Kutler, Nixon, And The Ellsberg Break-In

Chuck Colson (right) with President Nixon and John O'Neill

In the wake of Sunday's New York Times article, critics and defenders of historian Stanley Kutler (below) have focused on his transcripts of Watergate conversations from March 1973. His 1997 book, Abuse of Power, also included an apparent attempt to edit a transcript to make it appear that by June 1972, the month of the Watergate break-in, President Nixon had become aware of the White House Plumbers' September 1971 break-in at the Los Angeles office of Daniel Ellsberg's psychiatrist, Lewis Fielding.

Mr. Nixon always maintained that he didn't learn about the Ellsberg caper until the spring of 1973. If he'd known about it during the first days and weeks of the Watergate coverup, it would put his statements and actions in a much darker light.

Nixon critics have been understandably eager to find evidence that he knew in advance about either break-in as well as that he was was mindful of the Plumbers' illegal activity as the Watergate coverup got underway in June 1972. Rick Perlstein joined the counterfeit smoking gun club with 2008's Nixonland when he misconstrued the meaning of a secondary source to make the President look guilty of foreknowledge of an illegal burglary.

Kutler's sleight of hand occurs in his transcript of a July 19, 1972 conversation between the President and political aide Chuck Colson. In an editor's setup, Kutler wrote:

Colson is full of praise for his friend [E. Howard Hunt, arrested at the Watergate], knowing that he had broken into Ellsberg's psychiatrist's office. "They weren't stealing anything,' Colson rationalized. 'They had broken and entered with an intent not to steal, [only] with an intent to obtain information."

Having gotten the reader thinking about the Ellsberg break-in, Kutler alters the rest of the conversation to remove any explicit reference to its real subject, the June 1972 break-in. His transcript begins with the President and Colson discussing Hunt's background and effort to compile a reliable psychological profile of Ellsberg. They ponder whether this entirely legal work might be drawn into the Watergate investigation. According to Kutler, the conversation proceeds as follows:

President Nixon: You've got to say that's irrelevant in a criminal case.

Colson: It clearly will be irrelevant in the civil case, because it had nothing to do with the invasion of privacy. I'm not sure in a criminal case whether it is a sign that will be relevant or not. Of course, before a grand jury there's no relevance...

They weren't stealing anything. Really, they trespassed. They had broken and entered with an intent not to steal, with an intent to obtain information.

The conversation has just jumped from Ellsberg to the Watergate break-in. Bet you didn't notice. Kutler has invited those who question his transcripts to go to the National Archives and listen themselves. Back in 1998, we did. Here's what the tape really says. Pay special attention to what Colson and the President say after Kutler's ellipses:

President Nixon: You've got to say that it's irrelevant in a criminal [unintelligible].

Colson: Clearly-- the civil case has to do with the invasion of privacy, for information. I'm not sure in the criminal case whether these assignments [for the Plumbers] will be criminal [Kutler has "relevant"; tape is unclear] or not. Of course, before a grand jury, those would be irrelevant. I wouldn't worry about it.

President Nixon: It's none of his [the prosecutor's] damn business.

Colson: He knows it has nothing to do with Watergate. [Pause] Magruder obviously would-- [12-second deletion for personal privacy]. They weren't stealing. Really, they trespassed.

This transcript of a small portion of a conversation reveals three things about Abuse of Power.

First, Kutler's transcripts are sloppy -- "it is a sign" instead of "these assignments," for instance. In the settlement we negotiated of his successful lawsuit against the National Archives to free up this cache of tapes, he won a few months of exclusive access to them. He brought in court reporters and rushed his book out, but he didn't have to do it that way. If he had taken his time and published accurate, complete transcripts, he might not be under fire today.

Second, it does appear that Kutler wanted his readers to conclude that when President Nixon was talking to Colson, he already knew about the illegal Fielding break-in in September 1971. One indication is his deletion of the reference to Jeb Magruder, who was centrally involved with the June 1972 break-in but had nothing to do with the Fielding adventure. Also questionable is Kutler's decision to skip a response by the President in order to elide two of Colson's comments.

Kutler himself lent credence to the appearance that he manipulated the record. When I first wrote about Abuse of Power in the March 1998 issue of the "American Spectator," a reporter from the Orange County Register, a seasoned pro named Ann Pepper, called Kutler and asked him what he thought about my charge that he was misleading readers about the timing of RN's knowledge of the Fielding job. Kutler couldn't have been more definitive in his own defense:

Richard Nixon knew, and the tapes I discuss in my book prove it. If (Taylor) wants to say Richard Nixon never said (expletive) or called the Jews (derogatory names), he's a liar. There is always a possibility for error, but I never changed the transcripts intentionally and I didn't do it at all as far as I know. At this point, to say that Richard Nixon didn't do these things is ludicrous.

Still, when the paperback edition of Abuse of Power came out, Kutler made a telling change in his setup of the July 19 conversation. It now reads,

"They weren't stealing anything," Colson rationalized the Watergate break-in [emphasis added by me; phrase added by Kutler]

If I had a hand in that, I didn't get a footnote -- just an e-knuckle sandwich from our brawler of a scholar Stanley, who said on an historians' blog in 2005:

[I]n a scarcely-noted review of my book in an obscure right-wing magazine, Taylor accused me of distorting and inventing tapes. For himself, he managed to find things in the tapes that just were not there, anxious as he was to fulfill Nixon’s constant refrain that the tapes would exonerate him.

The third and perhaps biggest problem with Kutler's amended account of this moment in history is that it obscures the conversation's essentially exculpatory nature. Remember that the conventional wisdom is that President Nixon acquiesced in the John Dean-approved plan for limiting the Watergate investigation to keep the FBI and prosecutors from learning about the the Plumbers' other illegal activity. And yet here are two lawyers talking desultorily about Hunt's situation. Is this what they'd say if they were afraid the public was about to learn about the White House horrors? There's no talk of covering up, no reference to hush money, and no suggestion of guilt -- just Messrs. Nixon and Colson agreeing that Hunt's prior work had nothing to do with Watergate.

All along, President Nixon's Watergate defense was based on national security, specifically his rock-ribbed belief that the Plumbers' legitimate work investigating Pentagon Papers leaker Daniel Ellsberg during wartime shouldn't be drawn into the investigation of the purely political Watergate break-in. Though he doesn't call special attention to them, Kutler's book contains many conversations from the second half of 1972 in which the President makes the national security vs. Watergate distinction and urges aides to own up about involvement in illegal political activity.

Fred Graboske and his team of tape reviewers at the Nixon Project at the National Archives deserve great credit for identifying tape segments that would help as well as hurt RN. Kutler deserves credit for including some of the helpful conversations in his book. Of course in another of Kutler's spin-zone editor's notes about another exculpatory conversation in which RN says, on October 16, 1972, that he doesn't want Dwight Chapin and others to lie about Watergate, Kutler just accuses President Nixon of speaking for the tape recorder to make himself look good later.

Since Sunday's article, it's been all about Kutler, his friends, and his detractors. Better when the tapes themselves speak. All hail young Luke Nichter at nixontapes.org, for going where no scholar or government agency has gone before in making these peerless records available to the public.