United States v. Haldeman

Opinion for the court

per curiam.

*274 Dissenting opinion filed by MacKINNON, Circuit Judge.

PER CURIAM: 1

On March 1, 1974 a grand jury in Washington, D. C. returned a 13-count indictment against seven individuals. It charged what amounted to an unprecedented scandal at the highest levels of government, for most of the defendants had held major positions in the Nixon administration. Charged were John N. Mitchell, former Attorney General of the United States and later head of the Committee to Re-elect the President (CRP), President Nixon’s campaign organization .for the 1972 election; Harry R. Haldeman, former Assistant to the President, serving basically as chief of the White House staff; John D. Ehrlichman, once Assistant for Domestic Affairs to the President; Charles W. Colson, former Special Counsel to the President; Robert C. Mardian, earlier an Assistant Attorney General, then an official of CRP; Kenneth W. Parkinson, hired in June of 1972 as CRP’s lawyer; and Gordon Strachan, once a staff assistant to Haldeman at the White House. 2 The counts of the indictment embraced conspiracy, 18 U.S.C. § 371 (1970), obstruction of justice, id. § 1503, and various instances of false statements made to the Federal Bureau of Investigation (FBI), id. § 1001, to the grand jury, id. § 1623, and to the Senate Select Committee on Presidential Campaign Activities, id. § 1621. 3 J.A. 65-112.

Five defendants ultimately went to trial together before Judge Sirica; prior to trial the charges against Colson had been, dropped after his guilty plea in another case, and the case against Strachan was severed with the Government’s consent due to legal problems stemming from prior grants of use immunity. 4 The jury acquitted Parkinson, found Mardian guilty of conspiracy, the only offense with which he was charged, and convicted Mitchell, Haldeman, and Ehrlichman of both conspiracy and obstruction of justice as-well as all the individual perjury counts submitted. 5 Sentences of imprisonment were imposed, 6 and those convicted have appealed. We deal in the instant appeals only with the convic *275 tions of Haldeman, Ehrlichman, and Mitchell. 7 We affirm.

I. THE FACTS

Evidence at trial 8 consisted of both direct testimony and actual tape recordings of key conversations of the co-conspirators. It established a wide-ranging conspiracy designed to impede a grand jury investigation into the break-in at the Democratic National Committee (DNC) headquarters in the Watergate Office Building in Washington, D.C., and into other related matters.

A. The Gemstone Plan

In the early morning hours of June 17, 1972, roughly four and a half months before the presidential election, police discovered five men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These were no ordinary burglars. They were operating as part of a larger CRP intelligence gathering plan code-named Gemstone, and they had been in the DNC offices once before, in late May. Their mission this time was to fix a defective bugging device placed during the prior entry on the telephone of the DNC chairman; these orders had come after high officials at CRP expressed dissatisfaction with the information theretofore produced by the expensive Gemstone. 9 Tr. 2649, 4143-4147, 4519 — 4521.

Gemstone was the brainchild of G. Gordon Liddy, CRP’s general counsel, who had been hired in late 1971 with the expectation that he would develop plans for gathering political intelligence and for countering demonstrations. Tr. 2625-2628, 4507. That expectation was abundantly fulfilled. Collaborating with E. Howard Hunt, Jr., a former CIA agent whom Liddy knew well from previous ventures undertaken at White House behest, 10 Liddy went to work on his assignment. In two meetings held during January and February 1972 he presented his initial Gemstone plan and budget to Mitchell, at that time Attorney General but even then the functional head of the Nixon re-election effort. These meetings were attended by Jeb Stuart Magruder, Deputy Director of CRP and later an important Government witness, and John W. Dean, III, counsel to the President and eventually the Government’s prime witness at trial. 11 At these first meetings Liddy failed to win approval. Mitchell indicating that the original million-dollar budget had to be scaled down. 12 Tr. 2628-2634, 4507 — 4513. By March 30, however, Liddy had pared his budget to $250,000, and Mitchell had resigned his duties as Attorney General to become head of CRP in title as well as function. On that date, in Key *276 Biscayne, Florida, Magruder obtained Mitchell’s approval for Gemstone in a meeting attended only by Mitchell, Magruder, and Fred LaRue, a close personal friend to Mitchell then serving as a top campaign aide. 13 Tr. 3276-3277, 4514-4517, 4638-4639.

Magruder, who had once served on Haldeman’s staff, was keeping the White House informed of campaign developments, including Gemstone plans and operations, by regularly transmitting documents and information on to Strachan, Haldeman’s assistant. Tr. 4511-4513, 4518, 6612-6613. Haldeman himself had learned directly about an early version of the Liddy plan when Dean reported to him shortly after the February meeting. Tr. 2635-2636.

B. The Early Stages of the Conspiracy

The five burglars arrested inside the DNC gave aliases to the D.C. police, but within hours of the break-in Liddy, who had been monitoring the operation from a safe vantage point in a nearby building, reported the capture to CRP’s highest officials, then in California. He told them that one of the captured burglars was James McCord, on CRP’s payroll as chief of security. In an apparent effort to avoid the appearance of any link between CRP and the burglars, Mitchell, Mardian, LaRue, and Magruder met and decided to contact the new Attorney General, Richard Kleindienst, urging him to have McCord released from jail before the police penetrated his alias. Mardian placed the call, but ultimately sent Liddy to find the Attorney General when Kleindienst could not be reached directly. Tr. 4530-4536, 6563-6565. This fitful effort foundered, however, on Kleindienst’s insistence that the burglars receive no special treatment. If Mitchell wanted to talk to him about it, Kleindienst said, Mitchell should contact him directly. Tr. 5898-5909.

Aware that McCord’s true identity would come to light. Mardian, Magruder, and La-Rue the next day worked on a press release that would deny any CRP tie to the break-in. Tr. 4537-4540, 6565-6569. It suggested instead that McCord might have been working for clients of his private security firm. Haldeman, contacted by long-distance telephone, approved the statement and urged that the release issue as soon as possible, even though Magruder had already informed him that the break-in was “Liddy’s operation.” Tr. 4542-4544. The release appeared on June 18 under Mitchell’s name and with his approval. J.A. 912.

Meanwhile, in Washington, White House and CRP files were being cleansed of sensitive materials relating to Gemstone. Strachan performed this function at the White House, under orders from Haldeman to remove anything embarrassing. Among the items destroyed were DNC wiretap reports and a memorandum from Haldeman to Magruder urging that the intelligence operation shift from Senator Muskie to Senator McGovern, the emerging Democratic frontrunner. Tr. 2651-2653, 4547-4548. Magruder immediately ordered removal of all Gemstone materials from the files at CRP; he took them to his home upon his return from California on June 19. At a meeting that night, attended by Mitchell, Magruder, LaRue, Dean, and possibly Mardian, 14 Magruder asked Mitchell what to do with the papers. Mitchell suggested that he “have a fire,” and he did — destroying the Gemstone documents in his home fireplace. Tr. 4540-4550, 4823, 6570-6573.

Dean met with Liddy on June IP and received a full briefing on the background of the break-in. He then imparted his own substantial knowledge to Ehrlichman, detailing the roles of Hunt and Liddy and mentioning the pledge he had received from Liddy that Liddy would keep silent. Tr. 2648-2656. There was no similar assurance regarding Hunt; Ehrlichman consequently *277 issued, then retracted, an order that Hunt leave the country. Tr. 2657-2660, 4192-4193. He also directed that Hunt’s safe, in his office in the Executive Office Building, be opened. Tr. 2660-2661. Dean retrieved the materials from the safe (which included some electronic equipment related to Watergate along with documents related to other questionable activities), whereupon Ehrlichman suggested to Dean that he shred some and “deep six” the rest. Dean refused, fearing that too many people— White House employees and Secret Service agents — knew he had removed materials from the safe. Tr. 2679-2687. Ultimately the items were turned over to the FBI, although the most sensitive went directly to L. Patrick Gray, the Acting Director, with directions from Dean and Ehrlichman that they should never see the light of day. Gray complied. Tr. 6212-6217.

It was becoming increasingly clear that the grand jury investigation would eventually tie Liddy and Hunt to the break-in scheme, primarily by tracing the currency that had been found on the burglars. 15 Tr. 2696-2708, 6605-6608. This presented added problems, as the links to CRP and the White House became more apparent. The conspirators decided to cover higher involvement by placing all blame on Liddy, who had pledged silence. They would maintain that Liddy was off on a frolic of his own, betraying his position of trust within CRP. Tr. 2762-2763. It still was necessary to explain why this man, general counsel to the Committee, had been supplied with such large sums of money (it proved later to be $199,000) capable of diversion to private frolics. Tr. 2759-2773, 4552-4562, 6652-6660.

Hunt presented an additional problem. He, like Liddy, apparently knew that Gemstone was a project approved at the highest levels of CRP. Like Liddy he had participated earlier in several “seamy things” for the White House, as he once described them. Tr. 3088. For example, as members of the White House Special Investigation *278 Unit, 16 and with the approval of Ehrlich-man, who was head of the Unit, they had broken into the office of Daniel Ellsberg’s psychiatrist, ransacking the doctor’s records. 17 Tr. 7654-7656, 7664-7675. Significantly unlike Liddy, however, Hunt had never pledged to keep his knowledge of these things to himself. Assuring his silence would be extremely costly; he began to demand large cash payments on behalf of himself and the five burglars.

Thus were born the two major parts of the conspiracy: the cover story to explain the frolicsome Liddy’s ability to draw so deeply on the CRP treasury, and the payment of hush money to those indicted and later convicted for the burglary.

C. The Cover Story

Magruder first suggested that CRP officials simply say that the $199,000 had gone to Liddy for security at the Republican nominating convention. He broached this story to a meeting attended by Mitchell, Mardian, LaRue, and Dean. Mardian expressed doubts that it would hold up — the sums seemed too large. Tr. 2759-2763. Thereafter Magruder tried again. He came to a subsequent meeting of the same group with the story that $100,000 was delivered to Liddy for protection of “surrogate speakers” 18 as they traveled around the country in behalf of the Nixon campaign. Only the remainder was meant for convention security. This story met with approval. Tr. 2769-2773, 4552-4562, 5254-5255, 6652-6660. It seemed sufficiently convincing, particularly when Magruder indicated that, at Magruder’s urging, the CRP official in charge of the surrogate program would corroborate the story with perjured testimony of his own. Tr. 2769-2770, 4562-4563,4570, 4697.

Magruder refined the story, reviewed it with Mitchell (who urged him to minimize Mitchell’s role in running the campaign), and then rehearsed it with Dean, all in preparation for his appearance before the grand jury on August 16. His delivery of it on that date proved sufficiently persuasive that he escaped indictment — “by the skin of his teeth,” according to Dean’s intelligence from the investigation. Tr. 2773-2776, 4605-4612. Magruder was recalled before the grand jury in September to explain the January and February meetings that were entered in his calendar, the meetings where Gemstone was first discussed. With the assistance of Mitchell and Dean, however, he had prepared a subsidiary cover story to hide the purposes of these meetings. The first, he told the grand jury, had been can-celled, and the second related solely to the new election law. Tr. 2824-2829, 4612-4616.

Mitchell and Ehrlichman, meantime, were being careful to say nothing that might ruffle the veil the cover story had cast over Gemstone activities. Each denied to FBI agents that he knew anything about the break-in except what he read in the newspapers. Tr. 2820-2824, 5393-5402. Then on September 14 Mitchell told the grand jury that he was not aware of any clandestine CRP intelligence program, nor did he know of Liddy’s illegal activities. Tr. 7094-7095. This testimony formed the basis for Mitchell’s false declarations conviction under Count 4 of the indictment. 18 U.S.C. § 1623 (1970).

D. Hush Money

On June 20 or 21 Liddy met with Mardian and LaRue. He told them the full story concerning the background of the break-in, confessed his own role in the planning and execution, and explained that all those arrested would remain silent. He went on to *279 say, however, that certain “commitments had been made to provide them with bail, legal fees, and living expenses. LaRue assured him that all commitments would be met. Tr. 6601-6603. Later LaRue and Mardian met with Mitchell, Dean, and Magruder to tell them of Liddy’s revelations and to decide how to raise the funds. Mardian suggested that the CIA might be a source (the burglars had prior CIA connections), and Dean was dispatched, after checking with Ehrlichman, to bring the CIA in. Tr. 2728-2735, 6610. He was unsuccessful. At Ehrlichman’s insistent urging he tried again, but again was turned down. Tr. 2735-2737, 6132-6142.

With the approval of Haldeman and Ehrlichman, Dean on June 28 turned to another source. He contacted Herbert Kalmbach, a long-time Nixon fund-raiser. Tr. 2740-2742. He told Kalmbach that funds were needed to meet certain CRP commitments to the burglars, and that absolute secrecy was essential. Kalmbach agreed to take on the task. Tr. 2743-2745, 6298-6308. He obtained money from LaRue (money which came from excess cash held at the CRP offices), from the chairman of the Finance Committee to Re-elect the President, CRP’s finance arm, and from a private contributor. Tr. 6309-6312, 6326-6345. Before he approached the private contributor, however, he checked with Ehrlichman to be sure that Dean had authority to put this fund-raising in motion. Ehrlichman quieted his doubts and took the occasion to stress the need for confidentiality. If the operation did not remain secret, he warned, “they would have our heads in their laps.” 19 Tr. 6328-6332.

To distribute the money Kalmbach employed a courier who devised a complex scheme of leaving the funds in pay telephone booths and airport lockers. He was responsible for delivering $187,000 to the burglars through Hunt’s lawyer, Hunt’s wife, Hunt himself, and Liddy. All this took place between July 1 and mid-September, when Kalmbach made his final accounting and insisted he did not want to continue. Tr. 4213-4216, 6315-6348, 6350-6356, 6477-6511. Dean and LaRue kept Haldeman, Ehrlichman, and Mitchell posted throughout on the “money problem.” Tr. 2751-2754, 6620-6628, 6683-6684.

On September 15 the grand jury handed up indictments against the five burglars, plus Hunt and Liddy. No one else was implicated. Tr. 42214222. The initial policy of “containment,” as Dean was later to call it, had proven successful. Tr. 2855-2860, 3100.

The need to channel hush money continued nonetheless. LaRue inherited Kalmbach’s role. He delivered $20,000 or $25,000 to Hunt’s lawyer immediately, and for a while the demands abated. Tr. 2872, 2907-2908, 6662, 6684-6685. But on November 13, only a few days after Nixon’s re-election, Hunt called Colson at his White House office. With a tone of urgency he maintained that the commitments had not been met, and he reminded Colson that loyalty “is a two-way street.” Colson taped the full conversation. Tr. 4250-4254, Govt. Ex. 35B, Tape Tr. 642-658. Dean made a copy of the tape and took it to Camp David, Maryland, the presidential retreat, to play it for Haldeman and Ehrlichman. They agreed that the money was Mitchell’s responsibility and dispatched the Hunt tape to New York in the possession of Dean— Dean to play the tape for Mitchell and impress upon him his responsibility. Tr. 2909-2931.

Mitchell did not shoulder it alone. Instead he promptly inquired, through Dean, about the availability of a secret $350,000 fund under Haldeman’s control, transferred to the White House from excess CRP funds. Haldeman approved use of part of it to meet. the burglars’ demands. Tr. 2935-2941, 6687-6692, 6705-6708. Those involved initially expected that the fund would be replenished through LaRue’s fund-raising, but that hope soon vanished. It ultimately became necessary to transfer the entire fund to LaRue (all with Haldeman’s approval), and by February he had *280 dispensed $167,000. Tr. 3033-3042, 6716-6724, Govt. Ex. 15, Tape Tr. 244-246.

Money was not enough to assure silence. Hunt had decided to plead guilty and wanted a guarantee that his sentence would be short. Colson, his erstwhile friend at the White House, checked with the President and then provided some veiled assurances which Hunt took to mean he would be granted clemency at Christmas 1973. Tr. 2987-2992, 4261-4270. Hunt and four of the burglars did plead guilty. Liddy and McCord insisted on going to trial, although neither took the stand. They were found guilty, and sentencing was set for March 23, 1973. Tr. 4271. When McCord began to get restless as that date approached (he threatened in a letter to the White House that “all the trees in the forest will tumble” 20 ), Mitchell urged that the same veiled assurances of clemency be extended to him. Ehrlichman agreed, and assurances were delivered to McCord — to no avail, it later developed. Tr. 2992-3001, 6518-6520.

E. The Cover-up Unravels

The greatest apparent threat to the conspirators’ plans lay in the impending hearings of the Senate Select Committee on Presidential Campaign Activities, chaired by Senator Ervin. Dean, Haldeman, and Ehrlichman met at Rancho LaCosta in California in mid-February to plot strategy. They worried most about what the break-in defendants might say before the Committee if granted immunity. Knowing that more demands for money had been made, they decided it was essential that Mitchell meet what they all agreed was his responsibility — the providing of funds. A presidential assistant was sent to New York to tell Mitchell the results of the meeting and, once again, to remind him of his responsibility. Tr. 3032-3034.

Hunt demanded another $122,000 on March 16, in order to settle his financial affairs before sentencing. Dean relayed this word to Ehrlichman and, at his suggestion, on to Mitchell. Tr. 3086-3090. But Dean decided he had to speak with the President directly about the dangers inherent in guaranteeing the continued flow of money. On March 21, 1973 Dean thus told Nixon that there was a “cancer” growing on the presidency in the form of the endless hush money demands. He recounted all that he knew about the origin of the break-in and the subsequent payment of hush money. He guessed that future demands would come to another million dollars. Nixon replied that “you could get a million dollars. And you could get it in cash. I, I know where it could be gotten.” 21 Nixon returned to the Hunt demand several times during the ensuing conversation, and he continued to mention it after Haldeman *281 joined the discussion. Each time he stressed, in the presence of Haldeman and Dean, that Hunt’s immediate demands should be “handled” in order to “buy time.” Neither Dean nor Haldeman demurred. Tr. 3094-3102, Govt. Ex. 12, Tape Tr. 103, 131, 135-137, 155, 159, 164-167, 189, 196, 205-206.

Haldeman, Ehrlichman, and Dean met later that day to discuss possible strategies. They agreed that Mitchell should step forward and take the full blame, thinking the prosecutors and the Senate Committee would thereby be pacified and would press no further. Tr. 3140-3141.

Mitchell, meanwhile, was meeting his “responsibility.” Informed of the Hunt demand by LaRue, he directed LaRue to deliver $75,000 to Hunt’s attorney that night. After this delivery Hunt, according to his own testimony at trial, repeatedly perjured himself before the grand jury. Tr. 4276-4290, 6726-6732.

The next day, March 22, Mitchell came to Washington and told the others that the Hunt problem was under control. Tr. 3208-3213, 8589-8590, 10280. Nixon, Dean, Mitchell, Haldeman, and Ehrlichman then took up a discussion that had begun the day before: the best strategy for dealing with the upcoming Senate hearings. Despite the previous day’s plans, no one had the fortitude to suggest directly to Mitchell that he take the full blame and go to jail to save the Nixon presidency. Lacking that alternative, they all focused on a plan Nixon had discussed with Dean on March 17 — indeed, it had been mentioned as an option for several months. Dean would make a report to the President. It would be quite general and would indicate that no one from the White House was involved. They might deliver it to the Senate Committee, but in any event it would serve as a safeguard for Nixon. Ehrlichman explained that if “some corner of this thing comes unstuck,” the President could say he relied on the report. 22 Tr. 3213-3221, Govt. Ex. 16, Tape Tr. 273-287.

The Dean report was never written, for on March 23 the conspiracy was dealt a heavy blow. McCord, facing sentencing, had written a letter to Judge Sirica breaking the word that the burglar’s silence was the result of pressure, that others were involved, and that perjury had been committed. The letter was released to the public at the sentencing hearing that day. Tr. 3253-3254, 3259-3262. Shortly thereafter Magruder, Dean, and LaRue began to talk to the prosecutors. Tr. 3277-3280, 4639-4643, 6732-6733.

Throughout the month of April 1973 Haldeman, Ehrlichman, and Nixon met frequently at the White House trying to decide how to respond to the new developments. 23 They were faced with two primary problems: how to cope with Dean, who plainly knew a great deal, and how to explain the hush money payments — which, they recognized, were now bound to be revealed to the prosecutors and the public. As to the first, after much discussion Nixon asked Ehrlich-man to try to bring Dean back on board through veiled assurances of clemency. Govt. Ex. 18, 22, Tape Tr. 389-393, 403-407, 469-476. Dean refused to speak with Ehrlichman, however, and his refusal rekindled the remaining conspirators’ interest in a “scenario” laying the blame for all illegality on Dean. Tr. 3306-3307, Govt. Ex. 24, Tape Tr. 500-504. Haldeman, after spending a few hours reviewing the possibilities, reported that this scenario “works out pretty well.” 24 It would key on Dean’s failure to present the President with the Dean report in late March. Only then, the scenario went, were the President’s suspicions fully aroused, and only then did he discover the scope of Dean’s involvement. Govt. Ex. 26, Tape Tr. 557-567.

This scenario also dealt tentatively with the second problem — explaining the hush *282 money. They would state that the money was delivered for humanitarian purposes 25 —legal fees and family support — and that their sole motivation was to discourage the defendants from talking to the press; they did not seek to keep them from being candid with the prosecutors. But both Haldeman and Ehrlichman wanted to consult their lawyers before relying too heavily on that version of the story. Govt. Ex. 27, 28, Tape Tr. 570, 573-574.

When Haldeman was called before the Senate Select Committee in late July and early August 1973, he carried out the scenario laying all blame on Dean. He told the Committee that no one at the White House, except Dean, knew that the payments to the burglars were for “hush money” before March of 1973. He said Nixon discussed with Dean on March 21 the possible payment of a million dollars to the burglars, but he insisted that Nixon .had followed that up by saying “it would be wrong.” 26 And he claimed that there had been no discussion of Magruder’s perjury at the March 21 meeting. Tr. 7483-7489, 7518-7519, Govt. Ex. 100. These statements formed the basis for Counts 7, 8, and 9 of the indictment charging Haldeman with perjury. 18 U.S.C. § 1621 (1970). He was convicted on all three counts.

In early May Ehrlichman told the grand jury that he had no recollection of Dean’s having told him of Liddy’s involvement in the break-in during the first weeks after the burglary. He also testified that he had spoken generally with Kalmbach about Kalmbach’s fund-raising efforts, but he denied all recollection of any mention of the purposes the money was to serve, and he claimed no memory of telling Kalmbach to keep the efforts secret. Tr. 7180-7192. For this testimony he was charged in Counts 11 and 12 with making false material declarations, 18 U.S.C. § 1623 (1970), and the jury found him guilty of both offenses.

Mitchell too, although he had not been privy to most of the April meetings where scenarios were devised, advanced the coverup through his testimony before the grand jury and the Senate Committee in the spring and summer of 1973. On April 20 he denied before the grand jury any recollection of having been told of Liddy’s confession to LaRue and Mardian. Tr. 7158, 7166-7167. Before the Senate Committee in July he claimed not to have heard of Gemstone as of June 19, 1972, and he denied that there was any mention of destroying documents at the meeting he held that evening with Magruder, Mardian, Dean, and LaRue. Tr. 7177-7180. These statements founded Counts 5 and 6 of the indictment, charging false declarations, 18 U.S.C. § 1623 (1970), and perjury, id. § 1621, respectively. Mitchell was convicted under each.

II. PRETRIAL PUBLICITY

The. unveiling of the conspiracy which is the central element of this case received extraordinarily heavy coverage in both national and local news media. In addition, the media fully covered allegations of wrongdoing at the upper levels of the Nixon Administration in matters unrelated to the Watergate break-in. Appellants contend that this pretrial publicity was so pervasive and so harmful to them that it must be assumed they could not receive a fair adjudication of the charges against them at the time and in the place at which they were tried. Alternatively, they contend that the voir dire of veniremen 27 conducted by the District Court was insuffi *283 ciently probing to assure empaneling of an impartial jury. 28

A. The Motions for Continuance or Change of Venue

It is fundamental that “the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961). To be “indifferent” a juror need not be ignorant:

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. * * *

Id. at 722-723 , 81 S.Ct. at 1642 (emphasis added). Accord, Murphy v. Florida, 421 U.S. 794, 799-800 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975).

Irvin establishes “a common-sense standard” of juror qualification. United States v. Caldwell, 178 U.S.App.D.C. 20, 33 , 543 F.2d 1333, 1346 (1974), cert. denied, 423 U.S. 1087 , 96 S.Ct. 877 , 47 L.Ed.2d 97 (1976). In keeping with that approach, a defendant who claims he was denied a fair trial because the jury was not sufficiently “indifferent” generally must sustain that claim “ ‘not as a matter of speculation but as a demonstrable reality.’ ” United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 , 76 S.Ct. 965, 970 , 100 L.Ed. 1331 (1956), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 281 , 63 S.Ct. 236 , 87 L.Ed. 268 (1942). 29 This demonstration can be made only by reference to the voir dire. In “extreme circumstances,” however, prejudice to the defendant’s rights may be presumed. Calley v. Callaway, 519 F.2d 184, 204 (5th Cir. 1975), (en banc) (dictum), cert. denied, 423 U.S. 888 , 96 S.Ct. 182 , 46 L.Ed.2d 119 (April 5, 1976). 30 Appellants urge that this exception applies to their case and that the District Court committed reversible error by denying their pre- voir dire motions 31 for a continuance or a change of venue.

The Supreme Court has reversed a conviction because it presumed that pretrial publicity had made a fair trial impossible only in the case of Rideau v. Louisiana, 373 *284 U.S. 723 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963). 32 The defendant in Rideau was filmed making an in-custody confession to the bank robbery, kidnapping, and murder for which he was convicted. That film was then broadcast three times to large audiences in Calcasieu Parish, whose total population was 150,000. The Court concluded, without examining the voir dire transcript, that denial of Rideau’s motion for a change of venue constituted a violation of his due process rights:

For anyone who has ever watched television the conclusion cannot be avoided that this spectacle [the filmed confession], to the tens of thousands of people who saw and heard it, in a very real sense was Rideau’s trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.

Id. at 726 , 83 S.Ct. at 1419 (emphasis in original).

“A confession or statement against interest is the paradigm” of “facts that strongly implicate an accused * *.” Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1332-1333 , 96 S.Ct. 251, 255 , 46 L.Ed.2d 237 (1975) (Blackmun, Circuit Justice). We have carefully reviewed the “Watergate” articles submitted by appellants, and we find that the pretrial publicity in this case, although massive, was neither as inherently prejudicial nor as unforgettable as the spectacle of Rideau’s dramatically staged and broadcast confession. It is true that some of the pieces contained in the extensive collection of articles gathered by appellants are hostile in tone and accusatory in content. The overwhelming bulk of the material submitted, however, consists of straightforward, unemotional factual accounts 33 of events and of the progress of official and unofficial investigations. 34 In short, unlike the situation faced by the Court in Rideau , we find in the publicity *285 here no reason for concluding that the population of Washington, D. C. was so aroused against appellants and so unlikely to be able objectively to judge their guilt or innocence on the basis of the evidence presented at trial that their due process rights were violated by the District Court’s refusal to grant a lengthy continuance or a change of venue prior to attempting selection of a jury. 35

The federal courts can, of course, establish more rigorous standards for their own governance than those minimum guarantees of fairness imposed on the state courts by the Constitution. See, e. g., Ristaino v. Ross, 424 U.S. 589 , 597 & nn.910, 96 S.Ct. 1017 , 47 L.Ed.2d 258 (1976); Murphy v. Florida, supra, 421 U.S. at 797-798 ; id. at 804 , 95 S.Ct. 2031 (Burger, C. J., concurring); cf. United States v. Williams, 523 F.2d 1203 , 1209 n.11 (5th Cir. 1975). We believe, however, that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected. Except in the most extreme cases, like Rideau , 36 such a pre- voir dire conclusion must depend solely on the subjective reaction of the judge-who reaches it. 37 Invocation of an appellate court’s supervisory power to require a continuance or a change of venue, although failure to do so did not constitute a denial of due process, *286 would therefore introduce additional unguided discretionary line-drawing and consequent uncertainty into the process of litigating controversial cases. 38 Moreover, this uncertainty would not guarantee a commensurate increase in the fairness of federal criminal trials. When the trial court has taken all appropriate measures to minimize pretrial publicity, as was the case here, 39 a supervisory fair trial standard, however stated, could not stimulate the court to additional vigilance in protecting the defendant’s right to be tried on the evidence presented in court. 40 And if an impartial jury actually cannot be selected, that fact should become evident at the voir dire. The defendant will then be entitled to any actions necessary to assure that he receives a fair trial. In sum, we believe that “each case must turn on its special facts.” Marshall v. United States, 360 U.S. 310, 312 , 79 S.Ct. 1171, 1173 , 3 L.Ed.2d 1250 (1959). 41

For these reasons we hold that the District Court was correct to follow this *287 circuit’s well established procedure by refusing appellants’ pre- voir dire requests for a continuance 42 or a change of venue. 43 See, e. g., United States v. Wilkerson, 175 U.S.App.D.C. 383, 384 , 536 F.2d 410, 411 (1976), (per curiam); United States v. Caldwell, supra, 178 U.S.App.D.C. at 29 , 543 F.2d at 1342 ; Jones v. Gasch, 131 U.S.App.D.C. 254 , 261, 404 F.2d 1231, 1238 (1967), cert. denied, 390 U.S. 1029 , 88 S.Ct. 1414 , 20 L.Ed.2d 286 (1968). We therefore turn to an examination of the voir dire itself.

B. Selection of the Jury

Conduct of the voir dire is a matter left primarily to the trial judge:

Pursuant to Rule 24(a), Fed.R.Crim.P., the trial judge is vested with “broad discretion” in the conduct of voir dire —both as to the mode and manner of proceeding, * * * and as to the range of questions put to the prospective jurors * * *. The exercise of this discretion is “subject to the essential demands of fairness.” * * * But absent abuse of his broad *288 discretion, and a showing that the rights of the accused have been substantially prejudiced thereby, the trial judge’s rulings as to the scope and content of voir dire will not be disturbed on appeal.

United States v. Robinson, 154 U.S.App. D.C. 265, 269, 475 F.2d 376, 380 (1973) (citations omitted). See, e. g., United States v. Caldwell, supra, 178 U.S.App.D.C. at 32 , 543 F.2d at 1345 ; United States v. Liddy, 166 U.S.App.D.C. 95, 101 , 509 F.2d 428, 434 (1974) (en banc); United States v. Nix, 465 F.2d 90, 96 (5th Cir.), cert. denied, 409 U.S. 1013 , 93 S.Ct. 455 , 34 L.Ed.2d 307 (1972). Our review, while based on a thorough study of the record, is limited accordingly.

The voir dire in this case lasted eight days and is recorded in over 2,000 pages of transcript. The first phase was devoted to identifying veniremen who would not be able to be sequestered for the expected length of the trial. This process resulted in elimination of 170 of the 315 veniremen. The remainder were then asked general questions concerning their relationships with any of the individuals or organizations involved in the case. Eighty-five veniremen remained following those questions. After questioning two individually, 44 the trial judge had the rest of the venire divided into groups of 12 to 18 for further questioning. The inquiries directed to these groups covered such areas as previous jury service, factors affecting credibility of witnesses, and other subjects unrelated to pretrial publicity. Finally, the trial court individually questioned 77 veniremen on matters such as their employment, attitudes toward the defendants, and exposure to pretrial publicity 45 This individual questioning, which took place out of the hearing of all other members of the venire, accounts for almost three quarters of the voir dire.

Since the answers to the court’s questions were met with appropriate follow-up questions, the individual voir dire interrogation was not uniform. 46 Nevertheless, the questioning did follow a basic pattern. After some personal inquiries relating to employment history and political activity, the court focused on the venireman’s exposure to pretrial publicity and possible biases. Before the publicity was mentioned the venireman was asked if he believed that any defendant was probably guilty. He was then asked if he had heard of the case and, if so, whether anything he had heard or read about the case stood out in his mind. The next questions asked whether the venireman had *289 seen the defendants or their lawyers in the newspapers or on television and whether he remembered anything in particular about them. Subsequently the court determined which newspapers and magazines the venireman read and with what degree of regularity; which television news programs he watched; whether he had followed the legislative inquiries related to Watergate or read any of the books or other lengthy pieces concerning Watergate, including the presidential tape transcripts; whether he had followed Watergate closely or casually; and whether (and how recently) he had discussed the case.

After determining the venireman’s degree of interest in and exposure to the case, the court inquired whether he had formed or expressed an opinion of the guilt or innocence of any defendant. In addition, the judge determined whether the venireman knew of Ehrlichman’s trial and conviction in the “plumbers” ease, 47 whether he knew of the pardon of former President Nixon, whether he thought it unfair to prosecute appellants in light of the pardon, whether the pardon caused the venireman to believe appellants were guilty or innocent, and whether the fact that Nixon had been named an unindicted co-conspirator affected the venireman’s view of appellants. If the venireman had formed an opinion, the judge attempted to determine whether that opinion was firmly held or could be set aside. In closing he was asked whether he could return a fair and impartial verdict based solely on the evidence presented at trial and the court’s instructions on the law. After the basic questioning was completed, the venireman was excused while the court considered counsel’s objections and suggestions for additional inquiries. This step often resulted in recall of the venireman for more questioning.

Appellants claim that this interrogation was inadequate. Their principal complaint 48 is that the voir dire, which they *290 characterize as perfunctory, did not include “content” questions. 49 A “content” question, as appellants’ voir dire proposals show, is simply a request that the venireman recite everything he remembers about the topic of the inquiry. Thus appellant Haldeman wished to ask each member of the venire, “What do you remember about this case? What, if anything, do you remember about any of these defendants?” Voirdire [sic] Questions to Individual Jurors, Requested by Defendant Haldeman, J.A. 431. Appellant Ehrlichman suggested similar, although more elaborate, questions. 50 According to appellants, these questions were necessary to provide an objective basis for evaluating a venireman’s impartiality. 51

Following an objection by the Government, the District Court decided not to ask these questions. The positions of the parties and the court’s reasoning emerge clearly from the dialogue with the lawyers:

[DEFENSE COUNSEL]: But it is basic for us to know whether it is disabling or not, what they have heard, seen, about Watergate. Otherwise, I mean, every citizen in the District of Columbia we *291 would assume would come in and say, yes, they Piad] heard about it, read about it, and seen it on television.

THE COURT: If I ask them if they heard about it I am not going into specifics, what did you hear, some commentator implied somebody is guilty or innocent. They are not going to try this case on hearsay or what somebody might have said. If they haven’t got any more intelligence than that, we ought to quit now. * * * * * *

[PROSECUTOR]: * * *

We are now taking the extraordinary course in the Federal system of examining jurors individually. Regardless of what Your Honor does and how Your Honor pairs [sic] down these questions, it is still going to be remarkably liberal voir dire if you get down to eight or ten questions; but to ask a question as, what have you heard about Watergate, I could not answer that, Your Honor, myself, and I believe I have a threshold intelligence.

THE COURT: I don’t think I could, myself.

[DEFENSE COUNSEL]: * * *

We feel strongly what they read, heard, their sources, their opinions, even though it takes six months, is absolutely essential to the Defendants * * *, whether or not we can get a fair and impartial jury.

Tr. 486-489.

We agree with the District Court that the questions requested by appellants would have been unreasonable in the circumstances of this case. Appellants were not seeking to discover whether some particular piece of highly prejudicial, inadmissible information had made an impression on the members of the venire. 52 Cf. American Bar Ass’n Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.4(b) (approved draft 1968) (hereinafter ABA Standards). Rather, they simply wished to learn how much the veniremen recalled from their exposure to the publicity, regardless of whether that exposure caused them to form opinions of guilt. Under Irvin v. Dowd, however, mere familiarity with “the facts and issues involved” in the case would not have rendered a venireman unqualified to sit. See 181 U.S.App.D.C. at 283, 559 F.2d at 60, supra. The District Court therefore properly concluded that the information appellants sought, although undoubtedly of interest to them, did not warrant the extraordinarily prolonged voir dire that would have been necessary to obtain it. 53

We also find unconvincing appellants’ attempts to identify legal support for their claimed right to ask “content” questions. Appellants rely principally on Sec *292 tion 3.4 of the ABA Standards, supra; Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968); and United States v. Del-linger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970 , 93 S.Ct. 1443 , 35 L.Ed.2d 706 (1973). The ABA Standards, which have been approved by this court, United States v. Bryant, 153 U.S.App.D.C. 72 , 76-77, 471 F.2d 1040, 1044-1045 (1972), cert, denied, 409 U.S. 1112 , 93 S.Ct. 923 , 34 L.Ed.2d 693 (1973), provide in Section 3.4(a) that “[t]he questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how his exposure has affected his attitude towards the trial * * *.” (Emphasis added.) Contrary to appellants’ suggestion, we believe this standard, as its language suggests, mandates an inquiry into the sources and intensity of a venireman’s exposure to pretrial publicity, not an inquiry into his recollection of the content of that publicity. This reading is supported by Section 3.4(b) which provides that “[b]oth the degree of exposure and the prospective juror’s testimony as to his state of mind are relevant to the determination of acceptability.” 54 (Emphasis added.)

Both of tlie cases relied on by appellants refer to the ABA Standards. In Silverthorne the voir dire relating to pretrial publicity was both minimal 55 and addressed to the veniremen as a group. There was no private, individual questioning of each member of the venire. The Ninth Circuit, citing Section 3.4(a) and (b), held that the questioning was inadequate because “[t]he trial court made no effort to ascertain what information the jurors had accumulated and, consequently, had no way of objectively assessing the impact caused by this pretrial knowledge on the juror’s impartiality.” 400 F.2d at 638 (emphasis in original). In Dellinger the trial court asked whether there was any reason the veniremen would be unable to return a fair verdict, but refused to ask any questions concerning exposure to the extensive pretrial publicity surrounding that ease. 472 F.2d at 372 . The Seventh Circuit, citing Silverthorne and the ABA Standards, held that the voir dire inadequately explored the impact of the pretrial publicity. See id. at 370-377.

The extensive voir dire in the instant case, with its detailed inquiry into the sources and intensity of the veniremen’s exposure to Watergate publicity, is a far cry from the minimal questioning which took place in Silverthorne and Dellinger. Thus on their facts those cases do not suggest that the voir dire here was insufficient. Moreover, the language in Silverthorne on which appellants have seized appears to have been intended as an adoption of the ABA Standards. As we have shown, those Standards do not require that “content” questions be asked in the circumstances of this case. Rather, the Standards recognize that, as the Seventh Circuit said in Dellinger, “the court could probe the impact of pretrial publicity without requiring the veniremen to describe what they had heard.” 472 F.2d at 377 . That is what the District Court did in this case.

As the Supreme Court stated in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565 , 96 S.Ct. 2791, 2805 , 49 L.Ed.2d 683 (June 30, 1976), “[P]retrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.”, In this case, moreover, it is clear that the District Judge took particular care — during *293 the voir dire and throughout the proceedings — to ensure that the trial was a fair one. Of course, “[v]oir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ [Quoting Connors v. United States, 158 U.S. 408, 413 , 15 S.Ct. 951 , 39 L.Ed. 1033 (1895); other citations omitted.] This is so because the ‘determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.’ Rideau v. Louisiana, 373 U.S. 723, 733 [ 83 S.Ct. 1417, 1423 , 10 L.Ed.2d 663 ] (1963) (Clark, J., dissenting).” Ristiano v. Ross, supra, 424 U.S. at 594-595 , 96 S.Ct. 1020 , 47 L.Ed.2d 258 . After diligently studying the voluminous transcript of the voir dire in this case, we are convinced that the District Court exercised its discretion judiciously and intelligently. Indeed, no one who reads this transcript can fail to be impressed with the patience, attention, and acumen with which the judge probed the opinions of the veniremen so as to remove those who harbored any prejudice or preconception.

Our conclusion that the voir dire was adequate does not end our review of the jury selection. As is our duty, we have reviewed the record to ascertain for ourselves whether appellants were tried by an unbiased jury capable of basing its verdict solely on the evidence introduced at trial. 56 Appellants appear to concede this ultimate conclusion, for they never suggest that the jury was actually prejudiced against them 57 *294 or that its verdict rested on anything other than the overwhelming evidence of their guilt. On the basis of our own review, we have no doubt that the jury was impartial. 58 Accordingly, we find no reversible error associated with the impaneling of the jury.

III. EHRLICHMAN’S MOTION FOR SEVERANCE

Appellant Ehrlichman contends that his motion for severance under Rule 14, filed May 1,1974, was improperly denied. In his motion he claimed that severance was required because his co-defendants would assert defenses inconsistent with, and hostile to, his own. As he puts it, Mitchell and Haldeman asserted that their contacts with then President Nixon were lawful and proper in every respect, while “[i]n direct contrast, Appellant Ehrlichman sought to establish that his contact with Mr. Nixon was lawful, but that he had been misled by the former President.” 59

While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one. As set forth in Rhone v. United States, 125 U.S.App.D.C. 47 , 48, 365 F.2d 980, 981 (1966), the governing standard requires the moving defendant to show that “the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” Application of this standard, which is for the District Court in the first instance, and reviewable here only for abuse of discretion, requires that the accounts of co-defendants be not merely divergent from one another but indeed “so contradictory as to raise an appreciable danger that the jury would convict solely on the basis of the inconsistency.” To warrant a severance, in short, the accounts of co-defendants must be “on a collision course.” United States v. Bolden, 169 U.S. App.D.C. 60, 69, 514 F.2d 1301, 1310 (1975).

Ehrlichman’s claim that the defenses of Haldeman and Mitchell were in “direct contrast” to his assertion that he should be judged innocent because he had been misled by former President Nixon does not meet this standard. The defenses of the co-defendants were simply not at the requisite level of conflict. The jury could have accepted or rejected both. “[T]he mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another have both been held to be insufficient grounds to require separate trials.” United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 958 , 92 S.Ct. 327 , 30 L.Ed.2d 275 *295 (1971). 60 Here the contention is further diluted by the circumstance that appellant is not claiming prejudice because other defendants were inculpating him, as in the Valdés’ case 61 Ehrlichman relies on, but rather is asserting that he lacks the knowledge and blame that may be imputable to the co-defendants. Any inconsistency in defenses stems from Ehrlichman’s defense strategy to shift the blame onto, to assign sole culpability to, his co-defendants.

Ehrlichman stresses the difference between his claim and Haldeman’s concerning their meeting with CIA representatives on June 23, 1972. Each contended his purpose in attending the meeting was lawful. Haldeman had to overcome the tape recording of his earlier June 23 meeting with then President Nixon with respect to the need to use the CIA to “derail” the FBI investigation because, in Haldeman’s words, “the FBI is not under control.” 62 Haldeman attempted to explain that the prior conversation was not for the purpose of enlisting the CIA to stifle the FBI’s Watergate investigation. Whether successful or not, this did not cut across Ehrlichman’s defense. Ehrlichman contended that he had not been made privy to the conversation in question — an assertion neither the Government nor Haldeman disputed — and had no reason to attribute any but a lawful purpose to the meeting, namely, that he believed Mr. Nixon’s statement that an investigation into the activities of the persons behind the Watergate matter might interfere with the legitimate activities of the CIA.

More broadly, Ehrlichman is claiming that he was prejudiced because there was strong evidence implicating his co-defendants. There are instances where severance is necessary to overcome gross disparity in the weight of the evidence which might tend to prejudice a defendant involved in a relatively “inconsequential part of the trial.” 63 But here the evidence against Ehrlichman, while perhaps not as compelling in certain details as with respect to the others, is not only consequential but overall a very strong showing of involvement in the coverup. The judge instructed the jury in the clearest terms that it could consider only a defendant’s own words and acts in determining whether he joined the conspiracy, Tr. 12365, and that it must consider the guilt or innocence of each defendant separately and independently, Tr. 12407. And even in a separate trial the Government would have been entitled to prove the scope of the entire conspiracy, and would not have been restricted to the limited involvement of the severed defendant. 64 Appellant Ehrlichman falls far short of the showing of “clear abuse of discretion” required for reversal even when there is a welter of “conflicting stories and veiled accusations emanating from the defense ta *296 ble * * * .” 65 We do not here discern anything like the kind of unfairness necessary to overcome a joint trial of defendants shown by substantial, independent evidence to be involved in the conspiracy for which they have been jointly indicted.

IV. DISCOVERY BY EHRLICHMAN

Months ahead of trial, Ehrlichman and other defendants filed motions for extensive discovery. Ehrlichman’s demand included a large volume of documentary matter in the possession of the Special Prosecutor or one of his investigative arms. It also embraced additional materials, some held by the White House and others by a congressional subcommittee.

In his response to the motions the Special Prosecutor agreed to adduce a great deal of what was sought. While disclaiming responsibility for items beyond his control, he also represented that he would search for and try to obtain for the defendants all possibly exculpatory evidence in the custody of executive and congressional bodies. The District Court temporarily withheld action on the motions in order to facilitate voluntary efforts by the parties, leaving open to each defendant the opportunity to contend individually for additional discovery if dissatisfied with the outcome. The arrangement seems to have worked quite well, for the Special Prosecutor’s production was massive. 66

Ehrlichman, however, continued to press his motion, which the District Court eventually denied. 67 He also procured the issuance of two subpoenas duces tecum, 68 which were promptly quashed. 69 He asserts in this court that he has yet to be afforded complete discovery; his central argument, invoking Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (I960), 70 is that the Special Prosecutor was constitutionally obligated to turn over all favorable data either in his hands or in those of any other branch of the Federal Government. In the circumstances shown by the record, we need not pass on a proposition so broad, 71 nor are we persuaded that Ehrlichman was deprived of anything to which he was entitled.

Our attention has not been directed to any arguably helpful information possessed by the Special Prosecutor, 72 or any investigative unit under his control, 73 or any *297 other agency allied with the prosecution, 74 which was not made available. Nor does Ehrlichman refer us to any particular item allegedly unproduced other than files generated at the White House 75 and testimony taken by a congressional subcommittee in executive session. 76 As to these materials, we find no cause for reversal. 77

Ehrlichman’s demand for the White House files fell far short of legal requirements. 78 Criminal Rule 16(b) at that time 79 conditioned discovery of matter of that type “upon a showing of materiality to the preparation of [the accused’s] defense and that the request is reasonable.” 80 *298 Criminal Rule 17(c), 81 which is not a discovery device, 82 confines a subpoena duces tecum to admissible evidence, 83 authorizes the quashing of the subpoena if it is “unreasonable or oppressive,” 84 and indulges pretrial inspection 85 of subpoenaed papers only upon a showing

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” 86

Ehrlichman’s discovery motion, aptly described by the District Court as a “sweeping and broadly phrased” endeavor to secure “a tremendous array of materials,” 87 ignored Rule 16(b)’s admonition of reasonableness. 88 His subpoena effort, deserving of like characterization, 89 similarly defied Rule 17(c)’s counterpart. 90 More importantly, in neither instance, so far as the *299 record discloses, did Ehrlichman attempt any demonstration of materiality or relevance of any file item to the exigencies of his defense, 91 nor does he offer any explanation even now. There is no room for any suggestion that this omission is attributable to any informational handicap, 92 for Ehrlichman has long since had ample opportunity to examine the files and to fully acquaint himself with their contents. 93

Beyond these considerations, the White House files may well have an extra dimension. Ehrlichman, who is in position to know, makes no claim that the files do not reflect intercommunication and other interaction with President Nixon, 94 and “[i]n no case of this kind would a court be required to proceed against the president as an ordinary individual.” 95 On the contrary, any court completely in the dark as to what Presidential files contain is duty bound to respect “the singularly unique role under Art. II 96 of a President’s communications and activities, related to the performance of duties under that Article.” 97 For “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual,’ ” 98 and “[i]t is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice.” 99 Not only, then, were the Criminal Rules governing evidentiary discovery and production to be meticulously observed, 100 but an even higher standard was to be met. The White House files were “presumptively privileged” 101 and the burden of justifying production was Ehrlich-man’s. 102 Nothing less than a “demonstrat *300 ed, specific need for evidence in a pending criminal trial” 103 could carry that burden here. In appropriate cases there may well be a difference in result when the claim of privilege is asserted and the incumbent president interposes no objection. But even so, there is a presumption of privilege which can only be overcome by some demonstration of need. From what we have already said, 104 it is manifest that for information in the files beyond that which Ehrlichman was indulged, the burden was not discharged here.

Turning now to Ehrlichman’s complaint in reference to congressional materials, we find that his discovery motion was similarly flawed. By no measure could his call for virtually everything related to the oncoming trial 105 be deemed reasonable. 106 Nor, any more than with respect to the White House files, was there any attempt to show materiality of congressional items to the defense. 107 Even as to one category of information eventually designated — evidence taken in executive session by the Subcommittee on Intelligence of the House Armed Services Committee — the motion encountered these problems and more. The record reveals beyond peradventure that while the Subcommittee originally refused to furnish any of the evidence, at least some — including Ehrlichman’s own testimony before the Subcommittee 108 —was later supplied, 109 and that free access to all of the evidence was conferred ultimately. 110 Ehrlichman does not say that these concessions came too late in the trial to serve his interests 111 nor, if they did, *301 does he indicate in any way how he might possibly have been harmed by the delay. 112 Rather, his complaint, as nearly as we can fathom it, is that at no time was any of the evidence available to him. 113 In light of the disclosures by the record, we cannot accept *302 that position; nor, without elucidation from Ehrlichman of the elements of a different claim, can we say that his right to discovery was in any wise abrogated.

V. ALLOCATION OF PEREMPTORY CHALLENGES

Fed.R.Crim.P. 24(b) provides that “[i]f the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges.” It further provides that “[i]f there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.” The defendants requested 15 additional peremptory challenges, for a total of 25. The District Judge awarded them five extra challenges to be exercised individually, one to each defendant. Together with the mandated 10 challenges, to be exercised jointly,^, this award gave the defendants a total óp( 15 challenges. The judge indicated his unwillingness to grant the request in full because of the imbalance it would create between prosecution and defense. After noting that there is no power to award the Government extra challenges unless all defendants agree to the award, the District Judge indicated that if such agreement was forthcoming he would be willing to increase both the Government’s and the defendants’ totals. When no agreement was reached, the totals remained at six and 15 respectively. J.A. 509; Tr. 698.

Appellants’ objection to the treatment of peremptory challenges is easily disposed of. In multiple defendant cases the award of additional challenges is permissive rather than mandatory, and rests in the trial judge’s sound discretion. See, e.g., United States v. Mayes, 512 F.2d 637 , 644 (6th Cir.), cert. denied, 422 U.S. 1008 , 95 S.Ct. 2629 , 45 L.Ed.2d 670 (1975), and 423 U.S. 840 , 96 S.Ct. 69 , 46 L.Ed.2d 59 (1975); United States v. Williams, 463 F.2d 393, 395 (10th Cir. 1972); United States v. Crutcher, 405 F.2d 239, 245 (2d Cir. 1968), cert. denied, 394 U.S. 908 , 89 S.Ct. 1018 , 22 L.Ed.2d 219 (1969); 2 C. Wright, Federal Practice and Procedure, Criminal § 386 (1969). The trial judge’s decision to grant the defendants’ request in part — providing them with two and one-half times the number of challenges held by the Government — reflects his awareness of the problem of pretrial publicity in this case. His refusal to grant that request in its entirety reflects a legitimate concern with the wisdom of providing one side with a far greater number of challenges than the other.

Indeed, a proposal to amend Rule 24(b) has been approved by the Advisory Committee on Rules and Practice of the Judicial Conference of the United States, the Judicial Conference itself, and most recently by the Supreme Court, 114 and will take effect shortly unless blocked by action of one House of Congress, but cf. H.R. 13899, 94th Cong., 2d Sess. (1976) (bill to delay the effective date of the proposed revisions of the Federal Rules of Criminal Procedure). It provides that, in felony cases, the Government and the defense are entitled to an equal number of challenges and, in multiple defendant cases, a District Judge may award additional challenges to the Government as well as the defense. See 44 U.S.L.W. 4549 -4550. The District Judge explicitly relied on the Advisory Committee’s proposal in reaching his decision. See J.A. 511. It is true that the proposed revision was not in effect at the time of trial. Yet the District Judge surely is to be commended rather than faulted when, in exercising his broad discretion under Rule 24(b), he sought guidance from the *303 most recent thinking of the Advisory Committee.

Appellants also complain that the trial judge’s unwillingness to award more than five additional challenges unless the defendants agreed to permit the Government additional challenges punished them for exercising their “right” to foreclose the Government from obtaining more than six challenges. We think this contention is without merit. The trial judge’s responsibility is to use his discretion in a way that he thinks provides a fair balance between the parties. Apparently, he believed that a ratio of 15 to 6 was fairer than one of 10 to 6; that permitting defendants more than 15 and the Government more than six challenges would be even fairer, but required defendants’ approval; and that in the absence of such approval, a ratio of 15 to 6 was fairer than a ratio of 25 to 6. Such a judgment on his part lies well within the scope of his discretion.

Appellants also take exception to the system established for exercising the peremptory challenges, whose features they have succinctly summarized:

a. Veniremen would be placed in the box according to a pre-determined order.

b. The ten joint defense peremptories had to be exercised two at a time.

c. Challenges would alternate between the government and the defense [the government to proceed first].

d. Two failures to exercise a challenge [or pair of joint challenges] would bring about a forfeiture of that challenge or challenges.

e. The government’s final challenge would be exempt from forfeiture.

Br. for Mitchell at 116; see J.A. 520.

Appellants’ principal objection to this scheme seems to be that at the end of the jury selection process, when the defense was left with two individual challenges and the Government with one challenge, the defendants thought it more advantageous to forfeit their challenges than to exercise them and permit the Government to then exercise its challenge, thereby reaching down the predetermined list to a venireman allegedly favorable to the prosecution. Assuming arguendo that appellants’ characterization of this strategic decision is accurate, we find nothing prejudicial about their having been required to face it. 115 The fact is that by choosing to forfeit the challenges appellants obtained a jury that, in their view, was more advantageous than the jury that they would have obtained by exercising the challenges. It is true that when prospective jurors are selected for the jury box in a non-random order, and both sides have opinions about the desirability of particular prospective jurors, tactical decisions will have to be made. But that results directly from relying upon a nonrandom order, not an unusual practice and one which was adopted with the encouragement of the defendants and over the objection of the Government, see Tr. 1231-1236. The trial judge has broad discretion to structure the method of exercising peremptory challenges, see e.g., United States v. Mayes, supra, at 644; United States v. Williams, 447 F.2d 894, 896-897 (5th Cir. 1971); Amsler v. United States, 381 F.2d 37, 44 (9th Cir. 1967); United States v. Mackey, 345 F.2d 499, 501-503 (7th Cir.), cert. denied, 382 U.S. 824 , 86 S.Ct. 54 , 15 L.Ed.2d 69 (1965), and he did not abuse it in this case.

VI. CONTINUANCE FOR NIXON TESTIMONY

Ehrlichman argues on behalf of all three appellants that the trial judge erred in denying their motions for a continuance until former President Nixon was physically well enough to be deposed. We find the contention without merit.

A. Background

On September 4, 1974 Ehrlichman issued a subpoena to Mr. Nixon, returnable on September 30, the day before trial was to begin. Two weeks later the Government *304 also subpoenaed Nixon. On September 18 Ehrlichman filed a one-paragraph motion for a 60- to 90-day continuance, stating that “recent public accounts of Mr. Nixon’s health suggest that he may be physically unable to testify when called at the trial as now set” and that “Mr. Nixon’s personal appearance at trial is indispensable to Mr. Ehrlichman’s defense.” Doc. 303. The Government opposed the motion, arguing that it had “just as much interest in securing Mr. Nixon’s testimony,” but that the “factual basis” for Ehrlichman’s motion was “entirely speculative.” Doc. 306. The Government suggested that the court either conduct an immediate inquiry into Nixon’s health or wait to see if Nixon appeared on the date on which the subpoena was returnable. On September 20th the District Court denied the motion for a continuance. Doc.' 307.

At a pretrial conference held on September 24 Herbert Miller, Nixon’s lawyer, reported that his client had been hospitalized the preceding day for tests. Miller requested that the subpoenas be stayed for two weeks until the tests were completed and he had an opportunity to make any appropriate motions regarding the subpoenas. With the assent of all parties it was agreed that Miller would report to the court on Nixon’s health by October 3rd. Tr. of Sept. 24th hearing at 7-11.

Three days after the conference, Ehrlich-man moved, pursuant to Fed.R.Crim.P. 15, for authorization to depose Nixon, for a severance, and for a continuance until Nixon was well enough to be deposed and for at least two weeks thereafter to conduct the deposition. Doc. 353. In this motion Ehrlichman noted that Nixon had informed the court that he was suffering from “thrombophlebitis, and as a result requires present hospitalization and treatment.” Ehrlichman then asserted that Nixon’s condition had been “complicated by the lodging of a blood clot in [his] lung, thereby precluding travel to the District of Columbia at this time.” Reciting 30 areas in which Nixon was said to have “sole and personal knowledge ... to which he can be expected to testify,” Ehrlichman contended that “the interests of justice compel . a severance, continuance and deposition.” The Government again opposed the motion, arguing that it was still premature to conclude that Nixon would be unavailable to testify or that his deposition should be taken. Doc. 354. Ehrlichman’s motion was denied orally at the start of trial. Tr. at 3.

As agreed at the pretrial conference, on October 3rd Miller filed an affidavit reporting on Nixon’s health. Miller’s affidavit, based on a telephone conversation with Nixon’s physician, stated that the testing of Nixon had been suspended shortly after he had been admitted to the hospital because a pulmonary embolus had been discovered; that a test performed on September 30 indicated the embolus was resolving itself; and that tests were resumed on the 30th and were to be completed by October 4th, at which time Nixon would be released from the hospital. The affidavit went on to state that for 3-6 months Nixon would be receiving anticoagulant medication, and that for an indefinite period of time until his condition stabilized Nixon would be required to avoid prolonged sitting, standing, or walking and any possible trauma. 116 On the basis of this prognosis, Miller filed motions to quash the two subpoenas issued to his client. Docs. 362, 363.

Ehrlichman replied to the motion to quash by renewing his motions for leave to depose, a severance, and a continuance, again noting and expanding on the issues on which Nixon’s testimony was needed. Doc. 396. Haldeman filed a separate motion with the same requests, and listed 34 areas as to which Haldeman needed Nixon’s testimony. Doc. 371. The Government did not respond to the appellants’ motions, but opposed Nixon’s motion to quash on the ground that the supporting affidavits failed to establish that Nixon would be unable to testify under any conditions at any time during the trial. Doc. 386. The Government argued that at most the court should appoint an independent panel of doctors to *305 assess Nixon’s health and ability to testify. The Government stated, however, that it would no longer insist upon Nixon’s testimony as part of its direct case because it intended to authenticate the White House tapes with other proof.

On October 17 a hearing was held on the motion to quash. 117 At that time Miller reported that his client’s prognosis was good, and predicted that within 3-4 weeks “we would no longer wish to raise the health issue . . .Tr. 2953. Ehrlich-man’s lawyer then stated that “we are not pressing for an immediate disposition of this . . . [but] neither do we want to place ourselves in a position where we waive anything.” The court deferred ruling on the motion to quash, and requested an updated medical report from Nixon within three weeks. Id. 2957 .

On November 7, 1974, Nixon’s counsel filed his report. Doc. 452. It stated that nine days earlier Nixon had undergone surgery and experienced post-operative shock, hemorrhaging, and other complications. He had been on the critical list for a week, and was expected to be hospitalized for an additional ten days to two weeks. Thereafter, he would be precluded from “any activity requiring substantial mental or physical effort . . . [for] two or three months.” 118

On November 13, 1974 Judge Sirica appointed a panel of three physicians to “make investigation” concerning Nixon’s condition and ability to testify. Doc. 472. On November 29 the panel submitted its unanimous report, estimating that, barring further complications, Nixon would be able to travel to Washington to testify by mid-February, to testify near his home in earlier February, and, starting January 6, would be able to be deposed in no more than two well-spaced daily sessions of no more than one hour each. Doc. 511.

After receiving the medical report, all three appellants filed motions to depose Nixon and to continue the trial until that was possible. Docs. 516, 524, 525, 526. Haldeman and Ehrlichman repeated the statements from their earlier motions concerning their need for Nixon’s testimony; Mitchell listed a number of areas as to which Nixon’s testimony allegedly would be vital to Mitchell’s defense. Each appellant waived his right to a sequestered jury during the requested continuance. Docs. 524, 526, 527. Co-defendant Mardian filed a statement opposing the continuance and the suggestion to unsequester the jury, Doc. 529; co-defendant Parkinson opposed only the latter, Doc. 530. Mr. Nixon took no position other than to note that even if he were well enough to be deposed starting January 6, he would not be well enough to prepare prior to that date, and would need a “substantial” amount of time to do so. Doc. 532. The United States opposed the motions of all three appellants. Doc. 524.

In an opinion dated December 5, 1974, discussed infra, the court denied the motions. 119 The trial therefore proceeded as scheduled, and the last defendant completed his case on December 19. After a brief rebuttal case by the Government, the summations began the same day and stretched over the next week. The jury began deliberating on December 30 and returned its verdict on January 1, 1975.

*306 ' B. General Principles

Defendants sought a continuance here to enable them to produce an unavailable witness who, they alleged, could offer evidence favorable to the defense. Criminal defendants plainly have a substantial interest in being able to present the testimony of such witnesses to the jury. Indeed, this interest implicates constitutional values, since the Sixth Amendment right to compulsory process is “in plain terms the right to present a defense.” 120 On the other hand, the Government generally has a substantial interest in avoiding disruptions of a court’s calendar and in having guilt or innocence promptly adjudicated. 121 Accordingly, in ruling on motions for continuances trial judges must carefully evaluate and then balance the defendant’s need for the continuance against the Government’s interest in going forward. Because no firm rules can be articulated as to when a continuance is required, 122 the decision to grant a continuance is vested in the trial judge’s discretion, and reviewable only when such discretion has been abused. 123

From the decisions of the Supreme Court and of this and other circuit courts, at least some of the factors that should be considered by district judges in evaluating the competing interests can be readily discerned. First, the court must assess the likelihood — as it appears from defendant’s motion for a continuance, his supporting papers, and from anything else in the record — that defendant will be able to and will produce the missing evidence if the continuance were granted. 124 Second, the court must assess the likelihood — again based primarily on defendant’s showing— that the evidence will be favorable to the defense and, if so, that it will be significant. 125 Third, the court must deter *307 mine whether the defendant acted with diligence in attempting to secure the missing evidence in time for trial. 126 Finally, the court should consider the length of the continuance being requested and the burdens that would be placed on the Government and the court if the request were granted. 127

C. Application of Law to Facts

In denying the final requests for a continuance, 128 the district judge focused on the delay and burden that would be entailed in securing Nixon’s testimony, and on the likelihood that the testimony would be favorable to and significant for appellants’ defenses. The court found that securing the testimony would necessitate a lengthy continuance, during which time the jury would have to be sequestered. 129 It concluded that the defendants had failed to justify such a prolonged continuance, 130 and had failed to show, as required by Rule 15, that a deposition of Nixon was necessary “to prevent a failure of justice.” 131

The District Court’s exclusive focus on the burdens of a continuance and the likely significance of Nixon’s testimony was entirely proper. Appellants were not responsible for Mr. Nixon’s absence, and thus could not be taxed for lack of diligence in seeking a continuance. And although there was no guarantee that Nixon would recover his health so as eventually to be able to testify, there was nothing in the medical reports suggesting the contrary. Thus the dispositive question before the District Court was whether the burdens of granting an indefinite continuance outweighed the likely value of Nixon’s testimony.

The District Court’s conclusion that securing Nixon’s testimony would have required a lengthy delay is abundantly supported by the record. The court relied on three factors in reaching its conclusion. First, it predicted, based on representations made to it by counsel, that all the evidence *308 would be presented “well before” January 6th, the “earliest possible date” Nixon would be well enough to begin the deposition; 132 with hindsight, we know that all defendants rested two and one half weeks before January 6th. Second, the court agreed with Nixon’s uncontroverted statement that even if he were physically able to be deposed starting January 6th, the deposition still could not commence then because he would need time to review his voluminous records. 133 Finally, the court noted that the deposition process itself would be “very lengthy,” since Nixon’s health permitted only two hours of questioning per day. 134 Indeed, before learning of these time limitations, Ehrlichman and Haldeman each had estimated independently that deposing Nixon would take “not less than two weeks to conclude.” Thus Haldeman’s estimate in his final motion for continuance that “a month or more” would be required to secure Nixon’s testimony, and the Government’s estimate of “at least four or five weeks,” seem, if anything, understated.

That granting a continuance of this duration would have entailed significant risks and costs is plain. First, leaving the case in limbo might have made it difficult for the court and the parties opposing the continuance — Mardian and the Government — to carry on their normal business during the continuance. Second, because of the public attention that would have been focused on the adjourned trial (and perhaps on the jurors), and because neither the Government 135 nor co-defendants Mardian and Parkinson had waived their rights to a sequestered jury, the court virtually would have been compelled to keep the jury sequestered during the continuance. 136 This obviously would have disrupted the lives of the jurors, the alternatives, and their guards, and would have been costly to the Government as well. Third, even with the jury sequestered, the Government and Mardian might have been prevented from receiving a fair trial. The jury might have resented the prolonged period of idleness and consciously or otherwise blamed all the defendants for it, and in any event, after a long delay the evidence would have been less fresh in the jurors’ minds during their deliberations. Finally, regardless of prejudice, Mardian had a substantial interest in a quick ending to the cloud of uncertainty that had enveloped him, and the public a similar interest in a speedy resolution of this major trial.

The question before us, then, is whether, in light of these costs, the District Court abused its discretion in concluding that appellants had failed to show that Nixon’s testimony would be of such importance as to warrant a continuance. After carefully reviewing the proffers of all three appellants, we conclude it did not. We reach this conclusion for three reasons.

First, not only was there no assurance that Nixon’s testimony would be favorable to the defense, as the District Court observed, 137 but also, to a great extent, appellants failed to -indicate what testimony they hoped to elicit. Appellants’ proffers frequently listed topics they wanted Nixon to discuss, without explaining the reasons they wanted him to discuss the topics, i. e., what *309 they expected to gain from his testimony on those topics. 138

Second, Nixon’s testimony on many of the topics listed in appellants’ proffers would have been cumulative of other evidence which was or could have been produced, as the District Court also noted. In several instances one or more appellants sought Nixon’s testimony regarding conversations Nixon had with persons who were neither defendants nor unindicted co-conspirators; 139 in other instances, one appellant sought Nixon’s testimony concerning discussions in which other appellants had participated; 140 in still other cases, appellants desired Nixon’s testimony about conversations that either were taped or were closely related in time and subject matter to taped conversations. 141 Even where an appellant sought Nixon’s testimony relating to an untaped, unique talk between Nixon and that appellant alone, Nixon’s testimony still would have been cumulative of the appellant’s own testimony, and because Nixon was himself an unindicted co-conspirator the corroborative value of his testimony was at best questionable, as the District Court observed. 142

Third, Nixon could not have disputed the central propositions in the Government’s case, and thus his testimony would have been of marginal significance. The Government’s case against the appellants for the most part rested on evidence of their participation in discussions and decisions outside Nixon’s presence from January 1972 to March 1973 and on tape recordings of their participation in discussions and decisions within his presence starting in March 1973. Nixon could not have directly contradicted testimony that Mitchell approved the Gemstone plan, see pages 274-275 of 181 U.S.App.D.C., at 51-52 of 559 F.2d supra, suggested that files be burned, id. at 276 of 181 U.S.App.D.C., at 53 of 559 F.2d; participated in the launching of *310 the cover story and the knowing payment of hush money, id. at 277-280, 281, of 181 U.S.App.D.C., at 54-57, 58 of 559 F.2d; and suggested that McCord be given veiled assurances of clemency, id. at 279 of 181 U.S.App.D.C., at 56 of 559 F.2d. Nor could Nixon have contradicted the testimony that Haldeman was informed of the Gemstone plan before it was launched, and that both Ehrlichman and Haldeman were informed of the responsibility of CRP for the Watergate burglary shortly after it occurred, id. at 275-276 of 181 U.S.App.D.C., at 52-53 of 559 F.2d; that they each ordered that files be destroyed, id. at 276 of 181 U.S.App.D.C., at 53 of 559 F.2d; each used the CIA to stall the FBI investigation, id. at 276-277 of 181 U.S.App.D.C., 53 -54 of 559 F.2d n. 15; and each participated in the decision to raise and distribute hush money, id. at 278-280 , 281 of 181 U.S.App.D.C., at 55-57, 58 of 559 F.2d. Nixon could not even have impeached indirectly the credibility of the Government’s key witnesses since Magruder and LaRue did not testify to any conversations with Nixon, and most if not all the conversations with Nixon that Dean testified about were taped. And of course Nixon could not have disproved what the tapes revealed. Thus Nixon’s testimony would have been collateral to the essence of the defense cases, which consisted of denials of the Dean, Magruder, and LaRue testimony.

The limited significance of Nixon’s testimony is clearly revealed by those portions of appellants’ proffers that are specific. Because of the large number of topics listed on the proffers, we discuss only general problems with illustrative examples.

(a)In a few instances a topic listed on one of the proffers does not even appear relevant, let alone significant, to the issues involved in the trial. For example, Ehrlich-man indicated he wanted Nixon to testify that Ehrlichman had urged the President in 1972 to discontinue prosecution of Daniel Ellsberg, and that Nixon had directed Ehrlichman in April 1973 to meet with the judge presiding over the Ellsberg trial. The proffer does not indicate why such testimony would be relevant, and Ehrlich-man did not testify about these matters when he was on the witness stand.

(b) In a great number of instances Nixon’s testimony was desired to establish a point not in contention. For example, Mitchell indicated he wanted Nixon to testify that “matters discussed by Mr. Nixon with Mr. Colson” — presumably relating to clemency — and “matters discussed with Messrs. Dean, Haldeman and Ehrlichman on March 21,1973” — presumably relating to the payment of hush money — were not “conveyed by Mr. Nixon to Mr. Mitchell.” But the Government never claimed otherwise. Rather, it showed that Mitchell was made aware by Dean that veiled assurances of clemency had been given to Hunt, see Tr. 2992-2993, 2998-2999, and by Dean and La-Rue of Hunt’s March, 1973 money demands, Tr. 3086-3090, 6728-6732. That Mitchell may not have been informed of the details of Nixon’s conversations is of little consequence.

(c) In largest measure, appellants sought Nixon’s testimony to provide indirect support to their defenses. For example, Haldeman and Ehrlichman each indicated they wanted Nixon to testify that he instructed them to speak to Dean about the Nixon Estate plan in June, 1972; not to make offers of clemency or to limit the FBI investigation; not to spend time on Watergate; and to meet at LaCosta to discuss strategy regarding the Senate Watergate Committee. Again, the Government did not contend that contrary instructions had been given. But Haldeman and Ehrlich-man apparently desired this testimony in the hope that the jury would infer that they talked to Dean only about the Nixon Estate in June 1972, talked only about the Watergate Committee at LaCosta, and did not violate Nixon’s instructions regarding work on Watergate, clemency, or the FBI. The weakness of these inferences is patent.

In sum, we conclude that the District Court did not abuse its discretion in denying the requested continuance. According *311 ly its decision on this point must be affirmed.

VII. EVIDENCE OF THE ELLSBERG BREAK-IN AND EHRLICHMAN’S INVOLVEMENT

Both Ehrlichman and Haldeman contend that the trial court committed error in allowing the Government to introduce evidence that Ehrlichman had authorized an illegal break-in at the offices of Dr. Lewis J. Fielding, a Beverly Hills psychiatrist, for the purpose of examining the psychiatric records of one of his patients, Daniel Ells-berg, who had misused some classified defense documents. 143 The warrantless entry was carried out by some of the persons who were later involved in the Watergate break-in. 144

A. The Claim of Prejudice

Objection was made to the introduction of evidence of the Ellsberg break-in on the ground that the prejudice engendered by the admission into evidence of such prior acts of criminal misconduct outweighed their legitimate probative value. Ehrliehman br. at 45-53a; Haldeman br. at 4. Rejecting this objection, the court admitted the evidence as being probative of motive. The Government now contends it was properly admitted on two grounds:

(1) to show a central motive for the conspiracy by proving the occurrence of activity the conspirators desperately wanted to conceal, and (2) to explain the background and meaning of Hunt’s threats to expose the “seamy things” he had done for the White House if his money demands were not met.

Govt. br. at 222. As Mr. James Neal, the Government prosecutor, explained to the court in arguing for the admission of the evidence in question:

MR. NEAL: Your Honor, we say the purpose of the conspiracy was to conceal those involved in the planning and implementation of the break-in as well as other matters.

Now, our contention and theory in this case — and we will put on proof this was one of the reasons for covering up — was that if they really got into this matter, if the investigation of the planning and implementation of the break-in was explored and divulged, it would lead them to the operations of Hunt and Liddy and others with respect to the Ellsberg affair.

Tr. 2298-2299.

The general rule in this country is that evidence of other crimes is admissible to show, inter alia, motive, so long as its probative value outweighs its prejudicial effect. 145 As Dean Wigmore pointed out, this *312 is basically a question of relevancy, 146 and “the fact that the circumstance offered also involves another crime by the defendant charged is in itself no objection, if the circumstance is relevant [to show motive].” 147 We do not understand Haldeman and Ehrlichman to challenge this statement of the law; rather, as we have noted above, they argue that “[w]hen balanced against the lengthy, inflammatory evidence of Ehrlich-man’s involvement in the Ellsberg matter * * * the probative value of this prior criminal activity was outweighed by the prejudice which it caused to Mr. Ehrlich-man’s defense.” Ehrlichman br. at 50. Having reviewed the facts carefully, we disagree and find the balance to lie clearly in favor of the probative value of the evidence with only minimal danger of improper prejudice.

Appellants list four factors which, they contend, made this evidence unduly prejudicial and therefore inadmissible: (1) the “tenuous” connection between the Ellsberg affair and the Watergate cover-up; 148 (2) the adduction of “a large quantum of evidence which went to the very heart of Mr. Ehrlichman’s conviction in the ‘Plumber’s Trial’ ”; 149 (3) the introduction and reading of an August 11, 1971, memorandum from David Young and Egil Krogh to Ehrlich-man which bore Ehrlichman’s initialed approval of a proposed “covert operation * * * to examine all the medical files still held by Ellsberg’s psychoanalyst * * * ; 150 and (4) the fact that the prior crime was mentioned in the Government’s opening statement, contrary to United States v. Bailey, 164 U.S.App.D.C. 310 , 505 F.2d 417 (1974), cert. denied, 420 U.S. 961 , 95 S.Ct. 1350 , 43 L.Ed.2d 438 (1975).

B. Application of the Governing Principles

As regards the first source of claimed prejudice, the “tenuous” connection between the Ellsberg-Fielding break-in and the Watergate cover-up, we find evidence introduced at the instant trial which could well have allowed the jury to find a definite link between the two events. It could be concluded from the Hunt Memorandum, Tr. 7554-58, and the payment of money thereafter that concealing responsibility for the Ellsberg break-in was part of the motivation for the payment of money to those involved in Watergate. 151 The desire on the part of appellants to conceal the Ellsberg break-in was clearly indicative of a motive to conceal the identities of higher-ups involved in the Watergate break-in as charged in Count 1, paragraph 11 of the indictment 152 because some of those who participated in the former operation were also in the latter and any reasonable person would suspect that if the names of the participants in either venture were discovered, such fact might lead investigators to the identities of those persons participating in the planning, execution, or concealment of the other crime.

Evidence of the Ellsberg-Fielding break-in also casts light upon the meaning of Hunt’s threat to reveal the “seamy things” he had done for the White House if he were not paid certain sums of money. This incident came about during Hunt’s conversation with co-conspirator Colson, which was *313 generally referred to in Overt Act 22 of the indictment.

In addition, the evidence of Ehrlichman’s connection to the Ellsberg break-in was also probative on the issue of whether he had consistently urged full disclosure about Watergate as he contended. 153 Thus,' far from requiring the jury “to reach highly speculative inferential and deductive conclusions,” Ehrlichman br. at 46, the Ells-berg-Fielding break-in evidence was tied directly to the Watergate cover-up by the statements and defenses — which were placed before the jury — of the co-conspirators themselves.

Second, Ehrlichman asserts that the prosecution presented an “avalanche” of evidence concerning the Ellsberg operation which in effect resulted in his retrial and reconvietion on the Ellsberg charges. 154 We find such allegations to be a very substantial overstatement of the record. Actually the testimony concerning the Ellsberg matter was rather limited. It was confined to two Government witnesses, Hunt ’ and Krogh. Hunt answered only four questions which referred to the surreptitious entry at Dr. Fielding’s office, and at no time mentioned Ehrlichman. Krogh’s direct testimony was relatively minimal, Tr. 7653-7681, with only a part referring to the Special Investigations Unit and the Ellsberg matter. Furthermore, the testimony only went to Ehrlichman’s connection with the event and did not concern Ehrlichman’s conviction of a crime in connection therewith. 155 It is also noteworthy that appellants did not request a limiting instruction and objected to the court giving the cautionary instruction suggested by the Government. Tr. 7745-7747, 7847, 7863-7870. See 1 J. Wigmore, Evidence § 216 (3d ed. 1940).

Third, 'we find no impropriety in the introduction and reading of the August 11 memorandum from Krogh to Ehrlichman to the jury. Tr. 7668-7672. Given that there was evidence linking the EllsbergFielding break-in to the Watergate coverup, it was certainly appropriate to introduce the one piece of documentary evidence which clearly tied Ehrlichman, who was accused of the coVer-up,' to the California break-in. It is exactly because the memorandum “went to the very heart of the Government’s [Ellsberg break-in] case and was one of the principal instruments employed to bring about Mr. Ehrlichman’s conviction,” Ehrlichman br. at 53, that its use was so apposite. The alternative would have been the use of more speculative and less probative evidence which would undoubtedly have prejudiced appellants far more.

Finally, we reject the argument that our holding in Bailey, supra, was violated. 156 Here, unlike Bailey , both the court and the defendants were warned in advance by Count 1, paragraph 13 of the indictment and paragraph B(l) of the Bill of Particulars 157 and the Government’s Trial Memorandum 158 that this evidence would be offered. In fact, prior to the opening statement, Ehrlichman did object on double jeopardy grounds to the use of the Ellsberg break-in evidence, and this'objection was denied. 159 Moreover, even if reference in *314 the opening statement to the evidence would be held to be improper, the error would be harmless here because, as we have observed above, in this case the evidence was admissible. “[L]ater government efforts to introduce evidence of the prior offenses” were not “unavailing” in this case. Bailey, supra, 164 U.S.App.D.C. at 313 , 505 F.2d at 420 . No harm was thus done to appellants by its inclusion in the opening remarks, even if Bailey could be read to bar such mention.

We therefore conclude that the probative value of the Ellsberg-Fielding break-in evidence far outweighed its prejudicial effect, 160 and we hold that evidence of Ehrlichman’s relation to that venture was properly admitted into evidence.

VIII. USE OF MITCHELL’S TESTIMONY BEFORE CONGRESSIONAL COMMITTEES

Appellant Mitchell contends that the trial court committed constitutional error in permitting the Special Prosecutor to use testimony given by Mitchell under subpoena to the Senate Select Committee in July, 1973 and to the House Judiciary Committee in July, 1974. Mitchell objects to the use of this testimony as a basis for the charge of perjury to the Senate Committee contained in Count 6 and in cross-examination on critical aspects of the other charges. 161

*315 Appellant argues that since he was subpoenaed after the Special Prosecutor had targeted him as a “potential defendant,” and even after he was indicted in the case of the House Judiciary Committee, he was a “virtual” or “putative” defendant with an “absolute right to stand mute.” Faced with the Hobson’s choice of answering committee questions or stating (on national television) that his answers would tend to incriminate him, Mitchell charges he was perforce “compelled” to answer the committees’ questions, and the use of this testimony at his trial violated his Fifth Amendment privilege not to “be compelled in any criminal case to be a witness against himself.” 162 We reject Mitchell’s contention.

1. Mitchell relies principally on Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and several cases in the lower courts extending the safeguards of Miranda to putative defendants called before the grand jury, 163 as recognizing a right “to invoke silence” which “serves to protect persons in all settings in which their freedom is curtailed in any significant way from being compelled to incriminate themselves.” 164

a. The Miranda warnings were developed in response to the compulsion believed inherent in police custodial interrogation. The Supreme Court has yet to decide whether they extend to the context of a grand jury inquiry. Four Justices in United States v. Mandujano, 425 U.S. 564 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976), deemed the transplanting of the Miranda warnings from the original context of “extra-judicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards” to the “wholly different” context of “questioning before a grand jury inquiring into criminal activity under the guidance of a judge,” to be “an extravagant expansion never remotely contemplated by this Court in Miranda * *.” 425 U.S. at 579, 580 , 96 S.Ct. at 1778. Earlier, in Beckwith v. United States, 425 U.S. 341 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976), a unanimous Court declined to require that Miranda warnings be given in a noncustodial criminal tax investigation even though the “focus” of the investigation was on the taxpayer when he was interviewed. The Court made clear that “it was the custodial nature of the interrogation which triggered the necessity for adherence in the specific requirements of its Miranda holding,” and that a person does not become the “focus” of a criminal investigation for purposes of triggering Miranda until he “ ‘has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” 425 U.S. at 347, 96 S.Ct. at 1616. 165

*316 b. Assuming arguendo that a putative defendant called before the grand jury may stand mute and refuse to answer questions put to him without invoking the stated ground of self-incrimination, and that this rationale applies to the legislative committee context, 166 we find the trial court did not err in permitting the Special Prosecutor to use Mitchell’s testimony. The perjury charge in Count 6 was based on Mitchell’s Senate Committee testimony that there was neither discussion nor instruction concerning destruction of the “Gemstone file” at a June 19, 1972 meeting in his apartment. The Supreme Court was unanimous in Mandujano that the Fifth Amendment privilege provides no protection for the commission of perjury, 167 at least where the false answers could not be said to have been procured by Government tactics or procedures so inherently unfair as to violate due process. While not expressly on point, Mandujano states a principle that would authorize the Special Prosecutor’s use of Mitchell’s testimony in impeachment by contradiction. Such impeachment is also sanctioned by Harris v. New York, 401 U.S. 222, 226 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971), and Oregon v. Hass, 420 U.S. 714, 722 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975): “[T]he shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.” Mandujano, 425 U.S. at 583 , 96 S.Ct. at 1780 , quoting Oregon v. Hass, supra, 420 U.S. at 723, 95 S.Ct. 1215 .

c. Seeking to avoid the impact of these rulings, Mitchell argues that in both cases the Court specifically found that the confessions used for impeachment purposes were neither involuntary nor coerced, 168 and claims “Mitchell’s statements before the congressional committees, after his right of silence had been asserted and wrongfully denied, ‘cannot be other than the product of compulsion.’ ” 169 As Hass makes clear, the Court’s references to “coerced” or “involuntary” confessions are to the voluntariness standard of the pre-Miranda cases, which excluded confessions or statements induced by police behavior so egregious as “to overbear petitioner’s will to resist and bring about confessions not freely self-determined * * 170 In Hass the police had given the required warnings but continued questioning notwithstanding the suspect’s request to telephone his lawyer. Justice Blackmun, writing for the Court, found that the pressure on the suspect “was no greater than that on any person in like custody or under inquiry by any investigating officer,” and that questions of police abuse, coercion or duress are to be “meas *317 ured by the traditional standards for evaluating voluntariness and trustworthiness.” 171

Mitchell’s “dilemma” simply does not fit the pre-Miranda “coerced confession” rulings. Mitchell was represented by counsel throughout the proceedings. He was not subjected to any physical ordeal. The hearings were held in public. The inquiring congressmen repeatedly indicated that they would abandon any question that met with invocation of the self-incrimination privilege. The House Judiciary Committee informed Mitchell in advance that his appearance would not be required if he announced an intention to rely on the Fifth Amendment. There was absolutely no effort made to overcome Mitchell’s will and produce statements not “freely self-determined.”

2. We have met Mitchell on his home ground, pointing out that even if his Fifth Amendment rights had been violated by the Committee’s questioning it was permissible to use his non-coerced testimony in the perjury count and for impeachment purposes.

But we would not want in such an important case to leave the implication that we accept Mitchell’s claim that the Self-Incrimination Clause embodies an absolute right of silence. Appellant has mistaken what is a narrow exception, born of very special circumstances, for the general rule.

a. Mitchell was merely required to follow the usual path for asserting the privilege against self-incrimination. Generally the privilege must be claimed to be respected. The reason for this is that government acting within its proper sphere and by proper process — Mitchell does not argue that the committees were acting otherwise — has a right to everyone’s testimony, and that the Fifth Amendment privilege "addresses only a relatively narrow scope of inquiries,” which' the individual being questioned is in the best position to identify. “Unless a witness objects a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled.” Garner v. United States, 424 U.S. 648, 655 , 96 S.Ct. 1178, 1183 , 47 L.Ed.2d 370 (1976). See also United States v. Monia, 317 U.S. 424, 439-442 , 63 S.Ct. 409 , 87 L.Ed. 376 (1943) (Frankfurter, J., dissenting).

This principle, often stated by the Court, and the operative principle of many decisions, 172 was squarely decided in United States v. Kordel, 397 U.S. 1 , 90 S.Ct. 763 , 25 L.Ed.2d 1 (1970). A unanimous Court held that an individual under compulsion to make disclosures as a witness in a civil case brought by the Government, while at the same time the target of a pending criminal investigation, lost the benefit of the privilege when he revealed information without claiming the privilege. Justice Stewart pointed out that the individual answered the interrogatories in the civil case while represented by counsel. “His failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself,” Id. at 9-10 , 90 S.Ct. at 768 .

b. The general rule is subject to a few narrowly delineated exceptions where the privilege against self-incrimination need *318 not be expressly claimed, and where there is a right of silence. These exceptions are simply not applicable to Mitchell’s case. The exceptions fall into essentially two categories.

The first category of exception is exemplified by the Miranda decision, involving situations so rife with coercion as to “deny an individual the ability freely to choose to remain silent” and where “the inquiring government is acutely aware of the potentially incriminatory nature of the disclosures sought.” 173 The Miranda safeguards were promulgated as a prophylactic measure for an inherently coercive situation altogether lacking in procedural niceties, poles apart from proceedings “in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” 174

We are not called upon to anticipate whether in the review already granted the Supreme Court will affirm lower court rulings extending Miranda to the grand jury situation. These rulings are based on the premise that there is coercion in the grand jury situation, not overcome by the judicial supervision available, since the witness under subpoena obligation may not be aware that he is a potential defendant, and therefore not on alert to avoid incriminating disclosures, and he does not have a lawyer at his side during the questioning. 175 The image of a trap for the unwary underlies the Ninth Circuit’s view: “The imposing ex parte nature of grand jury inquisitions, coupled with the predicable ignorance of many lay witnesses about the intricacies of the privilege against self-incrimination, creates a foreseeable probability that the witness will subject himself to criminal liability.” 176 However the Supreme Court may rule on the grand jury issue, Mitchell’s case is not comparable. Mitchell had counsel by his side at all times, knew he was a potential defendant, was appreciative of the consequences of his actions, and could have readily asserted the privilege if he so wished.

The purpose of the grand jury inquiry is to obtain information about criminal activities in order to determine whether to return an indictment and launch a criminal proceeding. Although the grand jury’s focus may extend beyond the particular witness, it has been found “smackpng] of entrapment” to “bait” a witness already suspected of being guilty of a precise offense into either committing perjury or offering incriminating testimony. 177 By contrast, the congressional committees subpoenaed Mitchell for purposes independent of the criminal proceedings that were the bailiwick of the Special Prosecutor. The committee’s purpose was to expose the workings of an unprecedented national scandal *319 as a basis for proposing corrective legislation, and in the case of the House Judiciary Committee to decide whether to return a bill of impeachment against former President Nixon. They had a right to Mitchell’s testimony, except where by timely and explicit interposition of the self-incrimination privilege Mitchell identified potentially incriminating matters and gave the committees the opportunity to proceed further with their inquiry by conferring immunity from use in a subsequent criminal proceeding. This is the process contemplated by the Fifth Amendment for asserting the privilege in the course of investigations of official misconduct. 178

c. The second exception from the general rule requiring assertion of the privilege involves situations where the very invocation of the privilege is likely to result in criminal sanctions. We do not require the defendant in a criminal trial to take the stand and assert the privilege in open court, and indeed we do not permit comment on the failure to testify in one’s own defense, 179 because of the likelihood that the jury will infer guilt from the mere assertion of the constitutional privilege. 180 Indeed, the fear of “disproportionate impact” on the jury has led us to extend this principle to a non-party witness who indicates his intention to invoke the privilege, irrespective of whether his testimony would be favorable to the defense or the prosecution. 181 Another line of cases involves gambling excise tax and reporting measures, where the Supreme Court has held that the privilege could be exercised by simply failing to make the required disclosures. The Court reasoned that because of the pervasive criminal regulation of gambling activities, and the fact that the taxes and disclosures were required only of gamblers, a group “inherently suspect of criminal activities,” disclosures made in connection with the taxes were likely to result in criminal sanctions, and assertion of the privilege would not remove the compulsion as it would identify the claimant as a gambler. 182

Mitchell cannot claim to have been under a similar compulsion to forego assertion of the privilege. While his assertion might lead to public speculation or opprobrium, the public would not be in a position to impose or precipitate criminal sanctions, and hence failure to assert the privilege is not justified in law. 183 The courts would always be open to hear the contention that the consequence of a publicized assertion of the privilege was pretrial publicity so pervasive and so harmful as to prevent a fair trial at the time and in the place at which he was tried. 184 This issue is considered in Part II of our opinion.

It is only in the exceptional case that the privilege can be relied upon without claim *320 ing it, and Mitchell’s case does not come within the recognized exceptions.

We find no error in the Special Prosecutor’s use of Mitchell’s testimony before the committees as the basis for the perjury count and in impeachment by contradiction of Mitchell’s assertions on the stand.

IX. HALDEMAN’S PERJURY CONVICTIONS — THE EVIDENCE AND THE INSTRUCTIONS

In addition to finding the defendant Haldeman guilty of conspiracy and obstruction of justice, the jury also found him guilty on three counts of perjury — Counts 7, 8, and 9 — in violation of 18 U.S.C. § 1621 (1970). All of these offenses were allegedly committed from July 30 to August 1, 1973, when he testified before the Senate Select Committee on Presidential Campaign Activities (the Ervin Committee). Count 7 charged Haldeman with falsely testifying that, prior to March 21, 1973, no one in the White House other than John Dean had any idea that hush money was being paid to the Watergate burglars. Count 8 alleged that Haldeman committed perjury in testifying that he had listened to a tape recording of the President’s March 21,1973, conversation with Dean and that he (Haldeman) was “absolutely positive that the tapes” recorded the President as saying, “We can [raise $1,000,000 for hush money] * * * but it would be wrong.” Count 9 alleged that perjury was committed when Haldeman told the Senate Committee that, during a March 21,1973, meeting among himself, the President, and John Dean, “I don’t believe there was any reference to [Jeb] Magruder committing perjury.”

A. Count 7: The Two-Witness Rule

Haldeman first contends that the trial court erred in not explaining the meaning of “corroboration” in connection with the “Two-Witness Rule” applicable to perjury offenses. 185 He had requested such an instruction. J.A. 828-829. This objection is directed to Count 7, which alleged that Haldeman committed perjury when he denied personal knowledge that anyone was aware until March 1973 that around $350,-000 which had been collected and paid for the “defense” of the Watergate burglars involved either blackmail or hush money. 186 The court’s instruction on this point was as follows:

As to the second element, the law requires in a case such as this that the falsity of the testimony in question be proved by the sworn testimony of at least one witness, and that the testimony as to falsity given by such witness be corroborated by some other evidence in the case. In other words, a person cannot be convicted of perjury when the evidence simply consists of his oath against another’s; there must be some corroboration of the testimony against him before he can be convicted. This is one of the factors which distinguishes this perjury law from the false declaration law which forms the basis of Counts Four, Five, Eleven, and Twelve as I noted a while ago.

Accordingly, if you find, with respect to any of these perjury counts, namely, *321 Six, Seven, Eight, and Nine, that the prosecution has presented only one witness who has testified to the falsity of a Defendant’s Senate testimony, and no independent corroborating evidence of the falsity of the Defendant’s testimony, you must find the Defendant not guilty on that count.

Tr. 12390-12391.

Haldeman contends that this instruction constitutes “reversible error on count Seven” because the trial court failed to define “corroboration.” Haldeman br. at 137. His apparent point is that the court should have additionally instructed that “corroborative evidence necessary to sustain a perjury conviction is that which tends to show the perjury independently.” 187 Haldeman br. at 136-137. It seems, however, that the court’s instruction, given above, practically complied with this requirement in that portion of the charge stating:

* * * if you find * * * that the prosecution has presented only one witness who has testified to the falsity of a Defendant’s Senate testimony, and no independent corroborating evidence of the falsity of the Defendant’s testimony, you must find the defendant not guilty on that count.

J.A. 12391 (emphasis added). We are of opinion that this instruction was adequate and appellant’s objection to it is not well taken.

A second argument raised by Haldeman is that, even assuming an adequate instruction on corroboration, there was no “independent corroborating evidence” of the falsity of this testimony. The main proof of perjury is John Dean’s testimony that Haldeman was aware at the very outset of the conspiracy that money was being paid to the break-in defendants to keep them silent. See, e. g., Tr. 2741-2742. The “corroborating” proof of this, however, is said to be only allegations by Dean that Haldeman heard a tape recording of a conversation between E. Howard Hunt and Charles Colson in which Hunt complained that the Administration’s promises of money payments were not being fulfilled. Tr. 2909-2912, 2920-2923, 2928-2931, 4250-4254; Tape Tr. 646-647, 651.

If this were the only corroborating evidence, it would be insufficient, for it is not “independent” — it is only Dean affirming Dean. But contrary to Haldeman’s argument, there is independent evidence to support Dean’s allegations in this regard. Several of the taped conversations involving Haldeman and the President, which were heard by the jury, could reasonably be interpreted to include admissions by Haldeman of knowledge, prior to March 21, 1973, of hush money payments to the Watergate break-in defendants. For example, on April 14,1973, the President, Haldeman, and Ehrlichman discussed Dean’s June 28,1972, request that Herbert Kalmbach be asked to raise hush money:

EHRLICHMAN: As a matter of fact, I didn’t refer him [Dean] to Kalmbach. He came to me and said, “May I go to Kalmbach?”

HALDEMAN: He did the same thing to me.

PRESIDENT: Go to Kalmbach for the purpose of?

EHRLICHMAN: For the purpose of getting Herb to raise some money. For the purpose of paying the defendants. For the purpose of keeping them, quote, on the reservation, unquote.

PRESIDENT: Right. With that they could try to tie you and Bob in a conspiracy to obstruct justice.

EHRLICHMAN: That’s his theory.

Tape Tr. 456 (emphasis added). In another conversation on March 22, 1973, between Haldeman and the President, Haldeman essentially admitted approving transfer of $350,000 from a fund under his control for use to pay off the Watergate break-in de *322 fendants. 188 These direct statements of Haldeman are strong substantiating evidence, and are completely independent of the testimony of John Dean. In addition, they allow inferences to be drawn from other circumstantial evidence (such as Dean contacting Kalmbach about raising money for the defendants, Tr. 6301-6305), which corroborate Dean’s story.

Therefore, we reject both the challenge to the instructions and the challenge to the evidence - under Count 7, and affirm Haldeman’s conviction on this count. 189

B. Count 8

The next attack on the instructions by Haldeman relates to his conviction on Count 8 — the “but it would be wrong” count. This charge arises from the false statement to the Senate Select Committee that, on March 21, 1973, during a meeting among Haldeman, the President, and John Dean, the President discussed the possibility of raising hush money but concluded by saying “we can do that but it would be wrong.” Indictment, Count 8, ¶ 4, J.A. 141-143. Haldeman complains that the jury was not instructed on the theory of his defense to this charge, although appropriate requests were made. Specifically, he asserts in his brief that the

Jury Was Not Told that Defendant Haldeman Challenged the Accuracy of the Alleged Perjurious Senate Testimony Which Formed the Basis for Count Eight on the Ground that He Did Not Quote President Nixon but Rather Paraphrased His Statements

Defendant Haldeman testified at trial that he was not quoting President Nixon to this effect but was only paraphrasing *323 the former Chief Executive. Claiming a variance from the Indictment, defendant Haldeman submitted a proposed instruction that would have advised the jury of this theory of defense (J.A. 711) but the court rejected this request without explanation (J.A. 776).

Haldeman br. at 137.

The requested instruction, which he now asserts he was entitled to because it would have presented the theory of his defense, would have instructed the jury:

If you find that Mr. Haldeman did not purport to quote former President Nixon at the date, time and place alleged in Count Eight, then you should find Mr. Haldeman not guilty of the offense charged in Count Eight. Otherwise, you should apply to Count Eight the instructions on perjury which I have heretofore given you.

J.A. 711. 190 The actual charge delivered to the jury by the trial judge with respect to Count 8 did include the following language, however:

[A]s I will mention again in a minute, Mr. Haldeman is contesting the accuracy of his testimony as it set forth in Count Eight of the indictment. Let me now remind you that even though there are some stipulations, you must decide for yourselves whether the first element has been proved beyond a reasonable doubt.

Tr. 12390 (emphasis added).

* * jf: sfc #

The jury must note that the Defendant, Mr. Haldeman, has challenged the accuracy of the testimony alleged in Count Eight of the indictment to be false. So on this count of the indictment, the jury must also determine whether the Defendant testified before the Senate Committee as alleged in Count Eight.

Thus, in each of these counts the Government must prove beyond a reasonable doubt the falsity of the alleged perjurious testimony.

Tr. 12391-12392 (emphasis added).

While these instructions were not worded exactly as Haldeman requested, they did fairly present to the jury the fact that he was challenging the accuracy of his alleged perjurious Senate testimony as alleged in Count 8. In fact, that point was twice stated. We see no error in the instructions on this matter.

Haldeman also challenges the evidence on Count 8, arguing that “a fair and liberal construction of the March 21 tape, as explained by the defendant, finds the statements true, and surely they were believed to be true” 191 since he allegedly was paraphrasing rather than quoting President Nixon. This amounts to a challenge to the sufficiency of the evidence to convict on this count. We find no error in submitting the question to the jury, for there is enough evidence here to support a conviction. The actual testimony before the Senate Committee, as quoted in Count 8 and reproduced in the margin, 192 goes a long *324 way toward answering the question of whether Haldeman did, or did not, purport to quote former President Nixon as alleged in Count 8. The “addendum” referred to by Senator Baker on July 31 is presumably a written statement filed with the Committee by Haldeman, see Exhibit 22; Hearings Before the Senate Select Comm, on Presidential Campaign Activities, 93d Cong., 1st Sess., Book 7, at 2866, 2897 (July 30, 1973). It (unlike the actual testimony) obviously involves no interruption. The Senator quotes Haldeman as stating flatly in this addendum, “The President said there is no problem in raising a million dollars. We can do that but it would be wrong.” J.A. 142 (emphasis added). 193 Then, in response to a question from the Senator, Haldeman affirmed that this is what he heard:

Senator Baker. Did you hear it with your own voice?

Mr. Haldeman. With my own ears, yes.

*325 Id. Several minutes later, in response to a question from Senator Ervin, Haldeman refers again, without qualification, to the statement of the President that payment of hush money “would be wrong.” Id. at 93 . While it is true that Haldeman did preface his statement before the Committee on July 30, 1973, with the caveat that he was recounting “the substance of that [March 21] meeting to the best of my recollection” after listening to the tape, id. at 91 , this by itself does not indicate whether he would be quoting or paraphrasing particular sentences; moreover, the caveat was not repeated the next day (July 31) when, as pointed out above, he again flatly stated twice that the President had said hush money “would be wrong.” Haldeman’s argument was presented to the jury, see, e. g., Tr. 1808-1812, and it was clearly within the province of the jury to interpret these statements as quotations. 194

C. The Interruption in Count 8

Haldeman next asserts that the court erred in failing to grant his requested instruction with respect to the effect of an alleged interruption in his testimony.

As is indicated by the transcript of Haldeman’s testimony before the Senate Committee, the following colloquy occurred with Senator Baker:

Senator Baker. What I want to point out to you is that one sentence in your addendum . . . the third from the last sentence on page 2, “The President said there is no problem in raising a million dollars. We can do that but it would be wrong.” Now, how sure are you, Mr. Haldeman, that those tapes, in fact say that?

Mr. Haldeman. I am absolutely positive that the tapes—

Senator Baker. Did you heard it with your own voice?

Mr. Haldeman. With my own ears, yes. 195

Haldeman points to what appears to be an interruption by Senator Baker of the reply to the Senator’s first question. At trial, Haldeman “testified that his answer was incomplete and that if he had been allowed to do so he would have enlarged upon his answer to avoid what on the face of the record [he now contends] appears to be a misinterpretation of his statement (Tr. 8676).” Haldeman br. at 138. To assist in making this point to the jury, Haldeman proffered the following proposed instruction:

You may not convict a defendant of perjury merely because his testimony was factually incorrect, or if he gave incorrect testimony because of surprise, confusion, haste, inadvertence, an honest mistake as to the facts, carelessness, negligence, or if an incorrect impression was created because the defendant was interrupted whiie making his statement.

J.A. 712 (emphasis added). He now claims error because this instruction was denied.

The court, however, did give the following instruction:

A Defendant may not be found guilty of perjury simply because he gives testimony which is factually incorrect. He may have given incorrect testimony because of surprise, confusion, inadvertence, honest mistake of facts, carelessness or negligence. Also, if a Defendant believed a statement to be true when he made it, you must find that Defendant not guilty, even if it so happens that the statement was, in fact, false.

This instruction covers all the principal points of the requested instruction, except it omits the italicized words, i. e., a defendant may not be found guilty of perjury “if an incorrect impression was created because the defendant was interrupted while making his statement.” We do not find error in the refusal to so instruct the jury.

*326 The italicized portion of the requested instruction was too strongly worded in the defendant’s behalf and was not a correct statement of the law. 196 It would have in effect instructed the jury that they could acquit the defendant on Count 8 if an interruption in his testimony created “an incorrect impression” even though it clearly appeared that other testimony set forth in the count constituted clear perjury. The requested instruction was far too inclusive— the creation of “an incorrect impression,” without further specification, is not a legal defense to the offense charged in Count 8 of the indictment. There was much more to the perjury charged in this count than the portion related to the alleged interruption. The same statement was repeated elsewhere, and particularly in Haldeman’s prepared statement. If the apparent falsity of all the testimony that is charged as being false in a particular count of an indictment was due to an incorrect impression created by an interruption, that would be a defense to the count. The court is not required to adopt the exact words of a proposed instruction which is given in substance, 197 and it appears here that the court’s charge adequately instructed to this end when it pointed out, “He may have given incorrect testimony because of surprise, confusion, inadvertence. * * * ” That portion of the charge was sufficient for Haldeman’s counsel to make his point in arguing that particular defense to the jury. He was therefore not denied an instruction on the theory of his defense, to the extent that his theory was valid. The charge was sufficient and it was not necessary to make it more detailed. 198

We likewise find no error in the denial of the following instruction suggested by Haldeman:

The essence of the crime of perjury is that the challenged sworn testimony must be false and that the witness believes it to be false. No one may be convicted of perjury where he gives an answer that is literally accurate or is reasonably susceptible of more than one interpretation, one of which is truthful. Nor is it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true.

*327 J.A. 708. This instruction is said to be predicated upon Bronston v. United States, 409 U.S. 352 , 93 S.Ct. 595 , 34 L.Ed.2d 568 (1973), where the Supreme Court held that the federal perjury statute does not reach a witness’ answer that is literally true but unresponsive, even assuming the witness intends to mislead his questioner by the answer. 199

Bronston , however, dealt with an answer that was undisputably true, which is not the case here. The appellant’s statement to the Committee under Count 8 in this case was untrue (though responsive) unless the jury accepted his explanation. Bronston cannot be read to shield from prosecution answers or statements which are arguably true under some defense theory, for such a holding would all but void the federal perjury statute. Therefore, we hold that the instruction which was given 200 fully satisfied Bronston , and we affirm the conviction.

D. Count 9

This count charges Haldeman with perjury in testifying before the Senate Committee that he did not believe there had been any reference during a March 21,1973, meeting to Magruder’s having committed perjury. 201 The proof of this offense was bottomed on Dean’s positive testimony, the tape recordings of the meeting, and Haldeman’s notes which he reviewed prior to his testimony before the Senate Committee. At trial Haldeman admitted the falsity of his answer but defended on the ground that he was honestly .mistaken. 202 The issue on this count was thus squarely for the jury which was thereby called upon to determine the credibility of Haldeman’s testimony. In choosing to disbelieve him it was completely within the province assigned by the law to it 203 and we will not interfere with the result it reached. In reaching this conclusion we also find the proof of willfulness to be sufficient 204

*328 X. ADMISSIBILITY OP THE TAPE RECORDINGS

The Government’s evidence at trial included tape recordings of conversations among President Nixon, appellants Ehrlich-man and Haldeman, and other conspirators. The bulk of the conversations occurred in the Oval Office or the Executive Office Building, while others took place over the telephone. Appellants object to the introduction of the recordings on three grounds, each of which we find to be without merit.

A. Admissibility under the Omnibus Act

Under Title II of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. (1970), interceptions of oral or wire communications may not be introduced in evidence except under specified circumstances, one of which is that one of the parties to the conversation consented to the interception. Id. § 2511(2)(c), (d). Appellants contend that the District Judge made no finding of consent, or, alternatively, that there was not an adequate basis for such a finding.

The transcript reveals some confusion in the hearing on the consent issue. There was only one genuine issue to be decided at that hearing — whether the interceptions that were effected by recording the conversations in question were consented to by Mr. Nixon, a party to them. However, the trial judge appears to have believed there was a second issue — whether the overall supervision of the recording equipment by the Secret Service, and specifically the custody of the completed recordings, was itself an interception. Many of the judge’s comments, including his statement that the statute was not intended to apply “to the situation we have in this case,” Tr. 5841, appear to relate to this second issue. 205 And he was correct in ruling that these purely custodial duties of the Secret Service did not constitute an interception. 206

As to the first issue — the only genuine interception involved — the record cannot be considered crystal clear. Yet on reviewing it in its entirety, we are persuaded that the District Judge did find Mr. Nixon to have consented to the interceptions by directing the installation of the recording equipment. The District Judge stated that “[t]hese are completed conversations that were ordered according to the testimony and it can be inferred I think by the President through Mr. Higby.” Tr. 5826. That view was immediately reiterated: “[the tapes] were made at the direction of the President.” Tr. 5827. This finding of presidential consent is reflected in the statement that the Secret Service employees could be “construed as agents of the President,” Tr. 5839, and in yet another suggestion that the President “consented to [the interception] by directing somebody to give the word to Mr. Higby, who gave the word to somebody else,” Tr. 5840. Certainly, a greater measure of clarity and precision in formulating the finding would not have been amiss in view of its importance. Nonetheless, we believe the complete record reveals that the District Judge based his decision to admit the tape recordings on an unmistakably implicit finding that President Nixon directed the installation of the *329 recording equipment and thereby consented to the interception of the conversations in question.

Although appellants urge that such a finding is not supported by the evidence, we believe there is no merit to this contention. Findings of District Judges are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a). This rule is fully applicable to transcribed oral findings, and its scope extends even to inferences drawn from undisputed facts. Case v. Morrisette, 155 U.S.App.D.C. 31, 37-38 , 475 F.2d 1300, 1306-1307 (1973).

The record before the trial judge provided a more than adequate basis for inferring that President Nixon directed the installation of the recording system. Alexander Butterfield, a Deputy Assistant to the President, testified that Lawrence Higby, the principal aide to Mr. Haldeman, the President’s Chief of Staff, told him to arrange for the Secret Service to install recording equipment in the President’s Oval Office. Tr. 5521, 5524-5526. Butterfield then told the head of the Secret Service’s Technical Security Division at the White House that the President wanted a tape recording system installed. 207 It is possible that this activity could all have been initiated by Higby acting on his own; the record does not absolutely preclude such an inference from the testimony. But, by the same token, it is at least equally plausible to infer that, in a matter as extraordinary as this, Higby, a 24-year-old aide, Tr. 5527, would not have acted without Haldeman’s authorization, and that Haldeman in turn would similarly not have acted without presidential approval. Indeed, an inference of presidential consent could have been drawn merely from the existence of the devices in presidential offices. Reviewing the finding with the appropriate deference, we find no basis for upsetting it as clearly erroneous.

Finally, even if it were thought that additional evidentiary support were needed to sustain the District Judge’s ruling, such support exists. For, in the course of the hearing on the consent issue, the Government read into the record testimony given by Mr. Haldeman in a hearing in the District Court on November 8, 1973, regarding the I8V2 minute gap that appeared on one of the recordings. 208 That testimony was as follows:

Question: Now, would you explain the circumstances of the installation of the equipment, how it came about and with whom you discussed the matter?

Answer: The matter was discussed with the President initially and the equipment for the procedure was established for the purpose of providing a complete accurate record of conversations held by the President in these two offices and on the particular telephones and on some occasions in the Cabinet Room for his reference and for historical purposes. He has made a practice of meeting with individuals and groups without having staff members present, and it was felt that *330 such a record was importatn [sic] to be maintained and a procedure was set up to provide it.

Tr. 5835.

The District Judge could surely take judicial notice, in a preliminary hearing merely on the admissibility of certain evidence, that this testimony was in fact presented in a hearing at which he presided on a not unrelated matter. See Gomez v. Wilson, 155 U.S.App.D.C. 242 , 247 n.28, 477 F.2d 411 , 416 n.28 (1973); cf. Partridge v. Presley, 88 U.S.App.D.C. 298, 300 , 189 F.2d 645, 647 , cert. denied, 342 U.S. 850 , 72 S.Ct. 79 , 96 L.Ed. 642 (1951). See generally C. McCormick, Handbook of the Law of Evidence § 330, at 765-766 & nn.74-75 (Cleary ed. 1972).

Appellants argue that, even if Haldeman’s testimony were judicially noticeable, it was hearsay and hence not admissible. Although the facts that the declaration was made in a prior judicial proceeding, that the declarant is a party-defendant, and that the other defendants were co-conspirators, might bring the declaration within an exception to the hearsay rule, we need not carry out such an inquiry. For the technical rules of evidence are inapplicable to a hearing before the trial judge on the preliminary legal question of the admissibility of evidence. This view is held by the commentators, see, e. g., id. § 53, at 122-123 n.91; 5 J. Wigmore, Evidence § 1385, at 87 (Chadbourn ed. 1974), finds ample support in the case law, see Schwimmer v. United States, 232 F.2d 855, 863-864 (8th Cir.), cert. denied, 352 U.S. 833 , 77 S.Ct. 48 , 1 L.Ed.2d 52 (1956); Healy v. Rennert, 9 N.Y.2d 202, 209 , 213 N.Y.S.2d 44, 49 , 173 N.E.2d 777, 780 (1961), and has been adopted in the new Federal Rules of Evidence, see Rule 104(a), which although not in effect when this case was tried surely provide persuasive authority. If, after reviewing the live testimony before the trial judge, any suspicion that his finding of consent was clearly erroneous remained, it is surely put to rest by the substance of Haldeman’s prior testimony. 209

B. Authenticity of the Tape Recordings

Appellants challenge the foundation for the introduction of the tape recordings. In determining whether there was a sufficient showing of accuracy to warrant admissibility, we must keep in mind the governing standard: “the possibilities of misidentification and adulteration [must] be eliminated, not absolutely, but as a matter of reasonable probability * * .” Gass v. United States, 135 U.S.App.D.C. 11, 14 , 416 F.2d 767, 770 (1969); accord, e. g., United States v. Robinson, 145 U.S.App.D.C. 46, 51 , 447 F.2d 1215, 1220 (1971) (en banc), on rehearing, 153 U.S.App.D.C. 114 , 471 F.2d 1082 (1972) (en banc), rev’d on other grounds, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir. 1943). Although the evidence bearing on admissibility should be carefully scrutinized to see if it measures up to the standard, it may be circumstantial or direct, real or testimonial, and need not conform to any particular model. E. g., United States v. Sutton, 138 U.S.App.D.C. 208, 213 , 426 F.2d 1202, 1207 (1969). Viewing the record against this standard, we must reject appellants’ challenge.

The record included adequate proof that the tape recordings were made by elaborate electronic recording devices installed in the White House and the Executive Office Building by the Technical Services Division of the Secret Service. See Tr. 5633-5634. There is no evidence that the system did not accurately record the conversations it was designed to preserve. See Tr. 5584. Although on rare occasions a reel *331 would run out before it was changed or a minute of conversation would be lost while reels were being changed, Tr. 5584, 5685, 5708-5709, such lacunae would not affect the accuracy of recordings that were made.

When a Secret Service agent placed a tape on a machine, a box associated with the tape was marked with the date and the location of the machine. Tr. 5672-5673, 5701. After a completed reel was removed, it was placed in the box and marked with the date of removal and the location of the machine and initialed by the Secret Service agent involved. 210 Tr. 5672-5673, 5701-5702. The tapes were then stored in the locked cabinet housing the machines. Tr. 5674, 5703-5704. After some 30 or 40 completed reels accumulated, they would be taken from the locked cabinet and deposited in a safe located inside a room, on the ground floor of the Executive Office Building, that was protected by an alarm system. Tr. 5704.

After a subpoena duces tecum was issued for particular conversations, White House attorneys removed from the safe those reels which appeared, from the date and location markings on the boxes, to contain the specified conversations. 211 To locate a particular conversation, the attorneys used the President’s daily diaries, which had been prepared for unrelated purposes by personnel of the National Archives. Tr. 5740-5744. The diaries revealed the time, sequence, duration, and participants in presidential conversations in his offices or over the telephone. By identifying the voices on the tapes and checking the tapes against the diaries, conversations could be identified precisely. For every conversation introduced into evidence there was a corresponding entry in the presidential diaries. Tr. 5770-5785. Once the tapes were turned over to the District Court, it was stipulated that they were “kept in a safe place with access carefully documented up until today’s date,” and that the conversations introduced were the ones called for by the subpoena. Tr. 5738.

The Government thus accounted for every stage from the inception of the tape recording system to the introduction of the tapes into evidence. There was never any significant risk, as there would be with a fungible piece of real evidence, such as blood sample, that the tape recordings were inadvertently exchanged with other evidence of a similar type. As the stipulation reflects, any possibility of misidentifying tapes or conversations was eliminated by the notation on the boxes, the identification of the voices on the tapes, the correspondence of each conversation sought with the detailed information in the daily diaries, and the distinctiveness of the evidence itself.

If the possibility of misidentification was virtually nonexistent, the risk of tampering with the tapes was also slight. There was very little opportunity at any stage for someone to obtain access to the tapes for the purpose of tampering with them. The only persons specifically shown to have known of the existence of the taping system were four Secret Service agents and Messrs. Butterfield and Higby (and the trial judge’s finding on the consent issue indicates that Nixon and probably Haldeman must have known). Only the four agents had access to the keys to the locked cabinets in which the tapes were initially stored. Tr. 5679-5680. Access to the safe located within the room protected by an alarm system was similarly restricted.

Appellants’ attempt to establish the probability of tampering by pointing to (1) the regular access of the Secret Service to the tapes and their occasional spot checks of the completed reels, Tr. 5675, 5707, (2) the rare instances in which completed reels *332 may have been removed from storage for use by individuals in the White House, Tr. 5586, 5717, and (3) the existence on one tape recording of an unexplained 18V2-minute gap. As to the Secret Service agents, there is nothing to indicate that the spot checking was anything other than the routine performance of custodial duties; indeed, the agents did not listen to full conversations when conducting a spot check. Tr. 5707. As to the occasional use of the tapes by White House employees, the only person definitely identified in this regard was Mr. Butterfield, who himself admitted the fact, Tr. 5586. There is nothing in his testimony on direct or cross-examination to indicate that he in any way attempted to tamper with the tapes. The record is similarly lacking in support for any assertion that such access as may, on a handful of occasions, have been had by others in the White House resulted in tampering.

We may assume arguendo that the 18V2-minute gap resulted from intentional conduct, but that does not lead to the conclusion that the conversations introduced at trial were suspect. To begin with, none of those conversations was contained on the tape having the 18V2-minute gap. Moreover, the fact that one tape was erased hardly shows that other tapes, on which no erasures were present, were not authentic. All the conversations corresponded to the detailed information contained in the President’s daily diaries. The trial judge listened to all the conversations that were admitted. In doing so, he had the opportunity to confirm the Government’s claim that there was nothing on the tapes that raised a suspicion of tampering: no long or unusual pauses, choppy dialogue or incomplete conversations.

Although it is conceivable that sophisticated redubbing could escape detection by normal listening, real evidence is not admissible because one can conjure up hypothetical possibilities that tampering occurred. Appellants, who participated in many of the conversations, have raised no challenge to the accuracy of any one of them. John Dean testified that the six conversations to which he was a party accurately reflected his recollection of the discussions. 212 Indeed, there has been no specific suggestion as to when tampering would have taken place, what equipment would have been used, and how it would have escaped contemporaneous detection by the Secret Service or discovery after the fact. See Robinson v. United States, 109 U.S.App.D.C. 22 , 23-24, 283 F.2d 508, 509-510 , ce rt. denied, 364 U.S. 919 , 81 S.Ct. 282 , 5 L.Ed.2d 259 (1960).

The determination of a District Judge to admit tape recordings rests in his sound discretion. E. g., United States v. Young, 488 F.2d 1211, 1214 (8th Cir. 1973); United States v. Clements, 484 F.2d 928, 930 (5th Cir. 1973), cert. denied, 415 U.S. 991 , 94 S.Ct. 1591 , 39 L.Ed.2d 888 (1974); United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973); Monroe v. United States, 98 U.S.App.D.C. 228, 234 , 234 F.2d 49, 55 , cert. denied, 352 U.S. 873 , 77 S.Ct. 94 , 1 L.Ed.2d 76 (1956). The decision in this case to admit the tapes, leaving to the jury the question of their weight, falls far short of an abuse of that discretion.

C. Admissibility of Particular Excerpts

Mitchell objects on two different grounds to the admission of a number of specified excerpts in the tape recordings.

*333 1. Alleged Inadmissibility Under the Opinion and Firsthand Knowledge Rules

Mitchell contends that a number of out-of-court declarations recorded on the tapes are inadmissible because they contain expressions of opinion or statements not based upon the declarants’ firsthand knowledge. 213 The simple answer to this contention, as the Government notes in its brief, is that these rules are inapplicable to declarations admissible under the co-conspirator exception to the hearsay rule. 214 See Advisory Committee Notes on Proposed Federal Rule of Evidence 801(d)(2) (noting the “freedom which admissions have enjoyed from * * * the restrictive influences of the opinion rule and the rule requiring firsthand knowledge,” and “the apparently prevalent satisfaction with the results”); C. McCormick, supra § 18, at 42 and cases cited n. 42, § 263, at 632 and cases cited n. 29, § 264, at 632-633 and cases cited n. 32; 4 J. Wigmore, supra, § 1053(3). 215

2. Alleged Inadmissibility as Hearsay Falling Outside the Co-Conspirator Exception

Mitchell next contends that numerous excerpts on the tape recordings constitute mere narratives of past events, rather than statements made in furtherance of the conspiracy, and hence fall outside the co-conspirator exception to the hearsay rule. We agree with the point that mere narratives of past events are not admissible hearsay statements. But as applied to the facts in this case, the argument is of limited value to Mitchell.

The conspiracy at issue required the coordination and control of a large number of individuals who had knowledge of the events that were being covered up. It also required the conspirators to make regular strategic decisions on how best to proceed to prevent the full story of “Watergate” from becoming known to the press, prosecutors, Congress, and the public. The tape recordings thus contain discussions of many aspects of Watergate strategy: what would happen if particular individuals were to talk, e. g., Tape Tr. 195, how much knowledge those individuals possessed, e. g., Tape Tr. 306, who was likely to volunteer or be compelled to talk, e. g., Tape Tr. 213-214, 306, 310, what individuals could be dissociated from any responsibility for reprehensible or illegal activity, e. g., Tape Tr. 147, 265-267, 303, 458-459, whether certain officials should assert executive privilege, e. g., Tape Tr. 193-194, whether public statements should be issued and what they might contain, e. g., Tape Tr. 57, whether it was feasible to raise and distribute hush money, e. g., Tape Tr. 131-132, 179, 189-191, whether promises of money or aid had been extended to particular persons, e. g., Tape Tr. 325, and so forth, see e. g., Tape Tr. 64, 72, 82, 86, 89-91, 130, 135, 311.

As the threads of the cover-up began to unravel, it became increasingly important *334 to review what had taken place in order to identify and shore up the loose ends. It became critical for the conspirators to try to ensure that any story they wished to present would not ring false and that any action they were considering would not backfire, a strategy whose success required total familiarity with the facts. 216

In a conspiracy in which consideration of alternative strategies played so central a role, 217 statements which narrate past events are not necessarily “mere narratives” in the usual sense of that phrase. Rather, they can constitute activity that is plainly and importantly “in furtherance of” a conspiracy, and thereby be admissible under the co-conspirator exception to the hearsay rule. See, e. g., United States v. Annunziato, 293 F.2d 373, 380 (2d Cir.), cert. denied, 368 U.S. 919 , 82 S.Ct. 240 , 7 L.Ed.2d 134 (1961); Zamloch v. United States, 193 F.2d 889, 890-891 (9th Cir.), cert. denied, 343 U.S. 934 , 72 S.Ct. 770 , 96 L.Ed. 1342 (1952).

We have reviewed each of the excerpts to which Mitchell objects in context. Although most of the 39 excerpts contain statements of past facts, almost all of these statements are integral parts of the continual strategy sessions that took place in the White House concerning what to do in the future about Watergate. Only four of the excerpts strike us as possibly falling outside of the “in furtherance” requirement. 218 But even were we to assume that it was error to admit these excerpts, the error is clearly harmless. 219

The evidence of Mitchell’s participation in the conspiracy was overwhelming. As noted in our summary of the evidence supra, Mitchell was involved in the conspiracy from its inception on June 17 and played a *335 central role in virtually every stage. The Government is entirely correct when it states at page 37 of its brief that

[tjhere was no aspect of the obstruction in which [Mitchell] was not involved; the attempt to “spring” McCord; the false press release; the destruction of documents; the Magruder “cover story”; the attempted misuse of the CIA; the “hush money” payments; the veiled offers of clemency; and, finally, the false statements and perjurious testimony.

And his complicity in these events was irrefutably established at trial through the testimony of Dean, Magruder, LaRue, and Kalmbaeh, as well as co-defendants Haldeman and Ehrlichman.

Finally, contained on the excerpts that were properly admitted were a large number of statements by Dean, Nixon, Ehrlich-man, and Haldeman that fully implicated Mitchell in the crimes of which he was convicted. 220 Any incriminating declarations on the four excerpts in question merely tracked the substance of a much larger number of declarations that were properly admitted. In light of this fact and the overwhelming evidence of Mitchell’s guilt, any error that may exist is clearly harmless beyond any reasonable doubt. 221

We have considered all of Mitchell’s arguments regarding the admission of the tapes, and we believe that none of them identifies any prejudicial error.

XI. THE JURY INSTRUCTIONS

Haldeman raises many challenges to the court’s instructions to the jury, a number of which are insubstantial and will not be discussed. 222 The other alleged errors, though of more substance and considered at length herein, do not constitute reversible error.

A. The Specific Intent Instruction

Haldeman raises a number of arguments which he contends demonstrate that the District Court failed to give a clear and correct definition of the essential element of specific intent. His major points appear to be: (1) the court failed to emphasize specific intent as an element of each offense charged; (2) the court failed to distinguish specific intent from general intent; and (3) the placement of the specific intent instruction tended to minimize its impact. For the reasons explained below, we find no error in the judge’s charge to the jury on this subject.

First, it becomes clear upon reading the entire charge (Tr. 12356-12415) that the jury was instructed with respect to each count that they must find the presence of specific intent as a prerequisite to returning a verdict of guilty. The judge first addressed the charge of conspiracy, telling the jury that one of the essential elements of the offense is “[t]hat each Defendant knowingly participated in this conspiracy with the intent to commit the offense or the fraud which was the object of the conspiracy * * *.” Tr. 12364 (emphasis added). This is a correct statement, for the specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy. 223 But the judge went on to give a *336 more comprehensive instruction on the meaning of “specific intent”:

The Government must also prove, as part of the second element of the crime of conspiracy, that each Defendant who allegedly participated in the conspiracy charged did so with criminal intents

“Intent” means that a person had the purpose to do a thing; it means that he made an act of the will to do the thing; it means that the thing was done consciously and voluntarily and not inadvertently or accidentally.

Now, some criminal offenses require only a general intent. Where this is so and it is shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act. Other offenses, such as this one [conspiracy], require a specific intent. Specific intent requires more than a mere general intent to engage in certain conduct or to do certain acts. A person who knowingly does an act which the law forbids intending with bad purpose either to disobey or disregard the law, may be found to act with specific intent.

Tr. 12367-12368 (emphasis added). The court’s charge on this point was nearly a verbatim statement of the applicable D. C. Standard Jury Instruction, 224 which we specifically approved in United States v. Moore, 140 U.S.App.D.C. 309, 311 , 435 F.2d 113, 115 (1970), cert. denied, 402 U.S. 906 , 91 S.Ct. 1376 , 28 L.Ed.2d 647 (1971). The District Court went on to emphasize that since the defendants “claim[ed] they lacked the specific intent to join the alleged conspiracy,” the jury had to be “satisfied beyond a reasonable doubt that a Defendant possessed the specific intent to join the conspiracy” in order to find that defendant guilty of Count 1. Tr. 12370.

The jury instructions thus clearly spelled out for the jury that specific intent was an essential element of the crime of conspiracy charged under Count 1. Haldeman, however, argues that because the definition of specific intent does not appear in the same place as the recital of the elements of the crime of conspiracy, the jury could have been confused into believing that only general intent was required to *337 convict on that charge. We cannot accept that contention, for the instructions are to be examined as a whole on appeal. 225 It could be most disruptive and confusing if the judge were required to interrupt his identification of the elements of an offense with definitions of the terms involved. Doubtlessly, some might be able to improve the organization of the charge but we find no error in this portion of it. Here, the judge indicated the type of intent required for conspiracy every time the subject came up 226 ; the fact that he occasionally failed to use the word “specific” 227 and only once defined “specific intent” in great detail is not ground for reversal.

Similarly, the instruction on Count 2, the obstruction of justice count, was clear as to the need for specific intent. The judge told the jury:

I have already instructed you on what we mean when we use the words, “specific intent,” “knowingly,” and “wilfully.” These words center on the purpose an individual has when he does something, that is, his intent, his will. Specific intent is an important element of the crime charged in Count Two. To convict any Defendant charged in Count Two, you must find, in addition to the other elements, that he had the specific intent to obstruct, impair, or impede the due administration of justice and that his endeavor was not accidental or inadvertent.

Tr. 12381 (emphasis added). The argument, raised by Haldeman, 228 that there was something prejudicial in the court’s failure to use the words “necessary” or “required,” or in failing to include the phrase “with bad purpose either to disobey or disregard the law” when referring to specific intent, is insubstantial in light of the above-quoted language. Specific intent is plainly identified not only as an “element” of the offense (and therefore “necessary”) but also as an “important element.” And since the requisites of a finding of specific intent (including the necessity of an evil purpose) had been explained earlier and were cross-refer *338 enced here, the failure to define the term in detail again does not constitute error. Once a proper instruction is given, it need not be fully repeated on every subsequent occasion when it is referred to in listing the requirements for conviction. 229 This point also disposes of the contentions that the District Court acted improperly in making only “shorthand” references 230 to “specific intent,” without defining the term, when instructing on the perjury and false declarations counts. Haldeman br. at 126.

The second group of arguments made against the court’s specific intent instruction is that it failed to dist

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