Abby Fennewald

As James Madison said, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” Although Nixon’s grand jury testimony in the Watergate case produced no real breakthroughs in our understanding of his involvement, it is still important to have access to these documents.

Stanley Kutler, the historian who requested the documents, recognized this. “The grand jury after that testimony had a chance to sit and indict but they did not…so I don’t expect it to be that important,” he said to the AP, adding that it was another victory for transparency in public life.

Nixon, of course, would have been furious. He believed more than anything that he should be able to keep his secrets, and that being president gave him the power to do that. There is no way that when he was giving his testimony he thought there was even the slightest chance that what he said would come to light, but even with that assumed protection, he didn’t let his guard down and tell the truth.

The kind of openness that the release of these documents represents is a vital part of our democracy. If Nixon had been forced to tell the truth about the bombing of Cambodia from the outset, the war in Vietnam would have had a completely different outcome. There are many stories like this in American history. Allowing for public discourse on government action can make politicians think about their decisions in a new light. The only way this can happen, however, is if we know what the government, especially the executive branch, is doing.

James Madison was an early champion of this kind of transparency. Today, FOIA (Freedom of Information Act) release all kinds of government documents to those willing to read them and look for valuable information. Every president can give new directives about how to interpret and enforce this law, as what documents are released has a direct impact on how the public views a president. Under President George W. Bush, Attorney General John Ashcroft recommended a very strict interpretation on what documents should be released. If one of the exceptions to FOIA applied, he wanted executive agencies to use it, even if releasing the documents wouldn’t harm any government operations.

When President Obama took office, he pledged more transparency from these agencies. The implementation of this, however, has seen limited results. Certainly we know more about how many agencies function within the executive branch than during Nixon’s administration, but there is still progress to be made. Nixon’s grand jury testimony might not have the answers we are looking for, but it is still important that they be available. There are many groups today that can help with online FOIA requests, and this is a very valuable service. Government transparency may not have been able to prevent Watergate from happening, but it could potentially have made the risk too great for Nixon to carry out some of his other “dirty tricks,” and would have changed his perspective on what information could potentially be made public.

Alisha Dingus

Stanley Kutler described Nixon’s grand jury testimony as a “virtuoso performance” [4]. For Nixon, it was his last opportunity to convince the world that “he was no worse than anyone else” [2]. It was his last opportunity to remind people that he “was not just Watergate” [2]. “He seemed to be saying…I was important, difficult, tough national security issues and I dealt with them well” [2]. It was his last chance to play Revisionist in Chief on such a public scale. And because of that, he had to give the performance of his political career. Much like his Checkers speech, this was a political Hail Mary. With the Checkers speech, if he did not convince the American public that he was not a crook, to steal a catchphrase he coined many years and scandals later, his political career was all but over. He would have been kicked off the Republican ticket and disgraced before even making it into the White House. With his grand jury testimony, here it was, his last chance to point the finger at anyone but himself. But this scenario was a bit more dangerous, because the entire time, he was at the risk of committing perjury, so he could not do what he did best and blatantly lie about the Watergate affairs. He had to be tricky about his lies, which was why he adopted the “I cannot recall” strategy. But for the entire testimony, he had to be careful not to slip and tell an actual lie (or worse, slip and tell the truth). He was walking a tightrope the entire testimony, which was why the performance was even more stunning.

Nixon was smart. He knew the grand jury would tire of his “do not recall” [4] answer, his non-denial denial. So he “repeatedly reminded his questioners that he had been preoccupied with grave matters of state, including the war in Vietnam” [4]. This was perfect, because it accomplished his goal of reminding everyone that he was not just Watergate. He reminded everyone that he was dealing with real, national security issues while “these clowns” [4] broke into the Watergate. Nixon was “preoccupied with foreign policy” [3] which was his way of taking responsibility for the Watergate scandal. He said “one of the weaknesses I have…and it is a strength in another way: I am quite single minded…I do one thing at a time, and in the office of the Presidency I did the big things and did them reasonably well and screwed up on the little things” [3]. Nixon was too busy doing the “big things” [3] well to worry about the White House plumbers and for that, he was sorry. He was sorry that he put national security above everything else.

Nixon had to remind the people “there were two Richard Nixons” [2] and one of those Nixons “did some very positive things” [2], so positive “that he should not be defined by the events that led to his resignation” [2]. The world he lived in “was not just Watergate and Watergate related episodes” [2]. And to do that, he had to create a villain greater then himself and he chose the prosecutors. “We were really sort of an enemy to him,” [2] said Richard Davis, who questioned Nixon during his grand jury testimony. Throughout the entire testimony, he “slipped in little digs at the prosecutors” [1]. He “applauded them for their hard work and criticized them as being part of an effort to take him down” [1] because, remember, “he was no worse than anyone else” [1]. He accused the prosecutors of “having a double standard” [1] and then gave them a bit of advice: “taking the double standard is going to make you much more popular with the Washington press corps, with the Georgetown social set…but on the other hand, think of your children-they are going to judge you in the pages of history” [1] because in Richard Nixon’s world, history will judge him kindly. He was “subjected to some of the most brutal assaults” [3] but he was the only one forced to resign for, in his mind, simply playing the same game Kennedy and Johnson played before him. He told the grand jury “it is time for us to recognize that in politics in America…some pretty rough tactics are used” [3]. He was aware that his campaign was not “pure” [3] but as someone who had been in politics for “the last 25 years” [3] he could assure everyone “that politics is a rough game” [3]. He was just doing what everyone else did. He just made the mistake of trusting “a group of amateur Watergate bugglers, burglars-well they were bunglers” [4] whereas Kennedy used “the F.B.I, used the I.R.S…against…a man who had been vice president of the United States, running for governor” [4]. It really was a beautiful performance, maybe the finest of his career. Not once did he overtly commit perjury. Not once did he slip up and tell the truth. And most importantly, he continued to paint himself as the victim in the entire ordeal.

I do hope someone writes a play about Nixon’s grand jury testimony because it was the performance of his political career.

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1. “Nixon shed no light on gap to grand jury.” AP.

2.Bell, Melissa. “Nixon’s testimony: the grand jury prosecutor recalls a tormented president on the stand.” The Washington Post.

3. Farrell, John. “Nixon to grand jury: $100,000 cash contributions and rewarding donors with ambassadorships.” The Center for Public Integrity.

4. Nagourney, Adam & Shane, Scott. “Newly Released Transcripts Show a Bitter and Cynical Nixon in ’75.” The New York Times.

Conor Daniels

Nixon’s Grand Jury Testimony

 The unsealing of Nixon’s Grand Jury testimony was a seminal moment not only in the saga of Watergate, but a fascinating window into the mind of a very complicated man. For eleven hours, the disgraced former president sparred with prosecutors in what could be described as classic Nixon fashion.  The tapes display a remarkable portrait of Nixon after he left office, bitter about his fall from grace and cynical about politics generally. He seems to present himself as a victim of governmental abuses by his enemies during his career in politics, and said that prosecutors were out to destroy him in order to validate their actions during the scandal’s early days.

At the same time he is arguing that his White House did nothing out of the ordinary, he simultaneously seems to compliment JFK’s administration asserting that it had directed the I.R.S. and other government agencies to discredit him as he ran for governor of California. He says:

“They were pretty smart, I guess,” he said. “Rather than using a group of amateur Watergate bugglers, burglars — well they were bunglers — they used the F.B.I….”

This is a great microcosm of the tension that existed within Nixon’s psyche. He had the propensity for law breaking, seeing it as a necessary component of the political game, and at the same time had convinced himself that he was not responsible for the actions he was taking.

Another interesting point raised by Professor Chris Edeldson was the implication of Nixon’s testifying only after he had resigned. It would have raised an interesting constitutional situation surrounding the separation of the executive branch. Had Nixon still been the sitting president, one could only imagine he might have refused to testify before the Grand Jury at all. Obviously U.S. v Nixon made clear that this viewpoint was flawed, as so many of Nixon’s were, however it would have been interesting to watch unfold.

Nixon even directed some humor at himself, as he recalled telling an advisor to look into the 18 ½-minute gap on the White House tapes. “I said to him, ‘Let’s find out how this damn thing happened,’ ” Nixon said. “I am sorry, I wasn’t supposed to use profanity. You have enough on the tapes.” This ability of Nixon to be self-deprecating is almost necessary in a man so profoundly awkward on the national stage. And from the pages of transcript I have read, his awkwardness and missed attempts at humor are present throughout. It made for a great read.

Pat Sloyan

Washington correspondent for United Press International, Hearst News Service and Newsday

Nixon’s grand jury testimony, including what he didn’t or won’t say after learning of the Watergate burglars arrest, reminds me to fall on my knees and thank God I was a White House reporter in times of Richard Milhous. The missing 18.5 minutes was just part of a really wonderful show that made you want to get to work early and stay late.

Every dawn brought developments beyond the imagination of establishment journalists. From the refurbished Press Room (it reeked of Disneyland) at the White House, the yellow East Room of Press Conferences, the mahogany and marble of the Senate Caucus Room, to the chambers of Judge John Sirica and the cavernous halls of the Justice Department where the Special Prosecutor was put to political death–it was all Nixon, all Watergate, all the time.

Standing on the White House lawn with a red-eyed President Gerald Ford, I watched the two-armed wave goodbye to Dick Nixon as he boarded Marine One one last time. But he sucked into that green and white Sikorsky all the excitement and anticipation and sheer joy of the two years of Watergate. He stuffed it aboard Air Force One and the air went out of White House journalism forever. Bill Clinton’s intern? Turned reporters into gents room journalists hunting semen on a blue dress. Disgusting. Ronald Reagan? Fading before your eyes. The rest are pimples on the ass of history.

But Nixon. There was a president of endless stimulation, challenge and stupefying revelations. Just to peruse his dubious tax returns with a Vienna accountant who assured you that EVERYTHING was deductible. Or the Attorney General’s part in the parrot-smuggling scam. And a record number of his closest advisers doing hard time in federal incarceration. Wallowing in boatloads of illegal millions. Come on. Now there was an administration worth your time and attention.

It’s true. I did petition for his return to serve out the last year of his second term. It was ignored. But sometimes I dream I’m at Andrews Air Force Base and coming down the gangway, tanned and ready from La Casa Pacifica, is Dick Nixon. What did we know? When did we know it?

Warren Corbett

Capitol Hill reporter for D.C.’s Channel Seven

It is, of course, vintage Nixon. Sounds just like him:

Paranoid—“Have my lawyers seen this?”

Combative—“You’re trying to put words in my mouth.”

Blustering—“I had a great many important things on my mind.”

Self-pitying—“I have to take this anticoagulant.”

I would note the difference between his testimony on the 18 ½ minute gap and the other matters—ambassadors, wiretaps and so forth. In the tape testimony he is very focused, not as rambling and incoherent. On the other matters, he wandered and filibustered all over the map.

The only new fact that caught my eye was his discussion of the June 20 tape. He pointed out that it was not the first time he and Haldeman talked about the break-in. They had been together in Florida and on the plane coming back. I don’t recall seeing anybody make that point before. Meaning that the tape with the gap was not as important as everyone assumed because it was not their first opportunity to plan a strategy.

His defense of Hoover is interesting. By 1975 Hoover had been discredited in the eyes of a great many people, but Nixon goes out of his way to praise him as a patriot. Says Hoover never would have turned on the president and spilled his private files, even if Nixon had fired him. Which, of course, he says he never seriously considered doing.

I was struck by how well prepared he was. And how lawyer-like. Nixon was a smart guy.

A Constitutional Crisis

Chris Edelson

Assistant Professor in the Department of Government

American University

The Watergate break-in and the Nixon administration’s actions after the break-in[1] presented a challenge to the basic structure of constitutional democracy in the United States.  Most centrally, these events raised questions about the rule of law itself.  Could President Nixon define the limits of executive power himself, as he argued in U.S. v. Nixon, or did the system of checks and balances created by the Framers set effective and enforceable limits on presidential power?

In refusing to produce tape recordings and other documents in response to a subpoena issued by the Watergate special prosecutor, President Nixon advanced a theory of executive power that threatened to subvert the constitutional structure of checks and balances.  Nixon’s lawyers argued before the Supreme Court that the principle of separation of powers meant that the President could independently define the scope of executive privilege under the Constitution.[2]  If the Court has accepted this argument, it would mean that the President would effectively have the ability to define the limits of presidential power when it comes to protecting presidential communications from review by a court: if the President independently concluded communications were confidential, for any reason, this decision could not be reviewed by a court.  The Supreme Court rejected this argument, citing Marbury v. Madison, and concluding that the President’s position “would upset the constitutional balance of a workable government” and gravely impair the role of the courts under Article III.”  Nixon’s position would prevent the courts from performing their constitutional function because he would be able to withhold, without sufficient justification, evidence relevant to criminal prosecutions.

President Nixon also argued that he could not be required to testify before the grand jury investigating the Watergate burglary. Nixon ultimately testified before the grand jury, but only after he resigned from office.  If Nixon had remained in office, deciding whether he could be required to testify before the grand jury would proceed along lines similar to those outlined in U.S. v. Nixon.  Nixon argued that requiring him to testify would undermine the independence of the executive branch, giving the courts impermissible power to control his actions.  However, in U.S. v. Nixon, the Court had made clear that Nixon’s view of the separation of powers was flawed.  The principle of separation of powers cannot “insulate” the President from interaction with the other branches of government.  In fact, the Framers’ notion of the separation of powers depended on the different branches of government having overlapping functions, rather than operating in hermetically sealed spheres.  In U.S. v. Nixon, the Court recognized that there are times when the President’s actions must be protected from review by the other branches of government[3]; however, this principle is not absolute.  In another case decided years after Nixon left office, the Court drew a line between official and unofficial conduct as president: the President is immune from legal process associated with official conduct in office only.[4]  Applying this standard to testimony sought by the Watergate grand jury, President Nixon’s testimony could have been required even while he was still in office.  This would not have been the first time that a sitting President testified in an ongoing case: President Grant provided testimony (though voluntarily) through a deposition in a criminal case (the prosecution of an official in his administration).

With the benefit of hindsight, I can also observe that several presidents have testified since Nixon left office: President Carter provided testimony in two criminal prosecutions and also gave depositions in two cases; President Ford gave a deposition while in office and, probably most prominently, President Clinton gave a deposition in the Paula Jones case after the Supreme Court ruled he was not immune from judicial process while in office.  The Court, in Clinton v. Jones, ruled that litigation involving “questions that relate entirely to the unofficial conduct” of the President may proceed while the President is in office.  This case was, of course, decided more than 20 years after Nixon left office, but helps provide support for the conclusion that Nixon could have been compelled to testify before the Watergate grand jury even if he had remained in office.

 

 


[1] Other actions taken by President Nixon and his administration presented similar constitutional challenges, but this discussion focuses on the Watergate break-in.

[2] Executive privilege is not expressly described in the Constitution, but has been recognized by the Supreme Court as an implicit constitutional principle.

[3] For instance, the Court suggested, when the President makes decisions involving matters of national security.  Critics, however, might view even this concession as opening a dangerous area of unilateral presidential authority.

[4] Nixon v. Fitzgerald (1982).

Introduction to Testimony

Introduction

Pages 1-15 of the Testimony

The start of Nixon’s 297-page grand jury consists of a discussion of procedural issues.  The prosecutors express their concerns, and outline the format for the ensuing deposition. Nixon clarifies that he is present in a voluntary capacity and says that it is his wish that “[his] testimony will be helpful in concluding the investigation.”  He goes on to reinforce his belief that presidential communications should be kept secret, and about the power of the American presidency.  He then says that if he receives a guarantee of the secrecy of his testimony he “will reveal for the first time information with regard to why wire taps were proposed, information which if it is made public, will be terribly damaging to the United States.”

The most substantive part of this early section comes from Nixon’s attempts to defend the gaps in his memory.  He argues that “while you all and those who will be questioning me have had two years to study these things … I, on the other hand, will be trying to remember things that have occurred not only two years ago, but four years ago.”  He sets up a framework in which he is the victim—this is an intellectual theme with Nixon, and opines that he has been severed from his papers and records, which places him at a further disadvantage with regards to questioning.  Mr. Ruth (one of the prosecutors) tells him that anything the prosecution will be referencing is available, at the request of counsel, from the DC courts, which suggests that Nixon purposefully constructed a situation in which he had deniability.  By refusing to prepare for the testimony (i.e. by requesting documents from the DC courts) Nixon attempts to establish a situation in which he can believably say that he did not remember what occurred.

“I will have to, at times, use the phrase, which I abhor … but if I say ‘to the best of my recollection,’” preempts Nixon, “it will be only because I have not had an opportunity to access my own records”—clearly false; as Mr. Ruth says “any document we are using here today your counsel has had access to through court procedures, at your request.” Hypocritically, Nixon “abhors” relying on any answer save yes or no—yet “yes” and “no” answers are virtually absent from the body of the testimony.

The transcript of the testimony can be found online in several locations. The United States Government Printing Office (GPO) has published Nixon’s grand jury records, including these transcripts, online. They can be accessed at http://www.gpo.gov/fdsys/pkg/GPO-NARA-WSPF-NIXON-GRAND-JURY-RECORDS/content-detail.html.