WATERGATE: The Nixon Conspiracy Laid Bare

“Your Honor, the prosecution rests its case.”

When that declaration is made early this week by Prosecutor James Neal, it will be the best news yet in the Watergate conspiracy trial. Through eight turbulent weeks of sophisticated courtroom wrangling, the often dramatic testimony of polite, unshakable witnesses and the courtroom listening to taped White House conversations, Neal and his young team of assistant prosecutors have presented a devastating case against five former agents of President Richard Nixon.

The evidence that the five had conspired to cover up the true origins of the Watergate bugging and burglary is massive. It includes the playing of more than 20 hours of recordings, the appearance of 30 witnesses, the presentation of some 130 documents. If the deluge of material was sometimes bewildering, the rhythmic interjection of such confessed conspirators as John Dean, Jeb Stuart Magruder, Herbert Kalmbach and Fred LaRue giving their versions of cover-up activities, and the playing of tapes that verified their testimony was overwhelmingly effective. The most promising hope for the defense seems to be that one juror might conceivably hold out and produce a hung jury, which could result in a new trial.

Ironically, the best chance of that happening rests on how clearly the tapes, including some never publicly revealed before, show that Nixon was the increasingly desperate leader of the cover-up strategy. He not only lied to the public but often to the aides who were risking their own freedom to protect him. Some jurors might refuse to convict in the belief that it would be unfair to imprison the aides while Nixon escapes criminal prosecution because of President Ford’s pardon. The Nixon on the tapes, in fact, sounds more devious than the men on trial.

Bugging Plan. Indeed, the new tapes provide the first evidence suggesting that Nixon might even have ordered the intelligence-gathering plan that led to the bugging of Democratic national headquarters. On a March 27,1973 tape, H.R. Haldeman told Nixon that “the final step” in putting the bugging plan in operation occurred when Haldeman’s aide, Gordon Strachan, called Magruder and told him “to get this going” because “the President wants it done and there’s to be no more arguing about it.” Magruder, according to Haldeman, passed this presidential order along to former Attorney General John Mitchell, who said, “O.K., if they say to do it, go ahead.” Nixon’s only reaction on the tape to Haldeman’s narrative was an angry-sounding expletive: “Shit.”

Except for this ambiguity, the tapes show that despite all of the former President’s denials, he had 1) promised Executive clemency for various Watergate defendants; 2) approved the paying of hush money to the burglars and knew that this could be an obstruction of justice; 3) plotted to first make Magruder and Mitchell, then Dean, the scapegoats so as to save himself. Even many of the transcripts released by the White House last April in a televised profession of belated candor were revealed by the playing of the tapes to have been edited to omit the most damaging statements and thus continue the coverup.

There are a few weaknesses on certain specific allegations against some defendants in the Government’s multi-count case. Last week Sirica suggested that he might dismiss two of the counts against Mitchell and Ehrlichman, both of whom were charged with lying to federal agencies. All five defendants are expected to take the stand in their own defense. But they will also expose themselves to the crisp cross-examination of the prosecution team, most notably Neal, 46; Richard Ben-Veniste, 31; and Jill Wine Volner, 31. Each defendant is in dire but different straits:

JOHN MITCHELL. Partly because Nixon, Haldeman and Ehrlichman plotted so strenuously to get “the big enchilada” to take the full rap for Watergate, Mitchell has come off as a less sinister figure than during the Senate Watergate hearings. The prosecution’s testimony that he approved the bugging plan rests on the testimony of Magruder and the hearsay claim by LaRue that one of the burglars, G. Gordon Liddy, had named Mitchell as having authorized the project. Mitchell also has the advantage of being defended by the most engaging lawyer in the courtroom, William Hundley. When another attorney asked Judge Sirica to expel anyone from the courtroom who laughed during one tape-playing, Hundley asked brightly. “How do you feel about crying, Judge?” Said Sirica: “I can’t answer that.”

But the tapes and testimony indicate that Mitchell sat through three meetings at which Liddy presented his eavesdropping plans, tried to get Attorney General Richard Kleindienst to release one of the original burglars, suggested that Magruder burn some notes on intercepted Democratic telephone conversations, was host to cover-up meetings at his apartment and approved some of the cash payments to defendants.

H.R. HALDEMAN. Seated at a table from which he can readily see the jury and smile at the spectators (see chart), the now amiable Haldeman has shed his crewcut, stern image. He cracks jokes during recesses, signs autographs, confers at ease with his tart-tongued attorney, John Wilson. Often shouting and showily unimpressed by the judge, Wilson has tried to provoke Sirica into intemperate statements. He seems intent on seeking an unfair trial so a conviction could be reversed on appeal.

That is about the only escape hatch Haldeman has, since, next to Nixon, the tapes show him in the worst light. He was constantly suggesting “scenarios” to promote phony White House stories, rather than tell the truth about Watergate. He apparently led the Nixon-ordered attempt to get the CIA to impede the FBI’s investigation of Watergate, turned over a $350,000 cash fund that was used to buy the burglars’ silence and knew in general about the Liddy plans well before anyone was arrested. The case against him looks strongest of all.

JOHN EHRLICHMAN. The testimony of Kalmbach, Nixon’s former personal attorney, is damning to Ehrlichman. As Ehrlichman sat stonily with head down at his front table, Kalmbach repeated his celebrated Senate testimony: “John, I am looking you right in the eye,” while seeking reassurance from Ehrlichman that he should continue to pass out cash to the burglars. When a tape (secretly made by Ehrlichman) was played of Kalmbach recounting that conversation in a telephone call to Ehrlichman, Kalmbach’s voice on the tape cracked. Simultaneously, on the stand Kalmbach fought back tears. Later he did weep. Staring down at Ehrlichman, Kalmbach also testified that the two had once sat in a car overlooking the Pacific when Ehrlichman told him: “I want you to be certain that you identify John Dean as the one who directed you in these [payoff] efforts.” Kalmbach said he replied: ” ‘And you, too, John.’ ”

That testimony may have made Ehrlichman look, to the jury, like a man who had betrayed a friend. Other than that, however, Ehrlichman seems in the best position, poor as that is, of all the defendants. His smooth and imposing lawyer, William Frates, has a good chance to show that Nixon and Haldeman often duped Ehrlichman, perhaps not telling him about the existence of the White House taping system until April 1973, leading Ehrlichman to believe that legitimate national security interests might be jeopardized in any freewheeling FBI investigation of Watergate. If Nixon is found too ill to testify in any fashion, Prates might also have a better chance to appeal any conviction.

ROBERT MARDIAN. On cross-examination of Government witnesses, Mardian’s lawyer, Thomas Green, has dented the Government’s claim that Mardian made the telephone call setting up the approach to Kleindienst to free one of the burglars. Mardian’s defense on that point is that the call was made before Mardian could have learned about the burglary. But the prosecution has pinned down the fact that Mardian was briefed by Liddy within days of the burglary and thereafter cooperated in the coverup.

KENNETH PARKINSON. Seemingly the most peripheral of the five defendants, the Nixon re-election committee’s former lawyer has nevertheless been solidly linked to knowledge of the hush payments. When told the “true” Watergate story by Magruder, he shredded his notes, ostensibly because Mitchell convinced him that the cover-up story was more credible. His attorney, Jacob Stein, has engaged in repetitive and tedious cross-examination that may have elicited jury sympathy for prosecution witnesses.

But Parkinson is in greatest difficulty over a Nov. 14, 1972 memo that Howard Hunt, one of the original defendants, sent to Hunt’s former lawyer, William Bittman, and which Hunt claims Bittman read to Parkinson. Among other things, it baldly stated that all the defendants had received assurances of pardons and support money in return for “maintaining silence.” Bittman, who had repeatedly denied ever seeing such a memo, reluctantly produced a copy one day after his former law partners advised him that they would reveal its existence to the prosecutors. That vindicated Hunt’s testimony and makes Bittman’s continued denial of having relayed the information to Parkinson highly suspect. Moreover, it places Bittman in danger of facing criminal charges too.

All the defendants still seem to be clinging to one basic common contention: that they believed the payments to the burglars were solely meant to meet defense costs and family support but not to buy their silence. Judge Sirica, who seems to have more forcefully taken control of his courtroom since an appeals court termed his conduct of Liddy’s 1973 trial “in the highest tradition of his office as a federal judge,” made it clear that he does not believe this version. With the jury out of the room, he admonished Kalmbach: “You knew . . . that this money was being used to hush up these people who had been arrested.” Kalmbach insisted that he had not. After listening to the Nixon tapes, it seems inconceivable that the jury could miss the real intent of the payments.