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Executive Session

MONDAY, JULY 22, 1974


Washington, D.C. The committee met, pursuant to recess, at 5:05 p.m., in room 2141, Rayburn House Office Building, Hon. Peter W. Rodino, Jr. (chairman) presiding.

Present: Representatives Rodino (presiding), Donohue, Brooks, Kastenmeier, Edwards, Hungate, Conyers, Eilberg, Waldie, Flowers, Mann, Sarbanes, Seiberling, Danielson, Drinan, Rangel, Jordan, Thornton, Holtzman, Owens, Mezvinsky, McClory, Smith, Sandman, Railsback, Wiggins, Dennis, Fish, Mayne, Hogan, Butler, Cohen, Lott, Froehlich, Moorhead, Maraziti, and Latta.

Impeachment inquiry staff present: John Doar, special counsel; Samuel Garrison III, special counsel to the minority; Albert E. Jenner, Jr., senior associate special counsel; Richard Cates, senior associate special counsel; Bernard W. Nussbaum, senior associate special counsel; Evan A. Davis, counsel; Richard H. Gill, counsel; Edward S. Szukelewicz, counsel, Ben A. Wallis, Jr., counsel.

Committee staff present : Jerome M. Zeifman, general counsel; Garner J. Cline, associate general counsel; William P. Dixon, counsel; Michael W. Blommer, associate counsel; and Franklin G. Polk, associate counsel.

The CHAIRMAN. The committee will please come to order.
Mr. Garrison will be recognized. Mr. Garrison.

Mr. GARRISON. Thank you, Mr. Chairman, ladies and gentlemen of the committee.

When we recessed the hearing at noontime, I had been discussing the question of the President's statements during his conversation with John Dean on the morning of March 21, in terms of whether what the President said that morning can reasonably be construed and found by you as a fact to constitute his joining the conspiracy. Words are capable of being overt acts or conduct sufficient to satisfy the legal requirement of affirmative action, when accompanied by the requisite intent and knowledge. I think that I have discussed the question of what "knowledge would mean, in the context of a matter being brought to the President's attention with some possibility of doubt in his mind as to the accuracy of all or part of what he was being told.

I would like to focus now, though, on the question of whether the President did manifest approval or acquiescence in the making of the March 21 payment. I distinguish this point from the one I made previously, which was whether the President actually authorized and directed the payment to be made. I am satisfied that, as a matter of law, if the President knew that the payment was going to be made. and knew its purpose, and if its purpose was to serve as what we commonly call "hush money,” and if he, upon knowing and understanding it, then acquiesced in the payment going forward, a reasonable legal argument can be made that because of his position as Chief Executive vis-a-vis Government officials, or perhaps even simply as an employer vis-a-vis employees, he was in a position and had a duty to stop the payment from being made and, therefore, could be held criminally liable for failing to do so.

However, as a question of fact, I would suggest to you that it is far from clear that the President actually did acquiesce in the payment of money to Howard Hunt which apparently occurred some time later that day. And I would suggest for your consideration that, in determining what the state of the matter was at the conclusion of the conversation, it is relevant to consider not only what the transcript itself shows, but also what the apparent impression or understanding of the participants in the conversation was after the conversation ended.

Now for purposes of examining the transcript itself, first I would cite you to page 121 of our

publication: "Transcripts of Eight Recorded Presidential Conversations", and at the bottom of that page I would suggest that you focus your attention on the word "it" in the sentence, “Well for Christ's sakes get it in a, in a way that, uh--who's, who's going to talk to him?"

My reason for doing so is that I think it is a reasonable interpretation of the evidence that the antecedent of the word "it" is "signal" which appears a few lines up. Mr. Dean says, “I think he ought to be given some signal, anyway, to, to

DEAN. Yeah, you know.
The PRESIDENT. Well, for Christ's sakes get it

Now, there is obviously another possible interpretation of that very same language, which would be that the antecedent is the words "hundred and twenty or whatever it is," several lines up where the President says, “That's why your, for your immediately thing, you've got no choice with Hunt but the hundred and twenty or whatever it is."

I point this out because in determining as a question of fact whether, all things considered, the President associated himself with the conspiracy,

you may consider it relevant to know whether the President meant to get Hunt a "signal,” as a holding action, or whether he meant to get him the money. It's obvious, I think, that the language in this transcript by the President is susceptible to an interpretation that the President considered the possibility of some action being taken on Hunt's demands as a matter of “buying time.”

Mr. RANGEL. Mr. Chairman, point of clarification.

Counsel, tell me what Mr. Dean's response is to the President after the word signal is used.

Mr. GARRISON. His response is, “Well, Colson doesn't have any money though."

Mr. RANGEL. Thank you.

Mr. FLOWERS. What page is that?
Mr. Hogan. Mr. Chairman, I thought he was not to be interrupted.

Mr. RANGEL. I didn't understand whether I was using the same ranscript.

Mr. GARRISON. Mr. Chairman, I have no objection at all to being interrupted for questions like that, because that gives me the opporunity, for example, to point out the word "though.” The word though" seems to suggest a consideration in addition to money: you may get Mr. Colson to talk with him, but Colson doesn't have iny money.

Mr. RANGEL. That clears it up. Thank you. Mr. GARRISON. I would point out to the committee that on page 125 of the "Transcripts of Eight Recorded Presidential Conversations," 1 little below the middle of the page, the President says:

*That's right. Try to look around the track. We have no choice on Hunt but o try to keep him

Mr. Dean. Right now, we have no choice.
The PRESIDENT. But, my point is, do you ever have any choice on Hunt?
That's the point.

DEAN. (Sighs.]
The PRESIDENT. No matter what we do here now, John-
DEAN. Well, if we-

The PRESIDENT. Hunt eventually, if he isn't going to get commuted and so forth, he's going to blow the whistle.

I believe the members of the committee will find evidence in the ranscript from which they may infer that the President had rejected he granting of clemency as a realistic option, for whatever motive. If that is the case, the passage to which I have directed your attention would indicate that the President at this moment is stating that, since he indispensable prerequisite for keeping Hunt silent is incapable of being met, the entire effort to keep Hunt silent is necessarily doomed.

I would further direct your attention to page 129, to the very last paragraph of that page near the end of this conversation, where the President says, “All right. Fine. And uh, my point is that, uh, we an, uh, you may well come-I think it is good, frankly, to consider these various options. And then, once you, once you decide on the plan--" and so forth. I direct to your attention this language because, n light of the previous portion of the transcript that I pointed out, t supplies additional evidence of the possibility that the President nad not made a decision with respect to what he was going to do it all, and it would seem that at this point in the transcript, had the President himself understood that what he had said would result in Howard Hunt's being paid, he may have referred to the state of the natter at that time differently.

I would also say to the members of the committee, in all fairness, hat I do not in any way suggest that the only way in which the Presilent could have by language associated himself with the conspiracy hat morning would be by reference to money. The question would be whether he in any way manifested, through his words, knowledge and ntent to participate, but the reason for my focusing upon the question of money is obvious, since a payment was in fact subsequently made, und there has been a great deal of controversy within the committee over whether he approved it, on the one hand, or acquiesced in it, on he other. And I would suggest that the language from the transcript itself indicates that the President may not even have acquiesced in the payment being made.

Now, turning to the question of impressions formed by participants in the conversation, of course what they said during the conversation is relevant. But, at this point, what was said after the conversation also becomes relevant.

Evidence bearing upon this question is found at pages 1032 to 1034 of the GPO edition of the edited White House transcripts. This is a conversation, and I am now at page 1032 of the big blue book, the GPO edition of the edited White House transcripts.

The CHAIRMAN. What conversation is that, Mr. Garrison !

Mr. GARRISON. This is a conversation that took place on the afternoon of April 17, 1973, in a meeting among the President, Mr. Haldeman, Mr. Ehrlichman and Mr. Ziegler.

The CHAIRMAN. Is that not one of the conversations that we requested and subpenaed?

Mr. GARRISON. It is, Mr. Chairman. At page 1032:

HALDEMAN. Told you about it, told me about it. I was in here when he told you.

PRESIDENT. Good. What did we say ? Remember he said, "How much it is going to cost to keep these, these guys" (unintelligible). I just shook my head. Then we got into the question,

HALDEMAN. If there's blackmail here, then we're into a thing that's just ridiculous.

The PRESIDENT. He raised the pointHALDEMAN. (Unintelligible) but you can't say it's a million dollars. It may be $10 million. And that we ought not to be in this

The PRESIDENT. That's right. That's right.

HALDEMAN. We left it-that-we can't do anything about it anyway. We don't have any money, and it isn't a question to be directed here. This is some thing relates to Mitchell's problem. Ehrlichman has no problem with this thing with Hunt. And Ehrlichman said, “(expletive removed) if you're going to get into blackmail, to hell with it."

The PRESIDENT. Good (unintelligible). Thank God you were in there when it happened. But you remember the conversation?

HALDEMAN. Yes, sir.
The PRESIDENT. I didn't tell him to go get the money did I?
The PRESIDENT. You didn't either did you?

HALDEMAN. Absolutely not. I said you got to talk to Mitchell. This is some thing you've got to work out with Mitchell, not here there's nothing we can do about it here.

Likewise, on page 1034: HALDEMAN. You explored in that conversation the possibility of whether such kinds of money could be raised. You said, "Well, we ought to be able to raise"

The PRESIDENT. That's right.

HALDEMAN. "How much money is involved ?" and he said, "Well it could be a million dollars". You said, “That's ridiculous. You can't say a million. Maybe you say a million, it may be 2 or 10, and 11".

The PRESIDENT. But then we got into the blackmail.

HALDEMAN. You said, "Once you start down the path with blackmall it's constant escalation".

The PRESIDENT. Yep. That's my only conversation with regard to that.

HALDEMAN. They could jump and then say, "Yes, well that was morally wrong. What you should have said is that blackmail is wrong not that it's too costiy."

Now, I realize that there is a possibility-although I would suggest that essentially it would be speculation rather than something that is actually proved by the evidence-a possibility that the President, in conversations subsequent to the 21st of March, rehearsed with people accounts of what had previously been said. I want to be clearly understood on this: I am suggesting merely a possibility. I do not say the evidence clearly shows this, but I want for the moment just to assume that the President was rehearsing and was talking, so to speak, "for the record," and I would suggest to you that if that were the case, and if the President were aware that he had in fact left an impression with Dean that he felt the money should be paid, it would be the most natural thing for the President to "make his record” by explaining away why he had appeared to acquiesce.

On page 1034 of the GPO transcripts, where the President and Mr. Haldeman appear to agree that the President probably had made a mistake in suggesting by his language on the 21st only that "hush money” would cost too much. They agreed that the President should have said it was wrong to raise money to pay defendants to remain silent.

Now, I think that may be considered to have significance in this respect: once again, it is susceptible of an interpretation that the recollection that the President and Mr. Haldeman had of the March 21 conversation which bothered them and which, if they were speaking “for the record” on April 17, they would feel an impulse to correct or explain away, appears to be a recollection of the President's having given the wrong reason for disapproving, and not a recollection of his having approved the payment to Hunt.

If the President and Mr. Haldeman were indeed “making a record,” and if they were

in that process trying to explain away the damaging things that the President felt he had said, then they certainly didn't cover the subject well if they felt that the really damaging thing was that the President had approved the payment or acquiesced in it. I think the committee is entitled to make a distinction between approval or failing to give the right reason for disapproval, and the committee can give that difference

such weight as it sees fit. You should consider also the possibility that the President and Mr. Haldeman were not making a record.” If they were not "making a record,” which is, of course, possible since the existence of a White House tape recording system was not widely known at that time and may very well have not been anticipated to be known in the future, then, of course, what I have said would still apply, but with greater force because then their motives would be less suspect, and the recollections that they appear to have had could be considered as more probably genuine.

Next I would like to cite you to essentially the entire testimony of John Dean before the Senate Select Committee in June of 1973. T'his was 3 months after the March 21 conversation, rather than 15 months afterward, which was the case when Mr. Dean testified before this committee recently.

Mr. Dean told the Senate Select Committee, I think you will agree, in essence that it was the Hunt demand which precipitated his going to the President to tell him all, that the thing in effect had just gotten out of hand, that he couldn't wait any longer.

He and Mr. Moore talked about it, you will recall, on the 20th-there is some discrepancy as to who suggested to whom that Dean tell the President all but, in any event, clearly it was the Hunt demand that precipitated Mr. Dean's

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