Mary Desmond | Staff Writer
“Joan told us that we had to say something religious during this talk, (since we’re speaking on) tapes uncovering wrongdoing and all that: Luke 12:3 ‘Therefore whatever you have said in the dark side shall be heard in the light, and what you whispered in private rooms shall be proclaimed on the housetops,” said James Robenalt, a partner at Thompson Hine LLP, during the 2 p.m. Interfaith Lecture.
On Thursday, in a continuation of the Week Nine Department of Religion theme, “The Ethics of Presidential Power,” Robenalt spoke with John W. Dean, former counsel to President Richard Nixon during the Watergate scandal, to present a lecture titled “The Ethics of Clarity: Waking Up From Wrongdoing.”
This year is the 40th anniversary of Watergate, and the two men have been delivering their lecture as a continuing legal education class. The impetus for the program is to “draw from the mistakes we made during Watergate that might help other lawyers today from making the same mistakes,” Dean said.
Robenalt and Dean began their lecture with a chronology of the events that transpired leading up to Dean’s realization of the criminality of his involvement and the infamous “Cancer on the Presidency” speech.
Dean graduated with a law degree from Georgetown in 1965. Five years later, when he was 31, he became White House counsel.
“Then in ’72, two years later, this poor young White House counselor will find himself in the middle of the greatest scandal in the presidency,” Robenalt said.
In June 1972, the Watergate Hotel break-in occurred; by October 1973, Dean was pleading guilty for obstruction of justice.
“June 17 the break-in, of course, started it all; it was actually the second break-in — they managed not to get arrested the first time,” Dean said.
During the second break-in, the five men contracted to do the job made countless errors. The guard on duty noticed something was amiss and called the police. When the police arrived, they discovered an unlikely group.
“They had business suits on, they had rubber gloves on, and they had $100 bills in their pockets,” Robenalt said.
“Not your normal burglars,” Dean added.
By Aug. 29, 1972, little more had been discovered about Watergate, but the press asked Nixon why he had not appointed a special prosecutor to investigate the Watergate case, to which Nixon responded: “ ‘Well, there’s really no need. There are several committees of Congress investigating Watergate, the FBI is investigating Watergate, the General Accounting Office is investigating Watergate,’ he said, ‘most importantly, my counsel, John Dean, has conducted an investigation and found nobody presently employed in this administration has anything to do with it whatsoever,’ ” Dean said.
“This was the first I heard of my investigation, when it was announced,” Dean said.
In the November election of that year, Nixon won in a landslide.
“Despite Watergate and everybody knowing about it, they had contained it,” Robenalt said.
Things begin to heat up when Nixon began to reorganize the executive branch in a way so as to strip Congress of power. He sought to create a “supers staff” that oversaw the actions of congressional committees, thus making the political value of congressional committee heads void.
“He told the Congress in short, ‘I just don’t need you. I’m going to reorganize the executive branch as I see fit,’ ” Dean said.
That move created a hostile environment, which required the attention of Nixon’s chief of staff, Bob Haldeman, and counsel assistant to the president for domestic affairs John Ehrlichman. With those two key figures occupied, Dean was elevated to working more closely with Nixon during February 1973, Robenalt said.
The first Watergate trial — of the five men who were caught in the building, along with Howard Hunt and G. Gordon Liddy, the organizers and engineers of the break-in — was being held the same month.
At that same time, Hunt was getting anxious for funds and assistance he expected to receive. He had a lawyer from the re-election committee visit Dean’s office and demand $120,000. Hunt threatened to reveal further information he had about White House misdeeds and tapings if the money was not furnished.
“At this point, I knew we were in trouble. I knew we were on the wrong side of the law,” Dean said.
It was also in February 1973 that the Senate voted unanimously to conduct an investigation about Watergate. Dean knew that type of investigation would jeopardize many close to the administration and cause many people to commit perjury, he said.
As those separate issues conflated to a burgeoning crisis, Dean met regularly with Nixon. He said he met with him approximately 18 times about Watergate.
“I was never sure exactly what he did and did not know. Today, going through from beginning to end, the tapes, I know how much more he knew then he was letting on to me in our conversations,” Dean said.
On March 21, Nixon and Dean discussed the situation, and Dean warned Nixon that the cover-up was a growing cancer on the presidency. On April 30, Dean, Haldeman and Ehrlichman resigned, Robenalt said.
On June 25, Dean testified in front of the Senate committee. His testimony was broadcast on all three networks, and more than 80 million people heard it. While doing research for the project, Dean and Robenalt discovered that John Lennon and Yoko Ono were in attendance.
“I said, I’ve never been to hear him sing, he did come to hear me sing,” Dean said.
“But here’s what’s really critical,” Robenalt said. “John, as a throwaway, puts in a line, a little segment, on the fact that he thought he was being taped in one meeting he had with Nixon.”
“I thought, ‘Well, people will figure no one is going to perjure themselves if they believe there is a recording of at least one, if not more of those conversations,” Dean said.
The Senate investigators held on to that bit of information, and in a July interview, Alexander Butterfield, a former White House assistant, affirmed that the tapes existed.
“The fight for the tapes goes through 1973, all the way through 1974, and this is the reason for the Saturday Night Massacre,” Robenalt said.
When the tapes were recovered, the “Smoking Gun” tape, in which Nixon is heard agreeing to having the CIA call off the FBI’s investigation, immediately resulted in Nixon’s resignation, Robenalt said.
“Scholars will tell you, there are two tapes that are important: the ‘Smoking Gun’ tape, that John was not involved in, and the ‘Cancer on the Presidency’ tape.” Robenalt said.
The lecture’s theme, the ethics of clarity, stems from the actions and story of Dean during the Watergate scandal, Robenalt said.
“You’re not going to learn a thing from someone that’s a deliberate wrongdoer — someone who means to do wrong and has bad intentions from the beginning — you’re not going to learn much,” Robenalt said. “What you do learn is from people who are good people who slip into things, without recognizing because of all these cognitive processes that are going on.”
Dean is an example of a person who did not realize they had crossed the line until the line was far in the distance. Dean and Robenalt played a clip of conversation between Charles Colson, a special counsel to Nixon, and Hunt. Dean said that when he heard the tape, there was no doubt in his mind they were involved in a criminal cover-up. On the tape, Hunt says that promises made to him had not been kept, and financial expenses were not being covered as they should have been.
In the recording, Hunt said, “Well, we get fourth-hand reassurances, yet the ready is not available.”
“Ready” refers to money.
“What’s going on here is John has this moment of recognition, he knows they’ve been paying these guys to keep them quiet,” Robenalt said.
Dean and Robenalt also played a clip from the “Cancer on the Presidency” tape, recorded on March 21, 1973. At that time, Dean understood the illegality and risk of the cover-up; he knew the Senate was launching an investigation, and Hunt’s lawyer had already visited him requesting more hush money.
In the “Cancer on the Presidency” segment, Dean can be heard saying to Nixon: “I think that there’s no doubt about the seriousness of the problem we’ve got. We have a cancer within — close to the presidency — that’s growing. It’s growing daily. It’s compounding. It grows geometrically now, because it compounds itself. That’ll be clear as I explain, you know, some of the details of why it is, and it basically is because one, we’re being blackmailed; two, people are going to start perjuring themselves very quickly that have not had to perjure themselves to protect other people and the like. And there’s no assurance that that won’t bust.”
Dean explains to Nixon all of the issues they are facing, the fact that so many people know what is going on and that they cannot raise enough funds. In another clip Dean and Robenalt played for the audience, Dean can be heard telling Nixon it would cost up to $1 million to solve the problems, and Nixon responds that the money could be found somewhere.
“He starts considering maybe I am raising a point. He will later, in writing his memoir, say that I’m the only person that warned him that he had a problem,” Dean said.
In the next segment of audio tape, Nixon can be heard tapping his fingers against his desk. Dean said that he and Robenalt had spoken with body language experts and discovered that action means a person is indecisive or frustrated.
“This is the climax of the movie. This is where John says, ‘Look, we can end this by full disclosure, all of us will go to a new grand jury, we’ll all testify in front of that grand jury and you’ll move on.’ And Nixon considers it, you hear the dut-da-dut-dut with his fingers,” Robenalt said.
Later on, when Dean told Nixon a new grand jury could result in jail time for some people, Nixon reverted to the original plan of paying hush money and continuing the obstruction of justice.
“That will send John up to Camp David to write his report — he can not write his report — he decides to get a lawyer, he goes to the prosecutors, and the rest, as they say, is history,” Robenalt said.
The ethical question raised by the story is why Dean stood up when no one else did.
In author Daniel Kahneman’s book Thinking, Fast and Slow, Kahneman posits the idea of the “prospect theory,” which argues that people hate losing more than they like winning by a factor of 2 to 3 or 3 to 4.
“What prospect theory said is that if you’ve got a decision between two gains, that is I’m going to give you a sure $10, or a 1/10 chance of $20, it’s two gains, your decision; you’re pretty rational about how you act,” Robenalt said.
“On the other hand, if you’re given the choice between two losses, you are going to lose $10, or you have a 1 in 2 chance of losing $20, you will act irrationally — you will take the gamble.”
People will act irrationally in situations where they are going to lose either way. Nixon exemplifies someone in a loss frame of mind, Robenalt said. Nixon was aware that he had the incriminating tapes, he knew the investigation was only becoming more intense, but he gambled that the tapes would never be requested or the public would lose interest in Watergate.
Dean said the best way to extract oneself from a losing frame is to seek assistance from a third party that is detached from that mindset. In his case, it meant consulting with his own lawyer.
“The lesson truly is cut your losses, don’t double down. It doesn’t work,” Dean said.