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What the Watergate 'Road Map' Reveals About Improper Contact Between the White House and the Justice Department

Jim Baker, Sarah Grant
Monday, November 19, 2018, 10:13 AM

Details of the interactions show why contacts between the president and the top officials investigating his White House were risky for all involved.

Nixon preparing to address the nation regarding his released of the edited White House Transcripts.

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In a conversation between the president of the United States and senior Justice Department officials, the officials informed the president that two of his senior White House staff were under investigation. One of the officials later testified: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” He impressed on the president, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” And he urged the president to “get rid” of the staffers in question; the president responded, “‘Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.’”

This happened in 1973.

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials. The interactions cited in the road map occurred during March and April 1973. During that period, the president and his subordinates at the White House had contacts with Attorney General Richard Kleindienst and Henry E. Petersen, who was assistant attorney general for the Justice Department’s Criminal Division and is the official quoted above regarding the interaction with President Nixon. From June 1972 to May 1973, Petersen supervised the Watergate investigation conducted by the U.S. Attorney’s Office in Washington, D.C., and the Federal Bureau of Investigation (FBI). President Nixon was in touch with him frequently about the investigation, his future career and other matters along the way.

Petersen is a figure of some reverence in the Justice Department as evidenced by the fact that the Criminal Division named one of its major awards after him. His close contacts with President Nixon over a pending investigation that—at that time—implicated the president’s own staff may raise eyebrows regarding Justice Department contacts with the White House on certain types of investigative matters.

In particular, we focused on the facts that the road map and related documents reveal regarding the nature and scope of the interactions between President Nixon and Petersen. This portrait is not complete. Watergate is a vast and complex topic, and we are not Watergate historians. Moreover, we do not purport to provide a comprehensive review of the Nixon-Petersen interactions nor how they may have impacted the investigation. Additional facts may be important to a complete understanding of this story.

What we dive into below are some of the interactions that were cited in the road map—presumably because Watergate Special Prosecutor Leon Jaworski found them important enough to report them to the House of Representatives—as well as in related materials. We do so without extensive analysis of the meaning of these events in the Watergate saga or, particularly, in other contexts.

To understand the meaning and significance of the road map documents regarding Kleindienst and Petersen, the following background may be useful. The FBI and the U.S. Attorney’s Office in Washington began investigating the Watergate break-in immediately after it occurred on June 16-17, 1972. Kleindienst and Petersen were involved in the matter from the outset. Kleindienst eventually recused himself from the investigation on April 15, 1973, which effectively left Petersen in charge of it at main Justice. As far as we can tell, President Nixon did not publicly or privately criticize Kleindienst for that decision.

But Kleindienst resigned on April 30, 1973, just 15 days after his recusal and the same day that President Nixon fired White House Counsel John Dean. H.R. Haldeman, the White House chief of staff, and John Ehrlichman, counsel and assistant to the president for domestic affairs, also resigned on April 30. Elliot Richardson succeeded Kleindienst as attorney general. In May 1973, Richardson appointed Archibald Cox as special prosecutor to handle the Watergate investigation, effectively taking the case away from Petersen and the U.S. Attorney’s Office. On Oct. 20, 1973, Richardson and Deputy Attorney General William Ruckelshaus resigned rather than follow President Nixon’s order to fire Cox; Acting Attorney General Robert Bork then fired Cox. Leon Jaworski replaced Cox, and eventually he prepared the road map in conjunction with the federal grand jury investigating Watergate.

By the time of the Nixon-Petersen interactions cited in the road map—late March and April 1973—that we detail below, the president was well aware of the involvement of the White House and the Committee to Re-Elect the President (CRP) in the break-in and was an active participant in the cover-up. For example, in a conversation on June 23, 1972, shortly after the Watergate break-in, President Nixon and Haldeman discussed obstructing the FBI’s investigation. Among other things, they discussed asking the CIA to tell the FBI—falsely—that the break-in was somehow an intelligence matter and related to national security. Their hope was that the FBI would back off the case. This conversation was recorded, and when it came to light on Aug. 5, 1974, it became known as the “smoking gun” tape.

Shortly before that conversation became public, the special prosecutor’s office sent the House Judiciary Committee a memorandum, dated June 24, 1974, focused on “facts, inferences and theories that demonstrate that beginning no later than March 21, 1973, the President joined an ongoing criminal conspiracy to obstruct justice, obstruct a criminal investigation, and commit perjury (which included . . . obtaining information from the Justice Department to thwart its investigation). . . .” Moreover, the special prosecutor’s office focused specifically on the Nixon-Petersen interactions in support of its conclusions about the president’s culpability:

The available evidence supports charges that the President participated in a conspiracy to violate certain . . . statutes . . . and . . . would be liable both as a principal and on a theory of vicarious liability for additional substantive offenses.

For example, there is evidence that the President conspired with others under 18 U.S.C. 371 to defraud the United States and to commit violations of certain federal criminal laws, to wit:

* * *

—obstruction of a criminal investigation, 18 U.S.C. 1510 (including his personal endeavor by means of both bribery and misrepresentation—the latter especially with respect to the President’s conversations with Henry Petersen—to delay and prevent communication of information to the United States Attorneys and to Henry Petersen).

As a result, the road map’s references to President Nixon’s interactions with Petersen—the person who was heading the investigation—take on a different and more nefarious meaning. Those interactions must be understood within the larger context of the president’s knowledge of the facts regarding Watergate at the time that he was in contact with Petersen. In other words, when the president sought information from Petersen, provided his views to Petersen on the various matters that they discussed, and discussed Petersen’s future, he was not merely exercising his powers under Article II of the Constitution to supervise the executive branch and trying to get the facts necessary to do so; the president of the United States was also acting as a criminal co-conspirator trying to obstruct lawful investigative activities of the Justice Department.

Moreover, these were not the only contacts between the White House and the Justice Department; there were other contacts between White House officials (especially John Dean) and Petersen. President Nixon and other White House personnel also had contacts with other Justice Department officials, such as Attorney General Kleindienst and Acting FBI Director L. Patrick Gray. The nature and scope of those contacts are important to understanding the full story of how the department dealt with the White House, but they are beyond what we address here.

Notably, it appears that Petersen genuinely did not understand fully President Nixon’s role in the Watergate affair at the time he consented to have the numerous interactions with the president that are outlined in the road map and related documents. A fair assessment of the role that Petersen played would require additional research and is beyond the scope of this post. So we make no effort to pass judgment on Petersen or his actions.

What follows is an attempt to report on a limited set of facts gleaned from our review of the road map, its attachments and related documents that we find interesting. These documents detail the direct contacts between the president and the top Justice Department officials responsible for an investigation of his White House—and ultimately of him—and why such contacts were so pernicious and dangerous for all involved. Here is what the road map itself reports about the Nixon-Kleindienst-Petersen interactions (the paragraph numbers are from the document):

16. On or about March 27, 1973, the President instructed John Ehrlichman to contact Richard Kleindienst; on or about March 28, 1973, Ehrlichman had a telephone conversation with Kleindienst in which Ehrlichman told Kleindienst that the President’s “best information” was that no one in the White House had “prior knowledge” of the Watergate break-in, but that serious questions were being raised about [former Attorney General and CRP Chairman] John Mitchell, and the President wished to have Kleindienst communicate privately with the President if Kleindienst obtained any information concerning Mitchell.

* * *

19. On Sunday, April 15, 1973, Richard Kleindienst and Henry Petersen had a meeting with the President at their request and advised the President of information in possession of the prosecutors obtained in part from the cooperation of John Dean and Jeb Magruder; Kleindienst and Petersen urged the President to fire Haldeman and Ehrlichman immediately because of their implication in the Watergate matter.

* * *

21. At or about 11:45 p.m. on April 15, 1973, the President had a telephone conversation with Henry Petersen.

* * *

24. From on or about April 15, 1973, to on or about April 28, 1973, the President had numerous conversations with Henry Petersen.

* * *

26. On or about April 18, 1973, the President had a conversation with Henry Petersen during which the President instructed Petersen not to investigate the break-in at the offices of Dr. Daniel Ellsberg’s psychiatrist that occurred in September 1971.

* * *

51. On April 17, 1973, the President said in a public statement that he had met on April 15, 1973, with Richard Kleindienst and Henry Petersen “to review the facts which had come to me in my investigation . . . .”

52. On August 22, 1973, the President said at a news conference, in response to the question why he did not immediately turn over information concerning criminal wrong-doing to the prosecutors in March and April 1973, that he assumed that John Dean in March was telling Henry Petersen everything that Dean was telling the President; the President implied that he assumed the same about John Ehrlichman after March 30, 1973.

53. On August 15, 1973, the President said in a public statement that the “allegations” that were made to him on March 21, 1973, “were made in general terms, . . . and they were largely unsupported by details or evidence,” but that by April 15 “the fragmentary information I had been given on March 21st had been supplemented in important ways, particularly by Mr. Ehrlichman’s report to me on April 14th, by the information Mr. Kleindienst and Mr. Petersen gave me on April 15th, and by independent inquiries I had been making on my own.”

Each of these paragraphs in the road map cites to underlying documents—such as grand jury testimony, meeting notes and transcripts of recordings of conversations—in support of the factual assertions made. Some of those supporting documents provide interesting insights on the road map material.

For example, on April 15, 1973, according to Petersen’s grand jury testimony, Kleindienst and Petersen met with the president. Kleindienst told the president that he would recuse himself from further participation in the investigation. Both Kleindienst and Petersen told the president that he should fire Haldeman and Ehrlichman. According to Petersen, in response President Nixon:

. . . spoke well of Ehrlichman and Haldeman; [I] thought that it seemed difficult for him to comprehend; [he] seemed to think—seemed to fear I guess is a better term—that perhaps John Dean was simply trying to exculpate himself and that he was really responsible; that he didn’t know about these things at all until Dean had told him on March 21st [1973]; and that, at that point he had asked Ehrlichman to look into the matter.

Archibald Cox and another prosecutor interviewed Petersen regarding this interaction with President Nixon. Cox asked Petersen whether “the President [was] surprised when you said that Ehrlichman and Haldeman were implicated, so far as you could judge?” Petersen stated: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” Petersen explained that the investigators had not corroborated information regarding Haldeman and Ehrlichman, but, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” Petersen also said when he urged the president to “get rid” of Haldeman and Ehrlichman, President Nixon said, “Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.” Petersen then said, “Fine. My viewpoint is parochial. I think you ought to do it. We went around and around on that issue.”

Petersen also testified that he discussed with the president aspects of investigative strategy, including whether prosecutors should grant immunity to John Dean and other officials in exchange for their testimony. The president expressed the view that he did not support immunizing White House officials, including Dean, and that Dean might want to obtain immunity to “falsely accus[e] others to exculpate himself. . . . The other concern was the public imagery involved.” Petersen said that the president also told him that “‘Dean came in and told me about all these things. My goodness, that was the first time I heard.’”

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material. Petersen said that he ultimately determined that he could not provide any additional information at that time because it would have involved disclosing grand jury material; the president accepted that conclusion. In the following two weeks, however, Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

According to one of the documents that the National Archives released with the road map—a report from the Watergate Task Force dated Feb. 7, 1974—on March 21, 1973, in a meeting that was tape-recorded John Dean told the president that Dean “kept abreast of what the FBI and Grand Jury were doing, primarily through Petersen.” The report further states:

Dean suggested that by coordination with the Justice Department, and especially Petersen, they could find out how to put things together so as to “maximum to carve it away with the minimum of damage to individuals involved.” The President asked if Petersen knew the “whole story,” and Dean said that he did not.

Haldeman later joined the president and Dean in the March 21 conversation. Among other things, they discussed seeking a new grand jury in the Watergate matter as a means of frustrating the efforts of the Senate committee (chaired by Sen. Sam Ervin) investigating Watergate. The report states:

The President reiterated that the Grand Jury “thing” had appeal, that that would put them in a better position vis-à-vis appearances in the Ervin Committee. They might even get Petersen as a special prosecutor. Dean said that Petersen would have problems in the Senate hearings, but the President said he can go up there and say he’s been told to go further in the Grand Jury, to call everybody in the White House, etc.

The report later states that: “There was some discussion of getting Petersen to help, but the problem with that was that Petersen’s knowledge would then be added. Dean said it bothered him to bring Petersen in, because that was just ‘one more step.’”

The report also states that during the time period that the president had conversations about the investigation with Petersen:

[T]he President also conferred daily with Haldeman and Ehrlichman, met with their attorneys, and had an opportunity to pass along to them what information the President was getting from Petersen about the investigation, such as the witnesses who were being called, etc. (Petersen told the President early on that the prosecutors were attempting to develop [Haldeman aide Gordon C.] Strachan as a witness and that if Strachan came through, Haldeman “was dead.”)

The report does not confirm that the president actually passed on such information to Haldeman, Ehrlichman or their attorneys.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.” Petersen dismissed such statements as “unadulterated flattery” that did not impact how he conducted himself. He added:

I never thought of myself as anything other than Assistant Attorney General in the Department of Justice who was trying to advise the President of information I thought he should probably be advised of, so that he could take the necessary action to protect the Presidency of the United States.

Petersen said that he did not construe these conversations to mean, “‘You and I stick together, buddy. I’ll make a big man of you.’”

President Nixon asked Petersen whether he was interested in serving as director of the FBI. Petersen testified:

The only statement that was ever mentioned or made by the President, which I felt was indiscreet . . . I think was on one of the occasions he asked me would I like to be Director of the FBI, and then he went on and talked for about fifteen minutes and I indicated that that was not one of my ambitions.

If I became Director of the FBI, that was fine; if I didn’t, that was fine, too; and that was the way we left it. . . But I have to say that he was quick to say, “I’m not offering you the job.”

Petersen testified that he also had the following exchange with the president about information that the investigators had learned from John Dean that G. Gordon Liddy and E. Howard Hunt—both of whom were involved in the conspiracy to break into the Democratic National Committee offices at the Watergate building—had also broken into the office of the psychiatrist of Daniel Ellsberg (who had disclosed the “Pentagon Papers” to the press):

[The President] said, “What else is new?”, and then I dropped the next bombshell. It was that Dean had informed [Assistant United States Attorney Earl] Silbert that Liddy and Hunt and company had burglarized Dr. Fielding’s office who was Ellsberg’s psychiatrist.

The President said, “I know about that. That’s a national security matter. Your mandate is Watergate. You stay out of that.”

I said, “Well, I have caused a check to be made, and we don’t have any information of that nature in the case.” I said, “Do you know where there is such information?”, and he said no.

He said, “There’s nothing you have to do.” Then I got off the phone.

I called Mr. Silbert and told him what the President had said. I guess he was kind of upset about it. He just kind of grunted or groaned. I said, “Well, Earl, that’s it.”

Petersen then told the deputy assistant attorney general who supervised the Criminal Division’s Internal Security Section (the predecessor to the National Security Division’s Counterintelligence and Export Control Section), which was investigating the Ellsberg matter, “to forget about it.” The House Judiciary Committee referenced the burglary into the offices of Dr. Fielding in Article II of the Articles of Impeachment that it voted out of committee on July 27, 1974.

* * *

Although we focused our review on the road map and related documents, in our background research we came across the following information regarding a few of the president’s interactions with Petersen. On July 11, 1974, the House Judiciary Committee publicly released voluminous information it had accumulated in its inquiry into Watergate, and the New York Times published much of it. The material provides additional detail on interactions between the president and other White House officials, on the one hand, and Petersen on the other. One paragraph of the Judiciary Committee material states in part:

From 4:31 to 4:35 P.M. on April 27 [1973], the President had a telephone conversation with Petersen during which the President asked if Petersen had any information that would reflect on the President. Petersen said no. At the President’s request, Petersen met with the President from 5:37 to 5:43 P.M. and from 6:04 to 6:48 P.M. The President again asked if there was adverse information about the President. Petersen said he was sure that the prosecutors did not have that type of information.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

* * *

How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

President Nixon resigned on Aug. 9, 1974, and was pardoned by President Gerald Ford on Sept. 8, 1974.

Jim Baker is a contributing editor to Lawfare. He is a former Deputy General Counsel of Twitter, the former General Counsel of the FBI, and the former Counsel for Intelligence Policy at the U.S. Department of Justice. In that latter role, from 2001-2007, he was responsible for all matters presented to the U.S. Foreign Intelligence Surveillance Court. The views expressed do not necessarily reflect those of any current or former employer.
Sarah Grant is a graduate of Harvard Law School and previously spent five years on active duty in the Marine Corps. She holds an MPhil in International Relations from the University of Cambridge and a BS in International Relations from the United States Naval Academy. The views expressed here are her own and do not reflect those of the Department of Defense, the Marine Corps, or any other agency of the United States Government.

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