The Nation: The Crack in Ehrlichman’s Stonewall

For John Ehrlichman, it was a hang-tough defense all the way. On trial in federal court in Washington for authorizing the burglary of Daniel Ellsberg’s psychiatrist’s office in September 1971 and then lying about his participation, Ehrlichman conceded nothing. Not only did he deny approving the break-in but he claimed that he did not even know about it until after it happened. Yet the weight of evidence—many memos and recalled conversations—counted against him. Last week, after a little more than three hours’ deliberation, the jury found him guilty of conspiracy and three counts of perjury. The other, lesser defendants—G. Gordon Liddy, Bernard L. Barker and Eugenic Martinez—were also convicted of conspiracy.

Euphemistic Exchange. Ehrlichman is the highest official of the Nixon Administration to be convicted so far of Watergate-related crimes. Due to be sentenced on July 31 by Gerhard A. Gesell, the U.S. district judge who conducted the trial, he could receive a prison term of up to 25 years; each of the co-defendants could be given a maximum of ten years. Ehrlichman announced that he would appeal the decision, repeating his earlier contention that he could not get a fair trial in Washington, a city that is heavily Democratic and preponderantly black. (His jury was composed of nine blacks and three whites.) He also complained that a “great deal of the substance and background of this case has been excluded by rulings of the court,” a reference to Judge Gesell’s rejection of national security as a defense.

Unable to fall back on national security, Ehrlichman based his defense on the claim that he had never specifically ordered a break-in but only a “covert” operation that would give the White House “plumbers” access to Ellsberg’s psychiatric files. The two former White House aides in charge of the plumbers —David Young and Egil Krogh—testified that they had discussed the operation only in general terms with Ehrlichman, their immediate boss. In a delicate exchange of euphemisms, they were careful never to utter such words as “entry” or “burglary.” Nevertheless, said Krogh, “it was clear to me, at any rate, that an entry operation would be necessary to examine the files.”

Other witnesses brought Ehrlichman closer to the commission of the crime. Charles Colson testified that only a few days before the breakin, Ehrlichman had asked him to raise $5,000 immediately for a plumbers’ operation. Ehrlichman told Colson of a project to get derogatory information about Ellsberg. Colson would then have to devise a game plan to spread the dirt. After the burglary, said Colson, Ehrlichman admitted to him: “The boys tried to get Ellsberg’s psychiatric papers. They failed.”

General Robert E. Cushman Jr., commandant of the Marine Corps, told the court how Ehrlichman had phoned him several times about a White House operation. Ehrlichman first asked Cushman, who was then serving as deputy director of the CIA, to give some assistance to E. Howard Hunt, one of the White House plumbers who was a field manager of the burglary. Later, when Cushman was instructed by the CIA to write a report on his contacts with Hunt, Ehrlichman phoned him with another request: Keep White House names out of his memo. Cushman obliged.

Ehrlichman’s defense received some help from high places. In response to written interrogatories, President Nixon stated that he had urged the plumbers’ operations to be kept secret. He thus implied that Ehrlichman was acting on presidential orders when he tried to conceal the break-in and was not just maneuvering to camouflage his own role.

Three Noes. The most dramatic defense witness was Secretary of State Henry Kissinger. On the day of his testimony, people queued up as early as 4 a.m. to try to get a seat in the courtroom. Those few who succeeded were disappointed. Kissinger was on the stand for less than two minutes as he answered three questions. No, he had not authorized David Young to request a psychological profile of Ellsberg from the CIA. No, he had not known that one was being assembled. No, he had not been aware of a plan to obtain information from Ellsberg’s psychiatrist. That succinct testimony by the Secretary of State ran counter to Young’s assertion that both Kissinger and Ehrlichman had asked for the profile.

With his wife Jeanne and their five children observing in court, Ehrlichman took the stand in his own defense. He emphasized that he had nothing illegal in mind when he approved the covert operation. “My mind didn’t dwell on the various possibilities. I didn’t run over possible means or methods.”

In his summation to the jury, Assistant Special Prosecutor William Merrill said that it was not necessary to prove that Ehrlichman had ordered a breakin. It was sufficient to show that he had approved a covert operation to get the information. William S. Prates, Ehrlichman’s chief defense counsel, indignantly objected. “They’re trying to make you the jury believe that the word covert is an illegal operation. It doesn’t mean illegal.”

In his charge to the jury, Judge Gesell emphatically supported the prosecution’s argument. To conduct an illegal search, he said, a “physical break-in is not essential.” All that had to be proved was an “intrusion or exploration by governmental agents of an area which one would normally expect to be private.” One of Ehrlichman’s attorneys, Andrew C. Hall, protested that the judge’s charge was too favorable to the prosecution. Beyond that, said Hall, Gesell’s “facial expressions and demeanor” during the trial had been harmful to the defense. But the tart-tongued jurist replied that there had not been much of a defense. It had been mainly a matter of “dodging around various issues of the case.” Given Gesell’s charge, the jury had little choice but to find Ehrlichman guilty of conspiracy.

“Selective Memory.” The case against Ehrlichman for lying was, if anything, even more solidly supported. In testimony to a Watergate grand jury and to the FBI he had denied any involvement in various stages of the Ellsberg operation. But several memos indicated that he had not told the truth. Throughout the trial, he demonstrated what Prosecutor Merrill called a “selective memory”: he had no trouble recalling episodes that might help his defense, but forgot incidents that might damage him.

Like Ehrlichman, the other three conspirators had been stripped of a plausible defense because they could not plead national security. In an eloquent final argument for Barker and Martinez, Attorney Daniel Schultz portrayed them as “little men” who had been victimized by their cynical and sophisticated superiors in Washington. They had been led to believe that they were acting on the highest patriotic principles. Countered Merrill: “People cannot be allowed to violate the law because they are told it is right. That’s not patriotism. It’s anarchy—the beginning of a police state.”

Ehrlichman took the verdict without flinching, commenting: “I have for years had an abiding confidence in the American judicial system. Nothing that has happened today has shaken that confidence. I look forward to complete exoneration.” But his options have been sharply limited. For all his surface composure he may soon be persuaded that he can no longer hang tough and stonewall. He still faces two more trials: one in California for perjury in connection with the Ellsberg case, one in Washington for his role in the Watergate coverup. With the prospect of receiving stiff sentences from unsympathetic judges, he may choose to start telling more of what he knows about Watergate. If he does make a deal, he might topple some other top White House dominoes.