The Strong Man: John Mitchell and the Secrets of Watergate (71 page)

On August 1, Hundley and Cacheris filed a 151-page brief seeking to overturn the former attorney general’s convictions in
U.S. v. Mitchell
. The “fifty” grounds for appeal Mitchell had confidently cited immediately after the verdict had boiled down, finally, to two: Sirica’s sloppiness during voir dire, which allegedly ensured the jurors were drawn “from a poisoned well,” and the judge’s refusal to adjourn the trial so Nixon’s testimony could be taken. The latter point proved particularly timely. A month earlier, members of the Watergate grand jury had traveled to San Clemente to grill Nixon, in secrecy and under oath, for eleven hours over two days. Even so, lawyers for the WSPF argued there was “no concrete showing” that Nixon’s testimony would have helped the convicted men, and they accordingly had no right to review the transcript of the ex-president’s sessions with the grand jury (unpublished to this day).

The clashing briefs set the stage for a mini-reunion of the combatants in
U.S. v. Mitchell
. On January 6, 1976, all the old defense lawyers—joined only by Mardian, widely regarded as having the best chance to overturn his conviction—gathered in the U.S. Court of Appeals for the District of Columbia to argue their case. “We did not get a fair trial,” began Haldeman’s lawyer, John Wilson. Decrying the massive pretrial publicity, Wilson called Watergate “the greatest, the largest, the most virulent publicity situation that ever existed in America from the beginning of time.” Hundley attacked the “totally inadequate” jury selection; William Frates denounced Judge Sirica for declaring off-limits the testimony of Nixon, cast here as “the producer, the director, the main character of what this trial was all about.”

On October 12, 1976, the Court of Appeals announced its ruling: Mardian’s conviction was overturned, the others’ upheld. The judges found Sirica erred in not severing Mardian’s case when his lawyer, David Bress, stricken with cancer, withdrew from the trial. Two days later, Mardian got a congratulatory phone call from a previously silent figure: Richard Nixon. Stricken with phlebitis and averse to any attempts to compel his testimony, the ex-president had managed to avoid appearing, as either witness or defendant, at
Mitchell
. Mardian’s memorandum of their talk, handwritten that day and previously unpublished, offered unparalleled insight into Nixon’s private thoughts about the scandal that drove him into exile, and his state of mind there.

For a half hour, Nixon railed at “what a miscarriage of justice” the cover-up trial had been; wondered how Paul O’Brien, the CRP counsel who had relayed some of the hush-money demands, had escaped prosecution; and lamented the Court of Appeals’ validation of the guilty verdicts against the other men. “He said he talked to John Mitchell regularly,” Mardian wrote. “Mitchell has to appeal but ‘they’ (presumably Haldeman and Mitchell) doubt there is a chance that the Supreme Court will grant
cert
[hear the case].” Then Nixon returned to the original crime, the Watergate break-in, mystified by its origins and purpose. On The Question—
Did Mitchell do it?
—the ex-president had apparently had a change of heart.

[Nixon said he was]
sure that the decision was

one that Haldeman, Ehrlichman

and JNM were too smart

to make.

Nixon suggested the hostile political climate in Washington in the summer of 1972 had made it impossible to contemplate full disclosure to the FBI. “With a fair media or one that was favorable,” the ex-president claimed, “Mitchell would have exposed the whole rotten mess before the election and ridden it out.”

they
[the media]
just couldn’t stand his
[Nixon’s]

landslide victory and

when he proved them wrong

by bringing an end to the

war in Viet Nam they were

beside themselves—If it hadn’t

been Watergate they’d have

gotten to him for something else.

Finally, his conscience obviously weighing heavily, Nixon asked if he “did wrong” in not pardoning all his aides. The notion was not new. Previously unpublished notes taken by John Ehrlichman show that, contrary to all published accounts of Watergate, the president toyed with the idea of a blanket pardon less than a month after the arrests. As Nixon envisioned it, clemency would also have gone to any protesters convicted of disrupting the ’72 conventions. Ehrlichman’s notes of July 8, 1972, read:

Can’t appear to cover-up

Not a whiff of it…

Concern re what

Hunt might do—
[absent]
immunity…

WGF
[Watergate]

Disruptions at both conventions—

If P.
[is]
endangered,
[it is]
a Fed statute viol
[ation]
—

Some felonies

Book & charge

Then day after elect’n, a

Genl pardon— order

Prosecutions ended—Except: use of viol
[ence]
—bomb

Inflicting injury

A basis for pardon on both sides…

cut our losses—Blur the negatives

Q. of tone & timing of a statement or message

But Nixon, for reasons unknown, never pursued that course—an appealing one, in retrospect, since the pardon power of the chief executive has since been shown to be absolute, beyond legal challenge—and now, four years later, Mardian could only offer the older man false solace. “I told him I didn’t think he had many options and that pardoning everyone arbitrarily wasn’t one of them.”
⁴

That Mitchell resumed his
friendship with Nixon bespoke an extraordinary capacity for forgiveness. Nixon, after all, had surreptitiously taped his old friend and law partner—
for years
—and encouraged others to do so; repeatedly bad-mouthed him on those tapes; and spent several weeks in the spring of 1973 scheming to make him take the rap for a crime in which Mitchell bore no responsibility. Whether the two ever discussed all that unpleasantness—and whether Nixon ever properly apologized to Mitchell—is unknown. The opportunities were there. Mitchell and Marty spent a week with the Nixons in San Clemente in the summer of 1976. “They were close,” said Mary Dean. “I know [Nixon] would call if it was [Mitchell’s] birthday or if something happened that he thought John would be interested in….[Mitchell] might say to me, you know, ‘Dick called me today.’”

When Nixon spoke privately of Mitchell, it was with a mixture of pity and lingering admiration. During the 1976 election, for example, the ex-president urged the Ford campaign to draw on Mitchell’s formidable network of political contacts, especially in New Jersey and Missouri. “He knows more about those two states than anybody around,” Nixon said. “He can be useful behind the scenes—but it’s got to be covert.” If anyone dared to bring up Watergate, Nixon would express sympathy for his old friend. “I really feel compassion for John Mitchell,” the ex-president told his military aide.

Among those who did show compassion was the man Mitchell had kept waiting when he first learned about the Watergate arrests: Ronald Reagan. After President Ford bested the former California governor in the 1976 GOP primary, Mitchell sent Reagan a note congratulating him on a spirited campaign. “How nice of you to write,” Reagan began his handwritten “Dear John” reply, dated August 27 and previously unpublished. “Nancy and I are both more grateful than we can say.”

Naturally, we were disappointed—not because of any great hunger for the place or position but there were a few things we thought we could do. Now I’ll first have to talk about them + hope they get done.

Nancy sends her best + we both hope our paths will cross again one day.

Sincerely,
Ron

Mitchell needed more than good wishes, however. Talking to Mardian around this time about their staggering attorneys’ fees, the former attorney general “said he was broke and probably could never recover.” In his memorandum of their talk, also previously unpublished, Mardian captured Mitchell’s defiant resignation to his fate.

His attitude is “Screw it—do

what you can and take it

a day at a time.”

On April 21, 1977, National Public Radio reported that the U.S. Supreme Court had decided one week earlier, at the biweekly conference attended only by the justices, not to hear the appeals of Mitchell, Haldeman, and Ehrlichman. The vote was five to three. Citing “sources” at the Court, NPR reporter Nina Totenberg said Justices Harry Blackmun and Lewis Powell had sided with Chief Justice Warren Burger in agreeing to review the case; all three owed their seats on the Court to Mitchell. A fourth in like debt, William Rehnquist, plucked from Arizona to be Mitchell’s assistant attorney general before his elevation to the Court, had recused himself, citing his “friendship” with Mitchell. The Court’s liberal bloc—Justices William Brennan, Thurgood Marshall, Potter Stewart, Byron White, and John Paul Stevens—voted to decline certiorari.

The NPR leak was a source of “considerable embarrassment” to the justices and a wild card in Mitchell’s appeal. Some speculated the Totenberg story could work in Mitchell’s favor, forcing the upending of his verdict because disclosure of the justices’ private deliberations could be seen as prejudicing his appeal. But the Court declined Mitchell’s request to file a memorandum for the record about the NPR report and then announced, without explanation on May 23, that it was indeed rejecting the appeals of Mitchell, Haldeman, and Ehrlichman. “Today’s action ends for all practical purposes the long legal fighting over the cover-up,” the
Times
declared. The nation girded for the sight of its former top law enforcement official entering prison.

On June 6, Mitchell, looking “thinner but dour as ever,” returned to Sirica’s courtroom for the first time since the day the verdicts came down. Haldeman joined him. Neither man spoke, and their lawyers made no pleas. Both were fingerprinted and photographed. Afterward, Haldeman addressed the assembled reporters with manly resolve. “More than four years ago I started on a legal process I thought was proper,” he said. “I knew it was going to be difficult. I believed it was right. I still think that was the right decision. I’m prepared now to accept the results.”

Mitchell, jostled by camera crews, proved less affable. “I hope nobody gets killed out of this,” he snapped. As he struggled to navigate the sea of microphones, he barked: “I’m going to get through here first, and if anyone puts one of those things near me, I’m going to knock it down his throat.”
⁵

Early predictions called for
Mitchell to join Gordon Liddy in the prison camp at Allenwood, Pennsylvania, a manageable three-hour drive from Mitchell’s Manhattan apartment and the Long Island home of his daughter, Jill Mitchell-Reed. Jeb Magruder had also done time there. But in an unkind stab, Mitchell was instead assigned to the prison camp at Maxwell Federal Air Force Base in Montgomery, Alabama, the former home of Charles Colson and Fred LaRue, a brutal sixteen-hour drive from New York.

The selection of Maxwell reflected government concerns about a violent attack on the nation’s highest-profile prison inmate. Norman Carlson, director of the Federal Bureau of Prisons, was reportedly “very concerned” about Mitchell’s safety. “People were trying to get him,” Carlson recalled. “Maxwell Air Force Base camp was selected at that time because that’s where we felt the least possible harm would occur…. The inmate population was essentially non-violent, non-threatening. There were no predatory offenders incarcerated there and as a result of the size and the fact that it was located on an Air Force base, we felt that it was the most appropriate and safest place in which he could serve his time.”

That the prison contained no gates, no guns, no guard towers or bloodhounds, and that its lush, twenty-five-acre landscape was dotted by pine trees and bounded by the Alabama River and an enormous golf course—unavailable to the inmates—inevitably made for snide allusions to “the Maxwell Country Club.” During spare time prisoners could avail themselves of tennis, badminton, and shuffleboard courts, a softball diamond, and an indoor recreation center boasting a color TV set and weekly movie screenings (perhaps in tribute,
The Godfather
was shown a few days after Mitchell’s arrival).