Nixons FBI: Hoover, Watergate, and a Bureau in Crisis 9781626379206

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Nixon’s FBI

NIXON’S

FBI Hoover, Watergate, and a Bureau in Crisis

Melissa Graves

b o u l d e r l o n d o n

Published in the United States of America in 2020 by Lynne Rienner Publishers, Inc. 1800 30th Street, Suite 314, Boulder, Colorado 80301 www.rienner.com

and in the United Kingdom by Lynne Rienner Publishers, Inc. Gray’s Inn House, 127 Clerkenwell Road, London EC1 5DB

© 2020 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Names: Graves, Melissa, author. Title: Nixon’s FBI : Hoover, Watergate, and a bureau in crisis / Melissa Graves. Description: Boulder, Colorado : Lynne Rienner Publishers, Inc., 2020. | Includes bibliographical references and index. | Summary: “Takes us back to the time of the Watergate scandal to shed light on how it is possible that the FBI can be tasked with investigating the president it serves”— Provided by publisher. Identifiers: LCCN 2020014993 (print) | LCCN 2020014994 (ebook) | ISBN 9781626379176 (hardcover) | ISBN 9781626379206 (ebook) Subjects: LCSH: United States. Federal Bureau of Investigation—History—20th century. | Watergate Affair, 1972–1974. | Nixon, Richard M. (Richard Milhous), 1913–1994. | Hoover, J. Edgar (John Edgar), 1895–1972. Classification: LCC HV8144.F43 G698 2020 (print) | LCC HV8144.F43 (ebook) | DDC 363.250973/09047—dc23 LC record available at https://lccn.loc.gov/2020014993 LC ebook record available at https://lccn.loc.gov/2020014994 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America

The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992.

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Contents

Acknowledgments

vii

2 Hoover’s Sabotage and Nixon’s Plumbers

11

1 The FBI and the US Presidency

3 Protecting the Bureau’s Jurisdiction 4 The Bureau Under Scrutiny 5 Hoover’s Final Days

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49

75

103

6 Nixon’s New Acting Director

127

7 The Watergate Investigation

161

Bibliography Index About the Book

227 239 247

8 The Past Informs the Present

209

v

Acknowledgments

John Elliff served as the launching point for this project. I had the good fortune to find his name in Loch Johnson’s A Season of Inquiry, a book about the Church Committee. I sent an email, asking if he might have papers I could review. He responded enthusiastically and invited me to visit him at his home in Virginia, where he and his wife, Linda, offered much support as I parsed through his life’s papers. His influence on my understanding of the FBI is indelible. In the process of writing this book, John died, and I’m deeply grateful for the opportunity I had to learn from him. Archivists and fellow scholars were essential in my hunt for historical sources. Megan Lee and the staff at the Richard Nixon Presidential Library and Museum helped me identify files. The Jimmy Carter Presidential Library and Museum archivists uncovered an array of sources that reflect the political climate in the late 1970s. The Society of Former Special Agents of the FBI allowed me to solicit members for oral histories. Christopher Pyle provided insight to help me understand the military’s influence on FBI surveillance. I’m grateful to John Fox, FBI historian, for patiently answering many emails to help me locate declassified Bureau sources. In the earliest stages of my research, Jan Goldman graciously toured me around DC’s many intelligence archives as well as the FBI Academy at Quantico, where I first saw J. Edgar Hoover’s office furniture and personal library with my own eyes. The staff at Lynne Rienner Publishers believed in this project from the very beginning. My editor, Marie-Claire Antoine, provided cheerful, vii

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prompt feedback and prodigious attention to my writing. Several anonymous reviewers offered a close reading and helpful comments. Jen Kelland and Allie Schellong reviewed the manuscript with great attention to detail. Collectively, their work made this book better than anything I could have written on my own; any remaining mistakes are mine. The Citadel: The Military College of South Carolina provided great support for my writing and research. In addition to summer grant funding, the dean of the School of Humanities and Social Sciences, Bo Moore, generously provided resources to host a panel comprised of former FBI agents who worked the Watergate case. My department chair, former FBI agent Carl Jensen, served as a mentor for the past twelve years and greatly influenced my decision to research the FBI. I am forever grateful to have worked at the University of Mississippi’s Center for Intelligence and Security Studies; it set me on the path to research the intelligence community. To the many students I have taught who now work in the intelligence community and at the FBI—your tenacity and service inspire me. Ted Ownby nurtured this work in its nascent form. Charles Wilson, Darren Grem, and Matthew Hall served as readers and provided valuable feedback. When my research hit a stalemate, I sent an email to former FBI special agent John Mindermann after listening to his interview on a podcast. He agreed to share his experience working the Watergate case and made the chapter in this book about the FBI’s Watergate investigation possible. He connected me with four former agents, each of whom played pivotal roles in the Bureau’s case: Angelo Lano, Daniel Mahan, Paul Magallanes, and John Clynick. Each agent dug deep into the past to recall the events that led to Richard Nixon’s resignation. I had the good privilege to meet them all in person at the panel hosted by The Citadel in February 2020, and in doing so I met my personal heroes. I will be forever grateful that they entrusted me with their stories. I thank my family for providing enormous support while I completed this book. My parents, Andy and Nita Minshew, and in-laws, Jerel and Carolyn Graves, supplied encouragement and childcare so that I could travel cross-country for interviews and conference presentations. As I worked, one of my brothers was sworn in as a special agent for the FBI, providing me with a unique glimpse into the world of a new agent. Finally, I never would have been able to complete this project without the support of my husband, Matthew. Two of our children, Nora and Rosalie, were born during the writing of the book, and as I type these words, a third daughter will arrive in late summer. I’m forever grateful to my family for being the richest and best part of my life.

1 The FBI and the US Presidency

FBI Special Agent Angelo Lano awoke to the sound of the telephone on the rainy morning of Saturday, June 17, 1972. His supervisor, Ernie Belter, was on the other end, ordering him into the office immediately. The interruption would require no more than a couple hours’ attention, he assured Lano. The FBI had just learned from the DC Metropolitan Police Department about a burglary that had taken place overnight in the Democratic National Committee (DNC) headquarters, located at the Watergate office complex. Belter wanted Lano to determine what had happened and report back to him. As members of the FBI’s Criminal 2 (C-2) Squad, Lano and his fellow agents received the odds and ends of the criminal world in Washington, DC, handling “miscellaneous” crimes, including theft of interstate property. Responding to a midnight burglary inside the DNC headquarters was simply par for the course. When Lano arrived at the police station around 9 a.m., an officer led him to a holding cell, where he found five burglars sequestered and silent. They had been in police custody since 2:30 a.m., carried no identification, and refused to say anything beyond repeating the aliases they had provided to the police. Lano inspected a duffle bag recovered at the site of the burglary. Inside, he found fifty rolls of 35mm film, two expensive cameras, and some hard items wrapped carefully in tissue paper and buried at the bottom. Lano peeled away the paper to uncover listening devices. By all appearances, it seemed they 1

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had an interception-of-communication case on their hands, a surveillance job gone wrong. The FBI quickly identified the devices as wiretapping equipment. At the time of their arrest, two of the burglars possessed keys to the Watergate Hotel. By midday, police had obtained search warrants for their rooms. Lano accompanied the police to the hotel. He entered one of the rooms to find the door to the outside balcony open, the curtains fluttering in the wind. The bed was covered with wallets, dollar bills, the burglars’ identification cards, and an antenna, all meticulously arranged. There were a couple of address books, filled with contacts. Two agents searching a dresser found an envelope addressed to a country club, with a return address of “E. Howard Hunt.” The information found at the hotel, along with the police’s fingerprinting of the five burglars, allowed Lano and the police to identify the detainees. They discovered that the Central Intelligence Agency (CIA) had fingerprint records for four of them. One of the burglars, James McCord, was a former FBI agent. E. Howard Hunt turned out to have been a longtime CIA officer who oversaw the agency’s botched Bay of Pigs operation into Cuba in 1961. Lano began to surmise that he had stumbled into a bungled CIA operation. One detail, however, caught his attention. During the background investigation into Hunt, the FBI discovered that he had an office in the White House. A couple of phone calls confirmed that Hunt worked as a consultant for Charles Colson, special counsel to President Richard Nixon. What began as a routine, albeit strange, burglary morphed quickly into a scandal at the highest echelons of the federal government and the White House. By the time Lano made it home that evening around midnight, it was clear that his inquiry into the burglary would last far longer than the “couple hours” his supervisor originally promised. Two years later, after thousands of hours of FBI investigation, the appointment of two special prosecutors, a Supreme Court decision, and the release to the public of his taped White House Oval Office conversations, Nixon resigned the office of the presidency in disgrace amid impeachment proceedings resulting from his cover-up of the Watergate break-in.

The FBI and the Executive Branch Under Nixon

Long before Nixon’s aspiration to become president, he hoped to become an FBI special agent. Freshly graduated from Duke University Law School in 1937, Richard Milhous Nixon submitted an application

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for employment to the Bureau.1 Months later, after he had passed a rigorous background check and physical examination, the Bureau rejected his application without explanation. Nixon shifted his plans and began his career as an attorney in California, after which he transitioned into government work as a congressman. In 1954, while serving as Dwight Eisenhower’s vice president, Nixon asked his good friend and FBI Director J. Edgar Hoover why his application to the Bureau had been rejected all those years ago. After a bit of digging, Hoover discovered that he had actually selected Nixon as a candidate for special agent.2 His candidacy was rejected by Hoover’s second-in-command at the time, Associate Director Clyde Tolson, who became impatient with the young applicant after he tried to delay entry into the Bureau in order to study for the California bar exam.3 Nixon might well have become an FBI agent but for an apparent paperwork mishap. Exactly what did the FBI look like under Richard Nixon? His affinity for the Bureau was obvious during the early days of his presidency; he had a longtime friendship with Hoover, and he trusted that the FBI would direct its investigations in his favor. Nixon, the president most often associated with “law and order,” also had a dysfunctional relationship with the nation’s leading federal law enforcement agency. He demanded that the Bureau enforce law and order in accordance with Americans’ constitutional rights; yet he sometimes waylaid those rights, requesting the investigation and prosecution of political dissidents at all costs. In examining Nixon’s demands upon the Bureau, I delve into Hoover’s final days, his immediate successor’s tenure, and the Bureau’s involvement in Watergate. Watergate literature is dominated by Nixon biographies as well as the media’s role in exposing Nixon’s illegal doings, with much focus on Washington Post reporters Carl Bernstein and Bob Woodward. These histories relegate the FBI’s involvement to a tangential plot point in a narrative that revolves around the president and the media. Though popular myth has it that Woodward and Bernstein uncovered the breadcrumbs of Watergate, the real work happened within the Bureau. At the time of the Watergate investigation, the FBI’s top leaders were awash with ambition. Hoover’s successor, L. Patrick Gray, desperately wanted his term as acting director to lead to his permanent installment as director of the Bureau. Acting Associate Director Mark Felt, Gray’s secondin-command, was not only bitter about being passed over as director but vindictive as well, sitting on leads and reprimanding his agents for displaying too much tenacity, for fear of making Gray appear too competent. Serving as the infamous source “Deep Throat,” he leaked critical

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information produced by the Bureau agents working under him to the Washington Post. His indiscretions continually jeopardized the Watergate investigation. The Bureau’s strength during Watergate resided in the agents of the C-2 Squad. Had they not carried out the day-to-day work of their investigation, the Bureau would never have unraveled Watergate. Equally important was the leadership displayed by a single agent, namely, Lano. As head of the Watergate investigation, Lano insisted repeatedly on getting to the bottom of things, interviewing witnesses at all costs. At multiple points in the investigation, Bureau leadership became greatly irritated with Lano or threatened to fire him for insisting that agents follow leads, wherever they went. What the Bureau leadership lacked in its upper echelons the C-2 Squad more than made up for. Of that group, no one evinced more determination than Lano. Had a different agent led the investigation, one who submitted indiscriminately to the Bureau’s administrative demands and turned a blind eye to its foibles, perhaps Watergate would have ended differently. Looking at the work of agents during the Watergate investigation provides a bottom-up examination of the Bureau and illustrates the extent to which the organization is much more than its upper leadership. The daily work of the FBI is carried out by special agents, and their relationship to FBI Headquarters is oftentimes puzzling. Sure, FBI Headquarters determines the priorities of its organization—which cases will be prosecuted and where to allocate resources. Still, these priorities remain wholly dependent upon the determination and prowess of the agents who conduct the work of the investigation. The relationship between FBI Headquarters and its special agents is symbiotic; neither exists without the other. FBI directors are prominent in both the public sphere as well as Bureau and presidential archival records. To tell a story based solely on the actions of directors, however, is to provide a wholly incomplete picture of the Bureau. To understand the Bureau, one must look at the whole Bureau, top to bottom. Such examination is crucial when attempting to understand the Bureau during Nixon’s presidency, when special agents’ persistence juxtaposed acutely with the Bureau’s timid leadership. For nearly half a century, Hoover captained the Bureau, serving under eight presidents in a directorship that had become legendary even before his death. Hoover wanted the FBI to be the world’s elite law enforcement agency, and he stretched the legal limits of domestic intelligence in his effort to make it so. Over the course of his tenure, Congress and the American public alike became uncomfortable with the immense power that he wielded. Before Hoover’s death, Congress took

The FBI and the US Presidency

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legislative action to ensure that no subsequent director would lead the Bureau for such a long time. In doing so, Congress failed to realize the extent to which the balance between the FBI and the executive branch, between the Bureau director and the president of the United States, had actually reflected the balance of power between Hoover and the presidents under whom he served. A political behemoth, Hoover had held his own against every president, Nixon included. Most modern histories of Hoover look at his many indiscretions. Indeed, he wielded his authority profusely. This book is not an apologetic for Hoover’s behavior. He changed the nature of law enforcement in the United States, building the FBI into a powerful force of G-men who, at times, grossly abused their powers of investigation, trampling US citizens’ constitutional rights in the name of national security. Historians, however, have overlooked how Hoover’s absence, following his death, profoundly affected the Bureau. That his death coincided with Watergate makes the period of the Bureau under Nixon crucial to understanding the relationship of an FBI director to the president. At a time when the nation was beset with daily bombings and hijackings, Nixon worried that the radicals behind these operations posed a threat to his presidency. Though the president wished to use the FBI to pursue subversives, Hoover, in his waning days, refused. In doing so, he suffered the indignation of Nixon, the ridicule of the Department of Justice, and the defiance of his own agents. Hoover ended his tenure on the brink of being fired and reticent to collect any intelligence for anyone. What no one was prepared for, and what Nixon used to his advantage, was the shift in power brought by a new director. By replacing Hoover with a less powerful person who was loyal first and foremost to the president, Nixon shifted the balance of power between the Bureau and the White House entirely in his favor. This happened in the midst of the FBI’s investigation into Watergate and Nixon. But Watergate is only part of the story. Arguably more important about this time is the Bureau’s vulnerability to the president, which Watergate exposed. In this book I argue that the Nixon presidency was a pivotal moment in the Bureau’s history because it laid bare the great extent to which the Bureau had been crafted specifically around Hoover and how vulnerable it would be in his absence. Crucial moments coalesced during the brief years that Hoover served under Nixon, beginning with Nixon’s first term in 1969. Nixon’s presidency caused a crisis within the FBI. Hoover worried that his tenure as director was coming to an involuntary end. Indeed, Nixon was looking for any excuse to be

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Nixon’s FBI

rid of Hoover in order to appoint a director more favorable to his intelligence demands. Had Hoover acquiesced to Nixon’s calls for intelligence, the president would never have needed to create his “Plumbers.” Nixon established the secretive unit to collect intelligence against political enemies only after Hoover refused to do the work for him. Six weeks after Hoover’s death, the Plumbers burgled the Watergate complex in an attempt to procure political intelligence from the DNC headquarters. The FBI began its investigation into the incident under a new and fledgling acting director. L. Patrick Gray had no law enforcement experience, but he was devoted to the Nixon administration, placing the Bureau at the White House’s beck and call. Hoover’s absence was so felt that by the time of Gray’s Senate confirmation hearing, one of Hoover’s harshest critics publicly declared that he had still been a better director than Gray. Indeed, as acting director, Gray was an incapable successor to Hoover. He is little more than a footnote in FBI historiography, but his damage to the Watergate investigation and his relationship to the Nixon administration provide reasons to reexamine the FBI’s relationship to the presidency. Gray brought the Bureau as close as it had ever been to functioning as an arm of the president. Inexperienced and blindly obedient to authority, Gray did not defend the Bureau against Nixon’s interference. He declared his loyalty first to the president and second to the Bureau, thereby compromising the FBI’s investigation into Watergate. During his 361-day leadership, Gray destroyed Watergate evidence on behalf of the Nixon administration and became a pawn in Nixon’s quest to thwart the FBI’s investigation into his indiscretions. The juxtaposition of Hoover’s and Gray’s leadership of the FBI under Nixon illuminates the complexities inherent in the executive branch’s control of a federal law enforcement agency. Such a comparison also underscores the extent to which the FBI is an extension of both the president and its leader. Nixon threatened the FBI unlike any president before him. Under both Hoover and Gray, the Bureau faced unprecedented hardship. Yet only Gray allowed for Nixon’s flagrant misappropriation of the FBI. That Hoover held his own against Nixon in his weakest days is both a testament to his leadership and a departure from the historiography about him. During Nixon’s presidency, the FBI existed under a scant legal framework. When the Bureau began in 1908, it did so under a oneparagraph order written by Attorney General Charles Bonaparte.4 For over sixty years, the Bureau subsisted on presidential directives, executive orders, and attorney general guidelines, rules that could be undone

The FBI and the US Presidency

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by a president on a whim. Though the rest of the intelligence community functioned under the charter that was the National Security Act of 1947, the Bureau predated the other agencies and was not included in the post–World War II legislation. Until Congress adopted legislation in 1975–1976 to define the parameters of the Bureau’s authority, its intelligence operations remained legally murky. Today, the FBI continues to exist without a legal charter. In the years following Watergate, the Department of Justice issued guidelines to rein in the FBI after the Church Committee in 1975 exposed some of its most serious indiscretions. Still, a president retains a constitutional power and thus the ability to intervene in Bureau affairs. Even with a cadre of agents eager to investigate Watergate, the combination of a weakened leader (Gray), a prying president (Nixon), and the memory of a director with too much power (Hoover) crippled the FBI’s investigation. Recently, this dilemma emerged as central to the FBI investigation into President Donald Trump. Once again, the Bureau found itself in a precarious position centered on the relationship of the president to its director. Watergate showed that even in the face of great compromise, the Bureau could successfully conduct an investigation of a sitting president. However, Nixon and the Bureau’s own leadership impeded the investigation at many turns. Today, the president retains constitutional powers to interfere lawfully in the Bureau’s work. As long as this structural conflict of interest remains, the FBI will struggle greatly to investigate a sitting president. Despite the success of the Bureau’s Watergate investigation, there is no guarantee that the Bureau can carry out future successful investigations of a sitting president as long as it remains constitutionally tethered to executive power.

About the Book

In this book, I address how the FBI is fundamentally compromised by a structural and constitutional conflict of interest, as it answers to the president while bearing responsibility for investigating said president. This conflict of interest was especially pronounced during Watergate. My analysis was born out of several different avenues of research. In 2015, I had the privilege of meeting John Elliff, a retired political science professor who spent his career studying the Bureau and working for congressional committees, including the Church Committee, to restructure the Bureau. Elliff graciously allowed me to visit his home and peruse his entire career’s worth of unclassified documents related

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to his research of the Bureau, including interviews he conducted with key Bureau figures under Hoover, correspondence regarding the Princeton conference (the first academic event of its kind to examine the Bureau through a critical lens), and research supporting his papers published during and immediately following Nixon’s presidency. During our interviews, he illuminated the Bureau under Nixon by patiently explaining the concerns that he and others like him had at the time. My correspondence with John Elliff led me to Christopher Pyle, who granted an interview to help with my understanding of the US Army’s intelligence gathering. My research then took me to the Richard Nixon Presidential Library in Yorba Linda, California, where I spent time going through files of Nixon’s staff related to the Bureau. Additionally, I found transcripts from the famed Nixon tapes to be particularly relevant to the Bureau’s role in Watergate, as Nixon discussed the investigation and Pat Gray on multiple occasions. To understand the failed proposal for an FBI charter, I visited the Jimmy Carter Presidential Library in Atlanta, Georgia. Transcripts of congressional hearings and proposed legislation related to the Bureau provided me with an understanding of the civic debate prominent in the years immediately following Nixon’s tenure. Finally, my research led me to five FBI agents who worked on the Watergate case: Angelo Lano, Daniel Mahan, John Clynick, John Mindermann, and Paul Magallanes. Through months of interviews and countless emails and phone calls, they meticulously walked me through their investigation, which I corroborated with files from the FBI Vault, an online repository of declassified documents. In speaking to the agents who investigated the case, I was able to complete my look at the Bureau under Nixon, focusing not just on the Bureau’s top leadership but on those who did the real work of the Watergate investigation.

Structure of the Book

I begin in Chapter 2 by examining in detail an intelligence-collection plan imagined by the Nixon administration. In this chapter, I look at Hoover’s reluctance to join the plan and his withdrawal from it. Then, in Chapter 3, I examine the events that led Hoover to worry about the American public’s acceptance of his most secretive and invasive intelligence techniques. Hoover’s vulnerability under Nixon developed over time in response to a growing chorus of dissenters who voiced their displeasure with the FBI. In Chapter 4, I also look at criticism emerging

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from left-leaning academics who convened in 1971 to examine the Bureau at a conference held at Princeton University. These scholars not only examined Hoover’s faults and strengths but also studied the legal basis for his intelligence operations, identifying a direct relationship between the FBI’s illicit activities and presidents’ past authorizations of such conduct. In Chapter 5, I discuss Hoover’s final days in office and the lengths to which the Nixon administration went to fire him. Consequently, in Chapter 6, I look at the appointment of Gray as the Bureau’s acting director and his interference with the Watergate investigation, before I examine, in Chapter 7, the FBI agents’ unlikely ability to carry out their investigation of the Watergate burglary, despite continuous interference from the White House and Bureau leadership. I conclude the book in Chapter 8 with a discussion of the Nixon White House and the implications that reverberate from it today. The intersection of such powerful and iconic figures—Nixon and Hoover—and the imbalance of power between Nixon and Hoover’s replacement, Gray, allow a glimpse into the profound effects of a president upon the Bureau. From a comparison of Hoover’s and Gray’s responses and actions to Nixon’s demands, a Bureau emerges that is every bit as much the president’s as it is the FBI director’s.

Notes

1. Application for Appointment by Richard Milhous Nixon, April 23, 1937. 2. J. Edgar Hoover, Letter to Medical Officer in Charge, United States Public Health Service, July 24, 1937. Hoover writes, “The bearer of this letter, Mr. Richard M. Nixon, is a candidate for appointment to the service of the Federal Bureau of Investigation, United States Department of Justice, as a Special Agent.” 3. FBI, US Department of Justice Brief of Investigation, August 10, 1937. Handwritten at the top of the memo describing Nixon’s fitness for the position is “Not Qualified,” with “Cancel appt. 8/11 T” written underneath. 4. “Organization, Mission and Functions Manual: Federal Bureau of Investigation,” United States Department of Justice, last updated September 26, 2014, https://www.justice.gov/jmd/organization-mission-and-functions-manual-federal -bureau-investigation.

2 Hoover’s Sabotage and Nixon’s Plumbers

In the early 1970s, FBI Director J. Edgar Hoover and President Richard Nixon believed the New Left to be one of the greatest security threats facing the nation. A hodgepodge of political radicals, the New Left was a fomentation of hippies, student protesters, political agitators, and revolutionaries. These young people demanded social change in myriad forms, including civil rights, women’s rights, environmentalism, gay rights, abortion rights, antinuclearism, and anticolonialism. They observed their foe, the conservative political establishment, in the intractable, impenetrable federal buildings of Washington, DC. Cloistered inside those marble edifices, separated from the everyday life of regular Americans, sat politicians who codified untenable policies. The New Left raged against traditional Washington, believing that if they made themselves heard by enough people, they could effect change. Their anger simmered in the cauldron of the Vietnam War. Politicians drafted young men to fight—and die— in their unwinnable cause. These politicians, primarily white males, allowed the civil rights momentum of the 1960s to retract, frustrating a long and arduous fight for equality. They encouraged police surveillance against the New Left, classifying its members on a spectrum that ranged from nuisance to national security threat. The peace, love, and daisies of the 1960s had given way to something more insistent, and a sliver of young people stood ready to spark a revolution through civil disobedience and, if necessary, violence. 11

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The Federal Bureau of Investigation, headed by longtime director Hoover, stood ready to guard against what it saw as the New Left’s malign influence. The Bureau had battled fringe political beliefs for its entire existence. Hoover began working for the FBI (then called the “Bureau of Investigation”) in 1919, amid the first Red Scare. In those days, the FBI struggled on behalf of the Department of Justice to ferret out violent anarchists, many of whom had recently arrived from Europe, flush with dreams of inciting a communist revolution within the United States. They took their aspiration to overthrow the government seriously and exploded a pipe bomb on Attorney General Mitchell Palmer’s front doorstep during the height of the first Red Scare. In the bombing’s aftermath, Hoover proved he would stop at nothing to seek out and deport immigrants who threatened American democracy through their association, however tenuous, with communist and socialist groups. During the Cold War, Hoover’s FBI fought against the Soviet Union’s infiltration of the US homeland. Hoover believed “the mad march of red fascism”1 could “overthrow the American way of life.”2 During the mid-twentieth century, the FBI’s crusade against communism shifted from aiding Joseph McCarthy’s congressionally sponsored witch hunt3 to quelling the antiwar protests of the early 1960s.4 By the mid-1960s, peaceful student protests had devolved into mayhem; in 1966, the Students for a Democratic Society (SDS) rallied under the slogan “From protest to resistance.”5 Antiwar groups edged leftward, embracing violent means of political activism. Their furious shift provided the FBI and Nixon with the ammunition needed to vilify the radical groups’ members. Hoover saw those operating under the label of “Weathermen” and “Black Panthers” as iterations of an age-old problem: America unwittingly sheltering leftist radicals eager to upend the political order. It was the FBI’s job to defuse the threat and keep America safe. Despite a lack of evidence, the president and Hoover believed that communist governments around the world sponsored the domestic unrest. Dotson Rader, a member of SDS, explained his organization’s shift, stating, “The meaninglessness of non-violent, ‘democratic’ methods was becoming clear to us in the spring of 1967. The Civil Rights Movement was dead. Pacifism was dead. Some Leftists— the Trotskyites, Maoists, radical socialists . . . some of the radicals in SDS, Stokely Carmichael, Rap Brown, Tom Hayden—knew it early. But it took the rest of us awhile to give up the sweet life of the democratic Left for revolt.”6 “Revolt” would characterize leftist protest movements, including those launched by SDS, the Weather Underground, and the Black Pan-

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ther Party (BPP), from the mid-1960s into the 1970s and 1980s. The peaceful protests of the antiwar and civil rights movements had not achieved the desired progress, and they were frustrated. The United States lingered in the Vietnam War. Racial discrimination and inequality remained a fact of life. A portion of the movement came to believe in the necessity of violence.7 By the late 1960s, protesters had resolved to achieve a revolution that their peaceful activism had failed to arouse. If peace couldn’t bring about change, perhaps violence would. One protester, Abbott “Abbie” Hoffman, an activist and anarchist who cofounded the Youth International Party (also known as the “Yippies”), wrote a manual for revolution titled Steal This Book. In it, he ranted, “The purpose . . . is not to f** the system, but destroy it.” 8 To bring about the system’s demise, he provided guidance on shoplifting and bomb making. He taught readers how to use a gun. He encouraged lawlessness, saying, “If you see a fugitive’s picture on the post office wall take it home for a souvenir. . . . Soon the FBI will be printing all of our posters for free. Right on, FBI!” 9 Hoffman’s behavior typified the shift further left among political activists during this time. Journalist Bryan Burroughs, in his book about New Left revolutionaries, stated,

There are so many myths about the 1970s-era underground. Mention today that an armed resistance movement sprang up in the months after My Lai, the Manson family, and Woodstock, and the most common response is something along the lines of “Oh, wasn’t that a bunch of hippies protesting the Vietnam War during the sixties?” This couldn’t be more wrong. The radicals of this new underground weren’t hippies, they weren’t primarily interested in the war, and it wasn’t the 1960s. . . . The young radicals who engaged in bombings and the assassination of policemen during the 1970s and early 1980s were, for the most part, deadly serious, hard-core leftists.10

During Richard Nixon’s first presidential term, the United States witnessed an explosion of bombs in occupied buildings, airplane hijackings, and demands for revolution. Nixon was keenly aware of the surge in political violence. In his memoir, he recounted, “By 1970 the evolutionary cycle of violent dissent spawned an ugly offshoot: the urban underground of political terrorists urging murder and bombing.”11 In the autumn of 1969, Sam Melville, a thirty-five-year-old activist and one of the leading figures in 1970s New Left violence, exploded a string of bombs across New York City, igniting the Department of Commerce, the RCA Building at Rockefeller Center, the General Motors

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Building at Fifth Avenue and Fifty-Ninth Street, and the headquarters of the Chase Manhattan Bank. He was the first New Left member to use large-scale bombs against symbols of American power, and his string of violence portended more to come. During the 1970s, such bombings became frequent occurrences in New York, Washington, DC, and other major US cities. The pattern included “a rash of bombings followed by a wave of copycat threats, followed by the mass evacuations of skyscraper after skyscraper, leaving thousands of office workers milling about on sidewalks, wondering what had happened.”12 This series of explosions alarmed the government; both the FBI and President Nixon believed that the radicals had to be stopped. Nixon feared that the New Left was receiving financial assistance from overseas. He believed that communist regimes such as the Soviet Union, China, Cuba, and North Vietnam strategically funded political dissidence in the United States in an effort to destabilize the government. Nixon mentioned this fear in his memoir, recounting, “I was eager to learn whether the foreign support went beyond ideological sympathy. I was sure that it did; the patterns were too clear. But the intelligence community never had a conclusive answer.”13 Because he believed that the activists received international support from communist nations, he tasked the intelligence community with spying on them. The longer the FBI and Central Intelligence Agency failed to find his suspected international connections, the harder Nixon pushed them to collect more intelligence. Though Nixon viewed the Vietnam War as a major catalyst of the revolutionary rage, scholars and journalists have since posited that the groups sought, first and foremost, racial equality. Burroughs writes, “Every single underground group of the 1970s, with the notable exception of the Puerto Rican FALN, was concerned first and foremost with the struggle of blacks against police brutality, racism, and government oppression.”14 That these groups sought racial equality made no difference to Hoover. In 1969, he testified before Congress that the Black Panther Party represented “the greatest threat to the internal security of the country.”15 Hoover feared the group’s paramilitarism and politics, and he used the Bureau to undermine its efforts, using COINTELPRO (short for “Counterintelligence Program”) operations to create dissent among members. BPP members organized armed citizen patrols as a means of self-defense against the police, which they accused of persecuting black Americans. Their rhetoric arose in response to police brutality against blacks in Oakland’s ghettoes. Historian Peniel E. Joseph contends, “The Black Panther Party for Self-Defense represented the

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15

most visible face of radicalism in the 1960s. Armed with guns, law books, and menacing bravado, the Black Panthers projected a militant swagger that made their threats of starting a violent revolution for black liberation seem plausible despite considerable evidence to the contrary.”16 From 1966 to 1971, the BPP called for violent revolution. Negative media, violent police clashes, and rival black power factions led the BPP to organize an unsuccessful political campaign to elect Bobby Seale as mayor of Oakland. Following the election, the BPP constricted to consist primarily of a group in Oakland. From 1974 to 1982, the membership became entangled in drug abuse, leadership disputes, and ethical and legal conflicts. During the height of the BPP’s popularity, members “made practical use of revolutions in Cuba, Africa, and other Third World locations to inform their domestic struggles for citizenship, self-determination, and political power.” 17 They did not hesitate to exploit revolutions happening abroad for their own domestic agenda. Though they had scant evidence to prove it, Hoover and Nixon believed the BPP received assistance and funding from hostile foreign governments looking to hasten a communist overthrow of the US government. This, combined with the BPP’s blatant desire for a revolution, jeopardized Nixon and Hoover’s control. By the time Nixon assumed the presidency in January 1969, it seemed to many that the New Left threatened to upend the country. The Washington Post reported, “Demonstrations and bombings rocked campuses, many of them directed against the unending Vietnam War. In one 24-hour period there [were] 400 bomb threats—if not explosions—in New York City alone. On March 6, 1970, an accidental dynamite explosion in Greenwich Village killed three members of the Students for a Democratic Society and led police to a basement bomb factory.”18 The White House held steadfast to its fear of communism and its staunch rebuke against radicals of many kinds. During his presidential campaign, Nixon had promised to eradicate the New Left using “law and order. This message resonated with the so-called Silent Majority, a populace of conservative, middle-class, mostly white voters who could not relate to or understand the plight of such groups as the BPP, the Weather Underground, or the Yippies. 19 Middle and small-town America had scant tolerance for the New Left’s antics—they saw the bombings, the guns, and the group’s rhetoric as criminal deviance that needed to be squelched. With the Vietnam War continuing to rage, America had enough to worry about without entitled and armed hippies from San Francisco and New York making a mess of things. As the days and months rolled by, violence fueled by the New Left

16

Nixon’s FBI

continued to erupt. In April 1970, after Nixon ordered American troops into Cambodia, student demonstrations continued, culminating in the killing of four Kent State University students by National Guardsmen on May 4, 1970. The FBI tried, but largely failed, to counter these New Left groups by sending agents undercover to collect intelligence. The Bureau’s clean-cut “Hardy Boys” agents did not blend in when they tried to conceal themselves within the radical organizations. Their preppy apparel and tidy hair, not to mention their awkward attempts at conversation, were dead giveaways. Protesters and radicals came to expect that FBI agents would try to infiltrate their gatherings, and when they saw a young man unable to look and talk like them, they assumed he was a Gman. The FBI’s inability to penetrate the radical groups frustrated both its agents and the White House. The Bureau could not procure decent intelligence about the New Left. How would the FBI ever stop the movement if agents could not collect enough information to produce any sort of sophisticated understanding of it? All the while, Nixon demanded a crackdown on student protesters as campus violence reached an all-time high. In the winter of 1968–1969, forty-one incidents of bombings and arson, including the use of Molotov cocktails, occurred on college campuses; New Left members set fire to Reserve Officers’ Training Corps (ROTC) facilities in Delaware, Texas, California, Oregon, and Missouri; student radicals bombed campus buildings at Georgetown University, the University of Michigan, New York University, and four campuses in California. In March 1970, Nixon ordered Hoover to deal with the New Left once and for all, before one of its members assassinated him.20 To stem the tide of recruits to New Left radical groups, Hoover appealed to those he deemed most vulnerable: university students. On September 21, 1970, the aged FBI director addressed a letter to college students across the nation. His correspondence read as a warning: Beware the dangers of the New Left or risk becoming mixed up in a subversive movement to overthrow the government. He began, “As a 1970 college student, you belong to the best educated, most sophisticated, most poised generation in our history. The vast majority of you, I am convinced, sincerely love America and want to make it a better country.”21 He assured readers that there was nothing wrong with student dissent stemming from discontent with national policy. But, he warned, “there is real ground for concern about the extremism which led to violence, lawlessness, and disrespect for the rights of others on many college campuses during the past year.”22 In a six-page admoni-

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17

tion to students, he outlined eight methods by which extremists would try to “lure” students into their activities. 23 Such efforts entailed everything from encouraging students to disrespect their parents to seeing college as an irrelevant “tool of the Establishment.”24 Radicals would entice students to abandon their “basic common sense,” Hoover cautioned. 25 They would brainwash students into exchanging their patriotic views for a warped understanding of their schools and their nation. The movement’s negativity represented to Hoover “one of the most insidious of New Left poisons” 26 because, in seeing such a murky world, students would forget the role of police officers as community helpers. Subversive radicals would seek to convince naive college students that police officers were “pigs”; Hoover reminded the students that a police officer is “your friend and he needs your support.”27 Finally, Hoover warned against students seeing works of anarchism or arson through a false lens of idealism. The New Left, he argued, would persuade unwitting students to believe that democracy was ineffective in the face of needed social change: “They’ll encourage you to hurl bricks and stones instead of logical argument at those who disagree with your views.” In closing, Hoover reiterated his great hope for the incoming cadre of students, explaining, “Personally, I don’t think the outlook for campus unrest this year is as bleak as some prophets of pessimism proclaim.”28 Hoover’s letter seems a relic—evidence of a bygone era of discord between the old government establishment and students, borne out of bitter feelings about the Vietnam War and manifested as a curmudgeonly, condescending scold. Hoover’s viewpoints reflected a wider government outlook toward students and the New Left, a viewpoint that infected the presidency and intelligence agencies in the early 1970s. Such fear of the New Left, manifested in a paranoia that students, nationwide, would abandon democracy in favor of anarchism and bombs in order to effect change and support for their dissent, led not only Hoover but the Nixon administration to resort to extreme measures in 1970. In an effort to halt the fomentation of student radicalism, the Nixon administration, the FBI, and the intelligence community sought to quell student protests, gather intelligence on the New Left, and preserve the democratic form of government that they genuinely believed had been called into question. Their quest to contain dissent and protect national security, however, led them to disregard legal limits. The Nixon administration, driven by fear and paranoia, encouraged forms of intelligence collection that violated protesters’ civil rights. Central to this breach in legality was the FBI.

18

Nixon’s FBI

The Huston Plan: A Background

As much as Hoover feared the ability of college students to join forces with the New Left, arguably no one dreaded the young revolutionaries as much as Nixon. In a presidential talking paper drafted after a meeting with Hoover, Richard Helms (director, CIA), Lieutenant General Donald V. Bennett (director, Defense Intelligence Agency [DIA]), and Admiral Noel Gayler (director, National Security Agency [NSA]), Nixon’s cabinet classified the threat posed by students, explaining,

We have moved from the “student activism” which characterized the civil rights movements in the early ’60s through the “protest movements” which rallied behind the anti-war banner beginning with the March on the Pentagon in 1967 to the “revolutionary terrorism” being perpetrated today by determined professionals. We are now confronted with a new and grave crisis in our country—one which we know too little about. Certainly hundreds, perhaps thousands, of Americans— mostly under 30—are determined to destroy our society. They find in many of the legitimate grievances of our citizenry opportunities for exploitation which never escape the attention of demagogues. They are reaching out for the support—ideological and otherwise—of foreign powers and they are developing their own brand of indigenous revolutionary activism which is as dangerous as anything which they could import from Cuba, China, or the Soviet Union.29

The strategy devised for combatting this perceived menace, the socalled Huston Plan, was approved for only five days in 1970. The plan evoked controversy years later when revealed to the public during the Church Committee30 investigation. It highlighted the dissension between intelligence agencies as well as their willingness to carry out secret, illegal operations. The Nixon administration wanted to unite intelligence agencies to collect and analyze intelligence about the New Left, even if doing so meant authorizing illegal activity. It crafted an agreement to surveil members of the New Left, assenting to an unprecedented level of coordination between intelligence agencies. Agency directors, led by Hoover, drafted this plan allowing them to search dissenters’ mail, enter their homes, and monitor student groups, using First Amendment–protected speech as justification for such actions. The agreement allowed the government to collect intelligence on alleged radicals for merely expressing viewpoints counter to the administration; they determined that political speech, though protected by the First Amendment, justified a federal

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19

investigation. On its face, the plan was illegal. It gave the Nixon administration or an intelligence agency full authority to use practically any means necessary to investigate a person or group deemed to pose a threat (with the meaning of “threat” diffuse, at best). The agreement became known as the Huston Plan, named for White House staffer Tom Charles Huston, a young lawyer who coordinated the drafting of the document. The Nixon administration had initially hired Huston to oversee intelligence gathering on foreign extremists. Prior to his work on the intelligence plan, he worked on a spate of airline hijackings carried out by Arab militants in the Middle East. A cursory look at the US government’s readiness to deal with Middle Eastern terrorists led Huston to believe that the United States lacked crucial intelligence about the groups’ motives and members. He approached the FBI and CIA to encourage both agencies to prioritize the emerging threat, but his concerns went mostly unheeded. Even so, he developed a strong relationship with leaders within the Bureau. He later recalled, I don’t know that anybody had the same kind of relationship [as I did] with the Bureau. Maybe that’s good, but I mean—because I knew the people over there . . . not just did I know Bill Sullivan who’s the head of the intelligence division, but I know—I knew the heads of the two major desks. I knew the guys who were working the desk, you know. And so I was able to, you know, have a feel for what they were doing and what they thought was appropriate.31

Huston became the Nixon administration’s liaison not only with the FBI but with the larger intelligence community’s leadership. In 1970, Nixon ordered Huston to assemble an unprecedented working group of intelligence agency directors to combat the rising problem of domestic extremism. Huston brought together CIA’s Helms, NSA’s Gayler, DIA’s Bennett, and FBI’s Hoover in the hopes that they would work together to tackle the rising extremism. He expected that each director would make available his agency’s intelligence-gathering capabilities, combining their exclusive technologies to collect intelligence and tasking their analysts to understand it. By working together, Huston surmised that the intelligence agencies could finally inspire a robust response to what Nixon and the intelligence community alike viewed as a growing security threat. The CIA, DIA, and NSA approved the agreement created by the committee, which Hoover chaired. All the directors, with the exception of Hoover, supported the plan, and they had every reason to do so. Their

20

Nixon’s FBI

agencies had, for some time, secretly and illegally conducted the type of domestic surveillance that the plan authorized. Huston, however, remained unaware that the agencies had long been doing the sort of intelligence gathering they appeared so eager to “commence” with the enactment of the new plan. Huston acknowledged multiple times in a memo to the White House that the document authorized illegal activities on the part of the intelligence community, admitting that the plan’s allowance for surreptitious entry amounted to burglary. Nevertheless, he reasoned that “it is also the most fruitful tool and can produce the type of intelligence which cannot be obtained in any other fashion.”32 Though he reluctantly signed his name to the plan, Hoover withdrew his agreement almost immediately. A mere five days after the plan was signed and enacted, Nixon revoked it for no other reason than that Hoover had implored him to do so. The details surrounding the plan reveal a dysfunctional intelligence community, spearheaded by Hoover’s FBI, which refused to cede any of its domestic turf. The Huston Plan offers a variegated lens through which to view the US government and national security at the time. Domestic unrest was rising but not to the level purported by those in charge. Yes, there were so-called revolutionaries among a larger group of protesters, and yes, they were violent. There was little evidence, however, to support Nixon’s contention that they received coordinated funding from foreign communist governments. Even so, intelligence agencies used such an idea as justification for the Huston Plan. To their way of thinking, they weren’t merely using their surveillance capabilities against people whose viewpoints they did not like. They were collecting intelligence on treasonous individuals who cavorted with foreign governments to overthrow democracy. Intelligence agencies played along with the idea that the plan would allow them to embrace a wider surveillance authority, knowing full well they had long embraced such surreptitious and illegal authority. Because the plan only lasted for five days, it has largely fallen to the bottom of the heap of historical significance. And yet, the details and drama surrounding it are crucial to understanding the relationship between Hoover and Nixon. The need for the plan in the first place underscored the FBI’s struggle to create actionable intelligence. The Bureau had grown from a ragtag team of federal agents gunning down gangsters at the turn of the century into the nation’s elite law enforcement and intelligence force. Hoover knew better than anybody, however, the Bureau’s vulnerabilities. He understood that the Bureau had come of age amid a legal Wild West. Since its creation in 1908, the Bureau had

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21

whittled into practice its intelligence gathering, but the legal basis for its involvement was shaky at best. The FBI began as a federal police force that evolved into a federal police force with domestic intelligence capabilities. Time and again, the Bureau expanded its intelligence-gathering capabilities under Hoover by executive order or, worse, the verbal demand of a sitting president, or by order of Hoover himself. At the beginning of Nixon’s first term as president, however, Hoover sensed a shifting political attitude toward the Bureau. Maybe it was his age or the country’s vast cultural changes throughout the 1960s; maybe it was paranoia, or maybe he was finally acknowledging the Bureau’s limits. Either way, when Nixon sent a young lawyer, Huston, to order Hoover to engage in controversial intelligence gathering, to cede his territory to other intelligence agencies, and to do all of this in furtherance of Nixon’s political ambition and suspicions, Hoover balked. He frustrated the plan at every turn, ultimately employing his political prowess to kill it. Hoover’s actions, though effective, were not without consequence. He permanently damaged his relationship with Nixon, demonstrating that he would not offer up the Bureau to do the president’s political bidding. He destroyed morale among the Bureau’s upper intelligence leadership and shamelessly sidelined a longtime agent, William Sullivan. The details of the Huston Plan set the stage for the Bureau’s later involvement with Nixon.

The Details of the Huston Plan

On June 5, 1970, Nixon met with Directors Hoover (FBI), Helms (CIA), Gayler (NSA), and Bennett (DIA), as well as members of the military. During the meeting, Nixon demanded they collect better information on domestic dissenters. He was worried about the increase in attacks by radical leftists, recording in his memoir, “From January 1969 through April 1970 there were, by conservative count, over 40,000 bombings, attempted bombings, and bomb threats—an average of over eighty a day. Over $21 million in property was destroyed. Forty-three people were killed. Of these 40,000 incidents, 64 percent were by bombers whose identity and motive were unknown.”33 This increased violence stemmed from Nixon’s decision to invade Cambodia in order to attack the North Vietnamese Army and the Vietcong.34 Nixon surmised that his decision would incite mayhem on university and college campuses, and indeed it did.35 Nixon attributed the shootings at Kent State to his foreign policy decisions in Cambodia. He

22

Nixon’s FBI

described those days following the shootings as “among the darkest of my presidency.”36 He recalled that even Henry Kissinger, Nixon’s National Security Advisor and the strategic mastermind behind the Cambodian invasion, suffered a blow to his morale after the events at Kent State. On May 25, the Weathermen published “A Declaration of a State of War,” promising war against Nixon’s administration. They stated,

The hundreds and thousands of young people who demonstrated in the Sixties against the war and for civil rights grew to hundreds of thousands in the past few weeks actively fighting Nixon’s invasion of Cambodia and the attempted genocide against black people. The insanity of Amerikan “justice” has added to its list of atrocities six blacks killed in August, two in Jackson, and four white Kent State students, making thousands more into revolutionaries. The parents of “privileged” kids have been saying for years that the revolution was a game for us. But the war and the racism of this society show that it is too f**-up. We will never live peaceably under this system.37

Nixon believed that such groups as the Weather Underground and the Black Panther Party were directly receiving aid and funding from communist governments in an effort to overthrow his presidency.38 President Lyndon B. Johnson had also suspected such interference by foreign powers in the antiwar movement; Nixon could not fathom that the revolutionary movement—its bombings, its shootings, its ideological factions—was not, at least in part, the effect of Soviet interference. He directed Huston to confirm what he already believed to be true, using the full power of the intelligence community to do so. Years after the Huston Plan died, the Senate committee investigating the agreement noted that journalist Theodore White posited that the Huston Plan would give intelligence agencies enormous power, allowing federal authorities to reach “all the way to every mailbox, every college campus, every telephone, every home.”39 Indeed, the Huston Plan gave presidential authorization not only to the FBI but to the CIA, NSA, and DIA—three agencies whose founding charters permitted them to collect only international intelligence, outside the jurisdiction of the United States—to read mail, tap telephones, and conduct “black bag jobs,” or burglaries, to obtain intelligence about American citizens in the name of national security. During his discussions with intelligence community personnel, Huston probed for evidence of international financing. His search was futile. He stated, “There is no evidence that we have that

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23

there is any significant amount of foreign financing of either the antiwar movement or the revolutionary protest movement. There simply is no such evidence.”40 He soon discovered to his dismay, however, that Nixon refused to accept his answer. Though he sent a report to Nixon confirming the lack of findings, he received no response from the president for several months. He recalled that some months later, you know, he asked again, and this time he’s back with the Ehrlichman people saying I want you to look at this [report] again. There has got to be something there. Well [Egil] Krogh [head of the Special Investigation Unit and one of Nixon’s “Plumbers”] goes through the ritual a third time, and of course we get the same damn result. This is in the spring of 1970. So that’s what triggers, at this point, my pleas to Haldeman and Krogh to—look, this is nuts. I mean we got all these people running around treading over the same territory. We’re coming up with the best information we have. Because it’s not what you want to hear, you tell us to go back and do it again.41

Through Nixon’s demands, US intelligence agencies had fallen prey to confirmation bias. Their analysis was in no way impartial; rather, they provided evidence to support a foregone conclusion. Even though the plan authorized intelligence agencies to carry out such searches in the name of national security, the agencies were already doing many of the things the agreement purported to authorize. Huston admitted, “Part of what we did was ask the president to approve something as if it were a de novo that, in fact, was an ongoing operation that he didn’t know about.”42 When Nixon revoked the agreement, the agencies continued some of their efforts, undeterred by any illegality. The CIA continued to open Americans’ mail through Operation CHAOS, and the NSA looked for ways to carry out black bag jobs (i.e., burglaries) that would allow opportunities to plant intercepts. When Nixon revoked his authorization of the plan five days after authorizing it, the agencies expressed their disappointment and quietly went back to doing everything the Huston Plan had authorized, once again without presidential approval or oversight. The Huston Plan43 led to a falling out between Huston and Hoover and, on a larger scale, foreshadowed the difficulties that would characterize the FBI for the next decade, as the organization succumbed to politicization under the Nixon administration and then spent years trying to divest itself of the repercussions of that relationship. 44 The Huston Plan signaled the beginning of a tumultuous decade for the Bureau.

24

Nixon’s FBI

One of the clearest and most immediate examples of these tensions occurred in October 1969 when Huston received reports from the FBI regarding plans by the New Mobilization Committee to hold a press conference at the Ambassador Hotel in Washington, DC. By November, sources confirmed that the Chicago-based SDS Weatherman faction also intended to participate in the demonstrations. Further sources suggested that the Black Panther Party was planning to travel to Washington.45 The reports gained notoriety when one of the FBI’s “reliable source[s]” suggested that Abbie Hoffman and Jerry Rubin (Yippie leaders) planned to break into the Justice Department and unleash a flurry of Molotov cocktails within the building. Then, while police were busy at Justice, an attempt would be made to blow up the Vietnamese embassy.46 Early estimates from the FBI suggested that approximately one hundred thousand demonstrators would travel to Washington, DC, for the November protests.47 The number of protesters, combined with the Yippie threats to incite violence, led the Nixon administration and the FBI to anticipate a possible eruption in the DC protests. Thanks to the FBI’s intelligence, everyone stood guard, expecting pandemonium to explode among the protesters. Alas, it didn’t. When the predicted violence failed to materialize, Huston found himself defending Hoover to Nixon’s assistant for domestic affairs, John Ehrlichman. In a memo dated November 20, 1969, Huston intimated to Ehrlichman that Hoover was upset at the suggestion in a recent news article that the FBI had performed unsatisfactorily.48 Countering the news article’s claims that the Bureau had wildly overestimated the amount of protesters, Huston wrote, “The FBI believes, and I concur, that the assessment was not incorrect. FBI intelligence enabled us to pinpoint the targets of violence in advance, thus enabling the MPD [Metropolitan Police Department] to have sufficient manpower on hand to keep the situation under control. Had we not been aware of the plans to storm the South Vietnamese Embassy, we would have had an international incident on our hands if the effort had been successful.”49 Huston disagreed with the reporter, explaining to Ehrlichman, “It is my opinion that the FBI did a first-rate job in gathering intelligence for the November Mobilization. Their information was accurate, timely, and complete.”50 Furthermore, he rationalized their overestimates regarding the number of protesters as a result of relying on the practice of counting buses attending the protests and not the number of protesters on the bus. Finally, Huston proposed that Ehrlichman send Hoover a letter to reassure him of the administration’s appreciation of the Bureau’s work. He attached a draft of the letter, in which Huston

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25

proposed that Ehrlichman say to Hoover, “I wish to call to your attention the fine job which your people in the Domestic Intelligence Division did during the weeks preceding the November Mobilization.”51 Though Huston praised Hoover’s work in 1969, the relationship between the two men had soured by 1970, when Huston and Hoover found themselves at odds over the Huston Plan. By the time Huston proposed drafting the plan, he met with resistance only from Hoover. Huston testified before Congress, “It was my opinion that [Hoover] was heading down a course different from that the President had outlined.” 52 In a memo for Haldeman, Huston wrote in July 1970, “I went into this exercise fearful that CIA would refuse to cooperate. In fact, Dick Helms (director of Central Intelligence) was most cooperative and helpful, and the only stumbling block was Mr. Hoover.”53 Huston explained that though the working group of intelligence agency directors, comprised of Hoover, Helms (CIA), Bennett (DIA), and Gayler (NSA), approved an official plan to collect domestic intelligence, Hoover refused to go along with it. In fact, Hoover’s assistant director, William Sullivan, testified before the Senate that he recommended that Huston first get the signatures of the CIA, DIA, and NSA directors before sending the draft to Hoover. Huston explained, “Bureau personnel [i.e., Sullivan and Brennan] on the committee felt that if they took the report back to Mr. Hoover, that he would go completely—he would refuse to go along with it, and they felt that, tactically, if they went to him and said, the report has already been approved by the other three Directors, that perhaps he would then acquiesce.”54 In fact, despite the best strategies of Huston and Sullivan, Hoover continued to resist efforts by the other directors to expand intelligence collection. Huston wrote to Haldeman, “When the working group completed its report, Mr. Hoover refused to go along with a single conclusion drawn or support a single recommendation made.”55 The report recommended to Huston that the intelligence agencies “commence” (ironic, as they were already conducting) the illegal opening of mail and surreptitious entries.56 Hoover objected to the report, believing that any revelations related to the intelligence community’s gathering of such information would only lead to embarrassment for the Bureau and for the Nixon administration.57 The report recommended that the FBI recommence black bag jobs to acquire intelligence.58 Huston testified on the subject, “I was told the Bureau had undertaken ‘black bag’ jobs for a number of years—up until 1966. That it had been successful and valuable again, particularly in matters involving espionage. And that they felt this, again, was something, given the revolutionary climate,

26

Nixon’s FBI

they thought they needed to have the authority to do.” 59 Indeed, “they” referred to the Bureau’s assistant director, William Sullivan. Huston testified before the Senate that he believed Sullivan felt the FBI had become “unduly inhibited” in its intelligence collection on domestic groups. On July 19, 1966, Hoover had sent a letter to FBI Assistant Director Cartha DeLoach, prohibiting the use of black bag jobs.60 Whatever restrictions Hoover had placed upon his intelligence unit within the Bureau in regard to the collection of domestic intelligence, the Huston Plan sought to eradicate them. In a bitter memo to H. R. Haldeman, Nixon’s chief of staff, Huston described in detail how Hoover had successfully dismantled the Huston Plan. Huston explained that Hoover’s lack of support emerged because of two reasons. First, Hoover believed that current Bureau operations were satisfactory and did not require the help of other agencies. 61 Second, he refused to accept any comments from other agencies about the Bureau’s methods for collecting intelligence.62 Huston refused to see Hoover’s point of view, explaining to Haldeman that Hoover’s “objections” were “generally inconsistent and frivolous.” 63 To voice his disagreement, Hoover inserted footnotes into the final report that disagreed with the report’s conclusions. This addition to the final report angered the other agency heads. Huston had to assuage Admiral Gayler and General Bennett, delicately convincing them not to make a scene regarding Hoover’s changes. In exchange, Huston offered to make their opposition to the footnotes known to President Nixon.64

FBI and CIA Disputes

The Huston Plan exposed a harsh reality in the world of the intelligence community: namely, that the FBI had severed all connection with the CIA. In the spring of 1970, Hoover became irate when the CIA refused to tell Hoover “who had leaked information from his organization regarding an investigation into a Czech professor’s disappearance.”65 Though the Bureau publicly denied the breakdown in communication, the Senate hearings on the Huston Plan confirmed the total halt in cooperation.66 Indeed, Hoover’s own memo confirms the split with the CIA. On a copy of a letter from CIA Director Helms, Hoover scribbled at the end, “This is not satisfactory. I want our Denver Office to have absolutely no contacts with CIA. I want direct liaison here with CIA to be terminated and any contact with CIA in the future to be by letter only. —H.”67 Hoover’s subordinates in the Bureau believed that the split with

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the CIA was fatal to FBI operations. In fact, some of the Bureau personnel went behind Hoover’s back and continued to meet with CIA officials in order to exchange information related to cases.68 Charles Brennan, former assistant director of the FBI’s Domestic Intelligence Division, testified before Congress that he believed the ban on working with the CIA affected the FBI’s ability to collect intelligence. He explained, I feel the various members of the intelligence community must work together in order to fulfill everybody’s basic intelligence responsibilities, and I felt that the decision by Mr. Hoover to cut off relationship with the CIA was just totally an atrocious decision and was not consistent with what the responsibilities of the intelligence community are. We rely upon and deal with the CIA closely, as they do with us, in the interchange of matters of mutual interest to both of us, and it just did not square with the abilities of each to be able to carry out the responsibilities and perform the functions by saying, “discontinue liaison with the CIA.”69

The breach in communication between the CIA and FBI developed over a relatively small disagreement. In 1969, the FBI and CIA looked into a case involving the disappearance of Thomas Riha, a Czech-born associate professor of modern Russian history at the University of Colorado.70 The professor left the university under mysterious circumstances, disappearing and leaving no clues as to his whereabouts. Though his friends and colleagues believed that his disappearance suggested he was dead, University of Colorado president Joseph R. Smiley assured the public he was still very much alive, citing “reliable sources” in Washington.71 Smiley spoke with such confidence because he had been briefed by a CIA agent as to Riha’s whereabouts. He announced publicly that Riha had not been a victim of foul play. From that moment forward, Hoover recognized a leak, and thus began the breakdown between the FBI and the CIA. The CIA initially took an interest in the case based upon Riha’s Czech citizenship and “wanted to know if there had been foreign interference.”72 The FBI discovered that the professor was alive and well and simply had chosen to disappear for personal reasons. When Sam Papich, an FBI agent in the Bureau’s Denver Field Office, acted on his own accord by telling a CIA agent what the Bureau had discovered, his message led to the breakdown in communication. Papich’s official role was liaison officer between the CIA and FBI. When Hoover learned that Papich had passed along the Bureau’s classified information to the CIA, he suspended communication with the agency. Papich was devastated. The New York

28

Nixon’s FBI

Times reported that Papich “beseeched the Director in the strongest language to reconsider, pleading that a close relationship between the two agencies was vital to controlling Communist-bloc intelligence operatives.”73 Hoover refused to listen. Instead, four months after he severed Papich’s liaison function with the CIA, he cut ties with the rest of the intelligence community. A report stated, “[Hoover] abolished the sevenman section that maintained contact with the Defense Intelligence Agency, the Office of Naval Intelligence, Army Intelligence, Air Force Intelligence, the Air Force Office of Special Investigations, the National Security Agency, the State Department, the Post Office, the Department of Health, Education and Welfare, the United States Information Agency, the Bureau of Customs and the Immigration Service.”74 James Jesus Angleton, chief of counterintelligence for the CIA, remarked of the split that Hoover’s command was a “cutting off of all liaison within the intelligence community with the exception of the White House . . . over this one case.”75 The fallout resulting from such a simple case was extraordinary. Yet it also highlighted the need for the Huston Plan. At the time the agency directors came together to draft the plan, Hoover had eliminated contact with the rest of the agencies. That he would ultimately sabotage the Huston Plan should have come as no surprise.

The Attorney General Intervenes

As Hoover saw it (and indeed, as the law reflected), only the FBI had jurisdiction to collect domestic intelligence. Though the CIA, DIA, NSA, and military had collected domestic intelligence for years, federal law did not actually give them the authority to do so. Hoover knew this, and after he voiced his disagreement with the Huston Plan through his ample footnotes, he approached Attorney General John Mitchell and briefed him about the creation of the report.76 Sullivan, Hoover’s assistant director, wrote that “Mitchell’s distaste for Huston and for what came to be known as the Huston Plan began when the Ad Hoc Committee was originally formed. I don’t know if it was a deliberate omission or merely an oversight, but Mitchell was never invited to join the committee. As it turned out, Mitchell, Hoover’s nominal boss, had wanted to be a member of that committee in the worst way.”77 No other sources corroborated whether or not Mitchell truly wanted to be a part of the Huston Plan committee “in the worst way.” Nonetheless, the attorney general was indeed left out of the discussion entirely until the plan had already been drafted.78 This deliberate omission of

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information became a point of contention when the Senate interviewed Huston in 1975. When asked why he never informed Mitchell of the Huston Plan, Huston gave four reasons: (1) He believed the plan dealt not with law enforcement matters but rather with intelligence issues and therefore did not come under the purview of the attorney general.79 (2) He had decided that the FBI, as a part of the Justice Department, should be the agency to keep the attorney general informed of the meetings’ proceedings.80 (3) He had not been sure what conclusions the committee would decide upon in regard to the collection of domestic intelligence, and therefore the “thought hadn’t occurred to him to include the AG.”81 (4) He simply didn’t have any confidence in the Department of Justice—a point in which he perhaps contradicted himself.82 Only in 1976, when answering senators’ pointed questions, did Huston admit that his failure to consult the attorney general had been a grave mistake. When asked by Senator Frank Church whether it never occurred to him, when “making recommendations . . . that violated the law,” that he or the White House “should confer with the Attorney General before making those recommendations,” Huston replied somewhat sheepishly, “No, it didn’t. It should have, but it didn’t.”83 That Huston failed to consult with the attorney general ultimately led to the plan’s undoing. After the plan was finalized and Hoover had added his footnotes, he approached Mitchell and told him everything that had been going on between the intelligence agencies and the White House. Given the attorney general’s exclusion, it seemed that Hoover alerted Mitchell to the plan in order to sabotage it. Mitchell was irate to learn about the plan and to discover his deliberate omission from the working group. He immediately contacted the White House and beseeched Nixon to rescind the plan.84 Huston’s failure to tell the attorney general about his plan not only doomed it but, perhaps most disturbingly, also showed his disregard for the law. Huston would eventually be called to testify before the Senate about his plan because it had failed to heed the Constitution, allowing agencies not only to thwart their own legal jurisdiction (which, with the exception of the FBI, was strictly international)85 but also to sidestep the Fourth Amendment by searching peoples’ mailboxes, houses, and places of businesses without a warrant. By the time senators called Huston in for questioning, they wondered how he legally justified the Huston Plan. Huston’s explanation pointed to one conclusion: he saw the president as above the law and empowered to do anything he or the intelligence community deemed necessary in furtherance of national security. Huston stated, “It was my opinion at the time that simply the fourth amendment did not

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apply to the President in the exercise of matters relating to the internal security or national security.”86 Huston coordinated the efforts of the intelligence community while ignoring the attorney general. He quelled any doubts about the plan’s illegality by deciding, simply and unilaterally, that the president was above the law in matters related to national security. Yet his viewpoints had been supported by Nixon as well as past presidents. Even though federal courts had found domestic wiretaps to be unconstitutional, Huston claimed that until 1972, every president believed that he had “inherent authority,” as a part of his executive power, to carry out wiretaps anyway.87 Furthermore, Huston argued that the American public’s viewpoint on the issue supported the right of a president to collect whatever he needed with the help of the intelligence community. Huston testified, “It is interesting to me, Senator, that in October 1971, the Sunday edition of the New York Times, there was a front page article which was obviously planted to attack J. Edgar Hoover, which criticized Mr. Hoover for the fact that he had refused to engage in ‘black bag’ jobs that were necessary in dealing with espionage.”88 Indeed, the New York Times article alleged that FBI agents risked their jobs and their personal freedom when they carried out black bag jobs. Under Hoover’s weak leadership and his inability to work with other intelligence agencies, the article argued, the intelligence capabilities of the Bureau had suffered greatly. It stated, “An FBI man might find himself apprehended by the police when he does a ‘bag job’—a surreptitious piece of counterespionage sometimes involving illegal activity.”89 The article questioned the Bureau’s intelligence-gathering capabilities, wondering if the FBI fell too far on the law enforcement side and not enough on the intelligence-gathering side to carry out acts that would allow it to conduct counter espionage and recruit Soviet defectors as spies. The article stated, “The agents are basically trained in criminal procedures and techniques and think in criminal terms. . . . The subtleties of intelligence work seem to elude them.”90 Huston’s point that the attitude of the public toward Hoover and intelligence gathering had changed over the years was both correct and incorrect. The New York Times article eviscerated Hoover for his inability to work with the CIA and for the Bureau’s inability to capture valuable intelligence. The article seemed to have no regard for whether the Bureau might collect such intelligence legally or illegally; it simply criticized Hoover for his inability to make the right call and his refusal to allow Sullivan’s Domestic Intelligence Division to carry out black bag jobs in the name of national security. Everything about the New York

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Times article reflected the attitude of Huston during the days of drafting the Huston Plan: national security took precedence, and if the CIA or any other intelligence agency wanted to collect information, it could and should. Hoover’s hesitation to cooperate with Huston or to carry out black bag jobs led critics to wonder later what his motives had been in the early 1970s. Had he been ahead of his time, seeing the illegality of the intelligence community’s actions? Had he acted on principle to preserve the Constitution, to ensure that the Bureau did not violate citizens’ Fourth Amendment right to freedom from search and seizure? The record stemming from the Huston Plan reflects that Hoover’s hesitation had far less to do with principle than with his formidable personality. In 1970 and 1971, Hoover found himself in a difficult place. Past actions by the Bureau were finally facing scrutiny, and yet he also detested the thought of any other agencies infringing upon his domestic intelligence territory. Nixon’s demand that Hoover work with other agencies and Hoover’s awareness that his actions, though sanctioned at the time, could later be scrutinized led him to hesitate and ultimately to thwart his own Bureau’s mission to collect information. One week after the New York Times criticized Hoover for refusing to work with the CIA, the paper featured a second negative story about him in the following Sunday paper. The piece, titled “Hoover, in an Unusual Letter, Defends Operations of the FBI,” stated that the FBI director had written a letter to Princeton professor Duane Lockard to defend the Bureau’s actions. Lockard was set to host a conference at Princeton on the FBI.91 The Bureau speculated that the conference would publicly eviscerate Hoover and the organization’s actions.92 Such an unprecedented, no-holds-barred event featuring prominent scholars terrified Hoover. The article provided a litany of recent criticism against the Bureau and Hoover.

In recent months, Representative Hale Boggs, Democrat of Louisiana, has charged that the F.B.I. tapped the telephones of Congressmen; Senator George McGovern, Democrat of South Dakota, has accused Mr. Hoover of attempting to destroy the career of an airline pilot who had been critical of the bureau’s handling of a hijacking, and Senator Edmund S. Muskie, Democrat of Maine, has contended that the bureau conducted widespread surveillance at Earth Day last year.93 The criticism heaped upon Hoover by members of Congress and by the public destroyed his motivation to help Nixon. He was not willing to risk facing more scrutiny by carrying out actions to assist the CIA, the agency with which he had stopped liaising. Regarding Hoover’s

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sabotage of the Huston Plan, Huston himself remained opinionated about Hoover’s motives. He stated, “I did not think his objections were principled . . . because in many instances he says, not that this is illegal, it should not be done, he says, ‘I do not want to do it, but I do not care if somebody else does it,’ which does not strike me as being a principled objection.” 94 Furthermore, Huston argued that Hoover hated when other agencies infringed upon his territory. 95 Despite his criticism of Hoover following the demise of the Huston Plan, in later years, his attitude toward the FBI director shifted. Huston acknowledged Hoover as a master bureaucrat, stating, I didn’t give [Hoover] credit that he deserved for his political acumen, as to the fact that the political climate had changed. And I think Hoover was much more sensitive to that than I was, or anyone in the West Wing was. And so I give him that. But on the other hand, the fact of the matter was that he—his position was simply, I don’t want anything to do with anything at all that changes the status quo, period. And I thought that was an outrage.96 Others involved with the Huston Plan offered a slightly different perspective on Hoover’s motivations regarding the memorandum. Angleton speculated,

I believe that Mr. Hoover’s real concern was that during the Johnson administration, where the Congress was delving into matters pertaining to FBI activities, Mr. Hoover looked to the President to give him support in terms of conducting those operations. And when that support was lacking, Mr. Hoover had no recourse but to gradually eliminate activities which were unfavorable to the Bureau and which in turn risked public confidence in the number one law enforcement agency.97

Huston made clear that the Nixon administration had placed greater emphasis on intelligence gathering and was willing to use the Huston Plan as the imprimatur of authorization for agencies to collect such information. Hoover, however, had witnessed the same enthusiasm for intelligence gathering under Johnson and had later been made to feel like a scapegoat of the administration when the public expressed disapproval of the intelligence-gathering activities. He refused to be moved. His own former assistant director of the Domestic Intelligence Division, Charles Brennan, also posited his theory on Hoover’s inability to cooperate with the Huston Plan. He stated,

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I think when Hoover reached age 70, of course, he came within the Government’s law which required mandatory retirement at that time. And I believe that was waived by President Johnson, which virtually then called for the Director to be renewed as Director of the FBI on an annual basis.98 And I think that Mr. Hoover was very conscious of the fact that to a degree this put him into a somewhat vulnerable position. I think he then also became very conscious of the fact that any incident, which, within his understanding might prove to be an embarrassment to the Bureau, could reflect questionably on his leadership of the Bureau. And I think that perhaps he felt that such an incident could provide certain individuals with the capacity not to renew his continued role as Director of the FBI.99

The Huston Plan and Sullivan

Hoover’s opposition to the Huston Plan led to conflict with William Sullivan, head of the FBI’s Domestic Intelligence Division. Sullivan time and again made clear that he disagreed with Hoover’s approach to intelligence collection. In his memoir, Sullivan recalled that he had often served as the point of contact for other intelligence agencies that brought their complaints to him when they felt like Hoover had isolated their agencies from the Bureau.100 He believed that Hoover had acted completely out of line when he inserted footnotes into the final Huston Plan. Though noting that the FBI director’s changes to the report were “minimal,” Sullivan stated, “Hoover was in no position to make them.” Hoover inserted the footnotes after all the other agency leaders had signed off on the document. It was purely a power move and made it appear as if Hoover had final say on the entire intelligence community’s decisions. Though Huston and Hoover had a terrible relationship, Huston developed a strong rapport with Sullivan, who became the biggest proponent of the Huston Plan. Sullivan was long frustrated with Hoover’s insistence on scaling back the Bureau’s intelligence-gathering capabilities, which he oversaw. From Sullivan’s perspective, Huston offered salvation for the Bureau’s intelligence failures. In his testimony before the Senate, Huston stated, “I do not think there was anyone in the Government who I respected more than Mr. Sullivan.” 101 The relationship between Huston and Sullivan ensured that the FBI remained involved with the drafting of the Huston Plan, as Sullivan chaired the working committee of agency subheads who drafted the version that eventually went to agency directors for approval. At one point, Sullivan wrote

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optimistically to Huston, justifying the interagency cooperation by saying, “Individually, those of us in the intelligence community are relatively small and limited. Unified, our own combined potential is magnified and limitless. It is through unity of action that we can tremendously increase our intelligence-gathering potential, and, I am certain, obtain the answers the President wants.”102 This optimism about bringing the intelligence community together to leverage its limitless power would ultimately be the plan’s undoing, as Sullivan lost Hoover’s trust. Sullivan described Hoover’s intense dislike of Huston in his autobiography, The Bureau, stating, “[Hoover] never called [Huston] by his right name, and in our conversations, he never referred to him by any other name except ‘that hippie,’ taking his cue from Huston’s two-inch sideburns.”103 Since Sullivan aligned himself with Huston, that decision was sure to evoke Hoover’s ire. Huston saw Sullivan as his entry point into the Bureau. He reached out to Sullivan about the Huston Plan long before he contacted Hoover. Huston expressed to Sullivan the White House’s disappointment with Bureau intelligence. Sullivan believed that Hoover had begun to shrink from taking risks during the 1960s. He explained, “By 1970, [Hoover] was reluctant to allow his agents to break into embassies, tap telephones, or open other people’s mail, even though these were the very investigative techniques to which he owed his publicized successes.”104 More importantly, however, by refusing to approve past illegal techniques, Hoover “put the Domestic Intelligence Division of the FBI out of business.”105 Sullivan headed the Domestic Intelligence Division; when Hoover disabled it, he also disabled Sullivan. Frustrated by Hoover’s lack of support, Sullivan immediately responded sympathetically when Huston expressed disapproval for the Bureau’s intelligence operations. He wrote, “The Nixon White House wanted the FBI to be more aggressive, not less. Hoover’s refusal to bug, tap, and open mail was the straw that broke the camel’s back. The time had come to apply pressure.”106 When Huston contacted Sullivan, he explained that the president was so disappointed in the quality of intelligence received from FBI that he had instructed Huston to work with the Bureau to do something different, something more effective.107 Furthermore, the White House was well aware that the Bureau refused to cooperate with the CIA and other agencies. Sullivan explained,

All of these little empires in intelligence—the FBI, State Department, NSA, and the others—had built fences around themselves. I had never seen anything like it. We wouldn’t share our information with anyone,

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and no other agency liked to give up anything because Hoover would leak it to the newspapers and use it against them if he could. To me, Huston looked like manna from heaven. A serious, informed analysis of the nature, functions, and objectives of intelligence had never been undertaken in this country. Perhaps, with my help, Huston and the White House could reorganize the entire intelligence community.108

On June 5, 1970, Huston finally invited both Hoover and Sullivan to the White House to discuss the structure of his forthcoming plan. Though Huston had made clear he wanted to create a plan for collecting future intelligence, Hoover only wanted to recount the Bureau’s past successes. Sullivan remembered, “At the meeting, Huston made it clear that the president was not interested in Hoover’s one-sided version of FBI history. From that moment, Hoover hated Huston.”109 Shortly thereafter, Huston managed to corral an intelligence subcommittee, chaired by Sullivan, to create the famed Huston Plan. Sullivan argued that the report did not reflect the viewpoints of Huston but rather showcased the consensus of agency representatives who were charged with devising a better way to cooperate in the pursuit of domestic intelligence gathering.110 In his autobiography, Sullivan made no mention of the tactic that he advised Huston to use as a measure to get Hoover’s approval—namely, that he secure the other three intelligence agency directors’ signatures before soliciting Hoover’s signature last. Yet, Sullivan recounted Hoover’s distaste for the report’s draft; he wrote, “It was evident from the beginning that Mr. Hoover was opposed to the entire report.”111 He argued that Hoover mostly opposed the idea that anyone in the intelligence community had the authority to encroach upon the FBI’s jurisdiction in domestic intelligence by carrying out duties previously reserved solely for the Bureau. Sullivan and Hoover had been in conflict regarding FBI intelligence collection since as early as 1967. A Time magazine article in 1971 reported, “Since 1967, [Hoover and Sullivan] have been at odds about espionage restrictions, ordered by Hoover, that severely limited FBI investigations of spies.”112 The article chastised Hoover’s departure from controversial tactics like wiretaps and electronic eavesdropping, stating, “Civil libertarians have long condemned such tactics; Hoover’s restrictions, however, resulted only from a pragmatic desire to avoid embarrassing incidents and from his belief that American public opinion would not condone ‘dirty games’ by FBI agents.”113 The article portrayed Sullivan as a warrior against Soviet espionage who became concerned about the Bureau’s ability to detect spies under Hoover’s restrictions. Hoover

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had long had a reputation as a staunch supporter of the Cold War against the Soviet Union. Critics attacked his obsession with the Soviet Union as an “‘archaic’ anti-Communist preoccupation.”114 That he was less of a Cold Warrior than Sullivan became a point of irony; and yet, instead of questioning the motives of a man whose obsession with fighting communism and espionage went beyond the almost comical obsession of J. Edgar Hoover, the news report sided with Sullivan. Although Attorney General John Mitchell sided with Hoover regarding the Huston Plan, he did not allow Hoover free rein of the Bureau. Instead, beginning in 1971, he allowed the Justice Department to edit the FBI’s crime reports, a slight that Hoover could not ignore.115 Hoover believed that this development came about because “someone within the FBI was giving the administration a false picture of his operations.”116 Indeed, the Nixon administration believed, based upon what Sullivan told them, that the FBI had no effective analytical capability. Huston found that the FBI was good “at collecting raw intelligence data” but could not assemble the intelligence into a useful product for policymakers. In other words, the Bureau could not make actionable intelligence.117 Furthermore, Hoover seemed to refuse efforts from the larger intelligence community to improve the Bureau’s intelligence capabilities. After Hoover’s falling out with the CIA, Director Helms offered to provide training on intelligence analysis. Huston recalled, Helms, in an effort to try to make peace with Hoover offers him to, you know, provide certain support. And one of the things he offers is to conduct training sessions on writing of analytical analysis, and preparation of intelligence analysis and stuff, and Hoover just gives him the backhand and says, “No thank you, I don’t want any of that.” All he wanted was some fancy equipment that Helms—the CIA had. But Hoover— Hoover dismissed all that stuff as Ph.D. intelligence. You know, he wasn’t interested in Ph.D. intelligence. I mean this guy was a cop. He thought of himself as a cop, not an intelligence officer. And it was terribly frustrating to those people like Sullivan, and Chuck [Brennan], and others who were intelligence people.118

That Hoover would reject any efforts to improve intelligence within the Bureau was maddening to Sullivan, who was trying his best to exercise his role as head of domestic intelligence for the Bureau. But perhaps most scathingly, Hoover’s actions imply not just that he rejected efforts to improve intelligence as a matter of pride but that he detested the act of analyzing intelligence itself. Even as a well-educated man (having

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received a law degree as well as a master’s), Hoover saw the CIA’s intelligence analysis as an elitist, PhD-level pursuit. Given the juxtaposition of Hoover’s and Sullivan’s attitudes toward intelligence and the immense pressure from the White House for the Bureau to bolster its intelligence efforts, the tension between the two FBI leaders could only thicken. Sullivan conveyed his frustration to Huston, admitting that the Bureau lacked effective intelligence resources. Huston disclosed,

I know what Bill Sullivan, head of the Internal Security Division, believes. I know what Chuck Brennan and the other deputies in the Internal Security Division believe. I know what the analysts believe. And every one of those people believe that we’re woefully inadequate. We don’t have the resources we need. [The FBI is] not doing the job that needs to be done, and [is] particularly vulnerable as a consequence of our inability to have effective liaison relationships in cooperation with the CIA.119

The information that Sullivan provided to Huston put him in a precarious position. Hoover suspected someone in the Bureau was leaking negative information to the Nixon administration. Quickly, he surmised that person was Sullivan. In late July 1971, Hoover demoted Sullivan from number three in the Bureau to number four by creating a new position above Sullivan. Hoover also “summoned Sullivan to his office and heatedly berated him for 2 1/2 hours . . . [implying] that Sullivan was insolent and disloyal.”120 The clear implication that day was that Hoover wanted Sullivan to resign. Against Hoover’s wishes, Sullivan refused to budge. Several weeks later, Hoover wrote to Sullivan, “suggesting” that he take two weeks’ vacation. When Sullivan declined the offer, Hoover sent an infamous “blue gem”—a note from the director penned in blue ink—that stated, “Take two weeks. —H.”121 While Sullivan embarked on his mandatory vacation, Hoover chose his replacement, Alex Rosen, the chief of the FBI’s General Investigative Division. By the time Sullivan returned to work, he found Rosen occupying his office.122 On October 1, Sullivan took sick leave. While he was away, Hoover changed the locks on his office and removed his nameplate. The FBI press office announced that Sullivan had voluntarily retired.123 The dispute between Hoover and Sullivan led the public to question whether Hoover had too much authority. A Time article stated, “The Sullivan-Hoover battle was more than simply an internal bureaucratic feud, and more even than a controversy over different approaches to intelligence operations. It raised serious questions about a secretive, enormously powerful Government

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agency under dictatorial rule, operating on its own, answerable to no authority except the judgments—or whims—of one man.”124 The debacle with Sullivan illustrates important points about the Bureau and Hoover in the early 1970s. During the time when the Huston Plan was developed, the press and the public came down on the side of Sullivan instead of Hoover, showing the public’s apparent acceptance of intelligence gathering, even by illegal methods. That acceptance would dissipate following Watergate, but at the time of Sullivan’s firing, many questioned whether Hoover had shot himself in the foot. Sullivan vehemently argued for the return of controversial tactics in the furtherance of collecting domestic intelligence, and even though the public would, only several years later, rescind its acceptance, in 1971 it fell staunchly on his side. Even stranger, the public and the press both attacked Hoover for being comically anticommunist, and yet they believed that he had lost his spirit for collecting intelligence and fighting espionage when he refused to give in to Sullivan’s requests for expanded intelligence collection. Even though Hoover remained popular in national polls, he had plenty of critics who believed he was no longer fit to serve as director of the FBI. Some critics argued he was too aggressive; others lamented that he was not aggressive enough. Hoover was in a delicate position during the early 1970s. Though he retained his position as director, he was clearly vulnerable in ways he had not been earlier in his career. Brennan’s speculation that Hoover had become so careful about collecting intelligence because he feared that he could easily be fired, despite an executive order keeping him in office, showed the fine line that Hoover walked in making sure that he kept his job.

The Politicization of Intelligence

The Huston Plan and its demise had implications even broader than its effects on Sullivan and Hoover. The plan represented the politicization of intelligence by the Nixon administration. In addition to using intelligence agencies, Huston also sought to use the Internal Revenue Service (IRS) to monitor New Left groups. In a memo to Nixon’s chief of staff Haldeman, Huston wrote, “I am attaching a copy of a report from the IRS on the activities of its ‘Special Service group’ which is supposed to monitor the activities of ideological organizations (for example, Jerry Rubin Fund, Black Panthers, et cetera) and take appropriate action when violations of IRS regulations turn up.” 125 Most frightening, Huston rec-

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ognized that the IRS and intelligence agencies could be used by the administration to go after groups where no basis for criminal prosecution existed. He wrote to Haldeman, “What we cannot do in a courtroom via criminal prosecution to curtail the activities of some of these groups, IRS could do by administrative action. Moreover, valuable intelligence type information could be turned up by IRS as a result of their field audits.”126 When questioned by the Senate committee about his use of the IRS to collect intelligence against New Left groups, Huston denied that he had ever done so; yet the memoranda declassified for the hearing show incontrovertibly that Huston had, at the very least, intended to use the IRS as a part of his greater plan.127 When placed into the hot seat of congressional questioning, Huston fell back on the administration’s fear of the New Left. He argued that he was not pursuing mere antiwar protesters. He testified, I really was peripherally interested in the antiwar demonstrations. What I was concerned about was the 40,000 bombings that took place in 1 year. What I was concerned about was the 39 police officers who were killed in sniping. . . . But all I want to say for the record is, I thought we had a serious problem. I was not concerned about people who didn’t like the war. I wasn’t concerned about people who thought Nixon was a louse. I was not concerned about who was going to be the Democratic nominee. I am talking about—we were talking about bombers; we were talking about assassins; we were talking about snipers.128

Later, he backed up his fear with numbers, noting that in 1970, bombings, assassination attempts, and sniping incidents were at an alltime high. May 1970 saw forty thousand bombings nationally, and ROTC facilities saw an average of six arsons a day.129 Those numbers buffered Huston from the brunt of congressional scrutiny for the plan that Senator Church classified as a “violation of the law.” 130 Huston argued that the intelligence community had manipulated him continually by assuring him that its agencies needed the authority to conduct what the Huston Plan would have allowed. Upon finding out later that the CIA had already been doing the things that the plan authorized, Huston felt duped.131 When Huston believed the senators questioning him were trying to blame him entirely for the Huston Plan, from construction to (brief) implementation, he retaliated,

The impression, Senator, of course, is that I kind of sat down here and created out of whole cloth an entire array of new techniques to exploit

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and infringe upon the civil liberties of the American people, and that I forced it down Dick Helms’ throat, and I blackjacked Admiral Gayler, and I really used my heavy weight on all of these poor little professional intelligence people and forced them into coming up with all of this. Now, I think the fact of the matter is that the entire intelligence community, in the summer of 1970, thought we had a serious crisis in this country. I thought we had a serious crisis in this country. My attitude was that we have got to do something about it. Who knows what to do about it? The professional intelligence community. The professional intelligence community tells me, this is what—you give us these tools; we can solve the problem. I recommended these tools.132 Although he deflected blame in the early proceedings, Huston later recalled his regret at being part of the plan. His final words, set against the backdrop of the fallout from Watergate, admitted his naivete at the time of the Huston Plan. In retrospect, the plan was unconstitutional. Though Huston argued he had good intentions in setting it up, it became a political tool for the Nixon administration. The plan became, as Senator Richard Schweiker stated, an idea that kept emerging “almost like a phoenix out of the ashes,” eventually being resurrected as Nixon’s “Plumbers.”133 Huston explained his regret, stating,

The risk was that you would get people who would be susceptible to political considerations as opposed to national security considerations, or would construe political considerations to be national security considerations, to move from the kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate. And you just keep going down the line. I think people start out with the best intentions in the world. I don’t think there was anyone that was involved in this operation who was motivated by a desire to protect the President, to secure his reelection, to embarrass the Democrats, to engage in any partisan political purpose. There was no one who was going to get any medal put on him that said, “hero,” or who was going to be invited as a special guest to the White House Press Club. But we went from this kind of sincere intention, honest intention, to develop a series of justifications and rationalizations based upon this, what I believe to be the basic issue of this distorted view of inherent executive power, and from that, whether it was direct, as Senator Schweiker seems to think it is, or was indirect or inevitable, as I tend to think it is, you went down the road to where you ended up, with these people going into the Watergate.134

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The Huston Plan, written in the early days of the Nixon administration, before Watergate, foreshadowed Nixon’s later trials. During the questioning of Angleton in 1976, Senator Schweiker asked, “Did the Plumber’s unit not do some of the same things, breaking and entry, illegal burglary, that the Huston plan proposed?”135 When Angleton answered affirmatively, Schweiker proclaimed, “So in essence, [the Nixon administration] went around the back door instead of the front door. Even though the Huston plan was dead I believe it had nine lives.”136 The Huston Plan was a complicated intelligence indiscretion. As Brennan testified to the Senate in 1975, the FBI never effectively produced any intelligence to show that foreign communist elements were funding the efforts of the New Left. 137 The federal government’s General Accountability Office (GAO) later found that only 16 of the 676 cases opened by the Bureau to investigate the New Left were ever referred for prosecution; of those 16 cases, only 4 resulted in convictions.138 The Huston Plan provoked Hoover’s giant ego and sparked in him a reluctance to collect domestic intelligence, even with the direct endorsement of the president. It was born amid a time of actual peril, as evidenced by the statistics surrounding bombings and campus violence. Yet the efforts of the intelligence community, both before and after the Huston Plan, to counter domestic violence resulted in few gains. Huston’s plan led to Hoover’s and Sullivan’s falling out, which elicited public scrutiny of the Bureau. The later 1970s showed that Hoover had disregarded the Constitution plenty of times in the name of national security; perhaps he knew his earlier thwarting of the Fourth Amendment would eventually be his undoing, hence, his reluctance to go along with the Huston Plan, given that he had no guarantees that Nixon would protect him if the Bureau ever came under public scrutiny. The Huston Plan also represented the dysfunctional intelligence community of the early 1970s. Hoover, despite his waning power, still exercised enormous influence within the community. Not only did he have the power to halt domestic and international intelligence collaboration among agencies, but, as Huston noted, he had the ability to demolish a plan agreed upon by the intelligence community. Though the Huston Plan has merited a mere footnote or occasional page in histories about the Bureau, its importance to understanding the Bureau and the Nixon administration during the 1970s should not be underestimated. Among other things, the Huston Plan, as Nixon’s attempt to authorize the US intelligence community to counter political threats against him, was the precursor to Watergate.

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Finally, the Huston Plan is perhaps most significant for what it reveals about Nixon. The agreement, though overseen by Huston, came into being at Nixon’s prodding. He was certain that communist governments had funded the New Left’s rise, and he wanted the intelligence community to prove his hunch. When intelligence agencies returned empty-handed, Nixon found their answer unsatisfactory. The evidence was there, he reasoned. They simply hadn’t looked hard enough for it. Nixon’s behavior is a case study in confirmation bias. He demanded that intelligence agencies search until they confirmed his belief. The historical record shows that the Bureau struggled to collect intelligence on the New Left at the beginning of Nixon’s presidency. True, the intelligence Nixon craved—the intelligence he insisted was there—simply didn’t exist; there was no international conspiracy among communist countries to fund the New Left and overthrow the US government. Still, the Bureau likely couldn’t have collected such intelligence, even if it did exist. The demise of the Huston Plan set Nixon on a new course of action. When he agreed to dismantle the plan at Hoover’s request, he didn’t do so as a favor to Hoover. Rather, Nixon privately accepted that he was better off working with someone other than the intelligence community. Rather than continue to receive the “wrong answers” from the CIA, rather than fight Hoover and the FBI at every turn over every minor request for information, Nixon believed he was better off finding a new way to collect intelligence. In the days following the Huston Plan, the president began to assemble a group of former intelligence community operatives. They were loyal only to him. They would collect the intelligence he wanted, in furtherance of his political agenda. He called the group the “Plumbers,” and they operated secretly at the president’s behest. In a matter of weeks, Nixon resurrected the Huston Plan, and the intelligence community was none the wiser.

Notes

1. “J. Edgar Hoover, ‘Speech Before the House Committee on Un-American Activities’ (26 March 1947),” Voices of Democracy: The U.S. Oratory Project, http://voicesofdemocracy.umd.edu/hoover-speech-before-the-house-committee -speech-text, paragraph 26. 2. Ibid., paragraph 34. 3. Seth Rosenfeld, Subversives: The FBI’s War on Student Radicals and Reagan’s Rise to Power (New York: Picador, 2012), 28, 29. During this time, FBI clerks assembled thousands of index cards that contained intelligence on American citizens’ alleged communist leanings. Much of the information included constitutionally protected First Amendment speech.

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4. Ibid., 71. Rosenfeld writes that in 1960, Hoover began to take an interest in the protest activities happening in universities. In a report compiled by the FBI in March 1960, titled “What Is the University of California?” the Bureau alleged, “It is of interest to note . . . that there are a good many individuals who either are members of the faculty, students, or employees of the University and its branches who are of considerable interest [to the FBI].” 5. Bryan Burroughs, Days of Rage: America’s Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence (New York: Penguin Press, 2015), 59. 6. Ibid., 59–60. 7. The traditional historical narrative involving the New Left tells of students full of “Kennedy-esque optimism” who gathered at Port Huron to draft a new agenda for their generation. These “New Left” students, while not advocating communism, refused to renounce it. Such distinction separates the “New Left” from the “Old Left.” 8. Abbie Hoffman, Steal This Book (New York: Four Walls Eight Windows, 1971; reprinted 1996), 221. In addition to Steal This Book, Hoffman’s writing career also included Fuck the System, Revolution for the Hell of It, and Woodstock Nation. 9. Ibid., 222. 10. Burroughs, Days of Rage, 26–27. 11. Richard Nixon, RN: The Memoirs of Richard Nixon (New York: Simon & Schuster, 1978), 469. 12. Burroughs, Days of Rage, 20. 13. Nixon, RN, 471. 14. Burroughs, Days of Rage, 27. 15. Ibid., 50. 16. Peniel E. Joseph, “The Black Power Movement: A State of the Field,” Journal of American History (December 2009): 751–776, 762. 17. Ibid. 18. Lou Cannon, “The Siege Psychology and How It Grew,” Washington Post, July 29, 1973, C1. 19. Matthew D. Lassiter, The Silent Majority: Suburban Politics in the Sunbelt South (Princeton, NJ: Princeton University Press, 2006), 8. 20. Burroughs, Days of Rage, 113. 21. J. Edgar Hoover, Letter to College Students, Nixon Library, September 21, 1970, 2. 22. Ibid., 3. 23. Ibid., 4. 24. Ibid. 25. Ibid. 26. Ibid., 5. 27. Ibid., 5. 28. Ibid., 7. 29. US Congress, Senate, The Huston Plan: Hearing Before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States, Senate, 94th Cong., 1st sess., September 23–25, 1975, 396 (hereafter Huston Plan Senate Hearings). 30. The Senate Committee to Study Governmental Operations with Respect to Intelligence Activities investigated Nixon’s actions against student radicals, which became known as the “Huston Plan,” on September 23–25, 1975, as a part of a larger investigation of the intelligence community, known informally as the “Church Committee,” after the unit’s head, Senator Frank Church (D-ID).

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31. Tom Huston, transcript of an oral history conducted in 2008 by Timothy Naftali, Nixon Presidential Library, 2008, 12 (hereafter Huston transcript). 32. Memo, “Operational Restraints on Intelligence Collection,” written by Tom Huston (exhibit 22.1 in the Huston Plan Senate Hearings). 33. Nixon, RN, 470. 34. Henry Kissinger, Ending the Vietnam War: A History of America’s Involvement in and Extraction from the Vietnam War (New York: Simon & Schuster, 2003), 153. 35. Nixon, RN, 451. 36. Ibid., 457. 37. Bernardine Dohrn, “A Declaration of a State of War,” Berkeley Tribe, July 31, 1970, http://www.lib.berkeley.edu/MRC/pacificaviet/scheertranscript.html. 38. The Huston Plan stated, “Leaders of student protest groups have traveled extensively over the years to communist countries; have openly stated their sympathy with the international communist revolutionary movements in South Vietnam and Cuba; and have directed others into activities which support these movements. These individuals must be considered to have potential for recruitment and participation in foreign-directed intelligence agencies” (see Huston Plan Senate Hearings, Exhibit 1, Special Report Interagency Committee on Intelligence [Ad Hoc], 147). 39. Ibid., 1. 40. Huston transcript, 27. 41. Ibid., 27–28. 42. Ibid., 24. 43. Huston Plan Senate Hearings, 27. During the question, Senator Huddleston asked Huston, “Were you flattered by the fact that this plan carried your name?” Huston replied, “It was an honor at the time I would have been very happy to do without, particularly since it had been my intention to leave the administration at the end of the second year anyway.” 44. Richard Nixon Presidential Library (hereafter Nixon Library), Ehrlichman, Box 23, Intelligence Memoranda—Huston, Intelligence Memorandum 1, October 29, 1969. 45. Nixon Library, Ehrlichman, Box 23, Intelligence Memoranda—Huston, Intelligence Memorandum 5, November 7, 1969. 46. Nixon Library, Ehrlichman, Box 23, Intelligence Memoranda—Huston, Intelligence Memorandum 2, October 30, 1969. 47. Nixon Library, Ehrlichman, Box 23, Intelligence Memoranda—Huston, Intelligence Memorandum 3, November 3, 1969. 48. Nixon Library, Ehrlichman, Box 23, Intelligence Memoranda—Huston, Memorandum for John Ehrlichman, November 20, 1969. 49. Ibid., 1. According to the memo, the news article attacking the Bureau’s performance leading up to the protests was written by Bob Walters for the Washington Evening Star. Specifically upsetting to Hoover was the fact that the article attacked the Bureau’s intelligence-gathering resources, explaining, “It was that lack of hard intelligence information, the highly pessimistic prediction of mass violence and a desire to keep down the size of the weekend crowd which led Dean . . . to announce [that in the view of Justice there was substantial likelihood of violence]” (2). 50. Ibid., 2. 51. Ibid., 3. There was no indication of whether or not Ehrlichman actually sent Huston’s draft letter to Hoover to thank him for his intelligence gathering related to the DC protests. Nevertheless, the letter provides evidence of the importance that Huston placed on cooperation from the Bureau in regard to the administration’s intelligence gathering. 52. Huston Plan Senate Hearings, 4.

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53. Ibid., Exhibit 2, 189. 54. Ibid., 5. 55. Ibid., 189. Huston, clearly at his wit’s end with Hoover, wrote a memo to Haldeman suggesting that Nixon handle Hoover accordingly: “Mr. Hoover should be called in privately for a stroking session at which the President explains the decision he had made, thanks Mr. Hoover for his candid advice and past cooperation, and indicates he is counting on Edgar’s cooperation in implementing the new decisions” (191). 56. Ibid., 8. Huston testified before the Senate that “[Nixon authorized the Huston report] thinking that he was authorizing these openings, not knowing that his authority was an idle gesture, since these practices had been going on for a long time prior to the request for his authority. And after he revoked that authority, the practices continued, even though he had revoked it” (16). 57. Ibid., 189. 58. Ibid., 8. 59. Ibid., 8. 60. Ibid., 98. In his memo, Hoover wrote, “I note that requests are still being made by Bureau officials for the use of ‘black bag’ techniques. I have previously indicated that I do not intend to approve any such requests in the nature, and, consequently, no such recommendation should be submitted for approval of such matters. This practice, which includes also surreptitious entrances upon premises of any kind, will not meet with my approval in the future. Very truly yours, John Edgar Hoover.” See Exhibit 33, 276. 61. Ibid., 189. 62. Ibid., 189. 63. Ibid., 190. 64. Ibid., 190. 65. Robert M. Smith, “FBI Is Said to Have Cut Direct Liaison with CIA,” New York Times, October 10, 1971. 66. Huston Plan Senate Hearings, 9 (Huston testifies), 67 (Angleton testifies), and 124 (Brennan testifies). 67. Huston Plan Senate Hearings, Exhibit 47, 347. 68. Smith, “FBI Is Said to Have Cut Direct Liaison with CIA.” 69. Huston Plan Senate Hearings, 124. 70. Smith, “FBI Is Said to Have Cut Direct Liaison with CIA,” 62. 71. Ibid. 72. Ibid. 73. Ibid. 74. Ibid. 75. Huston Plan Senate Hearings, 84. 76. William Sullivan, The Bureau: My Thirty Years in Hoover’s FBI (New York: Pinnacle Books, 1979), 214. 77. Ibid., 214. 78. Richard Helms, director of the CIA, wrote in a private memo of his surprise at finding out that the attorney general had not been briefed on the plan. See Huston Plan Senate Hearings, Exhibit 20, 247. 79. Ibid., 15. 80. Ibid., 15. 81. Ibid., 15. 82. Ibid., 15. 83. Ibid., 15. 84. Ibid., 24. Senator Baker, a participant in the hearings on the Huston Plan, recalled Mitchell’s anger at the Huston Plan. He stated, “As I recall the testimony of

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Mitchell in the Watergate hearings, he indicated that he was considerably distressed, if not in fact irate, about these proposals, and as quick as he could he got in touch with the President to put a stop to it.” 85. See National Security Act of 1947. The act provided an explicit framework regarding the agencies’ jurisdictions. 86. Huston Plan Senate Hearings, 20. 87. Ibid., 20. 88. Ibid., 22. The October 10, 1971, New York Times article, “FBI Is Said to Have Cut Direct Liaison with CIA,” alleged that intelligence officials worried that Sullivan’s departure from the FBI, following his “retirement,” would lead to further breakdown in intelligence cooperation between the Bureau and the CIA. 89. Smith, “FBI Is Said to Have Cut Direct Liaison with CIA,” 62. 90. Ibid. 91. Robert M. Smith, “Hoover, in Unusual Letter, Defends FBI Operations,” New York Times, October 17, 1971, A1. 92. The article stated, “Mr. Hoover pointed out that people associated with the conference—he did not name them—had already said critical things about the bureau so that he had doubts about the conference’s impartiality.” See Smith, “Hoover, in Unusual Letter, Defends FBI Operations,” A1. 93. Ibid. 94. Huston Plan Senate Hearings, 23. 95. Ibid., 35. 96. Huston transcript, 21. 97. Huston Plan Senate Hearings, 69. 98. On May 8, 1964, President Lyndon B. Johnson signed Executive Order 11154, titled “Exemption of J. Edgar Hoover from Compulsory Retirement for Age.” The order acknowledged that in January 1965, Hoover became “subject to compulsory retirement for age under the provisions of the Civil Service Act” at the age of seventy. The order alleged that the public interest demanded that Hoover be exempt from such a requirement. An executive order holds no legal standing under any following president unless such president wishes to continue the order. Thus, any president after Nixon could have easily undone Johnson’s executive order and forced Hoover out the door. 99. Huston Plan Senate Hearings, 97. 100. Sullivan, The Bureau, 205. 101. Ibid., 17. 102. Ibid., 9. 103. Sullivan, The Bureau, 209. 104. Ibid., 205. 105. Ibid., 205. 106. Ibid., 206. 107. Ibid., 206. 108. Ibid., 208. 109. Ibid., 209. 110. Ibid., 211. 111. Ibid., 212. 112. Nixon Library, Ehrlichman, Box 23—J. Edgar Hoover, Company President, Time Magazine, “The File on J. Edgar Hoover.” 113. Ibid., 1. 114. Ibid. 115. Ibid.

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116. Ibid. Hoover’s hunch that someone was informing the administration of the Bureau’s operations was actually correct. Huston testified in his Senate hearing that Sullivan told him that Hoover was “unduly [inhibiting]” the FBI’s efforts to collect intelligence. See Huston Plan Senate Hearings, 3. 117. Huston Plan Senate Hearings, 34. Furthermore, Huston testified, “the FBI’s Intelligence Division is always the last in line for new people, always the last in line for money. There are shortages of people and personnel, and I am, for example, convinced that there are vastly inadequate resources available in the Bureau to lead with the espionage threat in this country, simply because they do not have the manpower for it” (34). 118. Huston transcript, 32. 119. Ibid., 21. 120. “The File on J. Edgar Hoover,” 67. 121. Ibid., 68. 122. Ibid., 70. 123. Ibid., 72. 124. “The File on J. Edgar Hoover,” page unnumbered. 125. Huston Plan Senate Hearings, 10. 126. Ibid., 12. 127. Ibid., 12. 128. Ibid., 13, 18. 129. Ibid., 32. 130. Ibid., 13. 131. Ibid., 40. 132. Ibid., 17. 133. Ibid., 42. 134. Ibid., 45. 135. Ibid., 71. 136. Ibid., 71. 137. Ibid., 106. 138. Ibid., 101.

3 Protecting the Bureau’s Jurisdiction

J. Edgar Hoover became director of the FBI in 1924, at the height of the Roaring Twenties, on the heels of the Warren G. Harding administration’s Teapot Dome scandal. As the federal government fought to enforce Prohibition, the FBI regaled the nation with its battles against gangsters like John Dillinger and George “Machine Gun” Kelly. With the Great Depression came a surge in gang-related crime, which subsided as New Deal policies brought financial relief. Soon the country shifted its attention to World War II, as did Hoover. He dispatched FBI agents into the jungles of Latin America to hunt for Nazis. After the war, the Bureau diverted attention to the Soviet Union, haranguing against the evils of communism and deploying its resources full throttle to fight it. Throughout the 1950s and 1960s, the domestic battle against communism shifted from Senator Joseph McCarthy’s House Un-American Activities Committee hearings to suspicions against arbiters of political protest. Hoover detested Martin Luther King Jr. and his Southern Christian Leadership Conference and believed the Black Panther Party and Weather Underground sought to unravel the political order. He had no patience for the activism of the 1960s—dangerous radicalism, in his opinion—especially as it edged toward violence. Hoover had led the Bureau for nearly half a century. During his tenure, he saw presidents come and go, security threats wax and wane. All the while, the jurisdiction of the Bureau grew each year. By 1970, however, the United States under Richard Nixon was a very different place than it 49

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had been when Hoover took over the Bureau. Only during his service under Nixon did Hoover begin to feel acutely the limits of his Bureau. For much of his time as director, Hoover assumed an ironclad control over the Bureau’s public image. In those days, the Freedom of Information Act didn’t yet exist. If Americans knew anything at all about the Bureau, it was what Hoover wanted them to know. He employed ghost writers and favored journalists to write fast-paced, valiant narratives about the Bureau’s crime-fighting exploits. He lent his support to television shows and movies that portrayed the fearsome G-men as all-American heroes and do-gooders. Hoover invited these authors, movie stars, and directors into the Bureau’s secretive offices, gave them access to archival material hand-selected by him, and maintained authority to approve the final product prior to publication or premier. Not surprisingly, these accounts depicted the Bureau, Hoover, and his agents as tireless heroes taking down bad guys to keep small-town America safe. By the time Nixon became president, Hoover understood that America’s attitude toward communism and intelligence gathering had shifted. Since the end of World War II, fear of communism had fueled the mammoth US defense efforts, leading to the most expensive and technologically advanced military in history. The nation erected a permanent peacetime intelligence community, cobbling the CIA together from the remnants of World War II’s Office of Strategic Services and the State Department and pushing the FBI beyond mere law enforcement to the collection of domestic intelligence. Hoover prided himself on his white-collar cadre of educated G-men, ready to chase down bank robbers or expose a Soviet spy at a moment’s notice. By the time Nixon assumed office, however, Americans refused to place blind trust in the intelligence community’s respect for citizens’ constitutional rights. The ache of the civil rights movement in the 1960s and the senselessness of the Vietnam War had led to an overall shift in attitude. In general, Americans had less confidence in institutions. Ever the astute politician, Hoover sensed that the Bureau would soon account for its past actions, in a very public way, and he didn’t trust Nixon to come to his aid. Indeed, Hoover had good reason to fear that public opinion would turn against the Bureau. Two events occurring early in Nixon’s first presidential term caused Hoover to recalculate the level of criticism that the Bureau could withstand. The first involved the US military’s secret surveillance of American citizens, which came to light publicly around the time that Hoover and the rest of the intelligence community

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were hashing out the details of the Huston Plan. Known as Operation CONUS (an acronym for Continental United States Intelligence), the military operation authorized the same sort of surveillance that the Huston Plan would have allowed. When CONUS became public, the general public reacted with furor over the intelligence-gathering methods employed by the military. Meanwhile, Nixon refused to intervene, instead allowing the military to bear the brunt of the criticism. He did so, all the while knowing that his administration had secretly endorsed the army’s intelligence-gathering methods. When they leaked to the public, Nixon placed his own approval ratings first. He refused to jeopardize his public support by assisting intelligence agencies. Consequently, throughout Nixon’s first term, Hoover became increasingly reticent to embark on new intelligence-retrieval methods. Hoover saw firsthand Nixon’s willingness to allow the army to serve as the scapegoat for an intelligence program that Nixon had demanded. Hoover presciently relied upon CONUS as a litmus test for Nixon’s support and concluded that intelligence agencies, including the Bureau, could not rely upon the president. The second litmus test for Hoover involved the burglary into an FBI field office in Media, Pennsylvania, in 1971. When political activists broke into an FBI office in March of that year and stole all the Bureau’s files in order to leak them to the Washington Post, Hoover’s distrust of the public peaked. The flood of classified FBI files into the general public armed leftist activists and academics with the ammunition needed to launch a full-scale critique of the Bureau. Such critics had waited a lifetime for these revelations, which Media burglars procured directly from the FBI’s files. Again, during this troubling time, Nixon failed to come to the aid of the Bureau, and as a result Hoover was less and less inspired to come to the aid of the president.

Operation CONUS

The involvement of the intelligence community in domestic spying came as a surprise to Americans on the revelation of the Huston Plan through congressional hearings held during the Church Committee investigation in 1975. In actuality, however, the Lyndon Johnson and Nixon administrations had earlier gone to great lengths to collect intelligence on radical dissidents using not the intelligence community but the military. In 1971, Senator Sam Ervin (D-NC) initiated Senate hearings on army surveillance carried out in the late 1960s. Serving as the key witness for the

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hearings was a former army intelligence officer, Christopher Pyle. He reported on an operation known as “CONUS Intel.”1 An article written about Pyle’s testimony before Congress explained,

Set up originally during the riot-torn mid-’60s to gather information which might be helpful to the Army in quelling civil disturbances, CONUS had arrogated a broad territory of responsibility. Its operatives made investigatory targets of all kinds of people known in the spook trade as “Persons of Interest.” Some were of legitimate interest, like Stokely Carmichael and the Weathermen, but many others were engaged in such perfectly defensible activities as writing antiwar letters to their editors or congressmen, signing petitions, marching in peace demonstrations. Agents trailed bishops and politicians, photographed businessmen and birth control advocates, scribbled notes about ecologists and civil libertarians. Literally millions of dossiers were gathered in this way, and the Army’s response to outside queries about what had been done with this material was not distinguished by either clarity or candor.2

Included in the article were specific examples of operations carried out by military intelligence. These actions included monitoring civil rights activist Stokely Carmichael after Martin Luther King Jr.’s assassination; spying on a meeting of Catholic priests who opposed the church’s moratorium on birth control; monitoring the phone conversations of leftist senator Eugene McCarthy at the 1968 Democratic Convention; tracking the 1968 Poor People’s Campaign’s “mule marching train from Georgia to Washington, D.C.” in an effort to find signs of animal abuse; spying on conversations of mourners at Martin Luther King Jr.’s graveside; and reporting on the activities of college students at such events as Moratorium Day in 1969. 3 When Nixon became president, he ordered army intelligence agents to “infiltrate groups of potential demonstrators at [his] inauguration.” The article reported that “long-haired and bearded Army agents were issued liquor money and also marijuana, with instructions to use it and to pass it out to keep their cover.”4 The surge in domestic intelligence gathering by the military came amid the uproar against the Vietnam War. Intelligence reports compiled by the military reported on demonstrations, and occasionally the demonstrations turned violent. In the early morning of January 18, 1969, the military reported that protesters had firebombed the Selective Service National Headquarters.5 On the evening of Nixon’s inauguration, protesters, including GIs, planned to burn their voter regis-

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tration and draft cards and then host a “counter-inaugural ball” to last all night long.6 Some of the intelligence reported on benign threats, like a hippie commune of out-of-town dissidents staying in Washington, DC, in January 1969. The army surveillance turned out to be futile, as the young people were too unorganized to agree on any plan for a demonstration.7 In addition to antiwar demonstrations, the army also focused intelligence-gathering efforts on the civil rights movement. On March 12, 1968, the military monitored an event featuring Stokely Carmichael, a black revolutionary intellectual and activist from Mississippi.8 The military agents’ report discussed Carmichael’s call to arms, writing, “He indicated that Negroes should arm themselves for protection against ‘Whitey,’ and that they should fight in the United States and not in Vietnam.”9 Despite the army’s best efforts and the large scale of its surveillance, its agents “never predicted a riot or witnessed anyone trying to incite one.”10 Former army lawyer Christopher Pyle authored a 1970 Washington Monthly article that made the military’s actions public, and readers were outraged. Pyle revealed that in its efforts to monitor antiwar protests, the army had collected an extraordinary amount of intelligence on twenty-five million individuals.11 Much of this information resided in a computerized data bank housed at Fort Halbird, Maryland; Alexandria and Fort Monroe, Virginia; and Fort Hood, Texas.12 Using information gleaned from its own plainclothes agents as well as from the CIA and FBI, the military compiled vast reports on Americans. According to Pyle, some of the reports involved legitimate threats, while others did not. Accordingly, “surveillance reports on legitimate, peaceful individuals and organizations went into the bank along with reports on criminals and on organizations and individuals who were indeed worth watching.”13 One agent even reported that the military allowed new operatives a wide amount of discretion to make judgments on whether those being monitored were communists. As a result, he stated, “many persons who are not Communists have been so listed.”14 Pyle blew the whistle on the army’s CONUS operation because he believed that the United States had created “the intelligence apparatus of a police state.”15 His 1970 Washington Monthly article, which he published openly using his real name, catalogued the army’s intelligence abuses.16 Though Washington Monthly was a somewhat obscure publication, the article went into syndication and was soon published in fiftyone newspapers across the country, including local papers with a wide readership, like the Miami Herald and the San Francisco Chronicle.17 The article’s wide syndication also captured the attention of Congress.18

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Pyle had joined the army as a young attorney and taught at the Army Intelligence School from 1966 to 1968. He lectured on the collection of domestic intelligence and its legal boundaries. As Pyle, a captain, studied military law in order to teach it, he became concerned that the army’s actions violated the Constitution. During Pyle’s years of teaching, the army was preoccupied with Vietnam and subsequent protests sparked at home by war efforts. It decided to infiltrate antiwar groups as a means of squelching demonstrations against the Vietnam War, but the military was also interested in suppressing race riots taking place across the country. In the summer of 1967, when riots took place in Detroit and Newark,19 the violence allowed the army to justify its counterinsurgency efforts within the United States.20 Pyle visited army intelligence offices and read unclassified teletypes—reports from the Associated Press regarding demonstrations that were printed instantly, upon receipt of information.21 He discovered in news reports and, significantly, through the work of his students, who acted as military informants and agents, that the army was monitoring not only possible violence but also American citizens’ protected speech. Pyle found they were monitoring all sorts of things, and he was concerned to find this included forms of communication he understood to be protected by the First Amendment. Pyle decided to take action. He began to develop intelligence sources within the army, recruiting informants from among the rosters of students in his legal classes. As he taught soldiers the constitutional bounds of their jobs, he convinced them to tell him about instances where they superseded legal boundaries. At one point, he had 125 army agents engaged in domestic intelligence collection providing information to him. Pyle ran his own intelligence operation against the army, using the army’s own intelligence agents.22 Thanks to his agents, Pyle’s Washington Monthly articles were filled with anecdotes about army intelligence collection. Pyle approached the Senate Subcommittee on Constitutional Rights, chaired at the time by Senator Sam Ervin. Ervin, a staunch segregationist, was also interested in violations of the First and Fourth Amendments and believed that CONUS violated both. He agreed to hold hearings. 23 Pyle left his position in the army and went to work for Ervin, serving as a staff member for the committee investigating CONUS. While serving on the senator’s staff, Pyle drafted many of the questions that Ervin asked the army representatives in congressional hearings.24 Pyle’s Washington Monthly articles provided a cache of information about the army’s doings. At the time, the general public simply had no

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idea that the military was collecting information domestically. Pyle described the origins of the program, beginning in 1965.25 He wrote, “Nearly 1,000 plainclothes investigators, working out of some 300 offices from coast to coast, keep track of political protests of all kinds— from Klan rallies in North Carolina to antiwar speeches at Harvard.”26 Pyle alleged that when the program began, it was intended “to provide early warning of civil disorders which the Army might be called upon to quell.”27 Over time, the purpose of the program shifted. By 1967, “its scope widened to include the political beliefs and actions of individuals and organizations active in the civil rights, white supremacy, black power, and antiwar movements.”28 By 1970, the army maintained surveillance on “virtually every activist political group in the country,”29 to include such peaceful units as the Southern Christian Leadership Conference, Clergy and Laymen United Against the War in Vietnam, the American Civil Liberties Union (ACLU), Women Strike for Peace, and the National Association for the Advancement of Colored People.30 He described the army’s interaction with the FBI and local law enforcement, claiming that military intelligence received the majority of its briefings regarding upcoming protests from the Bureau. The army distributed its intelligence findings through a “nationwide wire service . . . [that gave] every major troop command in the United States daily and weekly reports on virtually all political protests occurring anywhere in the nation.” 31 In addition to the wire reports, the army published a book known as the “blacklist,” which contained profiles on people and organizations that army officials believed could one day cause trouble.32 He warned, “Sometime in the near future the Army will link its teletype reporting system to a computerized data bank.” 33 The computerized system was significant because, unlike computer databases housed at the FBI, the army’s computers “[would] not be restricted to the storage of case histories of persons arrested for (or convicted of) crimes. Rather, it [would] specialize in files devoted exclusively to descriptions of the lawful political activity of civilians.” 34 This unprecedented amount of computerized intelligence would theoretically be made available to the “FBI, the Secret Service, the Passport Office, the Central Intelligence Agency, the National Security Agency, the Civil Service Commission, the Atomic Energy Commission, the Defense Intelligence Agency, the Navy, and the Air Force.”35 To argue in support of its need for such detailed intelligence, the army likened its domestic intelligence gathering to efforts in Malaya and South Vietnam to break up guerrilla organizations, explaining that “without detailed knowledge of community ‘infrastructure’ . . .

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riot-control troops would not be able to enforce curfews or quell violence.”36 The army had brought its Vietnam War tactics home. Crucial to the army’s intelligence gathering was the question of legality. Upon what legal basis could the army carry out its acts of collection? Pyle authoritatively wrote, “Within the United States the Army has no authority to round up suspects the moment civilians take up arms.”37 That power remained with the FBI and local law enforcement. For the army to intervene and arrest US citizens, the president would have to declare martial law, which would only happen in extreme and unlikely circumstances.38 When news of the CONUS program reached the public, the Nixon administration justified the army’s actions using the “inherent powers doctrine,” a legal theory authorizing the president to use “whatever ‘intelligence-gathering operations he believes are necessary to protect the security of the nation’ and [holding] that this authority ‘is not dependent upon any grant of legislative authority from Congress, but rather is an inherent power of the President, derived from the Constitution itself.’”39 Pyle, however, argued against the legal basis of the inherent powers doctrine, explaining that federal courts had historically not upheld a president’s power to do whatever he wanted without answering to Congress.40 In addition to finding no legal basis for Nixon’s inherent powers doctrine, Pyle also argued that the army’s CONUS program violated the First Amendment due to “the chilling effect which knowledge of surveillance has upon the willingness of citizens to exercise their freedoms of speech, press, and association, and their right to petition the government for redress of grievances.”41 In short, if the program impinged upon people’s ability to feel secure in the ability to express their opinions, radical or distasteful as they might be to the government, then it violated citizens’ First Amendment rights to free speech. Pyle also believed that CONUS violated Americans’ right to privacy.42 It ensured citizens would think twice before participating in political activity. He wrote, “Once citizens come to fear that government agencies will misuse information concerning their political activities, their withdrawal from politics can be expected.”43 Pyle worried about worst-case scenarios in which the military or other government agencies abused intelligence and violated people’s rights. He wrote, “It is frightening to imagine what could happen if a demagogue in the Martin Dies–Joseph McCarthy tradition were to gain access to the computer the Army seeks now, or if an Otto Otepka in uniform were to leak a copy of the Intelligence Command’s so-called ‘blacklist’ to friends in Congress, or if a General Edwin Walker were to

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take charge of the Intelligence Command.”44 Pyle worried that corrupt politicians would use the intelligence gathered illicitly to favor their own interests. Pyle was so concerned about the illegality of CONUS and the dangers it posed that he recommended that Congress hold a hearing to investigate the army’s intelligence gathering and to look into other intelligence agencies’ similar violations. As Pyle’s allegations reached the public, the army responded by creating a fifty-man unit within the Pentagon to identify Pyle’s leaks and trace the source. Incidentally, Pyle continued his intelligence operation against the army by developing sources within the Pentagon group. One of his sources, known as “Yellow Pants” because of the mustard-yellow bell-bottoms he sported upon meeting Pyle for the first time, provided Pyle with information related to his leaks. Pyle stayed several steps ahead of the army’s investigation into his leaks—the army could not discover the identity of Pyle’s many sources. He managed to evade prosecution, a feat that he credits to his ability to keep his head down (he emphatically refused to make the story about himself, focusing instead on the intelligence), his ability to conceal the identity of his sources (to his knowledge, the military never realized the extent to which he had sources within the army or the identities of such sources), and also the military’s preoccupation at the time with trying to prosecute Daniel Ellsberg for leaking the Pentagon Papers. Amazingly, Pyle remained unscathed.45 In his hearing before Congress, Pyle testified that CONUS had failed miserably, as evidenced by the fact that US Army operatives were tailing Martin Luther King Jr. on the evening he was assassinated.46 Pyle’s testimony appalled members of Congress. In addition to hearing about the human intelligence that military operatives collected, Congress learned of the army’s technical capabilities. Ervin’s congressional committee evinced great interest in the use of computer technology to obtain and store information about those monitored by the army. Ervin worried that “breakthroughs in computer technology tend to create the real possibility of ‘a mass surveillance system unprecedented in American history.’”47 Equally concerning, Ervin worried that the army was handing its material gathered through CONUS to the FBI for use in Bureau investigations.48 Pyle’s decision to become a whistle-blower placed him at the center of the government’s suspicion. Years later, he recalled that upon his public disclosures, the army began targeting him for surveillance, writing, “It asked my mailman to monitor my correspondence and put me on President Nixon’s ‘enemies list,’ which meant a punitive tax audit.”49

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Despite receiving funding for his PhD through the GI Bill, Pyle claimed that the government tried to prove that the Chinese communists were funding his tuition.50 Though the army never prosecuted Pyle for his disclosures, it did everything in its power to make his life difficult. When news of its CONUS program reached the public, the army at first refused to comment. It diminished the scope of the CONUS program, claiming it only collected essential intelligence on a need-to-know basis.51 It forbade its agents from discussing any aspect of the program with the press. Its office in the Pentagon refused to reply to any congressional inquiries.52 Finally, on January 26, 1970, the army confirmed the existence of the nationwide intelligence apparatus but claimed that it merely collected political intelligence “in connection with Army civil disturbance responsibilities,” an assertion that Pyle hastily decried as false.53 Pyle knew that the army had not answered truthfully regarding its use of undercover agents. Instead, the army claimed it had a longtime prohibition against military persons performing undercover operations.54 To that, Pyle replied, “Of course, it did not say when the order was issued, or whether it was being obeyed. (It is not.)”55 Though the ACLU brought suit against the secretary of defense, the secretary of the army, the army chief of staff, and the commanding general of the Intelligence Command for violating political groups’ rights to free speech, a federal judge dismissed the suit, writing, “There is no threat that the Army is going to come in and arrest you.”56 Nixon eventually stepped in and demanded an end to the army’s collection of domestic intelligence, having overseen the army’s collection efforts since assuming the presidency in 1969. In a press conference on April 16, 1971, Nixon administration press secretary Ronald Ziegler stated, “I referred the other day, for example, to the fact that when the President found out recently that under a previous administration the Army intelligence people were conducting surveillance, that the President immediately ordered that that stop. I said the other day that that has stopped. The Army intelligence has absolutely no responsibility and will not under direct order from the President and the Secretary of Defense engage in that type of activity.”57 When Nixon’s administration approached the army about participating in the Huston Plan, the army used the congressional outcry against its CONUS program as justification to decline participation.58 The effects of Pyle’s revelations reverberated far past the army, beginning in his own social circle. Following his testimony before Congress, Pyle met a young professor, John Elliff. Elliff had received his PhD from Harvard in 1968 and was teaching at Barnard College.

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Elliff’s research centered on several issues relevant to Pyle’s testimony. First, Elliff was interested in the FBI and the civil rights movement, an issue pushed to the forefront of the discussion by Pyle and his unveiling of the army’s methods against civil rights activists. Second, Elliff had an interest in the tension between national security and civil liberties.59 Those topics of mutual interest between Pyle and Elliff led to a friendship. Pyle encouraged Elliff to look more closely at the FBI’s domestic intelligence gathering and introduced him to Senator Ervin’s Subcommittee on Constitutional Rights staff. As Elliff transitioned to a position as professor at Brandeis University, he continued his research into the FBI. Elliff’s interest propelled him to attend Princeton University’s 1971 conference on the FBI and Hoover; it served as the topic of his book The Reform of FBI Intelligence Operations and led him to serve as the lead congressional staffer in the mid1970s Church Committee investigation into the FBI. Both Elliff and Pyle worked for the Church Committee in 1975. Years later, Pyle recalled the CIA’s generous cooperation with him during his time on the Church Committee. Even knowing that he had leaked information about the army, the CIA still issued him a Top Secret Secure Compartmentalized Information clearance, one of the highest clearances available within the government. Pyle’s revelations served as the impetus for intelligence investigations that would follow, particularly into the FBI. Pyle demonstrated, for the first time, that the seal of impenetrability that had long pervaded intelligence agencies could, in fact, be broken. The public reveal of Operation CONUS led Nixon to order publicly that the army stop its surveillance of private citizens. Though it took several more years before the FBI answered to Congress in the way that the military did in 1970, the FBI in 1971 experienced its own leak of information when a group of antiwar activists broke into an FBI office in the middle of the night and opened all of its secret files for the world to see.

The Media Burglary

Though the army remained the focus of congressional debate and public scrutiny through 1970, the attention shifted to the FBI in 1971. That year became significant for the Bureau, as Hoover encountered an unprecedented amount of criticism. New Left activists and the academic community called the “cultism of Hoover” into question and exposed the Bureau’s political agenda. The impetus for this scrutiny originated in the break-in of an FBI field office on the early morning of March 8, 1971.

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Though the break-in story eventually received huge national attention, it started relatively small. On March 9, the New York Times published a pithy article about a break-in: “The Federal Bureau of Investigation office at Media, near here, was raided early today and Government property removed, according to an FBI spokesman. In an anonymous telephone call to a Philadelphia reporter, a group calling itself the Citizens Commission to Investigate the FBI said it had ‘removed all the records.’”60 Days later, more details about the break-in emerged. On March 24, Betty Medsger and Ken W. Clawson, Washington Post staff writers, began to describe the contents of files taken from the FBI’s Media office. Although the burglars had sent anonymous copies of the documents to multiple publications, only the Washington Post had any interest in publishing stories about them. Medsger and Clawson wrote, “Copies of stolen FBI records sent to the Washington Post described the bureau’s surveillance of campus and black activist organizations at one college as involving the local police chief, the postmaster, letter carriers, a campus security officer and a switchboard operator.”61 The documents, written by FBI agents running operations against New Left activists, encouraged other agents to continue interviewing political dissenters in order to propagate the notion that “there is an FBI agent behind every mailbox.”62 The Post article further alleged that FBI surveillance had been directed toward black student groups on university campuses, the Black Panther Party, and left-wing professors. The FBI and the Department of Justice attempted to control the spread of documents, as the people who had raided the office continued to copy and mail the stolen files to journalists and congressmen. The burglars identified themselves to journalists in hopes that they would publish the documents they had procured. Attorney General John Mitchell asked that newspapers not publish the contents of the files, saying that “disclosure of this information could endanger the lives or cause other serious harm to persons engaged in investigative activities on behalf of the United States.”63 The anonymous activists sent copies of the records to Senator George McGovern (D-SD) and Representative Parren J. Mitchell (DMD). Both of the congressmen turned the documents over to the FBI.64 In the coming weeks, the Department of Justice tallied its losses, concluding that the burglars who broke into the Media office took more than one thousand documents.65 The documents showed a history of regular surveillance against certain groups. They also showed a change in FBI policy that allowed the recruitment of student informants as young as eighteen years old.66

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As FBI documents surfaced, people wondered how the burglars had penetrated the seemingly impermeable Bureau. The FBI’s office in Media, Pennsylvania, was known as a resident agency, a smaller, regional office tied to the larger Philadelphia Field Office. The Washington Post reported that “the burglars forced open an unused door by pushing aside a file cabinet that normally blocked the door. They jimmied open the locked file cabinets and ransacked the room.”67 The FBI began an investigation into the burglars and increased security at its resident agency offices. As information from the files seeped into the public domain, the New York Times reported, “FBI surveillance of dissenters on the political left has been far more extensive than was generally known.”68 Equally disconcerting, the documents released by the Citizens’ Commission to Investigate the FBI demonstrated that “the subjects of inquiries include obscure persons marginally suspected of illegal activity,” including any students, teachers, and scientists who had visited the Soviet Union for one month or more.69 The FBI justified such investigations by saying it wanted to determine if the travelers had been the subjects of any counterintelligence efforts on the part of the Soviets. Despite pleas from Attorney General Mitchell and the FBI, the Citizens’ Commission to Investigate the FBI promised to make public “lists of ‘FBI informers and provocateurs.’”70 The burglars notified a Philadelphia paper with a statement: “In a few days we will contact a first group of these previously undercover agents and suggest they cease their repressive actions if they have not already done so. We will then inform those individuals and organizations against whom these agents were operating. Following that we will make the names of the first group of agents public.”71 In an effort to avoid arrest, members of the Citizens’ Commission to Investigate the FBI remained anonymous. In turn, the FBI went to great lengths to uncover who had broken into the office. An FBI memorandum to Hoover from his associate director Clyde Tolson, dated June 2, 1971, detailed the contents of a meeting among FBI executives regarding the Media break-in. Tolson emphasized the importance of the MEDBURG (break-in of the Media resident agency) case among those at FBI Headquarters.72 The Philadelphia FBI office was given authority over the investigation, with the warning that “SAC [Special Agent in Charge] Roy K. Moore, on special at Philadelphia, and SAC Jamieson, in Philadelphia, [are] not to take any leave until the MEDBURG case is solved.”73 The FBI scrutinized copy machines nationwide, trying to locate the precise machine that the Citizens’ Commission had used to

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run copies of the FBI files it sent to journalists and members of Congress. A report by the FBI in April 1971 claimed the FBI had focused on a certain Xerox machine but uncovered little beyond that.74 Despite its best efforts, the Bureau could not identify the burglars. The FBI publicly contended that the Citizens’ Commission’s selective release of documents “creat[ed] a distorted and unfair picture of overall bureau activities.”75 Journalists noted that the trickle of documents “created the impression—whether rightly or wrongly—that the bureau is engaged in pervasive surveillance of the political Left, just at a time when the Government is under fire for alleged overzealous surveillance of political dissenters.”76 Journalists struggled to decipher the meaning of the burglary and the release of Bureau files. Not knowing anything about the Citizens’ Commission, some chose to remain skeptical of the group’s motives. Fred P. Graham, a reporter for the New York Times, described the burglars as “anti-war activists, who were probably amateurs at burglary.” He even posited that they had “deliberately put [the FBI] in a worse light than it deserves.”77 As evidence of his contention, he elaborated on an anecdote about a professor, who the Media documents demonstrated was the target of an FBI investigation. Washington Post reporter Betty Medsger detailed the surveillance by the FBI against the professor, who worked at an East Coast college. Medsger alleged that the FBI surveilled the professor because of his radical beliefs.78 Yet the Justice Department, in the same day’s paper, claimed that the FBI had investigated the professor because intelligence suggested he would soon be visited by two fugitives on the FBI’s “Ten Most Wanted” list. The fugitives, Katherine E. Power and Susan E. Saxe, were “wanted for murder in the slaying of a Boston policeman during a bank holdup by political radicals [the previous] September.”79 As Graham noted, no one knew which side to believe: Was the FBI justified in investigating a professor associating with known fugitives? Or was it merely excusing its surveillance of a professor by attempting to tie him to criminals? The reports surfacing through the Media files painted the FBI in a light similar to that shown on the army a year before with CONUS. People worried about the FBI’s presence on college campuses; a New York Times article alleged, “There is a new man on campus among the freaks and fraternity men, the athletes and the esthetes, the bookish types and the bomb throwers. He is the spy.”80 The article compared the FBI to the army, noting that the latter, bowing to public pressure, had “cut back its civilian watching programs in the United States.”81 Unlike the army, the FBI had nurtured its program of surveilling dissent on college campuses. Its attempts at student infiltration sometimes backfired.

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One of the Media reports alleged that a University of Illinois student outed an FBI agent at a rally, proclaiming to the audience, “There’s someone here I think you should meet. That man there, in the blue jacket, with the camera, works for the FBI.” The Citizens’ Commission, all the while remaining anonymous, drafted memos to accompany its release of information and sent them to the files’ recipients. On May 3, 1971, the commission wrote,

Just eight weeks ago, all of the files in the desks and file cabinets were liberated from the Media, Penn., office of the FBI. Of these, some 30% were manuals, routine forms, and similar procedural materials. The remainder was as follows: 40% Political surveillance and other investigation of political activity. Of the cases, 2 were right wing, 10 concerned immigrants, and over two hundred were on left or liberal groups. 25% Bank robberies 20% Murder, rape, and interstate theft 7% Draft resistance, including refusal to submit to military induction 7% leaving the military without government permission 1% organized crime, mostly gambling.82

In a later letter, the Citizens’ Commission clarified its intent behind the break-in and dispersal of files:

Our purpose is not just to correct the more gross violations of constitutional rights by the FBI within the framework of its present goals and organization. Nor is it to attack personally individual informers, agents, or administrators. It is instead to contribute to the movement for fundamental constructive change in our society, for as we said in our initial statement, “as long as great economic and political power remains concentrated in the hands of small cliques not subject to democratic control and scrutiny, then repression, intimidation, and entrapment are to be expected.”83

Unsurprisingly, New Left groups immediately embraced the revelations of the Citizens’ Commission. Finally, these groups had proof from the FBI’s own files to support accusations they had long made of the Bureau. The War Resisters League, in a 1972 issue of WIN Magazine, published the first compendium of all the political documents taken from the Media office,84 which included myriad Bureau materials. Some were less political and instead revealed the quirks of Hoover’s

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FBI. An internal Bureau memo chided those agents making hiring decisions, saying, “Please, when interviewing applicants be alert for long hairs, beards, mustaches, pear shaped heads, truck drivers, etc. We are not that hard up yet.”85 Hoover had an obsession with agents’ weight, as reflected in a memo dated January 1, 1971, which advised that “during the months of July, October, January, and April of each year, each Special Agent must be weighed.”86 It continued with the caveat from a special agent in charge: “I expect every Agent and male clerical employee to maintain his weight within the desirable limits at all times.”87 Not all memos were so colorful. Some documented routine and boring communications relating to recruitment programs for agents and educational requirements for new agent hires. Those less-interesting forms received little attention. Aside from internal Bureau matters were documents pertaining to the Bureau’s work against war protesters. One such memo, titled “Tear Gas—Aerosol Type Dispensers,” guided agents on how to use the gas, stating that “in general, Special Agents are to follow the same rule concerning the carrying of aerosol type gas dispensers as they follow in carrying their revolvers.”88 The memo advised that agents should only use tear gas when they encountered physical resistance or were in high-crime areas where citizens were likely to interfere with arrest or brandish a weapon. It warned, “Investigative personnel should never rely on these devices to subdue assailants armed with a potential lethal weapon.”89 The materials also offered evidence of the Bureau’s wiretaps on protesters, including summaries of evidence gleaned from electronic surveillance. One memo, concerning the Black Panther Party, relayed a string of mundane communications intercepted by the FBI’s wire. A log read,

During a conversation between SANDRA and RUSSELL, RUSSELL mentioned that there was no heat in the office and that they had no money. During a conversation between DELORES and RUSSELL, DELORES stated that her baby was due in four months. RUSSELL reached EILEEN and left a message for her to tell SMITTY to tell MONTAE to be at staff meeting tonight. A representative of Western Union called for RUSSELL advising that they had a money order for him to pick up.90

These surveillance memos bore little to no intelligence value. The entirety of one memo clarified the differences between Old Left and New Left activists; it read like a term paper about the subject.91 Occasionally, the memos contained revelations, such as one that stated, “The

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Director has okayed PSI’s92 and SI’s93 age 18 to 21. We have been blocked off from this critical age group in the past. Let us take advantage of this opportunity.” This decision, made by Hoover, came following the dissolution of the Huston Plan, which would have allowed the FBI to lower its informant age from twenty-one to eighteen. Once the Huston Plan failed, Hoover decided to expand the age of Bureau informants anyway. One memo specified Bureau protocol upon learning of a New Left demonstration, stating,

When from reviewing underground newspapers, calls from outsiders, complaints or informants we know of a demonstration gathering, educational, or similar event planned by a New Left group, it should be given to SA DAVENPORT who will coordinate this calendar. He will log it with #4 secretary. This will enable us to project ahead what manpower needs we will have and enable us to answer all kinds of queries about the date we know a particular event is scheduled.94

In anticipation of possible demonstrations, the Bureau maintained a list of colleges and the number of enrollees within the Philadelphia area as well as instructions for resident agencies supplying the Philadelphia offices with information regarding their informants.95 Subsequently, the Bureau put together a Philadelphia Red Squad to report to the Bureau on antiwar demonstrations in the area. This squad, which included a civil disobedience team, monitored such organizations as a “Quaker Action Group.” In 1969, Quakers gathered at the Pentagon to protest the Vietnam War. They read the names of dead of soldiers and handed out flyers reading, “We Mourn Vietnam War Dead,” “Fight War, Fight Hunger,” and “End the War and Rebuild Our Cities.”96 FBI agents penned a detailed description of the peaceful demonstration by Quakers. The documents discussing Quakers revealed that peaceful activism provided no protection against FBI surveillance. Included in the items culled from the Media break-in were files documenting individuals who held viewpoints counter to that of the federal government while posing no discernable threat to national security. One such file on a student named Mary Jane Lawhorn read, “Subject is believed attending the University of California at Berkeley, and is known to be an inveterate Marxist revolutionist, and a type of person that should be watched as she will probably be very active in revolutionary activities.”97 Eventually, the agent investigating Lawhorn realized that she was not a threat, writing, “San Francisco indices reflect Subject attended a meeting of the Venceremos Brigade on 7/20/70. . . . [D]uring this meeting, there was

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no discussion of violence or revolution. San Francisco source personally conversed with Subject and received no indication that she was anything other than the average liberal minded student that is common in the Berkeley area.”98 Still, the FBI invested significant time and resources to determine that this student posed no threat. Another memo provided detailed information about Daniel Bennett, a professor of philosophy at Swarthmore College. The memo described his wife and children, the family’s house, and the make and model of Bennett’s car. Bennett garnered the attention of the FBI for inviting controversial speakers to Swarthmore. 99 The FBI recruited the chief switchboard operator at Swarthmore College to serve as an informant on Bennett. Though she hardly knew Bennett, she told the FBI that the professor was “generally regarded as a ‘radical’” and promised to “confidentially furnish pertinent information regarding any long distance telephone calls made or received by Bennett.”100 The chief of the Swarthmore Police Department also provided information to the FBI about the Bennett family, stating that they hosted a “rock festival” in their backyard for students, associated with “hippie types,” and stored printing equipment in their garage, upon which he suspected they published a brochure in support of the Black Panther Party. 101 Still, nothing in the files indicated that the Bennetts posed any sort of violent threat that might have come under the FBI’s jurisdiction. Rather, they were liberal, they were outspoken, and therefore they were suspect. Some of the documents addressed counterintelligence concerns of the Bureau, revealing that the Bureau interviewed American citizens who visited the Soviet Union for a month or more. Bureau leadership explained, “The interviewing agents should discreetly ascertain if any attempts have been made by the Soviet Intelligence Services to recruit the individual for intelligence purposes either in the USSR or after his return to the United States.”102 Most egregiously, the documents evinced widespread surveillance by the FBI of the civil rights movement, the black Left, and black citizens living in places prone to riots. One memo revealed coverage of Martin Luther King Jr., though this information would pale in comparison to that released by the FBI to the Church Committee in 1975. The Media document read, “Martin Luther King Jr. will address the 50th Anniversary banquet to be held at the Bellevue Stratford Hotel in Philadelphia.” 103 Other memos documented the business of the Black Panther Party, demanding that FBI field offices provide the following laundry list of information on a weekly basis:

Protecting the Bureau’s Jurisdiction

various organizations planning to participate mode of travel and identities of persons planning to attend identities of organizers and persons who are to head work shops identities of the leading speakers at the convention agenda of the convention plans for violence or disruptive demonstrations plans to carry weapons or explosive devices convention security precautions to be observed literature regarding the convention details concerning available housing104

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The FBI used its intelligence-gathering capabilities to cultivate informants, who in turn reported on meetings and bank accounts for such organizations as the National Black Economic Development Conference and Black/United Liberation Front.105 Other Bureau reports instructed special agents to develop informants in so-called ghetto areas. One memo, addressed to “All Headquarters Agents,” stated, “It is essential that this office develop a large number of additional racial informants at this time and that we continue to add and develop racial informants and exploit their potential during the months ahead. . . . [W]hether or not a riot does occur, the Bureau holds us responsible to keep the Bureau, the Department and the White House advised in advance of each demonstration.”106 The memo further encouraged agents to develop both white and black informants in ghetto neighborhoods in order to collect information on extremist organizations operating in the area, as well as information related to gangs. Any bookstores in those areas were suspect until proven otherwise; a memo instructed agents to “visit AfroAmerican type bookstores for the purpose of determining if militant extremist literature is available therein, and if so to identify the owners, operators, and clientele of such stores.” 107 The memos documented the Bureau’s paranoia that black extremists would proselytize radical ideas in poorer neighborhoods and incite race riots. Pages of Bureau documents analyzed incidents involving violence between blacks and local police. Detailed information appeared in a training bulletin for police officers concerning the events leading to violence. Although the Bureau stopped short of condoning the police officers’ complicit actions, a memo noted that the information was nevertheless relevant to Bureau agents engaged in training local police in riot control. The Bureau’s fear of college students and civil rights activists coalesced in a series of memos ordering surveillance of black student groups on university campuses. One such memo written by Hoover proclaimed,

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Increased campus disorders involving black students pose a definite threat to the Nation’s stability and security and indicate need for increase in both quality and quantity of intelligence information on Black Student Unions (BSU) and similar groups which are targets for influence and control by violence-prone Black Panther Party (BPP) and other extremists. The distribution of the BPP newspaper on college campuses and speakers of the BPP and other black extremists groups on campuses clearly indicate that campuses are targets of extremists. Advance information on disorders and violence is of prime importance. We must target informants and sources to develop information regarding these groups on a continuing basis to fulfill our responsibilities and to develop such coverage where none exists.108

The Philadelphia office of the FBI proceeded to list all the Black Student Unions currently under surveillance; the list included thirteen institutions within the city. Memos directed to Hoover documented the names of attendees at Black Students’ Congress meetings, even though the Bureau found the meetings solely “related to the new Civil Rights Laws of interest to the students. No indications of violence or civil disturbances proposed by the students.” 109 The agents indicated clearly in their reporting that Bureau informants did not see the Black Student Union groups as violent. One memo described an arts and crafts festival hosted by a BSU featuring products made by gradeschool-aged black children. The information bore not an ounce of intelligence utility, and yet the Bureau expended the time and effort to gather the information anyway. For many years, the story of the Media break-in focused solely on the information uncovered by the Citizens’ Commission to Investigate the FBI.110 Much to Hoover’s chagrin, the FBI never caught the Media burglars. The Bureau closed its case on the matter in 1976 once the statute of limitations expired.111 In 2014, the burglars revealed their identities for the first time publicly in a book written by Washington Post journalist Betty Medsger, who had published a large portion of their original documents in 1971. The burglars, revealed as eight antiwar activists, justified their break-in by professing their worries at the time that the FBI’s power had grown too large. Led by William Davidon, a physics professor at Haverford College, the group believed, and wanted to prove to the general public, that the FBI was infringing upon people’s constitutional rights, particularly their right to dissent and express free speech.112 The Citizens’ Commission found that there were “two FBIs—the public FBI Americans revered as their protector from crime, arbiter of values, and defender of

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citizens’ liberties, and the secret FBI.”113 Regarding the “secret” FBI, Medsger wrote, “This FBI, known until the Media burglary only to people inside the bureau, usurped citizens’ liberties, treated black citizens as if they were a danger to society, and used deception, disinformation, and violence as tools to harass, damage, and—most important—silence people whose political opinions the director opposed.”114 The members of Citizens’ Commission considered their burglary an act of civil disobedience. They wanted to carry out their act of resistance in protest of the overreach of the intelligence community, the FBI, and specifically Hoover. Medsger reiterated the importance of the activists’ burglary, writing, “This historic act of resistance—perhaps the most powerful single act of nonviolent resistance in American history— ignited the first public debate on the proper role of intelligence agencies in a democratic society.”115 By the time Medsger published those words in 2014, she had the benefit of history and over forty years’ worth of insight regarding the importance of the burglars’ act. In 1971, the meaning behind the disclosure of FBI files was diffuse. Prior to the break-in, Americans had never had such solid confirmation of the FBI’s unethical intelligence-gathering tactics. The Media break-in marked the first time that Americans grappled with hard realities revealed through actual FBI documents. Historian Richard Gid Powers wrote of the significance of the break-in, stating,

Hoover’s power to conduct secret operations . . . depended on the absolute freedom he had won from any inquiry into the internal operations of the Bureau. . . . [E]xcept for a remarkably few breaches of security . . . Hoover had been able to pick and choose what the public would learn about the Bureau. He had never suffered the indignity of having an outside, unsympathetic investigator look into what he had been doing, what the Bureau had become, and what it looked like from the inside. . . . On the night of March 8, 1971, that changed forever.116

Though the Media break-in is significant because of the burglary and because of the attention it brought to the Bureau’s operations, the emphasis is somewhat misplaced. In 1971, Elliff wrote about the Media breakin that “disclosures like the Media documents are distorted because they enter an analytical vacuum.”117 All of a sudden, people went from knowing very little about the Bureau, aside from the information dispersed through the FBI’s public affairs department, to knowing intimate details about its investigations, based on documents procured and distributed by the Citizens’ Commission. Though the spotlight shifted to Hoover and

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his thirst for power, Elliff saliently noted in the months following the Media break-in that the operations run by the FBI highlighted another problem—namely, the relationship between the presidency and the Bureau. The public wanted to focus on the indiscretions of the Bureau’s intelligence-gathering capabilities, but Elliff fixated on a deeper concern. He wrote, “Bureau officials see another, perhaps more fundamental, issue emerging today. The FBI is an intelligence arm of the President; and the foundation for the Bureau’s domestic intelligence role rests primarily on a conception of inherent Executive power.”118 It was easy to point fingers at Hoover, and indeed he certainly served as the one approving these operations. Still, Elliff noted that the Nixon administration (and, logically, previous administrations like that of Lyndon B. Johnson) authorized and even demanded such operations in the first place. The Huston Plan and subsequent revelations of FBI operations in the years to follow would certainly support Elliff’s contention; intelligence gathering by the Bureau didn’t happen in a vacuum. Often, it came at the president’s bidding. Thus, the release of FBI files from the Media office represented not just the overreach of the Bureau into constitutionally protected free speech but also the attempts by presidents to control and silence dissent through the use of domestic intelligence apparatuses. When the Citizens’ Commission broke into the FBI Media office, the event became a watershed moment in the Bureau’s history. Throughout Hoover’s tenure as director, he had carefully overseen the Bureau’s public relations, only authorizing the release of information that portrayed the FBI favorably. The Media break-in represented a turning point, as the burglars managed to procure and place classified information, which painted the Bureau in negative shades, in the Washington Post. The public’s outrage over information contained in the documents worried Hoover. He knew that Americans would no longer provide carte blanche approval for the Bureau’s investigations. The apparent threat from the New Left and Nixon’s immense hatred of the radicals placed Hoover in a tough position. As he carried on his fight against radicalism, he now faced the judgment of his fellow citizens. Hoover finally felt the limits of what his Bureau could do.

Notes

1. “Persons of Interest,” unknown author and publication, from John Elliff’s papers. 2. Ibid., 21. 3. Ibid., 22. Moratorium Day included a massive demonstration and teach-in across the United States as well as a Moratorium March, both intended to protest the

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federal government’s involvement in the Vietnam War. These events took place in the fall of 1969. 4. Ibid., 23. 5. Military Intelligence Report, John Elliff’s papers, 1. 6. Ibid. 7. Ibid., 2. 8. Stokely Carmichael is largely associated with radical and political activism during the 1960s. Carmichael wished to see rural black sharecroppers and the urban poor become leaders in a society “freed from racial inequality and economic injustice.” Vehemently antiwar, Carmichael worked alongside Martin Luther King Jr. In 1966, he joined the black power movement and became a Black Panther. From there, he became the leader of a Black United Front in Washington, DC, and lived out his life as a Pan-Africanist in Guinea. See Peniel E. Joseph, Stokely: A Life (New York: Basic Civitas, 2014), xi. The FBI targeted Carmichael in several operations, including COINTELPRO. 9. Military Intelligence Report, John Elliff’s papers, 6. 10. Christopher Pyle, “Please, No More Domestic Spies!” Providence Journal, August 2, 2002. 11. “Persons of Interest,” 25. 12. Ibid. 13. Ibid. 14. Ibid. 15. Ibid. 16. Christopher Pyle, “CONUS Intelligence,” Washington Monthly 1, no. 12 (January 1970). Interestingly, none of the information that he released was classified, which allowed him to avoid prosecution while serving in the role of whistleblower. Pyle’s ability to release information would starkly contrast with that of Daniel Ellsberg, also a member of the army, who in 1969 released the highly classified and highly controversial “Pentagon Papers.” 17. Christopher Pyle, interview, August 20, 2015. 18. John Elliff, interview, March 13, 2015. 19. In July 1967, Detroit became the scene of violent urban disorder, leading to forty-three deaths, over one thousand injuries, and thirty-eight hundred arrests. Over one thousand buildings were burned to the ground. See Joe T. Darden and Richard W. Thomas, Detroit: Race Riots, Racial Conflicts, and Efforts to Bridge the Racial Divide (East Lansing: Michigan State University Press, 2013), 2–3. 20. Joan M. Jensen, “Military Surveillance of Civilians in America,” n.p. 21. Elliff interview. 22. Pyle interview. 23. Elliff interview. 24. Pyle interview. 25. Though Pyle would date the CONUS program back to 1965, the army had carried out extensive domestic investigations dating back to World War I. During World War II, the army’s domestic intelligence gathering included information related to Eleanor Roosevelt. Pyle would testify to these origins of army domestic intelligence gathering when he testified before Ervin’s subcommittee. From Pyle interview. 26. Pyle, Washington Monthly, 4. 27. Ibid., 5. 28. Ibid., 5. 29. Ibid., 5. 30. Ibid., 5.

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31. Ibid., 6. 32. Ibid., 6. 33. Ibid., 6. 34. Ibid., 6. 35. Ibid., 6. 36. Ibid., 8. 37. Ibid., 8. 38. Ibid., 8. 39. Ibid., 9. 40. Pyle referenced Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In that case, the Supreme Court refused to grant President Harry Truman the authority to seize the production facilities of a steel mill that had gone on strike. Truman argued that the strike interfered with US war efforts in Korea, but the court refused to find that such interference resulted in the exigent circumstances necessary to allow a president to impose such unchecked power. 41. Pyle, Washington Monthly, 10. 42. Though the Bill of Rights never explicitly defines “privacy” as a fundamental right, the Supreme Court, in Griswold v. Connecticut, 381 U.S. 479 (1965), found that the Constitution granted a right to privacy, which could be found in the “penumbras” and “emanations”—meaning, essentially, in the shadows—of the Bill of Rights as well as in the due process clause of the Fourteenth Amendment. 43. Pyle, Washington Monthly, 12. 44. Ibid., 13. 45. Pyle interview. 46. “Persons of Interest,” 25. 47. Ibid., 26. Pyle recounts that, at the time, the army was either unaware of the extent of its computer collections or deliberately lied to Congress about the extent of its computer-collection capabilities related to intelligence. 48. Ibid., 26. The article provides characteristics of those who might be subject to investigation by military intelligence. 49. Pyle, “Please, No More Domestic Spies!” 50. Ibid. 51. Christopher Pyle, “CONUS Revisited: The Army Covers Up,” Washington Monthly 2, no. 5 (July 1970): 49. 52. Ibid., 50. 53. Ibid., 50. 54. Ibid., 50. 55. Ibid., 50. 56. Ibid., 54–55. 57. See White House Press Conference, April 16, 1971; Richard Nixon Presidential Library, Box 2, Press Conference No. 6 Transcript, June 19, 1969, J. Bruce Whelihan’s Files, “FBI and Wiretapping.” 58. Pyle interview. 59. Elliff interview. 60. “FBI Reports Office Raid,” New York Times, March 10, 1971. 61. Betty Medsger and Ken W. Clawson, “Stolen Documents Describe FBI Surveillance Activities,” Washington Post, March 24, 1971, A1. A later article by the New York Times would include a transcript of a memo from Hoover. See Fred P. Graham, “FBI Files Tell of Surveillance of Students, Blacks, War Foes,” New York Times, March 25, 1971, A1. 62. Medsger and Clawson, “Stolen Documents Describe FBI Surveillance Activities.”

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63. Ibid. The article reported, “Various FBI codes were on the records, including the identification numbers and names of agents and numerous case numbers and names of persons under surveillance” (A11). 64. Ibid. 65. Betty Medsger and Ken W. Clawson, “Thieves Got over 1,000 FBI Papers,” Washington Post, March 25, 1971, A1. 66. This change came about following the demise of the Huston Plan. Though Hoover opposed the Huston Plan (which included authorization for the FBI to recruit younger campus informants), he apparently liked the idea of having younger student informants, so he changed FBI policy to allow for such collection. The change would emerge in testimony before Congress regarding the Huston Plan. 67. Ibid., “Thieves Got over 1,000 FBI Papers.” 68. Graham, “FBI Files Tell of Surveillance of Students, Blacks, War Foes.” 69. Ibid. 70. “Group to Publicize FBI’s Informers,” New York Times, March 27, 1971. 71. Ibid. 72. FBI, Memorandum from Tolson to Hoover, re: The Executives Conference, June 2, 1971, 1. 73. Ibid., 2. 74. FBI, Memorandum from T. E. Bishop to Mohr, re: MEDBURG, April 13, 1971. 75. Fred P. Graham, “FBI: Waiting for the Other Shoe to Drop,” New York Times, March 28, 1971. 76. Ibid. 77. Ibid. 78. Ibid. 79. Ibid. 80. Anthony Ripley, “Big Man on the Campus: Police Undercover Agent,” New York Times, March 29, 1971, A1. 81. Ibid., 21. 82. Letter from Citizens’ Commission to Investigate the FBI, May 3, 1971, in “The Complete Collection of Political Documents Ripped-Off from the FBI Office in Media, PA,” March 8, 1971, W.I.N., 9. 83. Ibid., 8. 84. Noam Chomsky, “Domestic Terrorism: Notes on the State System of Oppression,” New Political Science 21, no. 3 (September 1999): 303–324. 85. WIN Magazine 20. 2/5/71—Clerical Applicant Routing Slip Not to Be Serialized—Destroy When Purpose Served. 86. WIN Magazine 20. 1/4/71—Physical Examination Matters—Weight Standards. 87. Ibid. 88. WIN Magazine 23. 10/9/70—Tear Gas—Aerosol Type Dispensers. 89. Ibid. 90. WIN Magazine 27. 2/4/71—Black Panther Party RM. 91. WIN Magazine 28. 9/16/70—Security Investigations of Individuals and Organizations. The memo carefully delineated the Old Left from the New Left, explaining, “Generally, ‘Old Left’ means the Communist Party and the various splinter and Trotskyite groups which have been in existence for many years. . . . [New Left] is a relatively broad term insofar as newly formed organizations with leftist or anarchistic connotations [are concerned and includes] such matters as SDS, STAG, underground newspapers, communes, commune investigations, the Resistance.” 92. PSI stands for “potential security informants.” 93. SI stands for “security informants.” 94. WIN Magazine 28–29. 9/16/70—New Left Notes—Philadelphia.

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95. WIN Magazine 29. 9/23/70—Stag. 96. WIN Magazine 34. Teletype from SAC [Special Agent in Charge] Alexandria to Director [Hoover] and Washington Field Office, Priority: Urgent, July 17, 1969. 97. WIN Magazine 37. Memo to Director, FBI from SAC Philadelphia re Jane Lawhorn. 98. Ibid. 99. WIN Magazine 38. Memo from SA Thomas F. Lewis to SAC, 11/13/70 re: GILROB. 100. Ibid. 101. Ibid. 102. WIN Magazine 44. Memo from SAC, WFO to Director, FBI Re: Barbara Anne Bitzer Soviet Intelligence Services Recruitment of Students. 103. WIN Magazine 38. Memo from SAC Philadelphia to Director, FBI, 9/24/65, RE Communist Infiltration of the Women’s International League for Peace and Freedom (WILPF). 104. WIN Magazine 48. Memo to All Agents from SAC Joe D. Jamieson re: Revolutionary Peoples Constitutional Convention Organized by the Black Panther Party, October 12, 1970. 105. WIN Magazine 49. Memo to SAC, Philadelphia from SA James I. Halterman, 2/4/71, re: National Black Economic Development Conference RM NBEDC; WIN Magazine, Memo to SAC from SA Thomas F. Lewis, 6/18/70 re: National Black Economic Development Conference Rm; WIN Magazine 50, Memo to SAC from SA Richard E. Logan, 1/27/71, Re: Margaret Turner. 106. WIN Magazine 52. Memo to All Headquarters Agents from SAC, 2/26/68, re: Racial Informants. 107. WIN Magazine 53. Memo to All Agents from SAC, 8/12/68, re: Racial Informants. 108. WIN Magazine 70. Memo to SAC, Albany from Director, FBI, 11/4/70, re: Black Student Groups on College Campuses Racial Matters Buded [sic]: 12/4/70. 109. WIN Magazine 71. Airtel to Director, FBI from SAC, Philadelphia re: Black Student Groups on College Campuses, 12/2, 1970. 110. This information would later become important during a Senate investigation, known as the Church Committee, in 1975. Senators conducted thorough investigations of FBI operations uncovered by the Media, PA, documents, including COINTELPRO, or “Counterintelligence Program.” 111. Betty Medsger, The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI (New York: Alfred A. Knopf, 2014), 387. 112. Ibid., 3. 113. Ibid., 7. 114. Ibid., 7. 115. Ibid., 8. 116. Richard Gid Powers, Broken: The Troubled Past and Uncertain Future of the FBI (New York: Free Press, 2004), quoted in Medsger, The Burglary, 9. 117. Elliff, Draft Paper, October 12, 1971, 1. 118. Elliff, Draft Paper, 3.

4 The Bureau Under Scrutiny

After news of the Media break-in by the Citizens’ Commission to Investigate the FBI became public, the Bureau responded in kind. On April 23, 1971, the Bureau replied with a “Fact Sheet on the FBI” in which it responded to allegations arising from the leaked files, stating, “It appears that through a careful choice of the bits and pieces of documents released, the Citizens Commission is contriving to create the impression that the FBI is exceeding the bounds of its constituted authority.” 1 Though the Bureau admitted “no agency should be immune to criticism,” it asserted the Media allegations went “beyond that which is factual and constructive and erupt[ed] into emotional outbursts which ignore[d] reason.”2 That the Bureau would even respond to such charges, however, signaled that times had changed. The Bureau worried about having to shape public opinion in the face of so much criticism, admitting, “Some critics are even questioning the need for such an agency.”3 The FBI refuted allegations that it conducted surveillance of private citizens, that it investigated members of academe based upon their political beliefs, and, more broadly, that it had become an American Gestapo.4 Despite the Bureau’s best efforts, it was too late to halt the incoming wave of public scrutiny. Though the Media break-in signaled the newly realized vulnerability of the Bureau to FBI critics, the fruits of Media would continue to ripen under the careful scrutiny of a group of scholars and Congress members who, upon seeing the indiscretion 75

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carried out by the Bureau in the Media documents, began to question the legal authority and activities of the agency. The work of these critics bypassed the public spectacle surrounding the release of Media documents and paved the way for later congressional hearings about the FBI in the mid-1970s. In the wake of the Media break-in, both Congress and scholars sought to examine the origins and legal basis for FBI authority, interviewing people at the Department of Justice (DOJ) to determine legal precedent. They wanted to do more than merely lambast J. Edgar Hoover for his insatiable control; these findings by Congress and scholars showed that permission for FBI actions far exceeded Hoover’s public authority and pointed directly to the attorney general and the president. One such scholar, John Elliff, spent much of 1970 and 1971 researching and writing about the Bureau.5 Through his work, he examined the basis for legal actions of the Bureau and placed blame on the Department of Justice and the president, finding them equally, if not more, responsible for the Bureau’s actions because of their explicit approval. Elliff eventually joined his research with that of other researchers at the end of 1971 when Princeton University’s Woodrow Wilson School of Public and International Affairs hosted the first-ever academic conference examining the FBI. Elliff took what he learned during his year of research and writing and continued to study the Bureau. In 1975, he applied nearly half a decade of research and became the leading staff member on Congress’s Church Committee investigation of the FBI. The Media break-in and the scrutiny that followed in 1971 directly influenced the attitude of the Church Committee later that decade. The Princeton conference, attended by political scientists, lawyers, historians, journalists, and former government employees, set the tone for a decade’s worth of examination of the Bureau. Many of the findings stemming from that conference informed the congressional reformers who would, in a few short years, oversee change at the Bureau. Back in 1971, Elliff was still attempting to answer a simple question: Where had the Bureau obtained the legal authority to carry out the actions described in the Media documents? To gain a better understanding of the FBI, Elliff interviewed officials at the Justice Department. The documents released by the Citizens’ Commission had indeed angered the public. Americans worried that Hoover had far exceeded his constitutional bounds. And yet, few people truly understood the legal authority of the Bureau; they could not answer with certainty exactly how or if the Bureau had exceeded legal limits. To better understand how the Bureau justified its actions, Elliff also visited the

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presidential archive of Franklin Delano Roosevelt, discovering to his surprise that the Bureau’s legal authority was largely rooted in World War II presidential directives. Also central to Elliff’s findings was the discovery of a competing intelligence analysis unit run by the Department of Justice. One of the first distinctions that Elliff made was the intersection of the FBI’s Domestic Intelligence Division, headed by William Sullivan, and DOJ’s Interdivisional Intelligence and Information Unit (IDIU) of the Civil Disturbance Group. The DOJ’s unit was overseen by then deputy attorney general Richard Kleindienst, although Elliff discovered that many of DOJ’s units, including the Criminal, Internal Security, and Civil Rights Divisions and the Community Relations Service (CRS), also participated.6 The intelligence task unit originated in 1969 when the Justice Department created a “Panther Task Force” to deal with the Black Panther Party. This task force quickly expanded to include investigations into “all radicals.”7 Elliff surmised at the time that both the Black Panther Party and the Weather Underground may have been surveilled by the DOJ task force. That the DOJ had set up its own intelligence division to investigate radicals was significant; it allowed the department to do the work of the FBI, possibly running its own intelligence surveillance operations against radicals that would potentially lead to prosecution. Elliff wondered about the FBI’s role in the investigations. In looking at the FBI’s legal authority, Elliff discovered that the agency’s power to investigate dissent stemmed from very old sources. He found that the Bureau was operating under old executive authorities dating back to World War II; in 1936 and 1939, President Roosevelt gave the FBI informal, and later formal, authority to collect information related to subversive activities. 8 On September 6, 1939, Hoover issued a memorandum to all law enforcement officials, proffering an order issued by President Roosevelt, which read, “I request all police officers, sheriffs, and all other law enforcement officers in the United States promptly to turn over to the nearest representative of the Federal Bureau of Investigation any information obtained by them related to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws.”9 In authorizing the FBI to collect information about subversive activities, President Roosevelt laid the foundation for the Bureau to investigate communists during the Cold War and much later, during the years of Vietnam War protests, any “radicals” deemed subversive. That a huge amount of the FBI’s legal authority stemmed from World War II executive authority was surprising to Elliff. So much had changed in the

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years since Roosevelt’s presidency, and yet the Bureau retained authority from its 1930s work on Nazi sabotage. Later presidents yielded additional authority to the FBI by authorizing the Bureau to gather intelligence related to civil disorders. President Lyndon Johnson encouraged Hoover and the FBI to analyze patterns of crime related to urban riots in 1967.10 When the 1967 Kerner Commission expressed concern that the FBI did not have authority to investigate the riots, Johnson responded that “the FBI was acting under his ‘standing instructions,’ issued in 1964 when the FBI investigated the Harlem riots and prepared a report on that summer’s disorders for the White House.”11 Interestingly, Johnson also justified FBI action based upon military law; federal law allowed the president discretionary power to use armed forces to protect states against domestic violence in certain circumstances. Elliff found that under such reasoning and legal authority, “FBI investigations could be justified as necessary to assist the President in exercising his discretion.”12 Urban riots during Johnson’s term as president not only enhanced the Bureau’s authority but also supplemented the Department of Justice’s intelligence-gathering capabilities. Elliff wrote, “The Kerner Commission Report urged every police department to establish an intelligence unit staffed with full-time personnel.” After the police departments assembled intelligence on possible violent outbreaks, “data from cities across the country was . . . fed into a computer to help determine what federal response, if any, was required to cope with civil disorders.”13 During the 1960s, an issue emerged regarding the role of FBI investigations. Back then, it appeared that there were two Bureaus—one that ran criminal investigations and one that ran intelligence. Elliff explained that “experts” on the FBI had considered splitting the Bureau into two entities, writing, “This would ease the problem of the FBI agent skilled at catching kidnappers (operations) but wholly untrained to make political distinctions between a revolutionary terrorist and a fuzzy peace dissenter (intelligence).”14 Even that characterization of the Bureau as two working units, however, was problematic. Elliff noted that, in theory, the Bureau should not be dealing with the political issues related to intelligence gathering (i.e., monitoring groups of people based upon their political beliefs) and should instead leave the political business to the Department of Justice. Yet what should have worked in theory simply was not working in practice. Elliff wrote,

Perhaps the problem is that the Divisions [of the DOJ] are staffed by lawyers and that the Internal Security Division [of the FBI], which log-

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ically should be the source of guidance and evaluation for intelligence operations, is moribund. In organizational terms, what may be developing is a conflict between the FBI’s Domestic Intelligence Division and the non-FBI intelligence evaluation and analysis agencies that are tied to the Department’s executives. In short, Hoover listens to Sullivan; Kleindienst [then attorney general] listens to [Justice Department official Jim] Devine.15

In other words, both the FBI and the Justice Department were running their own separate intelligence-gathering operations, and worse, the FBI was not carrying anything close to its share of the load. Although the FBI officially reported to the attorney general, the hierarchy simply failed to work. Even in 1971, Elliff presciently worried about the politicization of intelligence by the Department of Justice, noting that under previous attorneys general, removing intelligence-gathering authority from Hoover in the 1920s had been a good thing. He surmised, however, that “under Mitchell and Kleindienst it may be a bad thing, since intelligence can be more easily used by Department executives for their own political aims.”16 Elliff stressed above all a need to produce standards for FBI intelligence operations and analysis. He wrote, “There is no reason to let the Justice Department become a domestic CIA, free from public and legislative scrutiny or immune from judicial review.”17 After assessing the executive authority allowing the Bureau to gather and analyze intelligence, Elliff approached attorneys in the Department of Justice to inquire about their understanding of the Bureau. He wanted to know why, if the Bureau could legally produce intelligence, the Department of Justice felt a need to create its own internal intelligence unit. He spoke with Kevin Maroney, deputy assistant attorney general of the Internal Security Division, in July 1971. Maroney explained the origins of the IDIU, the DOJ’s intelligencegathering apparatus. Maroney explained that the IDIU was originally created to address “urban ghetto riots.”18 Eventually, the IDIU expanded to include intelligence functions related to political demonstrations and terrorist activities, specifically bombings.19 Maroney confirmed that the DOJ was primarily interested in political demonstrations or acts of violence fueled by leftist ideology. In addition to collecting its own information, the IDIU also received reports from the FBI, though Maroney complained about the FBI’s reluctance to collect some forms of intelligence. He explained to Elliff that the Bureau acted slowly when asked to investigate persons on university campuses, such as students or professors. Maroney noted that “usually, he could pick up the phone and

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ask to have an Agent interview or check out someone. But if the subject was a student or faculty member, or involved the campus, he would have to make the request by written memorandum.”20 The FBI’s reticence to investigate students tested the Department of Justice’s patience. Maroney summarized the issue, stating, “The FBI is torn between its reluctance to be criticized, and pressure to get intelligence.”21 Despite such pressure, it failed to complete its intelligence-gathering tasks to the satisfaction of Justice. In the end, the Justice Department took action, refusing to sit around and wait for intelligence from the Bureau that would likely never materialize. Elliff also interviewed Nathaniel Kossack, formerly deputy assistant attorney general of the Criminal Justice Division. Kossack justified the origins of the IDIU, stating that the Justice Department “did not rely on the FBI for intelligence analysis because Bureau channels were too slow.”22 During the time of the Johnson administration, Kossack explained that attorneys in the Justice Department believed civil disorders related to race problems would be short-lived; they never anticipated that the problems would continue for as long as they did. In fact, no one ever guessed that the program would continue under subsequent presidents. Kossack believed that the “most important element” of the Justice Department’s intelligence scheme was its ability to place an assistant US attorney in each US attorney’s office. Central to the assistant attorney general’s role was a directive to provide intelligence to the IDIU. Kossack explained that none of this intelligence gathering ever filtered through the Bureau.23 Elliff’s notes stated, “Kossack believed intelligence was absolutely necessary to cope with demonstrations without over or underreacting. Before the Inauguration protest, they had complete intelligence as to who would be where. Before the Poor People’s Campaign, they had CRS intelligence which was often obtained openly.”24 Kossack admitted that the successful work of the IDIU “laid the foundation for [Attorney General] Ramsey Clark’s instructions to the FBI to amp up its intelligence gathering.” He, like Maroney, explained that the FBI was “always reluctant, careful, cautious about its intelligence memoranda and reports. It wanted to avoid saying things that would be embarrassing.”25 It would take an attorney general demanding that the FBI increase its intelligence-gathering capabilities for it to actually do so. Though Hoover contended that the Department of Justice approved all of the Bureau’s intelligence-gathering capabilities, the reality was more complicated.26 Not only did Justice approve such actions as wiretapping by the FBI, but, according to Kossack, it demanded that the FBI carry out such intelligence gathering in the first place. His assertion

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made the Bureau sound like a victim of the DOJ’s investigatory whims. And yet, he also acknowledged that the Bureau’s domestic intelligence gathering, carried out by the Domestic Intelligence Division under Sullivan, had less supervision, “largely because the FBI’s activity is not tied to prosecutive decisions by the lawyers.”27 Elliff’s interviews with attorneys at the Department of Justice served as evidence of the Bureau’s frayed and tense relationship with the agency overseeing it. The DOJ had the ability not merely to approve the FBI’s intelligence-gathering capabilities but to demand that it increase them. Such insight into the workings of the DOJ and the FBI reflects a more complicated relationship between the two entities than the Media documents initially revealed. Hoover and the FBI bore the brunt of criticism for the Media documents, and the Bureau was indeed carrying out highly controversial acts, investigating people without reasonable suspicion and for constitutionally protected reasons. Yet the interviews with Kossack and Maroney illuminated a different dimension of the problem—namely, that the Department of Justice was so hungry for intelligence on political dissenters that it set up its own intelligencegathering unit and waylaid the Bureau’s own intelligence-gathering abilities. When the DOJ’s intelligence-gathering unit proved successful, the DOJ forced the Bureau to expand the work of the Domestic Intelligence Division under Sullivan in an effort to remain relevant. Whatever Hoover’s feelings might have been toward the issue of intelligence collection, particularly related to political activists, he found himself in a difficult position with a Department of Justice eager to receive intelligence and an Internal Security Division head, Sullivan, equally eager to provide it.

Congress Looks at the FBI

Perhaps one of the more damaging things the Bureau did to itself was to send agents to monitor an Earth Day Rally attended by Senator Edmund Muskie, a Democrat from Maine. In April 1971, Muskie issued a press release about the Bureau’s surveillance at the April 1970 gathering. He asked, “If anti-pollution rallies are a subject of intelligence concern, is anything immune? Is there any citizen involved in politics who is not a potential subject for an FBI dossier?”28 When Muskie discovered that the FBI had written a report about his participation in the rally, he was outraged. He penned a letter to Richard Nixon stating, “I have recently read an FBI intelligence report written by an agent assigned to cover the

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Earth Day Rally in Washington last year. Among those whose political actions were reported . . . was myself.”29 The report also detailed activities of the Students for a Democratic Society and the Progressive Labor Party, portraying them as dangerous organizations worthy of government surveillance. Muskie was furious with the gross mischaracterization. The FBI dispersed its report to other intelligence agencies and police departments across the country, urging them to beware of environmental radicals.30 Muskie refused to believe that the Bureau had any legitimate reason for monitoring the event. He publicly questioned the Bureau’s intent: “What possible legitimate use could this report serve? Why does the FBI need to know who attended and what was said at Earth Day rallies across the nation? Even if our intelligence agencies believed that Earth Day might turn into a threat to our national security or a scene of violence requiring Federal troops, that would not justify a report on the rallies afterwards—when it was clear that no threat to our government did occur.”31 Muskie was so angered by the FBI’s actions that he called for the creation of a congressional entity, the Domestic Intelligence Review Board, to investigate the FBI. He justified its creation, explaining, “I believe our government has reached a critical juncture in its intelligence activities. There is no justification for any part of the Federal intelligence community surreptitiously observing and reporting on legitimate political events which do not affect our national security or which do not involve a potential crime.”32 Muskie alleged that the report detailing his own involvement at the rally was one of anywhere from forty to sixty FBI reports drafted on Earth Day rallies that spring.33 Such extensive surveillance signaled to him that the FBI had far overreached its constitutional limits, leading him to ask, “If there was widespread surveillance over Earth Day last year, is there any political activity in the country which the FBI doesn’t consider a legitimate subject for watching?”34 Because there was no violence at the Earth Day Rally or even any threat of violence, Muskie argued that the FBI should not have had any presence there. He alleged that until Congress carried out a full investigation of the intelligence community, there was no telling the extent to which the FBI and other intelligence agencies had unethically spied on political activists. He wrote, “All of us will live with the uneasiness that our actions and words, plus unsubstantiated or inaccurate reports about our lives and characters, are filling a secret file in Washington. That uneasiness is intolerable in a free society.” 35 He compared the United States to a totalitarian country, arguing that surveillance of such mag-

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nitude was the work of dictators, not democracy. He voiced his concerns about the “chilling” of free speech. Most of all, he worried about the fear prevalent among those with political beliefs antithetical to the current administration. Just a few months later, Senator Sam Ervin urged a ban on the use of federal funds to support the Subversive Activities Control Board, a group established by an act of Congress in the 1950s to detect communists. When Ervin proposed eliminating the board, his action signaled a new era for the government—a shift away from its obsession with communists to a growing unease surrounding the implications of labeling an American citizen a “subversive.” Fresh from hearings on the army’s CONUS program, Ervin believed that the Subversive Activities Control Board allowed for persecution of citizens with unfavorable political beliefs. He wrote, “It does not take much to realize that this Army view of ‘civil disturbance subversives’ inevitably might include every single citizen in the United States who expressed a view on these great issues of our time so long as that view differed from what the Army thought was the proper ‘American’ position.” 36 He listed egregious examples of people who had been mistakenly labeled subversives, stating,

In one city, it meant every person who had a peace symbol on his car. In another, every black person seen walking on the highway in a suspicious manner. It included those who signed petitions, those who gave speeches, those who listened to speeches, those [who] filed lawsuits, those who bought or merely read certain newspapers. Only in the rarest case was there some indication—but never proof—that the person had engaged in some violent or otherwise illegal act. In the greatest majority of cases these citizens were only exercising their constitutionally guaranteed right of free speech. Their only sin—but it was sin enough— was to disagree with the administration. Who were these people? There were not only the names we have come to learn from television and the newspapers. They included church groups, ministers, college professors, students, labor unions, the Quakers, the Unitarians, Methodists, Jews, the NAACP, the Urban League, the John Birch Society, movie stars, poets, philosophers, Senators, Congressmen, mayors, city councilmen, human rights commissions, reporters, housewives, high school students, taxi drivers. And, of course, it included the ordinary American citizen, whose only crime was to express his views in public, and sometimes even in private, on these great public issues that divide our country.37

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Ervin’s calls to limit the scope of the intelligence community resonated within Congress. Soon, other members began to call for an investigation of the intelligence community and the FBI. Senator Gaylord Nelson (D-WI), the founder of Earth Day and a cosponsor of the 1970 rally, also introduced legislation to allow a special commission to investigate the FBI, CIA, and army. Nelson questioned the Justice Department’s reading of FDR’s executive authorization allowing the FBI to combat subversives.38 In his mind, the army’s CONUS and the FBI’s Earth Day Rally surveillance showed that Justice had widely interpreted wartime legislation beyond its original intent. He wrote, To my mind the Justice Department’s reading of President Roosevelt’s 1940 memorandum to his Attorney General is fallacious. There is no justification for extensive government snooping into domestic political activities based on this 1940 order. In the first paragraph of his order, President Roosevelt recognized the danger of widespread government spying when he agreed with the Supreme Court that it was “also right in its opinion that under ordinary and normal circumstances wire-tapping by government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.”39

Nelson believed Roosevelt’s wartime approach to national security applied only to that time. He did not believe the government should be using wartime legislation thirty years later to authorize Bureau actions. The congressional scrutiny of the Bureau marked a turning point in the FBI’s popularity. Although none of the proposed congressional investigations into the Bureau materialized at the time, the multiple calls for such scrutiny were a departure from previous support. Members of Congress were turning against the Bureau and calling upon others in Congress to do the same. It was one thing to have liberal activists such as those involved in the break-in of the Media office question what the Bureau was doing; it was another thing entirely to have Congress scrutinizing and threatening to limit legislatively the Bureau’s power. That Hoover might finally answer to Congress about his actions seemed inevitable.

The Justice Department

In the midst of the investigation into the army’s CONUS operation, Senator Ervin also requested from Assistant Attorney General Robert

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Mardian a description of the Justice Department’s intelligence-gathering operations. In response, Mardian turned over past letters exchanged between DOJ staff and the attorney general. The collections of letters began with correspondence from John Doar,40 one of the Justice Department’s great civil rights attorneys, and Attorney General Ramsey Clark. In his letter to Clark, Doar explained, “You asked me to determine the available facilities for keeping abreast of information we receive about organizations and individuals who may or may not be a force to be taken into account in evaluating the causes of civil disorders in urban areas.”41 Doar summarized the problem facing the Department of Justice, explaining, “No one has a broad, complete knowledge of all the groups and individuals that are active in the urban areas.”42 Protests and alliances between activists had the potential to bring actual harm to urban areas, leading to so-called ghetto riots. Doar believed that the DOJ needed a single intelligence unit to analyze the FBI’s intelligence regarding activist groups, since the Bureau was incapable of providing the analysis that the DOJ needed. Doar supported the creation of such a unit within the DOJ, and in his letter he described precisely how the unit might function. He proposed that the intelligence unit, created in the Justice Department, would analyze intelligence more effectively than the FBI. Upon creation, the unit became familiar with radical literature, leading to a catalog of all the organizations. Written on myriad index cards, the intelligence included information pertaining to a group’s “finances, its organizational structure, its program, its ideology, and its relations with other groups.”43 Doar saw the supervisor’s role in overseeing this index as a position that would allow for “imagination and initiative” in developing the source material on organizations functioning in urban areas.44 Doar’s passion for civil rights is apparent in his recommendations to Attorney General Clark, including this description he wrote for an ideal supervisor: “He must also like and respect Negroes as individuals, be in tune with them and have a feeling of sympathy and understanding for their situation. Beyond all this, he has to be dedicated to law enforcement and believe that unlawful activities of individuals, groups, or organizations, who organize, instigate or participate actively during a riot will do serious damage to the chance for progress by Negro Americans.”45 Doar was the leading civil rights attorney at the Justice Department. His involvement in creating this intelligence unit provides an interesting supplement to his historical legacy, as he helped to collect intelligence on activists that the FBI could not assemble. When he died in 2014, obituaries praised his “extensive work fighting discrimination

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and working for racial equality during the 1960s and 70s” and his stature as a “figure of trust for black students and leaders” during the 1960s. 46 Doar was heroic in his involvement with the civil rights movement. In 1962, he escorted James Meredith, the first African American to attend the University of Mississippi, to his classes. He protected Meredith amid a riot that resulted in the deaths of three people. He also served as the lead prosecutor in the murders of James Chaney, Michael Schwerner, and Andrew Goodman. His work resulted in a guilty verdict for white defendants, handed down by an all-white jury. 47 During his career, he both furthered civil rights and set up an intelligence unit within the DOJ to monitor political activists. These apparently contradictory priorities illustrate the difficulties faced by government in the 1960s, in that even those fighting most arduously for civil rights found a need to monitor political speech. His method of securing such civil rights risked chilling the exercise of First Amendment rights of activist groups that also sought to secure civil rights for themselves and others. Any chill in speech, however, was likely unintended by Doar or the Justice Department. Rather, Doar sought to help the Justice Department conduct intelligence analysis that the Bureau was incapable of providing. Using raw information collected by the FBI, the Justice Department, under Doar’s leadership, hoped to process the raw data into useful information in order to prevent future urban violence. Doar’s plan reflected the mission of the Department’s Community Relations Service, which had been established to conciliate racial conflicts between civil rights groups and white segregationists in the South. The CRS hoped to use its mediation skills to resolve urban conflicts between blacks and the police that could otherwise lead to violence. CRS officials could benefit from knowing more about the black community groups with which they would try to work. It was as much an idealistic “hope” as it was fear that led Justice Department officials to seek domestic “political intelligence.” Another rationale was the attorney general’s need for good information and analysis to advise the president as to whether the dispatch of federal troops was needed to control civil disorders.48 Part of the problem leading the Justice Department to establish an intelligence unit in the first place stemmed from the FBI’s inability to produce good intelligence analysis, particularly related to African Americans. Because the Bureau did not have many black agents, its ability to run operations and gather information in heavily populated black urban areas was compromised. Doar noted that his proposed

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unit would take raw FBI intelligence and analyze or make sense of it, something that seemed beyond the Bureau’s capability at the time. A letter from Attorney General Clark to several of his assistant attorneys general confirmed that the Bureau’s intelligence was not useful to the DOJ. Clark wrote, It is imperative that the Department seek and obtain the most comprehensive intelligence possible regarding organized or other purposeful stimulation of domestic dissention, civil disorders, and riots. To carry out these responsibilities we must make the full use of, and constantly endeavor to increase and refine, the intelligence available to us, both from internal and external sources, concerning organizations and individuals throughout this country who may play a role either in instigating or spreading disorders or in preventing or checking them. However, we do not now adequately use such intelligence or develop and implement methods of improving intelligence. Thus, we do not have any systematic means at present of compiling and analyzing the voluminous information about various persons or organizations furnished to us by the FBI, and we make very little effort to obtain information elsewhere.49

Furthermore, Clark elaborated upon Doar’s earlier proposal to create an intelligence unit in the first place, explaining that such a division would analyze the FBI’s reports. Sullivan’s complaints, voiced during the controversy surrounding the Huston Plan, that the Bureau was not creating good intelligence were confirmed by the Justice Department’s creation of the IDIU. The Justice Department felt ill equipped to carry out its functions related to civil disorders based upon FBI intelligence alone. The dysfunction evident in the relationship between the FBI and Justice spoke to the need for greater intelligence, and yet the intelligence came at the cost of chilling the exercise of citizens’ First Amendment right to express whatever political beliefs they desired. In short, the Bureau was in a bind. It was damned if it did create the intelligence that the Department of Justice demanded, as it gathered such intelligence using questionable means (demonstrated by the Media files and its collection at Muskie’s Earth Day Rally), and it was damned if it did not, as the Department of Justice would simply set up its own intelligence analysis unit, thereby supplementing if not replacing the Bureau. A memorandum to Attorney General Clark spelled out the mission of the IDIU. It explained the unit’s method for organizing intelligence, stating, “More than 150 FBI memoranda and reports relating to this area of interest are received in the Department on an average day. Each of

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these memoranda and investigative reports would have to be reviewed and the important information abstracted on index cards which would be prepared in three sets so as to constitute a master index on individuals, or organizations, and by cities.”50 The letter went on to explain that the intelligence unit would be responsible for gathering facts about organizations and individuals planning to participate in civil disturbances, evaluating and recording information related to such possible disturbances, preparing intelligence summaries, and reporting to the attorney general about any such plans while providing recommendations for how his office might proceed in handling any disorder. In short, the Justice Department recommended a plan to eliminate any need for Bureau intelligence analysis. On December 18, 1967, Attorney General Clark sent a letter to his assistant attorneys general establishing the Justice Department’s intelligence unit. He wrote, “I have determined to establish a permanent unit, staffed with full-time personnel, to take over and extend the activities of the so-called Summer Project of the past two years. The new organization shall be known as the Interdivision Information Unit.”51 The plan to create an intelligence division within the Justice Department had become a reality. While the Department of Justice continued to operate its Interdivision Intelligence Unit well into the 1970s, the Bureau bore immense amounts of public criticism from liberals who believed that Hoover and his salacious need for power had turned the United States into a totalitarian state. In May 1971, the New Republic wrote,

[The FBI] is the nearest thing America has to a secret police. During the past 50 years Presidents and Congresses of both parties have given the FBI and its director ever-wider responsibilities, powers and discretion. Yet no matter where their sympathies lie, few will deny that the Bureau is undergoing the most serious and sustained attack in its history. . . . Practically every politician in Washington more liberal than a right-wing Republican feels that the FBI has him under constant surveillance, and that the director has a dossier filled with all his peccadilloes. The Bureau’s competitor agencies, such as the CIA, the IRS, the Secret Service, military intelligence, and state and local police forces have also had much reason over the past 25 years to develop a healthy respect for and jealousy of the power, effectiveness, and political strength of the Bureau. There are hints and rumors that even Mr. Hoover’s superiors in the Justice Department are looking for a graceful way to ease him into retirement. Against this background, it

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was only natural that the recent outrage over the revelations of Army political spying should have so quickly shifted and broadened to focus on the FBI and its activities. Without at all minimizing the seriousness of the Army’s spying, it was short-lived, amateurish, small potatoes compared to what the FBI has been doing for decades.52

The Bureau bore the brunt of the criticism, despite everything happening in the Department of Justice and in the Nixon administration. The New Republic, along with members of Congress and activists, called for a congressional investigation of the FBI. No one, however, pointed fingers at the Justice Department for encouraging the collection and analysis of such intelligence in the first place, and certainly no one criticized the Justice Department for its own intelligence capabilities. Amid the growing criticism of the FBI, the Justice Department offered no defense for its Bureau.

Scholars and the FBI

As talk of congressional investigations waned, the Bureau faced a different sort of investigation, this time led by academics at a conference hosted by Princeton University in the fall of 1971. These scholars had been captivated by the release of the Media documents. Several were starting to respond by writing pieces critiquing the work of the Bureau. Central to their critiques was the message that Hoover was getting older and would soon be replaced. They pondered what sort of person might take over for him. One such scholar, H. H. Wilson, wrote an article for the Nation titled “The FBI Today: The Case for Effective Control.” Wilson wrote, “One may assume that even J. Edgar Hoover is mortal and that therefore before very long there will be an opportunity to appoint a new director of the Federal Bureau of Investigation. This means that, for the first time since 1924, we have an urgent reason for thorough public discussion and debate on the role of the Bureau itself, effective methods of controlling and supervising its operations, and the qualifications to be looked for in a new director.”53 Like many of the scholars inspired to take a look at the Bureau, Wilson saw the FBI as a “secret police” agency that challenged democracy. He asserted a need for balance between “police agencies and security procedures that do not jeopardize essential political freedoms, or infringe on such freedoms as little as possible.”54 To achieve equilibrium, he recommended that the FBI undergo a review by an independent authority.55

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The conference resulted in the publication of a book, Investigating the FBI: A Tough, Fair Look at the Powerful Bureau, Its Present, and Its Future.56 Several themes emerged from presentations at the conference. The presenters questioned the expenditures of the Bureau, criticizing Hoover’s budget. National security reporter for the Washington Post Walter Pincus alleged that the Bureau spent $30,000 each year on a new limousine for Hoover. He was appalled by the size of the Bureau in relation to the secrecy of its budget, stating,

If the FBI were a small agency or if its activities were non-controversial, the budgetary short cuts and special treatment would be understandable if not totally acceptable. But the Bureau is big and growing bigger. The $334 million it received for the 1971 fiscal year makes it nearly as large in terms of budget and personnel as the Department of State. And this figure is almost double the FBI budget of just four years ago. By the end of fiscal 1972 there will be a programmed 8,900 special agents, an increase of 30 per cent over the number just three years ago.57

Other presenters focused on the Bureau’s obsession with its image. One presenter noted, “This fixation on image has spawned serious problems. For one thing the public has been lulled into a false sense of security. For another, the mass acceptance of the mythology has created a megalomania in the leadership, reflected in internal aberrations. The cardinal sin in the FBI is anything that detracts from the image. It is called, ‘embarrassment to the Bureau.’”58 As a part of maintaining the image of the Bureau, Hoover created a profile for the ideal agent. The Bureau hired certain types of people:

The two largest blocs were Protestants from southern and Midwestern universities and Irish Catholics from Fordham, Boston College, and similar sectarian institutions. The Ivy League had only token representation. The Mormon complement far exceeded its population ratio. As a group, the agents were what is now called Middle American—firmly anti-Communist, politically conservative, illiberal regarding subcultures and minorities and slightly anti-intellectual.59

Not included in that description of Bureau agents were minorities, whom the presenter alleged received, at best, token acknowledgment. The panelist contended that until the early 1960s, black agents could not attend mandatory agent training at the FBI Academy in Quantico, Virginia. They were agents in name only, lacking the credentials and train-

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ing of their peers. Additionally, the Bureau prohibited women from becoming anything more than typists. Though a twenty-eight-year-old female lawyer, Sandra Rothenberg, attempted to obtain a position as agent in 1970, the Bureau refused to consider her application, explaining that “women were unacceptable because of the ‘hazardous nature’ and ‘strenuous physical exertion’ involved.”60 Conference attendees also discussed the Bureau’s refusal to work with the CIA, noting, “After the Bay of Pigs, [Hoover] spread the word around official Washington that the FBI should take over the bumbling CIA. At Langley, Hoover was known as ‘that cop,’ while at 9th and Pennsylvania the CIA Director Richard Helms is disparaged as ‘Princeton Ought-Ought’ and his brain trust as ‘high-domed theoreticians.’”61 Most of all, the conference questioned Hoover’s ability to direct the FBI. Presenters argued that he had not done a good job of leading the Bureau’s efforts to fight crime. Investigative journalist Fred J. Cook examined Hoover’s reluctance to investigate the Mafia, stating, “J. Edgar Hoover and the FBI on the one hand, and the Mafia on the other, grew and prospered together, neither causing the other the slightest anguish. This has been the great, most obvious and most inexplicable failure of the FBI. For decades the Bureau and its Director made no move to combat the underworld crime cartels; in fact, Hoover himself insisted that the menace didn’t even exist, that the Mafia was a figment of journalistic imagination.”62 National security journalist Walter Pincus seized upon an opportunity to attack Hoover for the fear he had induced among politicians in Washington, DC, for decades. His presentation perpetuated the image of Hoover as uncontrollable and unanswerable to anyone within government. He stated,

Both Mr. Hoover and the Bureau are political forces unto themselves. And the fact that they’ve become that is attributable in part to Mr. Hoover. He has done extraordinary things with the assets he’s had. Some of these, people would approve of. Some of them people would not. And a great many things he’s done, only a few people know of. But another reason Hoover, with the agency, has risen to his present position of power is that Presidents have left him alone. Attorneys General have left him alone. Congress has left him alone. And, I should add, the press, in most cases, has left him alone—except when he helped them achieve some notoriety. I think these overseer groups, particularly the government in Washington, have permitted Hoover to reach his unique position—and the Bureau with him—out of both myth and practical political fear.

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I don’t think you can judge his power or his lack of power without feeling the impact the Bureau itself has through threat of action. Politicians have drawn back from attacking the Bureau for years. It is very much like the telephone tapping business; everybody seems to be fearful of what Mr. Hoover may know. And what Mr. Hoover may know is not an abstract fear. Mr. Hoover, on occasion, does pass around information—personal information, damaging information—about his enemies. He does it when he feels it would do him the most good.63

In some ways, the conference perpetuated the myth of Hoover as allseeing, all-powerful, and consumed with his ability to maneuver Washington players, including the president, like chess pieces. This was the Hoover that many liberals feared. Elliff, who had been interviewing attorneys at the Department of Justice, followed the line of power extending from Hoover back to its ultimate progenitors. Elliff saw the Bureau in stark contrast to its myth as mammoth and omniscient. In his conference paper, he wrote, “Over the years . . . succeeding Presidents and Attorneys General have placed increasingly greater responsibility on the Bureau to obtain information they think they need. . . . If fault is to be found, it would not be sought in the Bureau and its former or current Director, but in the long line of Attorneys General, Presidents and Congresses who have given power and responsibility to the FBI, but have failed to give it direction, guidance, and control.”64 Elliff’s solution to the problem was simple—“a firm, constitutional foundation should be established for domestic intelligence.” Still, even those with deep understanding of the Bureau and the power structures undergirding its actions were slow to place the blame on anyone but Hoover. Former attorneys general placed blame on Hoover for his immense authority over intelligence gathering; to do otherwise would have implicated themselves. Former attorney general Francis Biddle had noted the great power Hoover had amassed throughout his nearly halfcentury reign over the FBI. Elliff wrote of Biddle’s concern, stating,

Although Biddle believed this delegation of power to Hoover was “justified by the record,” he raised a disturbing question about “the future use of this great machine of detection, with its ten million personal files, its reputation grown sacrosanct . . . its obvious possibilities of misusing the power it has won. When Hoover resigns or retires or dies, what will happen—can the same freedom be given to another man, the virtual freedom from control? I do not believe it can.”65

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Despite Biddle’s “concern” for the FBI’s amassment of power, his office bore the ultimate responsibility for the Bureau’s authority. Elliff noted, “The FBI is an intelligence arm of the President. The primary foundation for the Bureau’s domestic intelligence role is inherent executive power. Only recently have Congress and the courts begun to explore the ramifications of that power and to require the Justice Department to articulate a constitutional rationale.”66 The legal justification for the Justice Department’s intelligence delegation to the Bureau was shaky. In support of President Nixon’s authority to order Hoover to collect intelligence, the Justice Department cited Totten v. United States, a Civil War case brought by the estate of William A. Lloyd, a Union spy hired by President Abraham Lincoln.67 In the dicta of the court’s decision was an acknowledgment of a president’s authority to hire spies. The court wrote, “We have no difficulty as to the authority of the President in the matter. He was undoubtedly authorized during the war, as commander-in-chief of the armies of the United States, to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy.”68 That language, the Justice Department argued, allowed for the FBI’s collection regarding political dissidents. In addition to seeking authority from a Civil War case, the Justice Department also sought to use In re Neagle, another nineteenth-century case that found the attorney general had the authority to appoint US marshals to guard members of the Supreme Court, as authority for the executive branch to render whatever means necessary to collect any needed intelligence.69 Referring to Neagle, Elliff wrote, “Department executives have asserted that the government may collect any information which is ‘legitimately related to the statutory or constitutional authority of the Executive branch to enforce the laws.’ In effect this view gives the President the constitutional power to authorize intelligence coverage of any subject upon which he needs information for carrying out his governmental responsibilities.”70 Thus, in the early 1970s, the legal authority for the Bureau’s intelligence collection seemed at best antiquated. At worst, it was premised upon the whims of the Justice Department, acting under a president intent upon collecting information related to political dissidents or anything else he deemed a national security threat. Elliff cited a statement from Attorney General John Mitchell, which allowed for the FBI and Department of Justice to gather intelligence about organizations “simply because they are expressing—by means of a demonstration—their disagreement with government policies.”71 The statement read,

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Accurate and complete information is essential for the planning necessary to achieve peaceful demonstrations and for dealing with disorders. It is not only important to know how many are coming at a particular time, but who they might be and why they are coming. This kind of relevant information is freely available to anyone; it is only necessary to collect it in one place and, having collected it, to evaluate it in order to make value judgments and to formulate a plan of action. To provide the concerned departments and agencies with reliable information there has been established within the Department of Justice an Interdivisional Information Unit (IDIU) and an Intelligence Evaluation Committee. Whenever the information indicates a large demonstration may occur, all intelligence concerning that potential demonstration is reviewed by the Intelligence Evaluation Committee . . . [which] weighs all of the available information and reports its conclusions regarding the potential for disorder to the Attorney General.72

The Justice Department based the authority of its intelligence collection upon the premise that such information was “freely available to anyone.” That premise was false. Using raw information collected by the Bureau through wiretap surveillance and the use of informants, the Justice Department analyzed and produced its own intelligence. Not for a second, however, was such information publicly available to everyone. Worst of all, the information produced by the Justice Department was done so under the leadership of the attorney general, a political appointee. Elliff’s presentation at the Princeton conference highlighted the complexity of issues pertaining to the Bureau. Certainly, the Media documents had illuminated the extent of the Bureau’s illegal intelligencegathering capabilities. As Attorney General Francis Biddle voiced years prior, Hoover had amassed a great deal of power related to intelligence collection. Yet Elliff’s presentation pushed the narrative surrounding the Bureau’s flaws beyond an ad hominem attack on Hoover and followed the string of authority straight to the attorney general and the president. That the Bureau had amassed so much power in the first place could be attributed to previous administrations’ thirst for information in the face of, first, war (hearkening back to President Roosevelt’s delegation of intelligence authority to the Bureau during World War II) and, later, political dissidence and urban unrest (seen in Johnson and Nixon’s request for intelligence related to protesters and the black community). For Elliff, a critique of the Bureau constituted a critique of the executive branch and ultimately of the president.

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Though the Princeton conference had invited Hoover to attend or to send an FBI representative on his behalf, he declined. In a longwinded, seven-page letter, Hoover rejected the invitation, stating, “We acknowledge and appreciate your invitation to ‘defend,’ but we are declining in view of our serious doubt that any worthwhile purpose could be served by an FBI representative attending an inquiry casting him in the role of defendant before even the first fact is brought out, and condemned by the ‘judges’ before trial begins. It simply is asking too much that any FBI representative appear personally under those circumstances.”73 Perhaps Hoover should have attended, as he would have found support in Elliff’s presentation for his contention that “our investigative duties are not of our own choosing. They were delivered to us, with the requirement that we take all necessary action, by laws passed by the Congress and by rules and regulations laid down by the President and the Attorney General.”74 Hoover believed that the Princeton conference was a “kangaroo court” and expressed that opinion in a letter to Nixon’s assistant for domestic affairs, John Ehrlichman.75 Despite his absence, perhaps he would have been surprised to find that the discussion of the Princeton conference, in addition to critiquing his performance, also at times focused on the extent to which Hoover carried out the nonnegotiable orders of his bosses, the attorney general and the president.

United States v. United States District Court (Keith)

Though the FBI, the Department of Justice, and the Nixon administration justified their intelligence-gathering activities based upon presidential directives issued by President Roosevelt during World War II, the days of relying upon such legal relics were coming to a close. In February 1972, the Supreme Court heard a case that examined whether the attorney general could authorize warrantless wiretaps in domestic cases related to national security. The case, officially known as United States v. United States District Court and popularly known as the Keith case, asked the courts to rule on the executive branch’s ability to use national security as justification for warrantless wiretaps of domestic subjects. The case brought into question everything that the FBI and the attorney general’s office had been doing in relation to intelligence collection of left-wing radicals. Justice Lewis Powell, writing the final opinion, stated that the case “involves the delicate question of the President’s power,

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acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.”76 The facts of the case were absurd. Legal proceedings involved the prosecution of Lawrence “Pun” Plamondon, John Sinclair, and John Waterhouse Forrest, three members of the White Panther Party who had bombed a CIA recruitment office in Ann Arbor, Michigan, in 1968.77 Prior to the bombing, the three defendants lived as hippies in a commune in Ann Arbor, where they “dropped acid, smoked pot and ate hallucinogenic mushrooms while listening to the MC5, The Doors, and Iggy and the Stooges.”78 Inspired by a newspaper article featuring Huey P. Newton, a leader of the Black Panther Party, the defendants decided to form a White Panther Party to advocate for black rights. Sinclair defined his party’s mission in 1968, writing,

Our program is Cultural Revolution through a total assault on the culture, which makes us use every tool, every energy and any media we can get our collective hands on. . . . Our culture, our art, the music, newspapers, books, posters, our clothing, our homes, the way we walk and talk, the way our hair grows, the way we smoke dope and f*** and eat and sleep—it is all one message, and the message is FREEDOM! . . . We demand total freedom for everybody! And we will not be stopped until we get it. . . . ROCK AND ROLL music is the spearhead of our attack because it is so effective and so much fun. . . . With our music and our economic genius we plunder the unsuspecting straight world for money and the means to carry out our program, and revolutionize its children at the same time.79

Not surprisingly, this rhetoric caught the attention of the federal government, particularly the FBI, which added Plamondon to its “Ten Most Wanted” list.80 To escape prosecution, Plamondon went underground and traveled the world, spending time with exiled Black Panther Party members. His journey took him to Canada, Germany, Italy, and Algeria.81 When Plamondon’s case went to trial, his attorneys requested that the prosecution turn over all evidence, including electronic wiretaps. Attorney General John Mitchell rebuffed such attempts, explaining, “Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” 82 Mitchell himself had authorized the wiretaps without seeking the approval of any court.

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He argued that his authority alone was sufficient to justify such intelligence collection, and he refused to turn over the content of the wiretaps to the defense.83 The district court, presided over by Judge Damon Keith, found in favor of the defendants, arguing that in domestic situations, there was no exemption from the Fourth Amendment’s requirement of a warrant.84 The Sixth Circuit affirmed the lower court’s ruling, writing, “In dealing with the threat of domestic subversion, the Executive Branch of our government . . . is subject to the limitations of the Fourth Amendment . . . when undertaking searches and seizures for oral communications by wire.”85 When the government appealed, the Supreme Court granted certiorari and affirmed the decisions of the lower courts. Justice Powell stated, We conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government’s domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.86

Thus, the government’s justification for its warrantless collection of intelligence, through electronic surveillance, crumbled. After the Keith decision, the attorney general had fewer legal grounds upon which to claim executive privilege for indiscriminate and warrantless collection of domestic intelligence. The Justice Department could no longer evade the Constitution in the name of national security, and the attorney general could no longer order the FBI to carry out collection without a warrant. Alternatively, the FBI could no longer hide behind the all-powerful authority of the Justice Department, as Keith stripped it of such power, making clear that any such intelligence actions would be illegal. The Keith case, perhaps as much as anything that happened up to that point, signified that the tide was changing for the FBI and for the Nixon administration. 87 It also provided the Bureau a fair amount of legal protection from the attorney general’s whims for the warrantless collection of intelligence.

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The Media, Pennsylvania, break-in became a turning point for the FBI. For liberals it confirmed the extent to which the FBI was conducting illegal surveillance of political dissent. It would take members of Congress, scholars such as those at the Princeton conference, and the Supreme Court’s decision in Keith to unravel the Bureau’s and the executive branch’s tangled web of self-made legal justifications, paving the way for a broader attack against the FBI’s intelligence efforts. By eliminating the legal premises upon which the Bureau and the executive branch carried out their intelligence-gathering actions, those scholars and the courts allowed for change sought by activists such as the Media burglars. The sweeping change, however, came at a cost, most of all for Hoover. Following the Princeton conference and the deluge of liberal criticism against Hoover, Nixon resented the scrutiny that Hoover’s actions had sent ricocheting toward him. He began to plot Hoover’s forced retirement. Thus, what should have been a satisfying moment for the Bureau, seen in the decision of Keith, instead culminated in a new and unprecedented tension between the Bureau and the president. At stake would be the legacy of Hoover and the directorship he had closely guarded for nearly half a century.

Notes

1. “Fact Sheet on the FBI,” April 23, 1971, 1. 2. Ibid. 3. Ibid. 4. Ibid., 2–4. 5. In 1970 Elliff completed an academic monograph examining the Justice Department’s public response to black militancy and antiwar dissent and the need for greater attention to FBI domestic intelligence surveillance policies. John T. Elliff, Crime, Dissent, and the Attorney General: The Justice Department in the 1960s (Beverly Hills, CA: Sage Publications, 1971). 6. John Elliff, Memorandum to Workshop on Problems of Dissenters and Demonstrators, re: Justice Department Domestic Intelligence, 1970, 1. 7. Ibid. 8. Elliff would acknowledge that FBI authority to investigate subversives also resided in the Federal Employee Security Program and the Internal Security Act of 1950, which authorized the FBI to gather information for use by the attorney general in prosecuting “subversive” groups. The FBI also had authority to investigate violations of federal law related to the antiriot act. 9. J. Edgar Hoover, Memorandum, “To All Law Officials,” September 6, 1939. Prior to his order in September 1939, President Roosevelt assigned all work related to espionage, counterespionage, and sabotage to the FBI, the Military Intelligence Division of the War Department, and the Office of Naval Intelligence of the Navy Department. See FDR, Confidential Memo for Cabinet Officers, June 26, 1939.

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10. Elliff, Memorandum to Workshop on Problems of Dissenters and Demonstrators, 2. 11. Ibid. 12. Ibid. 13. Ibid. 14. Ibid., 3. 15. Ibid., 3. 16. Ibid., 3. 17. Ibid., 3. 18. John T. Elliff, interview with Kevin Maroney, July 21, 1971, 1. 19. Ibid. 20. Ibid. 21. Ibid. 22. Ibid. 23. Ibid. 24. Ibid. 25. Ibid., 2. 26. See “Fact Sheet on the FBI,” April 23, 1971. 27. John T. Elliff, interview with Nathaniel Kossack, July 15, 1971, 2. 28. Edmund Muskie, Press Release—Muskie Hits FBI Surveillance, April 14, 1971, 1. 29. Edmund Muskie, Letter to President Nixon, April 14, 1971, 1. 30. Muskie, Press Release, 1. 31. Ibid. 32. Ibid. 33. Ibid. 34. Ibid. 35. Ibid., 2. 36. John T. Elliff Papers, Transcript of Senator Ervin, “Proposed Amendments to H.R. 9272,” 4 (no date). 37. Ibid., 4. 38. In his statement, Nelson wrote, “Much of the justification for the current expansion of the government’s power to gather information about its citizens and tuck it away in computers without full public knowledge or Congressional authorization is based upon the Justice Department’s interpretation of a 1940 Presidential order authorizing the use of wiretaps against ‘persons suspected of subversive activities.’” See Statement by Senator Gaylord Nelson, 5. 39. Statement by Senator Gaylord Nelson, n.d., 5. 40. John Doar was a lawyer from northern Wisconsin who led the federal government’s efforts to desegregate the South through his work for the U.S. Department of Justice. He was chief counsel for the team that made the case for the impeachment of President Richard Nixon. See Roy Reed, “John Doar, Federal Laywer on Front Lines Against Segregation, Dies at 92,” New York Times, November 11, 2014, http://www.nytimes.com/2014/11/12/us/john-doar-federal-lawyer-in-battle-against -segregation-dies-at-92.html. 41. IDIU Memorandums Attached to Mardian Letter, September 27, 1967. Memo for Attorney General from John Doar, Assistant Attorney General, Civil Rights Division. 42. Ibid. 43. Ibid. 44. Ibid. 45. Ibid.

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46. Lauren Hodges, “John Doar Remembered as a Civil Rights Pioneer,” NPR, November 11, 2014, http://www.npr.org/sections/thetwo-way/2014/11/11/363409539 /john-doar-remembered-as-a-civil-rights-pioneer. 47. Ibid. 48. See Elliff, Crime, Dissent, and the Attorney General, 104–148. 49. Letter from Attorney General Ramsey Clarke to Kevin T. Maroney, Thomas J. McTiernan, Hugh Nugent, James P. Turner re: Establishment of a Departmental Intelligence Unit in Relation to Civil Disorders, November 9, 1967. 50. Letter to Ramsey Clark, Attorney General, from Messrs. Maroney, Nugent, McTiernan, and Turner re: Committee Report, December 6, 1967. 51. Letter from Attorney General Ramsey Clark to John Doar, Fred M. Vinson, Jr., Roger W. Wilkins, J. Walter Yeagley re: Creation of Interdivision Information Unit, Decemeber 18, 1967. 52. “FBI Inspection,” New Republic, May 29, 1971, 9–10. 53. H. H. Wilson, “The FBI Today: The Case for Effective Control,” Nation, February 8, 1971, 169. 54. Ibid. 55. Interestingly, his recommendations for why the Bureau should be examined belied his misunderstanding of the relationship between the FBI and the Justice Department. Wilson perpetuated a myth, common at the time, that Hoover was allpowerful and that other entities within the government, particularly the attorney general, bowed to his will. The existence of the IDIU proved that the relationship between the Bureau and Justice was much more complicated. 56. Pat Watters and Stephen Gillers, eds., Investigating the FBI: A Tough, Fair Look at the Powerful Bureau, Its Present, and Its Future (New York: Doubleday, 1972), 65. 57. Ibid. 58. Ibid., 88. 59. Ibid., 96. 60. Ibid., 98. 61. Ibid., 117. 62. Ibid., 140. 63. Ibid., 252–253. 64. Ibid., 264, 288. 65. Ibid., 287. 66. Ibid., 256. 67. U.S. v. Totten, 92 U.S. 105 (1875). 68. Ibid., 106. 69. In re Neagle, 135 U.S. 1 (1890). 70. Watters and Gillers, Investigating the FBI, 262. 71. Ibid., 263. 72. Ibid., 263. 73. Hoover letter to Duane Lockard, October 7, 1971, Elliff Papers, 1. 74. Ibid., 2. 75. Hoover letter to Ehrlichman, in Richard Nixon Presidential Library, Ehrlichman, Box 23, White House Special Files Staff Member and Office Files, “J. Edgar Hoover, Company President,” 10. 76. United States v. United States District Court, 407 U.S. 297 (1972). 77. Trevor W. Morrison, “The Story of United States v. United States District Court (Keith): The Surveillance Power,” Columbia Public Law & Legal Theory Working Papers (Paper 08155, 2008), 4, http://lsr.nellco.org/columbia_pllt/08155. 78. Ibid., 4.

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79. Ibid., 5, quoting Samuel C. Damren, The Keith Case, 11 The Court Legacy (Historical Society for the U.S. Dist. Ct. for the E.D. Mich.) at 1, 8 (2003). 80. Ibid., 6. 81. Ibid., 5. 82. Ibid., 8. 83. Ibid., 8. Later, Forrest’s attorney would explain his theory for how the government procured the wiretaps used to convict his client. He stated, “I believe [the surveillance] was a National Security Agency intercept from when Pun Plamondon was in Algeria with [Black Panther leader] Eldridge Cleaver, who was also on the run. They were calling Huey Newton at the Black Panther headquarters in Oakland. And . . . if we’d have had a taint hearing, I think we would have lost [because the conversations had nothing to do with the Ann Arbor bombing].” 84. Ibid., 10, citing Judge Keith in 321 F. Supp 1074, 1080 (E.D. Mich. 1971). 85. United States v. United States District Court, 444 F.2d 651, 667 (6th Cir. 1971). 86. United States v. United States District Court, 407 U.S. 297, 321 (1972). 87. Interestingly, though the Keith decision prohibited warrantless intelligence surveillance within the United States, the case also established a precedent affirming warrantless collection of foreign intelligence. This distinction was later clarified by the creation of the Foreign Intelligence Surveillance Act (FISA) in 1978.

5 Hoover’s Final Days

After the Huston Plan fell apart, Nixon’s staff began to wonder whether it was time to replace Hoover with a new FBI director. On April 12, 1971, White House adviser Pat Buchanan wrote to John Dean, Nixon’s White House counsel, requesting some insight into possible repercussions stemming from the firing of Hoover. He wrote, “Can you tell me offhand the status of the Director of the FBI—is he, now an appointive figure, who can be shifted out by the party in power. In other words, were we to replace Hoover now—could the Democrats waltz in and throw our guy out and put their guy in—in 19 months?”1 Four days later, Dean replied, “The Director now serves at the pleasure of the Attorney General. He is appointed by the Attorney General and, therefore, can be removed by the Attorney General. Effective as of the day in which the present incumbent Director ceases to serve as Director, the Director of the FBI will be appointed by the President by and with the advice and consent of the Senate.”2 Dean confirmed Buchanan’s fear of Democrats’ replacing Hoover with their own nominee. If Nixon replaced Hoover and the Democrats later came to power, they could replace Nixon’s director with one of their own.3 Inherent in his answer was an assumption that subsequent directors, appointed at the will of the president, would become partisan appointees. Hoover’s ability to withstand his tenure under both Democratic and Republican presidents would become a thing of the past. 103

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Dean was familiar with the status of Hoover’s position, as he had earlier answered a similar question from John Ehrlichman, Nixon’s counsel and assistant to the president for domestic affairs. In a memo written in December 1970, Dean outlined the legal basis for Hoover’s position, referring to the executive order signed by former president Lyndon Johnson, which allowed Hoover to retain his position even after he attained the age of mandatory retirement as prescribed by federal law.4 Dean concluded that although Johnson had signed an executive order on Hoover’s behalf, subsequent presidents could elect to follow or not follow the order. Dean wrote, “In brief, the Director of the FBI continues to serve at the pleasure of the President, despite his exceeding the 70-year-old retirement requirement.”5 It is interesting to note the contrast in Dean’s responses to Ehrlichman and Buchanan. With Ehrlichman, Dean tied Hoover’s tenure to the will of President Nixon—as he read the law, Hoover continued to serve only at the president’s behest. With Buchanan, however, Dean, without legal explanation, placed the responsibility for Hoover solely with the attorney general. Comparing the two documents, it seems that Dean wished to pass responsibility for Hoover from the White House to the Department of Justice. Although Hoover was appointed as director in 1924 by the attorney general, Congress had revised the future procedure for appointing an FBI director, which would give the president sole responsibility for doing so, effective upon Hoover’s retirement.6 By October 1971, White House memoranda regarding Hoover’s retirement were sent directly to Nixon. On October 27, 1971, Ehrlichman sent a memo to Nixon that included an attachment drafted by Attorney General John Mitchell containing a script to fire Hoover; the attachment came at the president’s request.7 The script read,

Edgar, as you can imagine I’ve been giving your situation a great deal of thought. I am absolutely delighted that you have weathered the attacks upon you and the Bureau so well. The Princeton symposium, the various articles and stories that have run have only scratched you in minor ways. In thinking through your future I have concluded that you must stay as Director of the Bureau through November of 1972. I hope you will agree to do so because I think it’s very unrealistic to even contemplate your replacement in the meantime. Anyone who is selected as your replacement would immediately become a political issue, would undergo a bruising confirmation process and both he and the Bureau would be hurt in the process.

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This next year is going to be a highly political year. We must figure out some way to keep the FBI out of the political crossfire. I have concluded that the best way to do this is for you to say right now, publicly, that you have decided to serve one more year, until just after the inauguration in January of 1973, and that then you will retire on “senior status.” You would obviously be available to the Bureau and the government as a special consultant, and could provide for an orderly transition for the new Director. The timing would permit whoever is elected President in November to announce your replacement, thereby taking your replacement’s identity out of the political campaign. Between now and November you can be thinking about who a replacement might be. If we can agree on a replacement we can keep it a secret, and begin to prepare the way for the new man. Obviously, if I am reelected, your replacement would be someone who would carry on your tradition. On the other hand, if the Democrats were to prevail in November of 1972, the Bureau would be subject to some Director that neither of us would like. I sincerely think that it is in our mutual best interests and in the best interest of the Bureau. I’ve sifted through every conceivable alternative and option and I know that you should and must do it this way.8

The script sought to conciliate Hoover, lauding him for weathering Bureau criticism. Yet Nixon’s order that Hoover retire was undeniable. On Nixon’s orders, Hoover would have to step down and train his replacement. It was a bold suggestion sure to elicit an angry and potentially toxic response from the director. Ehrlichman apparently did not find the script helpful. Upon noting the attachment in his memo to President Nixon, he remarked that none of Mitchell’s suggestions were “particularly novel.”9 The script went to great lengths to appease Hoover, allowing him to stay on until the election. Perhaps the reason for Nixon’s reluctance to fire Hoover before the upcoming election had something to do with Hoover’s popularity with the public. Though Hoover was indeed attracting his fair share of criticism from reporters and liberals, the general public, by and large, still believed he was a good director, as evidenced by Gallop polls taken in 1970, which found 71 percent of those polled viewed the Bureau “highly favorably.”10 And yet, despite public affirmation, the attacks against Hoover were mounting. By October 1971, the White House, particularly Ehrlichman, worried that Hoover could not withstand impending criticism. In another

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memorandum to President Nixon (issued at Nixon’s request), Ehrlichman noted several upcoming issues related to the FBI. He worried that William Sullivan, recently fired by Hoover, would retaliate by “[blasting] Hoover”—his “inspired attacks in the media [could] literally destroy Hoover.”11 He also attached a memo written by one of Nixon’s staffers and one of his infamous “Plumbers,” G. Gordon Liddy, a former FBI agent. In twelve pages, Liddy provided a background to the FBI and berated Hoover’s decline in leadership. His opening sentence, “The FBI was born in another age,” sought to immediately establish the antiquation of the Bureau, having been under the leadership of one man for forty-seven years. He gave a history of the bureau, which came to prominence after World War I, having been established in 1908. In the early days, Liddy maintained that the Bureau was “incompetent and corrupt,” until Attorney General Harlan F. Fiske appointed Hoover to serve as the fifth director of the FBI.12 In the early days of his tenure, Liddy maintained, Hoover did a fine job, becoming one of the first in law enforcement to use technology to fight crime.13 The FBI hired young lawyers and accountants as special agents, and “by the late 1930’s, skill and dedication brought success and with success spread the fame of Hoover and his ‘G-men.’”14 Yet, even in the early days, Hoover’s ego stood in the way of agents’ becoming overly successful in their own right. Liddy wrote about one such agent, Melvin Purvis, who fought against the gangster and bank robber John Dillinger. In the mid-1930s, Purvis became more famous than Hoover, with children’s cereal boxes containing “Junior G-Man” badges modeled after that held by Purvis.15 Hoover could not stand the amount of attention Purvis received. Liddy wrote, “Hoover crushed [Purvis]. FBI history was rewritten, giving the credit to agent Samuel P. Crowley. Years later, Purvis died a suicide.”16 Hoover’s great successes within the Bureau overshadowed any excessive power he wielded during those days. In contrast to the sabotage carried out by Germans within the United States during World War I, the country saw “not one successful act of enemy sabotage carried out” within its borders.17 Clearly, Hoover did something right, as the FBI flourished during World War II. Following its success during the war, the FBI shifted its focus to communism and the burgeoning Cold War. Though, Liddy maintained, “the cold war was made to order for Hoover and the FBI,”18 the Bureau also saw its personnel languish in the late 1940s as “the cult of Hoover had begun to flower,” and many of its best agents left for other career opportunities.19 Liddy nonetheless argued that during this time, agents still “knew in their hearts ‘We’re Number One’” over other government services, such as the US Marines.20 Liddy

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believed that the moment when things started to go wrong for the Bureau occurred in the early 1950s with the emergence of the “Bureau clerk.”21 He wrote, “These were young men without the education prerequisites brought in to the Identification Division for the most part as clerks and sent off to earn an accounting degree from such dubious institutions as Southeastern University in Washington, D.C.”22 Hoover appointed these men, with their dubious degrees, as special agents, giving them a salary they could not demand in the private sector. Liddy wrote, “They became true believers in the cult of Hoover. Jealous of the more competent professionals, and unwilling to disagree with Hoover on anything, as they rose administratively by currying favor through flattery, the Bureau started to decline.”23 By the time he wrote the memo in 1971, Liddy believed that agents could no longer say, “We’re Number One.”24 Because Hoover became so concerned with his image and the “cultism” of the Bureau, he had stifled all outside criticism. Liddy found that the greatest decline took place in the Domestic Intelligence Division, echoing Sullivan and Charles Brennan’s perspective of the Bureau. Any agents who dared to speak out against Hoover (i.e., Sullivan) were “forced out or relegated to posts where their skills [could not] be exploited.”25 Hoover seemed to be applying on a larger scale the tactics he had used against Melvin Purvis in the 1930s. Any staffer who threatened Hoover faced punishment or, worse yet, permanent ousting. Hoover’s behavior not only infused the FBI but bled outside his organization as well. Liddy described Hoover’s deteriorating relationships with those in the Department of Justice and the White House, writing, “Hoover refers openly to Assistant Attorney General Robert Mardian as (inaccurately) ‘that Lebanese Jew.’ He has reportedly threatened the President. Recently there have been articles in The Washington Post, The New York Times, Time, and Life, which indicate that officials and/or former officials at the highest level of the FBI are now divulging to the press the serious shortcomings of Hoover and the Bureau.”26 Despite his apparently vicious attempts to hang on to his directorship, Hoover also knew that his tenure was coming to an end. Liddy alleged that Hoover told Associate Director Clyde Tolson, his second in command at the FBI, that he knew, no matter who won the election in 1972, he was done.27 Liddy concluded, “J. Edgar Hoover should be replaced as Director of the FBI. The question is when?”28 Liddy discussed the timing of when Nixon should “remove” Hoover. He warned that the removal should not appear to be inspired by partisan politics. Time and again, he compared the appointment of an

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FBI director to a nomination to the Supreme Court, stressing its importance. He noted that 1972 would see trials for both the Berrigan brothers, two Jesuit priests who advocated against US involvement in the Vietnam War, and Daniel Ellsberg, a RAND employee who released the Pentagon Papers. He worried that removing Hoover from his position as director could aid the Berrigans and Ellsberg, as he believed they would use Hoover’s indiscretions as a defense in their trials. He stated, “The most compelling reason against taking action in 1972 is the probability that issue-starved Democrats can be counted upon to exploit the matter even to the point of irresponsibility.”29 Despite his many reasons supporting removing Hoover from his directorship, Liddy also had several reasons for Nixon to wait. First, he argued that Hoover could “make good on his threat against the President.”30 He admitted, however, that he did not know the “nature of the threat” and therefore could not provide analysis of it. Sullivan corroborated the notion that Hoover had something blackmail worthy on Nixon. He wrote in his autobiography that Nixon and a friend had taken two trips to Hong Kong in 1966 and 1968 while Nixon was working for John Mitchell’s law firm. While there, Nixon struck up a friendship with a Chinese woman named Marianna Liu. Sullivan wrote that an FBI legal attaché office in Hong Kong found out about Nixon’s friendship with the woman and passed along the information to Hoover. Sullivan wrote, “Our men were always on the lookout for anything they could dig up on the personal lives of public figures to send to Hoover, and even though Nixon was a private citizen at that time, he was still very much a public figure.”31 According to Sullivan, Hoover “gleefully” accepted the intelligence on Nixon and then went to the future president to present it to him directly. Sullivan argued that Hoover used this tactic frequently. Once he had disgraceful information on politicians, he would show them his intelligence, tell them that he knew there was no truth to the allegations, and promise never to let the information see the light of day.32 A year after Nixon became president, Ms. Liu and her Chinese husband immigrated to the United States. A newspaper article explained that Ms. Liu’s immigration “had been given top priority.”33 The article featured a photo of her shaking hands with President Nixon.34 The possible blackmail scenarios aside, Liddy also believed that firing Hoover would not win Nixon any votes from the Left. He worried that if Nixon fired Hoover, he would alienate some of his supporters, who admired Hoover. Also tricky was the fact that firing Hoover would make it necessary to find a suitable replacement who would satisfy both the Left and the Right.35

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After providing a terse list of reasons against Hoover’s immediate removal, Liddy recited a laundry list of reasons to fire him immediately. Central to his reasoning was Sullivan, whom Hoover had fired by the time Liddy wrote his memo to Nixon in October 1971. Sullivan, angry as ever, decided to go to the press and leak information about the Bureau. According to Liddy, the negative information Sullivan provided to the press about the FBI was “accurate, substantive, and damaging.”36 He cited a recent Washington Post article alleging that Sullivan took enough Bureau records with him after he left the FBI to publish an entire book.37 He downplayed the amount of upheaval that would exist within the Bureau upon Hoover’s firing, reasoning that with the exception of a few old cronies, most of the agents would embrace and even welcome a new director. He argued that the damage risked by keeping Hoover outweighed that of letting him go, concluding, “Hoover is in his 55th year with the Department of Justice. Even his secretary dates from the first world war. There is no dishonor, express or implied in asking a man in such circumstances to give up the burden of office.”38 Liddy, in addition to being a former FBI agent, had insider access to information about the Bureau through Sullivan. Still, he also worked as one of Nixon’s cronies and helped to organize the Watergate break-in. His credibility is dubious, at best. However, he had the ear of Nixon. Whether or not the information he provided about the Bureau was correct, it appears that Nixon took Liddy at his word. In his autobiography, Liddy bragged about his ability to go around Hoover by speaking directly to Sullivan in order to carry out the president’s wishes for better intelligence. In August 1971, Liddy wrote a memo to the White House summarizing a conversation he had with Sullivan. Around that time, Nixon was worried about leaks to the press, particularly regarding the Pentagon Papers, which had been leaked recently to the Soviet embassy, prior to their publication in the New York Times.39 Nixon and Liddy believed that the FBI was not giving a sufficient amount of attention to the source of the Pentagon Papers’ leak, Daniel Ellsberg. Sullivan, ever the eager Bureau employee, told Liddy about Hoover’s decision to cut ties with the Central Intelligence Agency (CIA). He also demonstrated the extent of Hoover’s vindictiveness by sharing with Liddy that the “top FBI expert on Soviet espionage” had been reassigned to chasing non-Soviet fugitives after making the mistake of leaving a safe drawer open in his office.40 Liddy described Sullivan as “very insecure in his position, almost frightened. He gave the impression of a man doing his utmost to do his duty as he saw it, but under attack from above and below.”41 Sullivan asked Liddy

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to have lunch with Charles Brennan, his assistant director for domestic intelligence. Brennan conveyed to Liddy that Hoover wished to remove both himself and Sullivan, having threatened to reassign them. Liddy was irate to learn that the Bureau was not investigating the Ellsberg leak at the elevated status of “Bureau Special” or pursuing leads on any other major leaks. Brennan believed that in order for the FBI to pursue the intelligence leaks for which Nixon sought sources, Nixon would have to specifically order him to do so.42 Liddy also spoke to those working with the FBI in the Department of Justice to determine their stance on the work of the Bureau. Robert Mardian, an assistant attorney general, saw Liddy’s memo about his conversation with Brennan and Sullivan. He confided to Liddy about a special study of the Bureau conducted by the directors of the CIA, Defense Intelligence Agency, National Security Agency, and Secret Service that highlighted “the serious deterioration of the FBI capability and performance.”43 According to Mardian, Hoover had gone so far as to threaten President Nixon. When Assistant Attorney General Richard Kleindienst said that he would welcome a congressional investigation of the FBI, Hoover allegedly called him and said that if such an investigation took place, he would “have to tell all that [he knew] about this matter.”44 Liddy wrote, “Mardian stated that he knows what Hoover was referring to and recognized the implied threat to the President in the remark.”45 According to Mardian, the president also recognized the threat inherent in Hoover’s remark. That rumors abounded within the Nixon White House about Hoover and his potential threats against Nixon is certain; that Hoover actually had anything on Nixon is less certain. Historical documents do not corroborate exactly what, if anything, Hoover had on Nixon. Nonetheless, the talk about Hoover and his declining bureau, coupled with Nixon’s insatiable need for control of domestic intelligence, led the president to discuss with his staff whether or not to fire Hoover. Though he had received memos from Ehrlichman and Liddy discussing how and whether to fire Hoover, he still wrestled with what he should do and which decision would cause him the least strife. The log of Nixon’s White House Tapes records two discussions about Hoover’s tenure. Once again, supporting the notion that in October 1971 the discussion about Hoover’s tenure reached an apex, there is a recorded conversation between Nixon, Attorney General John Mitchell, legal counsel and Domestic Affairs Assistant John D. Ehrlichman, and Special Assistant to the President Stephen B. Bull in the Oval Office. Mitchell approached Nixon about a series of tapes housed in Mardian’s safe. The tapes contained information related to the White House’s back-

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ground investigations, wiretapping done on Henry Kissinger’s staff, and wiretaps conducted on newspaper reporters. According to Mitchell, Sullivan gave those tapes to Mardian before Hoover fired him.46 In July 1971, Sullivan knew that Hoover would likely dismiss him, and he wanted to give the Nixon administration leverage against the ailing director. To do so, Sullivan contacted Mardian, expressing an urgency to pass along the FBI’s tapes. Sullivan had overseen a series of secret wiretaps on Nixon’s staff and on newspaper reporters. Nixon demanded that Hoover conduct the taps; Hoover assigned the covert operation to Sullivan, who retained all records. Sullivan worried that Hoover’s past behavior strongly suggested he would use the tapes from the wiretap to blackmail Nixon. As an angry employee on his way out, Sullivan saw a chance for revenge. An FBI report detailing an interview with Mardian reflected this reasoning, explaining, “Mr. Hoover had used wiretap information to blackmail other Presidents of the United States and [Sullivan] was afraid that he could blackmail Mr. Nixon with this information.”47 Mardian recounted that Sullivan sent Assistant Director Brennan to his office “with an ‘old beat up’ satchel, as best he could recall olive drab in color.” The satchel bore Sullivan’s initials and contained the tapes procured from the wiretap.48 After Hoover fired Sullivan, he discovered, to his great shock and dismay, that all the tapes from the wiretaps were missing. An FBI report stated,

Following departure of former Assistant to the Director William C. Sullivan, it was discovered that all records he had maintained in his office concerning special highly sensitive coverage the Bureau maintained at request of the White House were missing. Due to the extremely sensitive nature of these records, Sullivan maintained the only copy of all records concerning this coverage. It was subsequently established beyond a reasonable doubt that prior to his departure, Sullivan turned all of these records over to Robert C. Mardian, Assistant Attorney General, Internal Security Division of the Department. Mardian allegedly destroyed these records.49 And yet, though FBI personnel believed at the time that Mardian had destroyed the records of the tapes, White House records suggest otherwise. The tapes continued to sit in Mardian’s safe at the Department of Justice. Attorney General Mitchell worried that Hoover, who was “tearing the place up over there trying to get at ’em,”50 would figure out they were in Mardian’s office and “[blow] the safe.”51 Ehrlichman acknowledged that Hoover only wanted to get at the tapes because

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they covered illegal conduct and because without having his own copies of them, he had no leverage with Mitchell. According to Ehrlichman, Hoover had his own copies, but Sullivan sneaked them out and gave them to the attorney general. Nixon was none too happy to hear that the tapes resided in the Department of Justice. He stated, “Mardian’s in Justice, you’ve gotta get them out of there. Do we have them in my hands, then?” Mitchell assured him that he could get the copy of the tapes into the president’s hands.52 The tapes contained information related to wiretaps carried out by the FBI and Nixon. Even though Hoover had drawn the line at participating in the Huston Plan, he had no hesitation in helping the president to collect intelligence on his own cabinet and staff directly. Rumblings of these wiretaps surfaced as early as 1969. In a press conference on June 19, 1969, a journalist asked Nixon about “controversy” surrounding Hoover and his collection of electronic surveillance.53 At the time, journalists had no reason to suspect the extent of Nixon’s involvement in intelligence collection; instead, they placed the majority of their suspicion on Hoover, as evidenced by the journalist asking Nixon whether Hoover enjoyed his “complete confidence” and whether he had any plans to relieve the FBI director of his position.54 Nixon assured the press that “Mr. Hoover does enjoy my complete confidence, and there has been no discussion with regard to his tenure as far as the future is concerned.”55 Then Nixon began a spin on the facts, assuring the press that Hoover had sought the approval of the attorney general when carrying out electronic surveillance, forgetting to add that Nixon had originated the idea of the taps and encouraged them profusely. Nixon boasted of his administration’s great respect for civil liberties, explaining, “As far as this administration is concerned, our attitude toward electronic surveillance is that it should be used very sparingly, very carefully, having in mind the rights of those who might be involved, but very effectively to protect the internal and external security of the United States.”56 Despite his assurances, Nixon was lying. His administration was using wiretaps like that of no other president before him. No one in the Nixon administration was immune from Nixon’s suspicion or his attempts at investigation. By April 1971, the chatter regarding the wiretaps became louder. By then, journalists had gotten wind of Hoover possibly tapping the telephones of members of Congress. In yet another press conference, this time with White House Press Secretary Ronald Ziegler, a journalist asked, “Does the President believe that the FBI should tap telephones of Members of the House or any Member of the House and Senate?”57 Ziegler denied that the White House had author-

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ized any phone tappings of members of Congress. A few days later, Ziegler would clarify, “I can tell you this: that the President’s view on this is quite clear; snooping or surveillance of private citizens is totally repugnant to the President and to this administration.”58 He was lying. Two days later, the New York Times ran a front-page story titled “FBI Said to Bug a House Member.”59 The article claimed that the FBI sent an informer to Representative John Dowdy’s Capitol Hill office with “a hidden tape recorder strapped to his back.”60 In addition to recording conversations, the informant also monitored and recorded phone conversations with the congressman. Though the article noted that, technically, the Bureau had not bugged the congressman’s phone, as all the recording devices resided on or with the informant, the episode nevertheless signaled an unprecedented move in attacking corruption within the government. Even worse, the Department of Justice had lied about the Bureau’s involvement in investigations of congressmen. The New York Times article noted, “These steps by the bureau do contradict recent statements by officials of the Department of Justice that the bureau has never engaged in electronic surveillance of Congressmen, even in investigating specific illegal acts.”61 At Ziegler’s morning press conference, journalists barraged him with questions about the New York Times article. One demanded to know, “We have been told consistently by this administration that the FBI has not been doing this. . . . Did [the claim in the article regarding the FBI] happen and, if it did, how do we reconcile that with the consistent denials of Mr. Kleindienst [the assistant attorney general] and others that that has not happened?”62 Ziegler played dumb, claiming he had not seen the article and knew nothing about its claims. Furthermore, he reiterated the party line: that the White House’s policy was against any wiretaps of members of Congress and senators. At that point, the press had nowhere to go but to point fingers at the Bureau. One of the journalists stated, “My question, Ron, went not to the story itself, but to the apparent conflicts between the actions of the FBI and the stated policy of the administration. My question was, has the President initiated any kind of investigation?”63 Another journalist said, “Ron, there have been times in the history of this country when the FBI was doing things that even the Justice Department didn’t know about. Could it be that these things are going on now without being in accordance with your policy?”64 The implication at this point was that the FBI had been acting as a rogue agency, carrying out dirty work behind Nixon’s back. That Hoover would do such a thing, coupled with the Nixon administration’s constant denial of having anything to do with the Bureau’s

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behavior, led journalists to believe that Nixon needed to rein Hoover in and let him go. Ziegler danced a careful jig in his replies. Admitting the administration’s guilt would have instantly shifted attention from the Bureau to the White House. And yet placing the blame fully on the FBI and buying into the journalists’ implications would have evoked the wrath and possible retaliation of Hoover. So Ziegler continued to deny everything. He stated, “It is not an investigation of the Federal Bureau of Investigation by this administration. If I would suggest that, I think it would suggest that I am concurring in many of the charges that have been made against the Federal Bureau of Investigation.”65 Before long the president himself came to the defense of the FBI, as news of the wiretaps called into question the FBI’s seemingly unrestrained power. On May 1, 1971, in a press conference, Nixon fielded a question from a journalist who asked whether the United States was becoming a police state, thanks to the FBI. Nixon underplayed public concern, stating, “All of this hysteria—and it is hysteria, and much of it, of course, is political demagoguery to the effect that the FBI is tapping my telephone and the rest—simply doesn’t serve the public purpose.”66 He justified the wiretaps conducted by the FBI, explaining that they were approved by the attorney general and were only used in limited instances to prevent violence or to stop an overthrow of the government.67 Moreover, he assured the journalists, “This is not a police state. I have been to police states. I know what they are. . . . This isn’t a police state and isn’t going to become one.”68 Nixon had plenty of reasons, however, to be worried. Though the information regarding the taps would remain a secret for a couple more years, eventually news of the taps, including the identities of those under suspicion, would reach the public. On February 27, 1973, Time released a story alleging that the White House had ordered the FBI to tap the telephones of six or seven journalists as well as several White House aides to determine the source of leaks to the press.69 According to the article, “Hoover initially balked at the White House directive to install the wiretaps, but was ordered by Mitchell to follow it.”70 In the coming months, more details would emerge, along with the identities of those tapped by the FBI. One of the targets was William Safire, a Nixon speechwriter. The FBI installed the taps sometime between May 1969 and February 1971, with a total of “13 ‘national security’ surveillances on administration officials authorized by Nixon.”71 The Nixon administration also solicited names from Henry A. Kissinger, Nixon’s national security adviser, and built a list of White House employees suspected of leaks. The program was ultimately coordinated by Kissinger,

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Hoover, and Mitchell, as they compiled a list of names on which to apply the taps; Mitchell signed each and every one of the seventeen forms allowing the FBI to conduct the electronic surveillance.72 The FBI also installed wiretaps on the phones of at least four journalists, including two New York Times reporters. The article stated, “Logs of the overheard conversations compiled by the FBI were sent routinely to Kissinger’s office.”73 Most of the White House employees monitored did not divulge any classified or sensitive information to journalists, though the article noted, “At least three of the government officials were found to be ‘Blabbermouths’ and were eventually eased out of their positions.”74 When interviewed about why he might have been targeted for the taps, Safire admitted that he had seen classified information related to national security. Nonetheless, he was outraged upon learning about the taps and came out swinging in an article he penned for the Washington Star. He disparaged his colleagues who had been wiretapped and had excused the behavior by saying that “men who deal in secret matters [have] to expect constant surveillance.”75 To those people, Safire chided, “Frankly, men who expect constant surveillance handling our national security betray a certain lack of understanding about our national traditions.”76 Safire, however, saved the majority of his wrath for Nixon. He ranted,

For myself, I cannot go along with this fraternal silence of the suspicious 17. I did not knock myself loose for Nixon in 1959 and 1960, and then cast my lot with him through the long arid comeback years of 1965 through 1968, to have him—or some lizard-lidded paranoid acting in his name without his approval—eavesdrop on my conversations. “National security,” my eye—during the 37 days in July and August of 1969 that some agent in earphones was illegally (as the Supreme Court later found) listening to my every word, I was writing the (sh!) President’s message and speech on welfare reform.77

Informants from the White House substantiated Safire’s claim that Nixon had no business suspecting him of security leaks. A New York Times article alleged that Nixon began the taps in an effort to pursue leaks related to a “secret bombing in Cambodia in 1969 and details of the American negotiating position at the Strategic Arms Limitation Talks with the Soviet Union.”78 That Nixon had superseded his original intent for the electronic surveillance was evident in the selection of such targets as Safire. On an autumn day in October, when Nixon met with members of his staff to discuss Hoover’s retirement, he knew that a lot was at stake

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with the existence of tapes stemming from the wiretaps. Because Sullivan had stolen the tapes from the FBI, Hoover no longer had his own leverage in the event that word leaked about the wiretaps.79 Nixon was at an advantage, and he planned to keep it that way. In his memoir, Nixon recalled the conversation with Mitchell about Hoover and the tapes. He explained that Mardian had warned that Hoover would likely use the tapes’ evidence of wiretaps on the seventeen individuals as “blackmail leverage in order to retain his position at the Bureau.”80 Nixon later alleged, “I did not believe that he would ever do such a thing. There had long been rumors that Hoover kept his position because of threats and subtle blackmail of various Presidents, but I had always regarded them with skepticism.”81 That the tapes ended up with Mardian came from a direct order on behalf of Nixon. He wrote, “Sullivan had the FBI’s copies of the wiretap reports, so I told Mardian to get them from him so that all copies would be kept at the White House. . . . That was the last I heard of any supposed threat from Hoover. I never said anything to him about it.”82 Though Nixon’s memoir recorded his involvement and interest in Hoover and the tapes as relatively benign, the recordings of Nixon’s conversations in the Oval Office revealed a man concerned with Hoover’s possible next moves. Nixon and Mitchell, in a plan to get Hoover to stop searching for the tapes, agreed to tell him that they resided at both the Department of Justice and the White House, to which Mitchell remarked, “[Telling him that] will turn him off.”83 Yet, as Mitchell thought about it, he realized that more needed to be done. He explained to Nixon, “I’ve got to get [Hoover] straightened out which may lead to a hell of a confrontation.”84 His urgency, however, stemmed from the fact that Hoover had cut Mardian off from all Bureau investigations. Mitchell wondered aloud if Nixon should get rid of Hoover or simply “bear down on him.”85 Nixon answered, mumbling about Hoover’s offering to resign if he felt like it would help Nixon get reelected. He stated, “[Hoover] says I know whenever you—you’ve gotta get re-elected [unintelligible]. If you think that my presence is going to be really harmful, he says, I will resign. That’s a pretty, pretty nice way of saying I don’t think I am harmful.”86 Then President Nixon revealed his own feelings on the matter: NIXON: Uh, as of the moment that is true that he oughta resign, for a lot of reasons he oughta resign, in my view is he oughta resign while he’s on top, before he becomes an issue in the current, the least of it is he’s too old.

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MITCHELL: He’s getting senile, actually.87 NIXON: He should get the hell out of there. Now it may be, which I kind of doubt, I don’t know, maybe, maybe I could just call him in and talk him into resigning. . . . [I]f I fired Hoover, if you think we’ve got an uprising and a riot now [unintelligible] would be terrific. Edgar Hoover has got to go. If he does go, he’s got to go of his own volition—that’s what we get down to, and that’s why we’re in a hell of a problem. And at the present time, I don’t think, John, I think he’ll stay until he’s 100 years old. I think he loves it. . . . I’m willing to fight him, but I don’t. You see, I think we’ve got to avoid the situation where he—he could leave with a blast that is [unintelligible]. I don’t think he will. I think he’s so damn patriotic and he knows very well that [unintelligible] . . . I sorta, I went all ’round with him. . . . Just couldn’t run the risks with the election.88

After Nixon’s rants about whether or not to let Hoover go, Ehrlichman brought the discussion back to Sullivan, reminding everyone that the clock was ticking and that Sullivan had a lot of information that he would leak to the press. Clearly, the problems with Hoover were mounting, and the White House did not quite know how to proceed. Several weeks later, after reading Liddy’s memo analyzing Hoover, Nixon and Ehrlichman resumed their discussion of Hoover’s retirement. On October 25, 1971, Nixon’s recordings captured a conversation between the two regarding whether Nixon should heed Liddy’s advice. Upon reading Liddy’s memo, Nixon first asked why he had ever worked in the Bureau in the first place. Ehrlichman explained that Liddy had been Hoover’s ghostwriter, crafting the director’s speeches. He left when he became “disillusioned.”89 Nixon was extremely impressed with Liddy’s insight into Hoover. He remarked to Ehrlichman, “His analysis of Hoover from a psychological standpoint is tremendously perceptive. We may have on our hands here a man who will pull down the temple with him, including me.”90 After reading the entire piece, Nixon concluded that Liddy’s analysis made a far greater case for not doing anything to Hoover.91 The president worried that Hoover would “piss on” whomever Nixon appointed as a new director, mentioning a man by the name of Pat Gray as a possible successor.92 Most befuddling to Nixon, based on his comments that day to Ehrlichman, were Hoover’s remarks that he knew he would be replaced following the 1972 election, and yet, much to Nixon’s chagrin, Hoover refused to resign. Nixon worried about the effects of having to deal with an “inefficient FBI” over the next year, remarking, “[Hoover] just, he has to realize that he can’t stay forever.”93

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Nixon then swung back to talk about forcing Hoover to resign, stating, “I think I could get Hoover to resign if I put it to him directly that without it he’s going to be hurt politically.”94 Based upon his tapes, Nixon vacillated on what to do about Hoover. One minute, he seemed confident that firing Hoover would cause him to lose the 1972 presidential election; the next, he seemed certain that he could force Hoover to resign and that would be the end of it. During the course of the conversation, Nixon wove his way back to a discussion of Sullivan. Ehrlichman reminded Nixon of Sullivan’s importance to the White House, stating, “Sullivan was the man who executed all of your instructions for the secret taps.”95 To Nixon, the bottom line came down to his own well-being: “Will he rat on us?” he asked Ehrlichman candidly.96 Ehrlichman replied, “It depends on how he’s treated.”97 He reminded Nixon that Sullivan had inside information on the Nixon administration, saying, “Sullivan has delivered the papers to [Assistant Attourney General] Mardian that are unbelievable what I’ve got up in my safe.”98 Nixon wanted to know what his administration could do to appease Sullivan; Ehrlichman responded that Sullivan merely wanted to be vindicated, after having been fired by Hoover. And yet Ehrlichman noted that doing anything for Sullivan would offend Hoover, which he and Nixon were clearly opposed to doing.99 The discussions of how to “help” Sullivan never went anywhere. Later that day, Nixon again rehearsed his script for firing Hoover, telling Ehrlichman, “I’d like to think about the proposition of my saying, ‘Edgar, I think what you should do, that you should get out now, because I don’t want to be in the position of trying to pick a successor now. I think you should say this is a matter which should be handled by whoever is the next President in the next election and I do not want to be an issue and so I have submitted my resignation effective then.”100 The White House conversation showed clearly that storms had converged around Hoover. Not only was Nixon brainstorming ways to remove him from his directorship, but he also had the upcoming Princeton conference to worry about. Nixon worried about the effects of the conference on his administration’s reputation. Ehrlichman talked up the importance of the conference, stating, “This Princeton thing is gonna get into the folklore and it’s gonna become a part of the givens. It’s gonna be a part of the, of the established findings.”101 True to form, Nixon worried about the political leanings of the conference attendees, stating, “They told me that—well, it’s a very leftish group.” Ehrlichman agreed, stating, “Oh, it is, it’s stacked, just stacked.” Ever the political strategist, Nixon proclaimed, “So we let a man be cruci-

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fied by a stacked jury.”102 Ehrlichman agreed. He said, “I think if his resignation were in hand you could afford to defend him. And I think you can afford to do a lot of things for him as a lame duck as you get into the campaign which will be appreciated by his friends and will be virtually uncriticizable.”103 For the remainder of the conversation, Nixon and Ehrlichman continued to ponder aloud how to coerce Hoover to resign his directorship. By forcing Hoover to make the move of announcing his resignation, Nixon would avoid a controversial confirmation hearing, which he professed would have “a lot of merit.”104 Nixon rehearsed another possible conversation with Hoover, stating, “But I think what he could, I really think a lot, it makes a lot of sense, he says I’m resigning at the end of this year—this is my last year and I’ve, uh, talked to the President and submit . . . I wanta, because of the Bureau, I will not have the Bureau become an issue in the campaign. I’ve noted it, and I, and I, I think what I will do is just call him in and say, ‘Edgar, I think you ought to resign and, and, January 1st, 1973.’”105 Nixon and Ehrlichman tossed around names to serve as possible replacements for Hoover, noting with disdain any liberal leanings among the discussed candidates.106 One thing was certain: Nixon wanted a new director with contacts in Congress and public relations savvy; he refused to entertain the idea that “a cop should run the Bureau.”107 Despite the time, energy, and attention Nixon spent on the issue of Hoover’s resignation, he never forced him to retire. Nixon recalled in his memoirs a conversation with Mitchell. As attorney general, Mitchell should have been the person to force Hoover’s departure, since Hoover had been hired by the attorney general to serve as director in the first place. Yet Mitchell balked at the idea of having to fire Hoover, telling Nixon, “Mr. President, both you and I know that Edgar Hoover isn’t about to listen to anyone other than the President of the United States when it comes to this question.”108 Nixon agreed. He wrote, “I decided to invite Hoover to have breakfast with me at the White House and to raise the subject with him then.”109 The breakfast, however, did not turn out as Nixon hoped it would. Hoover arrived, bringing his best behavior. Nixon noted, “At our breakfast, Hoover was as alert, articulate, and decisive as I had ever seen him. It was obvious that he was trying to demonstrate that despite his age he was still physically, mentally, and emotionally equipped to carry on.”110 Nixon discussed the recent negative attacks on Hoover, particularly referring to those in Congress and at the Princeton conference. Nixon recalled, “I tried to point out as gently and subtly as I could that as an astute politician he must recognize that

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the attacks were going to mount in number and intensity in the years ahead. It would be a great tragedy if he ended his career while under sustained attack from his long-time critics instead of in the glow of national respect that he so rightly deserved.”111 But Hoover refused to take the hint. He responded heartily to Nixon, stating, “More than anything else, I want to see you re-elected in 1972. If you feel that my staying on as head of the Bureau hurts your chances for re-election, just let me know. As far as these present attacks are concerned, and the ones that are planned for the future, they don’t make any difference to me. I think you know that the tougher the attacks get, the tougher I get.”112 Nixon brusquely recalled, “It was obvious that he was not going to take the initiative in offering his resignation.”113 The obvious question, then, is why Nixon never asserted his power as president and fired Hoover. Nixon wanted Hoover gone and plotted ways to remove him from his position. Nixon later explained his decision, proffering, “My personal feelings played a part in my decision [not to fire Hoover], but equally important was my conclusion that Hoover’s resignation before the election would raise more political problems than it would solve.”114 As to his “personal feelings,” Nixon proclaimed, “I would never desert a great man, and an old and loyal friend, just because he was coming under attack.” 115 Nixon certainly had his own interests at heart—he was worried about his reelection and also worried that Hoover’s continued notoriety as a “folk hero”116 would make any decision by his administration to sack him publicly unpopular. And yet, the historical record also supports Nixon’s claims that his relationship with Hoover was important to him. Boxes of correspondence between Nixon and Hoover confirm a relationship that burgeoned from 1949 to the mid-1960s. The two initially connected over the counterintelligence case involving Alger Hiss; Nixon, as a “Cold Warrior” at the height of the Cold War, attracted the attention and respect of Hoover, who was consumed at the time with locating and prosecuting communists. Nixon’s reticence to stand up to Hoover, seen in the context of their decades-long friendship, is less perplexing. Hundreds of letters, notecards, and intelligence memos from Hoover to Nixon confirm that their relationship was once much more than the one-dimensional schema evident by the 1970s. They vacationed at each other’s houses. Hoover knew Nixon’s wife, Patricia, and his daughters. They sent each other birthday cards, hospital “get-well” flowers, and intelligence on their respective units—the Bureau, for Hoover, and Congress, for Nixon.117 Nixon was more than his political, conniving persona; like-

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wise, Hoover was more than the egotistical, power-hungry caricature that the media portrayed him to be. The correspondence reflects who they were as people and as friends. Though Hoover apparently knew the gavel was about to fall on his tenure, he thwarted the threat of his directorship’s coming to an end at the hand of Nixon. Instead, Hoover died in his sleep one morning before work, on May 2, 1972, still director of the FBI. He fulfilled Nixon’s prediction that he would remain director of the FBI until the end, and indeed his death signaled the end of a long era—almost fortyeight years, to be exact—for the FBI.118 His death immediately resolved many outstanding issues for Nixon; no longer would Nixon have to plot and scheme with his staff about how to get Hoover out of office without hurting his presidential campaign. Most importantly for Hoover, he died without having been forced into retirement. Nixon wrote in his diary, “He died at the right time; fortunately, he died in office. It would have killed him had he been forced out of office or had he resigned even voluntarily.”119 He died a month and half before the Watergate break-in, which would embroil Nixon’s remaining presidency and take down Hoover’s successor, FBI Interim Director Pat Gray. And most importantly, Hoover avoided the spectacle that would become a congressional investigation of the Bureau following Nixon’s resignation. Things were about to get dirty; on the morning of Hoover’s death, the FBI sat on the cusp of an incredibly difficult period. Whatever issues Hoover might have had with Nixon, and however unfavorably his most vocal critics felt, Hoover’s death elicited a swell of support from Congress and from Nixon himself. It was as if all dissatisfaction with the director was forgotten. Instead, people in Washington rushed to commemorate a legend. Hoover had served as director of the Bureau for nearly forty-eight years, “[carrying] out his duties under eight presidents and 16 Attorneys General.”120 Congressman Gerald R. Ford gave tribute to Hoover on the day of his death, stating,

He took over the direction of the FBI in 1924 when it was a scandalridden and ineffective bureaucracy. Since Mr. Hoover’s tenure as FBI Director began, not one FBI agent has been charged with wrongdoing. Himself, an “honest cop,” Mr. Hoover set for the FBI the highest standards and those standards have never been lowered. . . . He was a leader of an organization whose crime-fighting record is unsurpassed. Mr. Hoover almost singlehandedly transformed the FBI into the superlative law enforcement agency it became in the thirties and forties and is today.121

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Included in the congressional eulogies of Hoover’s life, spoken in Congress on the day of his death, were echoes of an American fable regarding Hoover’s life and work—namely, that he “created the FBI,”122 that “J. Edgar Hoover was the length, breadth, and shadow of the FBI . . . their only Director.”123 Though he neither created the FBI nor served as its only director (indeed, there were five directors prior to Hoover’s tenure),124 people had a difficult time remembering an FBI before J. Edgar Hoover because he had dominated the Bureau for so long. In the days following his death, Americans pondered what the FBI would be without the overshadowing presence of its leader for nearly half a century. Not only was he credited with creating the nation’s crime-fighting apparatus, but he also received credit for creating the nation’s first intelligence organization. Congressman George E. Danielson remarked, “At the beginning of World War II, the United States had no intelligence system whatsoever, and no counterintelligence system. At the direction of President Franklin D. Roosevelt, J. Edgar Hoover immediately set about filling this need.”125 On the day of his death, the House of Representatives passed a resolution ordering that Hoover’s body lie in state in the US Capitol.126 It praised him for never allowing the Bureau to become embroiled in politics.127 Nixon ordered that the flag be flown at half-mast.128 At his funeral, Nixon gave Hoover’s eulogy, praising him, saying, “J. Edgar Hoover was one of the giants. His long life brimmed over with magnificent achievement and dedicated service to this country which he loved so well.”129 Hoover’s death signaled an important end for Nixon, but also the end of an era for the Bureau. After nearly a half century as director, Hoover was gone. Agents recalled that for three or four years after Hoover’s death, no one would go near his office. They simply could not believe he was really, truly dead.130 Though controversy swirled regarding Hoover’s positions toward the end of his life, his presence served to shore up a flood of controversy that would erupt following his death. After a prolonged saga of trying to keep his job under Nixon, Hoover found himself successful.

Notes

1. Letter, Pat Buchanan to John Dean, April 12, 1971—John Dean’s Files, in Richard Nixon Presidential Library, Box 41, White House Special Files Staff Member and Office Files, “Hoover Retirement.” 2. Letter, John Dean to Pat Buchanan, April 16, 1971—John Dean’s Files, in Richard Nixon Presidential Library, Box 41, White House Special Files Staff Member and Office Files, “Hoover Retirement.”

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3. Ibid. 4. Memorandum, John Dean to John Ehrlichman, December 16, 1970—John Dean’s Files, in Richard Nixon Presidential Library, Box 41, White House Special Files Staff Member and Office Files, “Hoover Retirement.” 5. Ibid. 6. Letter, John Dean to Carl Shipley, Republican National Committee, May 24, 1971—John Dean’s Files, in Richard Nixon Presidential Library, Box 41, White House Special Files Staff Member and Office Files, “Hoover Retirement.” Dean wrote, “In 1968 Congress passed a law which will become effective upon Mr. Hoover’s leaving office, which provides that all future Directors be appointed by the President and confirmed by the Senate instead of the existing procedure whereby the Director is appointed by the Attorney General.” 7. Memorandum, John Ehrlichman to the President re Director of the FBI, October 27, 1971—John Ehrlichman’s Files, in Richard Nixon Presidential Library, Box 23, White House Special Files Staff Member and Office Files, “J. Edgar Hoover, Company President.” 8. Attachment script from Attorney General John Mitchell to President Nixon, n.d.— John Ehrlichman’s Files, in Richard Nixon Presidential Library, Box 23, White House Special Files Staff Member and Office Files, “J. Edgar Hoover, Company President.” 9. Memorandum, John Ehrlichman to the President re Director of the FBI, October 27, 1971—John Ehrlichman’s Files, in Richard Nixon Presidential Library, Box 23, White House Special Files Staff Member and Office Files, “J. Edgar Hoover, Company President.” 10. On August 9, 1970, the New York Times published an article, “Poll Finds FBI Losing Support.” The article contended that public esteem regarding the Bureau had fallen since 1965 among young people, yet still remained relatively high. To be sure, those who disapproved of Hoover wanted to see him gone immediately. An anonymous letter sent to Nixon’s secretary, Rose Mary Woods, asked, “Don’t you think the President should take some steps to assure the American public that Mr. Hoover is subject to the control of the Attorney General and the President?” See Richard Nixon Presidential Library, Box 28, Letter, Anonymous to Rose Mary Woods, Special Files Staff Member President’s Personal Files, “J. Edgar Hoover.” 11. Memorandum, John Ehrlichman to The President re Director of the FBI, October 21, 1971—John Ehrlichman’s Files, in Richard Nixon Presidential Library, Box 23, White House Special Files Staff Member and Office Files, “J. Edgar Hoover, Company President.” 12. Memorandum to Bud Krogh from Gordon Liddy re The Directorship of the FBI, October 22, 1971—John Ehrlichman’s Files, in Richard Nixon Presidential Library, Box 23, White House Special Files Staff Member and Office Files, “J. Edgar Hoover, Company President.” 13. Ibid., 2. 14. Ibid. 15. Ibid. 16. Ibid. 17. Ibid. The incidents involving espionage and sabotage within US borders during World War I included, among others, explosions carried out by Germans at the Black Tom Island Munitions Depot in New York City. See Ray Batvinis, The Origins of FBI Counterintelligence (Lawrence: University Press of Kansas, 2007), 99. 18. Memorandum to Bud Krogh from Gordon Liddy, 3. 19. Ibid. 20. Ibid. 21. Ibid.

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22. Ibid. 23. Ibid., 4. 24. Ibid., 5. 25. Ibid. 26. Ibid. 27. Ibid., 6. 28. Ibid. Citing a quote from Tennyson, Liddy wrote, “The old order changeth, yielding place to new / And God fulfills himself in many ways / Lest one good custom should corrupt the world.” See G. Gordon Liddy, Will: The Autobiography of G. Gordon Liddy (New York: St. Martin’s Press, 1996). 29. Ibid., 7. 30. Ibid. 31. William Sullivan, The Bureau: My Thirty Years in Hoover’s FBI (New York: Pinnacle Books, 1979), 198. 32. Ibid. 33. Ibid. 34. Ibid. 35. Memorandum to Bud Krogh from Gordon Liddy, 7. 36. Ibid. 37. Ibid. 38. Ibid., 10. 39. Liddy, Will, 146. 40. Ibid., 152. 41. Ibid., 152–153. 42. Ibid., 154. 43. Ibid., 156. 44. Ibid. 45. Ibid. 46. Richard Nixon, White House Tapes, October 8, 1971, Conversation No. 587-3. 47. FBI, Memo, Interview with Robert Mardian, May 11, 1973. A separate FBI report would postulate that Sullivan oversaw the wiretaps. 48. Ibid. 49. FBI, Memo, Re Sensitive Coverage Placed at Request of the White House, October 20, 1971. 50. Nixon, White House Tapes, October 8, 1971. 51. Ibid. 52. Ibid. 53. Richard Nixon Presidential Library, Box 2, Press Conference No. 6 Transcript, June 19, 1969, J. Bruce Whelihan’s Files, “FBI and Wiretapping.” 54. Ibid., 5. 55. Ibid. 56. Ibid., 6. 57. Richard Nixon Presidential Library, Box 2, Press Conference Transcript, April 6, 1971, J. Bruce Whelihan’s Files, “FBI and Wiretapping,” 3. 58. Richard Nixon Presidential Library, Box 2, Press Conference Transcript, April 14, 1971, J. Bruce Whelihan’s Files, “FBI and Wiretapping,” 8. 59. Robert M. Smith, “FBI Said to Bug a House Member,” New York Times, April 16, 1971, 1. 60. Ibid. 61. Ibid., 16. 62. Richard Nixon Presidential Library, Box 2, Press Conference Transcript, April 16, 1971, J. Bruce Whelihan’s Files, “FBI and Wiretapping,” 4.

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63. Ibid., 6. 64. Ibid., 7. 65. Ibid., number unknown. 66. Richard Nixon Presidential Library, Box 2, Press Conference No. 16 Transcript, May 1, 1971, J. Bruce Whelihan’s Files, “FBI and Wiretapping,” 7. 67. Ibid. 68. Ibid., 8. 69. Time Wiretap—Tom Seppy, February 27, 1973. 70. Ibid. 71. John M. Crewdson, “Safire: A Wiretap Target,” New York Times, August 5, 1973, in Richard Nixon Presidential Library, Box 2, J. Bruce Whelihan’s Files, “FBI and Wiretapping.” 72. John Crewdson, “3 High U.S. Aides Reported Target of Taps in 1969–71,” New York Times, August 25, 1973, and Bernard Gwertzman, “Rogers Criticizes the White House for Taps on Aides,” New York Times, August 26, 1973, both in Richard Nixon Presidential Library, Box 2, J. Bruce Whelihan’s Files, “FBI and Wiretapping.” 73. Crewdson, “Safire: A Wiretap Target.” 74. Ibid. 75. William Safire, “When the Bugs Hit Home,” Washington Star, August 9, 1973, in Richard Nixon Presidential Library, Box 2, J. Bruce Whelihan’s Papers, “FBI and Wiretapping.” 76. Ibid. 77. Ibid. 78. John M. Crewdson, “Wiretaps Placed on Telephones of Ex-Nixon Partners and Others,” New York Times, August 31, 1973, in Richard Nixon Presidential Library, Box 2, J. Bruce Whelihan’s Files, “FBI and Wiretapping.” 79. Luckily for Hoover, the most substantial pieces of information regarding the leaks (i.e., the targets of electronic surveillance) did not leak to the press until 1973, well after his May 1972 death. 80. Richard Nixon, RN: The Memoirs of Richard Nixon (New York: Simon & Schuster, 1990), 596. 81. Ibid., 596. 82. Ibid., 597. 83. Richard Nixon, White House Tapes, October 8, 1971, Transcript, 3. 84. Ibid. 85. Ibid., 4. 86. Ibid., 4. 87. Sullivan’s memoir supports the notion that in his final years as FBI director, Hoover was ailing. 88. Nixon, White House Tapes, October 8, 1971, 4. 89. Liddy’s memoir tells a different story. After chronicling his success as an agent, he wrote, “In the fall of 1961, I learned that while things were going well for me at the Bureau, there was trouble at home.” He and his wife were “barely making ends meet financially.” Luckily, Liddy’s father offered him a job as an associate at his newly enlarged law firm, along with a $2,000 raise and a loan for a down payment on a house. Liddy took the offer and left the Bureau. See Liddy, Will, 96–99. 90. Nixon, White House Tapes, October 25, 1971, 4. 91. Ibid. 92. Incidentally, Nixon would appoint Pat Gray, known formally as L. Patrick Gray, as interim director of the FBI, following Hoover’s death in May 1972. 93. Nixon, White House Tapes, October 25, 1971, 7. 94. Ibid., 9.

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95. Ibid., 11. 96. Ibid., 12. 97. Ibid. 98. Ibid., 13. 99. Ibid., 12. 100. Ibid., 18. 101. Ibid., 19. 102. Ibid., 20. 103. Ibid. 104. Ibid., 22. 105. Ibid., 27. 106. Ibid., 24. 107. Ibid., 23. 108. Nixon, RN, 598. 109. Ibid. 110. Ibid. 111. Ibid. 112. Ibid. 113. Ibid. 114. Ibid., 599. 115. Ibid., 599. 116. Ibid., 597. 117. See Richard Nixon Presidential Library, Prepresidential Papers, Box 19, “Special Files: J. Edgar Hoover, 1949–1961,” and Box 20, “Special Files: Hoover (cont’d).” 118. After Hoover’s body was discovered, news of his death spread fast across the government, and within hours the FBI had secured the many files in his office. 119. Nixon, RN, 599. 120. United States, 93rd Congress, 2d Session, 1974, Senate Document No. 9368, Memorial Tributes to J. Edgar Hoover in the Congress of the United States and Various Articles and Editorials Relating to His Life and Work, 93rd Cong., 2nd sess., (Washington, DC: US Government Printing Office), 1974; “Proceedings in the Senate,” May 2, 1972, 2. 121. United States, 93rd Congress, 2d Session, 1974, Senate Document No. 9368, Memorial Tributes to J. Edgar Hoover in the Congress of the United States and Various Articles and Editorials Relating to His Life and Work, 93rd Cong., 2nd sess., (Washington, DC: US Government Printing Office), 1974; “Proceedings in the House of Representatives,” May 2, 1972, 30. 122. “Proceedings in the House of Representatives,” May 2, 1972, 68. 123. “Proceedings in the Senate,” May 2, 1972, 11. 124. See “Directors, Then and Now,” FBI, http://www.fbi.gov/about-us/history /directors. 125. “Proceedings in the House of Representatives,” 148. 126. “Proceedings in the House of Representatives,” House Concurrent Resolution 600, May 2, 1972, 37. 127. “Proceedings in the House of Representatives,” 116. 128. Nixon, RN, 599. 129. J. Edgar Hoover: Memorial Tributes in the Congress of the United States and Various Articles and Editorials Relating to his Life and Work (Washington, DC: US Government Printing Office), xxiv. 130. W. Dennis Aiken, oral history, June 22, 2015.

6 Nixon’s New Acting Director

In February and March 1973, the Senate’s Committee on the Judiciary held hearings to confirm L. Patrick Gray as J. Edgar Hoover’s successor. The committee, chaired by Senator James O. Eastland (D-MS), spent nine days listening to testimony from Gray and others. On its face, the hearing sought to determine if Gray was a worthy successor to Hoover. In practice, it became a cross-examination of Gray’s political ties to the Nixon administration, his handling of Watergate, and the FBI itself. Senators wondered aloud if Nixon had appointed Gray in order to have one of his own leading the Bureau. The entire confirmation hearing resided squarely in the penumbras of Watergate. By March 1973, Carl Bernstein and Bob Woodward had spilled myriad administrative secrets through the Washington Post, partly in thanks to their notorious source, “Deep Throat.” At the time of Gray’s hearing, the American people knew several things. They knew that the Watergate bugging of the Democratic National Committee headquarters on June 17, 1972, in the words of Bernstein and Woodward, “stemmed from a massive campaign of political spying and sabotage conducted on behalf of President Nixon’s re-election and directed by officials of the White House and the Committee for the Re-election of the President.”1 They knew that “hundreds of thousands of dollars in Nixon campaign contributions had been set aside to pay for an extensive undercover campaign aimed at discrediting individual Democratic presidential candidates.”2 They knew that Nixon operatives had tried to sabotage Democratic candidate Edmund S. 127

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Muskie’s presidential campaign by forging a letter in his name that “condoned a racial slur on Americans of French-Canadian descent as ‘Canucks.’”3 The FBI investigation uncovered former attorney general John Mitchell’s role in the orchestration of a plot to upend Democratic campaign efforts; he controlled the secret campaign fund that made everything possible. Still, President Nixon had won his reelection campaign in 1972. Though the FBI continued its Watergate investigation, the public and the Senate were unsure if any of its discoveries might implicate anyone else in the Nixon administration. Gray had been an acquaintance of Nixon’s prior to his appointment as interim director. A graduate of the Naval Academy and George Washington University Law School, he had commanded submarine patrols during the Korean War.4 In 1960, he left the navy to work for Nixon’s campaign as a military adviser. In 1969, he worked for Nixon in the Department of Health, Education, and Welfare (HEW). A year later, he acquired a position in the attorney general’s office.5 As early as 1971, Nixon’s staff had intimated to Gray that he would become Hoover’s successor, and soon. At one point, Attorney General John Mitchell asked Gray if he would like to serve as director; Gray replied that he would “serve in whatever capacity . . . the president may desire.”6 On the morning of Hoover’s death, Nixon called Gray to offer him the acting director position; Gray readily accepted.7 Though he was appointed acting director immediately following Hoover’s death in May 1972, Gray did not receive word about his nomination as permanent director until February 1973. According to Gray, Nixon worried that the confirmation hearing would lead to revelations concerning Watergate. Gray recalled that the Senate committee was “controlled by the Democrats, [who] were out to get the hated Nixon, if they could.”8 At the time, Gray believed that Nixon was concerned for him and his ability to withstand an onslaught of liberal cross-examination. Only later did he realize the truth. Years later, he recalled in his memoir, “Of course, he was not concerned for me, he was concerned for Nixon. He wanted to learn how much, if anything, I knew about the [Watergate] cover-up and if that knowledge could hurt him through my answers to the senators’ questions. Neither of us could know on that date how well founded that fear was.”9 Whatever fears or concerns he might have had, Nixon allayed them and formally nominated Gray to become the director of the FBI. On the first morning of Gray’s hearings, Senator Lowell P. Weicker Jr. (R-CT) noted the controversy surrounding his confirmation. He referenced a Time magazine article that stated

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much of the Senate opposition to Gray is rooted in his lack of law enforcement experience. Gray, who became a lawyer while on active duty with the Navy in 1949, retired after 20 years military service in 1960. He was nominated for a federal judgeship but because of his meager qualifications the nomination was withdrawn before the American Bar Association could officially act upon it. . . . He and Nixon met at a Washington cocktail party in 1947 and the two have been on friendly terms ever since.10

The article listed questions concerning Gray’s activity, which it suggested should disqualify him from serving as director. The article urged the senators to determine Gray’s political ties to Nixon. At the time of Gray’s hearing, all five Watergate burglars, as well as the burglary’s masterminds, G. Gordon Liddy and E. Howard Hunt, had been found guilty or pled guilty. One of the prosecutors of the Watergate case, Earl Silbert, explicitly told media in February 1973 that the FBI and Department of Justice were shifting their attention toward Watergate involvement by those in the White House. By the time of Gray’s hearing, senators had good reason to be suspicious of any of Nixon’s friends.11 Some congressmen saw Gray as a political affiliate of the president and an arm of his administration. Tantamount to the political concerns was the FBI’s involvement in the Watergate investigation—from the time of the Watergate break-in, Gray had overseen the investigation. Concerned that Nixon had appointed Gray in order to protect himself and his staff, the Time article urged the Senate committee to ask Gray, “Who asked you to campaign actively for President Nixon when you were acting director of the FBI? Why did you use the FBI to gather campaign material for Nixon? Why did the FBI do so little investigating of the Watergate political bugging conspiracy? Why did the FBI bug White House officials? Why did the FBI bug Washington news reporters?”12 For Gray, the hearings in 1973 were a long-awaited opportunity. Having been appointed acting director on the day of Hoover’s death (May 2, 1972), Gray had waited in limbo for some months, wondering if he would permanently assume directorship of the Bureau or become a mere footnote in the organization’s long history. On the first day of his hearing, Gray arrived ready to defend his leadership of the FBI. He began by reading a prepared statement, which he used as an opportunity to highlight his successes. He commented on the difficult task of succeeding Hoover, stating, “No one can doubt the tremendous challenge inherent in following in the footsteps and building on the legacy of John Edgar Hoover, whose personal vision and ideals, and whose leadership,

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made the FBI an institution respected and honored by millions of our fellow citizens. Thomas Jefferson said of Benjamin Franklin, ‘I succeed him; no one could replace him.’”13 Despite his professed reverence for Hoover, he also emphasized his departure from the Bureau icon, explaining, “When I became Acting Director, I made a key decision. I decided that I would not be a mere caretaker, making no waves and taking no actions. Rather, as Acting Director, I would not only make those decisions necessary for the dayto-day conduct of FBI operations but also those long-term decisions essential to the continued effectiveness and efficiency of the organization.”14 Gray testified that when Nixon appointed him interim director, he gave him one order: remain apolitical.15 Gray hoisted before the committee his undying loyalty to the United States. Wallowing in selfrighteousness, Gray pledged to Senator Eastland, “If, Mr. Chairman, I am unable to persevere in this determination for any reason, if my loyalties to the Nation’s elected leadership, to the Constitution, and to my job, ever come into conflict, I will resign at once and return to my beloved law firm in southeastern Connecticut.”16 Lastly, in his opening statement, Gray portrayed himself as a critical mediator prepared to reason with the long-suffering critics of the FBI, stating, “I believe in personal dialog, in person-to-person discussions, where there is some chance, however slight, of correcting misunderstandings.”17 Leave it to me to sway the naysayers, he pleaded. Gray made every effort to portray himself as the worthy successor to Hoover’s kingdom. To distinguish his strategic vision for the Bureau, Gray drew the committee’s attention to the changes he had made since assuming his acting role. Gray argued that the changes were much needed and had departed entirely from the stiff FBI protocol of Hoover’s tenure. Gray lauded his appointment of female agents, explaining that during his very first month on the job as acting director, he allowed the FBI to accept applications from women aspiring to become special agents. Though Gray took credit for the addition of female agents, it appears as though Hoover, in his waning days as director, had actually loosened his restrictions against female agents by beginning the process for hiring them. Agents employed at the Bureau during the transition from Hoover to Gray recall that Hoover had approved the hire of two female candidates before his death. To make such hires possible, he and his administrative staff had answered the difficult logistical question of where to house female agents at the still uncompleted FBI Academy. One former agent recalled, “Several potential [female] candidates for those first

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appointments were being processed while Mr. Hoover was still alive. He ultimately personally approved the first two who were to receive appointments [Susan Roley, a former Marine Corps officer and Joanne Pierce, a support employee and former nun].”18 Nonetheless, the women did not begin their training until Gray’s appointment, and therefore, Gray was happy to take the credit for their inclusion into the Bureau. At the time of the hearing in 1973, the FBI had seven female agents stationed in offices around the country and eight female agents in training at the FBI Academy in Quantico.19 Their newfound status as agents provided Gray with a clear indicator of his success as FBI reformer, even if their hires originated under his predecessor. Under Hoover’s watchful eye, agents had been routinely weighed and subjected to strict grooming standards and a severe dress code. Gray relaxed these standards, allowing agents to wear their hair slightly longer and to grow facial hair and expanding the dress code beyond black suits, white business shirts, and dark, solid-colored ties.20 He made changes that encouraged the hiring of more diverse agents. Though agents under Hoover had been largely white males, Gray established an Office of Equal Employment Opportunity Affairs to “recruit more black Americans, Asian-Americans, Spanish-speaking Americans, and American Indians.”21 By discussing achievements in Bureau investigations into organized crime and narcotics, he created a portrait of a Bureau that clung steadfastly to Hoover’s highest qualities while discarding his worst anachronisms and prejudices. Despite his efforts to draw attention to his successes, the Senate committee moved immediately to questions surrounding his political affiliations. Senator Eastland began, asking Gray, “Well, in fact, have you stayed out of politics?”22 When Gray responded, “I have done my very level best to stay out, Mr. Chairman, and I believe—,” Eastland interrupted, “Well, have you stayed out?” Gray replied, “Yes, sir.” But despite Gray’s assurance, Eastland insisted upon digging into the issue further. He asked Gray about a speech he had made to the City Club in Cleveland, Ohio, a speaking engagement allegedly requested by the White House. Gray provided to the committee his invitation to the event. The solicitation, sent to Gray from the White House, explained, “Since its founding fifty years ago, Cleveland’s City Club has been a focus and one of the bulwarks of freedom of speech in one of America’s great cities. The Club maintains a deep interest in affairs of government, economics, and politics, both national and international. It offers a prestigious meeting place for the open discussion of important social, political and economic problems.” 23 The invitation’s apolitical overtones

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shifted as it read, “With Ohio being crucially vital to our hopes in November, we would hope you will assign this forum some priority in planning your schedule.”24 Gray claimed that his reasons for giving the speech had nothing to do with politics. He added defensively that the FBI’s legal counsel reviewed the invitation and approved it. Despite his explanation, the committee expressed disapproval. Senator Birch Bayh commented, “I just hope in the future that perhaps when this White House, which is said to be the ultimate in political acumen, assesses a speech to be of political value to them, maybe someone who is not involved in politics, the FBI, will take their word for it and say, ‘No thanks, I will do that next year.’”25 The senators had good reason to worry about Gray’s political affiliation with the Nixon White House, as Gray had worked for Nixon prior to assuming the acting directorship. In his testimony, Gray explained that he met Nixon in 1968 in the future president’s New York law office. During that meeting, Gray told Nixon that he “hoped that he was going to run for the Presidency.” 26 Following Nixon’s election, Gray admitted to Nixon’s staff that he “really want[ed] a place in this administration.” 27 Despite his self-professed desire to serve Nixon, however, Gray downplayed his relationship to the president, asking, “If I am such a big friend of the President and such a partisan politician, how come I am outside looking in and trying real hard to get in?” 28 His self-professed yearning to join the administration did not help his case. Gray’s efforts to join the president’s administration in 1969 were successful. Nixon appointed Gray executive assistant to HEW secretary Robert Finch, where he gave a partisan speech to his own staff, stating,

I want to drive home hard the emphasis on loyalty. I do not speak of blind, automatic loyalty. I speak of a sincere, an intelligent, a freely made decision to join President Nixon and Secretary Finch because we believe in them, trust them, understand the goals and objectives they hold, and desire to support them with the deepest sense of dedication and total commitment. . . . Our Nation has elected a Republican President. We have a Republican administration. We have Republican approaches to the problems of our people. We have the knowledge of the President’s goals. We have the common sense to know the desires and objectives of the President and the Secretary—we must have the loyalty, the courage, and the commitment to do their will—not our will. This means, plainly and simply, that we get on the track with the President and the Secretary and that we stay there and track with them.

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You may say, “I am not political”—“I am an Independent”—“I do not care what party is involved, I vote for the man”—“Politics is a dirty business”—and so on. From the vantage point of my ancient age, let me assure you that no American can afford to ignore politics, to ignore the machinery of government, to adopt an attitude of “Let George do it.” This attitude is guaranteed to ensure the demise of the two party system—our form of democracy. No American can afford to avoid involvement, particularly in today’s world, when the thing to do is to become involved, to participate, to take a position.29

Gray’s insistence that no one in the HEW could ignore politics was troubling, as he called upon the staff to become political and to commit their loyalty to Nixon. The speech caused senators at his hearing to question whether he could truly be apolitical while serving under Nixon. Had Gray not given such explicitly political speeches as a government servant, perhaps his political leanings would not have been called into question. Unfortunately for him, the political tone of his past speech was undeniable. Eastland continued his investigation into Gray’s political support for the Nixon White House, asking Gray whether there was truth to accusations that he had fired FBI personnel for political reasons. Again, Gray denied any such action,30 so Eastland delved into Watergate. Gray told the committee that he first heard of the Watergate breakin the morning after it occurred. He was in Los Angeles to deliver the commencement address at Pepperdine University Law School.31 Gray assured Eastland that when he learned of the matter, he contacted his second-in-command, Acting Associate Director Mark Felt, and told him to “go to the hilt and spare no horses.”32 Gray’s connections to the Nixon White House were the subject of suspicion by the Senate committee, with good reason. Senator Philip A. Hart (D-MI) raised the issue of whether Gray’s FBI provided information to Nixon to support his campaign efforts. Indeed, Gray supplied a memorandum substantiating the accusation. On September 8, 1972, at the height of the Watergate investigation, Gray authored a memo to twentyone special agents in charge (the heads of major FBI field offices), demanding they assemble information related to law enforcement to aid Nixon’s campaign. His request asked agents for the following:

Identification of the substantive issue problem areas in the criminal justice field for that particular state. Please limit yourself to problems of sufficient magnitude that the President or John Ehrlichman might be

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expected to be aware of them. Brevity is the key, and often all that is necessary is to flag a sensitive problem so it can be avoided or more extensive preparation can be undertaken should we choose to speak about it. A list of events relating to the criminal justice area that would be good for John Ehrlichman to consider doing. For each suggested event, the following items should be indicated: Purpose of the event. The nature of the group or institutions involved. The content of the event. Names of specific people who can be contacted for the purpose of setting it up (together with titles, addresses, telephone numbers, etc.). . . . In accordance with above, you should submit by immediate teletype to be received by the Bureau no later than eight A.M., Monday, September eleventh pertinent material which should include matters pertaining to gun control legislation, corruption in police departments, probation and parole, etc. Deadline must be met.33

In his testimony, Gray explained that he had been out of town when the White House sent the memo to the FBI; although the memo bore his name as the author, he claimed not to have written it or to have known about it until the offices had already supplied the requested information. An assistant director from the Crime Research Division answered the request and supplied the White House with the requested information. By the time Gray was informed of the Bureau’s response, he could only be angry. The damage had been done. According to Gray, he recognized immediately that his office had made a mistake. In his testimony, he admitted that the Bureau had behaved improperly; following the incident, he said that he was “steaming around there raising a lot of cain [sic] and doing some things to make sure that this kind of nonsense did not occur again.”34 The questions surrounding Gray’s confirmation centered upon the issue of to whom Gray felt that he, as director, reported. At one point, Senator Bayh said, “I am concerned, Mr. Gray, about your interpretation of the role of the FBI Director as far as to whom you are ultimately responsible. It is sort of a strange breed of cat, isn’t it, where you are responsible to the whole country, to the Commander-in-Chief, to the Congress, to each individual citizen.”35 When he asked Gray, “To whom does loyalty flow from the FBI Director,” Gray faltered, stating, “That is a tough question.”36 He opined that the FBI director was responsible to the president, as head of the executive branch, to the Department of Justice, as an extension of the executive branch, and finally to his own conscience.

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The fears of Gray’s politicization spread to the other senators on the committee. Senator Robert Byrd of West Virginia37 explained his fear of politicization of the FBI directorship, stating, I fear that the FBI could, under a politically oriented Director, become the political arm of the White House—whether it be a Democrat in the White House or a Republican in the White House. I think this would be a danger to the protection of the constitutional liberties of all our people. I think that the politicization of the FBI could—I am not saying it would happen at all—but it could be the first step toward the conversion of the FBI into a sort of American Gestapo.38

He proceeded to question Gray about the FBI’s investigation of the Watergate case. Gray testified that his initial concern, upon hearing about the break-in, was whether the FBI had jurisdiction over the case. Had the break-in remained a mere burglary, the case would have passed to DC’s Metropolitan Police Department. Because the case involved the bugging of an office using wiretapping equipment that had crossed state lines, it invoked a federal statute, thereby granting the FBI authority.39 Gray suffered through numerous questions about the FBI’s investigation into Watergate. Had he prevented agents from investigating leads? Had he prevented agents from investigating leads that included higher-up officials in the Nixon administration? Had he fired, demoted, or transferred agents who investigated Watergate too enthusiastically?40 Gray droned on with interminable answers. He had not precluded the FBI’s investigation into Watergate, he claimed, but he had cautioned agents that any probing into Nixon’s staff was extremely sensitive and they had better have foolproof evidentiary ground before pursuing any lead. At one point, Senator Byrd asked about the original seven defendants—those investigated for the Watergate burglary in June 1972. Byrd had heard rumors that one of the defendants, James McCord, a former FBI agent and security officer for the Committee to Re-elect the President (CREEP), was “‘plugged’ into the FBI.”41 Gray downplayed McCord’s affiliation; he had merely been an FBI agent “from October 25, 1948, until he voluntarily resigned to enter private business February 18, 1951.”42 Furthermore, Gray assured the committee that McCord was not receiving classified information from FBI agents. During his questioning, Senator Byrd continued to explore the FBI’s investigation into the Watergate case. At the time, Richard Nixon was still in office. Yet, during Gray’s hearing, Byrd’s suspicion of the

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administration was apparent, and he focused a significant amount of his questioning on the investigation, asking which members of CREEP the FBI had interviewed, bringing up such subjects as E. Howard Hunt and G. Gordon Liddy, part of the original break-in. Gray, in an effort to please Byrd and the other senators on the committee, offered to open the raw files of the FBI for all senators to view. His offer was nothing short of remarkable. Gray proclaimed to Congress, “I will make these files available to the members of the committee and [I] will put two experienced agents with each member to assist the member, to respond to any questions. We have a task force set up in the FBI to crank out answers and we will deliver the product to the Senators.”43 Gray’s eagerness to open the files of the FBI caught some of the senators by surprise. Senator John Tunney (D-CA) wanted to know everyone to whom Gray might make the files available.

SENATOR TUNNEY: I believe that you testified yesterday that as you perceived your responsibilities as Director of the FBI, you report to the Attorney General? MR. GRAY: That is right. SENATOR TUNNEY: And you report to the President of the United States? MR. GRAY: That is correct. SENATOR TUNNEY: And anything that you have available to you should be made available to them? MR. GRAY: That is correct. But I have judgment, too, you know. They are not going to let me sit in that position, Senator, if I go running with every item over to them. SENATOR TUNNEY: I understand that. Now, insofar as presidential surrogates are concerned, do you have a responsibility, as you perceive it, to make available FBI investigative reports to White House assistants? MR. GRAY: I don’t know about—you are using surrogates now and White House assistants. Who are we talking about? Are we talking about those people who went out on campaign trails? SENATOR TUNNEY: No. MR. GRAY: Are we talking of men like Mr. Dean44 and Mr. Haldeman45 and Mr. Ehrlichman?46 SENATOR TUNNEY: I am talking about men who work in the White House. MR. GRAY: I am not going to make those available to everybody who works in the White House but if you are talking about counsel to

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the President, if you are talking about Mr. Haldeman and Mr. Ehrlichman, the answer to your question is “Yes.” SENATOR TUNNEY: Do you make any file available to them that the FBI has? MR. GRAY: Upon specific request from one of those individuals acting as the agent of the United States, I would, and I engage in the presumption of regularity which I think all of us have to engage in. I can’t be the head of a bureau in a department of the executive branch and say, no, I am not going to do this.47

The hypothetical question—Would you give FBI investigatory materials to the president and his staff?—had already been answered in real life. Gray had provided Dean, Ehrlichman, and Haldeman with the materials they requested from the very beginning of the Watergate investigation. His careful attention to the question by specifying staff members related directly to his past actions. He allowed Dean unfettered access to his investigation, and he did so because he felt beholden to the president’s authority. Later in the questioning, Senator Hiram Fong (R-HI) asked Gray about the president’s ability to request information from the FBI: “If the President of the United States wishes to have an FBI file delivered to him, would it be delivered to him?” Gray answered, “That would be delivered to him.”48 Gray admitted such openness of the Bureau with its files was not standard practice; nonetheless, he felt an obligation to the president, as his boss, to supply whatever information he requested on behalf of any investigation. Though he admitted his loyalty to the president, he had a difficult time admitting past FBI indiscretions. In a heated exchange, Senator Ted Kennedy (D-MA) asked Gray whether there was any validity to media reports about the FBI’s wiretaps on journalists and White House staff. Though the FBI had indeed carried out such wiretaps under Hoover, Gray either was not informed of such actions or knowingly denied them. To Senator Kennedy’s prodding, Gray retorted, “There is no record of any such business here of bugging news reporters and White House people.”49 Senator Kennedy, however, was not satisfied with Gray’s answer. He refused to dismiss the Time article’s allegations that the FBI, under Gray, had illegally wiretapped American citizens. He did not believe that Gray had done the work necessary to say with certainty that the FBI had not conducted the wiretapping. He continued his questioning: SENATOR KENNEDY: So do I gather the extent of your investigation is a review of your own files, and a telephone call to the public information

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officer of the Justice Department, and no one in the White House, about the allegations and charges by Time magazine? MR. GRAY: That is correct, because I had no formal complaint there had been any— SENATOR KENNEDY: I was listening to you earlier when you were talking about how your Inspection Division follows up every single complaint that comes on out when it affects the FBI. MR. GRAY: On one of us. SENATOR KENNEDY: But when a crime like this, and it is a crime. Would it not be a crime? MR. GRAY: If these acts were committed, certainly it is a felony, no question about it, certainly. SENATOR KENNEDY: But the extent of your investigation is, as I stated, just a review of your own files, the files of the FBI, on what wiretaps had been authorized, and since you didn’t see any approval there, and after a routine call from the public information officer from the Justice Department, you let that drop; is that correct? MR. GRAY: I would not classify it as just a routine call. He was quite upset when he read this article to me, and I am sure he was speaking for the Attorney General. I am sure that there had been discussion between the Attorney General and the Assistant Attorney General in charge of the Internal Security Division where those reports are made. I have to assume this—this is a normal type of procedure—and I did what I would do under these circumstances—I checked our records and indexes. SENATOR KENNEDY: That is the sole extent of what you did? MR. GRAY: That is correct, Senator Kennedy, that is exactly what my testimony is.50

After decades of Hoover’s unrelenting thoroughness in gathering evidence, Gray’s cursory search seemed strikingly inadequate. The Bureau’s job was to go beyond face value and to investigate every lead thoroughly. Yet Gray did not follow the FBI’s most important practices. Though his own agents evinced distrust toward the Nixon administration during the Watergate investigation, Gray took the administration at its word. Even though the crimes, if committed, would have been felonies, Gray seemed content to put his hands over his eyes and ears, thereby precluding himself from seeing or hearing anything that might upset the situation. Though Kennedy was relentless in his questioning about the wiretaps, things only intensified once the committee moved to the topic of Watergate. Paramount to the questioning was an effort to determine

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whether Gray had effectively overseen the FBI’s investigation of the break-in or had instead hindered it with his close relationship to the White House. Senators raised rumor after rumor. Had the White House requested files on presidential candidates from the FBI? Gray insisted that no, the FBI had not supplied such files. Gray did, however, confirm that he regularly sent Watergate files to John Dean. This alarmed the senators, as rumors had circulated that Dean had passed along FBI files to other persons of interest. Tunney raised his opposition to this practice, saying, “I am shocked, quite frankly, at the possibility that something that you, as Director of the FBI, send to the White House could be used by White House counselors to disseminate to [persons of interest].”51 It seemed that each time Gray opened his mouth to testify, he made the situation worse for himself. One of his gravest missteps during the hearing was his generous offer to open the FBI’s Watergate investigation files to every senator. Several days into the hearing, the American Civil Liberties Union (ACLU) sent a letter to the committee chair, Senator Eastland, expressing concern about Gray’s offer. The letter stated, “These files undoubtedly contain information about individuals which should not be disclosed without careful consideration of their rights.”52 Senator Roman Hruska (R-NE) agreed with the ACLU and scolded Gray, saying, “I want to say to you that I suffered quite a setback in my thinking and felt that you made a very dramatic and radical decision in making these available.” 53 Gray held his own, maintaining that he had weighed the level of controversy stemming from his decision prior to making such a generous offer; his rationale, however, was that he intended to uphold the FBI’s credibility in the investigation and the only way to do so would be to make such files available for examination.54 Senator Hruska found Gray’s answer acceptable. He encouraged the committee to remember “that the people involved in the Watergate investigation have not been nominated to be FBI Director; Louis Patrick Gray III has. We ought to talk about Mr. Louis Patrick Gray III, his accomplishments, his integrity, his record, and what he has done since he has been Acting Director. We ought to leave other inquiries for other occasions, other committees, and other authorities.”55 His admonition highlighted the real challenge of Gray’s hearing. The senators were not only assessing his fitness for the position of FBI director but also trying to determine just how much of a Nixon supporter he was. The president and his administration were already under scrutiny for Watergate. In the midst of Watergate, Nixon had nominated a personal friend who had given politically tinged speeches in favor of the Republican Party and

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Nixon both before and after being appointed acting director. His speeches encouraged loyalty to the administration on behalf of government employees. Thus, his confirmation hearing and its many forays into his political affiliations represented a moment in time when the Senate worried less about the FBI itself and more about what the FBI might be capable of when working in support of a president.56 The hearing committee worried that the FBI, under Gray’s leadership, would function less like a federal law enforcement agency and more like a state police. One of the justifications that Patrick Gray used when asked about supplying information to the White House included a memo written by the Bureau’s legal counsel three days after the Watergate break-in took place. Addressed to Acting Associate Director Mark Felt, it stated,

You advised me that the Acting Director desires an opinion on the legal basis for dissemination by the FBI to the White House of information concerning a criminal case being investigated. More specifically, if I understand the situation, he means a case being investigated as a criminal case for prosecution involving a violation of Title 18, United States Code, and which does, or may, implicate Federal employees as subjects. Our reply is limited to such a situation. For reasons shown below, we conclude that the FBI has no authority, or duty, to initiate dissemination of information to the White House concerning the criminal investigation in progress. Note that we use the word “initiate.” We did not consider the matter of disseminating such information to the White House on specific White House request. In this latter situation we assume that since the President is the top boss of the Executive Branch he can obtain from that branch any information that he wishes. This is a different matter, legally and otherwise, from the one in which we would on our own decision initiate dissemination of the information.57

Toward the end of the memo, the legal counsel addressed past actions of the Bureau, writing,

This discussion raises the question of legality of dissemination to the White House in the past. It is my understanding under Mr. Hoover we disseminated information on criminal cases to the White House when, as, and if Mr. Hoover directed that we do so, and this was done on Mr. Hoover’s instructions without reference to the matter of whether we did or did not have the authority. The practice apparently had the sanction, grudgingly or otherwise, of the Attorney General and apparently

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was at least condoned by the White House. This is not to say either that it was right or it was wrong. Our only position is that from a strict legal standpoint, there was no specific authority for it. The authority and the obligation of the FBI are to keep the Attorney General fully informed and to leave the rest to him.58

But the kicker came when Gray admitted to Senator Kennedy that he had allowed White House staffer Dean to sit in on FBI interviews concerning the Watergate investigation. Not only had Gray allowed one of Nixon’s staffers to witness the FBI’s questioning of White House staff, but he also failed to follow up on important investigatory leads involving the White House. During the hearing, Senator Sam Ervin (DNC) referenced a Washington Post article that stated a person of interest in the Watergate case, Donald Segretti, “had been subpoenaed to testify in the Watergate criminal prosecution, that he had been interviewed by the FBI, and that 2 days before the convening of the Republican National Convention he was in Miami, and that a White House aide showed him statements which he said had been made to the FBI, and was told about giving some kind of suggestions from the White House aide as to how he should testify in case he were called as a witness in the criminal prosecution.”59 Senator Ervin was accusing Dean of showing Segretti the FBI files passed along to him by Gray in order to prepare him prior to FBI questioning. Segretti was key to the Watergate investigation, as he led FBI agents into the twisted accounting supporting the Committee to Re-elect the President. He hired undercover agents to carry out CREEP’s dirty work, including break-ins. In exchange for the recruits’ loyalty and work, Segretti promised them high-profile jobs within the Nixon administration following the president’s reelection.60 During their investigation into Watergate, reporters Woodward and Bernstein wrote that Segretti assured his undercover agents that Nixon knew about the work they were doing for him and that they would be rewarded accordingly.61 His involvement in the Watergate break-in was crucial to understanding the incident’s connections to the White House. So the possibility that Segretti was receiving insider information from the White House about the FBI’s investigation was serious business. Senator Ervin asked Gray if the FBI had interviewed Segretti in order to determine whether he was receiving such information from the White House. Gray replied that he was never interviewed as such; he said, “The only thing that was ever done was the call that I made to Mr. Dean when I saw this article in the newspaper. Because, the only

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individual who had these from me was Mr. Dean, and in point of fact, you know, Mr. Segretti would have been entitled to look at these had he asked to look at them. This is the law of the case.”62 That Gray had not ordered the FBI to follow up on the leak was bad enough; that the acting director of the FBI believed that anyone on the White House’s payroll could look at the FBI’s Watergate investigation files was astounding. Gray had interpreted the legal opinion from FBI counsel to mean that the White House could look at documents related to any investigation; furthermore, it could allow any individual, including those currently under investigation by the FBI, to see such files. He was not worried about the possibility that Dean would allow Segretti or other witnesses to see FBI files prior to being interviewed by FBI agents; in fact, he legally justified such action by Dean. Gray’s actions in the Watergate investigation became central to his confirmation hearing. Senator Byrd acknowledged that the confirmation hearing was taking place at an unfortunate time and lamented his inability to separate Gray’s confirmation from the Watergate case. Had the investigation ended before the confirmation, then the senators would have had an easier time deciding whether, in retrospect, the FBI had carried out a thorough investigation. But that they were assessing the FBI’s ability to look into Watergate while also assessing the FBI’s leader made for a complicated hearing. Senator Byrd stated,

If we start with the premise, as I think I have to, that there is something about the Watergate that has not yet been brought to light, and then if we go to the next premise, that being that the investigative agency, the FBI, did not in fact investigate and probe in depth, and with absolute thoroughness and with absolute objectivity—which premise I have to accept at this moment—then when we consider that you were the Acting Director for 10 months during this investigation, I have no alternative but to vote against the confirmation. I wish that it were possible for us to be able to delay this vote on the confirmation until we knew what really took place with respect to the Watergate incident and how well the FBI really conducted the investigation.63

Of all the senators on the committee, only Senator Hruska took advantage of Gray’s offer to review the FBI’s Watergate files. He recounted that he was “impressed by the absolute thoroughness and the painstaking detail in which all of the aspects were pursued.”64 Despite Senator Hruska’s favorable review, the committee as a whole found Gray’s prowess as lead investigator seriously lacking. For the remainder

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of Gray’s time before the committee, he received hours of questions relating to the Watergate case. Senator Byrd continued to press his allowing Dean to sit in on FBI interviews of White House personnel. Gray defended himself:

MR. GRAY: No, I was not really in a position to object. I saw nothing wrong with it. If the counsel to the President of the United States tells me that he wants to attend interviews of individuals who are members of the President’s staff—including some highly placed ones—and that he is charged with conducting an inquiry by the President to determine whether any of these fellows are involved, I am not going to question that, Senator. SENATOR BYRD: What kind of answers to questions do you think you will get in that kind of situation? MR. GRAY: I have no idea. SENATOR BYRD: Do you not think the White House personnel are going to be intimidated by the presence of Mr. Dean? MR. GRAY: If they had any involvement, I would say perhaps they would be intimidated. That really depends upon their involvement.65

Based upon his answers, it appeared that Gray seemed unaware or indifferent to the idea that Dean might be the one who, all along, was involved in the Watergate conspiracy. Only in an exchange with Senator Edward Gurney (R-FL) did Gray publicly own up to this possibility. When Senator Gurney asked if there was anything unusual about Dean being present when White House staff members were interrogated, Gray replied no. He once again stressed that Dean served as counsel to the president and that his attorney-client privilege allowed him to be there. Senator Gurney retorted, “Isn’t there another reason why he would want to be present? Certainly it occurs to me that any investigator or lawyer charged with an investigation would want to be present when a witness testified or was interrogated so that he could not only hear the answers but also to get an impression of the demeanor of the witness; isn’t this a fair thing to say?”66 Gray responded that he could conceive of that being a reason, but Dean had never mentioned it to him. Senator Tunney challenged Gray by asking him how much of the Watergate files Dean had actually seen. Gray defended himself, saying he had only allowed Dean to see the files he himself had seen. Dean only saw 82 of the 186 reports.67 But Senator Tunney continued prodding. “Let’s just say that he made a request for all the reports?” he asked. Gray responded, “In a situation like this

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where he is charged by the President to conduct an inquiry, yes, I probably would have made them available to him.”68 At one point, Senator Kennedy asked Gray whether he ever considered “the possibility that Mr. Dean was more involved in this Watergate affair than otherwise might have been thought, and whether, on the basis of ‘regularity,’ access to the files and interviews should have been extended?”69 His question led to the following exchange: GRAY: I feel quite certain that my memory is good on this, is that we had no indications whatsoever that Mr. Dean was involved in any way, where he might have been asked to represent anybody. This just never did come up. I knew, of course, that he was counsel to the President, and I knew that the President had named him to conduct this inquiry. I did not at any time believe that he was compromised nor did I believe at any time that, had there been any reason to consider that he was compromised in any way by Watergate, the President would have designated him as the individual to conduct the— SENATOR KENNEDY: Perhaps the President didn’t know. MR. GRAY: This could be a possibility, Senator. Really, that would be a very, very remote possibility. We really had no information on the basis of the reports coming in to us from all kinds of sources that Mr. Dean was involved in any way.70

Kennedy continued to question Gray, asking if he had spoken with John Mitchell when he learned about the Watergate incident. Though Mitchell and Gray stayed in Los Angeles at the same hotel on the date of the break-in, Gray maintained that they had not spoken. He asked specifics about persons that the FBI had interviewed; Gray referenced informational sheets assembled for him by FBI personnel, seemingly detached from the case itself. After days of testimony, the senators had heard enough. They turned their questions over to outside experts, and Gray, war-weary and defeated, concluded his testimony. The committee called John Elliff to testify. When he heard Gray’s offer on the first day of his hearing to make available to the entire Senate the FBI’s Watergate files, Elliff was concerned enough to write the attorney general, Richard Kleindienst, to emphasize the unprecedented (and absurd) nature of such an offer. Elliff argued that Gray’s offer of the Watergate files had been presented independent of any approval on behalf of the attorney general. He had single-handedly decided to open the files. Elliff further argued that Gray’s offer contradicted the legal opinion of his own Bureau counsel. Though the FBI

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counsel had said that Gray was not to initiate any offer of files to the White House, he had a duty to supply them when asked to do so. With the Senate, however, Gray had volunteered the files on his own volition. Elliff wrote in his statement to the committee, “It is not clear why there is a difference between the two situations and why the Acting FBI Director should be able [to] go beyond the bounds of the explicit request made by the Senate”71 in offering the files. Elliff’s testimony highlighted the tension inherent in allowing the FBI director to report to both the president and the attorney general and how Gray, in some instances, bypassed the attorney general completely to adhere to the president’s interests. But Elliff’s testimony also drew attention to another problem tangential to Gray’s confirmation. He gave a long exposition on the many problems inherent in the FBI, placing Gray in a larger context. Elliff discussed his concern that the FBI had no legislative charter, and therefore its intelligence gathering had largely been directed by the executive orders of past presidents.72 He referenced Gray’s continuance of previous policies and programs related to collection on so-called radical groups.73 Most concerning, as technology increased, so did the ability to conduct surveillance.74 And finally, he declared, “The FBI’s intelligence system appears to be founded on out-of-date assumptions.”75 Elliff’s testimony concentrated not on Gray but rather on all the problems inherent in the Bureau. He remained fixated on the lack of a legislative charter for the agency, reminding the senators that the Bureau’s intelligence directives stemmed wholly from presidents’ whims. The irony of that allowance was not yet known to the committee. They had no idea the depths to which Nixon had already gone to protect himself and to secure his chances for reelection. The Watergate investigation had progressed to a significant extent at this point. The senators knew that Watergate had implicated those working for CREEP; they did not yet know that it would also implicate Nixon. When asked about whether Gray had politicized the position of director by carrying out the Watergate investigation while working with Dean, he replied, “My personal impression is that if it was a sin, it was a sin of transition. He was a man new to his job, new to his responsibilities, an Acting Director and not a full-fledged permanent Director of the FBI, and that perhaps as permanent Director he would have said, ‘Mr. President, I will conduct this investigation, I advise you not to have an in-house investigation on your own. That will only tend to politicize an investigation which ought to be an objective, neutral investigation.’” 76 Elliff generously gave Gray an allowance. Had he

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politicized the role of director? Perhaps; but if he did, Elliff reasoned, it was only because he was new to the job. Finally, Elliff expressed his hope that Gray and future presidents had learned, following the Watergate investigation, that when an investigation leads close to the White House, the president “ought to exercise the self-restraint himself not to duplicate the investigation being conducted by the FBI. He should not attempt to inject into the investigative process a man of his own as was done in this case; and if future occasions such as this do arise, when the temptation is there to have a Presidential aide conduct an investigation that ought to be in the hands of the FBI, both sides should resist that temptation.”77 Elliff’s testimony was compelling, in that he identified many issues that needed to be addressed by Congress concerning the FBI. One of the most poignant testimonies in the hearing came from Joseph L. Rauh Jr., a past chairman of Americans for Democratic Action.78 Rauh opposed Gray’s confirmation. In his prepared statement, he elucidated an interesting personal history with the FBI. In 1950, he had written a favorable review of a book that had attacked the FBI and Hoover.79 He said, “The review appeared in the Washington Post on a Sunday morning. When the Senate met on Monday noon, Senator Bourke Hickenlooper, who I had never met, took the floor to denounce me with a speech prepared from my dossier at the FBI.”80 He surmised, “What happened was this: FBI materials were used to silence or attempt to silence a critic.”81 Despite his negative encounter with the Bureau, he also had a very favorable one. He described a situation that occurred in 1969 when his client, Joseph A. Yablonski, was murdered. He said, “It seemed certain that the murder was union-connected and union-directed. But I was helpless to prove this important fact myself.”82 Initially, Attorney General John Mitchell and Secretary of Labor George P. Shultz refused to take the case, but eventually public criticism forced Mitchell to order the FBI to investigate. Rauh testified, “The Bureau’s determination, thoroughness, and ability obtained overwhelming evidence of the involvement of the United Mine Workers officials and made possible the cleaning up of one of the country’s greatest trade unions.”83 Having seen both the good and the bad that the Bureau was capable of, Rauh served as a credible and rational voice when he expressed his disdain at the prospect of Gray becoming the permanent director. He said,

I have been an FBI watcher for 30 years, and I want to say for Mr. Hoover that I do not believe he did a partisan political act in those 30

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years. I am not defending the use of FBI materials to discredit critics, and as one who was subjected to that treatment, it is not a very happy treatment. But it is different; there is not the same degree of danger that the use of FBI files in politics would be. I never thought I would be saying that I was thinking of the good old days of J. Edgar Hoover. [Laughter.] But I want to make my point clear: Mr. Hoover would not let politics get in there. He did some other things that we are all worried about, but on this item he was a giant, and that is what we must never forget. And it was because, through my personal experience, I could explain the difference between using FBI files in a partisan way and using them against your critics, whether you like that or not, that I referred to this incident [involving Rauh’s Washington Post review]. Now, both for the good the FBI has done—its magnificent police work—and for the dangers of the dossiers, surveillance, wiretapping, and bugging, there is no place for a partisan political figure at the head of the FBI. Its whole morale depends upon being nonpolitical, and the dangers in the use of its great power now are really beyond description. So the question is, is that danger there? We believe it is. . . . And everything that has happened in the last 10 months confirms the worst fears that one would have of taking a political appointee and putting him into this job that requires a giant to stand against political pressures.84

Rauh’s testimony hit straight at the issue. He was not a fan of Hoover, but he worried that even with Hoover’s mistakes, he was a better director than Gray because he did not let himself succumb to partisanship. Rauh was clear in saying that Hoover brought his own set of issues to bear. Hoover had virulently attacked the Bureau’s critics (including Rauh). His anticommunist ideology had diverged into paranoia, something Rauh, as former chairman of Americans for Democratic Action knew well. Rauh’s testimony was powerful. He had neither blind affection nor blind hatred for the Bureau. He had experienced Hoover’s wrath and had also witnessed Hoover’s propensity to toss aside politics when investigating a crime, no matter the victim. Rauh believed that Gray, as a political appointee, did not have the stature to be a “giant” against political pressures, and he was right. Gray, an acting director of the FBI and an ambitious peoplepleaser, sought Nixon’s approval in everything he did. He did whatever Nixon told him to do. While Hoover made Nixon angry in order

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to preserve his control of the Bureau, Gray offered the Bureau to Nixon on a silver platter. Gray’s automaton-like desire to please surfaced yet again in a final exchange with Senator Kennedy. On the final day of the hearing, Gray had been called to the stand to testify one last time. Senator Kennedy asked Gray about when he learned of a work relationship between G. Gordon Liddy, one of the Watergate burglars, and Nixon’s counsel, Dean. His question led to the following exchange:

SENATOR KENNEDY: When you saw Mr. Dean’s name mentioned and the name of one of the defendants mentioned, what sort of antenna went up? MR. GRAY: No antenna went up. I couldn’t make that kind of jump at that point in time, that because he had recommended Liddy as a counsel to the committee he had to be involved. And as I testified this morning, Senator, I don’t think the President is going to name his counsel to conduct an inquiry of White House involvement if he has any reason to believe the counsel is involved. SENATOR KENNEDY: How is the President going to determine this? MR. GRAY: I think the President knows perhaps even more than the FBI Director about things that go on within the entire Nation. I don’t have the picture on the White House staff. SENATOR KENNEDY: Why is he requesting that information from you if he already knows? MR. GRAY: That is the President I am talking about, Senator. SENATOR KENNEDY: That is the one I am talking about. If you say on the one hand he knows more about it than you people, yet he has requested you people to look into it, then he is relying upon you, isn’t he? MR. GRAY: He knows more about his own staff and certainly he is not going to have a man there as his counsel who is involved in any way.85

Gray simply could not fathom that Dean or Nixon would be involved in Watergate. He held the president in such high regard that he saw him as above reproach. Gray anchored the entire FBI investigation of Watergate on the assumption that Nixon and his innermost staff, including Dean, were innocent. His inability to conceive of their possible guilt became an issue for Senator Byrd on the final day of Gray’s confirmation hearing. Byrd marveled at Gray’s baseless trust in the Nixon administration.

SENATOR BYRD: You have known of Presidents being betrayed, have you not, by a confidant?

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MR. GRAY: I think there may have been some Presidents in our history who have found themselves in this situation, yes, sir. SENATOR BYRD: And surely Senators have been betrayed? MR. GRAY: Yes, sir. SENATOR BYRD: Governors betrayed? MR. GRAY: Yes, sir. SENATOR BYRD: Even Christ was betrayed by one of His chosen few. What I can’t understand, this presumption of regularity goes so far and so deep that everything is accepted at face value, without question, without the slightest iota of suspicion.86

The exchange continued, with Senator Byrd becoming increasingly angry. Byrd was especially frustrated to learn that the FBI contacted Dean on June 22 to ask if E. Howard Hunt, one of the Watergate burglars, had an office in the White House. Gray testified that Dean had replied that he would have to check. Yet Gray also indicated that Hunt’s possessions were removed from his office on June 19 and placed in Dean’s office on June 20.87 In other words, Byrd caught Dean’s “contradiction.” He stated,

SENATOR BYRD: You indicated that Mr. Dean probably lied to the FBI agents as you now look back, yet yesterday you said you would continue to send to him raw FBI files if he requested them. Why would you now continue to send raw FBI files to an individual who probably lied, to use your words, to an FBI agent? MR. GRAY: Well, Senator Byrd, I think that you have got to realize once again that I am a Bureau Chief in an executive department of the Government, that I have to take orders from somebody, that I do report to somebody, that I am just not out there in the open, you know, independent and doing exactly as I please, and that man is Counsel to the President of the United States.88 Senator Byrd continued his questioning of Gray:

SENATOR BYRD: Mr. Gray, where does your first duty lie, to the President of the United States or to the FBI? MR. GRAY: I’m sorry, sir? SENATOR BYRD: Where does your first duty lie, to the President of the United States or to the FBI? MR. GRAY: I think that that is a tough question and I have said that before. I am a Bureau Chief in an executive department of the

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Government. I take orders from the President of the United States and, as I think I previously testified, if the Congress wants to put this FBI out into independent orbit and let its Director operate the FBI as he sees fit, we may indeed be creating a situation in which we are going to develop a national police force. This is a very real risk. It is a very serious question. It is not a light question. But at this time, by virtue of congressional enactment, I am in the position of Acting Director at the pleasure of the President of the United States. I do take my orders from the President of the United States. I can’t evade that.89

By the end of the hearing, Senator Byrd declared that he could not vote in favor of Gray’s confirmation. He cited a long list of indiscretions on Gray’s part: he had made political speeches on behalf of Nixon (including at the City Club of Cleveland); he had supplied information from FBI field offices to assist Nixon’s presidential campaign; having visited fifty-eight of fifty-nine FBI field offices during his ten months as acting director, he had been out of the office too frequently; his dealings with Dean regarding the Watergate investigation demonstrated a lack of independence in the investigation; he had taken Dean’s suspicious answers at face value; he had stated in his confirmation hearing that he would continue to turn over raw files to Dean.90 Byrd concluded that he could not vote to confirm Gray’s appointment as director, explaining,

I think that the image of the FBI has suffered, in view of all the developments which occurred during his acting directorship, and I think that the professionalism, morale, and efficiency of the FBI have likewise suffered, as has public confidence in the FBI. There is too much evidence of political activity on the part of the Acting Director; there is too much subservience to the White House; there are too many unanswered questions with respect to the possible misuse of FBI files in connection with the Watergate investigation—all of these, together with the foregoing detailed reasons, are sufficient to justify a fear that the FBI could, in the future, become a White House national police force to be used in political campaigns, thus endangering the constitutional liberties of all Americans.91 By the end of the hearing, Gray’s ability to serve as director had been called into question; he had been berated, prodded, and deflated by the senators’ many questions. All that remained was the committee’s final decision.

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Before the committee made it, Gray became compelled to confess an indiscretion. Although he initially denied disposing of any FBI files on behalf of the Nixon administration, he recanted his story after a sleepless night. After the hearings had ended, Gray called Assistant Attorney General Henry Peterson and admitted, “[John] Dean did give me two files. I wasn’t ready to admit that to you yesterday and I’m sorry.” When Peterson asked to see the files, Gray stated, “I burned them.”92 Gray explained to Attorney General Kleindienst that the files had come from the White House safe of one of the Watergate burglars, E. Howard Hunt. Gray maintained that the documents were not connected to Watergate but rather included some top-secret State Department cables and documents about Senator Ted Kennedy’s car accident at Chappaquiddick in 1969.93 He recalled that John Dean had given him the files in John Ehrlichman’s presence and declared, “These should never see the light of day.”94 Gray recalled, “I took their statements at face value.”95 He took the documents home, where he stored them in his closet. Six months later, he burned them along with his discarded Christmas wrapping paper. When Kleindienst heard Gray’s confession, he alerted Nixon, who withdrew his nomination of Gray. His tenure as FBI director was done. * * *

Three days before Nixon’s resignation in 1974, the tapes subpoenaed from Nixon’s office confirmed what prosecutors involved in the Watergate investigation had suspected. A recording on June 23, 1972—six days after the Watergate burglary—revealed Nixon’s involvement in the coverup of the break-in during the earliest days of the investigation. When the tape became public, it became the tipping point that led to Nixon’s resignation.96 That summer morning, Nixon and his chief of staff, Bob Haldeman, brainstormed a way to derail the FBI’s investigation into the burglary. Haldeman briefed Nixon on the Bureau’s progress, explaining, “[The FBI’s] investigation is now leading into some productive areas, because they’ve been able to trace the money . . . and it goes in some directions we don’t want it to go.”97 Haldeman proposed a solution: “The way to handle this now is for us to have [CIA director Vernon] Walters call Pat Gray and just say, ‘Stay the hell out of this. This is—there’s some business here we don’t want you going any further on.’”98 Journalist Rick Perlstein contextualized this conversation, writing that John Mitchell (former attorney general and director of CREEP) and Dean had come up with the plan the evening before. They believed they could put an end to the FBI’s investigation by “simply [telling] the FBI

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that, yes, this whole break-in was part of a CIA operation. A secret CIA operation that the FBI had no business looking into.”99 The CIA and FBI had an agreement not to meddle with each other’s sources. Nixon’s staff believed they could end the FBI’s investigation by convincing the CIA director to claim CIA sources were involved. In doing so, the FBI would have to back away. Walters did approach Gray and ask him to back off. The FBI temporarily redirected its investigation, only to meander eventually back toward evidence suggesting White House involvement. Following his resignation as interim director, Gray was suicidal.100 He recalled, Until that moment I had total faith and belief in the government of the United States and in the office of the presidency. I could not accept the fact that we in the FBI—and the American people—had been lied to so blithely by the president and the top officials of our government. The destruction of the two Hunt files, the lies of Dean and Ehrlichman about Dean conducting an investigation for the president and reporting directly to the president, and my resulting cooperation with Dean and the fulfillment of his requests in the name of the president were just too much for me to reconcile.101

Gray had confirmed the Senate committee’s worst fears. He had allowed himself to be used by the president in an effort to hinder the FBI’s investigation into Watergate. He had allowed Nixon’s men to meddle in the investigation, and though he could not imagine at the time that they were involved in any wrongdoing, it turned out that they very much were. Gray would continue to face hardship long after his tenure as director ended. Though the Watergate special prosecutor decided not to prosecute Gray for his destruction of Hunt’s files, the attorney general’s office later indicted Gray and Acting Associate Director Felt for a black bag job that the FBI ran against the Weather Underground. Gray spent years and all his personal savings on a defense team. Eventually, the attorney general’s office dropped the charges against Gray. In the preface to his memoir, Gray’s son recounted the toll that Watergate and the subsequent charges took on his father: “Watergate was his undoing. Though he had not been part of any of the conspiracies, it would take him the next eight years to prove it. Five federal grand juries, four committees of Congress, dozens of magazine articles, hundreds of newspaper accounts. The cover of Time magazine. The dust jacket of All the President’s Men. All of them lumping him in with the actual criminals, all of them assuming his guilt. None offering any proof.”102

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The Senate was right to be concerned about Gray’s partisanship and blind loyalty to Nixon. Prior to his confirmation hearing, Nixon and his staff wondered aloud if Gray was actually a good choice to lead the Bureau. In a conversation with Ehrlichman on February 14, 1973, just prior to Gray’s confirmation hearing, Nixon expressed his doubts:

I’ve been doing a lot of thinking about it. I think we had better take a known quantity with weaknesses that we’re aware of in this particular area than to try to take somebody else. Gray is loyal. Uh, I realize he’s weak in some areas. Uh, I realize there’ll be some confirmation problem, but let’s look at that for just a moment. Maybe it’s just as well to have Gray get up there and have them beat him over the head about Watergate, and have him say what the hell he’s done.103

At that point, Nixon worried that if he didn’t place his support behind Gray, people would accuse him of participating in a Watergate cover-up. At the very least, Gray could defend Nixon’s leadership by testifying to the FBI’s extensive investigation into the burglary. In Nixon’s mind, Gray’s testimony would ease suspicions against the White House. Ehrlichman agreed with Nixon’s assessment. He reminded the president that “[Gray] is a guy we can tell to do things and he will do them,”104 though they both acknowledged that he had somewhat departed from their wishes during the Watergate investigation. Still, they chalked up his failure to follow direction to his immense desire to be confirmed as permanent director. Ehrlichman believed that after Gray received confirmation, he would personally instruct Gray to follow Nixon’s orders to the letter. Ehrlichman explained his plan to Nixon, saying, “You call Gray over and you read him chapter and verse. . . . [Y]ou would say, ‘Pat, I had an arrangement with J. Edgar Hoover that up until now I have not had with you and I missed it. Once you’re confirmed, I want it understood that we go back to a personal relationship . . . that when I call, you respond.”105 During this conversation, Ehrlichman told Nixon for the first time about the materials from Hunt’s safe that he and Dean passed along to Gray. He was certain that Gray wouldn’t utter a word about the documents before the Senate, assuring Nixon, “[Gray] has some guilty knowledge in connection with the Watergate that only Dean and I know about, uh, that has to do with, uh, Hunt. Uh, we turned some stuff over to Gray to get it out of here. That’ll never come out. He’ll never testify to that, there isn’t any way that he could testify to that.”106 He explained

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to Nixon that on June 19, 1972, when the White House opened Hunt’s safe, Ehrlichman and Dean called Gray to the executive office. Ehrlichman described the scenario to Nixon:

EHRLICHMAN: I called Gray to my office. Dean came in. I said, ‘Pat, here’s an envelope. We want to be in a position to say we’ve turned everything over to the FBI, so we’re giving it to you. I don’t care what you do with it, as long as it never appears. PRESIDENT: Suppose that they ask him about other activities with, uh, Hunt and so forth, what does he say about— EHRLICHMAN: Presumably, he says I honestly don’t know of any because, uh, maybe he never opened the envelope. If he was smart, he didn’t.

Though Ehrlichman and Nixon trusted that Gray would remain discreet about his interaction with the White House during the Watergate investigation, they soon realized their gross misjudgment. After Gray offered to open raw FBI files for Congress to gauge the effectiveness of the Watergate investigation, Nixon was stunned. Dean recalled Nixon’s rant the morning after Gray’s offer: “What’s the matter with him? For Christ’s sakes, I mean, he must be out of his mind.”107 At that moment, Nixon worried that his confirmation pick had been a mistake. Dean recalled Nixon’s ambivalence toward Gray, as Gray’s performance in the hearings began to falter. He wrote, “Nixon observed that ‘Gray has demonstrated in his first day’s hearing he’s got a weakness’ and added that was ‘the reason I was very hesitant about appointing him. There’s too much bravado there.’”108 If Nixon felt that Gray crossed a line and became a liability to the administration, he was willing to cut ties. Nixon informed Dean that if Gray “pandered” too much to the Senate, he would remove him as the nominee and feel absolutely no compunction about it.109 When Gray testified several days later before Congress that he was unhappy with Dean’s decision to sit in on FBI interviews, Nixon seethed. His nominee no longer evinced loyalty; such loyalty was the entire reason he had been the president’s choice in the first place. Nixon called Dean into the Oval Office to ask which senators had supported Gray on the Senate Judiciary Committee. Dean replied that Senators Roman Hruska and Edward Gurney had been most supportive. Nixon then asked Dean to plant a question with one of the two friendly senators. He wanted them to ask Gray whether Nixon, as a presidential candidate, had been bugged in 1968. The question was irrelevant to Nixon’s interests;

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rather, it was a setup. Nixon told Gray, “I’m going to make him lie, because I think Gray’s not handling himself well.”110 Nixon explained that he wanted to disqualify Gray as a candidate. He told Dean that after Gray answered the question untruthfully, “he would then summon Gray and confront him: ‘You didn’t tell the truth there,’ the president would say, and he thought Gray would respond, ‘I agree. Now, I’ll withdraw.’” Nixon’s plan never went into action; as Gray’s confirmation hearings progressed, he did plenty on his own to call his judgment into question among the senators. By March 10, Nixon had soured completely on Gray as a nominee. Once Gray began to allege that Dean had acted improperly in his oversight of the Watergate investigation, Nixon considered Gray dead in the water. Dean recalled, I had become totally disenchanted with Pat Gray. So had Nixon. When the president spoke with Pat Buchanan on Sunday afternoon, March 11, he told Buchanan he was not going to give Gray a lifeline by responding to any press questions about either Gray or Watergate. He would not defend his nominee. A few hours later, when talking with [Charles] Colson, they commiserated over what a lousy witness Gray had proven himself and the damage he had done to the FBI.111

The Nixon tapes and Dean’s recollections confirm that the president and his men supported Gray because they believed him to be a malleable figurehead, someone who would profess undying loyalty to the president. When Gray’s testimony morphed into something else, when he cracked under pressure and began to retch up before the Senate all the mistakes he made during the Watergate investigation, Nixon balked. Gray’s mistakes opened Nixon’s administration to congressional scrutiny. After Gray’s testimony about Dean’s involvement in the investigation, the Senate insisted that Dean testify before them under oath. Nixon had nominated Gray in the hopes that he would squelch any inquiries into the White House’s involvement with Watergate. Instead, he opened the floodgates. In a way, Gray finally found his independence as director during his hearing, but at that point, his newfound independence was too little, too late. Nixon and Dean discussed his insolence during the confirmation hearing:

DEAN: So this is again Pat Gray making decisions on his own as to how to handle his hearings. He has been totally unwilling all along to take any guidance, any instruction. We don’t know what he is going to do. He is not going to talk about it. He won’t review it, uh, and I don’t think . . .

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PRESIDENT: Right. DEAN: . . . he does it to harm you in any way, sir. PRESIDENT: He’s just stubborn and—he’s quite stubborn; also he isn’t very smart. You know he and I— DEAN: He’s bullheaded. PRESIDENT: He’s smart in his own way, but . . . DEAN: Yeah. PRESIDENT: . . . but he’s got that typical, ‘Well, by God, this is right and they’re not going to do it.’ DEAN: That’s why he thinks he’ll be confirmed, because he thinks he’s being, he’s being his own man, he’s being forthright, honest. He feels he has turned over too much and so it’s a conscious decision that he is harming the Bureau by doing this.112

Gray is a tragic figure in the history of the FBI. It is difficult to imagine who could have adequately filled the gaping hole in leadership left by Hoover’s death. It is also difficult to imagine that anyone short of Hoover could have withstood the onslaught of intervention and deceit the Nixon White House hurled at Gray, and at such a vulnerable time, with the Watergate investigation at fever pitch. From the beginning of his tenure as acting director, circumstances seemed not to stand in Gray’s favor. Although Hoover was vulnerable toward the end of his life, Nixon could not penetrate the Bureau’s political impartiality. Nixon could not make the FBI work for him. With Gray, however, Nixon handpicked a man who demonstrated blind loyalty to him. Gray was loyal first to Nixon and second to the Bureau, until suddenly, during the confirmation, Gray shed his allegiance to Nixon and spilled some of the president’s darkest secrets. During the Watergate investigation, Gray refused to consider that the president and his men could be capable of committing crimes. By the time he realized the gravity of his mistakes, he was already in the hot seat. Gray learned the extent of Nixon’s corruption the hard way.

Notes

1. Carl Bernstein and Bob Woodward, “FBI Finds Nixon Aides Sabotaged Democrats,” Washington Post, October 10, 1972, A1, http://www.washingtonpost .com/wp-srv/national/longterm/watergate/articles/101072-1.htm. 2. Ibid. 3. Ibid. 4. L. Patrick Gray and Ed Gray, In Nixon’s Web: A Year in the Crosshairs of Watergate (New York: Times Books, 2008), xx.

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5. Patricia Sullivan, “Watergate-Era FBI Chief L. Patrick Gray III Dies at 88,” Washington Post, July 7, 2005, https://www.washingtonpost.com/politics/watergate -era-fbi-chief-l-patrick-gray-iii-dies-at-88/2012/05/31/gJQA9fX2FV_story.html. 6. Gray and Gray, In Nixon’s Web, 10. 7. Ibid., 19. 8. Ibid., 155. 9. Ibid. 10. US Congress, Senate, Hearings Before the Committee on the Judiciary: Nomination of Louis Patrick Gray, III, 93rd Cong., 1st sess., February–March 1973 (hereafter Senate Hearings); Federal Bureau of Investigation, 3, quoting Carl Bernstein and Bob Woodward, “Questions About Gray,” Time 101, no. 10 (April 5, 1973): 26. 11. Carl Bernstein and Bob Woodward, “Still Secret—Who Hired Spies and Why,” Washington Post, January 31, 1973, https://www.washingtonpost.com/politics /still-secret---who-hired-spies-and-why/2015/09/21/24102d0a-6075-11e5-9757 -e49273f05f65_story.html. 12. Bernstein and Woodward, “Questions about Gray,” 26. 13. Senate, Hearings Before the Committee on the Judiciary, 6. 14. Ibid., 6. 15. Ibid., 8. 16. Ibid., 8. 17. Ibid., 9. 18. Excerpted from a former FBI special agent’s post to Ex G-Boys listserv (a listserv for retired FBI agents) on May 4, 2020. The former agent’s post to the listserv was forwarded with his permission to the author. Though the former agent confirmed the information in his post, he wished to remain anonymous. 19. Ibid., 10. 20. A Washington Post article by Jon Katz, titled “FBI Must Reinstate LongHaired Clerk” (August 25, 1972, C1–C2), described Gray’s updated dress code. 21. Senate Hearings, 10. 22. Ibid., 20. 23. Ibid. 24. Ibid. 25. Ibid., 89. 26. Ibid., 101. 27. Ibid., 102. 28. Ibid., 102. 29. Address by L. Patrick Gray III, Executive Assistant to the Secretary, Department of Health, Education, and Welfare, to All Appointees in the Department at the Deputy Assistant Secretary Level and Below, July 25, 1969. The transcript of the speech was entered into the record of Gray’s Senate confirmation hearings after Senator Bayh brought up the partisan nature of his speech. 30. Ibid., 26. 31. Ibid. 32. Ibid., 27. 33. Teletype exhibit, September 8, 1972, from Acting Director, FBI to SACS re: Inquiry from White House, Senate Hearings, 67. 34. Ibid., 74. 35. Ibid., 90. 36. Ibid., 90. 37. Senator Byrd was a longtime friend of J. Edgar Hoover. His interest in the Bureau extended past the confirmation hearings for Gray. Byrd drafted correspondence

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after Gray’s hearing that explained his disdain for the interim director. See 93rd Congress-LP-S1500, Byrd Letter to the Honorable Stuart Symington, April 30, 1973, Robert Byrd Library Archives. Byrd eventually passed legislation to limit FBI directors’ tenure to ten years. See Vivian S. Chu and Henry B. Hogue, “FBI Director: Appointment and Tenure,” Congressional Research Service, February 19, 2014. 38. Senate Hearings, 100. 39. The FBI procured jurisdiction over the Watergate investigation under 18 U.S. Code § 2511, “Procedure for Interception of Wire, Oral, or Electronic Communications.” 40. Senator Robert Byrd raised many of these questions. See Senate Hearings, 115–126. 41. Ibid., 125. 42. Ibid., 126. 43. Ibid., 141. 44. John Dean served as legal counsel to Nixon. He is remembered for being the first White House official to accuse Nixon of involvement in Watergate. See “John Dean,” “The Watergate Story,” Washington Post, n.d., http://www.washingtonpost .com/wp-srv/politics/special/watergate/dean.html. 45. H. R. Haldeman served as Nixon’s chief of staff. He was convicted on charges of perjury, conspiracy, and obstruction of justice in an effort to protect Nixon from the Watergate scandal. He served eighteen months in federal prison. See Richard Severo, “H. R. Haldeman, Nixon Aide Who Had Central Role in Watergate, Is Dead at 67,” New York Times, November 13, 1993, http://www.nytimes.com/1993 /11/13/obituaries/h-r-haldeman-nixon-aide-who-had-central-role-in-watergate-is -dead-at-67.html. 46. John D. Ehrlichman was Nixon’s domestic policy adviser. He was found guilty of obstruction of justice, conspiracy, and perjury and served eighteen months in federal prison. See Alissa J. Rubin, “Nixon Loyalist Ehrlichman Is Dead at 73,” Los Angeles Times, February 16, 1999, http://articles.latimes.com/1999/feb/16/news/mn-8502. 47. Senate Hearings, 148–149. 48. Ibid., 183. 49. Ibid., 210. 50. Ibid., 212–213. 51. Ibid., 277. 52. Ibid., 285. In the hearing, Senator Gurney indicated that the senators participating in Gray’s confirmation hearing disagreed as to whether the permanent position of FBI director should be filled prior to the conclusion of the Watergate investigation (see ibid., 291). 53. Ibid., 292. 54. Ibid., 292. 55. Ibid., 293. 56. One of Gray’s most attacked speeches was the one given in Cleveland. Gray testified, “With reference to my Cleveland speech, I found on the memorandum, in my handwriting, to my speech writers, I said, ‘Conceptually, let’s try a speech responding factually to criticisms of the Princeton conference.’” See Senate Hearings, 294. 57. Memorandum from D. J. Dalbey to Mr. Felt, Subject Dissemination of information, the White House, criminal cases, July 20, 1972, Huston Plan, Senate Hearings, 298. 58. Ibid., 299. 59. Ibid., 305. 60. Bernstein and Woodward, “FBI Finds Nixon Aides Sabotaged Democrats.” 61. Ibid.

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62. Memorandum from Dalbey to Felt, Senate Hearings, 305–306. 63. Ibid., 316. 64. Ibid., 320. 65. Ibid., 335. 66. Ibid., 347. 67. Ibid., 365. 68. Ibid. 69. Ibid., 376. 70. Ibid., 376. 71. Ibid., 402. 72. Ibid., 410. 73. Ibid., 413. 74. Ibid., 414. 75. Ibid., 419. 76. Ibid., 433. 77. Ibid., 434. 78. The Americans for Democratic Action is a political organization founded in 1947 by prominent liberals, including Eleanor Roosevelt. See “Americans for Democratic Action,” Eleanor Roosevelt Papers Project, George Washington University, https://www.gwu.edu/~erpapers/teachinger/glossary/ada.cfm. 79. Statement of Joseph L. Rauh Jr., Vice Chairman, Americans for Democratic Action, Before the Senate Judiciary Committee, Senate Hearings, 445. Hoover hated Max Lowenthal’s The Federal Bureau of Investigation, which criticized the FBI. See Athan G. Theoharis and John Stuart Cox, The Boss: J. Edgar Hoover and the Great American Inquisition (Philadelphia: Temple University Press, 1988), 275, and Max Lowenthal, The Federal Bureau of Investigation (Westport, CT: Greenwood Press, 1950). 80. Statement of Rauh, Senate Hearings, 445. 81. Senate Hearings, 448. 82. Ibid., 445. 83. Ibid. 84. Ibid., 448–449. 85. Ibid., 634. 86. Ibid., 669. 87. Ibid., 667. 88. Ibid., 671. 89. Ibid., 672. 90. Ibid., 691–692. 91. Ibid., 693. 92. Gray and Gray, In Nixon’s Web, 242. 93. Ibid., 3–4. 94. Ibid., 4. 95. Ibid. 96. Jonathan Bernstein, “Nixon’s Smoking-gun Tape and the Presidency,” Washington Post, June 22, 2012, https://www.washingtonpost.com/blogs/post-partisan/post /nixons-smoking-gun-tape-and-the-presidency/2012/06/22/gJQA0gTlvV_blog.html. 97. Smoking Gun Transcript, Miller Center of Public Affairs, University of Virginia. 98. Ibid. 99. Rick Perlstein, Nixonland: The Rise of a President and the Fracturing of America (New York: Scribner, 2008), 682. 100. Gray and Gray, In Nixon’s Web, 253. 101. Ibid., 240–241. 102. Ibid., xxi.

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103. OVAL 741-2, February 14, 1973, White House Tapes, Transcript of a recording of a meeting between President Nixon and John Ehrlichman, from 5:34 to 6:00 p.m., Richard Nixon Presidential Library and Museum, Yorba Linda, California. 104. Ibid. 105. Ibid. 106. Ibid. 107. John W. Dean, The Nixon Defense: What He Knew and When He Knew It (New York: Viking, 2014), 248. 108. Ibid., 249. 109. Ibid., 250. 110. Ibid., 259. 111. Ibid., 263. 112. OVAL 741-2, March 21, 1973, White House Tapes, Transcript of a recording of a meeting among the president, John Dean, and H. R. Haldeman in the Oval Office from 10:12 to 11:55 a.m., Richard Nixon Presidential Library and Museum, Yorba Linda, California.

7 The Watergate Investigation

In the early morning of June 17, 1972, Special Agent Angelo Lano responded to his supervisor’s request to see what had happened during the night at the Watergate complex. At 2:30 a.m., the Watergate complex’s security guard had notified the District of Columbia’s Metropolitan Police Department that he had discovered tape around two doors on the sixth floor of the building. Earlier that evening, he had removed tape from the doors, only to find it replaced later. He had no way of realizing at the time that he had stumbled upon one of history’s most notorious burglaries. The police department sent seven officers dressed in plainclothes to the scene. There they discovered five men, dressed in suits, rifling through the executive conference room of the Democratic National Committee (DNC) headquarters. The burglars carried mace, lock-picking equipment, and screwdrivers. Each wore surgical gloves. One of the burglars, Bernard Barker, carried a portable Bell and Howell transceiver, a listening device. Police found another Bell and Howell transceiver on one of the DNC’s filing cabinets along with a transistor radio. In one of the offices, the burglars had left behind an absent-without-leave (AWOL) duffle bag containing eighty-five rolls of high-speed film and two 35-mm Minolta cameras rigged for photographing documents. The police also discovered three miniature radio transmitters suitable for attaching to telephone equipment and a miniature microphone in the bag. The first FBI report released about the Watergate break-in read, “It appears that 161

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subjects were in the process of planting electronic devices in this area and utilizing the batteries and a small wristwatch to activate the devices at some other day.”1 When the police took the subjects into custody, none would talk. They carried $2,400, $1,300 of it in crisp, brand-new hundred-dollar bills, the serial numbers in sequential order, along with the keys to two Watergate hotel rooms. They refused to identify whom they worked for, where they came from, or why they were in the Watergate complex.2 At some point that morning, a local attorney by the name of Douglas Caddy arrived at the DC jail to inquire about the burglars’ situation. The burglars had not made a phone call since the time of their arrest. Police and FBI had no idea how Caddy knew the burglars’ whereabouts. He provided no information as he reiterated to the burglars that they were not to answer police questions.3 That afternoon, the police and FBI executed search warrants for two rooms rented by the burglars in the Watergate Hotel. In one apartment, they found $3,500 in hundred-dollar bills, all brand-new and from the same series as the bills found on the burglars at the time of their arrest. In the second hotel room, they found a sealed envelope bearing a stamp. Inside the envelope was a signed check for $6.39, embossed with the name “E. Howard Hunt.” The check covered overdue membership fees for the Lakewood Country Club in Rockville, Maryland. They also discovered an address book belonging to burglar Bernard Barker and a flip-top index phone book, property of burglar Eugenio Martinez. Both were filled with the names and numbers of their contacts. In the meantime, the FBI ran background checks on each of the burglars. Though they had provided the police with their aliases, law enforcement quickly determined their true identities. One of the burglars, James Walter McCord, had worked for the Central Intelligence Agency (CIA) and the FBI. Records indicated that he was presently employed by the Committee to Re-elect the President (CREEP). E. Howard Hunt, whose name was on the check, had been the subject of a background investigation by the FBI in 1971 for a position at the White House. In Hunt’s file, the FBI discovered the name of a reference, Douglas Caddy, the same attorney who appeared at the DC jail on the morning of the Watergate burglary. The agents knew from the beginning that the burglary was unusual. Special Agent John Mindermann of the Washington Field Office (WFO) recalled learning of the break-in on Saturday afternoon. He was on call for weekend duty when a clerk telephoned him at home to explain the situation, relaying orders that he go to the office immediately. Mindermann summarized his earliest impression of the case:

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My supervisor wanted me to pick up [Michael J.] King [another WFO agent] and proceed to the Metropolitan Police Department Detective Headquarters to evaluate money police had seized lying on a bed in a hotel room occupied by burglars at the Watergate who had previously been apprehended by Metro plainclothes officers in the midst of a burglary within the Democratic National Headquarters at that very same Watergate, a multi-purpose structure. He further advised that the burglars were “Cuban Nationals” and that another apprehended burglar was “McCord, who was CIA and former FBI.” What? Cuban Nationals, CIA, FBI, Democratic National headquarters during a presidential election year—this is and is going to continue to be a very big deal. That was my very first impression and it proved more than correct.4

The following Monday morning, “all hell broke loose”5 at the FBI’s Washington Field Office. Five agents worked case leads under Lano’s supervision; by the end of the week, that number had risen to twenty-six. Because the burglars’ photographs had been in all the major papers throughout the country over weekend, calls poured into the FBI from all around with possible leads. One such lead proved helpful when a former night manager from the Howard Johnson Inn, located across the street from the Watergate complex, called to say he recognized McCord because he was certain he had rented him a room for several weeks, including during the burglary. He recalled McCord’s meticulous fascination with which room he rented. After about a week of renting a room on the lower floors, McCord approached the manager and asked to move to the fourth floor. He pulled out one-hundred dollar bills to hand the manager, who willingly obliged. The manager recalled that even though McCord rented the room, another man actually stayed in it. The FBI ran phone records on the room and discovered that the occupant had made many calls to the New Haven, Connecticut, area. It turned out that Alfred Baldwin, a lookout for the Watergate burglars, had holed up in the Howard Johnson Inn for several weeks. His room, thanks to McCord’s insistence, was perfectly situated so that he could see the burglars in the Watergate complex from his hotel window across the street. He was also close enough to the complex to pick up any communications that the burglars intercepted. While staked out in the hotel, Baldwin used his ample downtime to call his mother at her New Haven home, hence the phone records. 6 Had police not arrived at the scene of the burglary on the morning of June 17 in an unmarked car wearing plainclothes, had they instead showed up in a squad car wearing their uniforms, Baldwin likely would have

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radioed the burglars to get out before the police had a chance to arrest them, let alone catch them red-handed.

Interviews at the DC Jail

Even with the lead on the Howard Johnson Inn, however, the burglars remained a mystery. Clearly they had intended to intercept communications at the DNC headquarters, but the Bureau had no idea who had tasked them to carry out such a harebrained mission. FBI agents approached the burglars in the DC jail for questioning, but they refused to talk. During one interview, McCord denied that anyone had put him up to the job.7 The burglars’ career histories, however, said otherwise. One of them, Frank Fiorini, had been active in the anti-Castro movement in Miami, Florida, and had served as a “gunrunner” to Cuba. Eugenio Martinez arrived in the United States by boat on June 18, 1968, from Cuba. Like Fiorini, Martinez had been a part of the anti-Castro movement in Cuba and had collaborated on behalf of the Fulgencio Batista government. He fled Cuba with the police on his tail. He also had ties to the CIA. Virgilio Gonzales hailed from Cuba and had allegedly worked for the CIA. Bernard Barker, the burglar with the portable transceiver radio, was a member of a group of Cuban exiles known as Frente Revolucionario Democratico; they wanted to overthrow Castro, and to do so, the group beamed anti-Castro radio messages into Cuba.8 In addition to the Cuban connection, both McCord and Hunt had worked for the CIA; at the time of the burglary, Hunt appeared to work for the White House. These were not run-of-the-mill burglars, and this was no simple burglary. That WFO assigned the burglary to Lano and the C-2 Miscellaneous Crimes Squad was purely coincidental. Initially, someone thought the Watergate break-in had involved jewel thievery, which fell within the C-2 Squad’s jurisdiction. 9 Because Lano received a call from Ernie Belter, his supervisor, on the morning of the burglary, he became the first case agent to respond to the scene. Lano was a natural fit for the case. Prior to the Watergate break-in, he had worked several burglaries alongside the Metropolitan Police Department at the Watergate complex, including the break-in of an apartment belonging to Rose Mary Woods, secretary to President Richard Nixon, when she traveled with White House staff to China. WFO supervisor Bob Kunkel recognized that Lano knew more about the Watergate complex and had a better working relationship with its management than any other agent

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at the time.10 In those days, the Bureau assigned each case, no matter how big or small, to one agent, and that agent remained responsible for the case from beginning to end.11 Lano was a member of the C-2 Squad, so the work fell to him and his fellow agents. Mindermann, also assigned to the C-2 Squad, recalled of its unusual name that “it connoted street sweepers. We were the guys who trailed behind, addressing everything nobody else could or would deal with. . . . We, literally, were comfortable and effective with anything unknown.”12 The squad handled the quirks of the criminal world; they would work anything from theft of government property to crimes on military reservations. They investigated crimes on the high seas and violations of legislation intended to protect migratory birds. Chief among the C-2 Squad, even before Watergate, was Lano, who seemed like a de facto leader. Though he was not the squad’s supervisor (that duty fell to Special Agent John Ruhl), he tended to work on most of the squad’s major cases. He is remembered among his former colleagues as an extremely effective investigator with contacts across government and law enforcement agencies. Mindermann said, “All high-profile cases went through Lano.”13 Indeed, agents from the C-2 Squad hold Lano in high regard even today. They recall him as intelligent and adept at conducting the orchestra that is a complicated investigation. To a person, every agent interviewed for this book surmised years later that without Lano’s leadership, there might not have been a Watergate; they enthusiastically assigned him credit for the Bureau’s success during the investigation.14 At the helm, Lano selected other agents from the squad to assist in his work. One of the agents most crucial to the investigation was Special Agent Daniel Mahan, a twenty-nine-year-old with a knack for interviewing the most difficult of subjects. In the days following the break-in, the burglars said little. WFO sent Mahan to interview them at the DC jail. Even knowing beforehand their ties to the CIA, Mahan was struck by the burglars’ sheer nonchalance about their current situation. He recalled that the DC jail was a “tough, tough place. . . . But these guys didn’t seem to bother. It didn’t bother these people at all.”15 Though most of the burglars refused to talk to Mahan, Martinez agreed. In doing so, he gave away nothing. Instead, he taunted Mahan. When Mahan asked him why he was in the DNC headquarters on the morning of June 17, Martinez replied, “That’s the $64,000 question, isn’t it?” After that, he “stated he did not wish to afford an interview, and thereafter the interview was terminated.”16 Martinez’s brazenness was apparent to another WFO special agent, Paul Magallanes. Magallanes hailed from the South Side of Chicago and

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spoke fluent Spanish. He was a natural fit to interview the burglars, many of whom spoke Spanish as their native language. He recalled that prior to the interview, like Mahan, he knew he was dealing with CIA recruits; that information had been revealed during the Bureau’s initial background checks. Magallanes explained, “We all knew that these Cubans participated in CIA activities, including the Bay of Pigs fiasco. They had done jobs for the CIA consistently. [Some] were CIA operatives.”17 When Magallanes went to speak with Martinez in the jail, Martinez began the conversation by telling Magallanes, “We’re working for the same man.”18 Taken aback, Magallanes asked what he meant. Martinez continued, “You work for the government. We work for the government. And we’re going to be taken care of.”19 Marveling at Martinez’s audacity, Magallanes asked him who would take care of them. Martinez replied, “After this is all over, we’ll be taken care of by the government. And by the man, the president.” Martinez assured Magallanes, “We work for the president. Just like you do. You work for the president.”20 Magallanes bristled at Martinez’s assertion that he worked for the president, firing back, “I don’t work for the president, I work for the Constitution. . . . I took an oath to the Constitution, not to any particular person.” Mahan’s and Magallanes’s interviews with Martinez illustrate the extent to which he, and presumably the other burglars, believed from the beginning that the system was rigged in their favor. They worked for the president, even if indirectly, and they figured that in due course, they would be freed from jail, the burglary swept under the rug. They clearly did not understand the agents assigned to their case.

E. Howard Hunt’s White House Connections

The connection to the White House was also apparent in E. Howard Hunt’s involvement in the burglary. After agents found his check to the country club on the Watergate Hotel’s dresser, they attempted to interview him at his house. Though he admitted to having written the check as well as having worked for the White House, he refused to answer questions about his association with the five burglars. 21 In those days, to speak to the White House, agents had to receive authorization from FBI leadership. By Monday, June 19, a memorandum circulated among Bureau leadership requesting permission for FBI agents to interview Charles Colson, Nixon’s special counsel, about Hunt’s work for the White House. 22 Acting Director L. Patrick Gray, known to agents as “three-day Gray” for all his travel to FBI field

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offices in the early days, was characteristically out of town. The decision of whether to grant agents access to Colson fell to Gray’s associate director, Mark Felt. He sat on the memo for a few days and finally granted his approval on June 22. Permission to interview Colson, however, came with a caveat: any interviews at the White House had to be conducted in the presence of Nixon’s White House counsel, John Dean.23 Special Agents Angelo Lano and Daniel Mahan were assigned the interview with Colson, and Lano protested Dean’s involvement. At that time, he did not know who Dean was, but he knew such a decision to allow White House personnel to sit in on an FBI interview flouted FBI rules. In permitting Dean to attend interviews, the Bureau violated its protocol, as the FBI handbook clearly stated FBI interviews would not be conducted in the presence of attorneys unless an agreement had been negotiated between the prosecutor and the subject beforehand. FBI leadership refused to give. If Lano wanted to do the interview, he had to do it under Dean’s watchful eye.24 Colson, in the presence of Dean, gave Lano and Mahan a cordial interview. He answered every question that Lano asked him about Hunt’s tenure. Toward the end of the exchange, Lano asked whether Hunt had an office at the White House. Colson recalled that he had a small office, about the size of a janitor’s closet, somewhere in the Executive Office Building. Dean expressed surprise at Colson’s revelation and said this was the first he had heard about an office for Hunt there.25 Dean asked Lano why he was so interested in Hunt’s office. Lano pulled a folded piece of paper out of his coat pocket and indicated that it was a subpoena. The folded sheet of paper was actually blank, but Lano had found this to be an effective interview technique in the past. Following his interview with FBI agents earlier in the week, Hunt fled his home in Maryland. No one seemed to know where he was, so searching his White House office for clues seemed like a good place to start.26 Four days later, Lano received word from the White House that John Dean had the contents of Hunt’s office safe ready to pass along to the FBI. Lano sent Special Agents Mahan and Michael J. King to the White House Executive Office to collect them. When they arrived, Dean pointed to a box on the floor and declared, “Well, here it is. It’s been sitting here.” Mahan, incredulous at the impossibility of Dean’s claim, replied, “If that box was in the spot that it’s in since I’ve been coming here, I would have had to step over it every day.” He stared at the box, now sitting at his feet. “That box has not been there. Today is the first day, and you’re lying to me.”27 Mahan was spending nearly every day

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over at the Executive Office, trying to interview White House staff about the Watergate break-in. He had established good rapport with Nixon’s aides. At that moment, however, Mahan’s relationship with Dean began to crumble. Dean said nothing and handed over two boxes to Mahan and King. The White House was five blocks away from the site of WFO, located in the Old Post Office Pavilion at 1100 Pennsylvania Avenue.28 Mahan and King had walked to the Executive Office; there weren’t enough Bureau cars for all of the WFO agents, and Mahan hadn’t been lucky enough to procure one that day. Now, two heavy boxes in hand, he and King had to get them back to the Washington Field Office without the help of a car. Fred Fielding, Dean’s assistant, had written “Top Secret” all across one of the boxes in red magic marker. Mahan carried the marked box aboard a DC Metrobus back to WFO during rush hour, in what appeared to be a major security breach, attracting stares from the other riders the entire way. When they arrived back at WFO, Lano and Mahan opened the boxes. Inside they found a Colt .25 automatic revolver, an attaché case containing State Department cables, and two tubes of ChapStick, which upon closer inspection were actually disguised microphones with wires leading to an unknown transmitter.29 Lano demanded to know how the boxes had come into Dean’s possession. How had Dean, who claimed not to know about Hunt’s office four days earlier, come into possession of the contents of his office safe? Why had he offered no explanation for that coincidence? Lano sent agents back to the White House to interview General Services Administration (GSA) personnel responsible for cataloguing items in the Executive Office. GSA records showed that items were removed from Hunt’s office safe on June 19. When Lano interviewed Colson and Dean on June 22, Dean claimed not to know that Hunt had a White House office. GSA records, however, reflected that Dean himself had ordered Hunt’s office safe drilled open on June 19. GSA sent all the items from the safe to Dean’s assistant, Fielding. Based on the inconsistencies in Dean’s story, Lano knew something more was afoot.

Gray Prioritizes the Investigation

Meanwhile, the Bureau continued its investigation into other avenues of information. Of interest to Lano were Bernard Barker’s address books. He and his fellow agents spent hours exploring the contents of the books, tracing each name and number. By June 26, Lano had

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drafted a teletype for FBI Headquarters, summarizing the names of interest uncovered. One name in particular—Kathleen Chenow— caught the Bureau leadership’s attention. When Lano contacted the phone company to trace the number, the company explained to Lano that the phone number, as listed in Barker’s address book, traced to a phone located in the White House. The phone bill, however, was forwarded to Chenow’s home address in Alexandria, Virginia. This made little sense. Why would a woman in Alexandria pay for a phone in the White House? When Lano wrote his memo on June 26, he requested permission to interview Chenow, but FBI leadership refused its approval. On the official teletype, scrawled in pen in the margins next to the paragraph containing Chenow’s information, is a note that reads, “WFO (Ruhl30 ) hold in abeyance 6/28/72, CB.”31 FBI Headquarters refused to let him speak with her. The note in the margins of the teletype was written by someone with the initials “CB,” likely Assistant Director Charles Bates. Though Lano was desperate to pursue his leads, his own bosses stood in his way. From the beginning of the investigation, Gray put into writing his desire to see the case investigated, but he also asserted full authority to approve all leads, especially those involving other agencies. On June 20, 1972, he sent an Airtel memo to a long list of Bureau field offices, stating, “This will confirm instructions to appropriate offices that all logical investigation is to receive immediate attention under the personal direction of SACs [special agents in charge]32 by as many SAs [special agents] as are needed to insure [sic] absolute thorough, immediate, imaginative investigation is conducted in this case. . . . Bureau is to be aware of all leads.”33 That same day, Gray issued another memo marked “urgent” to the SACs of the Washington, Miami, and Philadelphia field offices. Gray proclaimed in capital letters, “INVESTIGATION TO IDENTIFY MONEY RECOVERED FROM SUBJECTS AT TIME OF ARREST MUST BE PRESSED VIGOROUSLY. IT IS IMPORTANT THAT EVERY EFFORT BE MADE TO IDENTIFY EVENTUAL RECEIPT OF THESE FUNDS.”34 Three days later, Gray sent yet another teletype labeled “urgent” to an even longer list of field offices, stating, “This case is to receive highest priority investigative attention.”35 This emphasis on pursuing all leads is confusing, given the stop placed upon Lano’s requests by headquarters. Gray’s teletypes were clear—pursue all leads—and yet, when Lano asked for permission to interview Chenow and others at the White House, he was told to wait. Lano continued to send requests for information to the Alexandria Field Office for leads related to possible CIA involvement, but the

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Bureau office sent him no responses.36 Lano conferred with his supervisor, WFO SAC Bob Kunkel, at the end of each day to brief him on any progress in the case. Lano had no way of knowing that Bureau leadership was taking the CIA’s answers to his requests for information and refusing to pass them along to him; the Agency’s answers went straight into Gray’s office safe. Less than a week after the break-in, Lano believed that the nonresponses from the CIA indicated that the FBI had stumbled upon a CIA operation. He recalled telling Kunkel on June 21, “It sounds like it’s an operation that came from the other side of the river,” referring to the CIA’s Langley office.37 At the time, Lano had no idea that Kunkel relayed his daily briefs to FBI Headquarters; the daily activity on the case, as well as the suspicions generated by Lano and the other agents, followed a direct and seemingly immediate line to Acting Director Gray and Associate Director Felt.

The Saturday Morning Massacre

Within the first week of the investigation, the Bureau had assigned twenty-six WFO agents to work the Watergate case under Lano’s leadership. On the afternoon of Friday, June 23, WFO SAC Kunkel alerted all the agents from WFO working on Watergate that they were to attend a meeting the next day, Saturday, at 11 a.m. with Acting Director Gray. Such a meeting was unusual. Agents rarely, if ever, met with the acting director and never on a Saturday at such short notice. The agents each received calls instructing them to arrive at SAC Kunkel’s office an hour before the meeting with Gray. When they arrived, Kunkel said he had no idea why Gray had called such a meeting. Magallanes recalled Kunkel telling the agents, “I don’t know why we’re going to the director’s office. But I just want to tell you—don’t embarrass me.”38 The agents marched in unison down Pennsylvania Avenue from WFO to FBI Headquarters, wearing their best suits. Mindermann recalled that they looked like “Mormon missionaries.”39 As they walked, they wondered aloud why they had been summoned to this meeting. Perhaps, they surmised, the director planned to present them with an award for their work on the case. When they reached headquarters, a secretary summoned them to Gray’s office. Gray was using Hoover’s old office, which comprised an outer office with a conference table and an inner office intended only for Hoover. The agents gathered around Hoover’s conference table and waited. Gray appeared, marching into the office with crew-cut hair and stiff military posture, his face a deep red. He

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said no welcome to the agents but instead approached Hoover’s rostrum to explain that he had received a call the day before from Sandy Smith, a reporter for Time magazine. Smith had given him information on the Watergate investigation that could only have been leaked by one of the gentlemen in the room. Smith planned to publish an article saying that Gray had ordered a forty-eight-hour time limit on the investigation; in doing so, he would accuse Gray of trying to sweep the case under the rug by ending it so quickly.40 Glaring at the agents, Gray made his reason for the meeting known. He stated, “I want that agent, or those agents, to step forward. I want their credentials, their weapons, on the table.” The room fell silent; no one moved. Any expectations of praise the agents held prior to the meeting evaporated. Gray was irate, and he planned to fire at least one agent before the meeting ended. No one had seen this accusation coming. Kunkel shuffled his feet and tried to interject a comment, but Gray interrupted him, yelling, “Kunkel, are you the person who leaked this information?” Kunkel stammered and shook his head. “No?” Gray asked. “Then step back!”41 Mindermann recalled, “Witnessing my SAC, a high Bureau official, demeaned outright in front of his Agents, I felt a sickening feeling sweeping over me.”42 The acting director continued, “I may not be the investigators you are, but I know that one of you has leaked to the press.” Then he launched into a tirade of insults, calling the agents “yellow-bellied singing canaries.”43 He continued his rant, screaming, “I’m a naval captain. I graduated Annapolis. I graduated Georgetown Law School. You won’t fool me!”44 Beyond the name calling, the agents were astonished to witness the acting director questioning their integrity, all while standing at the head of Hoover’s conference table. Magallanes explained, “FBI agents are investigated up and down, sideways, every which way with regard to their character, integrity, honesty. When we become FBI agents, that’s who we are. We are people the public can trust.” That morning, the agents realized their own director no longer trusted them. Gray ended his rant, threatening, “If I find out which one of you did it, I will fire you immediately.” Magallanes recalled Gray’s demeanor at that moment, saying, “His face was red and the veins in his neck were sticking out. He was shaking with anger. And, you know, we were just dumbfounded. I mean, we were just frozen.”45 Lano never believed for a second that any of the agents working on the Watergate case had leaked information to Sandy Smith or any other reporter. If they had, they would have jeopardized the very case they were working on, pursuing leads day and night. Before the agents

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left the conference room, Gray demanded that Lano send him a report on the investigation by the following Monday. Lano knew that Gray’s request was logistically impossible. And yet Lano was a mere agent trying to convey to the new acting director at the end of an angry rant that his demand could not be satisfied; he walked a tightrope. The investigation spanned multiple field offices all over the country. At a minimum, it would take a week to piece together the disparate information from the various offices. Lano promised Gray a report in seven days. Reluctantly, Gray agreed to Lano’s timeline, but he also demanded future reports from Lano and all field offices every seven days thereafter. Gray then dismissed the agents and disappeared into Hoover’s inner office. The meeting with Gray enraged the agents in attendance. Nearly fifty years later, those who had been present refer to the incident as the “Saturday morning massacre.” They recount the story with great emotion, their voices quaking as they recall insults that Gray hurled at them. The walk down Pennsylvania Avenue back to WFO that day was nothing like the jovial, expectant walk to Bureau headquarters of an hour before. Their heads down, the agents ruminated on Gray’s accusations. Lano recalls an older agent named Pinky McGivern shaking his head in disbelief. He said, “I’ve been with the Bureau for forty years, and no one’s ever challenged my integrity. It’s not going to happen again.”46 For Mindermann, that moment signified a turning point for the case. The agents felt angry, yes, but Gray had inadvertently ignited in them an even stronger determination to solve the case.47 He had also alerted them to a traitor in the ranks. Someone was leaking information about the Watergate investigation to reporters. This betrayal would continue to define the investigation, as leaks sloshed continuously from the agents’ FD-302s (the internal Bureau paperwork describing their interviews) to the front pages of newspapers. This incident reveals much about Gray and the Bureau. On June 24, Gray had been acting director for only a few weeks. His physical office was still Hoover’s in many of the agents’ minds. Lano recalled, “From what I learned over the years, the higher ups in the Bureau never sat down and discussed with L. Patrick Gray how the Bureau operates.”48 Another agent, John Clynick, worked at headquarters and saw Gray from time to time. He recalled, “Poor Pat Gray didn’t know diddily—these are my impressions—didn’t know the political schemes, the workings of the FBI, the ethics of the FBI, how the field agents worked.” 49 He recalled that Gray’s entry to the Bureau came as a shock, and the career agents working at headquarters were slow to

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adapt the organization’s longtime culture. Clynick explained, “It was as though Hoover was still there, except that we had a brand-new person who didn’t know how the train ran.”50 Gray’s lack of understanding of the Bureau is apparent in his June 24 meeting. Gray entered Hoover’s conference room that day as a submarine commander, ready to give his troops a military dressing-down. No other Bureau administrators, with the exception of Assistant Director Charles Bolz, accompanied Gray into the conference room. Gray admitted to his agents during his rant that he was not an investigator. He demanded a report from Lano without understanding the layers of protocol necessary to create such a document. On top of all that, he managed to deliver his agents the ultimate insult by questioning their integrity. It was his first and only meeting with the Bureau agents working on the Watergate investigation, and it is unlikely that the meeting could have gone any worse. Despite Gray’s show of anger, the Bureau continued to sit on Lano’s requests to interview certain individuals. Even as Gray seethed at media reports accusing him of trying to kill the case, he refused to move the case along.

Lano’s Memo to Headquarters

Mere days after Gray’s tirade, Lano and the other agents found themselves stuck. They had leads in hand, all connected to the White House, but headquarters refused to authorize the interviews. Lano had formally requested permission to interview multiple people. Most importantly, he needed to interview lawyer Manuel Ogarrio about CREEP funds that had passed through a Mexican bank and eventually made their way to the Watergate burglars; he needed to speak to White House employee Kathleen Chenow about the mysterious White House phone billed to her Alexandria apartment; and he needed to speak with several current or former White House personnel, including former attorney general John Mitchell.51 The grand jury’s slate regarding the Watergate investigation was empty, and FBI agents had nothing of importance to send to them. Lano knew this because he spoke daily with Assistant US Attorneys (AUSAs) Earl Silbert and Don Campbell. They had let Lano know that they needed more evidence from the Bureau. Until they got it, the case would be stalled. On June 29, Lano drafted an urgent teletype to Gray explaining why the FBI needed to conduct several key interviews immediately. The Bureau had to connect Alfred Baldwin, the person who had provided

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support to the Watergate burglars by serving as a lookout at a Howard Johnson Inn across the street, with CREEP’s funds. Lano explained in the memo, “In order for the Washington Field Office to conduct a proper investigation of this matter, and for proper handling of the matter before the federal grand jury, the issue of who pays or paid Baldwin, could only be resolved by an interview with former Attorney General John Mitchell and necessary support personnel.”52 Lano explained the need to interview additional White House personnel about E. Howard Hunt’s employment in the White House, writing, “[AUSA Silbert] desires to call Everette Howard Hunt before this same federal grand jury. But prior to doing this, it is imperative that Mr. Silbert be armed with all the facts concerning Hunt’s employment at the White House, and in particular, his relationship with Dave Young and George Gordon Liddy. The only way Mr. Silbert could have this information is from a thorough and penetrative interview of Mr. David Young of the White House.”53 David Young worked for Nixon’s domestic counsel directly under Egil Krogh, assistant to John Ehrlichman, the assistant to the president for domestic affairs. Though the Bureau did not know it at the time, Young and Krogh had established the White House Special Investigations Unit, popularly known as the “Plumbers.”54 The Plumbers unit employed both E. Howard Hunt and another of the Watergate burglary masterminds, G. Gordon Liddy. Lano and the Bureau had identified the key individuals with knowledge of the burglary. They suspected they had done so, but they could not confirm their hunches without evidence. And yet the Bureau itself refused to grant Lano permission to conduct these key interviews. To provide evidence to a grand jury to prosecute anyone other than the five burglars for the Watergate break-in—to show that this was more than a mere burglary of the Watergate complex— Lano needed the Bureau’s permission to follow his leads. On June 29, hours before Lano drafted his memo, CREEP fired G. Gordon Liddy. That action in itself was suspicious, but Lano also knew that Liddy had ties to Chenow; he needed to determine how the two were associated. He explained,

Extensive investigation by WFO regarding toll calls of Hunt and investigation of address books of Barker and Martinez, identified a Kathleen Chenow, former Secretary to David Young at the White House. Both books indicated that George (last name unknown) could be reached at one number which was Chenow’s and another number which turned out to be George Gordon Liddy. The Chenow number was not installed at

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Chenow’s residence in Alexandria, Virginia, but in Room Sixteen of the Executive Office Building, which is Young’s office.55

In the last sentence of his memo, Lano issued his ultimate warning: “Delays in these interviews will delay present action of a complete case to the grand jury.” Lano’s memo is cogent and persuasive in tone. Perhaps not recognizable on the face of his formal and bureaucratic teletype is the extent to which he crafted a controversial accusation against the Bureau. After he drafted the teletype, he took it to WFO SAC Bob Kunkel to sign. Although Kunkel agreed with Lano’s assertion that the case needed to move forward, he refused to sign such a strongly worded memo. Lano recalled, “I returned to my desk and thought about my next move. Before I departed that evening, I initialed the message [with Kunkel’s initials] and gave it to the night personnel to send out.”56 The next morning, Lano told Kunkel of his decision to send forth the memo. To his surprise, Kunkel did not appear upset.57 Despite Lano’s courageous effort to move the investigation along, the memo sat at headquarters for three days, unanswered and unacknowledged. During that time, Gray was traveling to FBI field offices around the country, rallying local agents by detailing for them the great things he had planned for the FBI. When Gray returned to headquarters on July 2, he found Lano’s memo on his desk. Upon reading it, he was not happy. He scrawled in tidy cursive handwriting at the end of Lano’s memo, “I want to know specifically what aspects of case have not been resolved because of delays in which interviews? Further, why is language of this sort used in an official telegram?” 58 The next day, Gray called a meeting at headquarters with Lano, Kunkel, Assistant Director Charles Bates, and Associate Director Felt. Gray waved Lano’s teletype in the air, demanding to know who had the audacity to send such a thing to the acting director; the format of FBI reporting was such that the report did not contain the name of its author. Hardly two weeks had passed since Gray’s tongue-lashing of the Watergate agents. Lano looked around the room, but everyone remained mute. Reluctantly, he spoke up, admitting that he had authored the memo. When Gray demanded to know why he had written it, Lano repeated the reasoning given in the memo, explaining that everyone’s work had been held in abeyance by headquarters and that the grand jury needed more information from the Bureau. He was simply trying to advance the investigation.59 This incident regarding Lano’s memo sheds light on the workings of the Bureau during the Watergate investigation. It highlights the chaos

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inflicted on the Bureau by Gray’s constant travels after he accepted the acting directorship. Gray wrote, “I needed to get out and see the fiftynine field offices, and they needed to see me. I determined to do it.”60 Yet, from the agents’ perspective—from the perspective of those on the ground working the Watergate case at WFO—Gray’s absence had a critical impact on the investigation because so much depended upon his approval, which he simply was not present to give. Perhaps most significantly, the dysfunction of headquarters in the absence of Gray raises the question of who fulfilled Gray’s duties in his absence. That person was Gray’s second-in-command and associate director, Mark Felt. Lano summarized his view of the investigation’s holdup, saying, “I do not believe it was Gray holding this up at that time. . . . He left Felt in charge, and Felt did nothing. Felt just let it lie there until Gray returned.” This story complicates the popular narrative about Felt. Historians and journalists have looked at him differently over the years, but most accounts boil down to his being either a noble whistleblower or a selfish, slighted man intent on getting revenge against Gray. The first narrative stems largely from his Deep Throat persona, as depicted in the movie All the President’s Men. In this depiction, he is presented as an “honorable, selfless whistleblower intent on exposing the lawlessness rampant in the Nixon White House.”61 Taking a contrary view, journalist Max Holland has written extensively about Felt and concluded that instead of being a hero, Felt acted in his own self-interest. Vindictive and aggrieved at being passed over for the directorship, he wanted Gray to fail from day one of his tenure as acting director. He believed he was the rightful heir to Hoover and instead found himself playing second fiddle to someone he thought never should have been named acting director in the first place. Felt established contact with the Washington Post long before the Watergate break-in. The confluence of Gray’s appointment as acting director and Watergate merely inspired him to intensify his leaks to the media. Holland reasons that “Felt didn’t help the media for the good of the country, he used the media in service of his own ambition.”62 Absent from the narrative regarding Felt, however, is the effect that his behavior had on the agents working under him, particularly those working the Watergate investigation. Felt had long had a reputation within the Bureau as “Hoover’s henchman.”63 He was quick to punish agents, and they largely feared him. Prior to Felt becoming Gray’s righthand man, agents steered clear of him. Once he took over as associate director in the days following Hoover’s death, they perceived his inaction. Decisions on the Watergate investigation would move their way up the chain, only to reach a standstill at Felt’s desk.

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In the early days of the Watergate investigation, Felt put a halt on some of the most important leads. In doing so, he impeded the FBI’s investigation, albeit temporarily. A devil’s advocate argument in Felt’s favor might say that he withheld permission for Lano’s interview requests out of respect for Gray, so that his boss could make the final decision. That reasoning, however, contradicts everything known about Felt. He had little, if any, respect for Gray, and it appears that none of his actions were intended to support the acting director. At this early point in the investigation, Felt was likely testing which way the wind would shift. He wanted Gray to appear inept, but if he allowed him to appear too maladroit, perhaps he would go down with him. As he methodically plotted his next move, he refused to act in the meantime. When Lano wrote his memo to pursue critical leads on June 29, Felt received it, but there is no trace of Felt’s characteristic large F on the document. Lano’s memo complicates an already complex narrative about Felt. Not only was Felt acting in his own best interests in service of his limitless ambition, but he was willing to stall a critical investigation at a desperate moment in order to make Gray look bad. Any notion of Felt as principled, as doing what was best for the Bureau, dissipates on examination of his actions toward the Watergate agents and the effects of his early decisions on the investigation. Felt also represented the “old guard” at the FBI—those agents at headquarters who had spent their entire careers under Hoover and supported his style of leadership and his method of law enforcement. Clynick, who worked at headquarters when Hoover died and when Gray replaced him, recalled that Hoover’s death signaled the beginning of the Justice Department’s major restructuring of the FBI and slow replacement of the old guard with a “new guard.” He explained, “They were getting rid of the Hoover FBI.” 64 Clynick believed that in the days following Hoover’s death both the White House and the Justice Department were trying to lessen the Bureau’s reach to ensure that no director ever amassed the power that Hoover held over past presidents and attorneys general. Unlike the agents working the Watergate case, Clynick had a different perception of Felt’s motivation for his leaks. In his view, Felt sensed the Justice Department’s and White House’s attempts to clean house at Hoover’s Bureau, and he used his leaks as revenge to undermine Nixon. Clynick explained, “[Felt] saw that we were being subverted. They were trying to screw over our investigation and tarnish our record, and he did not want that to happen.”65 Whatever Felt’s motivations, his actions directly impeded the early days of the FBI’s Watergate investigation.

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By July 3, Lano knew with whom he was working. The hierarchy above him was adrift. John Ruhl, supervisor of the C-2 Squad, was a “by-the-book type of guy,” seen by his squad as a “fraidy cat.”66 The SAC of WFO, Bob Kunkel, was similar. By all appearances, he did not want to anger FBI Headquarters or do anything that would upset someone in charge; after all, he had become SAC by playing the political game and keeping headquarters happy.67 His refusal to sign Lano’s memo, even when he agreed with its message, reflects such weakness. Felt’s inaction and indecisiveness when faced with Lano’s memo illustrate that he was far more interested in advancing himself rather than the actual investigation. Gray’s frequent absences, his lack of understanding of all things Bureau related, and his anger that anyone would make him look bad indicated a rudderless leader. Lano and the rest of the C-2 Squad were, in effect, leaderless during the Watergate investigation.68 In some ways, this lack of leadership was mitigated by the Bureau’s own organizational structure. The FBI, spread across the country through its fifty-nine field offices, had to afford agents a wide latitude of authority to work their cases. Mindermann likened this arrangement to agents working as “independent contractors.” He explained, “They worked for the Bureau, but they had very nominal supervision.” Such independence was crucial, considering the many judgments an agent had to make to work a case from start to finish. Though Hoover is largely remembered as a powerful leader of the Bureau, he rather ironically also imbued his agents with the wide authority necessary to work a case, no matter where they resided. Mindermann remembers this autonomy among agents as the Bureau’s real strength. In his years as an FBI agent, he perceived that effective agents acted as if there were no supervision from the field office, let alone headquarters. They barely acknowledged their supervisors and at times even defied them.69 In some ways, the lack of leadership at headquarters during the Watergate investigation did not matter. After all, the culture of the Bureau was such that agents were used to running their own cases with very little intervention from management. The Watergate investigation, however, brings to light an anomaly in Bureau culture in this particular case. Though Lano and the C-2 Squad could have operated separately from headquarters, they were forced to deal with it time and again, as they required approval to interview White House personnel. In the days that followed, Gray finally authorized Lano to interview Mitchell and Ogarrio. 70 But he secretly notified Dean about Lano’s wish to interview Chenow about the White House telephone. Incidentally, Chenow was in England at the time. Instead of allowing

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the FBI attaché office in London to interview her, Dean insisted he would have Chenow brought back from London to be interviewed by agents in Washington, DC. Lano recalled, “What [Dean] did was bring her back and prep her not tell the FBI” what she knew.71 As Gray leaked information about the FBI’s investigation to Dean and the White House, Felt began collecting FD-302s from the C-2 Squad to pass along to media sources.72 Lano’s case had finally begun to move again, but information poured from the Bureau.

CREEP’s Money Trail

By the time Gray started approving requests for interviews, another person of interest had come to light: G. Gordon Liddy. On June 28, Special Agent Mahan approached Liddy, a former FBI special agent, at his CREEP office to ask about his possible involvement in the Watergate break-in. By this point, agents knew that E. Howard Hunt had traveled under the alias “Warren,” with someone operating under the alias “Leonard.” Agents suspected that “Leonard” was indeed Liddy’s alias.73 Liddy refused to talk. The day after Mahan attempted to interview Liddy, CREEP unceremoniously fired him.74 As the FBI interviewed people who knew Hunt, they also collected stories about Liddy; time and again, Liddy and Hunt had worked and socialized together. One woman recalled a dinner that she attended with Hunt, Liddy, and her female friend. She described Liddy as “quite intense and a little wierd [sic].”75 She recalled that Liddy bragged to the table about his powerful mind. To prove his point, he asked one of the women to hold a cigarette lighter under his left hand. He claimed that even as the flame burned his skin, his mind could overcome the pain. The FBI report summarized the woman’s observation, writing she “noted that several layers of skin were burned away and she believes his nerves in the palm of his hand were affected. However, he showed no pain and upon conclusion of this act, wrapped his hand in a cloth napkin.”76 Liddy’s eccentricities aside, his involvement with CREEP had aroused suspicion among agents. They suspected that CREEP had a connection to the burglary, but they did not have the evidence to prove it. If they wanted to move the investigation forward, they had to tie CREEP’s involvement to the Watergate burglary. CREEP’s participation was essential to establishing a link between the Watergate burglary and the White House. And yet agents had difficulty getting CREEP employees to talk candidly with them because the organization’s

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lawyers insisted upon sitting in on the interviews. The organization refused to turn over its financial records to the Bureau, claiming something might happen to them.77 Once again, Gray had caved by allowing CREEP attorneys to sit in on employee interviews. Magallanes recalled interviewing CREEP employee Penny Gleason, James McCord’s assistant security officer, on June 30. When he went to her office to conduct an interview, Gleason initially offered terse replies—nothing meaningful and certainly nothing of the sort that would advance the investigation. Ken Parkinson, CREEP’s in-house counsel, sat behind Magallanes and observed the entire interview. As Gleason addressed her answers to Magallanes, Parkinson peered at Gleason from behind the agent, assessing her every response. Magallanes, on the other hand, could feel Parkinson behind him, sensing as he leaned forward to read Magallanes’s notes over his shoulder. By the end of Gleason’s interview, it appeared that she had little to offer to the Bureau’s investigation. CREEP seemed like a dead end. The next day, Magallanes received a call at his home from none other than Penny Gleason. She was calling him from a payphone; the Bureau had patched her through to Magallanes’s house. She told him she was afraid she was being followed and that she had a lot more information to give to him.78 She explained that she had been reluctant to provide him those details the day before with Parkinson in the room; she did not want to lose her job. She insisted that in order to speak with her, Magallanes would need to pick her up in his own vehicle, not a Bureau car. Eager to hear what she had to say, Magallanes agreed immediately. He and another agent, Charles Harvey, hopped into Magallanes’s car and drove to find Gleason in the middle of downtown Washington, DC. It was July 1, a hot summer day, and for two long hours, they drove around in Magallanes’s car, listening to the details that now poured forth from Gleason, the car simmering over the asphalt. As her interview continued and Magallanes’s car became too hot to bear under the afternoon sun, they booked a room at a nearby Holiday Inn, and Gleason talked for seven more hours. She detailed for them the chaos at CREEP on the morning of June 17, hours after the Watergate burglary. The office was panicked about the break-in. Watergate burglar James McCord had worked for CREEP. His wife called Gleason that day in tears to inquire about an attorney. Robert Odle, CREEP’s director, went around the office insisting that any photos of James McCord be taken down, while secretaries shredded McCord’s files. G. Gordon Liddy appeared briefly in the office, spoke to no one, and then disappeared.

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Three days after the burglary, another of CREEP’s secretaries invited Gleason for an after-work drink at a nearby hotel bar. Over cocktails, the secretary, Martha Duncan, confided in Gleason that she had been asked by the office’s “higher echelon” to spy on Gleason in order to gauge how much she knew about the burglary. Upon hearing Duncan’s confession, Gleason concluded that she was no longer safe. She suspected that CREEP had tapped its own phones, and she believed someone from the office was following her. Though she was clearly scared, she provided game-changing information to the Bureau. Magallanes could hardly believe his luck. After weeks of futile questioning at CREEP, someone had confirmed the Bureau’s suspicions. Gleason’s interview also indicated that Watergate was not a CIA operation but rather carried out by those working in CREEP. After hours of interviewing, Gleason suggested that her colleague Judy Hoback, an accountant for CREEP, knew even more than she did. She promised that she would do her best to convince her to talk to the Bureau.79 Several days passed without a call from Hoback. During that time, Magallanes’s mind raced. Had Gleason gone to the White House and confessed what she had told the FBI? Had she been fired? Had the White House gotten to Hoback first and changed her mind? Finally, after several days, Gleason phoned Magallanes to let him know that Hoback would speak with him under one condition: she first wanted to get to know him and his fellow agent over dinner at a nearby hotel. Hoback was a single mother with a young child to support; if she was going to put her entire career on the line, she wanted to make sure that she trusted the FBI agents first. Magallanes agreed to her condition at once and asked his colleague Mindermann to come along for the interview at the Key Bridge Marriott.80 Both Gleason and Hoback were waiting for the agents in the hotel cocktail lounge. The four sipped drinks over small talk. Magallanes explained, “We went out and had dinner with her and talked about everything except the Watergate.”81 Mindermann felt apprehensive the longer the small talk continued. He explained, “This gettogether was a screening—Paul and I were being tested and evaluated— and we moved forward only if we passed muster.”82 As dinner ended and the conversation waned, Hoback said, “Okay, I trust you. Let’s go to my house, and I’ll tell you everything I know.”83 Mindermann and Magallanes said good-bye to Gleason and followed Hoback to her house in Bethesda, Maryland. The agents listened to her until 3 a.m. as she recounted everything she knew about CREEP’s accounting. Hoback helped disperse funds, specifically cash, to CREEP employees. Mindermann recalled, “Judy [Hoback] detailed substantial,

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specific amounts of cash taken out of a large walk-in safe, in an atmosphere that suggested, ‘Just walk in and grab a handful . . . whatever you need.’ She had great recall of specific dates, people, and amounts. ‘Because I’m the accountant, I know what goes on here, where this money goes, and to whom it’s paid: McCord and Liddy.’”84 The entire interview felt like a triumph to Magallanes and Mindermann. With Hoback’s information, they could trace CREEP money to the Watergate burglary. Though the interview ended in the early morning, they raced back to WFO and typed out their interview notes, which were fresh in their minds.85 Hoback gave Magallanes and Mindermann extremely sensitive information. A summary of the Watergate case distributed to Bureau leadership on August 3, 1972, lists some of the information provided by Hoback, with “(protect identity)” next to her name. The bottom of the document contains many initials, including Felt’s notoriously large F.86 Felt saw the document might be significant, as Washington Post reporters Bob Woodward and Carl Bernstein published a front-page story on September 29 that closely mirrored the information given to Magallanes and Mindermann by Hoback. 87 The article never mentioned Hoback by name but contained information identical to the Bureau’s FD-302 summarizing Magallanes’s and Mindermann’s interview of her. The day the article was published, Magallanes received an angry phone call from Hoback. She was frantic, but he recalls more so that she was “pissed,”88 reminding him that he promised to keep the information she provided confidential. He recalled her saying, “You told me you were going to take care of me. You told me nobody was going to know about it, and now I’m reading it in the Washington Post!”89 Magallanes found a copy of the day’s paper and read the front page. Hoback was correct; it was essentially the FD-302. He tried his best to alleviate Hoback’s concerns for her safety, explaining, “It wasn’t me. I don’t know who it was, but I think it came from the Justice Department.”90 Still, she had trusted them, and now she believed they had let her down. At the time, Magallanes could not imagine that the leak came from within the Bureau. He also could not shake the guilt of having disappointed Hoback. Perhaps Felt leaked information from the Bureau to reporters Woodward and Bernstein, but perhaps not. The Bureau’s relationship with Hoback is full of ambiguity. Years after Watergate, Hoback admitted that she spoke freely with Bernstein and Woodward, multiple times, over the course of the investigation.91 Though FBI agents Magallanes and Mindermann characterize Hoback’s interview as a major turning

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point in the case, Woodward and Bernstein would say the same of her involvement in terms of their coverage. After Felt’s identity as Deep Throat was revealed to the public, Woodward and Bernstein credited the information from Hoback as more valuable than that provided by Felt. In 2012, Woodward told CBS’s Charlie Rose, “There were stages when [Felt] really helped us, but the real turning point in the coverage of Watergate was when Carl [Bernstein] found the bookkeeper [Hoback]. The bookkeeper had the details of the money and who controlled it and who got the money. You look at All the President’s Men, I really think the bookkeeper is the key source.”92 In 2012, Hoback, her surname then changed to Miller, recounted to NPR the time when Bernstein showed up at her front door. She said, “I wanted to say something but was afraid to say anything, especially to reporters. But I felt frustrated that I didn’t think the truth was coming out.”93 Exactly when and why Hoback provided her information to the Washington Post reporters is unknown. But her story illuminates the Bureau’s frustrating competition with the press for breaks in the Watergate case. As FBI agents interviewed witnesses, Woodward and Bernstein were hot on their trails—both the agents’ and the witnesses’—often interviewing the same witnesses days later and procuring the same information. Whereas the FBI had to keep the results of its interviews confidential in order to build a case for the grand jury, the Washington Post and other newspapers were free to publish the spoils of their investigations on their front pages mere hours after procuring the information. Hoback’s comment to NPR, about her frustration that nothing was being done, could very well indicate her frustration with the Bureau at the time. After she made everything known to Magallanes and Mindermann, they took the information back to the Bureau and reported it up the chain. No doubt, the information she provided the Bureau became critical to their case; they used it to indict Hunt and Liddy, along with the five burglars, on September 15, 1972.94 Until the indictments became public, however, Hoback would not have been privy to any developments in the investigation after her July encounter with Magallanes and Mindermann. In the days after her interview, nothing appeared to have changed. Hoback took a risk in telling FBI agents what she knew about CREEP, and perhaps she became frustrated when she could not see the effects of the information she provided on the overall investigation. The missing details of this story—primarily, why Hoback chose to talk to Woodward and Bernstein—leave any explanation subject to speculation. Talking to Woodward and Bernstein only to see her information

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published in papers shortly thereafter had to feel like something was finally being done, and at least the public knew about CREEP’s involvement. Woodward’s notes from that time confirm that he and Bernstein spoke with Hoback.95 The timeline, however, of when Hoback began talking to Woodward and Bernstein is unclear; even Woodward and Bernstein’s notes from their interviews with Hoback are undated.96 Nevertheless, the pieces of this story that we know for sure—that Hoback started as a source for the FBI, only to later become a source for Woodward and Bernstein—complicate what we know about the Bureau and the press during Watergate. In addition to Felt’s leaks, one of the Bureau’s most valuable sources may have lost patience with FBI agents as she willingly became an informant for the media. Magallanes knew that Hoback spoke with Woodward and Bernstein during the investigation. Of her interaction, he recalled, “She advised that Bernstein knocked on her door, and when she realized it was WAPO, she tried to close the door, but Bernstein had his foot on the door, and she couldn’t close it. She relented and let him in. She was scared to talk with him, but Bernstein convinced her he was a good guy, and she started talking. I don’t believe she had a continuing relationship with Woodward and Bernstein.”97 Today, Hoback remains in touch with Magallanes and Mindermann. They exchange annual Christmas cards. In April 2018, Magallanes and Mindermann traveled to Hoback’s home for a reunion. Mindermann recalled, “We enjoyed meeting Judy’s family and revisiting our Watergate days. Judy repeatedly mentioned that she still regards us as her ‘guardians.’”98 In a follow-up email about Hoback’s contact with Woodward and Bernstein, Mindermann wrote, “At no time was I aware of even the slightest criticism by Hoback concerning anything involving her interaction with us. . . . Between her initial interview with Paul [Magallanes] and I and that WAPO article, I am totally in the dark about anything occurring.” 99 He continued with a description of the 2018 reunion, writing,

If Hoback had any harsh feelings toward Paul [Magallanes], she sure hid it well in our days together in April 2018. Hoback and [Magallanes] shared many a pleasant hour during our reunion visit. In the mentioned period no one, neither Judy or her immediate family members, expressed anything but thanks and positive feelings about [Magallanes and myself], FBI handling and interactions. Most pointedly, not the slightest hint of even mild, general dissatisfaction or criticism was voiced about improperly handling the Watergate investigation.100

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Given what is known today, Hoback’s story raises more questions than answers. Her admission that she willingly cooperated with Woodward and Bernstein and their acknowledgment that she was perhaps the most valuable source in their Watergate investigation muddy the narrative of Felt as the ultimate Bureau leaker. Certainly, Felt provided information to the Washington Post, but Woodward and Bernstein were also very adept at working their own sources, even those that Bureau agents believed to be exclusively theirs. On the other hand, the story of Hoback’s shift toward Bernstein and Woodward and away from the Bureau, however slight, demonstrates behavior typical of FBI informants. Witnesses and informants are known to reveal information to multiple parties, even after agents ask them to remain exclusive to the Bureau. On that level, her behavior is perhaps less surprising.

Lano’s Encounters with Woodward and Bernstein

As leaks poured forth from the FBI’s investigation, the agents found their credibility called into question by those from whom they sought information. Lano recalled, “People lost confidence in us.” He continued, “Because of what was leaking, being leaked to the press, people would say, ‘no, I’m not going to talk to you.’” Even as agents pleaded with informants and sources, promising that they would not leak the information, no one could deny that the information continued to siphon out of the Bureau and into the media, time and again. As Woodward and Bernstein chased after the FBI’s sources and spoke with Hoback, they also contacted Lano and AUSAs Earl Silbert and Don Campbell to mine for information. On October 10, Woodward and Bernstein published an article titled “FBI Finds Nixon Aides Sabotaged Democrats.” Midway through, the article stated, “Asked by the Washington Post to discuss [Donald] Segretti [an attorney who worked for CREEP and engaged in extensive acts of political sabotage against Democrats], three FBI and Justice Department officials involved in the Watergate probe refused.”101 An FBI report written in response to the Washington Post article explained the officials’ encounters with the reporters. On October 3, Bernstein tried repeatedly to interview Lano, Silbert, and Campbell. He asked Lano whether the names “Segretti and Kalmbach [a fund-raiser who procured funds for undercover operations carried out by White House aides] meant anything to him and whether the use of secret campaign funds by these individuals was a ‘surprise.’”102 Lano told Bernstein that he could not comment on anything

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related to Watergate; doing so would be like asking Bernstein to give up the names of his sources. Bernstein shot back that Lano was correct— he could not name his source; however, he dangled a proposition before him, claiming “he could furnish SA Lano with a ‘good clue.’”103 His curiosity aroused, Lano reported Bernstein’s offer to WFO SAC Kunkel. The offer wound its way up the headquarters chain all the way to Felt, who told Kunkel to let Lano talk to Bernstein to find out where he was getting his information.104 A Bureau report details Lano’s meeting with Bernstein. He met him somewhere near the Treasury Building. As soon as Bernstein introduced himself to Lano, he began his attempts to interview him, probing the agent for information regarding the investigation. Lano ended Bernstein’s questioning immediately and “pointed out his only purpose in meeting with Bernstein was he had promised to give a clue as to his source of his information.”105 Bernstein stopped his questioning; it became clear he had dangled a promise before Lano that he had no intention to keep. Bernstein would only tell Lano, “I have a very high source”; he refused to provide a name or identify the agency where the source worked.106 Lano reported the meeting to the WFO SAC, thinking his encounter with Bernstein had ended. In the wake of Bernstein’s attempts to contact Lano and AUSAs Silbert and Campbell, John J. Sirica—the judge overseeing the Watergate trial of the five burglars, Hunt, and Liddy—issued an order on October 4 prohibiting the “Department of Justice, the defendants, and their attorneys from making any statements concerning this case.”107 Anyone working the investigation, including Lano, who gave information to reporters would be held in contempt of court, meaning possible imprisonment. Judge Sirica was serious about his upcoming trial. Knowing that leaks kept springing from somewhere within the Justice Department, he took cautionary measures to insulate the trial from any spillage. Late in the evening of October 23, Bernstein reached out to Lano again. Lano received a telephone call from the WFO night supervisor at around 10:30 p.m. He relayed that a man by the name of “Carl” wished to speak urgently with Lano. Lano recalled, “Since I had previously been authorized to contact Bernstein for the purpose of ascertaining his source of information, I decided to return his call.” 108 On this occasion, Lano operated under Judge Sirica’s order; while FBI agents were never to leak to reporters, he now had an explicit mandate from the judge overseeing the Watergate trials not to provide any comments. Even with headquarters’ authorization, any mistake on his part would have serious consequences. Lano dialed the number from the night supervisor, and Bernstein answered the phone. Lano asked him what he

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wanted. Bernstein explained that he was in a bind over a story that he was struggling to finish. He needed Lano to confirm a name for him. Lano told Bernstein that he would not comment one way or the other regarding his story. Bernstein persisted, replying that he had always maintained the FBI had done a “fantastic job” in the investigation. Lano replied, “I told him he was right, that much I would confirm.” Bernstein launched into a story, explaining to Lano that he was writing about CREEP treasurer Hugh Sloan, whom he claimed AUSA Silbert had interviewed. During the interview, Sloan allegedly gave Silbert a list of five names of people with access to a slush fund. Bernstein insisted that Sloan told Silbert that in addition to John Mitchell, Herbert Kalmbach, G. Gordon Liddy, and Jeb Magruder, H. R. Haldeman (Nixon’s chief of staff) also had access. Lano asked Bernstein how he knew what Sloan said or did not say. Bernstein countered, asking Lano why Sloan had not told these details to the FBI. Lano replied that he was not going to tell a reporter who the FBI had interviewed. Then he lit into Bernstein, telling him he resented his attempts to obtain information from official sources. Bernstein tried to interrupt, but Lano persisted. He assured Bernstein that one way or another, the FBI would discover his source once the investigation ended. Once more, Bernstein countered with a simple inquiry. He assured Lano that he only needed to know if he had interviewed Sloan, and if so, why hadn’t he mentioned Haldeman? Lano replied that he would not comment. Bernstein then proposed a new approach. If Lano could not use words to answer his question, perhaps he could confirm his lead through silence. Bernstein explained, “All you have to do is listen, and your silence will tell me that I am right.” Lano immediately refused, explaining, “I have a wife and four children to think of, and I am not permitted to disclose any information.” Bernstein replied, “Yeah and some people have cats and dogs.” Lano reminded Bernstein of Judge Sirica’s order—to disclose anything would put Lano at risk of being held in contempt of court. Lano said, “I told him that my comment to him meant what I said and that he should draw no conclusions from my refusal to comment.” Then Lano tried to confuse Bernstein by giving a nonanswer. Haldeman’s first name was Robert, which Lano knew. To avoid commenting on the source, he asked Bernstein if he was talking about “John” Haldeman, knowing that there was no such person by that name in the White House. Then he ended the call, warning Bernstein, “As long as ‘you guys’ steal information, you better make sure you get it right, because as I said previously, we’re going to find out who your

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source is.” After the call ended, Lano immediately phoned AUSA Don Campbell to relay the conversation to him. To Lano, it sounded as if Bernstein had access to Department of Justice information. He suspected that Bernstein might have had in his possession a copy of one of Silbert’s memos.109 Campbell, on the other hand, doubted Silbert had ever dictated such a memo, as Haldeman’s name had never come up in the office or before the grand jury. As soon as Lano hung up his phone, it rang again. It was now 11:00 p.m., and the WFO night supervisor called Lano once more to let him know that a person named “Carl” needed thirty seconds of his time. Lano called Bernstein again. Bernstein informed him that he had just received a tip from a CBS news wire stating that FBI Acting Director Gray had suggested to President Nixon that their investigation at the White House be reopened since people in the White House were linked to the Watergate case. Then he circled around to his initial question, saying, “That name you mentioned before, I was talking about Haldeman.” Lano replied that he had not mentioned any name, but rather Bernstein had suggested Haldeman’s name. Bernstein replied that he had not meant John Ehrlichman, but rather, “I meant Robert Haldeman.” Lano replied that he did not know the first names of the people in the White House. Then he told Bernstein his thirty seconds were up and hung up the phone. Two days later, Lano was at the US District Courthouse, preparing to discuss the case with Silbert when Bernstein and his fellow reporter, Bob Woodward, walked toward him. They told Lano that they were in trouble over a story they had published that morning, stating, “Our asses are in a bind.”110 They continued, “We wrote [this story] based on your statement.” Lano “vocally erupted,”111 shouting in the courthouse hallway, “You’re both crazy, I never gave you a statement. All I gave you was a no comment.” He then “stated in the strongest terms possible that they better not start spreading any lies about him, to which they responded, to the effect, ‘Wait a minute. Calm down. Maybe we can straighten this out.’”112 Woodward reached into his bag and produced a sheet of typewritten notes from his conversation with Lano. In his paragraph asking about the name “Haldeman,” his notes reflected Lano’s reply as “Yes, Haldeman.”113 Woodward had written notes to support the notion that Lano had leaked information to him, placing the FBI agent in violation of Judge Sirica’s court order. At that moment, Lano reached his breaking point. He grabbed Woodward, dragged him down the hallway outside Judge Sirica’s courtroom, and knocked on the closed courtroom door to get a US marshal’s

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attention.114 When one came out, Lano asked him to get Don Campbell right away. Campbell emerged from the courtroom, and Lano explained the morning’s events. The AUSA then asked Lano, Bernstein, and Woodward to wait for him and Silbert in their office upstairs. That afternoon, Campbell and Silbert met with Woodward and Bernstein privately in their office. The attorneys asked the reporters to explain what had happened. Woodward and Bernstein admitted that they were under great pressure because their story published that day about Haldeman, claiming he had authority to approve payments from a secret campaign fund, might have been wrong. In a letter to the deputy attorney general and assistant attorney general of the Criminal Division, the attorneys detailed their encounter with the reporters, writing, “Bernstein and Woodward stated they were going to identify Special Agent (SA) Angelo J. Lano, case Agent, as the source of this information.”115 To support their attribution, they planned to use Woodward’s typewritten note with Lano’s utterance of “Yes, Haldeman.” As Silbert and Campbell parsed through their explanation of the events and looked at their notes, they discovered that Lano’s response had been taken out of context. In effect, “this was made to appear that SA Lano was confirming Haldeman as a name furnished by Sloan whereas SA Lano was in fact confirming that he knew who Bernstein was talking about.” When Silbert and Campbell denounced the reporter’s tactics, saying they did not believe that Lano was Bernstein’s source, “Bernstein indicated that they would not print SA Lano’s name provided he was informed whether or not the story was true.” Silbert and Campbell ended the meeting then and there, reiterating that they were under strict orders from Judge Sirica not to make any comments concerning the case. In their letter to the attorney general and Gray, Silbert and Campbell summarized their view of Bernstein’s claim, writing, “This is an outrageous lie and SA Lano insists on preparing a sworn signed affidavit categorically denying this allegation. . . . Bernstein and Woodward have obviously gotten themselves into an extreme bind because of their false story and they are seeking to make SA Lano their scapegoat based on bits and pieces of conversations had with SA Lano.”116 It is a great irony, in retrospect, that Silbert and Campbell drafted their memo in support of Lano after they received word that the attorney general had called FBI Acting Associate Director Felt, also known as Deep Throat, “wherein he advised that he had received information that SA Angelo J. Lano was furnishing information to The Washington Post.”117 When Bernstein and Woodward told the AUSAs on October 26 that “their asses were in a bind,” they were not exaggerating. In later years,

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Bernstein and Woodward recounted the article published on October 25, 1972, as their biggest mistake of the Watergate investigation. In the article, the reporters wrote that Hugh Sloan Jr. testified before a grand jury about Haldeman’s control of a campaign fund; in actuality, Sloan had told Woodward and Bernstein about Haldeman’s control of the fund, but he had not informed any grand jury. The Nixon White House used the mistake as an opportunity to smear the Washington Post, with Press Secretary Ron Ziegler accusing the paper of shoddy journalism and character assassination.118 Journalist Craig Silverman explained the significance of Woodward and Bernstein’s error:

A story on October 25 . . . almost booted the pair off the Watergate beat. It was by comparison a less egregious error: the duo had misattributed information. But that misattribution had undermined their revelation that President Nixon’s chief of staff, Bob Haldeman, had controlled a large slush fund for the re-election committee. . . . [The error] gave the president’s press secretary the opening he needed to go after the Post and get the rest of the media to press the paper for answers.119

Adding Lano’s account to the October 25 story further illustrates the extent to which Bernstein and Woodward were desperate to break their story, even at the cost of their own credibility and at great cost to Lano. It is unfortunate to know that on the story that nearly cost them their beat, they tried to salvage themselves by pinning the blame on Lano. Today, Lano is clear about his disregard for reporters. The story of his encounters with Bernstein and Woodward provides ample support of his lingering disdain.

Gray’s Confession

In the weeks and months following Lano’s encounters with Bernstein, events involving Nixon and the Watergate break-in continued to unfold. US voters reelected Nixon to the presidency on November 7 “in a landslide victory rivaling the greatest of American political history.”120 On January 30, 1973, a jury convicted former Nixon aides G. Gordon Liddy and James W. McCord Jr. of conspiracy, burglary, and illegal wiretapping in the Watergate break-in. The four other burglars and E. Howard Hunt pled guilty.121 Thanks to the success of the trial, AUSA Silbert promised to shift the grand jury’s attention toward highlevel involvement by the White House, pivoting the investigation’s

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focus.122 When Judge Sirica read a letter to the court written by McCord alleging that “there was political pressure applied to the defendants to plead guilty and remain silent,” the public’s attention shifted to the West Wing as well.123 By February, Acting Director Gray was in the final stages of preparing for his Senate confirmation hearing to become the FBI’s permanent director. On February 20, he issued an order to those in the Bureau who were most involved in the Watergate investigation to meet three days later in his office for an in-depth discussion about the case.124 The meeting included Lano, former WFO SAC Bob Kunkel, current WFO SAC Jack McDermott, former assistant director Charles Bates (at this point reassigned as SAC of the San Francisco Office), and Supervisor Charles A. Nuzum. Lano recalled that he went into the meeting thinking that the attendees would recite the litany of actions taken in the Watergate case, as Gray prepared for a pointed line of questioning by senators during his hearing about the Bureau’s investigation. Lano did not expect a revelation about the case from Gray himself. Lano recalled that February 23 meeting as the lowest point of the Watergate investigation. Early in the meeting, Gray confessed to a conference room full of his subordinates that he had passed along FBI reports, written by Lano and his colleagues, to John Dean from the beginning of the investigation. Stunned by this revelation, Lano recalled, “My mouth hit the floor, my eyes went to the ceiling. And I just remember rocking in the chair saying—and I’m just a peon, really—but I said, ‘You did what?’ Everybody kind of looked at me like, ‘watch yourself.’ And I said, ‘No. You didn’t.” Gray stood ready to defend himself. He looked squarely at Lano and replied, “I did.” He continued, “I had it researched through [FBI legal counsel]. They said that J. Edgar Hoover used to pass information to the White House all the time.” Lano paused, taking a second to process the enormity of the news he had just received. “I can understand that,” he said. “But when you’re investigating the people at the White House, you don’t tell them you’re investigating.” With Gray’s announcement, the mismatched pieces of the investigation, the promising leads that time and again unfurled to nowhere, suddenly made sense. Lano now understood that Dean had known all along what leads they were pursuing, so he knew where their investigation was headed. Dean had the notice necessary to prepare any White House subject—Kathleen Chenow, David Young, Charles Colson—up to twenty-four hours prior to his or her interview with FBI agents. As soon as the meeting ended, Lano walked straight to Silbert’s

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office and said, “We were screwed from the beginning, Earl. Pat Gray had given John Dean everything.”125 Lano was not the only person to be concerned and disturbed by Gray’s cooperation with Dean. That fact came before the Senate Judiciary Committee during Gray’s confirmation hearing due to his own admission, and it signaled the end of Gray’s consideration as acting director. After that revelation, the Senate questioned Gray’s independence as FBI director. Reports of Gray’s cooperation with the Nixon White House—evidenced by the information he had provided Dean and the information from E. Howard Hunt’s safe that he had destroyed on behalf of John Ehrlichman—brought his career with the FBI to a disgraceful close.

Lano Interviews Martha Mitchell

Meanwhile, the Watergate investigation ticked forward. In March 1973, Lano took an interest in Martha Mitchell, the wife of former attorney general John Mitchell, who had worked at CREEP during the time of the burglary. For months, Mrs. Mitchell had boasted to newspapers, including the Washington Post, as well as to various television and radio shows that she could name people associated with the Watergate break-in. She also claimed to have information that would confirm her husband’s noninvolvement in the scandal. When the Bureau initially approached John Mitchell for permission to interview his wife, as was the custom of the day, he refused. Still, Bureau personnel persisted in asking for permission to carry out the interview anyway.126 On March 31, Gray approved the interview, writing that Lano and a case agent from the New York City Field Office would conduct it in New York City (where Mrs. Mitchell resided).127 Lano called Mr. Mitchell to arrange the interview. Several days later, Mrs. Mitchell called Lano, “indignant” that he had tried to schedule an interview with her through her husband. She told Lano that she would give him an interview but would tape-record it for her own keeping.128 Lano knew that such a recording violated Bureau protocol, but he also knew that arranging this interview had taken months, and he needed to make it happen, even if on her terms. He replied, “Mrs. Mitchell, you can do whatever you want. I will be there.” The next day, Lano boarded a train from Washington, DC, to New York City. When he arrived, he was met by New York agent Vincent “Vinny” Alvino. Lano warned him that Mrs. Mitchell was going to record the interview, and Alvino balked. Lano assured him, “Don’t

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worry, I’ll take the heat,” as they took an elevator up to Mrs. Mitchell’s apartment. Lano recalled the interview fondly. After a secretary seated the agents in the living room, Mrs. Mitchell waltzed in, looking every bit the glamourous media persona. She gave Lano a hug and welcomed him, the anger from the day before absent. Her secretary took out her tape recorder and pressed play. Lano asked Mrs. Mitchell seven questions, gave her another hug, and left. She had given them nothing; she knew very little about CREEP or her husband’s business. Still, Alvino worried about the tape recorder, warning Lano, “I don’t know how you’ll get out of this.” “I’ll get out,” Lano assured him. When he got back to WFO, Lano went to SAC Jack McDermott to tell him about the interview. As he neared the end of his summary, Lano told McDermott about Mrs. Mitchell’s recorder. The back of McDermott’s neck flushed bright red as he told Lano he would have to tell Felt. McDermott opened his desk drawer and picked up a red telephone with a direct line to Felt’s office. He relayed the details of the interview, pausing for a few seconds before he told Felt about the recording. Upon hearing that detail, Felt exploded. Lano recalled Felt’s screams issuing from the phone receiver, saying, “If it’s the last thing I do, you two are gone!” A memorandum written to Felt on April 4 summarized Lano’s interview of Mrs. Mitchell and included the detail about her recorder. At the end of the report, Felt drafted a handwritten message to Gray, stating, “Suggest I straighten out McDermott. If you approve, I’ll call him over here,” followed by his characteristic large initial F. Underneath Felt’s handwriting, Gray’s precise cursive script reads, “No. These men are under enough strain and tension as it is, trying to handle some of these very difficult interviews. Just tell him that in the future clear with FBIHQ.”129

The Bureau Secures the White House

A few weeks later, on Friday, April 27, Gray formally resigned as acting FBI director. On Monday, April 30, William D. Ruckelshaus, assistant attorney general, assumed the Bureau’s acting director position.130 The next day, on the afternoon of May 1, WFO SAC Jack McDermott called C-2 Squad agents into his office. With his agents assembled before him, he placed a phone call to the Secret Service, telling the agent on the other end of the line that he was under order of the attorney general to send a dozen or so armed FBI special agents to the White House to secure all business offices, including that of the president. The Secret

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Service agent told McDermott that the FBI agents needed to arrive unarmed. McDermott refused to budge; he assured the Secret Service agent that the FBI agents would not surrender their guns to the Secret Service, end of story. As the agents walked from WFO to the White House, they wondered what their occupation of the White House could mean. In a truly surreal moment, they wondered aloud whether the Secret Service might shoot them in defense of the White House. When the FBI agents arrived at the West Wing, Mindermann recounted the chaos that erupted: [We] identified ourselves to the Secret Service, I’d never seen so many blue-lettered FBI credentials held prominently high, accompanied by the chant “FBI—Special Agents.” The Secret Service indicated they weren’t happy about our carrying guns inside. However, after brief negotiation, we entered armed and proceeded to lock down and secure all the business offices, standing sentry. There would be no shooting. Immediate potential disaster had been averted. Per orders, no paper was allowed in or out all weekend.131

The New York Times reported on the FBI’s occupation of the White House, writing on the evening of May 1 that “agents . . . moved into position today to guard the files of three senior Presidential assistants who are leaving because of the Watergate case.”132 According to Press Secretary Ron Ziegler, the agents stood guard over the files of H. R. Haldeman, John D. Ehrlichman, and John Dean twenty-four hours a day to ensure that no one examined or removed any papers. On the previous day, Haldeman and Ehrlichman had resigned their positions, while Nixon had fired Dean. That same day, Attorney General Richard Kleindienst resigned his position. A May 3, 1973, conversation between Kleindienst and Nixon, revealed by the Watergate tapes, makes clear the former attorney general’s denial of having anything to do with the matter.

KLEINDIENST: No . . . I thought, the way you were looking at me, that you thought I was the one that sent those [expletive] FBI agents to be stationed in front of Haldeman’s and Ehrlichman’s office. PRESIDENT NIXON: I know you didn’t. KLEINDIENST: I had nothing to do with that, Mr. President! PRESIDENT NIXON: I know you didn’t. . . . Nobody’s interested in any files, you know. They’re my files, they belong to me. KLEINDIENST: Jesus Christ, if they were gonna take them, they’d have done it the day before! It’s so ridiculous!133

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The agreement to have FBI agents secure the White House came from an arrangement by Leonard Grant, counsel to the Nixon White House and Dean’s replacement; FBI Acting Director William Ruckelshaus; and Attorney General Designate Elliot Richardson.134 FBI memos written during the time of the White House occupation downplayed significantly the role of the agents; whatever bravado existed during McDermott’s phone call with the Secret Service on May 1 had dissipated by the next day. McDermott wrote in a memo to Felt on May 2,

We have previously agreed that the assignment of FBI agents to the White House and Executive Office Building constitutes mere window dressing and that the Bureau’s reputation for integrity is being employed to give a semblance of respectability and good faith in the marshaling and sequestration of the papers of HALDEMAN, EHRLICHMAN, and DEAN. . . . [O]ur role, therefore, is reduced to that of unthinking hallway sentries performing GS-3 level guard duty, exercising absolutely no effective control over these files. The Bureau has been placed in this untenable position for the purpose of “putting on a show” and lending an aura of custodial integrity, which we in no way can assure. Custodial responsibility for White House documents should be returned to White House security people at the earliest possible hour so as to extricate the Bureau from this impossible posture in which we find ourselves.135

The FBI was a day away from the one-year anniversary of J. Edgar Hoover’s death, and in less than a calendar year, it seemed the entire political order had come unhinged. Now, FBI agents occupied the White House but did so under leadership that downplayed their role to that of “unthinking hallway sentries”; it is difficult to imagine that Hoover, who portrayed his agents so favorably, would ever have resorted to describing them as such. FBI Acting Director Ruckelshaus authorized agents’ armed occupation of the White House on his second day on the job. When agents entered the White House, they did so under the authority of Attorney General Designate Elliot Richardson, who would not be confirmed by Congress until later that month on May 25 and had assumed his new position that very day. Agents had gone from one of the clearest lines of authority in all of the federal government, with Hoover at the helm of the Bureau, to a virtual freefor-all playing out amid the halls of the White House. On May 1, when the attorney general designate sent the FBI to secure the White House and the Executive Office, the lines of authority had become altogether squishy. Nothing about this event followed the executive branch’s

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organizational hierarchy, which culminated with the president. Even armed with their Bureau-issued weapons, the agents entered the White House in a vulnerable position on May 1, 1973. That on May 1 FBI agents left WFO to secure the White House marked a shift in the Bureau’s Watergate investigation. By that time, the investigation had, in many ways, left the FBI. On May 18, 1973, Attorney General Designate Richardson appointed former solicitor general Archibald Cox as special prosecutor for the Watergate investigation. Earl Silbert and Don Campbell’s work came to a close, and Lano, along with a handful of others, received an assignment to aid the special prosecutor’s continuing investigation. The Senate Watergate Committee began its nationally televised hearings.136 By June, John Dean had officially turned on President Nixon, telling Senate investigators and Watergate prosecutors that he discussed the Watergate cover-up with Nixon on at least thirty-five different occasions.137 Special Agent Mahan recalled sitting in Earl Silbert’s office one evening alongside AUSA Don Campbell, AUSA Seymour Glanzer, and Lano. Dean had accepted a proffer from the prosecutors in exchange for his testimony. Along with his lawyer, he discussed before them the details of what he knew regarding Nixon. Mahan recalled, “When Dean talked, the realization came over me that if he’s telling the truth, the president’s in trouble.”138 In the days and weeks that followed, things only got worse for Nixon. On July 13, Alexander Butterfield, Nixon’s former deputy assistant, revealed in congressional testimony that since 1971 Nixon had recorded all conversations and telephone calls in his office.139 Six days later, Nixon refused to turn over any presidential tape recordings to the Senate Watergate Committee or the special prosecutor, claiming executive privilege.140

The Saturday Night Massacre

On Saturday, October 20, Lano pulled his station wagon into the driveway of his house. His kids were asleep in the back of the car, and when his wife, Judy, opened her passenger side door to get out, she could hear the phone ringing. Lano had no interest in answering it. He had spent the weekend trying to escape the office and the Watergate investigation, taking a much-needed break. He had just arrived home from taking his family on an overnight trip to the country. He was not even out of his car, and the phone was beckoning. He told Judy to ignore it, but she ran inside to answer anyway. “It’s for you,” she said. Lano took the receiver,

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only to find WFO SAC Jack McDermott on the other end of the line. McDermott was frantic, asking where Lano had been all day, demanding to know if he had a television. He told Lano to go to the special prosecutor’s office, explaining that Nixon had fired Special Prosecutor Archibald Cox. It was the evening of the Saturday Night Massacre. While Lano was on his overnight trip to the country, one of Watergate’s biggest moments had unfolded. Attorney General Elliot Richardson and Deputy Attorney General William D. Ruckelshaus141 resigned after refusing Nixon’s orders to fire Special Prosecutor Cox. When the third most senior official at the Justice Department, Solicitor General Robert Bork, agreed to fire Cox, Nixon abolished the office of the special prosecutor altogether. Now, McDermott demanded that Lano, under orders from Nixon’s chief of staff, Alexander Haig, to FBI Director Clarence Kelley (sworn in as FBI director three months earlier on July 9), seal off Cox’s headquarters in an office on K Street NW in downtown Washington, DC. Lano flinched at McDermott’s demand, replying, “You’re talking to the wrong guy. I work with those people.”142 That fact, McDermott replied, was reason enough for Lano to be the one to secure the building. Lano hung up the phone, threw on a shirt and tie, and picked up Special Agent Peter Paul to help him. The agents arrived at the K Street office at 9:05 p.m. As Lano walked into the office, his colleagues, the people he had worked alongside for months, hurled insults at him, calling him a “traitor.”143 Special Assistant James Doyle, spokesman for the Watergate prosecutors, described the harried stakes of the situation, writing, “Now Lano had to contend with something that required courage: the rage and indignation of people whose respect he had earned in the past. He was just a cop following orders, but he was a tangible target. It would be a long night.”144 Lano ordered his colleagues to lock the doors and the safes, assuring them that he and Paul would mind their own business. Lano issued a single warning: Do not take anything out of the building. Meanwhile, the staff of the special prosecutor’s office made frantic phone calls, trying to determine the status of the Watergate special prosecution force. Was that it? Had Nixon actually ended the Watergate investigation by simply deeming it so? On the evening of the Saturday Night Massacre, democracy seemed in peril; now the FBI, with Lano at the helm, had secured all evidence of Nixon’s wrongdoing, at Nixon’s own command. The entire debacle reeked of corruption and the misuse of law enforcement. The special prosecutor’s staff did not know what to think of Lano. Indeed, they were right to question whom he worked for at that moment. It was an

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irony for Lano as well; he had gone from spending all his efforts investigating the president to suddenly working on the president’s behalf to shut down the investigation. Deputy Prosecutor Henry Ruth was enraged by the entire affair. During the confusion of the evening, he tried to take some personal papers out of his office, including alleged love letters from his wife, but Lano stopped him. In a press briefing, Ruth’s composure showed the extent of his worry. He stated, “I must say I suppose that human emotions take over because one thinks in a democracy this would not happen.”145 Meanwhile, Lano ordered the other agents around, demanding they call Assistant US Attorney General Henry Petersen to send in the US marshals and relieve the FBI. Lano wondered that evening if the public’s confidence in the FBI could be restored. The office’s Associated Press telex machines spit out news reports nonstop. Lano read in them the anger at the FBI coming from seemingly everywhere. At around 3 or 4 a.m., the US marshals finally arrived. Lano shook their hands and bid them goodbye, and the FBI’s role in the Saturday Night Massacre ended. In the days that followed, Nixon faced mounting pressure for his decision to fire Cox. On November 1, he appointed Leon Jaworski as special prosecutor. Meanwhile, the special prosecutor’s office continued to function, and Lano returned to his position of aiding its investigation. After the Saturday Night Massacre, events tumbled toward Nixon’s resignation. On December 7, the White House could not explain an 18.5-minute gap in one of its subpoenaed tapes. On July 24, the US Supreme Court unanimously ruled that Nixon’s tapes were not protected by executive privilege. On July 27, the House Judiciary Committee passed the first of three articles of impeachment against Nixon, charging him with obstruction of justice. On August 5, the Watergate “smoking-gun” tape, recorded on June 23, 1972, was released to the public. Americans listened to Nixon agree that his staff should approach CIA officials and ask them to ask FBI Acting Director Gray to halt the Bureau’s investigation into the Watergate break-in as a matter of national security. On August 8, Nixon resigned the presidency. That day, Lano and his family were once again out of town, this time at a farm in Pennsylvania. The best television available received spotty reception from an antenna on the roof. Still, it blared in the background, and Lano heard, as his kids bounced ping-pong balls across the room, the news that Nixon planned to resign. He called the FBI to find out if the reports were true. When the Bureau confirmed them, Lano and his family packed up their things and drove home. After two years of working the Watergate case, Lano needed to watch Nixon resign on

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a decent television. As he watched the president’s speech, he waited for an admission or some sort of apology, but none came. Nevertheless, the president’s resignation, his graceful lift from the White House lawn aboard a helicopter in which he would never return, indicated that a chapter of Lano’s life had closed.

Lano’s Success Analyzed

What made Lano a successful case agent? Every agent interviewed for this book who worked on the Watergate investigation identified Lano as critical to the FBI’s success. To this day, they praise his work, his brilliance in overseeing the case, the tenacity with which he followed leads, and his courage. Lano is decidedly humble about his ability as a case agent. When asked about his work during the Watergate investigation, he wrote, “I don’t believe I was born with any great attributes. I conducted myself and made decisions as I was taught at the FBI training academy, based on instructors who had worked the Field years before me.”146 Though Lano does not see himself as exceptional, his work on the Watergate case was exceptional in times of great distress: He stood up to both Gray and his SAC when the Bureau placed leads in abeyance; he went ahead with the interview of Martha Mitchell, despite Felt’s almost firing him; he secured the special prosecutor’s office even as his attorney colleagues hurled insults and fought him each step of the way. Perhaps Lano’s work in the Bureau before becoming an agent helps to explain his unique approach to hurdles in the investigation. Prior to becoming an agent, Lano worked for the Bureau as a Title III clerk, someone who handled wired communications from criminal cases, which the FBI kept in a locked vault. As clerk, Lano was the only person authorized to go into the vault at all times. He held the job while attending law school as well as raising a young family. By the time Lano attended special agent training, he had a huge advantage. Unlike those new to the Bureau, Lano understood the informal system of Bureau leadership and knew the ins and outs of how the enormous and idiosyncratic institution functioned. He knew where power resided, and he also knew where to push and pull without breaking something. Lano admitted that he worried at times about receiving a “censure,” an administrative form of FBI discipline (he never received one for his work on the Watergate investigation), but he never worried that his conduct, even in defiance of leadership’s orders, would result in his being fired.

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Furthermore, Lano understood the culture of FBI leadership without desiring to be a part of it. By all accounts, Lano seemed content to remain a case agent for his entire career, and indeed he did. He had no apparent aspirations to climb the FBI ladder. This essential fact made him successful in the Watergate investigation, which was an extremely sensitive and political case. Gray and Felt served as terrific foils for each other, both illustrating how ambition can thwart judgment. Gray desperately wanted to be confirmed as permanent director, and Felt desperately wanted to become director himself. Each made decisions in the Watergate investigation based on his own interests, not the best interests of the case. Lano, on the other hand, simply wanted to solve the case. That his government would participate in something like Watergate deeply offended him. He wanted to catch those behind the Watergate break-in as well as those associated with it, and that tenacity drove him and his fellow agents on the C-2 Squad for two long years.

Bureau White House Interviews

One troubling fact about the FBI’s Watergate investigation lingers, and that is this: Daniel Mahan, the agent who conducted most of the White House interviews (though, to be fair, Lano participated in a respectable number of them) did not furnish the big leads in the case. By all accounts, Mahan was a brilliant interviewer and exceptional agent. He, like Lano, resisted the arrogance of the White House leadership, such as when he called Dean a liar for giving an untenable explanation about the whereabouts of the contents of Hunt’s safe. Mahan spent many days alongside Dean as he interviewed John Mitchell, G. Gordon Liddy, John Ehrlichman, Kathleen Chenow, Alfred Baldwin, David Young, Charles Colson, and Dorothy Hunt. Mahan’s list of interviewees reads like a veritable who’s who of Watergate celebrities. During the height of Gray’s Senate confirmation hearing, Gray received a letter from E. Howard Hunt, who by then had pled guilty to conspiracy charges. Hunt had witnessed the senators’ questioning of L. Patrick Gray—their probing doubt as to how efficiently his investigators had carried out their inquiries. Hunt penned a cheeky letter to Gray:

Dear Mr. Gray: I noted Senator Byrd’s announced opposition to your confirmation with a certain wry amusement, one of his reasons for opposition being the Bureau’s alleged failure fully to investigate the Watergate Case.

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From my own experience I am able fully and freely to testify that the Bureau left no grain of sand unturned in its investigation. My late wife and children were interrogated, blackmailed, threatened, and harassed by Special Agents of the Bureau, chief among them SA Daniel Mahan who was even then notorious in the courts for his excessive zeal. My relatives, friends, and acquaintances, however remote, were interviewed exhaustively and embarrassingly by FBI personnel across the country, their inquiries extending as far back as my primary school days. Threats and intimidation were not the least of the investigative tools employed by SA’s [sic] under your direction. For whatever assistance the above might be to you in realizing your professed desire of being confirmed in your present post, feel free to utilize it. Should the occasion arise during my projected appearance before the Ervin Sub-Committee I will be eager to make the thoroughness and savagery of the FBI’s Watergate investigation a matter of public record. Very truly yours, Howard Hunt147

Mahan recalled that after Nixon fired John Dean and Dean unloaded information about Nixon’s involvement in the cover-up, he worried that no one would be able to prove what Dean alleged.148 Had the Nixon tapes never surfaced, Nixon might have remained in the presidency for the remainder of his term. Those tapes, produced at Nixon’s request, secured his downfall by recording his and his staff’s indiscretions. In a lot of ways, Nixon did the FBI’s work for it by ensuring that his tapes implicated everyone at the top with documentary evidence. For the Bureau, everything in the Watergate investigation came down to an ability to prove wrongdoing with evidence in a court of law. Given the White House’s interference in the investigation, achieving this was at times nearly impossible. Many, if not all, of the White House aides Mahan interviewed had been coached beforehand by John Dean. Other interviewees, like Liddy, were in on the conspiracy. To give up any information would result in their own fall as well. Those within the White House did an outstanding job at first of containing the spillage of the Watergate burglary. Had lower levels of the conspiracy not shattered—McCord’s letter to Sirica, Gleason’s and Hoback’s careful tracing of CREEP money—it is unlikely the White House would ever have been implicated. Mahan interviewed White House personnel day after day, for months. Still, the White House aides never broke before Mahan. Only when those in their midst began to crumble by turning on Nixon and offering up secrets did the White House aides become cooperative. Can the FBI use its investigative

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tactics to pierce the veil of White House secrecy? Based upon the interviews conducted by Mahan, it appears unlikely.

The Legacy of the FBI’s Watergate Investigation

Mahan is the only one of the agents interviewed who expressed ambivalence about the legacy of Watergate. “You take the outcome of Watergate, and you look at our society today. Has anything changed?” he asked. “And, I’m not trying to compare it to current political conditions, but has anything changed? I wonder.” Historical memory is an odd thing. The way we remember events in history can change years, decades, even centuries after the event itself. How do we remember Watergate? For the past forty-eight years, our nation’s memory of Watergate has been incomplete. Watergate literature and popular culture champion journalists Bob Woodward and Carl Bernstein’s midnight meetings with Deep Throat in the bowels of DC parking garages. The story goes that Deep Throat painstakingly unraveled the crookedness of Watergate for the two journalists, who in turn published their spoils on the front page of the Washington Post for the nation to read, day after day, until Richard Nixon resigned the presidency two years later. There is piecemeal truth to this Watergate mythology. Woodward and Bernstein’s stories made history; the momentum of their journalistic prowess irreparably shifted public opinion against Nixon. Both journalists have admitted on multiple occasions that Deep Throat/Mark Felt was one of their most important sources, though by no means the only one. But this historical memory—Woodward, Bernstein, and Felt as the trifecta who broke Watergate—does not reflect the work that comprised the investigation. It leaves unasked and unanswered the critical question of where Deep Throat received his valuable intelligence in the first place. FBI agents assigned to the District of Columbia Field Office’s Criminal 2 (C-2) Squad uncovered the Watergate scandal. Without these agents, working under Lano’s leadership, Watergate would have died on the vine soon after June 17, 1972, when five burglars sat in the DC jail and refused to discuss their break-in of the DNC headquarters. Today, Lano continues to think often about Watergate. In one exchange with this author, Lano wrote, “My wife often tells me there is nothing in my head except Watergate. Well, that might be true.”149 Indeed, his recall of the case is stunning; he remembers tiny details, the sequence of events, every thread that went every which way. Though Lano received a standard monetary award as commendation for his work on the case, the meager amount hardly recognized the scale or significance of his efforts.

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After all, how does the Bureau award an agent for his work in taking down the president? If anything, Nixon’s resignation was a somber event for the Bureau, not a development worthy of celebration. A year after Nixon’s resignation, Lano continued investigating political corruption in other new and developing cases. He recalled one occasion on which he went to a Senate office building to interview a senator about alleged illegal campaign contributions. Lano sat across from the senator and asked him questions. As he did so, the senator puffed on a cigar, blowing the smoke directly into Lano’s face. Lano asked his questions, concluded the interview, filed the necessary paperwork, and called over to headquarters. “If you can do anything, get me out,” he said. “I’ve had my fill of politics.”150 On June 19, 1975, he received orders for a new assignment in Delaware, his work in Washington, DC, complete. His days of investigating politicians were officially over.

Notes

1. FBI, Teletype from Washington Field Office to Acting Director, June 17, 1972. 2. Ibid. 3. FD-302, SA Angelo Lano interview of Michael Douglas Caddy on June 17, 1972. Date of transcription: June 26, 1972. 4. John Mindermann, Reply to Panel Questions, emailed to author, January 10, 2020. 5. Angelo Lano, telephone conversation with author, January 16, 2020. 6. Angelo Lano, Oral History, Richard Nixon Presidential Library. 7. FBI, Teletype from New York, Philadelphia, and Alexandria Field Offices to Acting Director, June 17,1972. Interestingly, the Alexandria Field Office appears somewhat frequently in the FBI Vault files on Watergate. Typically, Alexandria is the office that has worked most closely with the CIA when investigations between the two agencies overlapped. The Alexandria Field Office ran down many of the CIA affiliations of the burglars in the days following the break-in. 8. FBI, Teletype from Miami Field Office to Acting Director, June 17, 1972. 9. John Clynick, interview with author, November 24, 2019. 10. Ibid. 11. Ibid. 12. Mindermann, Reply to Panel Questions. 13. Ibid. 14. From the C-2 Squad, I spoke with Angelo Lano, Daniel Mahan, Paul Magallanes, and John Mindermann. 15. Daniel Mahan, interview with author, October 19, 2019. 16. FD-302, SAs Daniel C. Mahan and John E. Denton interview of Eugenio Martinez on June 21, 1972. Date of transcription: June 26, 1972. 17. Paul Magallanes, interview with author, September 11, 2019. 18. Ibid. 19. Ibid. 20. Ibid. Incidentally, the burglars appeared to be rather big fans of the Bureau. In an FBI memo written on July 3, 1972, Bureau agents noted that four of the burglars (not including McCord) traveled to Washington, DC, from May 3–4, 1972, to

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pay homage to J. Edgar Hoover as his body lay in state in the US Capitol Rotunda following his death on May 2. While there, the burglars got into a clash with a group of demonstrators near the Capitol. See FBI, Memorandum from Charles Bolz to Charles Bates, July 3, 1972. 21. FD-302, SAs Donald E. Stukey II and Peter J. Paul interview of Everette Howard Hunt on June 17, 1972. Date of transcription: June 21, 1972. 22. FBI, Memorandum from Charles Bolz to Charles Bates, June 19, 1972. 23. FBI, Teletype from Washington Field to Acting Director, June 27, 1972. The report reads, “Dean stated that all requests for investigation by FBI at White House must be cleared through him” (3). 24. Lano, Oral History. An FD-302 records Dean’s demands. It reads, “John W. Dean, III, Counsel to the President, advised he did not want Federal Bureau of Investigation Agents making any inquiries or investigations within the confines of the White House or the Executive Office Buildings with White House Staff without his knowledge or permission.” See FD-302, SA George E. Saunders interview of John W. Dean III on June 27, 1972. Date of transcription: June 29, 1972. 25. FBI Washington Field Office Memo, June 30, 1972. Re: Article Appearing in 6/3072 City Edition of the Washington Daily News Captioned “Gun, Bug, Map of Democratic HQ Found in Desk of White House Aide” Alleged Leak of Information from FBI. One of the reasons that Lano resisted allowing Dean to attend interviews was fear that Dean might interfere in the investigation by prepping witnesses prior to their speaking with the FBI. 26. While Lano interviewed Colson, it turns out E. Howard Hunt was hiding out in California. G. Gordon Liddy flew out to Los Angeles and delivered cash to Hunt to help tide him over. See FBI, Teletype to Acting Director and Washington Field from Los Angeles, July 7, 1972. 27. Mahan interview, October 19, 2019. 28. Today, the Old Post Office Pavilion, former home to the FBI’s Washington Field Office, is now Trump International Hotel, Washington, DC. 29. FBI, Teletype from Washington Field Office to Acting Director, June 27, 1972. 30. John Ruhl was the supervisor of WFO’s C-2 Squad. 31. FBI, Teletype from Washington Field Office to Acting Director and Tampa and Miami Field Offices, June 26, 1972. 32. A special agent in charge was the lead agent at a field office. 33. FBI, Airtel from Acting Director to Washington Field Office, Atlanta, Alexandria, Baltimore, Boston, Kansas City, Houston, Miami, New York, and Philadelphia, Re: James Walter McCord, Jr.; Bernard L. Barker; Et. Al. Burglary of Democratic Party National Headquarters, June 17, 1972, Interception of Communications, June 20, 1972. 34. FBI, Teletype from Acting Director to SACs, WFO, Miami, Philadelphia, June 20, 1972. There is a notation on the teletype to indicate that he sent a copy to Charles Bolz. 35. FBI, Teletype from Acting Director to SACs in Albany, Albuquerque, Alexandria, Atlanta, Baltimore, Birmingham, Boston, Charlotte, Chicago, Cincinnati, Cleveland, Dallas, Denver, Houston, Jacksonville, Kansas City, Los Angeles, Miami, Minneapolis, Newark, New Haven, New York City, Norfolk, Philadelphia, Pittsburgh, Richmond, San Antonio, San Francisco, San Juan, Springfield, Tampa, June 23, 1972. 36. Lano, Oral History. 37. Ibid. 38. Magallanes interview. 39. Jerri Williams, Interview with John Mindermann, FBI Retired Case File Review, Podcast audio, June 21, 2018, https://jerriwilliams.com/episode-121-john -mindermann-watergate-fbi-public-perception-today.

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40. After speaking with Gray, Smith withdrew the forty-eight-hour claim prior to his article’s publication. 41. Williams, Mindermann interview. 42. Mindermann, Reply to Panel Questions. 43. Lano, Oral History. 44. Williams, Mindermann interview. 45. Gray’s account of the meeting with the agents differs somewhat; in his own account, he comes across as a bit more restrained in his anger toward the agents. See L. Patrick Gray and Ed Gray, In Nixon’s Web: A Year in the Crosshairs of Watergate (New York: Times Books, 2008), 75. 46. Ibid. 47. John W. Mindermann and Brian Solon, In Pursuit: From the Streets of San Francisco to Watergate (San Francisco: Ames Alley Press, 2014). 48. Angelo Lano, interview with author, August 22, 2019. 49. Clynick interview. 50. Ibid. 51. Angelo Lano, email to author, September 10, 2019. 52. FBI, Teletype from Washington Field Office to Acting Director, June 29, 1972. 53. Ibid. 54. “David R. Young, Jr.,” Wheaton History A to Z: Notable Alumni, Wheaton College, a2z.my.wheaton.edu/notable-alumni. 55. FBI, Teletype from Washington Field Office to Acting Director, June 29, 1972. 56. Lano, email to author, September 10, 2019. 57. There is some discrepancy in this story. According to John Mindermann, Lano sent the memo to Kunkel for the SAC’s signature. When Kunkel refused to sign it, Lano grabbed the memo from him, pen in hand, and proclaimed, “Watch this!” as he signed Kunkel’s initials to the document, while Kunkel watched. 58. Margin note, FBI, Teletype from Washington Field Office to Acting Director, June 29, 1972. 59. Lano, Oral History. 60. Gray and Gray, In Nixon’s Web, 55. 61. Max Holland, “The Myth of Deep Throat,” Politico Magazine, September 10, 2017, https://www.politico.com/magazine/story/2017/09/10/watergate-deep-throat -myth-mark-felt-215591. Holland’s tremendously well-researched book, Leak: Why Mark Felt Became Deep Throat (Lawrence: University Press of Kansas, 2012), provides a thoughtful and nuanced look at Felt’s motives for leaking information to Bob Woodward and Carl Bernstein of the Washington Post. 62. Ibid. 63. John Mindermann, interview with author, August 16, 2019. 64. Clynick interview. 65. Ibid. 66. Magallanes interview. 67. Ibid. Mahan recalls that Kunkel was so intent on following the rules that prior to Hoover’s death, he once sent Mahan home for not wearing a white shirt to work. 68. Mindermann, interview with author, July 31, 2019. 69. Mindermann, interview with author, August 16, 2019. 70. Lano, Oral History. 71. Lano, email to author, September 10, 2019. 72. Mahan interview, October 19, 2019. Mahan speculates that SAC Kunkel likely provided the FD-302s to Felt, enabling the leaks. 73. FBI, Airtel from SAC, Miami to Acting Director, Attention: FBI Laboratory, June 29, 1972.

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74. FBI, Teletype from Washington Field Office to Acting Director, June 29, 1972. 75. FBI, Teletype from Los Angeles to Acting Director, July 3, 1972. 76. Ibid. 77. FBI, Teletype from Washington Field Office to Acting Director, July 5, 1972. 78. FD-302 SAs Charles Harvey and Paul Magallanes interview of Penny Gleason on July 1, 1972. Date of transcription: July 3, 1972. 79. Magallanes interview. 80. Incidentally, the Key Bridge Marriott served as the scene for another important Watergate moment. In the parking lot of that Marriott property, White House aide Alexander Butterfield turned over $350,000 in excess campaign cash for safekeeping to one of his neighbors. The White House later ordered that the cash be retrieved to purchase the silence of the Watergate burglars. See Karlyn Barker and Vivien Lou Chen, “Landmarks Tell Lore of Watergate,” Washington Post, June 17, 1992, A1. 81. Magallanes interview. 82. Mindermann, In Pursuit, 35. 83. Magallanes interview. 84. Mindermann, In Pursuit, 37. 85. FD-302, SAs Paul P. Magallanes and John W. Minderman [sic] interview of Judy Hoback on July 18, 1972. Date of transcription: July 19, 1972. 86. FBI, General Investigative Division Summary (Confidential), August 3, 1972. 87. Carl Bernstein and Bob Woodward, “Mitchell Controlled Secret GOP Fund,” Washington Post, September 29, 1972, A1. 88. Magallanes, email to author, January 18, 2020. 89. Magallanes interview. 90. Ibid. 91. Kate Daily, “Women of Watergate,” BBC News, June 19, 2020, https:// www.bbc.com/news/magazine-18452609. 92. Dylan Byers, “Woodward, Bernstein Downplay Deep Throat,” Politico, June 12, 2012, https://www.politico.com/blogs/media/2012/06/woodward-bernstein-downplay -deep-throat-125950. 93. Laura Sullivan, “Watergate: All the President’s Men, but Women Too,” All Things Considered, NPR, June 30, 2012, https://www.npr.org/2012/06/30/156049593 /watergate-all-the-presidents-men-but-women-too. 94. Agis Salpukas, “2 Nixon Ex-Aides Among 7 Indicted in Raid on Capital,” New York Times, September 16, 1972, A1. 95. Woodward’s handwritten notes from interviews with Judy Hoback in Bob Woodward and Carl Bernstein Watergate Papers, Harry Ransom Center, University of Texas, container 75.10. 96. The absence of dates was confirmed through email correspondence between author and Harry Ransom Center archivists on January 18, 2020. 97. Magallanes, email to author, January 18, 2020. 98. Mindermann, Reply to Panel Questions. 99. Mindermann, email to author, January 17, 2020. 100. Ibid. 101. Carl Bernstein and Bob Woodward, “FBI Finds Nixon Aides Sabotaged Democrats,” Washington Post, October 10, 1972, A1, A14, http://www.washingtonpost .com/wp-srv/national/longterm/watergate/articles/101072-1.htm. 102. FBI, Memorandum from Charles Bolz to Charles Bates, October 12, 1972, re James Walter McCord, Jr., et al. burglary of Democratic National Committee Headquarters, 6-17-72 interception of communications. 103. Ibid.

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104. Lano, Oral History. 105. FBI, Memorandum from Bolz to Bates, October 12, 1972. 106. Ibid. 107. FBI, Memorandum from Charles Bolz to Charles Bates, October 4, 1972 re James Walter McCord, Jr., et al. burglary of Democratic National Committee Headquarters, 6-17-72 interception of communications. 108. Affidavit of SA Angelo J. Lano, Washington Field Office, October 26, 1972. 109. That Lano would not know for sure what Haldeman had said before a grand jury is typical, as FBI agents are not privy to grand jury statements, which remain confidential. 110. This exact phrasing does not come from Lano’s sworn affidavit; he removes the color from the expression and says the reporters merely said, “We’re in a bind.” This phrase is lifted from WFO SAC Jack McDermott’s airtel to FBI Acting Director Gray from October 26, 1972. 111. Ibid. 112. Ibid. SAC McDermott wrote, “In my analysis, I would interpret this as an offer, poorly concealed, to SA LANO to refrain from attributing the story to him, in exchange for his accommodating them by way of furnishing information.” 113. Affidavit of SA Angelo J. Lano, Washington Field Office, October 26, 1972. 114. Lano, email to author, January 21, 2020. 115. Memo from Deputy Attorney General and Assistant Attorney General Criminal Division to Attorney General and Acting Director (FBI), October 26, 1972. 116. Ibid. 117. Ibid. 118. Jon Marshall, “How a Reporting Mistake Nearly Derailed the Watergate Investigation—and How Journalists Recovered,” Washington Post, December 20, 2017, https://www.washingtonpost.com/news/made-by-history/wp/2017/12/20/how -a-reporting-mistake-nearly-derailed-the-watergate-investigation-and-how-journal ists-recovered. 119. Craig Silverman, “What the Guardian Can Learn from Watergate Coverage,” Columbia Journalism Review, July 22, 2011. For a deeper account of Woodward and Bernstein’s ill-attributed article, see Craig Silverman and Jeff Jarvis, Regret the Error: How Media Mistakes Pollute the Press and Imperil Free Speech (New York: Union Square Press, 2007). 120. David S. Broder, “Nixon Wins Landslide Victory; Democrats Hold Senate, House,” Washington Post, November 8, 1972, https://www.washingtonpost.com/politics /nixon-wins-landslide-victory-democrats-hold-senate-house/2012/06/06/gJQAJ4bIJV _story.html. 121. Lawrence Meyer, “Last Two Guilty in Watergate Plot,” Washington Post, January 31, 1973, https://www.washingtonpost.com/politics/last-two-guilty-in-watergate -plot/2012/06/04/gJQAQQdHJV_story.html. 122. Seymour Hersch, “New Inquiry Due for Watergate 7,” New York Times, February 8, 1973, 1. 123. James W. McCord Jr., letter to Judge Sirica, March 19, 1973. 124. FBI, Memorandum from R. E. Gebhardt to Mark Felt, re: James Walter McCord, Jr., et al. Burglary, Democratic National Committee Headquarters Washington DC, 6-17-72 Interception of Communications, February 20, 1973. 125. Lano, interview with author, August 22, 2019. 126. FBI, Memorandum from R. E. Long to R. E. Gebhardt, re: James Walter McCord, Jr., et al. Burglary of Democratic National Committee Headquarters, 617-72 Interception of Communications, March 30, 1973.

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127. FBI, Memorandum from R. E. Gebhardt to Mark Felt, re: James Walter McCord, Jr., et al. Burglary of Democratic National Committee Headquarters, 6-1772 Interception of Communications, March 31, 1973. 128. FBI, Memorandum from R. E. Gebhardt to Mr. Felt, re: Watergate, April 4, 1973. 129. Ibid. 130. The New York Times front page published on April 28, 1973, was full of bombshells related to the FBI’s Watergate investigation. See Walter Rugaber, “Gray Quits the FBI, Ruckelshaus Named; a Justice Department Memo Says Liddy and Hunt Raided Office of Ellsberg’s Psychiatrist,” New York Times, April 28, 1973, 1. 131. Mindermann and Solon, In Pursuit, 6–7. 132. R. W. Apple Jr., “FBI Guard Put on Files of 3 Departing Nixon Men,” New York Times, May 1, 1973. 133. Stanley I. Kutler, Abuse of Power: The New Nixon Tapes (New York: The Free Press, 1997), 396. 134. FBI, Memorandum from John J. McDermott to W. Mark Felt, re: White House Sentry Duty, May 2, 1973. 135. Ibid. 136. George Lardner Jr., “Cox Is Chosen as Special Prosecutor,” Washington Post, May 19, 1973, https://www.washingtonpost.com/politics/cox-is-chosen-as-special -prosecutor/2012/06/04/gJQAEhPDJV_story.html. 137. Carl Bernstein and Bob Woodward, “Dean Alleges Nixon Knew of Cover-up Plan,” Washington Post, June 3, 1973, https://www.washingtonpost.com/politics /dean-alleges-nixon-knew-of-cover-up-plan/2012/06/04/gJQAgpyCJV_story.html. 138. Mahan interview, October 19, 2019. 139. Lawrence Meyer, “President Taped Talks, Phone Calls; Lawyer Ties Ehrlichman to Payments,” Washington Post, July 17, 1973, https://www.washingtonpost .com/politics/president-taped-talks-phone-calls-lawyer-ties-ehrlichman-to-payments /2012/06/04/gJQAc9CCJV_story.html. 140. Carroll Kilpatrick, “President Refuses to Turn Over Tapes; Ervin Committee, Cox Issue Subpoenas,” Washington Post, July 24, 1973, https://www.washingtonpost .com/politics/president-refuses-to-turn-over-tapes-ervin-committee-cox-issue-subpoenas /2012/06/04/gJQAWfG9IV_story.html. 141. By this time, Ruckelshaus had been replaced as acting director of the Bureau by Director Clarence Kelley, who was confirmed by Congress on July 9, 1973. 142. James Doyle, “Saturday Night Live!” New York Times, May 15, 1977, https:// www.nytimes.com/1977/05/15/archives/saturday-night-live-an-insiders-report-on-the -crucial-events-of-oct.html. 143. Lano, Oral History. 144. Doyle, “Saturday Night Live!” 145. Lesley Oelsner, “On Nixon’s Order,” New York Times, October 21, 1973, https://www.nytimes.com/1973/10/21/archives/cox-office-shut-on-nixons-order-fbi -agents-impound-files-and.html. 146. Lano, email to author, September 28, 2019. 147. Personal letter from E. Howard Hunt to L. Patrick Gray, February 17, 1973. 148. Daniel C. Mahan, interview with author, October 26, 2019. 149. Lano, email to author, September 11, 2019. 150. Lano, Oral History.

8 The Past Informs the Present

The issue of executive power over the FBI was core to Watergate. Richard Nixon’s “smoking gun,” the taped conversation that led to his resignation, captured Nixon and Chief of Staff Bob Haldeman devising a plan to have the CIA thwart the FBI’s Watergate investigation. In the aftermath of Watergate, Congress expressed alarm at the vast amount of control past presidents had exercised over the Bureau. The president had exercised unbounded power over the FBI for decades; yet Nixon’s behavior so egregiously offended the public’s notions of the agency’s independence that Congress finally felt the need to take action. One thing was certain: “the inherent powers of the President to keep secrets and to operate in secret without check by the Judiciary or Congress [had] grown to proportions which threaten[ed] the constitutional balance, and must be brought under the rule of law.”1 The Senate investigation chaired by Frank Church originated from Nixon’s politicization of the intelligence community during Watergate. Early on, however, the investigation pivoted toward intelligence agencies’ constitutional violations and became focused on protecting US citizens’ constitutional rights. As CIA and FBI indiscretions poured forth, Congress became far less worried about protecting intelligence agencies such as the Bureau from ill-intentioned machinations of presidents and more concerned with protecting society from intelligence overreach. The Church Committee unearthed the Bureau’s sordid fettering of Martin Luther King Jr. through intimidation sanctioned by J. Edgar Hoover. 209

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It revealed a futile COINTELPRO (Counterintelligence Program) operation predicated on Hoover’s paranoia about communists and radicals.2 The congressional hearings aired to the public an ugly side of the Bureau, undergirded by Hoover’s relentless terrorization of political and societal enemies. For nearly half a century, Hoover’s FBI ignored, at times, American citizens’ constitutional rights by subjecting them to illegal searches and surveillance in the name of national security. In its final report, the committee recommended changes for the Bureau. Most of those changes were adopted during President Gerald Ford’s tenure. An important change, however, remained undone: the implementation of an FBI Charter. Following the Church Committee’s hearings, Attorney General Edward Levi issued new guidelines governing the FBI’s domestic surveillance of US citizens.3 In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). The legislation fulfilled a major recommendation of the Church Committee by curtailing the power of the president on issues related to intelligence gathering. No longer could a president order warrantless intelligence collection against US persons; now intelligence collected against US persons in foreign matters needed to satisfy a judicial standard and be carried out only after the Bureau procured a warrant from the FISA Court. FISA inserted the authority of the judicial branch into an area long governed singularly by the president through his inherent executive powers. Still, FISA only fixed issues related to foreign intelligence gathering. Despite implementation of the Levi Guidelines and FISA, problems remained. Unless and until Congress vested ultimate authority over the Bureau with the Department of Justice (DOJ), the president retained inherent power over it. Testifying before Congress, the American Civil Liberties Union (ACLU) argued for an FBI Charter, stating,

Despite the promise of the Justice Department to develop guidelines for all investigations two years ago, the existing guidelines remain incomplete. . . . Moreover, although more strict than previous internal security procedures, the current Domestic Security Guidelines authorize ongoing intelligence investigations of lawful political activity and can be read to permit many of the same kinds of investigations that the Congress has so recently criticized [author’s emphasis]. Most important, the Guidelines derive their authority from the Executive’s claim of an “inherent power” to conduct intelligence investigations. In the past, this claim has permitted the exact scope of the investigatory power to remain nebulous.4

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When Jimmy Carter ran for president in 1976, he campaigned on the promise of an FBI Charter. In doing so, he acknowledged the public’s great fear of the intelligence community and the FBI. Somehow, in two short years, people had forgotten about the FBI’s vulnerabilities revealed during Watergate and now only saw it as an overpowerful government agency. Carter understood the feeble nature of the Levi Guidelines, which the attorney general’s office implemented to ensure greater control over and more accountability from the Bureau. As mere guidelines, however, they did not hold the weight of law. Campaign analysis regarding the Levi Guidelines cautioned, “[They] are tentative: they can be changed—secretly or publicly—by the Attorney General or the President at any time. They do not have the force of law—they contain no civil or criminal penalties; therefore, violations cannot be punished.”5 After Carter’s election, his staff turned toward replacing the guidelines with a charter. Attorney Joseph Levin, who supervised the Department of Justice’s transition under Carter, evinced concern with the current level of executive power. He wrote,

The constitutional position of the Presidency is at stake. FBI counterespionage and foreign intelligence operations, including wiretaps without judicial warrants, pose serious issues of Presidential power. Although surveillance of domestic groups has been cut back, FBI foreign counterintelligence still affects the rights of Americans. These activities are now based on claims of Executive authority, not on legislation passed by Congress; and the legitimacy of such claims is in doubt. A new framework of law and accountability is needed for the intelligence activities of the FBI and the rest of the US intelligence community.6

To remedy this problem, Levin suggested that the president renounce any claim of inherent presidential powers and allow the FBI Charter to be the sole governing authority for the Bureau’s counterintelligence operations.7 Though Carter submitted a proposed charter to Congress on July 31, 1979, it failed to become law.8 Even with initial bipartisan support, the effort faced opposition from liberal organizations such as the ACLU, which argued that the charter failed to protect American citizens from FBI overreach, and from conservatives, who believed that a charter would limit the FBI’s ability to conduct investigations. In its final form, the charter sought to authorize certain Bureau activities as legal, while refusing to address any misuse of the FBI by the executive branch. After years of reform, public sentiment had soured. Americans

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were tired of reform. By this time, most Bureau critics believed that FISA had effectively addressed the Church Committee’s gravest concerns regarding abuses by both the Bureau and the president. Carter championed the passage of FISA, knowing that such legislation would impinge upon his executive powers to collect foreign intelligence. Still, with the passage of an FBI Charter completely stalled, the president retained executive power over the Bureau outside the realm of foreign intelligence gathering. Watergate reform remained incomplete. Worst of all, those authoring the reform failed to craft a legislative remedy addressing the initial, and biggest, problem of all: past presidents’ politicization of the Bureau.

The Executive and the FBI Director Under Trump

In January 2017, over a private dinner in the White House, President Donald Trump told FBI Director James Comey, “I need loyalty. I expect loyalty.”9 Trump was days into his presidency, while Comey had served the past four years as FBI director under President Barack Obama. Comey had six years left in his congressionally mandated term as director. In the months leading up to the 2016 presidential election, Comey found himself in hot water. First, he announced in July 2016 that the FBI would not pursue charges against Hillary Clinton for her unlawful use of a personal email server during her time as secretary of state. Second, on October 28, twelve days before the general election, Comey announced to Congress that the FBI had discovered new emails from Clinton’s server and needed to reopen the investigation. His announcement alarmed voters, some of whom had already cast absentee ballots. In the wake of Comey’s announcement, Trump praised the director’s decision, which he believed worked in his favor. 10 When Trump won the 2016 election, Clinton partially blamed her loss on Comey’s announcement.11 Prior to Trump’s inauguration, Comey had the unenviable task of briefing the president-elect on January 6 about a classified document making its way around the intelligence community known as the “Steele Dossier.” Written by former UK intelligence officer Christopher Steele, the memo alleged that Trump had engaged in sexual relations with Russian prostitutes while on a business trip in Moscow in 2013. Furthermore, the memo alleged that Russian intelligence had filmed Trump’s indiscretions for blackmail purposes. Director of National Intelligence James Clapper was also aware of the memo. After consul-

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tation, Clapper and Comey agreed that Trump, as incoming president, needed to hear about the memo before the media published it for all the world to see. In his meeting that day with Trump in his Manhattan Trump Tower, Comey summarized the information in the dossier and reiterated several times that the FBI was not investigating the presidentelect. Comey’s briefing of Trump that day was his first opportunity to meet the president-elect in person. Two days after Trump took office, the new president hosted a reception at the White House for various law enforcement agencies that had provided security for his inaugural events. He included Comey οn a long list of invitees. Trump gave Comey a warm welcome and thanked him on national television by whispering praise into the director’s ear. To those watching the interaction on television, it appeared that Trump had given Comey a quick kiss on the cheek. Comey recalled the moment as cringe worthy, stating, “What was distressing was what Trump symbolically seemed to be asking leaders of the law enforcement and national security agencies to do—to come forward and kiss the great man’s ring. To show their deference and loyalty.”12 Five days later, Trump invited Comey for dinner at the White House. Over a meal of shrimp scampi and chicken parmesan, Trump made his expectations regarding the FBI director known when he candidly demanded Comey’s allegiance. Comey was stunned. He recounted his reaction in the moment as he pondered Trump’s request in silence, explaining, “The president of the United States just demanded the FBI director’s loyalty. This was surreal. To those inclined to defend Trump, they might consider how it would have looked if President Obama had called the FBI director to a one-on-one dinner during an investigation of senior officials in his administration, then discussed his job security, then said he expected loyalty.”13 Though Comey said nothing in response to Trump’s statement, the president continued talking, dominating the conversation throughout the meal. Toward the end, he circled back to his original intent, once again telling Comey, “I need loyalty.” Comey could only reply, “You will always get honesty from me.” That answer seemed to satisfy Trump, as he responded, “That’s what I want, honest loyalty.”14 Congress invited Director Comey to testify on May 3, 2017, about the FBI’s investigation into Russia’s meddling in the 2016 election. On that occasion, Comey refused to state publicly whether the president was personally under investigation. For Trump, his FBI director’s refusal to come to his defense on national television signaled an unforgivable lack of loyalty. Days later, Trump fired Comey. The termination

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letter, written by Deputy Attorney General Rod Rosenstein and published for the public to read, alleged that Comey had told the president on multiple occasions that he was not under investigation by the FBI. The letter argued further that Comey had mishandled the investigation into Hillary Clinton’s emails, citing his mismanagement as justification for his removal. Though the Department of Justice argued that Comey’s termination had nothing to do with the Russia investigation, in the days and weeks following the firing, Trump’s own words indicated otherwise. A report written by Special Counsel Robert Mueller summarized Trump’s competing explanations for Comey’s termination:

The president had decided to fire Comey before hearing from the Department of Justice. The day after firing Comey, the President told Russian officials that he had “faced great pressure because of Russia,” which had been “taken off” by Comey’s firing. The next day, the President acknowledged in a television interview that he was going to fire Comey regardless of the Department of Justice’s recommendation and that when he “decided to just do it,” he was thinking that “this thing with Trump and Russia is a made-up story.”15

On July 19, 2017, Trump gave an interview to three New York Times reporters in the Oval Office. It came on the heels of Comey’s firing. The FBI director’s abrupt removal inspired Attorney General Jeff Sessions to appoint Robert Mueller as special counsel and led to Comey’s second round of testimony before Congress. The Times interview with Trump came at a pivotal moment in his early presidency. Throughout the interview, Trump ricocheted from topic to topic, discussing everything from Hillary Clinton to health care to Poland, interjecting multiple responses that the reporters could only characterize as “garble.” When the reporters brought up Trump’s firing of Comey, Trump defended his decision, stating, “When Nixon came along [inaudible] was pretty brutal, and out of courtesy, the FBI started reporting to the Department of Justice. But there was nothing official, there was nothing from Congress. There was nothing—anything. But the FBI person really reports directly to the president of the United States, which is interesting.”16 In the wake of the interview, people questioned whether what Trump had said was true. Did the president really hold such absolute control over the Bureau? What did it mean to say that the FBI director reported directly to the president? And why had the president voluntarily evoked Nixon?

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Immediately following the Times’s publication of the interview, journalists around the country hastened to dismiss Trump’s claims regarding the loyalty owed by an FBI director to a president. Within hours, USA Today posted a response titled “Trump Suggests the FBI Director Reports Directly to the President. Here’s How It Really Works.” It acknowledged the president’s duty to nominate an FBI director as well as to fire him or her but refuted Trump’s ultimate claim, arguing, “The position of the FBI director reports to the attorney general.” Scholars channeled their legal expertise to address Trump’s claims. Benjamin Wittes, editor in chief of Lawfare and a senior fellow at the Brookings Institute, explained, Trump’s logic isn’t easy to follow here, but his core claim is unmistakable—and “interesting” is a generous word for it: the FBI director serves the president. As a matter of constitutional hierarchy, this is of course true. But in investigative matters, the FBI director does not, or should not, serve the president by reporting to him. He serves the president by leading law enforcement in an independent and apolitical fashion. And it is fundamentally corrupt for any president to be asking him to do otherwise.17

Wittes’s response conjured Nixon’s misstep in allowing John Dean to serve as an intermediary between himself and the FBI. Nixon’s foibles in Watergate—his attempts to control the FBI—had derailed L. Patrick Gray’s nomination as director, ultimately leading to the president’s own demise. Surely another president would not be so foolish as to follow knowingly in Nixon’s footsteps. Four days after Trump’s interview with the Times, the president’s legal counsel, Mark Kasowitz, hand-delivered a letter to Special Counsel Robert Mueller, reiterating the legal argument for the president’s exercise of power over the FBI. Concerned with media reports alleging that Mueller was investigating whether Trump’s firing of FBI Director James Comey had constituted obstruction of justice, Trump’s attorney aggressively defended the Constitution’s provision for vast executive powers. He asserted, “Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations. Thus, as set forth more fully below, as a matter of law and common sense, the President cannot obstruct himself or subordinates acting on his behalf by simply exercising these inherent constitutional powers.”18

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Kasowitz’s legal arguments heralded the president’s claims of control over the FBI. Moreover, they indicated that the president’s comments in the Oval Office to Times reporters were not a verbal misstep. Trump believed his claim of authority, and he had a sophisticated, pageslong attorney’s argument brimming with case citations to support it. Attorneys learn as early as law school how to argue a claim from multiple sides; that lawyers would interpret the president’s power over the Bureau in different, even oppositional, ways is unremarkable. What is remarkable, however, is the context behind the question of the president’s power. Though the question became relevant once more under Trump, it originated in relation to Richard Nixon. A deep dive into archival materials about the FBI in the 1970s in the aftermath of Watergate reveals prescient scholarship anticipating issues related to an overzealous president’s control of the FBI. Following Nixon’s resignation, people most familiar with the Bureau worried that it might one day find itself again confronting a president determined to use his or her executive powers to the fullest. Yet Congress never managed to legislate a barrier to the president’s political interference with the Bureau. Amid Watergate reform, the Senate’s Church Committee devised recommendations to create a sturdy legal framework for the Bureau. Most of the committee’s recommendations, however, protected US persons from the Bureau’s unconstitutional overreach; none protected the Bureau from use as a partisan tool by the executive branch. One of the Church Committee’s core recommendations endorsed protection of the Bureau from the interference of the president through the creation of an FBI Charter. Though the Church Committee urged Congress to legislate a charter, partisan divide prevailed, and the public eventually shifted attention to other matters. The chimera of a charter lingered on the cutting room floor of post-Watergate reform, and to this day a president constitutionally yields full authority over the FBI’s intelligence and law enforcement activities.

The President’s Constitutional Control of the FBI

In an interview with journalist David Frost, Nixon once commented, “When the president does it, that means it is not illegal.”19 Since Comey’s firing, legal scholars have grappled with Nixon’s claim. As head of the executive branch, the president maintains authority to decide which matters the federal government will investigate and prosecute.20 The constitution vests the president, as head arbiter of the executive

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branch, with full authority over agencies and departments within the executive branch, such as the Department of Justice, the FBI, and the rest of the intelligence community. Most scholars have argued in favor of this generous interpretation of a president’s executive powers, allowing him full authority: “When critics claim that a president cannot direct federal law-enforcement activities, they are implying that subordinate executive-branch officials can both judge and act upon their own assessment of a president’s motivations. There is no basis in the Constitution’s language, statute or Supreme Court precedent for such notion. Those who object to a president’s instructions may resign, but they cannot usurp executive authority and defy him.”21 Mueller’s investigation into Trump considered whether his firing of Comey had risen to the level of obstruction of justice. The president’s legal counsel argued that Trump, as chief law enforcement officer, “could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the [special counsel’s] inquiry, or even exercise his power to pardon if he so desired.”22 Legal scholar Benjamin Wittes argued that, though Trump’s argument seemed absurd on its face, it also bore constitutional truth. Wittes explained, “There is no doubt in my mind that Article II limits to a considerable degree the application of the obstruction statutes to the president when he is acting in his capacity as chief law-enforcement officer of the country.”23 Wittes further argued that, contrary to Trump’s claim, a president could obstruct justice when he committed acts outside the authority allocated to him by Article II. If a president influenced a witness to lie, destroyed evidence, or bribed a judge, a president could not, as Wittes understood the law, argue that he was acting within the Constitution. In other words, Article II grants the president authority as the chief law enforcement officer, but it doesn’t authorize him to do whatever he wants in the service of his own interests, especially if those acts are illegal. For that reason, Congress was able to lodge obstruction-of-justice accusations against both Nixon and Bill Clinton, who did not act within their Article II authority when trying to impede investigations directed at them. Wittes believed that if a president was acting within his executive functions, as granted under Article II, it would be much harder or perhaps impossible to prove obstruction of justice. He wrote,

The allegations against Trump are different, and trickier. They are allegations that his use of his acknowledged Article II powers might constitute an obstruction. The allegations all involve acts—firing people, for example,

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and supervising investigations and staff—that the Constitution specifically gives the president the power to do. So these allegations raise a different question: is it possible for a president to obstruct justice in the context of performing his constitutionally assigned role, that is, using only otherwise valid exercises of his constitutional powers [author’s emphasis]?24

And here is perhaps the most important reality governing the president’s executive functions: Congress cannot simply draft a statute to take away the president’s constitutional powers. So, in the case of a president interfering with the FBI, the solution is not as simple as Congress simply creating additional legislation. Language surrounding the need for an FBI Charter to impede the president’s power over the FBI recognized that for Congress to legislate such change, a president would have to renounce his inherent executive powers by signing such legislation into law. Barring such presidential approval, Congress cannot legislatively negate any powers vested in the president by the Constitution. Meanwhile, the president, as head of the executive branch and chief law enforcement officer, maintains enormous control over the FBI. In other words, “It’s true that Congress establishes the agency, creates its offices, appropriates funds, and confirms the president’s nominees. But there is one attribute of DOJ that Congress does not— and indeed cannot—delegate: the executive power.”25 The Supreme Court has mostly upheld the impenetrable power of the president under Article II. In Myers v. United States, it held that the president has exclusive power to remove executive branch officials and does not need the approval of the Senate or any other legislative body to do so.26 However, the Court also allowed a sliver of presidential power to be taken away. In Morrison v. Olson, the Supreme Court held that the Independent Counsel Act, allowing Congress to appoint a special prosecutor in order to investigate the president under special circumstances, was constitutional as it did not “impermissibly interfere with the President’s authority under Article II.”27 The case arose from precedents established by Nixon when he tried and failed to fire the special prosecutor in the Saturday Night Massacre. Justice Antonin Scalia’s case dissent, which has gained much attention in the years since the Morrison decision, reiterates the notion that governmental investigation and prosecution of crimes is an authority that resides solely with the president. Law professor Josh Blackman explained Scalia’s argument: Once the attorney general or FBI director is confirmed, the president can then delegate his executive power to those officers and maintain

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that delegation so long as doing so satisfies his duty to take care that the laws are faithfully executed. In turn, those principal officers can then delegate that executive power—concerning law enforcement and other matters—to their subordinates as provided by law. However, the president maintains the absolute authority to withdraw that authority for any reason, or no reason at all.28

It would seem, based upon Scalia’s dicta and the broad powers granted to the president through Article II, that perhaps the conflict of interest posed by a president having power over the FBI will always exist. Though Nixon’s relationship to Gray and his interference in the Watergate investigation serve as apt comparison to Trump’s firing of Comey, there is a major unresolved issue. When Nixon resigned the presidency, it seemed certain that democracy had prevailed in the face of injustice, even injustice conducted in the highest office in the land. For decades, people simply took for granted that Nixon’s impeachment was a norm and not a historical aberration—that it illustrated democracy at its best and signaled the strength of democracy to prevail even in the worst of circumstances. Because of Watergate’s outcome, people believed that if a president’s misconduct rose to a certain level, impeachment or resignation would be inevitable. Nixon’s resignation is heralded as a great example of democracy working as it should—the leader of the free world resigned without a shot fired. Now we live in a different time. The precedents of Watergate, whatever those may be, are no longer a given; what happened once may not happen again. Given the actions of Trump since 2017 and his impeachment acquittal on February 5, 2020, we can no longer take for granted that a president’s misconduct will invoke impeachment or that Congress will even agree on what constitutes misconduct or obstruction of justice. We now recognize the extreme circumstances and quirks of Watergate more clearly: Nixon authorized the creation of outrageously damning tapes, which confirmed most of the accusations lodged against him, and he threw in the towel before he had to, believing that public and congressional sentiment had irreparably shifted against him. Nixon’s resignation remains a unique and incomparable moment in history. Perhaps the real lesson of Nixon should be that his impeachment proceedings never made it to the Senate and therefore did not establish any legal precedent for subsequent cases. Though the House of Representatives alleged that Nixon obstructed justice, he resigned before the Senate could consider those charges and the legal arguments accompanying them. Attorney James Robenalt pointed out

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missing elements in the obstruction-of-justice claims brought against Nixon, writing,

What is highly ironic about the scenario is that if lawyers had carefully analyzed the smoking gun tape at the time, they would have noticed that one critical element of the crime of obstruction of justice was missing: no grand jury had been empaneled by June 23, 1972. Those who have studied the Mueller report will know that the crime of obstruction requires an obstructive act, a nexus between the act and an official proceeding and corrupt intent. Nixon could not be obstructing a grand jury investigation of Watergate if it did not yet exist.29

Indeed, if Nixon’s lawyers could argue their case again today, perhaps Nixon’s presidency would have a different ending.

Possible Steps Forward

There are two schools of thought among legal scholars regarding the ability of Congress to alter the president’s inherent executive powers under Article II. The first group adheres to the notion of a “unitary executive,” where officers in the executive branch answer solely to the president. Under this unitary view, neither Congress nor the Supreme Court has the ability to alter the president’s authority.30 This viewpoint subscribes to the idea that Article 2 vests the president with inherent powers that are open-ended and cannot be checked by the other two branches of government. According to this view, Congress cannot merely enact a veto or a constitutional amendment to limit the president’s authority; indeed, under this line of thinking, Congress would be outside the boundaries of its constitutional authority to do so. Alternatively, a second, opposing group views the Constitution as allowing Congress “significant flexibility in determining how much political influence the executive can exert over the officers of his vast administration”; adherents of this view “believe that independent executive agencies are an effective and important check against presidential power.”31 This second group’s ideas on the power of Congress to influence the power of the presidency provide some support for the notion that Congress might, at some point in the future, be able to legislatively protect the Bureau from a president’s interference. Despite the ongoing legal debate, history supports the notion that Congress can impose upon a president’s inherent executive functions. In

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the years following Watergate, Congress assessed the constitutionality of the Bureau’s actions through the Church Committee’s work. The committee noted that intelligence operations by the Bureau and the intelligence community writ large posed serious issues regarding the extent of presidential power. In the wake of the Church Committee’s criticism against intelligence agencies and the presidency, President Ford claimed full authority to authorize intelligence gathering based solely upon his inherent executive powers. When Congress passed the Foreign Intelligence Surveillance Act of 1978, it was a landmark because it signaled a moment in history when the president knowingly diminished his executive powers. Instead of a president having full authority to approve an intelligence operation based upon his role as head of the executive branch, now intelligence gathering had to be approved by the judiciary branch via the FISA Court. This came about only after the Justice Department, under the leadership of then attorney general Edward Levi, reinterpreted its view of inherent executive powers to allow for a portion of them to be transferred outside the executive branch. When President Carter signed FISA into law, he signed away a noteworthy portion of the president’s powers related to foreign intelligence collection. The House Report on the Foreign Intelligence Surveillance Act of 1978 explained, “Under Levi’s leadership, the Justice Department changed its support from its historical opposition to any interference with inherent executive powers in this area to one that embraced the legislative changes proposed by the bill.”32 Indeed, if we look at the precedent set by FISA, we see that it is possible, under extreme and narrow circumstances, for the executive branch to limit willingly its inherent executive powers. Carter signed FISA amid enormous public outcry against both the intelligence community and past presidents’ abuses concerning intelligence gathering. That public furor was likely essential to Carter’s decision to prioritize FISA; had the public opposed such measures or expressed indifference, it’s unlikely that Carter would have made such a promise central to his presidential campaign. He also did so on the heels of the Supreme Court’s decision in United States v. United States District Court (Keith), which had already punctured the authority of the executive branch seen in the attorney general. Carter ran on the issue of promising US citizens that he would not, as president, abuse his executive powers in relation to intelligence gathering. He then provided support for his claim by signing FISA into law. History ebbs and flows. Watergate signaled a moment when the United States worried about a president’s interference with the Bureau, but that concern was momentary. By the time the Church Committee

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completed its hearings, the public had shifted its attention away from Watergate, becoming consumed by its fear of the intelligence community’s continuing abuses. The Church Committee unearthed decades of abuse by the FBI and CIA. People wanted Congress to rein in the intelligence community’s indiscretions. The fears invoked by Nixon’s behavior toward the Bureau were a distant memory. And after all, the issue regarding Nixon had taken care of itself with Nixon’s resignation. Few worried that any subsequent president would attempt such dirty tricks again, knowing that he or she would answer for them through impeachment hearings. Today, the pendulum has once again shifted. After the events involving Comey, a significant portion of American society worries about Trump’s interference with the Bureau and the Department of Justice. That Trump, through his lawyers and through his own claims, has boldly asserted total authority over the executive branch and the FBI is concerning. Once again, the legal issues raised in current events are murky; there is scant legal precedence to define abuses of executive power. Absent intervening legislation, Article II is on the president’s side. Until Congress finds a way to ensure that the president cannot legally meddle in the FBI’s affairs, it is possible, and indeed likely, that presidents will, on occasion, continue to do so. This fact will be especially true anytime the Bureau is charged with investigation of a sitting president. In the interim, until a president willingly allows Congress to legislate away inherent executive powers, we have several “norms” within the government that, although not legally binding, provide a measure of support against the president’s misuse of the FBI. Harvard law professor Jack Goldsmith writes,

Every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters. These internal regulations and memoranda, and the norms they foster, acknowledge the President’s ultimate power and responsibility for law enforcement and intelligence while at the same time recognizing that in certain matters, the Executive branch needs internal divisions of authority that achieve a type of independence from presidential control.33 Goldsmith argues that political consequences exist in response to a president’s decisions, which in many ways limit the president’s behavior, even in the face of a unitary executive. Consequences—namely, the potential for political fallout—kept Trump from firing Special Counsel

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Robert Mueller during his investigation into Trump’s alleged involvement with Russia. We can continue to expect a president’s fear of political consequences to influence his decisions regarding the Department of Justice and the FBI. Even if the president possesses large executive authority, he still suffers the fallout of his decisions. In the aftermath of Watergate, DOJ and FBI officials largely reiterated a commitment to the rule of law, “one component of which is resistance to politicized influence by the President on their operations.”34 This independence of the FBI and DOJ from the presidency—evinced in FBI Special Agent Paul Magallanes’s insistence to the Watergate burglars that he worked for the Constitution and not the president—continues today and has grown in prominence since Watergate. It remains critical that FBI and DOJ officials comport themselves as actors independent of the president when working politically biased cases—that they acknowledge working for the rule of law and not for a single person or in support of a political agenda. Watergate demonstrates the astounding resiliency of the FBI to continue its work, even during an investigation involving a sitting president. Watergate was a crisis for the Bureau. Nixon appointed an FBI director he believed would be loyal to him, and in most respects he was, almost to the detriment of the entire Watergate investigation. Despite those suboptimal circumstances, the Bureau’s Watergate investigation prevailed and flourished. The agents on the ground working the case evinced loyalty only to the rule of law, and that fact—in and of itself—saved the investigation. The Bureau’s relationship to the president may remain fraught with thorny conflicts of interest; regardless, the FBI’s Watergate investigation confirms a level of independence in the Bureau that no president, regardless of his threats, lies, cover-ups, or intimidation, can sever. The independence of FBI agents—those on the ground, doing the actual work of investigations—remains sacred to the functioning of democracy.

Notes

1. Charles R. Nesson, “Aspects of the Executive’s Power over National Security Matters: Secrecy Classifications and Foreign Intelligence Wiretaps,” Indiana Law Journal 49, no. 3 (1974). 2. The Church Committee report read, “Between 1960 and 1974, the FBI conducted over 500,000 separate investigations of persons and groups under the ‘subversive’ category, predicated on the possibility that they might be likely to overthrow the government of the United States. Yet not a single individual or group has been prosecuted since 1957 under the laws which prohibit planning or advocating action to overthrow the government and which are the main alleged statutory basis

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for such FBI investigations.” See US Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong., 2nd sess., 1976, S. Rep. 94-755, 19, https://www.intelligence.senate.gov/sites/default /files/94755_II.pdf. 3. The Attorney General’s Guidelines on Domestic Security Investigations (April 5, 1976), reprinted in FBI Statutory Charter: Hearings on S. 1612 Before the Senate Comm. on the Judiciary, 95th Cong., 2nd Sess. 18-26 (1978) (referred to as Levi Guidelines). 4. Jimmy Carter Presidential Library (JCPL), “Statement for the Record” prepared by Jerry J. Berman, John H. G. Shattuck, Morton H. Halperin on behalf of the ACLU on FBI Charter Legislation before the Committee on the Judiciary, United States Senate, April 25, 1978 (4), Box 19 DPS_Civil Rights and Justice_ F1_Guitiarrez _FBI O:A 8112 (3). 5. JCPL, Problems with the Attorney General’s Guidelines for the FBI, Box 34_1976 Presidential Campaign Issues Office, Sam Bleicher, FBI, Campaign Issues, FBI. 6. JCPL, Letter, September 4, 1978; To: Sam Bleicher; From: Joe Levin, Box 34_1976 Presidential Campaign Issues Office, Sam Bleicher, FBI, Campaign Issues, FBI. 7. Ibid. 8. “Presidential Statement: Carter Details FBI Charter,” CQ Almanac 1979, 35th ed., 48-E–49-E (Washington, DC: Congressional Quarterly, 1980), http://library .cqpress.com/cqalmanac/cqal79-861-26160-1182934. See S.2928, 96th Congress (1979–1980), and H.R.5030, 96th Congress (1979–1980). 9. James Comey, A Higher Loyalty: Truth, Lies, and Leadership (New York: Flatiron Books, 2018), 237. 10. Dan Balz, “Trump Praised Comey in October, Fired Him Tuesday. Explanations Don’t Add Up,” Washington Post, May 10, 2017, https://www.washingtonpost .com/politics/trump-praised-comey-in-october-then-fired-him-tuesday-for-that-very -conduct/2017/05/10/85e89f28-3597-11e7-b373-418f6849a004_story.html. 11. Philip Rucker, “I Would Be Your President: Clinton Blames Russia, FBI Chief for 2016 Election Loss,” Washington Post, May 3, 2017, https://www .washingtonpost.com/politics/hillary-clinton-blames-russian-hackers-and-comey-for -2016-election-loss/2017/05/02/e62fef72-2f60-11e7-8674-437ddb6e813e_story.html. 12. Comey, A Higher Loyalty, 233. 13. Ibid. 14. Ibid., 243. 15. Robert S. Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election (Washington, DC: US Department of Justice, 2019), 1:216. 16. “Excerpts from the Times’s Interview with Trump,” New York Times, July 19, 2017. 17. Benjamin Wittes, “The President vs. Federal Law Enforcement: Trump Attacks Everyone,” Lawfare, July 20, 2017, https://www.lawfareblog.com/president -vs-federal-law-enforcement-trump-attacks-everyone. 18. “The Trump Lawyer’s Confidential Memo to Mueller, Explained,” New York Times, June 2, 2018, https://www.nytimes.com/interactive/2018/06/02/us/politics /trump-legal-documents.html. 19. David Frost, Frost/Nixon: Behind the Scenes of the Nixon Interviews (New York: Harper Perennial, 2007), 254–256. 20. David B. Rivkin Jr. and Lee A. Casey, “Trump Has the Constitution on His Side,” Washington Post, June 12, 2018, https://www.washingtonpost.com/opinions

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/yes-trump-has-the-power-to-investigate-the-fbis-probe-of-his-campaign/2018/06/12 /dfaf7f84-6e5a-11e8-afd5-778aca903bbe_story.html. 21. Ibid. 22. Benjamin Wittes, “The Flaw in Trump’s Obstruction-of-Justice-Defense,” Atlantic, June 4, 2018, https://www.theatlantic.com/ideas/archive/2018/06/even-the -president-can-obstruct-justice/561935. 23. Ibid. 24. Ibid. 25. Josh Blackman, “Obstruction of Justice and the Presidency: Part I,” Lawfare, December 5, 2017, https://www.lawfareblog.com/obstruction-justice-and -presidency-part-i. 26. Myers v. United States, 272 U.S. 52 (1926). 27. Morrison v. Olson, 487 U.S. 654 (1988). 28. Blackman, “Obstruction of Justice and the Presidency: Part I.” 29. James Robenalt, “Trump’s Impeachment Acquittal Vote Is All but Assured. Nixon’s Resignation Helps Explain Why,” NBC News, February 1, 2020, https:// www.nbcnews.com/think/opinion/trump-s-impeachment-acquittal-vote-all-assured -nixon-s-resignation-ncna1127756. 30. Leah A. Hamlin, JD, “Qualified Tenure: Presidential Removal of the FBI Director,” Ohio Northern University Law Review 44, no. 1 (2019), https://digitalcommons .onu.edu/onu_law_review/vol44/iss1/3. 31. Ibid., 67. 32. Alex Hindman, Gerald Ford and the Separation of Powers: Preserving the Constitutional Presidency in the Post-Watergate Period (Lanham, MD: Lexington Books, 2017), 172. 33. Jack Goldsmith, “Independence and Accountability at the Department of Justice,” Lawfare, January 30, 2018, https://www.lawfareblog.com/independence -and-accountability-department-justice. 34. Ibid.

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Index

Alexandria Field Office, 203n7 Alvino, Vincent “Vinny,” 192–193 Americans for Democratic Action, 146, 159n78 Angleton, James Jesus: CIA and, 28; on Hoover motives, 32; Huston Plan and, 41 Attorney general: FBI director appointment and, 103–104, 123n6; Huston Plan intervention, 28–33

Baldwin, Alfred: CREEP funds and, 173–174; as lookout for burglars, 163–164; Mitchell, John, and, 174 Barker, Bernard: address books of, 162, 168– 169; Cuba and, 164; listening device found on, 161 Bates, Charles, 191 Bay of Pigs, Hunt and, 2 Bayh, Birch, 132, 134 Belter, Ernie, 1 Bennett, Daniel, 66 Bernstein, Carl, 3; Campbell and Silbert questioned by, 185–186; “FBI Finds Nixon Aides Sabotaged Democrats” by, 185; Haldeman and, 187, 188, 190; Hoback and, 182–184; Kunkel and, 186; Lano and, 185– 190, 207n110; mistake of, 189–190; scapegoating of Lano by, 188–190; Sloan and, 187; Watergate legacy and, 202 Berrigan brothers, 108 Biddle, Francis, 92 Black bag jobs, 25–26, 30, 45n60 Black Panther Party (BPP): DOJ and, 77; Media burglary and, 64, 67–68; racial equality and, 14–15

Blackmail, 108 Boggs, Hale, 31 Bombs: from January ‘69 through April ‘70, 21; May, 1970 and, 39; Melville and, 13– 14; New Left and, 15 Bonaparte, Charles, 6 Bork, Robert, 197 BPP. See Black Panther Party Brennan, Charles: CIA ban, 27; on Hoover, 32–33; Liddy and, 110 Brown, Rap, 12 Buchanan, Pat, 103–104 The Bureau (Sullivan), 34 Bureau of Investigation, 12 Burglars, Watergate: as FBI fans, 203n20; as working for president, 166. See also specific persons Burroughs, Bryan: on leftist underground, 13, 14; on racial equality, 14 Butterfield, Alexander, 196, 206n80 Byrd, Robert, 135, 142, 148–150, 157n37

C-2. See Criminal 2 Squad, FBI Cabinet, Nixon, 18 Caddy, Douglas, 162 Cambodia, 21–22 Campbell, Don, 173; Bernstein and, 185–186; Lano as scapegoat and, 189; Silbert and, 188 Carmichael, Stokely, 12, 52; background about, 71n8; call to arms of, 53; Operation CONUS and, 53 Carter, Jimmy, 211, 221 Central Intelligence Agency (CIA): Angleton and, 28; Brennan on ban of, 27; domestic

239

240

Index

intelligence and, 28; FBI disputes with, 26–28; Hoover severs connection with, 26–28; Hunt and McCord connections to, 164; Papich and, 27–28; Watergate investigation and, 166, 169–170 Chappaquiddick, 151 Chenow, Kathleen: Dean and, 178–179; Liddy and, 174–175; phone bill and, 169, 173 Church, Frank, 29 Church Committee: background, 43n30; Elliff and Pyle and, 59; intelligence overreach and, 209–210, 223n2; Media break-in and, 74n110 CIA. See Central Intelligence Agency Citizens Commission to Investigate the FBI. See Media, PA, burglary City Club, Cleveland, 131–132, 158n56 Clapper, James, 212–213 Clark, Ramsey: DOJ and, 87–88; intelligence gathering and, 80 Clawson, Ken W., 60 Clinton, Hillary, 212 Clynick, John: on replacing old guard, 177; as Watergate case source, 8 COINTELPRO. See Counterintelligence Program Cold War, Hoover during, 12 Colson, Charles: Hunt and, 2; interview of, 166–167 Comey, James: Clinton investigation and, 212; loyalty and, 213; Russia investigation and, 213–214; Steele Dossier and, 212–213; Trump firing of, 213–214 Committee to Re-elect the President (CREEP): Baldwin and, 173–174; Gleason interview, 180–181; Liddy fired by, 174, 179; McCord and, 162, 180; Mitchell, Martha, interview and, 192; money trail of, 179–185; Ogarrio and, 173; Sloan and, 187; suspicions surrounding, 179–180; Watergate as operation of, 181 Communism: Huston Plan on, 44n38; New Left and, 14, 22, 44n38 Community Relations Service (DOJ), 86 Confirmation hearings, Gray: Byrd and, 135, 148–150, 157n37; Elliff testimony in, 144–146; female special agents and, 130– 131; Gray indiscretion and, 151; Gray/Nixon relationship questioned in, 129, 139–140; information dissemination and, 140–141; Kennedy and, 137–138, 144, 148; McCord and, 135; opening statement in, 129–130; politics questioned in, 131–135; Rauh testimony in, 146–147; Tunney and, 136–137; Watergate break-in and, 133, 135–137; Watergate files offered in, 139; Watergate secrets known during, 127–128; Weicker and, 128–129; White

House connections and, 133–134; wiretapping and, 137–138 Conflict of interest, FBI compromised by, 7–8 Congress: executive power and, 218; FBI director legislation, 4–5; FISA and, 210, 221; scrutiny of FBI, 81–84 Constitution: citizen rights and, 50; executive power and, 218–219; Huston Plan and, 40; president control of FBI related to, 216– 220. See also specific amendments “CONUS Intelligence” (Pyle), 53, 71n16 Cook, Fred J., 91 Counterintelligence Program (COINTELPRO), 14 Cox, Archibald, 196, 197 CREEP. See Committee to Re-elect the President Criminal 2 Squad, FBI (C-2): determination of, 4; Lano and, 164–165; as leaderless, 178; mandate of, 1 Cuba, 2, 164

Davidon, William, 68 Dean, John: access to FBI reports, 191–192; background, 158n44; Bureau files and, 136–137, 191–192; Bureau securing White House and, 194; Chenow and, 178–179; on FBI director appointment, 103–104, 123n6; Gray and, 141–144, 155–156, 178– 179, 191–192; Hunt office lies of, 167–168; Mahan and, 196, 201; Nixon and, 196; Segretti and, 141–142; White House interviews and, 167–168, 204nn23– 25 “A Declaration of a State of War” (Weather Underground Organization), 22 Deep Throat: Leak and, 205n61; persona of, 176; Watergate investigation legacy and, 202. See also Felt, Mark Democratic National Committee (DNC), 1–2, 161–162 Department of Justice (DOJ): authority premise of, 93–94; BPP and, 77; Clark and, 87–88; Community Relations Service of, 86; Doar and, 85–87; Elliff and, 77, 78–79; FBI compared with, 78–79; FBI relationship with, 100n55; In re Neagle and, 93; Keith case and, 95–98; Kossack and, 80–81; Maroney and, 79–80; Nelson and, 84, 99n38; New Republic article and, 88–89; rule of law and, 223; scrutiny of, 84–89; Totten v. United States and, 93 Detroit riots, 54, 71n19 Directors, FBI: balance of power and, 5; Congress legislation, 4–5; Dean on appointment of, 103–104, 123n6; prominence of, 4; “Trump Suggests the FBI Director Reports Directly to the President,” 215. See also specific directors

Index DNC. See Democratic National Committee Doar, John, 85–87, 99n40 DOJ. See Department of Justice Domestic Intelligence Division, FBI, 34 Domestic surveillance: intelligence community and, 28; legal authority of FBI for, 76–78, 98nn8–9; by military, 71n25. See also Operation CONUS Doyle, James, 197 Duncan, Martha, 181

Earth Day Rally, 31, 81–83 Ehrlichman, John: background, 158n44; Bureau files and, 136–137; Bureau securing White House and, 194; Gray and, 153–154; Hoover retirement script and, 104–105; Nov., 1969 D.C. protests and, 24–25, 44n51; on Sullivan, 118 Elliff, John: Church Committee and, 59; confirmation hearing testimony of, 144– 146; DOJ and, 77, 78–79; DOJ/FBI compared by, 78–79; on In re Neagle, 93; Kossack and, 80–81; legal authority of FBI and, 76–78, 98nn8–9; Maroney and, 79–80; Media break-in and, 69–70; Pyle and, 58–59; The Reform of FBI Intelligence Operations by, 59; research of FBI by, 76, 98n5; scrutiny of FBI by, 76– 81; on source of FBI power, 92–93; unclassified documents held by, 7–8 Ellsberg, Daniel, 108, 109–110 Ervin, Sam: computer tech worries of, 57; hearings initiated by, 51; Operation CONUS and, 54; Segretti and, 141; Subversive Activities Control Board and, 83 Executive Branch: conflict of interest and, 7–8; FBI tethered to, 7; FISA and, 210, 221; Goldsmith on, 222; Kasowitz on, 215; Keith case and, 95–98; Levin on, 211; rule of law and, 223; unitary executive and, 219 Executive Branch, under Nixon: Bureau securing White House and, 195–196; Cabinet of, 18; FBI and, 2–7; “FBI Finds Nixon Aides Sabotaged Democrats,” 185; FBI vulnerability to, 5–6; intelligence politicization by, 38–42 Executive Branch, under Trump: authority asserted by, 222; FBI and, 212–216; Kasowitz and, 215–216; obstruction of justice and, 217–218; Wittes on Bureau relationship with, 215 “Exemption of J. Edgar Hoover from Compulsory Retirement for Age” (Johnson Executive Order), 33, 46n98

“Fact Sheet on the FBI” (FBI), 75 FBI Charter: Carter and, 211; FISA and, 210; stalling of, 210–211

241

“FBI Finds Nixon Aides Sabotaged Democrats” (Woodward & Bernstein), 185 “FBI Inspection” (New Republic), 88–89, 100n52 “F.B.I. Is Said to Have Cut Direct Liaison with C.I.A.” (New York Times), 30–31, 46n88 “FBI Said to Bug a House Member” (New York Times), 113 “The FBI Today” (Wilson), 89 FBI Vault, 8 Federal Bureau of Investigation (FBI). See specific topics Felt, Mark: ambition of, 3–4; Colson interview and, 167; as foil, 200; Lano as scapegoat and, 189; Lano on, 176; leaks by, 182; Mitchell, Martha, interview and, 193; motives of, 176–177, 205n61; old guard represented by, 177; as selfinterested, 176; Watergate investigation stalled by, 176–177 “The File on J. Edgar Hoover” (Time Magazine), 35–36, 47n116 Fiorini, Frank, 164 First Amendment, Operation CONUS and, 56 FISA. See Foreign Intelligence Surveillance Act Fong, Hiram, 137 Ford, Gerald R., 121, 221 Foreign Intelligence Surveillance Act (FISA), 210, 221 Forrest, John Waterhouse, 96 Fourth Amendment, Keith case and, 97 Frost, David, 216 Gillers, Stephen, 90, 100n56 Gleason, Penny, 180–181 Goldsmith, Jack, 222 Gonzales, Virgilio, 164 Graham, Fred P., 62 Grant, Leonard, 195 Gray, L. Patrick, 117, 125n92; as acting director, 6; ambition of, 3; background, 128; Bureau files opened by, 136–137; Byrd and, 135, 157n37; City Club speech by, 131–132, 158n56; confession of, 190– 192; Dean and, 141–144, 155–156, 178–179, 191–192; disillusionment of, 152; Ehrlichman and, 153–154; FBI changes made by, 130–131; Felt and, 176–177; female special agents and, 130–131; as foil, 200; HEW speech, 132–133; on Hoover, 129–130; Hunt letter to, 200–201; Lano memo and, 175; leaks to Dean by, 178–179; meeting, February 23, with, 191–192; Mitchell, Martha, interview and, 192–193; Nixon and, 128, 129, 132–133, 139–140, 153–156; Nixon campaign support by, 133– 134; as obedient, 6; Petersen and, 151; political affiliations, 131–135; prosecution of, 152; Rauh on, 146–147; Saturday

242

Index

morning massacre and, 170–173, 205n45; as tragic figure, 156; travels to field offices, 166–167, 176; Watergate investigation prioritized by, 168–170. See also Confirmation hearings, Gray Griswold v. Connecticut, 72n42 Gurney, Edward, 143

Haig, Alexander, 197 Haldeman, H. R.: background, 158n44; Bernstein and, 187, 188, 190; Bureau files and, 136–137; Bureau securing White House and, 194; cover-up involvement of, 151–152; grand jury confidentiality and, 207n109; silent confirmation and, 187; Woodward/Bernstein mistake and, 190 Hart, Philip A., 133 Harvey, Charles, 180 Hayden, Tom, 12 Health, Education, and Welfare (HEW), 132–133 Helms, Richard: Hoover and, 36; Huston Plan and, 45n78 HEW. See Health, Education, and Welfare Hickenlooper, Bourke, 146 Hoback, Judy: Bernstein/Woodward and, 182– 184; conclusions about, 185; Gleason recommending, 181; interview, 181–183; Mindermann and Magallanes reunion with, 184; NPR interview with, 183 Hoffman, Abbott “Abbie”: Nov., 1969 D.C. protests and, 24; Steal This Book and, 13; works of, 43n8 Hoover, J. Edgar: as all-powerful, 91–92; Angleton on motives of, 32; authority wielded by, 5; black bag jobs and, 25–26, 45n60; on black students, 67–68; BPP and, 14, 15; Brennan on, 32–33; Bureau clerk and, 107; Bureau of Investigation and, 12; burglars as fans of, 203n20; CIA connection severed by, 26–28; Cold War and, 12; criticism of, 31–32, 38; death of, 121–122, 126n118; departure timing of, 107–109; directorship of, 4–5; “Exemption of J. Edgar Hoover from Compulsory Retirement for Age,” 33, 46n98; FBI public image controlled by, 50; FBI vulnerabilities and, 20–21; female special agents and, 130–131; “The File on J. Edgar Hoover” and, 35–36, 47n116; final days of, 103– 122; Gray on, 129–130; Helms and, 36; Huston and, 25–26, 32, 34–35, 45n55; Huston Plan footnotes and, 33; Huston Plan opposition of, 19–20, 21, 35; intelligence gathering and, 36–37; leadership strength of, 6; leftist radicals and, 12; legacy of, 122; letter to students by, 16–17; Liddy on, 106– 110; Liu and, 108; Nixon FBI candidacy and, 3, 9n2; Nixon on retirement of, 116–

120; Nixon tenure discussions on, 110–111; Nov., 1969 D.C. protests and, 24–25, 44n49; Papich and, 27–28; on Princeton conference, 95; public support for, 105, 123n10; Rauh on, 146–147; retirement script for, 104–105; subversives and, 5–6; Sullivan on, 34–35; Sullivan ousted by, 37; tenure of, 49–50, 110–111; universities and, 16–17, 43n4; weight obsession of, 64 “Hoover, in an Unusual Letter, Defends Operations of the FBI” (New York Times), 31, 46n92 Howard Johnson Inn, 163 Hruska, Roman, 139 Hunt, E. Howard, 129, 151; background investigation of, 162; Bay of Pigs and, 2; Caddy and, 162; CIA connections of, 164; Colson and, 2; Gray letter, 200–201; guilty plea of, 190; hiding out in California, 204n26; Liddy and, 204n26; office of, 167–168; office safe contents, 168; Watergate Hotel room and, 162; White House connections of, 166–168 Huston, Tom Charles: on antiwar movement foreign interference, 22–23, 44n38; authority of, 45n56; on FBI shortcomings, 36, 47n117; Hoover and, 25–26, 32, 34– 35, 45n55; intelligence agencies and, 19–20; IRS and, 38–39; on naming of Huston Plan, 44n43; Nov., 1969 D.C. protests and, 24–25, 44n51; on presidential powers, 29–30; regrets expressed by, 40; senate questioning of, 39–40; Sullivan rapport with, 33–35 Huston Plan: Angleton and, 41; attorney general intervention, 28–33; background, 18–21; communist infiltration and, 44n38; conclusions about, 41–42; details, 21–26; “F.B.I. Is Said to Have Cut Direct Liaison with C.I.A.” and, 30–31, 46n88; FBI/CIA disputes and, 26–28; Helms and, 45n78; Hoover footnotes to, 33; Hoover opposition to, 19–20, 21, 35; illegality of, 19–20; intelligence agencies and, 18–20; intelligence politicization and, 38–42; Mitchell, John, and, 28–29, 36, 45n78, 45n84; Nixon lessons related to, 42; Sullivan and, 33–38; as unconstitutional, 40

IDIU. See Interdivision Intelligence Unit Image, 90–91 In re Neagle, 93 Intelligence: COINTELPRO, 14; “CONUS Intelligence,” 53, 71n16; FISA, 210, 221; gathering, 80; Huston defending actions of, 39–40; IDIU, 77, 79–80, 87–88; IRS and, 38–39; overreach, 209–210, 223n2; politicization of, 38–42; The Reform of

Index FBI Intelligence Operations, 59; warrantless collection of, 101n87 Intelligence community: citizen constitutional rights and, 50; confirmation bias in, 23; domestic intelligence and, 28; Hoover severs connection with, 26–28; Huston Plan lessons and, 42; National Security Act, 1947, and, 7; New Left and, 18–20; 1970s dysfunctional nature of, 41–42; overreach of, 209–210, 223n2; Sullivan on, 34–35. See also specific agencies Interdivision Intelligence Unit (IDIU), 77, 79– 80, 87–88 Internal Revenue Service (IRS), 38–39 Investigating the FBI (Watters & Gillers, eds.), 90, 100n56 IRS. See Internal Revenue Service Jaworski, Leon, 198 Johnson, Lyndon B.: “Exemption of J. Edgar Hoover from Compulsory Retirement for Age” signed by, 33, 46n98; FBI actions justified by, 78

Kasowitz, Mark, 215–216 Keith case. See United States v. United States District Court Kelly, Clarence, 197 Kennedy, Ted: Chappaquiddick and, 151; Confirmation hearings and, 137–138, 144, 148 Kent State shootings, 21–22 Key Bridge Marriott, 181, 206n80 King, Martin Luther, Jr., 52 King, Michael, J., 167–168 Kissinger, Henry, 22 Kleindienst, Richard, 194 Kossack, Nathaniel, 80–81 Krogh, Egil, 23, 174 Kunkel, Bob: Bernstein offer, 186; Gray meeting, 191; Lano memo and, 175, 205n57; Mahan and, 205n67; as rule follower, 178, 205n67; Saturday morning massacre and, 170–173

Lano, Angelo, 8; Alvino and, 192–193; Barker address books and, 168–169; Bernstein and, 185–190, 207n110; as Bureau clerk, 199; C-2 and, 164–165; Chenow and, 178–179; Delaware assignment of, 203; determination of, 4; disdain of reporters by, 190; on Felt, 176; gag order impacting, 186; grand jury confidentiality and, 207n109; Gray meeting and, 191–192; Kunkel and, 175, 205n57; leads blocked for, 169–170, 173; legacy, 202–203; McDermott and, 207n112; memo of, 173– 179, 205n57; Mitchell, Martha, interview,

243

192–193; Nixon resignation and, 198–199; praise of, 165; qualifications of, 164–165; Saturday morning massacre and, 170–173; Saturday night massacre and, 196–199; as scapegoat, 188–190; silent confirmation and, 187; success analyzed, 199–200; Watergate break-in and, 1–2, 161; Woodward and, 185, 188–190, 207n110 Lawhorn, Mary Jane, 65–66 Leak (Holland), 205n61 Leaks: confidence loss from, 185; Felt, 182; Gray, 178–179; Operation CONUS, 57; Sullivan, 37; wiretapping and, 116, 125n79 Legislation: FBI director, 4–5; FBI history and, 6–7. See also specific legislation Levi, Edward, 210 Levi Guidelines, 210, 211 Levin, Joseph, 211 Liddy, G. Gordon, 129; Brennan and, 110; Bureau clerk and, 107; Chenow and, 174– 175; conviction of, 190; CREEP firing of, 174, 179; eccentricities of, 179; Ellsberg and, 108, 109–110; on FBI as antiquated, 106; on Hoover, 106–110; Hunt and, 204n26; leaving FBI, 117, 125n89; Mahan approaching, 179; Mardian and, 110; Nixon on, 117; on Sullivan, 109–110; Tennyson quoted by, 124n28; on timing of Hoover departure, 107–109 Liu, Marianna, 108 Lockard, Duane, 31

Mafia, 91 Magallanes, Paul, 8; burglars interviews by, 165– 166; Gleason interview, 180–181; Hoback friendship with, 184; Hoback interview and, 181–182; Hoback interview leak and, 182; Saturday morning massacre and, 170–173 Mahan, Daniel, 8; burglars interviews by, 165; Dean and, 196, 201; Hunt letter on, 201; Hunt office contents and, 167–168; Kunkel and, 205n67; Liddy approached by, 179; on Watergate investigation legacy, 202; White House interviews and, 200–202 Mardian, Robert: Liddy and, 110; wiretapping and, 111–112 Maroney, Kevin, 79–80 Martinez, Eugenio, 162; Cuba and, 164; Magallanes interview with, 166; Mahan interview with, 165 McCarthy, Eugene, 52 McCarthy, Joseph, 12, 42n3 McCord, James, 2, 135; CIA connections of, 164; conviction of, 190; CREEP and, 162, 180; Howard Johnson Inn and, 163; political pressure applied to, 191 McDermott, Jack: Gray meeting and, 191; Lano and, 207n112; Mitchell, Martha,

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Index

interview and, 193; Saturday night massacre and, 197; securing White House, 193–194, 195 McGovern, George, 31 Media, PA, burglary: background of, 59–60; BPP and, 64, 67–68; Church Committee and, 74n110; civil rights movement and, 66–68; college campuses and, 62–63; conclusions, 98; of FBI field office, 51, 59–70; identifying perpetrators of, 61–62; intent of, 63; members revealed, 68–69; Mitchell, John, and, 60; overview, 51; peaceful activism and, 65–66; president/FBI relationship and, 70; Washington Post article on, 60, 73n63 Medsger, Betty, 60, 62, 68–69 Melville, Sam, 13–14 Meredith, James, 86 Military, domestic investigations by, 71n25. See also Operation CONUS Mindermann, John, 8; on agent autonomy, 178; Bureau securing White House and, 194; Hoback friendship with, 184; Hoback interview and, 181–182; Lano and, 165; Saturday morning massacre and, 170–172; Watergate impressions of, 162–163 Mitchell, John: Baldwin and, 174; on DOJ/FBI authority, 93–94; Hoover retirement script by, 104–105; Huston Plan and, 28–29, 36, 45n78, 45n84; Media burglary and, 60; Mitchell, Martha, interview and, 192; secret campaign fund controlled by, 128 Mitchell, Martha, 192–193 Moratorium Day, 52, 70n3 Morrison v. Olson, 218 Mueller, Robert, 214, 215 Muskie, Edmund S.: Earth Day Rally and, 31, 81–83; sabotage of, 127–128 Myers v. United States, 218

National Public Radio (NPR), 183 National Security Act, 1947, 7 Nelson, Gaylord, 84, 99n38 New Left: background about, 11; bombs and, 15; Burroughs on, 13, 14; communism supporting, 22, 44n38; communist funding and, 14; conclusions about, 42; defined, 73n91; history surrounding, 12–13; Hoover letter to students and, 16–17; intelligence agencies united against, 18– 20; IRS and, 38–39; Melville and, 13–14; Old Left and, 43n7; racial equality and, 14–15; Silent Majority and, 15; undercover FBI agents and, 16; violence and, 13. See also specific organizations New Republic, 88–89, 100n52 New York Times: on Bureau securing White House, 194; “F.B.I. Is Said to Have Cut

Direct Liaison with C.I.A.,” 30–31, 46n88; “FBI Said to Bug a House Member,” 113; “Hoover, in an Unusual Letter, Defends Operations of the FBI,” 31, 46n92; “Poll Finds FBI Losing Support,” 123n10; Trump interview, 214 Nixon, Richard: on communist funding, 14; cover-up involvement of, 151–152; Cox fired by, 197; Dean turns on, 196; FBI agent aspirations of, 2–3, 9nn2–3; Frost interview, 216; Gray and, 128, 129, 132– 133, 139–140, 153–156; Hoover retirement discussions, 116–120; Hoover tenure discussions, 110–111; Huston Plan lessons surrounding, 42; impeachment articles passed against, 198; impeachment proceedings and, 219–220; Jaworski appointed by, 198; Kleindienst conversation, 194; on Liddy, 117; Liu and, 108; on political terrorists, 13; Princeton conference and, 118–119; reelection of, 190; resignation, 2; Sullivan and, 118; tape recordings and, 196; wiretapping and, 112–113, 114, 116–117. See also Executive Branch, under Nixon NPR. See National Public Radio Nuzum, Charles A., 191 Odle, Robert, 180 Ogarrio, Manuel, 173 Old Left, 43n7, 73n91 Operation CONUS: antiwar demonstrations and, 52–53; Carmichael and, 53; computer-collection capabilities of, 55, 57, 72n47; “CONUS Intelligence” and, 53, 71n16; Ervin and, 54; FBI interaction with, 55; First Amendment rights and, 56; leaks and, 57; legality of, 56; military downplaying, 58; Nixon denouncing, 58; origins of, 55; overview, 51; peaceful groups monitored by, 55; Persons of Interest and, 52; privacy rights and, 56, 72n42; war tactics used in, 55–56; worstcase scenarios and, 56–57; Ziegler comments on, 58 Organized crime, 91

Palmer, Mitchell, 12 Papich, Sam, 27–28 Parkinson, Ken, 180 Paul, Peter, 197 Peniel, Joseph, 14–15 Pentagon Papers, 109 Persons of Interest, 52 Petersen, Henry, 151, 198 Philadelphia Red Squad, 65 Pincus, Walter, 90, 91–92 Plamondon, Lawrence “Pun,” 96–97, 101n83

Index Plumbers. See Burglars, Watergate; specific persons “Poll Finds FBI Losing Support” (New York Times), 123n10 Powell, Lewis, 95–96, 97 Powers, Richard Gid, 69 Princeton conference, 76; Cook and, 91; Elliff and, 92–93; Hoover on, 95; Nixon and, 118–119; Pincus and, 90, 91–92; scrutiny of FBI by, 89–95; Wilson and, 89, 100n55 Privacy rights, 56, 72n42 Protests, Nov., 1969 D.C., 24–25, 44n49, 44n51 Purvis, Melvin, 106 Pyle, Christopher, 8; background of, 54; Church Committee and, 59; Elliff and, 58– 59; harassment of, 57–58; informants used by, 54, 57; leaks, 57; revelations of, 58– 59; whistleblowing by, 53, 71n16; Youngstown Sheet & Tube Co. v. Sawyer and, 72n40. See also Operation CONUS Quaker Action Group, 65

Rader, Dotson, 12 Rauh, Joseph L., Jr., 146–147 Red Scare, 12 The Reform of FBI Intelligence Operations (Elliff), 59 Richardson, Elliot: Bureau securing White House and, 195; Saturday night massacre and, 197 Riha, Thomas, 27 Robenalt, James, 219–220 Roosevelt, Franklin D., 77, 98n9 Rothenberg, Sandra, 91 Rubin, Jerry, 24 Ruckelshaus, William D.: acting directorship assumed by, 193; Bureau securing White House and, 195; Saturday night massacre and, 197 Ruhl, John, 178 Rule of law, 223 Russia investigation, 213–214 Ruth, Henry, 198

Sabotage, 106, 123n17 SACs. See Special agents in charge Safire, William, 114–115 Saturday morning massacre, 170–173, 205n45 Saturday night massacre, 196–199 Scalia, Antonin, 218–219 Scrutiny: Congress, 81–84; DOJ, 84–89; Elliff, 76–81; “Fact Sheet on the FBI” and, 75; Investigating the FBI, 90, 100n56; scholars, 89–95; in United States v. United States District Court, 95–98 SDS. See Students for a Democratic Society Secret Service, 193–194

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Segretti, Donald, 141–142 Sessions, Jeff, 214 Silbert, Earl, 129, 173; Bernstein and, 185– 186; Campbell and, 188; Gray meeting and, 191–192; Lano as scapegoat and, 189; Sloan and, 187 Silent Majority, 15 Silverman, Craig, 190 Sinclair, John, 96 Sirica, John J., 186 Sloan, Hugh, 187 Smiley, Joseph R., 27 Smith, Sandy, 171 Special agents: characteristics of, 90–91; FBI Headquarters and, 4; female, 130–131; as independent contractors, 178; Lano success analyzed, 199–200 Special agents in charge (SACs), 169, 204n32 Steele, Christopher, 212 Steele Dossier, 212–213 Student activism: foreign interference in, 22– 23, 44n38; Lawhorn and, 65–66; presidential talking paper on, 18. See also Huston Plan Students: FBI recruitment of, 60, 73n66; Hoover letter to, 16–17; Hoover on black students, 67–68 Students for a Democratic Society (SDS), 12 Subversive Activities Control Board, 83 Sullivan, William: The Bureau by, 34; Domestic Intelligence Division and, 34; “The File on J. Edgar Hoover” and, 35–36, 47n116; on Hoover, 34–35; Hoover ousting of, 37; Huston Plan and, 33–38; Huston rapport with, 33–35; on intelligence community, 34–35; intelligence gathering and, 36–37; leaks by, 37; Liddy on, 109–110; Liu and, 108; Nixon and, 118; retirement impact, 46n88; wiretapping and, 111–112 Tolson, Clyde, 3, 61 Totten v. United States, 93 Truman, Harry, 72n40 Trump, Donald: Comey fired by, 213–214; Comey praise by, 212; FBI investigation into, 7; Kasowitz and, 215–216; loyalty and, 213; New York Times interview of, 214; obstruction of justice and, 217–218; Russia investigation and, 213–214; Steele Dossier and, 212–213. See also Executive Branch, under Trump “Trump Suggests the FBI Director Reports Directly to the President” (USA Today), 215 Tunney, John, 136–137, 143 Unitary executive, 219

246

Index

United States v. United States District Court (Keith case): Carter and, 221; conclusions, 98; foreign intelligence warrantless collection and, 101n87; Fourth Amendment and, 97; Plamondon and, 96– 97; Powell final opinion in, 95–96, 97; scrutiny of FBI in, 95–98; White Panther Party and, 96 Universities: Hoover and, 16–17, 43n4; Media burglary and, 62–63; New Left and, 16–17 USA Today, 215 Vietnam antiwar demonstrations, 52–53

Walters, Bob, 44n49 Washington Post: Hoback interview leaked in, 182; Media burglary and, 60, 73n63; Ziegler and, 190 Watergate break-in: Baldwin lookout role in, 163–164; cover-up, 151–152; as CREEP operation, 181; Cuban connections in, 164; Gray and, 133, 135–137; items recovered in, 161–162; Lano and, 1–2, 161; perpetrators identities in, 162 Watergate Hotel: burglars possessions in, 2, 162; Hunt and, 162 Watergate investigation: Alexandria Field Office and, 203n7; Barker address books and, 168–169; CIA involvement, 166, 169– 170; Colson interview in, 166–167; CREEP money trail, 179–185; crippling of, 7; Dean and, 141–144; FBI jurisdiction over, 135, 158n39; Felt compromising, 176–177; Gleason interview, 180–181; Gray compromising, 6, 176; Gray confession regarding, 190–192; Gray confirmation hearings and, 127–128, 133, 135–137, 139; Gray offering of files in, 139; Gray prioritizes, 168–170; Hoback interview, 181–183; Hunt letter on, 200– 201; Hunt White House connections, 166–168; initial findings in, 161–164; jail interviews in, 164–166; Key Bridge Marriott and, 181, 206n80; Lano and Bernstein encounters, 185–190, 207n110; Lano and Woodward encounters, 185, 188– 190, 207n110; Lano headquarters memo, 173–179; Lano success analyzed, 199–200;

leads blocked in, 169–170, 173; legacy of, 202–203; Magallanes and, 165–166; Mahan and, 165, 200–202; McCord and, 135; Mindermann impressions, 162–163; Mitchell, Martha, interview and, 192–193; Saturday morning massacre and, 170–173; Saturday night massacre and, 196–199; Segretti and, 141–142; Senate Watergate Committee and, 196; stall in, 173; White House interviews, 200–202; White House secured in, 193–196 Watters, Pat, 90, 100n56 Weather Underground Organization, 22 Weicker, Lowell P., Jr., 128–129 White, Theodore, 22 White House: Bureau securing of, 193–196; connections, 133–134, 166–168; interviews, 167–168, 200–202, 204nn23–25 White Panther Party, 96 Wilson, H. H., 89, 100n55 Wiretapping: confirmation hearings on, 137– 138; “FBI Said to Bug a House Member,” 113; leaks and, 116, 125n79; Mardian and, 111–112; Nixon and, 112–113, 114, 116– 117; Safire and, 114–115; Sullivan and, 111–112; Ziegler and, 112–114 Wittes, Benjamin: on obstruction of justice, 217–218; on Trump and FBI, 215 Woods, Rose Mary, 165 Woodward, Bob, 3; “FBI Finds Nixon Aides Sabotaged Democrats” by, 185; Hoback and, 182–184; Hoback interview leak and, 182; Lano and, 185, 188–190, 207n110; mistake of, 189–190; scapegoating of Lano by, 188–190; Watergate legacy and, 202 Yablonski, Joseph A., 146 Young, David: background about, 174; Chenow and, 174–175; Dean prepping, 191 Youngstown Sheet & Tube Co. v. Sawyer, 72n40

Ziegler, Ronald: Bureau securing White House and, 194; Operation CONUS and, 58; Washington Post and, 190; wiretapping and, 112–114

About the Book

In 1974, Richard Nixon resigned in disgrace. In 2020, Donald Trump was impeached. Both were investigated by the FBI, an agency under their control. How is it that the bureau is responsible for investigating the president it serves? How can it do so effectively? Nixon’s FBI confronts these questions. Melissa Graves draws on groundbreaking research and personal interviews with several of the agents involved to take us back to the time of the Watergate scandal. Her new perspective on J. Edgar Hoover’s last days, his successor’s tenure, and the many obstacles that FBI special agents faced from both their leadership and the White House reveals the always complex and often fraught relationship between the president and the FBI . . . and makes palpable the ways that history repeats itself. Melissa Graves is assistant professor of intelligence studies at The

Citadel.

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