from the witness reveals that, in large measure at least, the testimony they desire him to give could be, and in many instances has been elicited from other witnesses. For example, Mr. Ehrlichman claims that Mr. Nixon's testimony is needed "to establish that the matters discussed between Mr. Nixon and Mr. Haldeman on June 23rd were never told to Mr. Ehrlichman and, as a result, Mr. Ehrlichman sat in a meeting with the same knowledge as [CIA] Director Helms and Deputy Director Walters." (Ehrlichman Motion at 2-3.) But Mr. Haldeman has already taken the stand, and Mr. Ehrlichman's counsel will have the opportunity to cross-examine him about whether, to his knowledge, Mr. Ehrlichman was told about the Nixon-Haldeman conversation. Likewise, Mr. Walters has appeared as a witness and Mr. Ehrlichman's attorney has had the opportunity to cross-examine him as to Mr. Ehrlichman's participation in the crucial meeting. Certainly Mr. Nixon's cumulative testimony on this and similar points is not indispensable or necessary to prevent a failure of justice. See generally United States v. Reed, 155 U.S.App.D.C. 198, 476 F.2d 1145, 1147 n. 1 (1973). See also government's memorandum, pp. 6-11. Similar examples could be taken from Mr. Mitchell's and Mr. Haldeman's motions.
Not only are other witnesses available to testify about many of the points as to which Mr. Nixon's testimony is deemed necessary by the defendants, but the defendants themselves can testify about those specifics. Indeed, Mr. Mitchell and Mr. Haldeman have already taken the witness stand in their own defense, and counsel for Mr. Ehrlichman has stated that his client will do the same.
The value of Mr. Nixon's testimony to the defendants should not be unrealistically overestimated. Mr. Nixon himself has been named by the Grand Jury as an unindicted co-conspirator in this case. Thus, he has been accused, in effect, of being an accomplice of the defendants. Certainly (if he were called) his testimony would be subject to the instruction to the jury that it should be received with caution and scrutinized with care. See District of Columbia Bar Ass'n., Criminal Jury Instructions for the District of Columbia #2.22 (2d ed. 1972).
Finally, the importance of the facts about which the witness would be able to testify may have been exaggerated by the defendants. There has been no showing by way of a statement, affidavit, or otherwise from Mr. Nixon that he would, in fact, testify along the lines the defendants have predicted. See e.g., United States v. Trenary, 473 F.2d 680, 682 (9th Cir. 1973). Their motions list a number of ultimate facts and conclusions which they claim Mr. Nixon would testify about to exonerate them. But the predicted testimony that Mr. Ehrlichman was not part of a conspiracy, or that he never entertained the required corrupt intent, for example, would be inadmissible as conclusory opinion testimony in any event.
Therefore it is by the Court this 5th day of December, 1974,
Ordered that the motions for leave to take the deposition of Richard M. Nixon on January 6, 1975, filed by John Ehrlichman, Harry R. Haldeman, and John N. Mitchell be, and the same hereby are, denied; and it is further
Ordered that the motion of Richard M. Nixon to quash the September 4, 1974 subpoena to appear and testify be, and the same hereby is, granted.