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Egil Krogh's Lessons Learned

By Robin Lindley

Our government teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
—Justice Louis Brandeis

Seattle attorney Egil “Bud” Krogh Jr. hopes his memoir will help others learn from the “breakdown in integrity” in the White House of President Richard M. Nixon, as another administration pushes the limits of executive power based on claims of national security and executive privilege.

In Integrity: Good People, Bad Choices, and Life Lessons from the White House (Public Affairs), co-written with his son Matthew, Krogh, 68, explains how loyalty to his superiors overshadowed his oath to uphold the Constitution.

An idealistic, straitlaced Bud Krogh graduated from the University of Washington School of Law in June of 1968 and joined the law firm of his friend, Seattle real estate and land-use attorney John Ehrlichman. Later that year, President-elect Nixon hired Ehrlichman as his chief counsel, and Ehrlichman asked Krogh to work with him as a policy analyst.

In 1971, the mild-mannered Krogh was assigned to direct the White House Special Investigations Unit known as “the Plumbers,” charged with plugging leaks of information that ostensibly threatened national security, such as antiwar activist Daniel Ellsberg’s release of the Pentagon Papers to the The New York Times. The unit brought on former FBI agent G. Gordon Liddy and former CIA agent E. Howard Hunt, and planned a 1971 break-in at the office of Ellsberg’s psychiatrist, Dr. Lewis Fielding. The hope was to find information that would discredit Ellsberg, but the break-in yielded nothing. (The next year brought the infamous break-in at Democratic headquarters at Watergate.)

In 1973 Krogh was indicted, and after prolonged reflection rejected his national-security defense and pleaded guilty to criminal conspiracy to violate Dr. Fielding’s civil rights. He rejected any deal for a lighter sentence by asking Watergate Special Prosecutor Leon Jaworski to permit him to testify only after sentencing. He was sentenced to two to six years in prison and served about 4 months.

Krogh was disbarred in Washington state for five years. He won reinstatement in 1980 with the blessing of Jaworski, who found Krogh remorseful, and with the deft counsel of his personal attorney, the late Bill Dwyer.

Krogh worked at Dwyer’s Seattle law firm for 15 years, then started his own firm, now called Krogh & Leonard, where he specializes in energy law.

Ellsberg praises Krogh’s “extraordinary courage” in the foreword to Integrity and adds, “I would be glad—in current circumstances above all—if every public servant were to read and learn from this memoir. Our nation and our constitutional democracy—presently in danger—would be safer for it.”

Krogh recently discussed his White House experience, legal woes and restoration of integrity with L&P from his office on Lake Union in Seattle.

L&P: Why a memoir now, more than 35 years after your work for the Nixon administration?
EK: First, it took a long time to get the perspective that I needed. The thesis of the book is that there was a major breakdown in personal integrity when we worked on these assignments. Second, a number of things happening in the current administration troubled me deeply. I wanted to write the book that would give a way to avoid the errors in judgment or crimes I committed because of this clash between this national security imperative and civil rights. I obviously came down on the wrong side in 1971, and there is a huge amount of pressure today in this Bush II administration to come down on the wrong side as well.

L&P: You point out lapses of integrity in the Bush administration.
EK:
The book is not primarily a polemic against the Bush White House, but two things I found egregious. One was the National Security Agency eavesdropping program that they put into effect without going through the Foreign Intelligence Surveillance Act procedures. If they felt the FISA statute was not adequate, they could have gotten the authority through Congress to do what they did without authority. Why opt for an illegal process when the legal one was available? I thought that was misguided and wrong.

The second [action] was even more troubling. It was a legal memorandum written in the Office of Legal Counsel [that] . . . defined torture in an extremely narrow way so that [a prisoner] had to be near death or dismemberment before you hit the threshold of torture, which is fundamentally wrong.

They also argued that the authority of the commander-in-chief had no limitations, which was fundamentally wrong. Richard Nixon had a similar view. In his [1977] interview with David Frost, he said, “When the president does it, that means it’s not illegal.” That’s just staggering. Dick Cheney probably agrees with Nixon’s view. Dick’s a friend, but I do not subscribe to his vision of what presidents and vice presidents can do.

L&P: Your friend John Ehrlichman, the White House counsel, hired you in 1968. Were you a Republican activist for Nixon then?
EK:
No. I’ve never been a Republican activist. I’ve always been a policy wonk. My job was to take the goals the president wanted to achieve and put them into a policy framework that made sense, and then take the next steps.

To be invited to work on the White House staff was the greatest opportunity of my life. I went into it with tremendous enthusiasm and commitment—almost to a fault. I would do what these men asked of me because I trusted John Ehrlichman completely. He hired me to work in his law firm. Our families have been close since 1952.

L&P: After Ellsberg released the Pentagon Papers to The New York Times, you were ordered to plug leaks of classified information.
EK:
That was in July 1971. There was a major flare-up in the White House . . . The Papers did not relate to anything Nixon was doing, but [National Security Advisor] Henry Kissinger viewed [their] release as a national-security crisis. There was [also] an intelligence report that the Pentagon Papers got to the Soviet Embassy before they got to The New York Times. That intelligence never proved true, but to me, if you [had] evidence that Dr. Ellsberg had been working with the Soviets—which was in Richard Nixon’s mind—you’d prove a level of treason that would have undermined [Ellsberg].

With this backdrop, a break-in was recommended to find out all we could about Dr. Ellsberg’s mental state and his propensity to release top-secret information.

We made decisions very quickly. We didn’t adequately understand the facts, and that’s why I call it a breakdown in integrity. We asked all the operational questions, but not the critical questions of whether it was legal or ethical or good.

L&P: So G. Gordon Liddy and E. Howard Hunt plan this break-in of the office of Ellsberg’s psychiatrist, and you know of the plans?
EK:
Absolutely.

L&P: As a lawyer, did the proposed violation of Dr. Fielding’s rights raise red flags for you?
EK:
If you get into that mindset that national security is the only real consideration, the other things that are really critical—the legality of it, the effect on these people, the privileges that people enjoy—are never considered. If a psychiatrist’s office is harmed in some way, it’s unavoidable he’ll be hurt, but that’s what happens in a military-national security operation.

L&P: And they ransacked Fielding’s office?
EK:
They’d trashed the office. They wanted it to look as if someone [was] trying to steal drugs, to deflect the police. That’s what the police accepted as the reason for the break-in. They closed the investigation because they’d arrested another person in Beverly Hills, and he admitted to this crime, which he had not done.

L&P: How did your boss, John Ehrlichman, respond?
EK:
I showed him the pictures. He said, “This is far beyond anything I approved. Shut it down.” Which I did.

To my knowledge, that group did nothing else. But [Hunt and Liddy] went on to work for the Committee to Re-elect the President. If we had said in 1971 that this White House would not tolerate anything illegal on behalf of national security, they would not have [had] any operational precedent on which to base a recommendation to go into the [Watergate] office of the Democratic National Committee [in 1972].

L&P: In Witness to Power, Ehrlichman wrote that he didn’t approve the Fielding operation.
EK:
In a memorandum, we recommended a covert operation to examine all the files still held by Dr. Ellsberg’s psychiatrist. [Ehrlichman] had two options: approve or disapprove. And he put a big “E” after “approve,” and wrote underneath it in his longhand, “Under your assurance it is not traceable.” He did not feel that that approval justified what was done in Dr. Fielding’s office.

John did not see that he did anything wrong at any time. He believed you could do these things under the president’s authority as commander-in-chief.

L&P: How did your thinking evolve and lead to your guilty plea?
EK:
National security was the driver through 1971 and 1972. Then, in May 1973, Judge Matt Byrne, who was presiding over the trial of Ellsberg and [Anthony] Russo, asked for information from anyone on a break-in or other misconduct in 1971. I [sent] him an affidavit, which was totally inculpatory. Within two days, [Judge Byrne] dismissed all charges against Ellsberg and Russo. We had a hearing before Judge [Gerhard] Gesell in October on a motion that I was entitled to raise the national-security defense. When we argued before Judge Gesell that a person in my position was entitled not to be forthcoming about national-security information,
he said that’s incompatible with our system of law.

I went to Williamsburg over the Thanksgiving holiday with my family [and had] an epiphany behind the House of Burgesses. It was amazing that I was under indictment in Washington and California, and yet I was able to travel, to go to church, to see my friends, to talk to reporters. All these rights were mine. What was I defending? The right of someone in government under some questionable doctrine of national security to strip away from another American citizen his right to be free from an unreasonable unwarranted search.

This conduct struck at the heart of what this government was established to protect against. I turned to my wife and said, “I’ve got to plead guilty.”

I went to Leon Jaworski the following week. [He asked] are you going to try to justify what you did because higher-ups told you to do it—the Nuremberg defense? I said, no, I’m not trying to do that.

Four days after that, I stood before Judge Gesell and said the sole basis for my defense was that I acted on behalf of national security, and I no longer believed that applied. Therefore, I had no defense, and that was it.

L&P: You refused to offer testimony in other cases until you were sentenced.
EK:
I was very clear about that with Jaworski. I said I want to tell the truth, but you have to agree that I’ll be sentenced first, because I’m not trading testimony here for a light sentence. … Jaworski became my strongest supporter in getting back to the Bar.

L&P: Unlike other administration officials, you were seen as a hero then for taking responsibility for your actions, pleading guilty, and serving your sentence.
EK:
There’s nothing heroic about taking two years to figure this out. I felt I was doing the right thing, and I was wrong. So you take responsibility. You plead guilty. Then, if there’s punishment involved, you do that as honorably as you can. And you go on.

When you’re a lawyer, you have an obligation to stand up for the rule of law, and it took me too long to understand that, but I finally got it.

L&P: You and Ellsberg are now friends. Did you apologize to him?
EK:
Yes. I also apologized to Fielding in [August] 1974. I needed to see him personally and say I’m sorry. He welcomed me, and I apologized.

The next day, I talked with Richard Nixon, after he resigned and before he was pardoned.

L&P: Wasn’t Nixon confused about whether he ordered the Fielding break-in?
EK:
He had a hard time keeping his break-ins straight. I told him, to my knowledge, he did not know of the Fielding break-in. The Brookings Institution burglary was stopped by John Dean about three weeks before [we] came up with going after Fielding. John and I didn’t talk. It’s amazing how compartmentalized things were.

L&P: What’s your opinion of Richard Nixon now?
EK:
I have a tremendously mixed view of him. What was done in the Fielding and Watergate break-ins was totally unnecessary, driven in part by Nixon’s view of political opponents. His hatreds of people, which he acknowledged, contaminated activities that didn’t need to go forward if he had stayed at a higher level.

I think he was one of the great visionary presidents. He saw how the world worked.

He had it in his hands to be a great president, but this darker side of his nature, maybe the Darth Vader side, led to serious abuses that didn’t have to occur. That saddens me, because we never reached the potential he had. I’m sorry for the role I played in it.  L&P

Robin Lindley is a Seattle attorney and writer. He was the 2006 chair of the World Peace Through Law Section of the Washington State Bar Association. He has worked as a law teacher, government attorney and staff attorney for a congressional investigating committee.

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