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HNN Hot Topics: The Watergate Transcript Controversy

Since the publication of Sunday's New York Timesstory accusing esteemed historian Stanley I. Kutler of making serious mistakes in the Watergate transcripts he published in a book in 1997, bloggers have been wondering how the Times came upon it. Speculation has been wild. Had Peter Klingman, the historian who leveled the main charge (in an article under consideration by the American Historical Review), tipped off the paper? Had someone at the American Historical Review (AHR) leaked the story? And what had been the motives of the leaker, if there was one? Was there a plot to destroy Kutler? Was this part of the ongoing effort by Nixon apologists to clear Nixon and put the blame for Watergate on John Dean?

An investigation by HNN shows that none of these surmises is accurate, though long-time critics of Kutler are involved, some of whom claimed in the past that Dean was the prime mover behind Watergate. The series of events that culminated in the Times's publication was less the result of design than of that ever-favorite explanation of the modern historian, contingency. While a small band of researchers have long been critical of the Kutler transcripts, none plotted to put the controversy on the Times's front-page--that was the work of a relative newcomer to Watergate research--but they were delighted when the article appeared. In fact, they had long ago given up hope of attracting the media's attention to the problems they had found in the transcripts. One of the reasons Peter Klingman had decided to go to the AHR with his article was because he and others had concluded that the media were indifferent to the story. A decade ago when the researchers had tried to get the media to take notice of errors that had cropped up in the transcripts they had succeeded in getting just one outlet, the somewhat obscure Tampa Tribune, to publish a single story. (Click here to read an excerpt.)

Ironically, both Dean and Kutler at key points may have inadvertently helped trigger the events that ultimately led to the Times's publication.

The story begins a long time ago.

Contingency #1: Dean sues Len Colodny, leading to the release of Watergate tapes. Colodny was the co-author of the controversial book, Silent Coup (St. Martins Press, 1991), which claimed that Dean, not Nixon, was behind the Watergate Affair. After the book's publication Dean sued Colodny and St. Martins Press. The suit was eventually settled, but as with everything involving Colodny and Dean, the suit's settlement became a matter of dispute. Colodny says his insurance company paid him some $400,000 to get out of it. John Dean says a confidentiality agreement prohibits him from saying what the settlement was but he was happy with it, noting that $15 million dollars was spent defending the book, which the publisher stopped selling. (The book can be read online at Colodny's website.)

The end of the lawsuit did not end what by now had become a small war between two dedicated camps, with Dean and his supporters on one side and Colodny and his supporters on the other. But things did quiet down. Then one day in 1998 while listening to the Watergate tapes he had subpoenaed in the course of the lawsuit, Colodny happened to realize that Stanley Kutler's transcripts (published in his 1997 book, Abuse of Power: The New Nixon Tapes) included some errors, which he believed were serious. This was Contingency #1.

It was at this point in time (sorry; couldn't help myself) that Peter Klingman became involved. Working with Colodny, Klingman, a Ph.D. (University of Florida, 1972) who previously had focused on Florida history, assembled the tapes in an archive and started a website, The Nixon Era Center. In 1998 the Tampa Tribune published its story about the transcript errors and in 2002 Klingman published a long article analyzing them. He appended to the article a sharply-worded attack on Kutler's professional standards. No one paid the least attention. For six years that was pretty much the end of the debate involving the transcripts' accuracy.

Contingency #2: Kutler declines use of his transcripts. Then last summer from out of the blue Colodny heard from the author of a new book that quoted the Nixon tapes. The author (whom we'll call Mr. X) was concerned. When he was researching his book he had asked Kutler for permission to quote from the Abuse of Power transcripts. Kutler, with whom he had crossed paths before under unpleasant circumstances, had said no and Mr. X had hired someone to listen to the tapes at the National Archives to get the quotes that were needed. But Kutler, believing Mr. X had actually simply gone ahead and used his transcripts without permission, was now demanding a settlement of some kind, without specifying what he wanted. Stirred by this story, which smacked to him of a threat, Colodny thereupon decided to take a fresh look at the tapes. It was then that he realized, he told HNN, that Kutler had made more mistakes than either he or Klingman had previously identified. Colodny believed the errors seemed to fall into a pattern that minimized Dean's responsibility for the Watergate cover-up.

Kutler admits he made mistakes transcribing the tapes but denies he tried to minimize Dean's role. He concedes he did not give Mr. X permission to use his transcripts. "Not very fraternally of me, I will admit," Kutler told HNN in an email, "but why did he think he had license to incorrectly malign me, and then expect me to [do] him a favor?"

How the tapes should be interpreted is often a matter of subjective opinion. Colodny himself originally argued in Silent Coup that Dean, not Nixon, was mainly behind the Watergate cover-up. In 2002, after listening to the tapes he subpoenaed in the course of the lawsuit with Dean, he changed his conclusion and charged point blank that Nixon was guilty as hell. But he was certain now that Kutler's errors in transcribing were deliberate.

Once again Colodny called Klingman. This time Klingman decided that instead of going to the media he would make his case to academics. In August he began researching and writing the article that he eventually was to submit to the American Historical Review. In writing the piece he consulted experts who had long been involved in Watergate research: Herbert Parmet (author of a biography of Nixon), Joan Hoff (author of the revisionist Nixon Reconsidered), Irv Gellman (author of a biography of Nixon), and Fred Graboske (a tapes archivist at the National Archives). To a person, says Colodny, all were appalled at the errors in Kutler's transcripts. (Hoff, Gellman, and Graboske have confirmed to HNN that they were disconcerted by Kutler's errors. Parmet told HNN he believed the case Klingman made was overheated and not entirely convincing. "I could not go into court with this evidence," he wrote in an email. ) The article was finished in December and submitted to the AHR in January.

Contingency #3: A friendship leads to the New York Times. Last October, while Klingman was pulling together his article, a Mr. Y, new to Watergate research, asked Colodny to review the manuscript of a book he was writing. Mr. Y cited Kutler's transcripts in the book. Colodny warned him off, telling him the transcripts were not always reliable. This January Mr. Y, whose book had just been published, mentioned to Colodny that he knew a reporter at the New York Times who might be interested in the story about the transcripts. "I'd like to run this by" her Mr. Y said, according to Colodny. Colodny agreed to cooperate by providing the audio recordings of the transcripts in question. He is convinced that it was those audio recordings which persuaded the Times to publish its piece.

The end result of this series of events is that Stanley Kutler, a hero to historians for helping pry loose the Watergate tapes, has seen his scholarship called into question in a prominent forum by longtime critics. Because the criticism landed on the front-page of the New York Times suspicions once murmured only by a few in relative obscurity have inescapably become the subject of vigorous public debate.

We have now laid out the facts as best as can be established as to how this debate came about. Who's right and who's wrong? This is a question beyond the scope of this article.

Last November, after the publication of his edited compilation of 201 hours of unreleased Watergate tapes, historian Stanley Kutler touted it as the definitive record of President Richard Nixon's conversations.

"I am aware of my responsibility for accuracy, knowing I have compiled a historical record others will use," Kutler wrote.

But an examination of the tapes and the transcripts in Kutler 's book show the University of Wisconsin historian compressed taped conversations, took conversations that happened at night and put them at the beginning of those from the morning and cut out comments that may bolster other versions of the Watergate scandal that differ from those written by Kutler .

This, some historians and archivists say, compromises the book and its legitimacy as a historical source. ...

Kutler acknowledges editing the tapes and leaving many out because they were unintelligible or irrelevant.

"I edited the conversations with an eye toward eliminating what I believe insignificant, trivial or repetitious," he wrote in an editorial note in the book.

One researcher critical of the book is Tampa author Len Colodny, whose 1991 book "Silent Coup" alleges Dean helped plan the Watergate break-in and the subsequent Nixon administration cover-up. Colodny sees motives behind Kutler 's edits.

This is not the first time the two have been at odds. Kutler trashed "Silent Coup" in book reviews. ...

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Maarja Krusten - 2/7/2009

Thank you for explaining that you had not submitted the article elsewhere and that Mr. Dean's assertion that you had done so was not correct.

The NYT reports today that the AHR has decided not to publish your submission.
http://www.nytimes.com/2009/02/07/books/07dean.html?_r=1&;emc=eta1

Ms. Cohen also reports that you and your colleagues are debating next steps. Whatever you do, I hope you someday make available (online or otherwise) to the general public the exact article, with no changes, that you submitted to the AHR. Given the fact that most readers only have seen your undated piece on Len Colodny's site (which the Wayback Machine suggests first was posted in 2002), I think it is important to reveal exactly what you sent to AHR.

That is not to say that you or other historians may not want to recast the issue or even to discuss other, related issues. Some of the transcription issues have been discussed previously in other venues. As I mentioned above, John Taylor has weighed in with an examination of some of the issues he first raised in 1998.
http://episconixonian.blogspot.com/2009/02/kutlering-nixon-tapes.html

It has been fascinating for me to see how posters reacted to Professor Stanley Katz's presentation of the issues at CHE and to Stanley Kutler essay here at HNN. Dr. Katz's article is at
http://chronicle.com/review/brainstorm/katz/whats-news-in-the-new-york-times?

Perhaps because of all the years that I spent working with the Nixon tapes and listening to the President discuss PR issues, among other matters, I'm especially interested in how people choose to present their cases to the public. And whom they defend and whom they leave out of discussions about reputation. Interestingly, in the forums I just mentioned above, it is the archivists who focused most narrowly on evidence and tried to avoid name calling and undue speculation.

Since Sunday, I've had fascinating coversations with several archivists about the way academic scholars handled the opportunities handed them with the NYT story but cannot share all of their observations.

Speaking of archivists, Peter Hirtle, an expert in copyright matters, offers a very interesting examination of some of the intellectual property issues in Watergate transcripts at
http://blog.librarylaw.com/librarylaw/2009/02/watergate-historians-and-intellectual-property.html

Maarja Krusten (one of Fred's "former minions" and a friend of The Klingon Commander)

Jeremy Young - 2/6/2009

Maarja, I should have clarified this. Klingman is contractually constrained from going to the NYT with his AHR piece while it's under review. He's not contractually constrained from telling a fellow scholar about it -- otherwise he wouldn't be able to have his colleagues edit the piece for him before he sent it to the AHR. Mr. Y, for his part, isn't contractually constrained from talking about it to the NYT, since he hasn't had contact with the AHR -- but it's very shady for him to do so. He put the AHR in a terrible position by doing so. He also put Klingman in a bad position (by making him look like the guilty party), though I don't see Klingman complaining.

HNN - 2/6/2009

Jeremy,

Three answers:

1. Mr. X felt that he needed to get Kutler's permission. I did not address the question of whether he did or didn't in the article. Clearly, "fair use" would allow him to quote a few paragraphs from the tape transcripts Kutler compiled without obtaining permission. Only poetry and song lyrics are not subject to the fair use guidelines adopted by courts. As far as I know, no one has ever suggested that the Nixon transcripts fall into either category.

2. I cannot give you the reasons why Mr. X and Mr. Y declined to be quoted on the record without giving away their identities. Information about both of them came from another source, who felt bound to keep their identities from being known publicly.

3. Mr. Y is not a historian. He is a journalist. Therefore, he, like the NYT reporter, had no obligation to keep Klingman's article secret.

Journalists normally do not report on scientific studies that have been submitted to scholarly journals before they have been peer reviewed. Whether the same restraint should be shown in regard to articles written by historians is an interesting subject historians might choose to debate.

Rick

Peter David Klingman - 2/6/2009

I have commented elsewhere on Mr. Dean's assertion that there have been previous submissions and rejections of this article.

Let me be very clear. Mr. Dean is wrong. It has been solicited by other publications. But I have not submitted this article to any publication other than the AHR.

Peter Klingman

Maarja Krusten - 2/6/2009

Jeremy, I have a question for you regarding AHR, since you have expertise in that area which I myself lack.

John Dean, in his reaction to the NYT story, noted that Dr. Klingman previously had submitted the article he sent to AHR to other publications which chose not to print it. I do not know Dr. Klingman and do not know which publications those might be, whether they are scholarly journals or mass media outlets.

Here's my question. I'll use a hypothetical with a made up name of a non-existent newspaper. What if Dr. Klingman submitted his article to the Sunday commentary section of The DC Star. What if he had not decided at that point to send it to the AHR. What if he simultaneously sent a copy of what he sent to The DC Star either to Mr. Y or someone who knows Mr. Y and discussed it with him. The issues seem arcane and as a mass media outlet, The DC Star decides to pass on publishing the article. Dr. Klingman decides to then submit it to the AHR.

In what way would Mr. Y be constrained from discussing the article or the content of the article with the NYT, if he read or heard about a version of it earlier, at the time it went to The DC Star? Are authors not allowed to even tell anyone they submitted something to AHR? Surely submission of an article to AHR does not place a retrospective seal on discussion of it by third parties who previously may have seen the piece? Or do you interpret that as being the case? What would be the legal basis for it and how would it be enforceable, in practical terms?

Without having had any contact with Rick on this, I think I've figured out who X and Y are but respect Rick's reasons for using those designations. That being the case, you'll see no guesses on that issue from me here or anywhere else. You commented at Progressive Historians that AHR probably knows who Mr. Y is but I don't think that is the case. It is unfortunate that AHR may find itself in an awkward position but Watergate issues do tend to be complicated, even now.

Best, as always,

Maarja

Posted by Smartphone

Maarja Krusten - 2/6/2009

Thanks, Rick! As with everything Watergate, the story turns out to be more complicated than first meets the eye, doesn't it?

John Taylor of the Nixon Foundation has a post up at his blog in which he looks at problems related to a transcript from an earlier time period (1971) in Dr. Kutler's book about the Plumbers' break-in to the office of Dr. Fielding, Daniel Ellsberg's pyschiatrist. See
http://episconixonian.blogspot.com/2009/02/kutlering-nixon-tapes.html

John refers to some of his earlier work on this issue. In some of my earlier essays, including some here on HNN, I quoted from the 1998 article that John wrote for the American Spectator. At the time his article in the Spectator appeared, some of his rhetoric about us and our work then dismayed me. Ten years later, John and I got to know and, I think, understand each other betterm in the virtual world in something I now call one of the success stories of the blogosphere.

As people get to know and understand each other, their tone in writing about each other can change. John now notes in his article of my former boss and people such as me, "Fred Graboske and his team of tape reviewers at the Nixon Project at the National Archives deserve great credit for identifying tape segments that would help as well as hurt RN." Elsewhere, John recently referred to Fred Graboske as the "respected Supervisory Archivist" of the NARA Nixon Project.

For me, John's comments make up for some of the enormous difficulties we NARA employees went through in 1992, when Dr. Kutler courageously filed his lawsuit against NARA to obtain release of the tapes and called us to testify under oath. Despite "representing" the National Archives, the lawyers at the George H. W. Bush Department of Justice never came close to saying anything so positive about us in 1992, yet now the director of the Nixon Foundation acknowledges that we deserved credit for our even-handed approach.

Since historians are all about supporting evidence, here is what I stated on the matter when questioned under oath during my testimony in Kutler v. Wilson on September 22, 1992:

“Q: [by Patti Goldman, representing Kutler and Public Citizen]: Were you instructed that, if a matter on tape pertained to an abuse of power category, you were to designate it as an abuse of power segment, even if it vindicated President Nixon as opposed to indicated culpability?

A: [witness Maarja Krusten] Yes.

Q: From whom did you receive that instruction?

A: From Mr. Graboske.”

(Source: Testimony of Maarja Krusten, Deposition transcript, Kutler v. Wilson, Civ. A. 92-0662-NHJ, September 22, 1992, 143-144.)

Fred Graboske was questioned about that same issue in his testimony, which took place earlier, in the summer of 1992.

We federal archivists then were all about the evidence, whichever path it took. As Acting U.S. Archivist Frank Burke once said, the National Archives serves “not to implement the programs of the administration in office but to protect the records, good and bad, of the administrations of the past.”

As people with such an ethos, it’s been fascinating for me and for other former archivists, as well as some current ones, I imagine, to see how academic historians have handled the new controversy.

Maarja Krusten
Historian and former NARA Nixon Project archivist (1976-1990)

Jeremy Young - 2/5/2009

Rick, you've done an excellent job tracking this down -- we're all indebted to you. Here are three questions I still have:

1) Why did Kutler have the right to refuse access to his published transcripts? Many historians have quoted from those transcripts without even talking to Kutler, including, apparently, Mr. Y. Most quotations from Kutler's book would fall under fair use provisions in copyright law. Was Mr. X attempting to quote more of the transcripts than would be allowed under fair use (several pages, perhaps)?

2) I'm fairly certain you have good reasons for not disclosing the identities of Mr. X and Mr. Y, even though both are apparently known to you. Can you give us any information regarding those reasons? Have you been enjoined by Mr. X and Mr. Y not to tell us who they are? Has someone else asked you not to disclose that information? I'm particularly baffled in the case of Mr. X, who seems pretty blameless in your story and who apparently is already known to Kutler.

3) Finally, according to your story, it appears that the real malefactor in the tipoff controversy (not the transcription controversy) is Mr. Y. Mr. Y is the one who told Patricia Cohen about the unpublished AHR article, violating the spirit of the submission agreement between Klingman and the AHR. He put the AHR in particular in an awful position, making it look as if they had tipped off the Times and violated their own secrecy agreement (and again, Cohen participated in this by not calling the AHR for comment). Additionally, it doesn't appear the AHR submission was even the root of the story -- what gave the story legs was the material provided to Cohen by Colodny, not the unpublished Klingman article. Again, Cohen misrepresented this in her article, if your story is accurate -- but the fault still originates with Mr. Y, both for bringing up the AHR piece on the record in the first place, and for then going deep background, leaving the AHR unfairly exposed.

I do want to apologize to Klingman and Hoff for the imputations in my original post -- it appears their actions were above board. Scrutiny should now shift to Mr. Y and reporter Cohen -- and, of course, to Kutler.

Ray Locker - 2/5/2009

This is a good story. However, I wouldn't call the Tampa Tribune obscure. At the time, it was a 250,000-circulation daily newspaper with bureaus throughout Florida and in Washington. It's still larger than most newspapers in the country, despite the financial problems it has suffered in recent years.

As the editor who pushed that story into the paper, I'm proud of what we were able to do. In many ways, it was almost 11 years ahead of the Times story.