by Bryce Zabel
Tale of the Tapes
The White House was served with a subpoena requesting all recordings and responded that the request was too broad. The committee narrowed the request to a list of forty-five days’ worth of tapes and was told by the White House that it would not comply, based on the concept of executive privilege.
The battle was on. Chairman McCulloch met the press on the Capitol steps to complain, “If the President did not want Congress to hear what is on these recordings, he should not have made them in the first place. They are evidence, and we are prepared to fight for them.”
The Supreme Court agreed to hear the case immediately, because of its importance to the nation. Once again, Chief Justice Earl Warren was in the middle of the President’s affairs. Once again, he refused to recuse himself.
For three days running, lawyers for the executive and legislative branches of the government made their arguments. The White House certainly had possession of the tapes, that much was clear, but having created them, the question could now legitimately be raised in a democracy as to who really owned them? Particularly when they were considered crucial in a showdown between the two branches. The justices were heavily involved, asking dozens of sharp questions.
In the end, the Court ruled 6-3 that the tapes must be turned over. Warren wrote the majority opinion:
Presidential power is not absolute, but proportionate, and must exist within the framework of three-branch government. Checks and balances are real, and the executive branch may not deny the legislative branch evidence without sharing direct cause. The simple claim of privilege is not sufficient.
On the afternoon of November 5, 1965, White House lawyer Clark Clifford informed Chairman McCulloch and General Counsel Foley that he had conducted his own review and found that the White House could not comply with the Supreme Court request. It was not because he did not recognize the ultimate authority of the Court or the committee, he said, but because the tapes apparently no longer existed.
While this conversation was taking place, New York was plunged into darkness, the result of a faulty power grid that threatened the entire East coast. Staff Director Bess E. Dick interrupted the meeting shortly after 5:30 p.m. with the news. It was best for everyone to head home to their families while they still could; the legal wrangling would have to wait until later. It's unlikely that anyone in the room missed the obvious metaphor: This crisis, too, was about to bring the entire system down, if the players were not careful.
As it turned out, power was restored by 7 a.m. the next day across most of the affected areas, and in Washington, D.C., the lights remained on throughout. By 9:30 a.m., Kennedy aide Dave Powers had received a second subpoena, asking him to return to the committee the very next morning. Powers had already testified on charges that he had procured prostitutes for President Kennedy and had used his authority to prevent the Secret Service from doing its due diligence in vetting their identities and examining purses for drugs or weapons.
During that testimony, Powers had exercised his Fifth Amendment right to remain silent to all questions that were asked of him. Earlier, Powers had made news by first refusing to testify at all, but he had changed his mind on the advice of Attorney General Robert Kennedy.
Now the attorney general had to discuss the situation with the President. “Where are these damned tapes, Bobby?” Kennedy had asked. He was informed that Powers had destroyed them. All of them. RFK had retrieved them all from their storage, sent them to Powers’ office, and asked him to begin reviewing them from the moment the committee had asked for them.
Reconstructing the scene in his 1974 book, Flashpoints, Robert Kennedy recalls his brother delivering the following words cautiously:
“Dave would never destroy those tapes on his own. We both know that.”
The attorney general chose his own words carefully. “I have just spoken to Dave, and it is his testimony that he took this action on his own volition in an obviously misguided attempt to protect the office of the presidency.”
“They’ll hold him in contempt. He’ll go to prison,” the President said. Jack Kennedy and Dave Powers had been friends going back to the first campaign for Congress in 1946.
“He knows,” Bobby said. “Under no circumstances should you contact him. My advice is that you must fire him immediately before he testifies tomorrow.”
Dave Powers was fired by the White House that afternoon. The next morning he went to Capitol Hill and appeared again before the House Committee on the Judiciary. Rather than take the Fifth Amendment again, he read the following statement:
On October 13, 1965, I removed all of the boxes containing the audio tapes recorded in the White House during the presidency of John Kennedy. I did so with authorization papers on which I forged all necessary signatures. I took this action completely on my own. No one told me to do this, and I specifically state that this action was not taken at the directive of President Kennedy, Attorney General Robert Kennedy, Kenneth O’Donnell, Clark Clifford, nor any other member of the White House staff. I drove these tapes myself to a location in Virginia and supervised their destruction by burning. While this may not be the wish of the committee nor President Kennedy, I have taken this action on my own and am solely responsible.
The Judiciary Committee responded with fury. All of their questions were met by Powers once again invoking the Fifth Amendment. Powers was held immediately in contempt. He was later indicted for lying to Congress and convicted. Powers was sentenced to seven years in prison and fined $100,000.
This case has been hotly debated ever since. Many believe, as President Kennedy apparently did, that Powers would not have acted on his own. Yet he never spoke again on the subject, and his statement to the committee stands as his only comment. Many committee members felt that his actions seemed like prima facie evidence of criminality. West Virginia’s Arch Moore Jr. was most outspoken: “The only reason one man agrees to go to jail is to keep another man from going.”
The closest anyone ever came to a link to the White House was the admission by Kenny O’Donnell, who recalled that he had angrily said, “Somebody ought to burn those fucking tapes!” when the issue was first introduced. O’Donnell insisted, however, that he was not proposing a serious action but simply expressing his frustration at the process and how the tapes had become such a focus of the committee.
Yet the committee was instructed by its counsel that it could draw no conclusions about President Kennedy or the facts based on Powers’ action. It did, however, have an extremely negative impact on the mood of everyone serving.
President Kennedy addressed the issue. “I have never advocated the destruction of evidence on any matter that has come before me in this White House. Mr. Powers, who has been a longtime friend, says he committed this act on his own. I know him to be a truthful man, and I have to take him at his word.”
The Case for Impeachment
It has become an axiom of political scandal that the cover-up is more damning than the crime. But in the articles of impeachment drafted to strip John Kennedy of his office, alleged crime and cover-up were both amply cited. Certainly the House Committee on the Judiciary wrote up a varied menu of high crimes and misdemeanors for the Senate to choose from when deciding whether to truncate Kennedy’s term.
The first draft of these articles became known as the “kitchen sink” impeachment by Democrats, who wanted to characterize the litany as a Republican fishing expedition. But no one doubted their chilling, dark power when rendered in the formal language of impeachment. They began directly:
These articles of impeachment are exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against John Fitzgerald Kennedy, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors. Resolved, that John Fitzgerald Kennedy, President of the United States, is impeached for high crimes and misdemeanors, and that the fo
llowing articles of impeachment be exhibited to the United States Senate.
The charges were broken into three categories: abuse of power, obstruction of justice, and contempt of Congress. The high crimes and misdemeanors, screamed the New York Post headlines, were “Sex, Drugs, Murder!”
There it was. The stakes were instantly back at Dallas levels of hysteria. The average person knew that John Kennedy screwed up, but a lot of people clung to liking him anyway. Their opinion wasn’t the issue now. Congress would take over, and many of its representatives believed that the President was guilty of something that was probably impeachable if they were in the mood to see it that way.
In retrospect, the articles as drafted were overkill, sloppily constructed, overlapping and unequal in importance. Yet, underneath the verbiage lay a chilling reality for the White House. Based on the Constitution itself, if only a single article made it out of the Judiciary Committee and was approved by the entire House of Representatives and then agreed to by the Senate, President Kennedy would be out of a job.
Article One: Abuse of Power
This came to be known in common terminology as “the sex article.” What the charges covered, however, were the improper relationships that jeopardized the security of the United States or even the life of the President through reckless behavior.
The abuse of power charges were, by far, the ones with the greatest traction among the public. They specifically included misuse of the FBI, something that was ironic at best, given the fact that the impeachment itself had been caused by the illegal leaking of FBI files against the President and, in some cases, the illegal wiretapping of citizens by the FBI. Still, on at least one instance, the bugging of Dr. Martin Luther King Jr., the President had authorized the wiretapping. He had done it to stop Hoover from leaking the very same files he had eventually leaked to damage Kennedy, but that was hardly an excuse. His only alibi, such as it was, was that he had given his approval through the attorney general, acting on his behalf, and no record existed of their conversation. The President of the United States had plausible deniability.
Kennedy was also accused of the misuse of the Secret Service, another irony given the organization’s poor job performance in Dallas in November 1963. The charges, however, predated that event for the most part, referring to the fact that Kennedy had forced the agents entrusted with his safety to look the other way when women were brought to the White House. Beyond even that, when prostitutes were brought in, it was argued that the agents were being asked to ignore personal knowledge of a crime being committed.
In the months since Dallas, Secret Service agent Abraham Bolden had become close to JFK, spending double-shifts more often than not. When asked about the other agents, Bolden replied, “There were agents that day in Dallas, who would not trade their lives for you, sir. I’m damn sorry to say that.” Kennedy replied that Bolden couldn’t be as sorry saying it as he was to be hearing it.
Beneath his usual wry veneer, the President was alarmed to hear his suspicions confirmed about some of the agents charged with protecting his life. What Bolden was suggesting went beyond simple dereliction of duty; it bordered on treason. Kennedy cared too much for Bolden personally to put him on the spot by asking him to name names, but he must have been visibly shaken. The following evening, he was surprised when the agent approached him at the entrance to the Oval Office, offering a folded slip of paper with three names handwritten inside. “If you need me to make some kind of a formal statement,” Bolden told him, “I’d be willing to do so, sir.”
Kennedy looked over the list, then regarded his friend warmly. “I don't think that will be necessary, Agent Bolden. Thank you for this.”
In the coming weeks, one of the agents on Bolden’s list was transferred to Gettysburg, Pennsylvania, where he was assigned to protect former First Lady Mamie Eisenhower at the farm where she lived with her husband. Two others were sent out of the country to work indefinitely on a currency investigation in the Philippines.
At the same time, the President could only sit back and watch as a divided House committee pondered its response to the charges against him. Two specific relationships formed the core of the issue of whether the President’s behavior put himself and, by extension, the nation at risk: Ellen Rometsch and Judith Campbell. One was an alleged East German spy, and the other was an alleged Mafia girlfriend. Kennedy’s best defense on these issues was the obvious one that guilt by association was not part of our judicial system. He could simply deny knowledge of their connections.
Any one of those cases, if deemed substantive by the committee, would have been sufficient to send an abuse of power article to the floor of the House. There were also two more articles to be considered.
Article Two: Obstruction of Justice
This became known as “the drugs article” because it dealt with undisclosed presidential medical conditions and treatments that could have affected the safety and security of the United States during times of crisis.
There were other counts on other matters, but this was the angle that held steady traction from the beginning. The President of the United States had serious ailments and was often taking powerful medications with serious side effects. Kennedy had taken an oath to perform the office of the presidency, “to the best of my ability.” Did that mean he should take any drug to boost his performance on the job no matter what the risk or side effect, or did it mean that he needed to be straight about his health issues and seek appropriate measures to avoid risking mood alteration and possible drug addiction?
The House of Representatives needed to decide if Kennedy’s medical treatment was a legitimate concern of the people and providing accurate details about the condition of his health was part of his oath. If it was, then the numerous times that the President had lied, covered-up, misled and hidden the truth, were attempts to stop the administration of justice and, thus, obstruction.
Both Dr. Travell and Dr. Jacobson had been compelled to testify about the drug cocktails they had personally administered to the President and First Lady. Both had also gone out of their way to prevent these ministrations from becoming part of the public record. Other medical experts had been brought in to testify about how such drug mixtures could have affected the President’s performance at crucial times. There was actual talk of calling Elvis Presley as a witness because he, too, had been a patient of Dr. Jacobson’s.
Article Two seemed to be a grab-bag of sins, some more serious than others, but all difficult to prove. They involved, in several cases, trying to assess the intent of the administration, for example, when it set up the Warren Commission. Was Kennedy’s appointment of that commission an attempt to delay the truth about Dallas, which the President would rather be kept quiet until after the 1964 election? Or, for another example, was the President’s testimony — or the testimony of his staff at his direction — incorrect or incomplete by design? These were difficult questions to answer, and certainly to prove. They demanded the interpretation of both intent and action.
The voters, however, knew what it meant to lie about your health. Most of them had done it at one time or another. Would they hold the President to a higher standard? Were his lies more significant? Enough to end his career?
Article Three: Contempt of Congress
This became known as “the murder article” because it involved presidential approval and encouragement of extralegal activities of the CIA that included alleged assassinations of foreign leaders. It was a supreme irony to blame this on John Kennedy, given his own close call in 1963, but it was a measure of the extreme times Americans were living through that it seemed to be just another thing that didn’t quite fit.
Kennedy stood accused of directly or indirectly through the Central Intelligence Agency targeting foreign leaders for death or coup. These targets included Prime Minister Patrice Lumumba of the Congo in January 1961; Prime Minister Rafael Trujillo of the Dominican Republic in May of 1961; and Premier Ngo Dinh Diem of South Vietnam in November of 1963.
Those were the successful kills. There was also the matter of the Cuban leader Fidel Castro, a man both the CIA and the administration seem to have been bent on killing for years, though without success.
Incredibly, the CIA that had carried out these missions and pushed for them so strongly was now in a position to use them to hang Kennedy. Several key witnesses managed to make it sound like it was all the President’s idea. The bottom line still remained that Truman was right — the buck stopped on the President’s desk — and if Kennedy approved something, it was the same as if it were his idea.
The contempt of Congress interpretation had been agreed to because of the constitutional war powers that favor the action of the chief executive with congressional oversight and approval. By not consulting Congress before or after these actions, the thinking went, President Kennedy was preventing the Senate and the House from performing its constitutional duty and, thus, showing it contempt.
The article also contained a key count about the defiance of the committee’s subpoena by Dave Powers, who claimed to have destroyed certain documents and all of the Oval Office recordings by himself with no instruction from above. While hardly any member could believe this explanation as the truth, it was a far greater stretch to pin it directly on the President.
Coal for Christmas
On December 17, 1965, the Committee on the Judiciary of the House of Representatives decided all three articles of impeachment by a sharply partisan vote. The President’s defenders called the committee’s mission a “witch hunt,” while the GOP insisted that they were merely performing their constitutional duty.
