33:58] You've got it. [1:34:00] And that had its problems [1:34:03] because, of course, [1:34:06] the meeting [1:34:06] to which he was referring [1:34:08] didn't take place [1:34:08] until 7 o'clock [1:34:09] in the evening. [1:34:11] And the president's log [1:34:14] makes very clear [1:34:16] the fact that [1:34:17] I had no meetings [1:34:17] with the president [1:34:18] that day. [1:34:20] And so, factually, [1:34:22] the printed story [1:34:24] in the media [1:34:25] wouldn't wash. [1:34:26] Now, when Mr. Dean [1:34:28] testifies, [1:34:30] his story was, [1:34:31] well, we had this meeting [1:34:32] and this was discussed, [1:34:33] and then I heard [1:34:34] a day or two later [1:34:35] that Mr. Ehrlichman [1:34:37] had given assurances [1:34:38] to Mr. Colson [1:34:39] that he had checked this [1:34:41] and that it was okay. [1:34:43] Now, that likewise [1:34:45] isn't going to wash [1:34:46] because the only meeting [1:34:47] that I had [1:34:48] with the president, [1:34:49] as shown by the president's log [1:34:51] and by my log, [1:34:52] was a meeting [1:34:53] which involved [1:34:53] other people [1:34:54] at half-past, [1:34:58] no, at 3.02 [1:34:59] on the 4th of January. [1:35:01] And Mr. Haldeman [1:35:03] was in the meeting [1:35:03] the entire time. [1:35:04] Dr. Kissinger [1:35:05] was in the meeting [1:35:05] a substantial portion [1:35:06] of the time. [1:35:08] And I can assure you, [1:35:09] Senator, [1:35:09] that executive clemency [1:35:10] was not discussed [1:35:11] at any time. [1:35:12] You never took up [1:35:14] this matter [1:35:14] with President Nixon [1:35:15] at any time. [1:35:15] I didn't have to [1:35:16] because I had... [1:35:17] Except in July. [1:35:18] I knew what the marching [1:35:19] orders were [1:35:20] from July. [1:35:21] And I particularly knew [1:35:22] because it was my strong feeling [1:35:25] which he ratified [1:35:26] and adopted [1:35:27] that this was [1:35:28] a closed subject, [1:35:29] that we must never [1:35:29] get near it. [1:35:30] And that it would be [1:35:32] the surest way [1:35:34] of having the actions [1:35:36] of these burglars [1:35:38] imputed to the president [1:35:39] for there to be [1:35:40] any kind of entertainment [1:35:41] of conversation, [1:35:43] whether polite [1:35:44] or otherwise. [1:35:44] And to put it bluntly, [1:35:45] your testimony is [1:35:46] that John Dean [1:35:47] told an untruth. [1:35:49] Yes, sir. [1:35:49] Twice. [1:35:50] Once in the out-of-town [1:35:51] tryout [1:35:51] and once here. [1:35:54] He had another comment [1:35:55] to make [1:35:56] in regard to [1:35:57] this particular [1:35:59] clemency business. [1:36:03] That was after [1:36:04] you were supposed [1:36:05] to have told [1:36:05] Colson [1:36:06] that he could tell [1:36:07] Bittman [1:36:08] that clemency [1:36:08] would be offered. [1:36:10] Dean brought up [1:36:11] the question [1:36:11] that other people [1:36:12] would want clemency too. [1:36:14] And his testimony [1:36:15] is that you said, [1:36:17] well, that would go [1:36:18] for others also. [1:36:19] Something to that effect. [1:36:21] What about that testimony? [1:36:22] No, sir. [1:36:23] That falls [1:36:24] for the same reason [1:36:26] that the other one does. [1:36:28] I had the strongest conviction [1:36:30] that we must never discuss [1:36:34] executive clemency. [1:36:36] Either the president [1:36:37] must never discuss it, [1:36:38] but any of us [1:36:39] must never discuss it [1:36:40] with any outsider [1:36:41] for just the kind of reason [1:36:44] that we're seeing [1:36:45] in this situation now. [1:36:48] I didn't have [1:36:50] even a scintilla [1:36:52] of a hint [1:36:53] that anyone [1:36:54] was making [1:36:54] an approach, [1:36:55] for instance, [1:36:56] to McCord. [1:36:57] That whole thing [1:36:58] was a total revelation [1:37:00] to me [1:37:00] and a monumental error [1:37:02] in my opinion. [1:37:04] There's one other [1:37:05] little facet here. [1:37:07] I suppose [1:37:07] the best evidence [1:37:08] will be when [1:37:09] Mr. Colson [1:37:09] comes before us, [1:37:11] but there also [1:37:12] is testimony [1:37:13] from John Dean [1:37:14] that he said [1:37:16] that Colson [1:37:17] also discussed [1:37:18] this matter [1:37:19] of executive clemency [1:37:20] with the president. [1:37:21] And the president [1:37:22] said, [1:37:23] yes, [1:37:24] you can offer [1:37:25] executive clemency [1:37:26] for Hunt. [1:37:26] Of course, [1:37:27] I'm paraphrasing. [1:37:27] That's not the exact [1:37:28] testimony. [1:37:30] What about that? [1:37:31] Did Colson [1:37:31] ever talk to you [1:37:32] about any conversations [1:37:34] he ever had [1:37:35] with the president [1:37:35] on this subject? [1:37:36] No, sir. [1:37:36] He did not. [1:37:38] Did you ever ask him [1:37:39] whether he had [1:37:40] any conversations [1:37:41] with the president? [1:37:42] No. [1:37:42] On executive clemency? [1:37:43] No. [1:37:44] When Dean [1:37:46] and Colson [1:37:47] and I talked [1:37:47] about this, [1:37:50] I went through [1:37:53] the substance [1:37:55] of my July conversation [1:37:57] with the president. [1:37:59] And one of the things [1:38:01] that I mentioned [1:38:02] was, [1:38:03] not in pointed terms [1:38:04] of Mr. Colson, [1:38:05] but just generally, [1:38:07] was that I didn't think [1:38:07] anybody ought to talk [1:38:08] to the president [1:38:09] about this subject, [1:38:11] outsiders or staff people, [1:38:13] that it's just a subject [1:38:14] that should be closed [1:38:15] as far as the president [1:38:16] was concerned. [1:38:16] I always hesitate [1:38:18] to ask a question [1:38:19] like this, [1:38:20] and yet I'm intrigued [1:38:22] with this particular area [1:38:25] because you have [1:38:26] a very clear memory [1:38:27] about it. [1:38:27] It certainly was talked [1:38:28] about, executive clemency. [1:38:31] And I'd like to ask you, [1:38:33] why do you think [1:38:34] John Dean [1:38:35] has testified [1:38:37] that the president [1:38:38] offered executive [1:38:39] clemency through you [1:38:40] and through Colson? [1:38:42] And, of course, [1:38:42] brought it up, [1:38:43] as he said, [1:38:44] to Dean himself. [1:38:45] I take it, [1:38:46] Senator, [1:38:47] and here I'm speculating, [1:38:49] rankly speculating. [1:38:51] Here is an episode [1:38:52] with Mr. McCord, [1:38:54] which comes out [1:38:55] through Mr. McCord [1:38:56] back through Caulfield [1:38:58] to Dean. [1:39:00] Now, [1:39:01] how does John Dean [1:39:02] justify [1:39:03] having sent [1:39:07] Mr. Caulfield [1:39:08] to talk to McCord? [1:39:10] I don't know [1:39:11] whether that's [1:39:11] the explanation or not, [1:39:13] but it certainly [1:39:13] was suggested to me [1:39:14] as I watched [1:39:16] Mr. Dean [1:39:16] at this table [1:39:17] spinning this tale. [1:39:18] Let us go to another area [1:39:22] that involved you [1:39:23] and Mr. Dean, [1:39:28] and that are the papers [1:39:30] that were taken [1:39:30] from Hunt's safe [1:39:32] after it was opened [1:39:34] by Dean's people. [1:39:37] Some of these papers, [1:39:38] as you know, [1:39:39] were very sensitive. [1:39:41] Some contained [1:39:42] in a briefcase [1:39:43] of Mr. Hunt's. [1:39:45] A testimony, [1:39:46] of course, [1:39:47] here is that [1:39:48] Dean had a conversation [1:39:49] with you about this, [1:39:52] and you made [1:39:52] some suggestions [1:39:53] about disposing [1:39:55] of the papers [1:39:56] that were in the briefcase. [1:39:57] My recollection is [1:39:59] that you advised [1:40:00] Mr. Dean [1:40:01] to deep-six [1:40:02] these papers. [1:40:04] Would you care [1:40:05] to tell us [1:40:05] about this meeting? [1:40:07] That was a meeting, [1:40:09] if I heard [1:40:11] the testimony correctly, [1:40:12] which was also [1:40:13] attended by other people [1:40:14] and should be susceptible [1:40:16] of determination [1:40:19] from independent witnesses. [1:40:22] To correct an assumption [1:40:24] in your question, [1:40:25] Senator, [1:40:26] I did not know [1:40:27] the contents [1:40:28] of Mr. Hunt's safe, [1:40:29] except in the most [1:40:31] general terms. [1:40:33] I was told, [1:40:35] I can't say who told me, [1:40:37] probably Mr. Dean, [1:40:39] that there was a pistol [1:40:41] and a tape recorder [1:40:44] and a number of documents, [1:40:47] some of which [1:40:48] had nothing to do [1:40:49] with Watergate, [1:40:49] but were very politically sensitive. [1:40:51] Now, that was [1:40:52] the general description. [1:40:53] I had no occasion [1:40:54] to look at them. [1:40:55] I never saw them, [1:40:56] except as a few of them [1:40:58] were sealed in an envelope [1:41:00] and handed to Pat Gray. [1:41:03] The conversation [1:41:06] has to be weighed, [1:41:10] the probability [1:41:11] of such a conversation [1:41:12] where I said run out [1:41:13] and throw this in the river, [1:41:15] has to be weighed [1:41:16] against what I actually did, [1:41:18] which I think the witnesses [1:41:19] who were in the meeting [1:41:20] on the 19th [1:41:21] will tell you that I did. [1:41:24] We had a meeting [1:41:25] for two purposes [1:41:26] on the 19th, [1:41:27] which included [1:41:28] Mr. Colson, [1:41:30] Curly, [1:41:31] the staff secretary, [1:41:32] and Ken Clawson [1:41:33] on the White House staff. [1:41:37] The meeting was for, [1:41:38] as I say, [1:41:39] two purposes. [1:41:39] One, [1:41:40] to try and determine [1:41:41] what the facts were [1:41:42] about Howard Hunt's [1:41:43] employment status, [1:41:45] which was very murky [1:41:46] at that point in time [1:41:47] because of some [1:41:49] lack of documents [1:41:51] or some confusion [1:41:51] of documents [1:41:52] and things of that sort. [1:41:54] The other purpose [1:41:55] was to talk about [1:41:56] what to do [1:41:57] about this safe, [1:41:58] which had been found [1:41:59] on the premises [1:42:00] and apparently had [1:42:02] things in it [1:42:03] that related to Howard Hunt, [1:42:04] who was then, [1:42:06] if not arrested, [1:42:08] at least a prime suspect. [1:42:11] The instructions, [1:42:13] which we agreed upon [1:42:14] at that meeting, [1:42:16] were that a number [1:42:17] of people should be present [1:42:18] at the opening [1:42:20] of that safe. [1:42:22] We knew we had to have [1:42:23] somebody from the GSA [1:42:25] because they had [1:42:26] to open the safe. [1:42:27] But in addition to that, [1:42:29] I specified [1:42:30] that Mr. Curly be present, [1:42:32] that Mr. Dean be present [1:42:33] and take custody. [1:42:35] And then I think [1:42:36] Mr. Curly suggested [1:42:37] that a Secret Service agent [1:42:38] be present [1:42:39] under the circumstances [1:42:40] because we were [1:42:40] breaking into a safe [1:42:41] in the White House. [1:42:43] And so that was [1:42:44] the arrangement [1:42:45] that was agreed upon [1:42:46] before that meeting [1:42:46] broke up on the 19th. [1:42:49] Now, having, [1:42:51] and of course my purpose [1:42:52] in doing that [1:42:53] was twofold. [1:42:53] One, it's kind of [1:42:54] an extraordinary procedure [1:42:55] and I thought [1:42:56] there ought to be people [1:42:57] who later on [1:42:58] could explain [1:42:59] what actually happened. [1:43:00] Two, I was concerned [1:43:01] about the custody [1:43:03] of these documents, [1:43:04] the chain of evidence, [1:43:05] the perfectibility [1:43:06] of proof, [1:43:08] if the time came, [1:43:09] that there were [1:43:10] important documents [1:43:11] in there [1:43:12] that bore on [1:43:12] Mr. Hunt's liability. [1:43:16] So that was done [1:43:18] and it was done, [1:43:19] I believe, [1:43:19] that same day [1:43:20] or that evening. [1:43:23] Now, it seems to me [1:43:24] that it would have been [1:43:28] falling for me [1:43:29] at some later time [1:43:31] then to suggest [1:43:32] that the briefcase [1:43:34] be thrown into [1:43:35] the flood tide [1:43:36] of the Potomac [1:43:37] or that these papers [1:43:40] be thrown in the river [1:43:41] or something of this kind. [1:43:42] Now, there was in this story [1:43:44] also the suggestion [1:43:45] of shredding. [1:43:47] I don't think in my life [1:43:48] that I have suggested [1:43:50] to anybody [1:43:51] that a document [1:43:52] be shredded. [1:43:52] Shredding is just [1:43:53] not something [1:43:54] that I have ever [1:43:56] resorted to [1:43:57] under any circumstances [1:43:59] nor proposed to anybody [1:44:00] under any circumstances. [1:44:01] As I said, [1:44:02] we have a great disposal [1:44:04] system at the White House [1:44:05] if you really want [1:44:06] to get rid of a document. [1:44:07] You put it in a burn bag [1:44:09] and you seal it up [1:44:10] and it's never opened again [1:44:11] and it goes into a furnace [1:44:12] and that's the end of it. [1:44:14] But to get back [1:44:15] to this second meeting [1:44:16] when John Dean [1:44:18] comes to you [1:44:20] and tells you [1:44:21] we've got some [1:44:21] pretty sensitive papers here [1:44:23] and as he alleges [1:44:25] you say [1:44:26] well deep sex [1:44:26] this briefcase. [1:44:29] What is your testimony on it? [1:44:30] I did not, Senator. [1:44:32] I have no recollection [1:44:33] of that kind [1:44:35] of a conversation. [1:44:36] It was... [1:44:37] Did you make [1:44:37] any other suggestion [1:44:38] to him [1:44:39] that he dispose [1:44:40] of these papers [1:44:41] in any other way? [1:44:42] We discussed [1:44:43] what to do [1:44:44] about some papers [1:44:45] which he told me [1:44:46] about in the safe [1:44:46] that really [1:44:48] should not be leaked. [1:44:49] Again, [1:44:50] we have to come back [1:44:50] to our FBI problem [1:44:51] and he was genuinely concerned [1:44:54] and when he explained it to me [1:44:55] I shared his concern [1:44:57] that if these documents [1:44:58] were simply wholesale [1:44:59] to the Washington Field Office [1:45:01] of the FBI [1:45:02] that we would be reading [1:45:03] about it in Time Magazine [1:45:05] in very short order. [1:45:06] Now you're talking [1:45:07] about the ones [1:45:07] that were turned over to Gray. [1:45:08] And so Mr. Dean [1:45:11] came up with this idea [1:45:12] of turning them over [1:45:13] to Pat Gray personally [1:45:14] and I certainly concurred in it. [1:45:16] I thought that was [1:45:17] an ideal solution [1:45:18] to the problem. [1:45:18] Now did that come up [1:45:19] at this meeting [1:45:20] when supposedly [1:45:22] the deep sex conversation [1:45:24] came up? [1:45:24] Well I don't... [1:45:26] I gathered [1:45:27] that that meeting [1:45:27] was supposed to have been [1:45:28] the meeting [1:45:29] when Mr. Curly [1:45:30] and the others were there. [1:45:32] It would have necessarily [1:45:33] been at that meeting [1:45:34] because the die [1:45:35] was cast thereafter. [1:45:36] We had, you know, [1:45:37] the 20 bishops [1:45:38] had witnessed [1:45:39] the opening of the safe [1:45:40] at that point [1:45:41] and they were just... [1:45:42] So it had to be that meeting. [1:45:44] Now I don't know [1:45:45] what meeting [1:45:46] he's referring to. [1:45:47] I think he said [1:45:48] it was the 21st. [1:45:49] The 21st. [1:45:50] Well I met with Mr. Dean [1:45:56] the 21st in the afternoon. [1:46:01] The only thing [1:46:01] that I can say to you [1:46:03] is that I certainly [1:46:07] would not have [1:46:07] and did not propose [1:46:12] the destruction [1:46:12] of those documents. [1:46:15] Well let's get then [1:46:17] to... [1:46:17] That's clear enough. [1:46:18] Let's get to the gray papers [1:46:24] as I understand [1:46:25] your testimony now. [1:46:27] Mr. Dean did raise [1:46:28] these sensitive papers. [1:46:30] If they were [1:46:31] just filed away [1:46:32] in the FBI [1:46:33] regular files [1:46:34] and somebody got to them [1:46:35] why it would be [1:46:36] very embarrassing [1:46:37] to a lot of people. [1:46:38] That's what he said. [1:46:39] What happened [1:46:40] to those papers? [1:46:43] Tell your version [1:46:44] of the story [1:46:45] from his first telling you [1:46:47] these were sensitive papers [1:46:48] we've got to do [1:46:48] something different with them. [1:46:49] He agonized [1:46:51] for several days [1:46:53] over what to do [1:46:54] about this situation. [1:46:56] I was not involved [1:46:57] in a lot of conversations [1:46:58] with him about it. [1:47:00] He was gone [1:47:00] a couple of days [1:47:01] during this interval [1:47:02] because the river [1:47:04] was flooding [1:47:04] on account of [1:47:05] Agnes' hurricane [1:47:06] and his house [1:47:08] was near the river [1:47:09] and so he was just [1:47:10] out of the play [1:47:12] for a couple of days [1:47:12] during that particular [1:47:13] period of time. [1:47:14] He was moving [1:47:15] his furniture up [1:47:16] and I don't know [1:47:17] putting up sandbags [1:47:18] and whatnot [1:47:19] and so he came back [1:47:23] from that interval [1:47:26] and said he thought [1:47:28] he had an idea [1:47:29] as to how to solve [1:47:30] this problem [1:47:31] and that would be [1:47:32] to deliver these documents [1:47:34] in two parcels. [1:47:36] One parcel to the field office [1:47:37] and the other parcel [1:47:39] to Pat Gray. [1:47:41] I certainly concurred [1:47:43] in that suggestion. [1:47:45] It seemed to me [1:47:46] like a good way [1:47:47] of making sure [1:47:48] that the documents [1:47:48] didn't leak [1:47:49] as long as Mr. Gray [1:47:50] held on to them. [1:47:51] This was his suggestion [1:47:52] to turn them over [1:47:53] to Gray. [1:47:53] Yes, sir. [1:47:54] And then what happened? [1:47:55] And I said that [1:47:57] either that I would [1:48:00] get Mr. Gray [1:48:01] to come over [1:48:01] but I think what I said [1:48:02] to him was [1:48:03] Mr. Gray was coming over [1:48:04] that day [1:48:05] for another appointment [1:48:07] and why didn't he [1:48:10] just bring them over [1:48:11] when Pat Gray [1:48:12] was there [1:48:12] and deliver them to him [1:48:13] so that two of us [1:48:15] could say [1:48:15] that the delivery [1:48:16] had been made [1:48:17] and we would put [1:48:18] an end to this [1:48:18] evidentiary change [1:48:20] so to speak. [1:48:21] As I understand [1:48:21] he did come over [1:48:22] and he did bring [1:48:23] the documents [1:48:24] and Gray [1:48:24] and you [1:48:25] and he were there [1:48:25] then what happened? [1:48:28] We were there [1:48:28] he said [1:48:29] Pat I'd like [1:48:31] to give you these [1:48:32] it was [1:48:33] the sense of it [1:48:34] was that these [1:48:35] were contents [1:48:36] of Hunt Safe [1:48:37] that were politically [1:48:38] sensitive [1:48:38] and we just [1:48:39] couldn't stand [1:48:40] to have them leaked [1:48:41] that [1:48:42] he proposed [1:48:45] I don't know [1:48:45] whether he talked [1:48:46] to Gray before [1:48:46] or not [1:48:47] because Gray [1:48:48] seemed to understand [1:48:50] the setting [1:48:51] and the premise [1:48:53] so to speak [1:48:53] and he turned [1:48:54] the documents [1:48:55] over to him [1:48:56] and John Dean [1:48:57] then left [1:48:58] Did you say nothing [1:48:59] during this whole meeting? [1:49:02] I probably chimed in [1:49:04] on the subject of leaks [1:49:05] which was then [1:49:06] kind of a [1:49:07] was a theme [1:49:09] that I was hitting [1:49:09] with Mr. Gray [1:49:10] right along [1:49:11] and as I've testified [1:49:14] before [1:49:14] I don't recall [1:49:16] the specific language [1:49:17] that was used [1:49:18] but the sense [1:49:18] of the conversation [1:49:20] between the three of us [1:49:21] which was not [1:49:21] a long conversation [1:49:22] was that [1:49:24] the purpose [1:49:26] of Pat Gray [1:49:27] taking delivery [1:49:28] of these [1:49:28] was to avoid [1:49:30] the leak problem [1:49:31] which all of us [1:49:32] recognized [1:49:32] that the FBI [1:49:33] was having [1:49:33] Well I seem [1:49:35] to recall [1:49:36] there was some [1:49:36] testimony [1:49:37] about [1:49:37] to Gray [1:49:39] by someone [1:49:40] either Dean [1:49:41] or you [1:49:41] that these documents [1:49:42] should never see [1:49:43] the light of day [1:49:44] do you recall that? [1:49:45] I don't think [1:49:46] well I don't know [1:49:47] whether there was [1:49:48] testimony about that [1:49:49] that is not a phrase [1:49:50] that I've ever [1:49:51] that I've ever testified to [1:49:53] I don't recall [1:49:54] that phrase being used [1:49:55] Your recollection [1:49:58] then is that [1:49:59] it was just made known [1:50:01] to Gray [1:50:01] that these were [1:50:02] very sensitive documents [1:50:04] and he ought to make sure [1:50:06] that they were kept [1:50:07] very sensitive [1:50:07] and no one saw them [1:50:08] is that the gist of it? [1:50:10] No I think the word [1:50:11] politically was in there [1:50:12] I think it was very clear [1:50:13] that they had [1:50:14] political overtones [1:50:15] rather than [1:50:16] saying sensitive [1:50:17] from a national security [1:50:18] standpoint [1:50:19] or something of that kind [1:50:20] Was there any discussion [1:50:21] in that meeting [1:50:22] that would give [1:50:23] Gray the thought [1:50:24] that he ought to destroy them? [1:50:26] No sir [1:50:26] You're positive on that score? [1:50:28] And the reason [1:50:29] that I'm positive [1:50:30] Senator [1:50:30] is that when I heard [1:50:31] that he had in fact [1:50:33] destroyed them [1:50:34] I was just nonplussed [1:50:36] there was just nothing [1:50:37] in the contemplation [1:50:38] of the people [1:50:38] in that room [1:50:39] at the time of the delivery [1:50:40] that would have led [1:50:42] to that kind of a conclusion [1:50:43] Did you ever have [1:50:44] any communication [1:50:46] with Mr. Gray [1:50:47] about these documents [1:50:48] after that meeting? [1:50:50] Yes sir [1:50:50] And recount that [1:50:52] to the committee? [1:50:53] That was in April [1:50:54] of this year [1:50:55] We had a conversation [1:50:58] The president asked me [1:51:01] to telephone Mr. Gray [1:51:02] It was a Sunday night [1:51:04] It was the 15th of April [1:51:11] at about 10-15pm [1:51:15] I was in the president's [1:51:19] EOB office [1:51:20] and he had had a meeting [1:51:23] that day [1:51:23] with Mr. Kleindienst [1:51:25] The subject of these documents [1:51:29] came up [1:51:29] at that meeting [1:51:31] and the president asked me [1:51:34] to call Mr. Gray [1:51:35] and find out [1:51:37] what the documents were [1:51:39] and where they were [1:51:40] So I did that [1:51:43] Mr. Gray [1:51:44] was not home [1:51:45] When he got home [1:51:46] he called back [1:51:47] and we completed [1:51:48] the conversation [1:51:49] in the president's office [1:51:50] Do you want the substance [1:51:54] of the conversation? [1:51:54] Yes [1:51:55] All right [1:51:55] I told him [1:51:57] at that time [1:51:58] that the delivery [1:52:02] of the documents [1:52:04] to him [1:52:04] had been the subject [1:52:06] of this conversation [1:52:07] between the attorney general [1:52:08] and the president [1:52:08] that Mr. Dean [1:52:12] apparently [1:52:13] had told [1:52:14] the prosecuting attorney [1:52:16] about the fact [1:52:17] that he had made [1:52:17] the delivery [1:52:18] Mr. Gray said [1:52:19] well he can't say that [1:52:20] and I said [1:52:22] well he did say that [1:52:24] and he said [1:52:25] if he says that [1:52:27] I'll deny it [1:52:27] and I said [1:52:29] well Pat [1:52:30] it isn't a subject [1:52:31] for denial [1:52:32] obviously it's not [1:52:34] something you can deny [1:52:35] I recall [1:52:36] the episode [1:52:38] very clearly [1:52:38] well he says [1:52:39] you've got to [1:52:40] back me up on this [1:52:41] then he went on [1:52:44] to say [1:52:45] I've destroyed [1:52:45] the documents [1:52:46] that totally [1:52:50] nonplussed me [1:52:51] and I said [1:52:53] something rather [1:52:54] confused [1:52:55] and said goodbye [1:52:57] and hung up [1:52:57] and reported [1:52:58] to the president [1:52:59] that he had [1:53:00] in fact [1:53:00] just told me [1:53:01] that he'd destroyed [1:53:02] the documents [1:53:02] we talked about [1:53:05] the implications [1:53:05] of that [1:53:06] and I said [1:53:08] I don't think [1:53:09] that I completely [1:53:12] closed the door [1:53:12] with Mr. Gray [1:53:13] just now [1:53:14] on whether or not [1:53:16] I would back him up [1:53:17] if he denied [1:53:18] receiving the documents [1:53:18] so I placed a second [1:53:20] call right then [1:53:23] and I said [1:53:24] Pat I didn't respond [1:53:25] clear enough [1:53:27] to your suggestion [1:53:28] and I just want to [1:53:29] tell you [1:53:30] as I have to tell you [1:53:31] that I would have [1:53:32] no choice [1:53:33] if I were asked [1:53:33] but to say [1:53:34] that I was present [1:53:35] at the time [1:53:36] the documents [1:53:36] were delivered to you [1:53:37] and he said [1:53:38] I understand [1:53:39] I guess [1:53:40] I'll have to do [1:53:40] what I'll have to do [1:53:41] or words to that effect [1:53:42] and that was the end [1:53:43] of the second conversation [1:53:44] thank you Mr. Ehrlichman [1:53:45] I think my time [1:53:46] has elapsed [1:53:46] Mr. Chairman [1:53:47] unless there's some [1:53:53] objection [1:53:53] the committee [1:53:54] will take a recess [1:53:55] at this time [1:53:56] until 2 o'clock [1:53:58] from Washington [1:54:15] NPACT [1:54:16] continues its coverage [1:54:17] of hearings [1:54:18] by the Senate [1:54:18] Select Committee [1:54:19] on Presidential Campaign [1:54:21] Activities [1:54:21] here again [1:54:22] correspondent [1:54:23] Jim Lehrer [1:54:24] as we go back [1:54:25] to the caucus room [1:54:26] Senator Irvin [1:54:27] has a few words [1:54:28] for the spectators [1:54:29] I wish to reiterate [1:54:40] the request [1:54:40] to the audience [1:54:41] to refrain [1:54:44] from expressing [1:54:46] approval [1:54:47] or disapproval [1:54:48] of anything [1:54:49] said or done [1:54:50] I have to say [1:54:53] that probably [1:54:54] Senator Baker [1:54:57] and myself [1:54:57] were guilty [1:54:58] of a little [1:54:58] contributor [1:54:59] and negligence [1:54:59] this morning [1:55:00] we got so humorous [1:55:01] ourselves [1:55:01] and we laughed [1:55:02] ourselves [1:55:02] and probably [1:55:03] set an example [1:55:05] for others [1:55:06] but I do [1:55:08] ask [1:55:09] in the interest [1:55:10] of the work [1:55:11] of the committee [1:55:12] in the interest [1:55:14] of fairness [1:55:15] to the witnesses [1:55:16] that audience [1:55:19] will refrain [1:55:20] from expressing [1:55:21] approval [1:55:22] or disapproval [1:55:23] in any audible manner [1:55:25] in respect [1:55:26] to any matter [1:55:26] or thing [1:55:27] it would certainly [1:55:28] facilitate [1:55:28] the work [1:55:30] of the committee [1:55:30] as well [1:55:31] as contribute [1:55:33] to a proper hearing [1:55:35] Senator [1:55:37] in all way [1:55:39] I thank you [1:55:40] very much [1:55:41] Mr. Chairman [1:55:42] Mr. Ehrlichman [1:55:43] a few days ago [1:55:45] Mr. Alexander Butterfield [1:55:46] described in great detail [1:55:49] the electronic [1:55:50] audio recording [1:55:52] devices [1:55:52] which have been [1:55:53] established [1:55:54] and installed [1:55:55] in the White House [1:55:55] in the Oval Room [1:55:56] in the Executive Office [1:55:58] Building [1:55:58] and elsewhere [1:55:59] yesterday [1:56:01] in colloquy [1:56:03] with one of my [1:56:04] colleagues here [1:56:05] when the tapes [1:56:07] were mentioned [1:56:09] you indicated [1:56:11] that you were certain [1:56:14] that if these tapes [1:56:15] were made public [1:56:16] they would support [1:56:18] your contention [1:56:20] they would support [1:56:22] your innocence [1:56:22] is my memory correct sir [1:56:25] that's my feeling [1:56:26] Senator [1:56:27] the President [1:56:30] of the United States [1:56:31] has by letter [1:56:32] indicated that [1:56:33] he has no intention [1:56:35] to release these tapes [1:56:36] and tomorrow [1:56:38] I presume [1:56:39] we will know [1:56:39] very officially [1:56:41] what his decision [1:56:42] will be [1:56:42] but it would appear [1:56:44] at this point [1:56:45] that these tapes [1:56:46] will not be made public [1:56:47] I've heard legal scholars [1:56:51] suggest that [1:56:52] this fact [1:56:55] could serve [1:56:56] as a defense [1:56:57] for persons [1:57:01] who may be indicted [1:57:02] for certain criminal activities [1:57:04] which may have involved [1:57:07] the White House [1:57:09] one may argue [1:57:11] that the tapes [1:57:13] include [1:57:15] indispensable evidence [1:57:16] to prove innocence [1:57:17] and this would be [1:57:21] sufficient [1:57:22] for defense [1:57:25] to move [1:57:25] for the dismissal [1:57:26] of an indictment [1:57:27] what are your thoughts [1:57:30] well [1:57:33] as I tried to indicate [1:57:34] yesterday [1:57:35] I've been on the other [1:57:38] the other side [1:57:39] of the problem here [1:57:41] where I was sitting [1:57:42] by the President [1:57:44] trying to approach [1:57:45] a problem [1:57:46] which involved [1:57:46] the rights of individuals [1:57:48] and also the interests [1:57:50] of the country [1:57:50] and they frequently [1:57:52] don't coincide [1:57:54] my question [1:57:56] I understand [1:57:57] my question is [1:57:58] if [1:57:59] this is a very iffy question [1:58:01] please forgive me for it [1:58:02] if the United States [1:58:05] prosecutor [1:58:05] should decide [1:58:07] to indict you [1:58:10] for some crime [1:58:12] and as you've indicated [1:58:16] that the tapes [1:58:17] may well [1:58:18] provide you [1:58:19] with evidence [1:58:20] that would prove [1:58:21] your innocence [1:58:21] could you use this [1:58:24] as a defense [1:58:25] and have the [1:58:26] case dismissed [1:58:28] it's never occurred [1:58:29] to me senator [1:58:30] and I wouldn't touch [1:58:31] the question [1:58:32] with a ten foot pole [1:58:33] frankly [1:58:33] for fear I might [1:58:34] somehow affect [1:58:36] my rights [1:58:38] or someone else's rights [1:58:39] and I think [1:58:40] you would be sensitive [1:58:40] to that [1:58:41] it is not [1:58:43] something that has [1:58:44] occurred to me [1:58:45] and I hasten to say [1:58:46] it's not anything [1:58:47] that I've talked [1:58:47] to anyone [1:58:48] in the White House [1:58:49] about [1:58:49] it's a new [1:58:52] it's a new wrinkle [1:58:54] as far as I'm concerned [1:58:55] I started to respond [1:58:56] in terms of [1:58:57] my interest [1:58:59] which [1:59:00] is not [1:59:02] I feel [1:59:02] prejudiced [1:59:03] this aspect [1:59:03] was never discussed [1:59:04] with anyone [1:59:05] I have never discussed [1:59:07] it with anyone [1:59:07] no sir [1:59:08] Mr. Ehrlichman [1:59:13] your record indicates [1:59:15] that you're [1:59:16] a fine lawyer [1:59:18] you've served [1:59:20] for time [1:59:21] as the president's [1:59:22] most trusted legal officer [1:59:23] you've been in private practice [1:59:26] and so [1:59:28] I would assume [1:59:29] that [1:59:30] like most of us here [1:59:32] you're aware of [1:59:34] the [1:59:34] the court of ethics [1:59:36] written and unwritten [1:59:37] about the profession [1:59:38] the legal profession [1:59:40] yes [1:59:41] yes sir [1:59:41] we have certain ethical codes [1:59:43] now in early 1973 [1:59:47] April 1973 [1:59:48] the so-called [1:59:51] U.S. versus [1:59:51] Russo-Elsberg case [1:59:53] was [1:59:53] in full bloom [1:59:57] the papers were covering this [2:00:00] almost daily [2:00:02] it was [2:00:02] a matter of [2:00:03] grave interest [2:00:05] and concern [2:00:05] not just for the press [2:00:06] but for I think [2:00:07] members of the congress [2:00:09] and the people [2:00:10] of the United States [2:00:11] now in April of 1973 [2:00:14] you called [2:00:17] the presiding judge [2:00:18] Judge Byrne [2:00:19] didn't you [2:00:20] and invited him [2:00:21] to visit you [2:00:22] at San Clemente [2:00:23] yes sir [2:00:24] and it was [2:00:27] to discuss [2:00:27] a possible appointment [2:00:29] of Judge Byrne [2:00:30] as the director [2:00:31] of the FBI [2:00:31] well generally speaking [2:00:34] yes [2:00:34] not precisely [2:00:35] but generally [2:00:36] and you involved [2:00:38] the president [2:00:38] of the United States [2:00:39] who is also a lawyer [2:00:40] in the discussions [2:00:42] I involved him [2:00:44] no sir [2:00:44] I did not [2:00:45] did the president [2:00:46] also meet Judge Byrne [2:00:48] yes [2:00:48] but I can't say [2:00:49] that I involved him [2:00:50] as Judge Byrne [2:00:52] and I were walking [2:00:53] the president [2:00:54] came out of his office [2:00:55] and came over [2:00:57] and greeted Judge Byrne [2:00:58] what was the nature [2:01:00] of your conversation [2:01:01] with Judge Byrne [2:01:02] my conversation [2:01:06] Senator [2:01:07] I'd like to go back [2:01:10] and tell you [2:01:11] how the conversation [2:01:12] occurred [2:01:13] if I might [2:01:13] in order to put it [2:01:14] in setting [2:01:15] if you have no objection [2:01:16] please do so [2:01:17] it was evident [2:01:20] that the Gray nomination [2:01:22] was not going [2:01:25] to be sustained [2:01:25] and at the president's [2:01:28] instruction [2:01:29] I contacted [2:01:31] Judge Byrne [2:01:32] as it happened [2:01:33] before I talked [2:01:36] to Judge Byrne [2:01:36] I talked with [2:01:38] the attorney general [2:01:38] and told him [2:01:41] of the president's [2:01:43] instruction to me [2:01:44] and of the fact [2:01:44] that Judge Byrne [2:01:45] was going to be [2:01:47] coming to San Clemente [2:01:48] for a meeting [2:01:50] the attorney general [2:01:52] expressed his [2:01:53] wholehearted approval [2:01:55] of that meeting [2:01:57] he was a [2:01:58] very enthusiastic [2:02:00] advocate [2:02:03] of Judge Byrne [2:02:05] to be nominated [2:02:06] if Mr. Gray [2:02:07] could not be [2:02:08] the conversation [2:02:13] which I had [2:02:14] with Judge Byrne [2:02:15] on the telephone [2:02:15] was substantially this [2:02:17] I said Judge [2:02:19] I have been asked [2:02:21] by the president [2:02:22] to call you [2:02:22] I have been asked [2:02:24] to discuss with you [2:02:26] a federal appointment [2:02:29] which is not judicial [2:02:30] in character [2:02:31] I don't know [2:02:34] whether this is [2:02:34] an appropriate time [2:02:35] for us to have [2:02:37] a conversation [2:02:38] like this [2:02:39] because I don't know [2:02:40] what the present situation [2:02:41] in your trial is [2:02:42] the impression [2:02:45] I had [2:02:46] from the newspapers [2:02:47] was that the case [2:02:48] was in its [2:02:49] last stages [2:02:51] they were either [2:02:51] in surrebuttal [2:02:52] or had completed [2:02:54] surrebuttal [2:02:55] and I didn't know [2:02:57] at that point [2:02:58] what the posture [2:03:01] of the case [2:03:01] really was [2:03:02] but you were aware [2:03:03] at that point [2:03:04] that the judge [2:03:04] had not rendered [2:03:05] his decision [2:03:06] well it was a jury case [2:03:08] and I was aware [2:03:09] that the case [2:03:10] had not gone [2:03:12] to the jury yet [2:03:13] so I said [2:03:14] to the judge [2:03:15] this is not [2:03:16] a conversation [2:03:16] that is urgent [2:03:18] we need not [2:03:18] to have it now [2:03:19] but at some point [2:03:20] in time [2:03:21] I would like [2:03:22] to have this conversation [2:03:23] the judge responded [2:03:25] I see no reason [2:03:26] why we couldn't [2:03:26] talk right away [2:03:27] so I said [2:03:30] well if that's the case [2:03:32] what's convenient [2:03:33] for you [2:03:33] this was a Friday [2:03:38] yes Friday [2:03:39] he said [2:03:42] well I could come [2:03:42] down this afternoon [2:03:43] so I said [2:03:45] fine [2:03:46] and that's what happened [2:03:47] we set an appointment [2:03:48] for 4 o'clock [2:03:48] in the afternoon [2:03:49] he came down [2:03:51] to my office [2:03:52] when he came [2:03:54] into my office [2:03:55] I said [2:03:57] again [2:03:58] I am sensitive [2:04:00] to the fact [2:04:01] that you are trying [2:04:02] an important lawsuit [2:04:04] I propose [2:04:07] that we take a walk [2:04:08] out toward the bluff [2:04:09] from the office [2:04:10] if at any point [2:04:13] a subject arises [2:04:16] that you feel [2:04:18] in any way [2:04:19] impinges upon [2:04:21] your ability [2:04:24] to fairly try [2:04:25] the case [2:04:26] you just turn around [2:04:26] and walk away [2:04:27] from me [2:04:28] and as I said before [2:04:29] this is not something [2:04:30] that needs to be [2:04:31] discussed right now [2:04:32] we can talk about it [2:04:34] later without prejudice [2:04:35] he said [2:04:36] fine [2:04:36] let's proceed [2:04:37] on that basis [2:04:37] so we did [2:04:38] we walked out [2:04:40] to the bluff [2:04:41] and back [2:04:41] and it was a conversation [2:04:43] of perhaps [2:04:43] five minutes total [2:04:45] the gist of the conversation [2:04:48] was that I advised him [2:04:49] that it was the president's [2:04:50] conclusion [2:04:51] that he was going [2:04:52] to have to resubmit [2:04:54] a nomination [2:04:55] for director of the FBI [2:04:56] that he was interested [2:04:59] in knowing [2:04:59] whether or not [2:05:00] Judge Byrne [2:05:00] had an interest [2:05:01] in the position [2:05:02] if he did [2:05:04] then obviously [2:05:07] any decision [2:05:09] on the president's part [2:05:10] as to a nomination [2:05:11] would finally be the president's [2:05:13] but that it would be [2:05:15] helpful to know [2:05:17] of his interest [2:05:19] the judge [2:05:21] indicated very strong interest [2:05:23] he told me [2:05:26] a number of his [2:05:27] experiences with the FBI [2:05:29] that is to say [2:05:30] he had been a U.S. attorney [2:05:31] he had had a number of experiences [2:05:32] with the bureau [2:05:33] he had some ideas [2:05:35] about how the bureau [2:05:36] was falling short [2:05:37] some ideas about [2:05:39] how it might be improved [2:05:40] he mentioned [2:05:41] just that he had those ideas [2:05:44] without getting into [2:05:45] in any great detail [2:05:46] so he gave me an impression [2:05:48] of very clear interest [2:05:51] as we walked back [2:05:54] as I say [2:05:55] the president came out [2:05:56] of his office [2:05:56] didn't know the judge [2:05:58] apparently [2:05:59] was introduced to him [2:06:01] they chatted [2:06:02] just very briefly [2:06:04] not about the case [2:06:05] obviously [2:06:05] but about [2:06:06] just pleasantries [2:06:09] their conversation [2:06:10] lasted perhaps [2:06:11] 30 seconds [2:06:12] and the president [2:06:14] went back [2:06:14] in his office [2:06:15] we returned to my office [2:06:17] where I said [2:06:17] well [2:06:17] I think the way [2:06:18] we have to leave this [2:06:19] is that I now know [2:06:20] you have an interest [2:06:21] and that obviously [2:06:22] the president [2:06:23] has to reserve [2:06:23] his options [2:06:24] completely [2:06:25] as to whether [2:06:26] there ever is [2:06:27] an offer to you [2:06:28] or not [2:06:28] so that was the [2:06:30] that was the end [2:06:31] of that conversation [2:06:32] next day [2:06:34] during [2:06:35] there was a second [2:06:37] conversation [2:06:37] senator [2:06:38] I'm getting ahead [2:06:39] of myself here [2:06:40] I take it [2:06:41] you would like me [2:06:42] to recount that [2:06:43] please do so [2:06:43] the next afternoon [2:06:47] about mid-afternoon [2:06:50] which would have [2:06:51] been Friday [2:06:51] my secretary [2:06:54] interrupted a [2:06:55] conversation I was [2:06:56] having [2:06:57] to say that the judge [2:06:58] was on the telephone [2:06:59] I took the phone call [2:07:02] he said [2:07:03] I've been giving a lot [2:07:04] of thought to our [2:07:05] conversation of yesterday [2:07:06] and I would like to [2:07:08] talk with you again [2:07:09] and I said fine [2:07:11] my instructions are [2:07:13] to be available to you [2:07:14] I would be happy [2:07:16] to see you [2:07:17] when would you like [2:07:18] to well [2:07:19] no I said [2:07:20] there's a problem [2:07:21] we're leaving [2:07:22] the day after tomorrow [2:07:23] to go back to Washington [2:07:25] could we work it in [2:07:28] in the next couple of days [2:07:29] he said yes [2:07:29] I would be available [2:07:30] on Saturday [2:07:31] I said fine [2:07:32] I'm planning to be [2:07:33] in Santa Monica [2:07:34] on Saturday [2:07:35] would it be possible [2:07:36] for us to meet there [2:07:37] and he said sure [2:07:38] we could work that out [2:07:39] so I said well [2:07:40] my mother lives a block [2:07:43] from Palisades Park [2:07:44] in Santa Monica [2:07:45] why don't we [2:07:46] why don't we meet there [2:07:47] and we can have [2:07:47] another walk [2:07:48] and he said fine [2:07:50] so we made an appointment [2:07:51] to meet at Ocean Avenue [2:07:53] and Montana streets [2:07:54] by the park [2:07:56] on Saturday [2:07:57] in the middle of the afternoon [2:07:58] which we did [2:07:59] we had a short walk [2:08:03] during which he again [2:08:05] evidenced very strong interest [2:08:07] he did not press me [2:08:09] for an offer [2:08:10] when we got finished [2:08:12] with a conversation [2:08:13] which again took about [2:08:14] five [2:08:16] no more than ten minutes [2:08:17] he got in his car [2:08:19] and left again [2:08:20] no offers had been made [2:08:21] no acceptances [2:08:22] but I took this [2:08:24] as an occasion [2:08:25] when he wanted to [2:08:26] restate [2:08:27] his very strong interest [2:08:29] to me [2:08:29] in the position [2:08:31] and it was [2:08:32] it was more [2:08:33] symbolic [2:08:34] than it was significant [2:08:35] from the standpoint [2:08:36] of content [2:08:37] this all occurred [2:08:39] at a time [2:08:40] when Judge Matthew Burns [2:08:43] was the presiding judge [2:08:44] in the case [2:08:45] of United States [2:08:46] versus Russo [2:08:47] Ellsberg and others [2:08:48] and I think [2:08:52] it would be an understatement [2:08:53] to say that [2:08:54] your interest [2:08:55] and the president's interest [2:08:57] and outcome [2:08:57] of the case [2:08:58] was more than casual [2:09:00] you've indicated [2:09:03] your interest [2:09:04] in the Ellsberg situation [2:09:05] to the extent [2:09:06] that you had [2:09:07] the psychiatrist's office [2:09:09] burglarized [2:09:10] this was a case [2:09:14] of major importance [2:09:15] as far as [2:09:16] the justice department [2:09:17] was concerned [2:09:18] you wanted the outcome [2:09:21] to be in the favor [2:09:23] of the government [2:09:23] and under all those [2:09:25] circumstances [2:09:26] you still felt [2:09:27] it was proper [2:09:28] to call upon [2:09:30] the presiding judge [2:09:31] to make this offer [2:09:33] don't you think [2:09:34] it was highly [2:09:35] improper [2:09:35] and unethical [2:09:36] Senator [2:09:38] I can't [2:09:39] accept your question [2:09:41] without quarreling [2:09:41] with some of your [2:09:42] assumptions [2:09:42] I'm sorry [2:09:44] but you very [2:09:47] very easily [2:09:49] stated that I was [2:09:50] the instigator [2:09:51] of the burglary [2:09:52] of Dr. Fielding's office [2:09:54] no no no [2:09:55] let's say that [2:09:55] you have nothing [2:09:56] to do with it [2:09:56] I can't agree [2:09:57] I can't agree [2:09:57] with that [2:09:58] but you were aware [2:09:58] that a burglary [2:09:59] did occur [2:10:00] well I'll accept [2:10:01] I'll accept that [2:10:02] you had approved [2:10:03] a covert operation [2:10:05] to get information [2:10:07] legally as you said [2:10:08] let me respond [2:10:08] directly to your [2:10:09] directly to your question [2:10:11] I can assure you [2:10:15] that there was [2:10:17] no such motive [2:10:18] in my thought [2:10:20] at the time [2:10:22] of this [2:10:22] of this meeting [2:10:23] and I'm sure [2:10:24] that is also true [2:10:25] of the attorney general [2:10:25] and I'm sure [2:10:26] it's true of the president [2:10:27] we were trying [2:10:28] to get [2:10:28] the best man [2:10:30] that we could [2:10:31] to be director [2:10:31] of the FBI [2:10:32] and that was [2:10:33] the sole and singular [2:10:34] motive [2:10:34] now I have scoured [2:10:36] the canons of ethics [2:10:38] to find [2:10:41] and I bring this up [2:10:42] because you referred [2:10:43] to it at the outset [2:10:44] to refine [2:10:45] to find where [2:10:46] I had in any way [2:10:50] infringed upon them [2:10:51] bear in mind [2:10:52] I was not [2:10:53] in the capacity [2:10:54] of an attorney [2:10:54] I hadn't been [2:10:56] in the capacity [2:10:57] of an attorney [2:10:57] for some three years [2:10:58] in the government [2:10:59] I was a member [2:11:00] of the executive branch [2:11:01] I was the president's [2:11:03] agent in this matter [2:11:04] and my function [2:11:05] in this was [2:11:06] purely ministerial [2:11:07] I don't accept [2:11:10] the suggestion [2:11:11] that I was [2:11:12] an officer [2:11:13] of the court [2:11:13] so to speak [2:11:14] in this setting [2:11:16] I simply wasn't [2:11:18] now I take [2:11:20] some comfort [2:11:20] from the fact [2:11:21] that I did this [2:11:22] with the full knowledge [2:11:23] of the attorney general [2:11:24] of the United States [2:11:25] who had all of the [2:11:26] facts [2:11:27] which I did not [2:11:28] he was aware [2:11:29] that you were going [2:11:29] to offer the FBI [2:11:30] directorship [2:11:31] to the judge [2:11:32] well I didn't offer him [2:11:34] he was aware [2:11:36] of precisely [2:11:36] what I was going [2:11:37] to do [2:11:37] he was aware [2:11:39] of precisely [2:11:39] what I was going [2:11:40] to do [2:11:40] weren't you aware [2:11:43] that this would [2:11:44] present an impression [2:11:46] of impropriety [2:11:47] I was not [2:11:49] why were you [2:11:50] sensitive about this [2:11:51] why was I sensitive [2:11:52] about it [2:11:53] that's the word [2:11:53] you used [2:11:54] well I was [2:11:54] I was sensitive [2:11:55] as anyone would be [2:11:56] because I was not [2:11:58] personally [2:11:59] as familiar [2:12:01] with the progress [2:12:02] of that trial [2:12:03] at that time [2:12:03] as you evidently [2:12:04] were from the reading [2:12:05] of the press [2:12:06] I had to depend [2:12:07] on the judge [2:12:08] to tell me [2:12:08] the proprieties [2:12:10] in this matter [2:12:11] he was in possession [2:12:13] of all of the facts [2:12:14] I was in possession [2:12:15] of few [2:12:15] if any of them [2:12:16] then I gather [2:12:17] you were much surprised [2:12:19] and shocked [2:12:20] with the reaction [2:12:21] of the public [2:12:22] and the reaction [2:12:23] of the legal profession [2:12:24] when this was made known [2:12:26] in candor [2:12:27] I have been surprised [2:12:28] yes sir [2:12:28] and I think it is because [2:12:30] in part because [2:12:32] it has not been [2:12:32] fully explained [2:12:33] I'm grateful [2:12:35] for this opportunity [2:12:35] to tell exactly [2:12:36] what happened [2:12:37] and you still maintain [2:12:39] that the attorney general [2:12:40] and you [2:12:41] in calling upon [2:12:44] the judge [2:12:44] did nothing improper [2:12:45] or unethical [2:12:47] I would be very grateful [2:12:49] to you senator [2:12:50] if you could specify [2:12:51] the canon [2:12:53] that you feel [2:12:54] applies here [2:12:55] I've not [2:12:56] I've taken advice [2:12:57] on this [2:12:57] and I have not [2:12:58] been able [2:12:59] to determine [2:13:00] except in the most [2:13:01] nebulous [2:13:01] and general terms [2:13:03] some rather [2:13:04] vague feeling [2:13:05] that people have [2:13:06] that a canon [2:13:06] has been violated [2:13:07] as I say [2:13:10] and without [2:13:11] laboring [2:13:11] the point [2:13:12] I'd be very grateful [2:13:14] to you [2:13:14] for that specification [2:13:15] so that I can [2:13:16] respond to it [2:13:17] I appreciate [2:13:18] the sensitivity [2:13:19] of approaching [2:13:21] any sitting judge [2:13:22] now I don't imagine [2:13:22] there's a federal judge [2:13:23] in the country [2:13:24] who doesn't have [2:13:25] a case involving [2:13:26] the United States [2:13:27] government before him [2:13:28] on his docket [2:13:29] somewhere [2:13:29] or in the process [2:13:30] of trial [2:13:31] it may be [2:13:33] that the logical [2:13:34] implication [2:13:36] of what you suggest [2:13:37] is that the executive [2:13:39] branch should never [2:13:40] offer a federal judge [2:13:41] a position [2:13:42] but this was not [2:13:43] an ordinary case [2:13:44] well you know [2:13:46] that reminds me [2:13:47] of the story [2:13:47] of the [2:13:48] you mean you weren't [2:13:49] interested in the outcome [2:13:50] of the Ellsberg case [2:13:51] it reminds me [2:13:53] a little senator [2:13:53] of the story [2:13:55] of the railroad [2:13:55] claim agent [2:13:56] who had the picture [2:13:57] of the cow [2:13:57] on his wall [2:13:58] and the fellow says [2:13:59] what's so special [2:14:01] about that cow [2:14:02] and he said [2:14:03] that's the only [2:14:04] ordinary cow [2:14:05] that the railroad [2:14:05] ever hit [2:14:06] every case [2:14:09] in a matter [2:14:11] of this kind [2:14:12] gets to be [2:14:13] the extraordinary case [2:14:16] I'm sure [2:14:16] I think that [2:14:19] in approaching this [2:14:21] as I did [2:14:21] talking with the [2:14:24] attorney general [2:14:24] talking with the judge [2:14:26] in the terms [2:14:27] that I did [2:14:27] I hedged this about [2:14:28] with as much [2:14:29] precaution [2:14:30] as I knew to do [2:14:31] and still carry out [2:14:32] the explicit instruction [2:14:34] that I had [2:14:35] from the president [2:14:36] you had conversations [2:14:38] with the judge [2:14:39] on two separate occasions [2:14:41] did you at any time [2:14:42] advise the judge [2:14:43] of your knowledge [2:14:44] of the break-in [2:14:45] into Dr. Fielding's office [2:14:47] no sir [2:14:48] why didn't you advise him [2:14:49] that sir [2:14:50] well I think that [2:14:51] would have been [2:14:51] extraordinarily improper [2:14:53] from two standpoints [2:14:55] I'd like to know [2:14:56] well the first one [2:14:57] of course was [2:14:57] that I was under [2:14:58] a strict injunction [2:14:59] from the president [2:15:00] as to that entire [2:15:02] national security [2:15:03] subject matter [2:15:03] but secondly [2:15:05] for a member [2:15:06] of the executive branch [2:15:07] to talk to a sitting judge [2:15:10] about a matter [2:15:12] affecting a trial [2:15:14] before him [2:15:15] at that time [2:15:16] without going through [2:15:17] the counsel [2:15:17] to the president [2:15:18] or the attorney general [2:15:19] or the trial lawyers [2:15:21] involved in the case [2:15:22] it seems to me [2:15:24] would have been [2:15:24] if what I did [2:15:26] was improper [2:15:27] that would have been [2:15:27] impropriety squared [2:15:28] that would have been [2:15:31] the farthest thing [2:15:31] from my mind to do [2:15:32] it is your testimony [2:15:36] today that [2:15:37] this meeting [2:15:39] had nothing to do [2:15:40] with the possible [2:15:42] outcome of the trial [2:15:43] well certainly [2:15:44] I can only speak [2:15:45] for my motive [2:15:46] and I think [2:15:48] I can fairly speak [2:15:49] for the motive [2:15:49] of the president [2:15:50] and the attorney general [2:15:51] that that simply [2:15:53] did not enter into [2:15:54] I've been sent [2:16:04] this note [2:16:04] from the chief counsel [2:16:05] on the canon of ethics [2:16:08] the attorney is [2:16:11] under duty [2:16:12] not to impair [2:16:13] the confidence [2:16:14] of the public [2:16:15] in the integrity [2:16:16] of the judiciary [2:16:17] I'm afraid [2:16:20] that is a [2:16:21] that is a great [2:16:21] catch-all [2:16:22] number one [2:16:23] of course [2:16:24] I was not [2:16:25] rather clear [2:16:26] sir [2:16:26] did it give the impression [2:16:28] to the public [2:16:29] that an attempt [2:16:30] was made [2:16:30] to compromise [2:16:31] Judge Byrne [2:16:33] well if it were given [2:16:35] it was certainly [2:16:35] a false impression [2:16:36] I am [2:16:39] I am [2:16:39] certainly comfortable [2:16:41] in the precautions [2:16:43] that I took [2:16:44] in indicating [2:16:46] to the judge [2:16:47] that he was free [2:16:48] not to engage [2:16:49] in this conversation [2:16:50] that I was relying [2:16:51] entirely [2:16:52] on his own knowledge [2:16:54] of the state [2:16:55] of that case [2:16:56] and I don't know [2:16:58] what else [2:16:58] I could have done [2:16:59] under the circumstances [2:17:00] Mr. Ehrlichman [2:17:05] yesterday [2:17:06] you told the committee [2:17:07] that you were not [2:17:08] able to discuss [2:17:09] the activities [2:17:10] of the special [2:17:11] investigations unit [2:17:12] the so-called [2:17:13] plumbers group [2:17:14] because the president [2:17:16] has directed [2:17:16] that the highest [2:17:17] security classification [2:17:19] be applied [2:17:20] to the activities [2:17:21] am I correctly [2:17:23] stating your [2:17:23] position sir [2:17:24] I'm not sure [2:17:26] that that was [2:17:27] the reason [2:17:28] that I intended [2:17:29] to assign to that [2:17:30] in point of fact [2:17:32] executive privilege [2:17:33] has also been invoked [2:17:34] do you or the [2:17:37] president of the [2:17:38] United States [2:17:39] consider the activities [2:17:40] of Mr. Hunt [2:17:41] and Mr. Liddy [2:17:42] in relation to [2:17:43] Ms. Dita Byrd [2:17:45] as vital to [2:17:46] our national security [2:17:47] no sir [2:17:47] and I didn't include [2:17:48] it in that [2:17:49] I don't know [2:17:50] about those activities [2:17:51] and they certainly [2:17:52] had nothing to do [2:17:53] with the activities [2:17:54] of the special unit [2:17:55] weren't you aware [2:17:56] that Mr. Liddy [2:17:57] and Mr. Hunt [2:17:58] were involved [2:17:58] no sir [2:17:59] when did you [2:18:00] learn of this [2:18:01] well I heard [2:18:02] something in testimony [2:18:04] here the other day [2:18:05] about Liddy [2:18:05] and I'd forgotten [2:18:07] who testified [2:18:08] that Liddy told him [2:18:10] that he had [2:18:11] taken her out of town [2:18:12] that's the first [2:18:13] I'd ever heard of that [2:18:14] of course I heard [2:18:16] about Hunt [2:18:17] going to Denver [2:18:18] some time ago [2:18:20] in the press [2:18:21] but I don't believe [2:18:21] that I had ever [2:18:23] heard of that [2:18:23] before that [2:18:24] and I think [2:18:25] there's a lot [2:18:25] of confusion [2:18:26] about Hunt [2:18:27] and Liddy's [2:18:28] participation [2:18:28] in this special unit [2:18:30] so far as I know [2:18:32] after the break-in [2:18:35] at Dr. Fielding's office [2:18:36] Hunt and Liddy [2:18:39] ceased having [2:18:40] participation [2:18:40] in the investigations [2:18:43] or the supervision [2:18:45] of agencies [2:18:46] by the special unit [2:18:47] I'm not aware [2:18:49] of any specific activities [2:18:51] that either one of them [2:18:53] engaged in [2:18:53] for the special unit [2:18:54] after oh about [2:18:57] the 8th or 9th of September [2:19:04] something of that kind [2:19:05] so it would have been [2:19:06] a total participation [2:19:07] of July 24th [2:19:10] to September 9th [2:19:12] 8th [2:19:12] someplace in there [2:19:13] do you recall [2:19:15] the former [2:19:15] Attorney General [2:19:16] Mr. John Mitchell [2:19:17] discussing [2:19:18] the matter [2:19:19] of White House [2:19:20] Horrors with you [2:19:21] because he did testify [2:19:23] that he discussed [2:19:24] this with you [2:19:25] in great detail [2:19:26] I had never heard [2:19:27] that phrase used [2:19:28] until he appeared here [2:19:29] but he described [2:19:30] what he meant [2:19:31] by that [2:19:32] and one of the matters [2:19:33] described was this [2:19:35] involving [2:19:36] Miss Dita Byrd [2:19:37] I don't believe [2:19:38] that I have ever [2:19:39] discussed [2:19:39] that Dita Byrd [2:19:42] business [2:19:43] or Hunter and Liddy [2:19:44] with Mr. Mitchell [2:19:45] you're suggesting [2:19:47] that Mr. Mitchell's [2:19:48] memory has failed him [2:19:49] well I [2:19:50] let me go a little [2:19:52] a little beyond that [2:19:53] I believe Mr. Mitchell [2:19:55] testified [2:19:56] that he was not aware [2:19:58] of the plumbers [2:19:59] until sometime later [2:20:00] my log will show [2:20:02] that almost immediately [2:20:04] after the president [2:20:05] authorized this special unit [2:20:07] the 24th of July [2:20:08] I scheduled a series [2:20:10] of appointments [2:20:11] with cabinet officers [2:20:12] to take Mr. Krogh [2:20:13] and Mr. Young around [2:20:14] and introduce them [2:20:15] and to explain [2:20:16] what this special unit [2:20:17] was designed to do [2:20:18] with relation [2:20:19] to the stimulation [2:20:20] of activities [2:20:21] within the respective [2:20:22] departments [2:20:23] and I had an appointment [2:20:24] with Secretary Laird [2:20:25] and I had one [2:20:26] with Director Helms [2:20:27] I also had one [2:20:28] with Attorney General Mitchell [2:20:29] with Mr. Krogh [2:20:30] and Mr. Young [2:20:31] for just that purpose [2:20:32] and that would have been [2:20:34] late in July [2:20:34] or early in August [2:20:36] of 1971 [2:20:37] so I think [2:20:39] Mr. Mitchell's recollection [2:20:40] on this general subject [2:20:41] may be a little hazy [2:20:42] but you're testifying here [2:20:45] that you became aware [2:20:46] of the involvement [2:20:47] of Mr. Hunt [2:20:48] and Mr. Liddy [2:20:49] with Ms. Beard [2:20:51] just came about recently [2:20:53] a few days ago [2:20:54] well [2:20:55] that's a few days [2:20:56] a few months ago [2:20:56] Hunt and Liddy [2:20:58] simply went out of my [2:20:59] went out of my [2:21:01] off my screen [2:21:02] so to speak [2:21:03] about the time [2:21:06] of this fielding break-in [2:21:09] until one meeting [2:21:14] which I referred to [2:21:15] here the other day [2:21:16] that I think Liddy was in [2:21:17] sometime in the month [2:21:19] of October [2:21:19] when he was back [2:21:20] doing staff work [2:21:21] with regard to [2:21:23] straight domestic [2:21:25] policy work [2:21:27] for Mr. Krogh [2:21:29] which involved the organization [2:21:30] of the Justice Department [2:21:31] I think that's the only time [2:21:34] that I thought of [2:21:38] or heard about [2:21:39] Hunt and Liddy [2:21:39] subsequent to [2:21:42] those dates in September [2:21:44] when you heard [2:21:46] of the fielding break-in [2:21:47] did you disassociate yourself [2:21:49] with that activity [2:21:50] and admonish [2:21:51] those who were responsible [2:21:52] yes sir [2:21:53] did the president [2:21:57] do likewise [2:21:58] no I don't think so [2:21:59] the president had no reason to [2:22:01] because I don't think [2:22:02] he was informed of it [2:22:03] I thought you testified [2:22:06] to the effect [2:22:06] that you advised [2:22:07] the president [2:22:08] of this break-in [2:22:08] well no [2:22:10] as far as I know [2:22:12] the president learned of it [2:22:13] from someone else [2:22:13] not from me [2:22:14] the first specific recollection [2:22:18] I have [2:22:18] of discussing this subject [2:22:21] with [2:22:21] this special [2:22:23] special unit activity [2:22:24] with the president [2:22:26] was in March of this year [2:22:27] now I may have [2:22:29] had some conversation [2:22:31] with him [2:22:32] previously [2:22:32] to that date [2:22:34] but I have no recollection [2:22:35] of it [2:22:39] why didn't you do something [2:22:40] about this [2:22:40] sir [2:22:41] why didn't you do something [2:22:42] about Mr. Hunt and Liddy [2:22:43] there's nothing in the record [2:22:45] to show that they were [2:22:46] admonished [2:22:47] or they were punished [2:22:48] or they were put in bad graces [2:22:51] Hunt and Liddy [2:22:52] as far as I assume [2:22:54] had a complete defense [2:22:57] in the sense that [2:22:58] they were operating [2:22:58] according to [2:22:59] what they believed [2:23:00] to be authorization [2:23:01] the reaction that I had [2:23:05] to this [2:23:06] when I heard about it [2:23:07] was one of surprise [2:23:09] and disapproval [2:23:11] my initial reaction [2:23:14] was to pull them back [2:23:16] from their trip west [2:23:18] which I suggested [2:23:20] to Krogh be done immediately [2:23:21] and it was done [2:23:22] as far as I know [2:23:23] and so your response [2:23:24] to Mr. Krogh [2:23:25] not your response [2:23:26] the White House response [2:23:27] to Mr. Krogh's activity [2:23:29] was a presidential appointment [2:23:30] I think you have [2:23:32] if I could [2:23:34] if I could just finish the answer [2:23:35] and then I'll come to this [2:23:36] if you'd like me to [2:23:36] at that point in time [2:23:40] there were two [2:23:42] what I suppose you would [2:23:44] arguably call [2:23:44] conflicting duties [2:23:45] to have imposed [2:23:50] some kind of discipline [2:23:52] to have [2:23:54] had them arrested [2:23:56] something of this kind [2:23:57] has been suggested [2:23:58] as one of the alternatives [2:24:00] obviously the other alternative [2:24:02] was to pursue [2:24:03] this national security investigation [2:24:05] as vigorously as we could [2:24:06] and not compromise it [2:24:07] if we could possibly avoid it [2:24:09] you get into these [2:24:11] conflicting duty situations [2:24:13] as you know Senator [2:24:14] at times [2:24:14] and you have to [2:24:15] you have to take the main chance [2:24:17] you have to do the thing [2:24:18] that is more important [2:24:20] to the country [2:24:20] and not do the other thing [2:24:22] it occurred to me [2:24:24] the other day [2:24:25] that it's very much [2:24:26] analogous to the dilemma [2:24:27] of this committee [2:24:27] where you're confronted [2:24:29] with the conflicting rights [2:24:32] of individuals [2:24:34] who may be prejudiced [2:24:35] by this whole process [2:24:36] on the one hand [2:24:37] and what you conceive [2:24:39] to be the larger [2:24:40] national interest [2:24:41] and you have resolved [2:24:43] that conflict [2:24:44] in favor of the larger [2:24:45] national interest [2:24:45] even though some individuals [2:24:47] may be harmed [2:24:48] in the long pull [2:24:49] by the process [2:24:51] and I can understand that [2:24:52] at the same time [2:24:54] when you find yourself [2:24:55] in the bite of that line [2:24:56] sometimes it's hard [2:24:58] to explain [2:24:59] from a hindsight standpoint [2:25:01] your evaluation [2:25:02] of what the more important [2:25:03] thing to do was [2:25:04] what was a larger [2:25:04] national interest [2:25:05] a larger national interest [2:25:06] sir was in finding out [2:25:08] all we could [2:25:09] about who [2:25:11] and under what circumstances [2:25:12] these vital [2:25:13] national secrets [2:25:14] these top secret documents [2:25:15] were compromised [2:25:17] did it also include [2:25:19] the prosecution [2:25:20] of Dr. Ellsberg [2:25:21] now that was [2:25:24] that was really not [2:25:25] what this was about [2:25:26] really not [2:25:27] what this was about [2:25:28] the Justice Department [2:25:29] was well underway [2:25:31] on that [2:25:32] and they were handling that [2:25:34] and they continue [2:25:35] to handle it [2:25:35] this was a [2:25:37] particular undertaking [2:25:38] to try and find out [2:25:40] how this happened [2:25:41] who did it [2:25:42] how it could be [2:25:43] prevented in the future [2:25:44] I have many other questions [2:25:46] Mr. Ehrlichman [2:25:47] but my time is up [2:25:48] I have just one final question [2:25:50] sir [2:25:50] you have maintained [2:25:53] throughout [2:25:53] that in all of your service [2:25:57] in the White House [2:25:58] especially in those activities [2:26:01] evolving around [2:26:02] the Watergate [2:26:03] you did [2:26:04] no wrong [2:26:05] is that correct sir [2:26:07] yes sir [2:26:07] that every act [2:26:09] on your part [2:26:10] was legal [2:26:11] proper [2:26:12] and ethical [2:26:12] that's my belief [2:26:15] and I trust [2:26:16] that's true [2:26:17] if that's the case [2:26:19] why did [2:26:21] the former [2:26:23] Attorney General [2:26:23] of the United States [2:26:24] cite your resignation [2:26:26] as evidence [2:26:28] of the President [2:26:29] lowering his boom [2:26:30] well [2:26:32] I suppose [2:26:33] that was a [2:26:34] convenient landmark [2:26:35] at that time [2:26:36] and he undoubtedly [2:26:37] is not aware [2:26:39] of the President's [2:26:42] considerations [2:26:43] and motives [2:26:43] at the time [2:26:45] that I resign [2:26:46] if you're clean [2:26:47] why did he fire you [2:26:48] he didn't fire me sir [2:26:50] and [2:26:51] why didn't he insist [2:26:52] that you stay on board [2:26:53] well as a matter of fact [2:26:55] the proposal for me [2:26:56] to resign [2:26:57] came from me [2:26:58] it did not come from him [2:26:59] at the time that [2:27:01] I talked with him [2:27:03] on the telephone [2:27:04] and I'm trying to remember [2:27:05] the date it would have been [2:27:06] the 28th or 29th of April [2:27:10] just in any way [2:27:12] leading up to my [2:27:13] trip to Camp David [2:27:14] on the 29th [2:27:15] the state of things [2:27:17] was that I was to take [2:27:21] a leave of absence [2:27:22] but stay on the White House [2:27:24] staff and continue [2:27:25] to perform as many [2:27:26] of my functions [2:27:27] as possible [2:27:28] given the need [2:27:29] to answer charges [2:27:31] and do all these other [2:27:33] collateral things [2:27:35] the President was [2:27:36] quite content with that [2:27:37] at that time [2:27:38] it was Bob Haldeman [2:27:40] and I talked [2:27:40] we felt that [2:27:41] from our respective [2:27:42] standpoints [2:27:43] that was simply [2:27:44] not realistic [2:27:45] it was not viable [2:27:46] and it was we [2:27:48] that proposed [2:27:48] to the President [2:27:49] that we make a [2:27:50] clean break [2:27:51] rather than the other [2:27:52] way around [2:27:53] and you're maintaining [2:27:55] that you had no knowledge [2:27:56] of the cover-up [2:27:57] and you further maintain [2:28:00] that the mastermind [2:28:01] of the cover-up [2:28:02] was John Wesley [2:28:03] being the third [2:28:04] well [2:28:05] I would like to speak [2:28:06] for myself [2:28:06] I had no part [2:28:09] in any cover-up [2:28:09] I'm not here [2:28:13] to make charges [2:28:13] against other people [2:28:14] and as you say [2:28:15] this is not an accusatory forum [2:28:18] I think the evidence [2:28:20] will speak for itself [2:28:21] when it's all in [2:28:22] and then [2:28:23] either you [2:28:25] or the public [2:28:26] or someone [2:28:27] will be in a very good position [2:28:29] to decide the answer [2:28:30] to that second question [2:28:30] I would hope [2:28:35] that the President [2:28:36] of the United States [2:28:37] will release those tapes [2:28:38] because it will help [2:28:40] to clear the evidence [2:28:42] thank you very much [2:28:43] Senator White [2:28:47] Mr. Ehrlichman [2:29:07] this morning [2:29:08] I believe you discussed [2:29:12] the justification [2:29:14] for the plumbers group [2:29:17] I had a question [2:29:20] on my pad [2:29:20] which was asked [2:29:21] by another member [2:29:21] of the committee [2:29:22] as to why the plumbers [2:29:23] why not the FBI [2:29:24] I believe [2:29:29] and you correct me [2:29:29] if I'm in any way [2:29:30] stating this [2:29:31] or paraphrasing it [2:29:33] incorrectly [2:29:34] that your response [2:29:36] was that [2:29:37] you were not getting [2:29:38] cooperation from the FBI [2:29:39] and had the opposition [2:29:41] of the director [2:29:42] Mr. Hoover [2:29:43] and that was the justification [2:29:44] for the plumbers [2:29:45] now [2:29:45] is that correct [2:29:47] no [2:29:47] the special unit itself [2:29:51] was created [2:29:52] in response [2:29:53] to a strong feeling [2:29:55] by the President [2:29:56] that the White House [2:29:58] had to more closely [2:29:59] supervise [2:30:00] the departments [2:30:01] the agencies [2:30:02] in their efforts [2:30:05] and that is [2:30:06] in the departments [2:30:06] and agencies effort [2:30:07] to do their own job [2:30:10] inside the departments [2:30:11] and agencies [2:30:12] in plugging leaks [2:30:13] finding out [2:30:14] who were disseminating [2:30:16] these documents [2:30:17] and so forth [2:30:18] so the origin [2:30:20] of that unit [2:30:21] and the original reason [2:30:23] for it being [2:30:24] was for that purpose [2:30:26] it was not [2:30:27] originally set up [2:30:28] as a police organization [2:30:30] or an investigatory organization [2:30:32] or anything of that kind [2:30:34] but then [2:30:34] when Mr. Krogh [2:30:37] ran into this hard place [2:30:38] in getting information [2:30:41] it was a last resort [2:30:46] to use these two people [2:30:47] who were in the unit [2:30:49] to do this [2:30:50] one particular [2:30:51] investigatory job [2:30:52] because in fact [2:30:55] the information [2:30:56] could not be obtained [2:30:57] by the FBI [2:30:57] is that correct? [2:30:59] would not [2:30:59] yes [2:31:00] would not [2:31:00] I'd like to read to you [2:31:03] and I believe your counsel [2:31:05] will now hand to you [2:31:05] an exhibit [2:31:06] or rather a letter [2:31:07] which I would hope [2:31:08] we would have been in as an exhibit [2:31:10] dated August 3rd 1971 [2:31:12] from the Federal Bureau [2:31:13] of Investigation [2:31:13] this was sometime [2:31:18] before the actual break-in [2:31:20] it is a letter [2:31:22] to Mr. Krogh [2:31:24] from the Director [2:31:25] J. Edgar Hoover [2:31:26] and I'd like to read the letter [2:31:28] the Honorable Eagle Krogh Jr. [2:31:30] Deputy Assistant [2:31:31] to the President [2:31:31] for Domestic Affairs [2:31:32] at the White House [2:31:33] Washington, D.C. [2:31:34] Dear Mr. Krogh [2:31:34] by letter [2:31:36] dated July 29, 1971 [2:31:38] the President advised me [2:31:40] that he had directed [2:31:41] that you examine in depth [2:31:43] the circumstances [2:31:44] of the many recent disclosures [2:31:45] of top secret [2:31:46] and other sensitive material [2:31:47] to the public [2:31:47] he asked that I forward to you [2:31:50] all information [2:31:51] acquired to date [2:31:52] including individual reports [2:31:54] of interviews [2:31:55] with respect to 17 persons [2:31:57] who were named [2:31:58] in an attachment [2:31:58] to his letter [2:31:59] one of these [2:32:01] was Daniel Ellsberg [2:32:02] principal suspect [2:32:03] in the disclosure [2:32:04] of the McNamara study [2:32:05] to various newspapers [2:32:06] he asked that a comprehensive [2:32:08] background paper [2:32:09] on Ellsberg [2:32:10] be sent to you [2:32:11] enclosed are 17 memoranda [2:32:14] containing the information [2:32:15] mentioned by the President [2:32:16] we have interviewed [2:32:17] five of the individuals [2:32:19] involved in connection [2:32:20] with our investigation [2:32:21] in the Ellsberg case [2:32:22] we also endeavored [2:32:24] to interview a sixth one [2:32:25] Mr. Charles M. Cook [2:32:26] but he declined [2:32:27] to submit to interview [2:32:28] by the FBI [2:32:29] without the specific [2:32:30] clearance of Deputy Attorney General [2:32:31] Richard Kleindienst [2:32:32] if you concur [2:32:34] we will proceed [2:32:35] with interviews [2:32:35] of all the remaining [2:32:36] individuals [2:32:37] except Daniel Ellsberg [2:32:39] by separate communication [2:32:41] I am furnishing [2:32:42] a copy of each [2:32:43] of the enclosures [2:32:43] to the Attorney General [2:32:44] upon removal [2:32:46] of the classified enclosures [2:32:47] this transmittal letter [2:32:48] may be declassified [2:32:50] sincerely yours [2:32:51] J. Edgar Hoover [2:32:51] would you say [2:32:54] that this is [2:32:55] fairly clear evidence [2:32:56] that the FBI [2:32:57] was perfectly willing [2:32:58] to perform its functions [2:33:00] in so far as [2:33:01] the Ellsberg matter [2:33:02] was concerned [2:33:02] well I don't think [2:33:04] I'm able to respond [2:33:06] to that Senator [2:33:06] I think all of us [2:33:09] who have had experience [2:33:10] with Mr. Hoover [2:33:11] recognize that letters [2:33:13] of this kind [2:33:14] were a method [2:33:20] that he had [2:33:21] frequently of justifying [2:33:24] shortfall in performance [2:33:25] by the Bureau [2:33:26] I don't know [2:33:28] whether this was [2:33:29] window dressing [2:33:29] or what this was [2:33:30] it was obvious [2:33:31] that the President [2:33:33] had at Mr. Krogh's request [2:33:34] shaken up the Director [2:33:36] and I will say [2:33:39] that over a period [2:33:40] of a couple of months [2:33:43] the result of having [2:33:45] appointed the special unit [2:33:48] and the result of having [2:33:49] the President [2:33:50] having told Mr. Hoover [2:33:52] that he was having [2:33:52] to resort to sending [2:33:54] two people out there [2:33:55] from the White House [2:33:56] caused the Bureau [2:33:57] to wake up [2:33:59] on this thing [2:34:00] now this comes [2:34:02] rather early [2:34:03] in the process [2:34:04] and looks to me [2:34:04] like [2:34:05] I don't know [2:34:07] but it looks to me [2:34:08] like Mr. Hoover [2:34:08] was sort of cleaning [2:34:09] out the drawers [2:34:10] and sending over [2:34:11] everything that had been [2:34:11] accumulated to that time [2:34:13] most of what [2:34:16] was sent over [2:34:17] I'll bet you [2:34:18] was old hat stuff [2:34:20] I do have a very [2:34:22] vivid recollection [2:34:23] of conversations [2:34:24] prior to this date [2:34:26] but around this period [2:34:27] of time [2:34:27] with both Mr. Krogh [2:34:28] and Mr. Mitchell [2:34:29] where the problem [2:34:31] of the Bureau's lethargy [2:34:32] was discussed [2:34:34] the reason for [2:34:34] the President's call [2:34:35] and follow-up letter [2:34:38] to Mr. Hoover [2:34:39] was because of this lethargy [2:34:41] and I don't think [2:34:42] it's going to be possible [2:34:43] to make the case [2:34:44] that the Bureau [2:34:45] was just on its tippy toes [2:34:47] doing everything it should [2:34:48] right at this period of time [2:34:49] the fact that the President [2:34:51] had to call [2:34:52] had to write [2:34:53] the fact that Krogh [2:34:54] was banging me [2:34:55] the fact that I was [2:34:57] over on the Attorney General [2:34:59] asking him [2:34:59] and then the Attorney General [2:35:01] coming back to me [2:35:01] and saying well [2:35:02] we're at a hard place [2:35:03] in this [2:35:03] is all I think [2:35:06] a matter of record [2:35:07] it will take some digging [2:35:08] to get into [2:35:09] but I think it's there [2:35:11] and you all could adduce it [2:35:18] Council suggests [2:35:20] that it might be [2:35:21] well to know [2:35:21] if there's any other [2:35:23] more or less [2:35:24] contemporaneous correspondence [2:35:26] a reply back [2:35:27] from Mr. Krogh [2:35:27] or anything to indicate [2:35:29] whether he agreed [2:35:30] with the assumption [2:35:31] stated here [2:35:32] that would set this [2:35:34] more or less [2:35:35] in context [2:35:36] I'll let the letter [2:35:40] go ahead and speak [2:35:41] for itself [2:35:42] I have no further [2:35:42] correspondence [2:35:43] to go ahead and submit [2:35:44] at this time [2:35:44] but I would ask [2:35:45] this question [2:35:46] do you feel [2:35:46] in other words [2:35:47] that Mr. Hoover [2:35:48] is lying in this letter [2:35:49] no I think Mr. Hoover [2:35:50] is resorting [2:35:51] to a well-known [2:35:52] bureaucratic device [2:35:54] of papering the file [2:35:57] and particularly [2:35:59] a device that's familiar [2:36:01] to those who have seen [2:36:03] the President shake up [2:36:05] somebody in one of the [2:36:06] departments or agencies [2:36:07] you immediately get [2:36:09] an enormous volume [2:36:10] of justification back [2:36:12] and when you thumb [2:36:13] through it [2:36:13] you see most of it [2:36:14] is stale bread [2:36:17] it's old stuff [2:36:18] that's been in the file [2:36:19] and they put together [2:36:20] a big package [2:36:21] and they send it over [2:36:22] hoping that the sheer volume [2:36:23] is going to impress you [2:36:24] or make you think [2:36:25] that everything's okay [2:36:26] or that you know [2:36:28] it's a thing [2:36:31] I've seen dozens [2:36:32] and dozens of times [2:36:32] since I've been here [2:36:33] well would you advise [2:36:35] then that every time [2:36:36] a department [2:36:36] or an agency [2:36:38] of this government [2:36:39] falls short [2:36:39] that rather than [2:36:41] remove the head [2:36:42] of that agency [2:36:43] or department [2:36:44] we set up [2:36:44] a similar function [2:36:45] on a secret basis [2:36:46] is that the way [2:36:47] we're going to handle it [2:36:48] oh no [2:36:48] no indeed [2:36:49] no indeed [2:36:49] and I think [2:36:50] in retrospect [2:36:51] that [2:36:53] and I think [2:36:55] you'll recognize [2:36:55] that all through [2:36:56] this proceeding [2:36:57] we keep coming back [2:36:58] to bureau problems [2:36:59] I think in retrospect [2:37:01] that [2:37:02] the administration [2:37:05] would have been [2:37:05] far better off [2:37:06] if Mr. Hoover [2:37:08] had been retired [2:37:09] earlier [2:37:10] predating [2:37:13] this episode [2:37:15] because [2:37:15] many many [2:37:16] of the problems [2:37:17] that [2:37:17] we encountered [2:37:20] were [2:37:22] as a result [2:37:23] of Mr. Hoover's [2:37:24] very fixed views [2:37:25] very sincere [2:37:26] he was [2:37:27] he was alert [2:37:28] he was sincere [2:37:29] he was patriotic [2:37:30] but he was certainly [2:37:32] fixed in his views [2:37:34] and it made [2:37:35] operation [2:37:37] very very difficult [2:37:39] now when you [2:37:39] run across [2:37:40] a situation [2:37:41] where you have [2:37:42] a retirement [2:37:44] of that kind [2:37:45] that is politically [2:37:46] sensitive [2:37:46] and difficult [2:37:47] sometimes [2:37:49] the decision [2:37:50] is made [2:37:51] to postpone [2:37:51] the retirement [2:37:53] and when that happens [2:37:54] then you simply [2:37:55] have to find [2:37:56] other ways [2:37:56] of doing things [2:37:57] in other words [2:37:59] I gather [2:37:59] what you're saying [2:38:00] is he was fixed [2:38:00] in his views [2:38:01] to the extent [2:38:02] that he would not agree [2:38:03] to a break-in [2:38:04] of Daniel Ellsberg's [2:38:06] psychiatrist [2:38:06] well that of course [2:38:07] overstates it [2:38:08] dramatically [2:38:09] Senator [2:38:10] what he wouldn't [2:38:11] agree to [2:38:12] was an investigation [2:38:14] of Mr. Marks [2:38:17] and others [2:38:18] close to Daniel Ellsberg [2:38:20] well now Mr. Ehrlich [2:38:21] we have a letter [2:38:21] saying that he will [2:38:22] agree to go ahead [2:38:23] and investigate [2:38:24] it's sitting right there [2:38:25] before you [2:38:25] well it didn't [2:38:27] frankly [2:38:27] you say [2:38:28] I'm asking you [2:38:29] is he lying [2:38:30] no I don't see [2:38:32] for instance [2:38:32] Mr. Marks's name [2:38:33] in there [2:38:33] and I don't know [2:38:35] what the list is [2:38:36] that that letter [2:38:36] refers to [2:38:37] maybe Mr. Marks's [2:38:38] name is on it [2:38:38] he says if you will [2:38:39] if you concur [2:38:40] we will proceed [2:38:41] with interviews [2:38:41] of all the remaining [2:38:42] individuals [2:38:43] who are they sir [2:38:44] I honestly don't know [2:38:46] I don't remember [2:38:46] ever seeing that letter [2:38:47] I can tell you this [2:38:48] that by [2:38:51] oh the 20th of September [2:38:53] of that year [2:38:54] the bureau was clicking [2:38:56] on all eight cylinders [2:38:57] they were aboard [2:38:59] and the bureau work [2:39:00] was moving ahead [2:39:01] and we were [2:39:04] past the problem [2:39:05] past what problem [2:39:06] sir [2:39:07] past what problem [2:39:08] this view [2:39:10] of the directors [2:39:12] that he would not [2:39:13] treat this [2:39:15] as a principal case [2:39:16] in other words [2:39:17] we'd establish [2:39:18] the principle [2:39:19] that breaking [2:39:20] and entering [2:39:21] was a proper [2:39:23] method [2:39:24] oh no no [2:39:24] I reject that totally [2:39:26] I can't [2:39:27] I can't accept that [2:39:28] the director [2:39:31] was never involved [2:39:32] in any discussion [2:39:33] of breaking [2:39:34] and entering [2:39:35] or anything [2:39:36] of the kind [2:39:36] what is clicking [2:39:37] along on all eight cylinders [2:39:38] I mean they were [2:39:39] treating this investigation [2:39:40] as a principal case [2:39:42] and it was getting [2:39:43] the kind of top priority [2:39:44] that Mr. Krogh [2:39:46] very much wanted for [2:39:47] so that in effect [2:39:50] the director [2:39:52] was not lying [2:39:53] but he was merely [2:39:56] stroking [2:39:57] I think that's the [2:39:58] White House expression [2:39:59] is it not [2:39:59] stroking [2:40:00] no [2:40:01] Mr. Krogh [2:40:03] by means of the letter [2:40:04] and in effect [2:40:05] not doing the job [2:40:06] is that correct? [2:40:06] I don't think [2:40:07] stroking is the apt term [2:40:08] there [2:40:09] I think perhaps [2:40:10] we think of this [2:40:12] more as puffing [2:40:13] than stroking [2:40:13] as what? [2:40:15] puffing [2:40:15] all right [2:40:16] Senator Weicker [2:40:19] may I ask [2:40:24] your permission [2:40:24] to interrupt you [2:40:25] a moment [2:40:25] to address the chair [2:40:26] Mr. Chairman [2:40:28] I noticed [2:40:29] that this document [2:40:30] was exhibit number two [2:40:34] of the executive session [2:40:35] will you [2:40:37] be kind enough [2:40:39] to ask your staff [2:40:41] if there is a series [2:40:42] of documents [2:40:43] relevant to this document [2:40:45] which followed it [2:40:46] or to tell me [2:40:47] that you don't have any? [2:40:54] You have I think [2:40:55] already [2:40:56] Mr. Wilson [2:40:57] have seen [2:40:58] two other documents [2:41:01] that the memoranda [2:41:04] that had already [2:41:05] been shown yesterday [2:41:06] to Mr. Ehrlichman [2:41:08] were also exhibits [2:41:10] at the executive session [2:41:11] That doesn't answer [2:41:12] my question [2:41:13] Mr. Dash [2:41:13] my question is [2:41:14] for example [2:41:15] did Mr. Krogh [2:41:16] reply to the director's letter [2:41:18] where the internal memorandums [2:41:20] have you picked up [2:41:21] in other words [2:41:22] the witness [2:41:22] has been handed [2:41:23] one letter [2:41:24] and the fact [2:41:25] is in suspense [2:41:26] I want to know [2:41:27] if you possess [2:41:28] if you please [2:41:29] if the chairman [2:41:30] will permit it [2:41:31] a sequence of letters [2:41:33] or internal memoranda [2:41:35] following this [2:41:36] or that you assure me [2:41:38] that you don't have it [2:41:39] No [2:41:40] this is the only document [2:41:42] in this correspondence [2:41:43] that was submitted [2:41:45] in the executive session [2:41:47] of this case [2:41:48] No [2:41:48] I ask you another question [2:41:49] is it the only document [2:41:51] you have in the possession [2:41:52] of the staff [2:41:52] relating to this same subject matter [2:41:55] I'm sorry [2:41:56] I didn't hear your question [2:41:57] In other words [2:41:58] you just answered me [2:41:59] that no other document [2:42:00] relating to this [2:42:01] was exhibited [2:42:02] in executive session [2:42:05] My question [2:42:05] with the chairman's permission [2:42:07] is whether [2:42:09] there are other documents [2:42:11] in sequence [2:42:12] in the possession [2:42:13] of the staff [2:42:14] In sequence [2:42:15] of this letter? [2:42:17] Yes [2:42:17] No [2:42:18] Thank you [2:42:19] Now I'd like to [2:42:22] if I could [2:42:23] clear up [2:42:25] some matters [2:42:27] relative to [2:42:28] explanations [2:42:28] your explanations [2:42:29] of the Ellsberg break-in [2:42:31] On June the 28th [2:42:36] 1973 [2:42:37] you stated [2:42:38] in a television interview [2:42:40] that [2:42:44] relative to what [2:42:47] you told Crowe [2:42:48] quote [2:42:49] Well I expressed [2:42:51] my disapproval [2:42:52] in the strongest [2:42:52] kind of terms [2:42:53] as he said [2:42:55] and as a matter of fact [2:42:55] made clear [2:42:56] that I thought [2:42:57] that this whole [2:42:57] investigation [2:42:58] ought to be terminated [2:42:59] with these people [2:43:00] that they didn't evidence [2:43:02] good judgment [2:43:03] and that ought [2:43:04] to be the ending [2:43:05] That was your [2:43:06] statement [2:43:07] in this particular [2:43:08] television interview [2:43:09] How does your statement [2:43:12] to Mr. Wallace [2:43:13] less than a month ago [2:43:14] stand up against [2:43:15] your statement [2:43:15] to this committee [2:43:16] that you believe [2:43:17] the break-in [2:43:17] was a proper [2:43:19] enterprise [2:43:21] since it was done [2:43:23] in the name [2:43:23] of national security? [2:43:25] Senator [2:43:25] I've said [2:43:26] just this afternoon [2:43:27] essentially the same thing [2:43:28] that you just read [2:43:29] I had not contemplated [2:43:33] this break-in [2:43:34] it was a surprise [2:43:35] to me [2:43:35] I felt that it [2:43:37] was a mistake [2:43:38] I asked these people [2:43:40] to be brought back [2:43:41] and I think [2:43:43] not 30 minutes ago [2:43:45] I said so here [2:43:46] at the same time [2:43:48] taken as [2:43:49] a part of a [2:43:51] chain [2:43:52] referring now [2:43:55] to the activities [2:43:56] of the special unit [2:43:57] and going to the question [2:43:59] which the chairman [2:43:59] and Mr. Wilson [2:44:00] were talking about [2:44:01] this morning [2:44:01] I don't think [2:44:03] there's any question [2:44:03] about the legal [2:44:05] foundation [2:44:06] which exists [2:44:08] for an activity [2:44:09] of this kind [2:44:10] I am [2:44:11] the sort of person [2:44:13] who doesn't like [2:44:14] surprises [2:44:15] and when [2:44:17] I understand [2:44:18] that an investigation [2:44:20] is underway [2:44:20] certainly [2:44:22] an event of this kind [2:44:24] takes me aback [2:44:25] and it took me aback [2:44:26] I'm not sure [2:44:30] I understand [2:44:30] either your words [2:44:33] or the words [2:44:33] of your counsel [2:44:34] are we either [2:44:35] justifying the breaking [2:44:37] or are we condemning [2:44:39] the actions [2:44:40] of Hunt and Liddy [2:44:41] well [2:44:43] I think there [2:44:45] there are a couple [2:44:47] of subjects there [2:44:48] and I think [2:44:51] the way we got [2:44:51] into all of this [2:44:52] in the first instance [2:44:54] was as to whether [2:44:55] or not [2:44:56] I had a concern [2:44:59] about the propriety [2:45:02] speaking of the [2:45:03] legalities now [2:45:04] the propriety [2:45:05] of this event [2:45:07] a year later [2:45:09] at the time [2:45:10] of the Watergate [2:45:10] break-in [2:45:11] to the extent [2:45:12] that I was willing [2:45:13] to suborn to perjury [2:45:14] or bribery [2:45:16] or all these other [2:45:16] things that have [2:45:17] been charged [2:45:18] and my response [2:45:19] to that was [2:45:20] that I felt [2:45:22] comfortable [2:45:23] with the propriety [2:45:26] from a constitutional [2:45:28] and legal standpoint [2:45:29] at the time [2:45:31] of the Watergate [2:45:33] break-in [2:45:33] and that had been [2:45:34] my conviction [2:45:36] and conclusion [2:45:36] for some time [2:45:37] now I didn't [2:45:39] express disapproval [2:45:40] to Mr. Krog [2:45:41] because I felt [2:45:43] some technical [2:45:45] illegality [2:45:46] had occurred [2:45:47] I felt [2:45:48] that it [2:45:49] showed bad judgment [2:45:50] it was a surprise [2:45:52] it was not anything [2:45:53] that had been [2:45:53] contemplated [2:45:54] or approved [2:45:55] and I felt [2:45:56] that those fellows [2:45:57] ought to be brought back [2:45:57] so your disapproval [2:46:00] was on the basis [2:46:01] of you were surprised [2:46:02] I certainly was [2:46:04] was that the basis [2:46:06] of your disapproval [2:46:07] well [2:46:08] no my [2:46:08] my disapproval [2:46:10] was because [2:46:10] these people [2:46:11] as far as I knew [2:46:12] had been sent out there [2:46:13] to do an investigation [2:46:15] I was [2:46:16] under the assumption [2:46:18] that it would be [2:46:19] conducted as a [2:46:20] normal investigation [2:46:21] not as some kind [2:46:23] of a second story job [2:46:24] and when I heard this [2:46:27] my initial reaction [2:46:28] to it was [2:46:29] somebody has not [2:46:31] exercised good judgment [2:46:32] now [2:46:33] I'm still operating [2:46:35] under the assumption [2:46:35] that that judgment [2:46:38] was not exercised [2:46:39] at least independently [2:46:40] by Hunt and Liddy [2:46:41] I have been [2:46:43] under the assumption [2:46:46] right along [2:46:47] that they were operating [2:46:48] pursuant to what [2:46:49] they thought [2:46:49] was approval [2:46:50] and so [2:46:52] I'm in a hard place [2:46:54] to say [2:46:54] that [2:46:55] they are [2:46:57] in response [2:46:58] to your question [2:46:59] they are to be [2:47:00] condemned [2:47:01] or fired [2:47:02] or something [2:47:03] of this kind [2:47:03] are you telling me [2:47:07] in other words [2:47:07] that you thought [2:47:08] that it was constitutional [2:47:09] but that it was botched [2:47:10] is that right [2:47:11] well I don't know [2:47:12] what botched means [2:47:14] no question in my mind [2:47:20] if the thing [2:47:21] had been presented [2:47:22] to me [2:47:22] in the terms [2:47:24] that it occurred [2:47:25] and I had been asked [2:47:28] for approval [2:47:29] or disapproval [2:47:29] I would have [2:47:31] disapproved it [2:47:32] all right [2:47:32] so that it was [2:47:34] constitutional [2:47:34] but that it was [2:47:36] embarrassing [2:47:36] would that be [2:47:37] a better word [2:47:37] well it certainly [2:47:38] was potentially [2:47:39] not only embarrassing [2:47:41] in a [2:47:43] in a [2:47:43] what a political [2:47:44] sense or something [2:47:45] of that kind [2:47:46] but [2:47:47] totally [2:47:48] totally out of [2:47:51] keeping [2:47:51] with the [2:47:52] with the concept [2:47:53] here [2:47:53] these fellows [2:47:54] were going out [2:47:55] as substitutes [2:47:56] for [2:47:57] the [2:47:58] the FBI [2:47:58] and [2:48:00] the [2:48:00] the method [2:48:03] the style [2:48:03] the degree [2:48:04] of investigation [2:48:05] which I [2:48:06] understood [2:48:07] was going to be [2:48:08] conducted [2:48:08] would have been [2:48:09] commensurate with that [2:48:10] not some [2:48:11] some [2:48:12] different kind [2:48:15] or [2:48:15] or [2:48:16] category of investigation [2:48:18] we made it [2:48:22] with a strange recess [2:48:23] so the members [2:48:24] of the committee [2:48:24] can go and vote [2:48:25] as the senators [2:48:30] pause for a vote [2:48:31] on the senate floor [2:48:32] we're going to interrupt [2:48:33] for a moment [2:48:34] public television's [2:48:35] coverage of the senate [2:48:36] hearings will continue [2:48:37] after a break for station [2:48:38] identification [2:48:38] unabridged coverage [2:48:40] of these hearings [2:48:41] is provided as a public [2:48:43] service by the member [2:48:44] stations of PBS [2:48:45] the public broadcasting [2:48:47] service [2:48:47] from Washington [2:48:52] NPACT continues [2:48:54] its coverage of hearings [2:48:55] by the senate select [2:48:56] committee on presidential [2:48:57] campaign activities [2:48:58] here again [2:48:59] correspondent [2:49:00] Robert McNeil [2:49:01] as we go back [2:49:03] to the hearing [2:49:03] senator Irvin [2:49:04] and mr. Wilson [2:49:05] are resuming [2:49:05] that legal debate [2:49:06] over authorization [2:49:08] for the so-called [2:49:09] Ellsberg break-in [2:49:10] I'm trying to respectfully [2:49:19] request the audience [2:49:20] not to make any kind [2:49:23] of a demonstration [2:49:23] or indicate in any way [2:49:25] their approval [2:49:26] or disapproval [2:49:27] of anybody [2:49:28] or anything [2:49:29] including myself [2:49:30] the senate's going to have [2:49:37] several more votes [2:49:38] and there'll be very little [2:49:41] interrogation of the witness [2:49:43] before in the morning [2:49:45] but I do want to take [2:49:47] this occasion [2:49:48] to I said I wanted [2:49:49] to amplify something [2:49:50] about legal discussion [2:49:54] and I want to mention [2:49:57] a little of [2:49:58] I want to mention [2:50:08] a little of the Bible [2:50:09] a little of history [2:50:11] and a little of law [2:50:12] the concept embodied [2:50:16] in the phrase [2:50:20] every man's home [2:50:21] is his castle [2:50:22] represents the realization [2:50:26] of one of the most [2:50:28] ancient [2:50:29] and universal hungers [2:50:31] of the human heart [2:50:32] one of the prophets [2:50:36] said [2:50:36] to describe the mountain [2:50:38] of the Lord [2:50:39] as being a place [2:50:40] where every man [2:50:41] might dwell [2:50:41] under his own vine [2:50:42] and fig tree [2:50:43] with none [2:50:44] to make him afraid [2:50:45] and then this morning [2:50:49] Senator Talmadge [2:50:51] talked about [2:50:53] one of the greatest [2:50:54] statements ever made [2:50:56] by any statesman [2:51:00] was William Pitt the Elder [2:51:09] and before this country [2:51:13] revolted against [2:51:16] the King of England [2:51:17] he said this [2:51:18] the poorest man [2:51:21] may in his cottage [2:51:23] bid defiance [2:51:25] to all the forces [2:51:26] of the crown [2:51:27] it may be frail [2:51:30] its roof may shake [2:51:32] the wind may blow [2:51:34] through it [2:51:35] the storm may enter [2:51:37] the rain may enter [2:51:39] but the King of England [2:51:42] cannot enter [2:51:43] all his force [2:51:45] dares not cross [2:51:46] the threshold [2:51:47] of the ruined tenement [2:51:48] and yet we are told [2:51:51] here today [2:51:51] and yesterday [2:51:53] that what the King of England [2:51:56] can't do [2:51:57] the President of the United States [2:51:58] can [2:51:58] the greatest decision [2:52:08] that the Supreme Court [2:52:09] of the United States [2:52:09] has ever handed down [2:52:10] in my opinion [2:52:11] is that of [2:52:12] ex-parti Milligan [2:52:14] which is reported [2:52:17] in the 4 Wallis 2 [2:52:20] and the things [2:52:22] I want to mention [2:52:24] are here on page [2:52:25] 121 of that opinion [2:52:27] in that case [2:52:29] President Lincoln [2:52:30] or rather [2:52:32] some of his [2:52:33] some of his [2:52:34] boarders [2:52:36] raised a claim [2:52:40] that since [2:52:42] the Civil War [2:52:44] was in progress [2:52:46] that the military [2:52:51] forces in Indiana [2:52:53] had a right to try [2:52:56] for treason [2:52:57] a man who [2:52:58] they called [2:53:00] copperheads [2:53:00] in those days [2:53:01] that was sympathetic [2:53:02] towards the south [2:53:03] a civilian [2:53:03] who had no connection [2:53:05] with the military forces [2:53:06] so they set up [2:53:09] a military commission [2:53:10] and they tried [2:53:13] this man [2:53:13] a civilian [2:53:14] in a military court [2:53:16] and sentenced him [2:53:18] to death [2:53:19] one of the greatest lawyers [2:53:22] this nation ever produced [2:53:23] Jeremiah Black [2:53:25] brought the battle [2:53:29] to the Supreme Court [2:53:30] and he told [2:53:34] in his argument [2:53:35] which is one of the greatest arguments [2:53:37] of all time [2:53:38] how the constitution [2:53:40] of the United States [2:53:41] came into being [2:53:42] he said that the people [2:53:45] who drafted [2:53:46] and ratified [2:53:47] that constitution [2:53:48] was not more determined [2:53:49] that not one drop [2:53:52] of the blood [2:53:52] which had been shed [2:53:53] throughout the ages [2:53:55] to arrest power [2:53:58] from arbitrary authority [2:54:00] should not be lost [2:54:02] so they went through [2:54:04] all the great documents [2:54:05] of the English law [2:54:07] from Magna Carta [2:54:08] and on down [2:54:08] and whatever they found there [2:54:09] they incorporated [2:54:10] in the constitution [2:54:11] to preserve the liberties [2:54:14] of the people [2:54:14] now the argument [2:54:17] was made by the government [2:54:18] in that case [2:54:19] that although the constitution [2:54:20] gave a civilian [2:54:21] the right to trial [2:54:24] in civilian courts [2:54:25] and the right to be [2:54:27] indicted before a grand jury [2:54:29] before it could be put on trial [2:54:31] and then the right to be tried [2:54:32] before a petty jury [2:54:34] the government argued [2:54:36] that the president [2:54:38] had the inherent power [2:54:40] to suspend [2:54:40] those constitutional principles [2:54:42] because of the great emergency [2:54:44] which existed at that time [2:54:46] when the country [2:54:48] was torn apart [2:54:49] in a civil strife [2:54:50] the supreme court [2:54:54] of the United States [2:54:55] rejected the argument [2:54:56] that the president [2:54:57] had any inherent power [2:54:58] to ignore [2:54:59] or suspend [2:55:01] any of the guarantees [2:55:03] of the constitution [2:55:04] and judge david davis [2:55:07] said in effect [2:55:09] the good and wise men [2:55:12] who drafted [2:55:13] and ratified [2:55:14] the constitution [2:55:15] foresaw [2:55:17] that troublous times [2:55:18] would arise [2:55:20] when rulers and people [2:55:22] would become restive [2:55:24] under restraint [2:55:24] and seek by sharp [2:55:27] and decisive measures [2:55:28] to accomplish ends [2:55:30] deemed just and proper [2:55:32] and that the principles [2:55:34] of constitutional liberty [2:55:36] would be put in peril [2:55:38] unless established [2:55:40] by irrepealable law [2:55:42] and then he proceeded [2:55:45] to say that [2:55:45] for these reasons [2:55:46] these good and wise men [2:55:49] drafted and ratified [2:55:50] the constitution [2:55:51] as a law [2:55:53] for rulers [2:55:53] and people alike [2:55:56] at all times [2:55:58] and under all circumstances [2:56:00] and then he laid down [2:56:02] this great statement [2:56:03] no doctrine [2:56:05] involving [2:56:07] more pernicious consequences [2:56:09] was ever invented [2:56:11] by the wit of man [2:56:13] than that [2:56:14] any of its provisions [2:56:15] can be suspended [2:56:18] during any of the [2:56:20] great exigencies [2:56:21] of government [2:56:22] and notwithstanding that [2:56:24] we have it argued here [2:56:26] in this year [2:56:27] of our Lord [2:56:28] 1973 [2:56:30] that the president [2:56:33] of the United States [2:56:34] has a right [2:56:36] to suspend [2:56:39] the fourth amendment [2:56:40] and to have [2:56:42] burglary committed [2:56:43] just because he claims [2:56:48] or some [2:56:50] might acting for him [2:56:51] claims [2:56:51] that the records [2:56:58] of a psychiatrist [2:56:59] about the emotional [2:57:00] or mental state [2:57:01] of his patient [2:57:02] Ellsberg [2:57:02] had some relation [2:57:06] to national security [2:57:07] now President Nixon [2:57:11] himself defined [2:57:12] the national security [2:57:13] in one of his directives [2:57:14] as including [2:57:15] only two things [2:57:17] national defense [2:57:18] and relations [2:57:22] and relations [2:57:22] with foreign countries [2:57:23] how in the world [2:57:26] opinions of a psychiatrist [2:57:29] about the mental state [2:57:32] or the emotional state [2:57:33] or the psychological state [2:57:34] of his patient [2:57:34] even if his patient [2:57:35] was Ellsberg [2:57:36] can have any relation [2:57:38] to national defense [2:57:41] or relations [2:57:43] to a foreign country [2:57:44] is something [2:57:46] which eludes [2:57:47] the imagination [2:57:49] of this country [2:57:50] lawyer [2:57:50] I'd like to ask [2:57:54] you one question [2:57:55] why [2:57:56] if the president [2:57:57] has this much power [2:57:59] wouldn't he have [2:58:00] had the inherent power [2:58:02] to send somebody [2:58:02] out there [2:58:03] with a pistol [2:58:04] and had it pointed [2:58:04] at the psychiatrist [2:58:05] and said [2:58:06] I'm not going to [2:58:07] commit murder [2:58:08] I'm just going to [2:58:08] rob you of those [2:58:09] records [2:58:10] and give me the records [2:58:11] wouldn't he have [2:58:12] that right [2:58:12] under your theory [2:58:15] you ask me [2:58:16] Mr. Chairman [2:58:16] well I think [2:58:17] this is the same [2:58:18] question [2:58:18] that Senator Talmadge [2:58:19] approached [2:58:20] and undoubtedly [2:58:21] in a situation [2:58:23] such as I put [2:58:24] for instance [2:58:25] where you knew [2:58:25] there was going [2:58:26] to be an atomic [2:58:26] attack tomorrow [2:58:27] undoubtedly [2:58:29] a measure [2:58:31] of that kind [2:58:31] might be necessary [2:58:32] now [2:58:33] somewhere in between [2:58:35] somewhere in between [2:58:36] there is a line [2:58:38] and the line [2:58:39] depends obviously [2:58:40] on a lot of things [2:58:42] that you and I [2:58:42] can't settle here today [2:58:43] I think the thing [2:58:45] that your argument [2:58:46] artfully chooses [2:58:48] to avoid dealing with [2:58:51] I'm not trying [2:58:52] to avoid anything [2:58:53] I'm trying to hit [2:58:53] this proposition [2:58:54] well now Mr. Chairman [2:58:55] you've interrupted me [2:58:57] you have the delightful [2:59:00] trial room practice [2:59:02] of interrupting [2:59:03] something that you [2:59:03] don't want to hear [2:59:05] I'd like if I could [2:59:10] to finish the sentence [2:59:11] the connection [2:59:14] of course [2:59:15] between the psychiatrist [2:59:17] records [2:59:18] and the psychiatric [2:59:19] profile [2:59:20] and the determination [2:59:22] of whether there was [2:59:24] a spy ring [2:59:26] or a foreign conspiracy [2:59:27] which had taken [2:59:28] these top secret [2:59:29] documents [2:59:30] and delivered them [2:59:31] to a foreign power [2:59:32] it seems to me [2:59:34] is an unbroken chain [2:59:36] of circumstances [2:59:37] that explains itself [2:59:38] now I recognize [2:59:41] for the purpose [2:59:42] of your rhetorical [2:59:43] approach to the problem [2:59:44] that it's fun to say [2:59:47] how could a man's [2:59:48] emotional state [2:59:49] be equated [2:59:50] with national security [2:59:51] but in fact [2:59:52] there is a direct [2:59:53] linkage [2:59:54] step by step [2:59:55] by step [2:59:56] in this [2:59:56] which I think [2:59:57] we have to lay [3:00:00] on the table [3:00:01] and look at [3:00:01] now this business [3:00:03] of going and pointing [3:00:04] a gun at somebody [3:00:05] I can conceive [3:00:06] of a set of circumstances [3:00:07] a different kind [3:00:08] of national security [3:00:10] situation [3:00:10] such as this impending [3:00:13] attack or something [3:00:14] of that kind [3:00:14] hypothetically [3:00:15] where such a measure [3:00:16] might very well be [3:00:17] the very thing [3:00:18] that the president [3:00:19] might determine [3:00:21] was necessary [3:00:21] and you'll recall [3:00:22] that the congress [3:00:23] in recognizing [3:00:24] this power said [3:00:25] such means [3:00:26] as the president [3:00:27] shall determine [3:00:28] and that I think [3:00:29] as Mr. Wilson [3:00:30] pointed out this morning [3:00:31] was endorsed [3:00:32] by the committee [3:00:33] of which you are [3:00:33] the chairman sir [3:00:34] well that's not [3:00:36] what that bill said [3:00:37] it said [3:00:38] that the president [3:00:39] could exercise [3:00:40] his constitutional powers [3:00:42] when he determined [3:00:44] according to his determination [3:00:46] it didn't say [3:00:48] he had any constitutional powers [3:00:49] such as [3:00:50] as you state [3:00:53] because Mr. Wilson [3:00:54] himself both agreed [3:00:55] that the court held [3:00:56] in this case [3:00:57] the thing that held [3:00:59] principally [3:00:59] was that you couldn't [3:01:02] exercise electronic surveillance [3:01:05] without a warrant [3:01:07] complying with [3:01:08] the fourth amendment [3:01:09] for the purpose [3:01:11] of gathering intelligence [3:01:13] about domestic subversion [3:01:14] and we also agreed [3:01:17] that the decision [3:01:18] itself flatly held [3:01:19] that the statute [3:01:21] had nothing whatever [3:01:22] to do with the question [3:01:23] of national security [3:01:25] Mr. Chairman [3:01:27] can I get into this [3:01:28] yes sir [3:01:29] I think this morning [3:01:31] you referred to [3:01:32] the Judge Field case [3:01:34] which is strictly known [3:01:36] as Cunningham [3:01:37] against Nagel [3:01:38] isn't it [3:01:38] you remember that case [3:01:40] yes I remember the case [3:01:42] that the hell [3:01:42] that you consider [3:01:43] that a federal marshal [3:01:45] wouldn't be [3:01:46] guilty of murder [3:01:47] for shooting [3:01:47] a man that was [3:01:48] trying to kill [3:01:50] a federal judge [3:01:50] what was the statute [3:01:52] based upon [3:01:52] but the constitutional right [3:01:54] I don't know [3:01:55] I don't recall [3:01:56] it's been a long time [3:01:57] since I read it [3:01:58] shall I prepare for this [3:02:00] it wasn't based on [3:02:01] section 2111 [3:02:03] of title 18 [3:02:05] of the United States [3:02:05] no but it was [3:02:06] it was murder though [3:02:08] wasn't it [3:02:08] it was homicide [3:02:09] yes [3:02:09] justifiable homicide [3:02:11] in a statute [3:02:13] which was supported [3:02:13] by a constitutional theory [3:02:15] and also justified [3:02:17] it happened in California [3:02:18] and it was justified [3:02:19] with the principle [3:02:20] of the common law [3:02:20] that one person [3:02:21] can kill another [3:02:22] to prevent the [3:02:23] consummation [3:02:23] of a felony [3:02:24] is this something [3:02:25] that happened in California [3:02:26] and no place else [3:02:27] in the country [3:02:27] it would be the law [3:02:29] in any case [3:02:30] that had the common law system [3:02:32] well we've got that [3:02:33] every place in the country [3:02:34] except California [3:02:35] and Louisiana [3:02:36] I'm unfortunately [3:02:38] going to have got [3:02:39] a five minute notice [3:02:41] about a vote [3:02:41] thank you sir [3:02:42] but I have no [3:02:44] quarrel with the Nagel case [3:02:45] but I don't think [3:02:46] the Nagel case [3:02:47] merely applied [3:02:48] the rule that [3:02:49] one had a right [3:02:51] to kill another [3:02:53] to prevent [3:02:54] a wrongdoer [3:02:55] from committing a murder [3:02:56] all I say is [3:02:58] there is a murder case [3:02:59] it was justified [3:03:00] yes [3:03:01] I regret [3:03:04] I have to go and vote [3:03:05] and I would love [3:03:05] to prolong this debate [3:03:06] I would too [3:03:07] I think maybe [3:03:08] that being the lateness [3:03:10] of the hour [3:03:10] that it would [3:03:12] be just about [3:03:13] recess till in the morning [3:03:14] at 10 o'clock [3:03:16] for the second day [3:03:26] John Ehrlichman [3:03:27] has insisted [3:03:27] on his complete innocence [3:03:29] and apparently [3:03:30] if he could relive [3:03:32] the entire Watergate situation [3:03:33] he would make few [3:03:35] if any changes [3:03:35] in his own actions [3:03:37] Ehrlichman's position [3:03:38] stands in contrast [3:03:39] with most of the other [3:03:40] witnesses so far [3:03:41] even John Mitchell [3:03:43] who granted the committee [3:03:44] very little [3:03:44] did admit [3:03:45] that he might have [3:03:46] made the wrong decision [3:03:47] in keeping news [3:03:48] of the Watergate [3:03:48] from the president [3:03:49] in terms of his [3:03:51] total protestations [3:03:52] of innocence [3:03:52] Ehrlichman can be compared [3:03:54] only with Finance Committee [3:03:55] Chairman Maurice Stans [3:03:57] there are still [3:03:58] a lot of questions [3:03:59] for John Ehrlichman [3:04:00] and his continuing [3:04:01] appearance as a witness [3:04:02] could throw the whole [3:04:03] committee calendar [3:04:04] out of kilter [3:04:04] as things now stand [3:04:06] the committee plans [3:04:07] to hear about [3:04:07] a dozen more witnesses [3:04:09] including Charles Coulson [3:04:10] and H.R. Haldeman [3:04:11] within the next seven days [3:04:13] but there now [3:04:14] appears to be [3:04:15] a possibility [3:04:15] that Ehrlichman alone [3:04:16] will take this entire week [3:04:18] and Haldeman [3:04:19] could take an equal [3:04:19] length of time [3:04:20] Chairman Ervin [3:04:21] nevertheless says [3:04:22] he still hopes [3:04:23] the committee can conclude [3:04:24] this phase of the hearings [3:04:25] by August 3rd [3:04:27] this was a day [3:04:28] of legal arguments [3:04:30] long breaks [3:04:31] for Senate votes [3:04:32] but very little new [3:04:33] from John Ehrlichman [3:04:34] Alan Barth [3:04:36] long time Washington [3:04:37] journalist [3:04:37] and author [3:04:38] long time observer [3:04:39] of congressional investigations [3:04:41] is back with us [3:04:42] he and John Kramer [3:04:43] the Georgetown University [3:04:44] Law Center [3:04:45] watched the hearings [3:04:45] with us today [3:04:46] gentlemen [3:04:47] what do you have to say [3:04:48] for yourselves [3:04:48] first to you [3:04:49] Mr. Barth [3:04:50] it seemed to me [3:04:51] that today [3:04:52] was tremendously interesting [3:04:54] and coupled with [3:04:55] the testimony yesterday [3:04:57] it marks the movement [3:04:59] of these hearings [3:05:00] I think in a very [3:05:02] very ominous direction [3:05:03] I think that the [3:05:05] legislative branch [3:05:06] of the government [3:05:07] is on a collision course [3:05:08] with the executive branch [3:05:10] and that that has [3:05:11] very serious [3:05:12] very serious portents [3:05:15] for our country [3:05:17] the nature of this [3:05:20] controversy is marked [3:05:21] not only by the [3:05:22] president's refusal [3:05:23] to provide the tapes [3:05:26] but by his refusal [3:05:27] even to enter into [3:05:29] a conversation [3:05:30] a conference [3:05:31] with Senator Irvin [3:05:32] the chairman of the committee [3:05:33] and it's marked also [3:05:35] by the very great gravity [3:05:40] of the constitutional principles [3:05:42] that are at stake here [3:05:43] on the one hand [3:05:45] there is an assertion [3:05:46] that the president [3:05:48] is not limited [3:05:49] by the constitution [3:05:50] of the United States [3:05:52] when he asserts [3:05:53] that the national security [3:05:55] requires him [3:05:56] to act [3:05:57] outside the constitution [3:05:59] to assume powers [3:06:01] which are denied [3:06:02] to him [3:06:03] by provisions [3:06:04] of the bill of rights [3:06:05] Senator Irvin [3:06:06] made a magnificent [3:06:08] magnificent argument [3:06:10] against [3:06:11] that theory [3:06:12] today [3:06:13] for my own part [3:06:16] I think that there [3:06:17] has not been asserted [3:06:18] since the time [3:06:19] of King George [3:06:20] the third [3:06:21] a notion [3:06:24] that a man's [3:06:25] house [3:06:26] a man's office [3:06:27] may be invaded [3:06:28] by offices of the law [3:06:30] without a warrant [3:06:32] when an executive [3:06:34] asserts that [3:06:35] that national security [3:06:37] justifies that [3:06:39] not since the writs [3:06:40] of assistance [3:06:41] and general warrants [3:06:42] which the founders [3:06:43] of this republic [3:06:44] rebelled against [3:06:45] has there been [3:06:48] so [3:06:49] so extravagant [3:06:52] and so outrageous [3:06:53] an assertion [3:06:53] of executive authority [3:06:55] in other words [3:06:56] you do not agree [3:06:57] then that this authority [3:06:58] exists in any way [3:06:59] above and beyond [3:07:00] the facts of the [3:07:02] Ellsberg case [3:07:02] as argued by [3:07:03] Ehrlichman and Wilson [3:07:04] I think that it is [3:07:05] a contradiction [3:07:06] of the very essence [3:07:07] of our polity [3:07:08] the character [3:07:10] of our political system [3:07:11] ours is a system [3:07:13] of limited powers [3:07:14] powers limited [3:07:16] by a written charter [3:07:17] the constitution [3:07:19] of the United States [3:07:20] and the essential [3:07:21] difference between [3:07:22] a free society [3:07:23] and a totalitarian [3:07:25] society [3:07:26] is that a free society [3:07:28] is one in which [3:07:29] the government [3:07:30] is limited [3:07:31] in the powers [3:07:33] which it may exercise [3:07:34] John Kramer [3:07:35] what are your thoughts? [3:07:37] Well I certainly [3:07:37] I hate to get back down [3:07:38] to the sort of the mundane [3:07:39] after the expression [3:07:40] of judicial philosophy [3:07:42] which I certainly agree [3:07:42] with in political philosophy [3:07:43] I should point out [3:07:45] that in 20 some odd [3:07:46] years ago [3:07:47] the Supreme Court [3:07:47] decided that a [3:07:48] Soviet spy [3:07:50] had privacy rights [3:07:50] in his hotel room [3:07:52] wastebasket [3:07:52] which he happened to weigh [3:07:53] by throwing things in it [3:07:54] which seems to be [3:07:56] a little more [3:07:56] than Mr. Ehrlichman [3:07:57] or Mr. Wilson [3:07:58] are willing to give [3:07:59] a psychiatrist [3:08:00] in Los Angeles [3:08:01] but with respect [3:08:02] to today's hearings [3:08:03] I think you see [3:08:04] the start of what [3:08:04] may continue [3:08:05] in the next two days [3:08:06] of John Ehrlichman [3:08:07] against the world [3:08:08] and I think [3:08:09] for Mr. Ehrlichman [3:08:10] perhaps very dangerous [3:08:10] because he takes on [3:08:11] today [3:08:12] yesterday he took on [3:08:13] Mr. Kambach [3:08:13] obviously a very [3:08:14] sympathetic figure [3:08:15] today he goes after [3:08:16] Mr. Hoover [3:08:17] whom some people [3:08:18] may not like [3:08:19] for some reasons [3:08:19] but not normally [3:08:21] for the reasons [3:08:21] cited by Mr. Ehrlichman [3:08:22] he calls Mr. Hoover [3:08:23] a bureaucrat [3:08:24] guilty of window dressing [3:08:25] and he's reaching out there [3:08:27] it seems to me [3:08:27] for an enemy [3:08:28] a dead one [3:08:28] that he doesn't really need [3:08:30] in fact [3:08:30] all of Mr. Ehrlichman's [3:08:31] testimony [3:08:32] seems to contradict [3:08:33] almost everything [3:08:34] everybody else says [3:08:36] now of course [3:08:36] he could be right [3:08:37] and they could be wrong [3:08:38] but he's got an awful lot [3:08:39] of people to stand up against [3:08:40] for example [3:08:41] there are several [3:08:42] clashes in the afternoon [3:08:43] and end of the morning [3:08:44] testimony [3:08:44] the clemency issue [3:08:46] Mr. Dean has said [3:08:47] that the president [3:08:48] spoke to him [3:08:48] about having talked [3:08:50] to Ehrlichman and Colson [3:08:50] about clemency [3:08:51] for the Watergate 7 [3:08:52] those are on tapes [3:08:54] that the committee [3:08:54] is trying to get disclosed [3:08:56] Mr. Ehrlichman denies [3:08:57] any such discussions [3:08:57] of clemency [3:08:58] in fact says [3:08:58] the president [3:08:59] back in July [3:09:00] talked about clemency [3:09:01] but said [3:09:01] don't talk about it [3:09:02] nobody's asked [3:09:03] why the president [3:09:04] even brought it up [3:09:04] in July [3:09:05] Mr. Hunt's safe [3:09:06] and the contents [3:09:07] Mr. Ehrlichman says [3:09:08] we had a whole sort of party [3:09:09] in there watching [3:09:10] the safe being open [3:09:11] and therefore [3:09:11] we never would have [3:09:12] done anything [3:09:12] with the contents [3:09:13] of the safe [3:09:13] Dean says [3:09:14] Ehrlichman told them [3:09:15] to deep six them [3:09:16] the gray documents [3:09:17] Mr. Ehrlichman denies [3:09:18] that he ever told [3:09:19] Mr. Gray [3:09:19] to hide the documents [3:09:20] or get rid of the documents [3:09:21] Mr. Gray [3:09:22] in a hearing [3:09:22] not involving [3:09:23] the Watergate itself [3:09:24] directly said he did [3:09:25] what about Liddy and Hunt [3:09:26] were left at the end [3:09:27] of the day [3:09:27] with warning [3:09:28] what happened to them [3:09:29] according to Mr. Ehrlichman [3:09:30] they disappear [3:09:30] for at least [3:09:31] from his screen [3:09:32] he said [3:09:32] maybe from the White House [3:09:33] around the 8th of September [3:09:34] only to return [3:09:35] Creep [3:09:36] about six or seven months later [3:09:37] but according to Mr. Dean [3:09:38] he had to get approval [3:09:41] from Mr. Crow [3:09:41] through Mr. Ehrlichman [3:09:42] to get Liddy released [3:09:43] to Creep [3:09:44] well this points up [3:09:45] don't you agree John [3:09:47] that because of the delays [3:09:48] today for the Senate votes [3:09:50] and this long initial argument [3:09:51] which Senator Irvin [3:09:53] just came back to [3:09:53] at the close [3:09:54] that the rigorous [3:09:56] cross-examination [3:09:57] of Mr. Ehrlichman [3:09:58] to pursue these [3:09:59] and other points [3:10:00] still has yet to come [3:10:02] and that comes tomorrow [3:10:03] I think Senator Irvin [3:10:04] says they hope to finish [3:10:05] with Mr. Ehrlichman [3:10:06] tomorrow [3:10:06] seems just off the top [3:10:08] of your head [3:10:09] rather unlikely [3:10:10] that they could [3:10:10] but we shall see [3:10:11] gentlemen [3:10:12] thank you very much [3:10:12] during one of the recesses [3:10:15] today [3:10:15] Senator Irvin [3:10:16] offered his comments [3:10:17] on the strained relations [3:10:18] between the White House [3:10:19] and the Senate committee [3:10:20] he was asked about reports [3:10:21] that President Nixon [3:10:22] thinks the committee [3:10:23] is out to get him [3:10:24] the committee [3:10:27] is out to get [3:10:28] nothing except the truth [3:10:30] but the committee [3:10:31] is determined [3:10:32] to get the truth [3:10:32] wherever it may lead [3:10:34] I have said [3:10:35] time and time again [3:10:36] and it's absolutely true [3:10:38] there was nothing [3:10:39] that I presume [3:10:41] that the president [3:10:41] is innocent [3:10:42] and I will give him [3:10:44] the benefit [3:10:44] of the presumption [3:10:45] of innocence [3:10:46] of any wrongdoing [3:10:47] in connection [3:10:48] with the Watergate [3:10:48] until the evidence [3:10:50] compels me [3:10:52] to reach [3:10:52] a different conclusion [3:10:54] but it would appear [3:10:55] that you and the committee [3:10:56] are on the enemy's list [3:10:57] there's nothing [3:10:58] there's nothing [3:10:59] that would make me happier [3:11:00] as an American citizen [3:11:02] than to be able [3:11:03] to say [3:11:03] on the basis [3:11:05] of evidence [3:11:06] produced by this committee [3:11:07] including evidence [3:11:09] of tapes [3:11:10] and papers [3:11:10] from the White House [3:11:11] that the president [3:11:13] had no connection [3:11:14] with authorizing [3:11:15] the Watergate [3:11:16] or had no connection [3:11:18] with any cover [3:11:18] up opportunity [3:11:19] of the Penn Damples [3:11:21] finally [3:11:23] just to take [3:11:23] one of John Kramer's [3:11:24] points a little further [3:11:25] it really is a very [3:11:27] strange argument [3:11:28] that John Ehrlichman [3:11:28] is making [3:11:29] about the Ellsberg [3:11:30] break-in [3:11:31] he claims the president [3:11:32] has an inherent power [3:11:34] to authorize [3:11:34] such an act [3:11:35] otherwise illegal [3:11:36] in the name [3:11:37] of national security [3:11:38] he also claims [3:11:39] the president [3:11:40] didn't authorize [3:11:41] the burglary [3:11:42] of the psychiatrist's office [3:11:43] and neither did he [3:11:44] Ehrlichman [3:11:45] he says Mr. Nixon [3:11:46] did authorize [3:11:47] the plumbers unit [3:11:48] to find out [3:11:48] everything they could [3:11:49] about Ellsberg [3:11:51] is a matter [3:11:51] of the highest priority [3:11:53] and Ehrlichman says [3:11:54] he approved [3:11:54] in writing [3:11:55] what the plumbers [3:11:56] called a covert operation [3:11:58] to examine [3:11:58] the psychiatric records [3:12:00] he didn't mean [3:12:01] burglary [3:12:01] says [3:12:02] and if he'd known [3:12:03] that's what Hunt [3:12:03] and Liddy intended [3:12:04] he wouldn't have approved [3:12:05] when he found out [3:12:07] about the burglary [3:12:08] he was surprised [3:12:09] and annoyed [3:12:09] and ordered Hunt [3:12:10] and Liddy [3:12:11] back from California [3:12:12] why was he surprised [3:12:14] and annoyed [3:12:14] if such an entry [3:12:15] was justifiable [3:12:16] as he claims [3:12:17] why did they exercise [3:12:19] bad judgment [3:12:20] if such an action [3:12:21] could be justifiable [3:12:22] on national security grounds [3:12:23] did he fire them [3:12:25] or move them [3:12:25] off the case [3:12:26] no [3:12:27] because it was too important [3:12:28] to find out [3:12:29] about Ellsberg [3:12:29] Mr. Nixon also told us [3:12:32] on May 22nd [3:12:33] that it was important [3:12:33] to find out [3:12:34] about Ellsberg [3:12:35] but he didn't claim [3:12:36] any constitutional justification [3:12:38] for the burglary [3:12:39] Mr. Nixon said [3:12:40] it was illegal [3:12:41] so why is Mr. Ehrlichman [3:12:44] now making an argument [3:12:45] to justify an act [3:12:46] both he and the president [3:12:48] say they didn't approve [3:12:49] and which the president [3:12:50] thought was illegal [3:12:51] it just doesn't add up [3:12:53] unless it's just a ploy [3:12:55] to bait the easily aroused [3:12:56] constitutional watchdog [3:12:58] lurking in Sam Irvin [3:12:59] if the object [3:13:01] were to distract the committee [3:13:02] from questioning him [3:13:03] about other matters [3:13:04] it worked today [3:13:05] or is Mr. Ehrlichman [3:13:07] trying to suggest [3:13:07] in a roundabout way [3:13:09] that the president [3:13:10] did approve the burglary [3:13:11] after all [3:13:12] I repeat [3:13:13] it just doesn't add up [3:13:14] we'll be back tomorrow night [3:13:17] for Peter Kay [3:13:18] and Jim Lehrer [3:13:19] this is Robert McNeil [3:13:20] good night for N-PACT [3:13:21] from Washington [3:13:23] you've been watching [3:13:24] gavel-to-gavel [3:13:25] videotape coverage [3:13:26] of hearings [3:13:27] by the Senate [3:13:27] select committee [3:13:28] on presidential [3:13:29] campaign activities [3:13:30] this coverage [3:13:32] is made possible [3:13:32] by grants [3:13:33] for special events coverage [3:13:34] from the Corporation [3:13:35] for Public 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