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Context of 'September 4, 1974: Nixon Lawyer Proposes Shared Ownership of Watergate Files, Tapes'

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Eugenio Martinez.Eugenio Martinez. [Source: public domain]President Nixon’s “Plumbers” unit, tasked to plug media leaks from administration officials and outsiders to the media, burglarizes the Los Angeles office of psychiatrist Lewis Fielding to find damaging information on Daniel Ellsberg, the former defense analyst and patient of Fielding who leaked the “Pentagon Papers” to the media. [Gerald R. Ford Library and Museum, 7/3/2007] Ellsberg is a former Marine captain in Vietnam and protege of Henry Kissinger who had a change of heart over the war; he then leaked a secret set of Pentagon documents to the New York Times detailing how the Kennedy and Johnson administrations had secretly escalated the war in Vietnam (see June 13, 1971).
Watergate Connection - One of the burglars is Eugenio Martinez, who later is arrested as one of the five Watergate burglars (see 2:30 a.m.June 17, 1972). Martinez and two others—Felipe de Diego and the mission leader, E. Howard Hunt, who will supervise the Watergate burglary—are all old “CIA hands” heavily involved in anti-Castro activities. Martinez is still active in the CIA, as is Hunt, whom he often refers to by his old CIA code name of “Eduardo.” Another Watergate burglar, CIA agent Bernard Barker, is also involved in the Ellsberg burglary.
Martinez: Burglary a Near-Disaster - Hunt tells Martinez and Diego that they are to burglarize the offices of a “traitor” who is spying for the Soviet Union, and that the mission was ordered by the White House, where Hunt is now an aide. Barker tells the Cubans, “We have to find some papers of a great traitor to the United States, who is a son of a b_tch .” The men will become a unit outside the normal law enforcement and intelligence channels, operating within but not part of the CIA, FBI, and “all the agencies,” Martinez will later recall. They buy photographic equipment at Sears, and Hunt and Diego use disguises—wigs, fake glasses, false identification, and voice-altering devices. “Barker recognized the name on Hunt’s false identification—Edward J. Hamilton—as the same cover name Eduardo had used during the Bay of Pigs,” Martinez will recall. The planning, Martinez will recall, is far looser and less meticulous than “anything I was used to in the [CIA].” A disguised Hunt and Diego, masquerading as delivery men, deliver the photographic equipment to the office; later that night, they and Martinez break in and rifle the office. Martinez will write that Hunt and de Diego looked “kind of queerish” in their disguises, with their “Peter Lorre-type glasses, and the funny Dita Beard wigs” (see February 22, 1972). Before the break-in, Barker, who does not enter, whispers to Martinez, “Hey, remember this name—Ellsberg.” Martinez does not recognize the name. [Harper's, 10/1974; Reeves, 2001, pp. 369]
Comedy of Errors - The burglars wait for hours until the cleaning lady leaves for the night, and find the door to the building locked. At that point, a fifth man, “George,” whom Martinez learns is G. Gordon Liddy, another of the Watergate burglars also involved in the Ellsberg planning, appears and tells them to break in through a window. [Harper's, 10/1974] Three burglars—Bernard Barker, Felipe de Diego, and Eugenio Martinez—perform the actual break-in, while Hunt and Liddy act as lookouts. [Reeves, 2001, pp. 369] The burglary is quickly turning into a comedy of errors, Martinez will recall. “This was nothing new. It’s what the Company did in the Bay of Pigs when they gave us old ships, old planes, old weapons. They explained that if you were caught in one of those operations with commercial weapons that you could buy anywhere, you could be said to be on your own. They teach you that they are going to disavow you. The Company teaches you to accept those things as the efficient way to work. And we were grateful. Otherwise we wouldn’t have had any help at all. In this operation it seemed obvious—they didn’t want it to be traced back to the White House. Eduardo told us that if we were caught, we should say we were addicts looking for drugs.” Martinez finds nothing concerning Ellsberg in the office except for Fielding’s telephone book, which Martinez photographs. Before leaving, Martinez spills some pills from Fielding’s briefcase—“vitamin C, I think”—over the floor to make it seem as if the burglars had broken in looking for drugs. As they leave the office, Martinez spots a police car trailing them, but they are not stopped. “I thought to myself that the police car was protecting us. That is the feeling you have when you are doing operations for the government. You think that every step has been taken to protect you.”
Failure; Training for Bigger Mission? - Martinez feels that the burglary is a failure, but Hunt insists that they celebrate anyway. Martinez tells Diego that the break-in must either be a training exercise for a more important mission to come, or it was a cover operation for something else. “I thought to myself that maybe these people already had the papers of Ellsberg. Maybe Dr. Fielding had given them out and for ethical reasons he needed to be covered. It seemed that these people already had what we were looking for because no one invites you to have champagne and is happy when you fail,” he will write. Martinez’s CIA supervisor is strangely uninterested in the incident. “I was certain then that the Company knew about his activities,” Martinez will write. “But once again my CO did not pursue the subject.” [Harper's, 10/1974] Hunt telephones Plumbers supervisor Egil Krogh at 4 a.m. to report that the burglary was a success but they found no files on Ellsberg. [Reeves, 2001, pp. 369]

Entity Tags: ’Plumbers’, Dita Beard, Central Intelligence Agency, E. Howard Hunt, Daniel Ellsberg, Richard M. Nixon, Egil Krogh, Henry A. Kissinger, Eugenio Martinez, Lewis Fielding, Felipe de Diego, Federal Bureau of Investigation, G. Gordon Liddy, Fidel Alejandro Castro Ruz

Timeline Tags: Nixon and Watergate

Frank Wills, the security guard who discovers the taped doors and alerts the DC police.Frank Wills, the security guard who discovers the taped doors and alerts the DC police. [Source: Bettmann / Corbis]Five burglars (see June 17, 1972) are arrested at 2:30 a.m. while breaking in to the Democratic National Committee (DNC) Headquarters offices in Washington’s Watergate hotel and office complex; the DNC occupies the entire sixth floor. [Washington Post, 6/18/1972; Gerald R. Ford Library and Museum, 7/3/2007]
Discovery - They are surprised at gunpoint by three plainclothes officers of the DC Metropolitan Police. Two ceiling panels have been removed from the secretary’s office, which is adjacent to that of DNC chairman Lawrence O’Brien. It is possible to place a surveillance device above those panels that could monitor O’Brien’s office. The five suspects, all wearing surgical gloves, have among them two sophisticated voice-activated surveillance devices that can monitor conversations and telephone calls alike; lock-picks, door jimmies, and an assortment of burglary tools; and $2,300 in cash, most of it in $100 bills in sequence. They also have a walkie-talkie, a shortwave receiver tuned to the police band, 40 rolls of unexposed film, two 35mm cameras, and three pen-sized tear gas guns. Near to where the men are captured is a file cabinet with two open drawers; a DNC source speculates that the men might have been preparing to photograph the contents of the file drawers.
Guard Noticed Taped Door - The arrests take place after a Watergate security guard, Frank Wills, notices a door connecting a stairwell with the hotel’s basement garage has been taped so it will not lock; the guard removes the tape, but when he checks ten minutes later and finds the lock taped once again, the guard calls the police. The police find that all of the stairwell doors leading from the basement to the sixth floor have been similarly taped to prevent them from locking. The door leading from the stairwell to the DNC offices had been jimmied. During a search of the offices, one of the burglars leaps from behind a desk and surrenders. [Washington Post, 6/18/1972] The FBI agents responding to the burglary are initially told that the burglars may have been attempting to plant a bomb in the offices. The “bomb” turns out to be surveillance equipment. [O.T. Jacobson, 7/5/1974 pdf file]
Last Mission for Martinez - One of the burglars, Cuban emigre and CIA agent Eugenio Martinez, will recall the burglary. They have already successfully burglarized a psychiatrist’s office in search of incriminating material on Pentagon Papers leaker Daniel Ellsberg (see September 9, 1971), and successfully bugged the DNC offices less than a month previously (see May 27-28, 1972), but Martinez is increasingly ill at ease over the poor planning and amateurish behavior of his colleagues (see Mid-June 1972). This will be his last operation, he has decided. Team leader E. Howard Hunt, whom Martinez calls by his old code name “Eduardo,” is obviously intrigued by the material secured from the previous burglary, and wants to go through the offices a second time to find more. Martinez is dismayed to find that Hunt has two operations planned for the evening, one for the DNC and one for the campaign offices of Democratic candidate George McGovern. Former CIA agent and current Nixon campaign security official James McCord (see June 19, 1972), the electronics expert of the team, is equally uncomfortable with the rushed, almost impromptu plan. Hunt takes all of the burglars’ identification and puts it in a briefcase. He gives another burglar, Frank Sturgis, his phony “Edward J. Hamilton” ID from his CIA days, and gives each burglar $200 in cash to bribe their way out of trouble. Interestingly, Hunt tells the burglars to keep the keys to their hotel rooms. Martinez later writes: “I don’t know why. Even today, I don’t know. Remember, I was told in advance not to ask about those things.”
Taping the Doors - McCord goes into the Watergage office complex, signs in, and begins taping the doors to the stairwells from the eighth floor all the way to the garage. After waiting for everyone to leave the offices, the team prepares to enter. Gonzalez and Sturgis note that the tape to the basement garage has been removed. Martinez believes the operation will be aborted, but McCord disagrees; he convinces Hunt and the other team leader, White House aide G. Gordon Liddy, to continue. It is McCord’s responsibility to remove the tape once the burglars are inside, but he fails to do so. The team is well into the DNC offices when the police burst in. “There was no way out,” Martinez will recall. “We were caught.” Barker is able to surreptitiously advise Hunt, who is still in the hotel, that they have been discovered. Martinez will later wonder if the entire second burglary might have been “a set-up or something like that because it was so easy the first time. We all had that feeling.” The police quickly find the burglars’ hotel keys and then the briefcase containing their identification. As they are being arrested, McCord, who rarely speaks and then not above a whisper, takes charge of the situation. He orders everyone to keep their mouths shut. “Don’t give your names,” he warns. “Nothing. I know people. Don’t worry, someone will come and everything will be all right. This thing will be solved.” [Harper's, 10/1974; Spartacus Schoolnet, 8/7/2007]
'Third-Rate Burglary' - White House press secretary Ron Ziegler will respond to allegations that the White House and the Nixon presidential campaign might have been involved in the Watergate burglary by calling it a “third-rate burglary attempt,” and warning that “certain elements may try to stretch this beyond what it is.” [Washington Post, 5/1/1973] The Washington Post chooses, for the moment, to cover it as a local burglary and nothing more; managing editor Howard Simons says that it could be nothing more than a crime committed by “crazy Cubans.” [Bernstein and Woodward, 1974, pp. 19]
CIA Operation? - In the weeks and months to come, speculation will arise as to the role of the CIA in the burglary. The Nixon White House will attempt to pin the blame for the Watergate conspiracy on the CIA, an attempt forestalled by McCord (see March 19-23, 1973). In a 1974 book on his involvement in the conspiracy, McCord will write: “The Watergate operation was not a CIA operation. The Cubans may have been misled by others into believing that it was a CIA operation. I know for a fact that it was not.” Another author, Carl Oglesby, will claim otherwise, saying that the burglary is a CIA plot against Nixon. Former CIA officer Miles Copeland will claim that McCord led the burglars into a trap. Journalist Andrew St. George will claim that CIA Director Richard Helms knew of the break-in before it occurred, a viewpoint supported by Martha Mitchell, the wife of Nixon campaign director John Mitchell, who will tell St. George that McCord is a “double agent” whose deliberate blunders led to the arrest of the burglars. No solid evidence of CIA involvement in the Watergate conspiracy has so far been revealed. [Spartacus Schoolnet, 8/2007]

Entity Tags: Nixon administration, Howard Simons, Lawrence O’Brien, James McCord, Martha Mitchell, Richard M. Nixon, Richard Helms, Washington Post, Ron Ziegler, George S. McGovern, Miles Copeland, G. Gordon Liddy, John Mitchell, Frank Sturgis, Carl Oglesby, Bob Woodward, Andrew St. George, Central Intelligence Agency, Carl Bernstein, Democratic National Committee, Daniel Ellsberg, E. Howard Hunt, Eugenio Martinez, Frank Wills

Timeline Tags: Nixon and Watergate, Elections Before 2000

Betty Ford.Betty Ford. [Source: Wally McNamee / Corbis]Despite President Ford’s insistence that he is not considering a pardon for former President Richard Nixon (see September 5-6, 1974), and Ford’s own denials in his 1976 memoir A Time to Heal, Ford tells his lawyer, Robert Hartmann, that he and his wife Betty have decided that if Nixon resigns, Ford will likely pardon him for any Watergate crimes. “We felt we were ready,” Ford tells Hartmann. “This just has to stop; it’s tearing the country to pieces. I decided to go ahead and get it over with, so I called [Nixon’s chief of staff] Al Haig and told them they should do whatever they decided to do; it was all right with me” (see August 1-2, 1974). This is not the last time stories will conflict over Ford’s decision on whether to pardon Nixon (see August 30, 1974 and September 5-6, 1974). [Werth, 2006, pp. 204]

Entity Tags: Richard M. Nixon, Robert Hartmann, Alexander M. Haig, Jr., Betty Ford, Gerald Rudolph Ford, Jr

Timeline Tags: Nixon and Watergate

President Ford tells chief of staff Alexander Haig and a small assemblage of his closest legal advisers that he is “very much inclined to grant [Richard] Nixon immunity from further prosecution.” He tells White House counsel Phil Buchen to begin researching how he can do it, but to “be discreet. I want no leaks.” Buchen will later recall that Ford has made up his mind, but wants to be exactly sure of the legal procedures and ramifications of a presidential pardon for Nixon. Buchen suggests a trade: Nixon receives the pardon, and in return, he grants full custody of his presidential documents and files to the federal government. Buchen is struggling with a subpoena of his own that requires him to turn over a selection of Nixon’s Oval Office tape recordings to an attorney for a former Democratic Party official whose phone was bugged during the Watergate break-in (see 2:30 a.m.June 17, 1972). [Werth, 2006, pp. 243] The assistant attorney general for the Justice Department’s Office of Legal Counsel, Antonin Scalia [US Supreme Court, 2008 pdf file] , has written that Buchen has no authority to turn over the tapes because they belong to Nixon and not the government. Scalia’s opinion has not yet been released, but Buchen fears it will weaken the argument for retaining custody of the tapes and documents. Buchen wants the issue settled before it can explode into a huge, embarrassingly public legal debacle. In addition, Buchen wants a “statement of contrition” from Nixon in return for the pardon. Ford tells Buchen to work on both, but “for God’s sake don’t let either one stand in the way of my granting the pardon.” Buchen and other advisers, particularly another Ford lawyer, Robert Hartmann, argue against issuing a pardon at the particular moment; when Buchen finally says, “I can’t argue with what you feel is right, but is this the right time?” Ford replies, “Will there ever be a right time?” [Werth, 2006, pp. 243-246]

Entity Tags: Gerald Rudolph Ford, Jr, Antonin Scalia, Alexander M. Haig, Jr., Philip Buchen, Richard M. Nixon

Timeline Tags: Nixon and Watergate

Defense Secretary James Schlesinger and Attorney General William Saxbe suggest that the Nixon pardon be tied to a proposal to grant conditional amnesty to Vietnam draft evaders, many of whom are still living as “outlaws” in Canada. The proposal has encountered stiff resistance from conservatives and veterans’ groups, but a bigger question is whether an amnesty proposal would be considered some sort of underhanded “quid pro quo” for Nixon’s pardon. The idea is eventually abandoned. [Werth, 2006, pp. 251-252]

Entity Tags: William Saxbe, James R. Schlesinger, Richard M. Nixon

Timeline Tags: Nixon and Watergate

Researching the legal and technical aspects of presidential pardons (see August 30, 1974), Benton Becker, President Ford’s lawyer, finds that they only apply to federal crimes, meaning, for example, that Richard Nixon can still be prosecuted for crimes in California arising from his connections to the Ellsberg burglary (see September 9, 1971). It would not affect a Senate impeachment trial, even though the possibility of that happening is increasingly remote. Becker finds two legal references of particular use in his research: the 1915 Supreme Court case of United States v. Burdick, which attempted to answer the fundamental question of the meaning of a presidential pardon; and an 1833 quote from the first Chief Justice of the Supreme Court, John Marshall, who wrote, “A pardon is an act of grace… which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” Becker determines that such an “act of grace” is an implicit admission of guilt. Unlike the proposed conditional amnesty for draft evaders (see August 31, 1974), a pardon will strike convictions from the books and exempt those pardoned from any responsibility for answering for their crimes, but it does not forget (in a legal sense) that those crimes took place. “The pardon is an act of forgiveness,” Becker explains. “We are forgiving you—the president, the executive, the king—is forgiving you for what you’ve done, your illegal act that you’ve either been convicted of, or that you’ve been accused of, or that you’re being investigated for, or that you’re on trial for. And you don’t have to accept this—you can refuse this.” The Burdick decision convinces Becker that by pardoning Nixon, Ford can stop his imminent prosecution, and undoubted conviction, without having to condone Nixon’s crimes. For Nixon to accept a pardon would be, in a legal sense, an admission of criminal wrongdoing. [Werth, 2006, pp. 263-265]

Entity Tags: US Supreme Court, Gerald Rudolph Ford, Jr, Richard M. Nixon, John Marshall, Benton Becker

Timeline Tags: Nixon and Watergate

Richard Nixon’s lawyer, Jack Miller, has prepared a “deed of trust” for Nixon’s presidential documents and tapes. According to the proposal, Nixon and the government will share ownership, and the files will be available for court subpoenas for up to five years. Two keys will be necessary to access the material, with Nixon retaining one and the General Services Administration (GSA) retaining the second. Miller is not sure Nixon will accept the plan, but he presents it to President Ford’s lawyers Benton Becker and Philip Buchen. (Nixon has another reason for wanting to retain control of the documents; his agent, Irv “Swifty” Lazar, is peddling a proposal for his biography to publishers, with an asking price of over $2 million. The documents will be a necessary source for the biography.) Buchen tells Miller that Ford is considering pardoning Nixon (see August 30, 1974). Miller is not sure Nixon wants a pardon, with its implication of guilt (see September 2, 1974). Miller has had trouble discussing Watergate with Nixon, who does not want to discuss it and certainly does not want to admit any guilt or complicity in the conspiracy. Becker says that the entire issue of Nixon’s pardon, and the concurrent question of the Nixon files, has to be resolved quickly. [Werth, 2006, pp. 280-281]

Entity Tags: Richard M. Nixon, Benton Becker, Irv ‘Swifty’ Lazar, General Services Administration, Philip Buchen, Herbert (“Jack”) Miller

Timeline Tags: Nixon and Watergate

President Ford and his lawyer, Benton Becker, discuss pardoning Nixon.President Ford and his lawyer, Benton Becker, discuss pardoning Nixon. [Source: David Hume Kennerly / Getty Images]President Ford authorizes his attorney, Benton Becker, to tell Richard Nixon, “It’s not final, but in all probability a pardon will be forthcoming.” Ford agrees not to seek a decision on Nixon’s presidential files (see September 4, 1974) as a condition for a pardon; however, a statement of contrition (if not an outright admission of guilt) is something Ford and his advisers want from Nixon in return for a pardon. As Becker prepares to leave for California to meet with Nixon and his lawyer, Ford tells Becker to carefully judge Nixon’s physical and mental health. As for the records, Becker will later recall: “We walked out of the office; [Ford] had his hand over my shoulder, he said, ‘I will never, ever give up those records. They belong to the American people. You let President Nixon know that I feel very strongly about this.’” [Werth, 2006, pp. 293] When Becker arrives in San Clemente, he meets with Ron Ziegler, Nixon’s former press secretary, who now serves as Nixon’s personal aide. Ziegler tells Becker, “I can tell you right now that President Nixon will make no statement of admission or complicity in return for a pardon from Jerry Ford.” Becker believes Ziegler was forewarned by Ford’s ad hoc chief of staff, Alexander Haig, who has maintained close contact with the Nixon staff since Nixon’s resignation. Ziegler apparently knows that Ford will not insist on either a document turnover or a statement of contrition in return for a pardon, and is toeing a hard line. Angered by what he considers Haig’s intolerable betrayal of Ford, Becker bluffs Ziegler, turning around and preparing to leave without further discussion. The bluff works; Ziegler and Becker discuss the problem until early in the morning hours. [Werth, 2006, pp. 294-295] By the next morning, Becker has overseen a tentative agreement with Nixon’s lawyer Jack Miller and General Services Administration (GSA) head Arthur Sampson. The agreement will “temporarily” store the documents in a facility near San Clemente, under restricted access requiring both Nixon and a GSA official to access the documents, and Nixon retaining control of who accesses the materials. On September 1, 1979, the agreement reads, Nixon will donate the materials entirely to the federal government. As for the tapes, Nixon retains the right to destroy the tapes after five years, which will be destroyed anyway on September 1, 1989, or on the occasion of Nixon’s death, “whichever event shall first occur.” [Werth, 2006, pp. 297-298]

Entity Tags: Ron Ziegler, Arthur Sampson, General Services Administration, Benton Becker, Gerald Rudolph Ford, Jr, Herbert (“Jack”) Miller, Alexander M. Haig, Jr., Richard M. Nixon

Timeline Tags: Nixon and Watergate

During the careful negotiations over the conditions of Richard Nixon’s possible pardon (see September 5-6, 1974), Nixon aide Ron Ziegler brings up the issue of the “statement of contrition,” and shows Benton Becker, the lawyer negotiating for President Ford, a draft statement. The statement, crafted by a speechwriter, blames the pressures of the office, Nixon’s preoccupation with foreign crises, and his decision to rely on the judgment of his staff, for his alleged involvement. The statement makes no admission of guilt or acceptance of responsibility whatsoever. Such a statement would invite state prosecution of Nixon even if Ford grants him a pardon for federal crimes, Becker notes. Nixon would be better off saying nothing at all than making this statement. A revised statement merely admits that Nixon was guilty of poor judgment. Becker presses for more. A third revision has Nixon admitting that he “can see clearly now that I was wrong in not acting more decisively and more forthrightly in dealing with Watergate, particularly when it reached the stage of judicial proceedings and grew from a political scandal into a national tragedy.” Becker seizes on the word “forthrightly” as an implied admission of contrition and a subtle acceptance of guilt. “The word is a synonym for ‘honestly,’” he will later recall. “That had meaning for me as a former prosecutor, because that meant obstruction of justice.” Ford, contacted by phone about the statement, is not happy with the legal parsing that Becker is trying to stretch into an implied admission of responsibility. Ford will later write, “I was taking one hell of a risk [in pardoning Nixon] and [Nixon] didn’t seem to be responsive at all.” [Werth, 2006, pp. 299-301] Becker finally meets face-to-face with Nixon, who seems to Becker unhealthily aged and almost “freakishly grotesque,” with long, thin arms dangling from the sleeves of his suit. Nixon doesn’t want to discuss Watergate at all, attempting repeatedly to steer the discussion towards football and responding in monosyllables to Becker’s attempts to discuss the details of the forthcoming pardon. After Becker manages to get a grudging, distracted acquiescence from Nixon to the deal, Nixon suddenly turns maudlin. He says Becker has been “a gentleman” towards him, and wants to give him a present. “But look around the office,” he says. “I don’t have anything anymore. They took it all away from me. Everything I had is gone.” Nixon gives Becker the last two bits of presidential memorabilia he owns, taken, he says, “from my personal jewelry box.” They are a presidential tiepin and a pair of presidential seal cufflinks. Nixon is almost in tears, and a distinctly uncomfortable Becker withdraws as graciously as he may. “I just wanted to get the hell out of there,” Becker will later recall. [Werth, 2006, pp. 304-306]

Entity Tags: Ron Ziegler, Benton Becker, Gerald Rudolph Ford, Jr, Richard M. Nixon

Timeline Tags: Nixon and Watergate

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