Last month, a federal court ruled that the testimony Richard Nixon made to the Watergate grand jury in the summer of 1975 should be unsealed and released to the public. The decision has the potential to settle finally the question of whether the nation's 37th president was a criminal.
The grand jury testimony, which Nixon gave in San Clemente, was the only time in history he was required by law to be honest about Watergate. And now we will know what he said.
While Nixon was president he refused to testify at the trials of Watergate conspirators or before the Senate Select Committee investigating Watergate. The Constitution, he insisted, forbade it. As the president's lawyer said in 1973, testimony by the president would be "a serious threat to the nature of the presidency as it is created by the Constitution," because it would involve members of the legislative or judicial branches sitting in judgment of the head of the executive branch.
The Constitution did, he allowed, provide for holding the president legally accountable. The method for doing so was impeachment, followed by trial in the Senate. But Nixon never faced that trial — because, 37 years ago Tuesday, he resigned days before it was to take place, in part to avoid just such a grilling.
Exactly one month later, his successor, Gerald Ford, granted Nixon a full and unconditional pardon for any crimes he might have committed while in office. That kept the ex-president out of the witness chair once more — at least in any hypothetical trial of Richard M. Nixon. There was no reason, however, Watergate prosecutors insisted, he couldn't be called to testify concerning other Watergate conspirators.
For months he was spared the ordeal due to a long convalescence for a joint condition. He was accused of dodging. Privately, he said he would "rather die" than testify before a grand jury. But this was a powerfully proud man. Nixon did not like to be accused of dodging. So it was that in the summer of 1975 he accepted the request of the Watergate special prosecutor to reveal what he knew, and the grand jury traveled to San Clemente to listen.
Grand jury testimony is traditionally secret. Current law allows for an exception, however, if the testimony is of great historical importance, and if the people whose privacy grand jury secrecy protects are dead. I was one of the historians who submitted a brief in the case, and in it I argued that this first condition was more than met. U.S. District Judge Royce C. Lamberth agreed, though the Justice Department could still appeal the ruling.
Here was my argument: The 1975 testimony in California was the only time Richard Nixon testified under oath. The Ford pardon did not cover perjury during this testimony. If he lied, he was breaking the law.
So, given that, what were the things Nixon addressed?
According to contemporary news accounts, he was asked questions about whether he had doctored transcripts of White House tapes presented to Senator Sam Ervin Jr.'s Select Committee investigating Watergate.
Of course, when Nixon presented the actual tapes to Watergate investigators after the most strenuous attempts imaginable to defy a subpoena to do so, one tape of a conversation he had with his top aide H.R. "Bob" Haldeman — immediately following a meeting in which Haldeman and confederates discussed a plan to obstruct justice after the Watergate burglary — included an 18 1/2-minute gap, which experts soon determined had to have been created deliberately.
Nixon apparently was asked about that gap during his testimony.
Finally, according to those same accounts, he was asked about whether and how his administration used the IRS to harass designated administration "enemies."
Let me put it baldly. Either Nixon participated in falsifications of evidence implicating him in crimes, or he did not. No subsequent evidence has emerged in the intervening decades to settle those questions. So if Nixon followed the law and told the truth about these matters, we will know once and for all whether or not he was a criminal.
We don't know today whether Nixon falsified evidence, but we do know he used the IRS to harass his enemies. Whether or not this was a crime remains unclear. But if the grand jury testimony reveals him claiming he did not do such things, that will prove him to be a criminal — guilty of the crime of perjury.
Was this testimony all that incriminating? Nixon's two closest aides, Haldeman and John Ehrlichman, certainly thought so. They sought access to it in order to appeal their own convictions — convinced it would prove the president made these two men scapegoats for crimes for which he himself was responsible, and for which they eventually went to jail.
Evidence suggests Nixon thought so too. Time reported he entered the room looking "affable, jaunty," and "fit." And that he emerged "pale and shaken."
There has always been an irreversible pattern to Watergate revelations: Every time something new is revealed to the public, it always points in exactly one direction —upward — further implicating Richard M. Nixon.
For years, new information continued to shock people who thought they had finally sounded the depths of the president's paranoid venality. Maybe this time it will be different. My bet, though, based on the evidence, is that he will shock us once more.
Rick Perlstein is the author of "Nixonland: The Rise of a President and the Fracturing of America."