by Renata Adler
While there were strong reasons for maintaining a bipartisan staff with this apparent viewlessness, in the first serious attempt to impeach a President in more than a century, the criterion is not one for putting together a firm of lawyers. It is more suited to selecting jurors—who are meant unprofessionally to weigh, but never to investigate or to assemble a case. Lawyers are advocates. The lawyers Doar hired were bright, loyal, discreet, and highly recommended. They represented as broad a cross section of the country as the congressmen on the committee. They worked under two ironclad admonitions: to maintain absolute confidentiality and to be “fair.” At the same time, Doar had to proceed on the assumption that almost no one could be trusted. On January 2, 1974, I asked him how, in that case, he was going to keep perfect confidentiality in so large a staff of lawyers. “You work them very hard,” he said, “and you don’t tell them anything.” The brief produced by such a staff was, predictably, deficient.
So were most of the other inquiry documents. It turned out to be unimportant. What was important was that, through months of tension, crises of morale, and professional frustration, the staff did manage to work hard and to keep silent. What they were working on, or thought they were working on, is another matter. Few of them, at the time or even two years later, seemed to have more than an intimation that, while what they were doing was essential, the only thing essential about it was that they be seen to be doing something in secret, day and night, for months. “Some of it was the worst time of my life,” one of the junior lawyers said, more than a year after it was over. “What you had for the first few months, you see, was thirty lawyers, treading water.” That “treading water” was his insight. That “for the first few months” was an understatement. The fact that underlay the ordeal was that most of the work, almost all the time by almost all the staff, was a charade. A valuable charade, in that a machine was seen to churn, while no circus took place, and the courts, and a smaller group of Doar’s, and ultimately the congressmen themselves could do their work. But the machine itself, firmly required to be directionless, produced, naturally enough, no investigation and, in the end, no case. It is commonly said that “the case” is in those thirty-odd staff volumes. Only by people who have not read them; hardly anyone has read them.
Doar himself was working mainly with a smaller group of about seven people, five of whom were old friends who had worked with him before and who were not on the regular staff.’ Much of what could be salvaged from or written into the lamentable brief on grounds, for instance, was the work at the last minute of these ad hoc irregulars—as was, for good or ill, the conduct of the inquiry, from the ordering of facts and strategies, through compiling the endless Statements of Information, Summary of Information, and Final Report, to the drafting of letters to the White House, of the actual Articles of Impeachment, and even of the statements of Chairman Rodino, from the opening of the inquiry, through the hearings, to the remarks with which he responded, in his living room, to the television broadcast of Richard Nixon’s resignation speech.
There was never any doubt among Doar and this small group that, unless there was overwhelming evidence of Nixon’s innocence (and the only conceivable circumstance in which, by 1974, there could be such evidence would have been a conspiracy among his aides to frame him, in which case, under a superintendency theory, he might have been impeached for that), the object of the process was that the President must be impeached. Doar had, in fact, been the second nonradical person I knew, and the first Republican, to advocate impeachment—months before he became Special Counsel, long before the inquiry began. There had to be such complete discretion on this point, and such constant, rote repetition of the words “fair,” “fairness,” “fairly,” that there arose a temperamental hazard of inventing pieties and believing in them, against the evidence of your own purposes and your own sense—a hazard to which Nixon had obviously succumbed. Doar customarily spoke, however, in terms of “war” and “the Cause.” It had to be so. To exactly the degree that impeachment is warranted, it is no less than urgent. Given the immense, lawful and (since in an impeachment a refusal to observe the restraints of law is precisely the point at issue) unlawful powers of an American President, it would have been unthinkable for Doar to have taken the job as less than an advocate. As late as this summer, 1976, however, most members of the staff and of the Judiciary Committee were still divided in their view of when it was that Doar reached his decision—whether it was in March 1974, as a result of the grand jury presentment, or on the morning of July 19, when, in one of the many completely imaginary stories generated by the inquiry’s lore-manufacturing apparatus, Chairman Rodino was supposed to have shouted at Doar to force him to make up his mind.
All this by way of outlining the circumstances in which the inquiry was conducted. Doar, certain from the start that the President must be, under conditions of exemplary fairness, removed from office, could not, he thought, disclose that determination to the congressmen or to his staff. The situation created its own peculiar stresses. Secrecy and loyalty had been the Watergate virtues, after all. Apart from exercising these virtues, staff lawyers were occupied, for instance, in filling out, on the basis of documents already public, those endless and in terms of impeachment entirely useless “chron cards”—the minute-by-minute chronologies, which had been important in the Neshoba County Case of 1967 (in Doar’s successful prosecution, as chief of the Justice Department’s Civil Rights Division, of the murderers of Andrew Goodman, Michael Schwerner, and James Chaney), but which had no relevance at all to the case at hand. The congressmen, of necessity, became impatient. When the chron cards were replaced by flat, uninflected, numbered Statements of Fact, which Doar proposed that the staff read to the Judiciary Committee for a period of six weeks, beginning in May, the congressmen argued at length whether the statements could properly be designated fact at all—whether what was fact was not the sole prerogative of the committee members to determine. In the end what were read to them were called Statements of Information. And in the end, having understandably failed to see the point of all these statements (there was hardly any point, except to gain time and to present the committee with a tidy and impressive format), the congressmen’s conduct was exemplary—leading to a President’s departure from office, without any of the bitterly partisan recriminations which might have divided Congress and the country for many years.
A single episode, however, illustrates the virtual impossibility, at the time, of conducting almost any impeachment research project. It has to do with the 1976 report of the Church Committee. In the context of the 1974 inquiry, there arises the obvious question: If the conduct of past administrations bears, as it so evidently does, on the Nixon case, why did the inquiry not look into these matters and produce some such report? It tried. Doar, aware that such a report would be among the soundest and most obvious defenses for any President against impeachment, knew he had to commission, from outside the staff, a historical account of abuses of presidential power, in anticipation of any report the White House lawyers would produce. As it happens, the White House lawyers never undertook anything of the kind—an error, perhaps of over-confidence, so profound that it still seems hardly credible.
Doar’s own report, by scholars under the direction of the distinguished Yale historian C. Vann Woodward, was supposed, like all other inquiry work, to be kept secret. When Congressman Charles Wiggins, for example, insisted that the inquiry’s failure to make such a study was unforgivable, he was never told, nor were any other congressmen, that the project was already under way. Committee members, all of whom are lawyers, had already made it clear that they did not want any professors, Yale or other, to advise them on matters of law. In any case, whether secrecy caused the assignment to be phrased unclearly, or for whatever reason, the study was not what would have been required if the White House had produced such a study, which of course it didn’t. Professor Woodward ultimately published the work (which does not appear among the inquiry volumes) elsewhere,
in paperback.
A footnote to the story of that project concerns Minority Counsel Albert Jenner. As counsel for those Republicans who concurred in the majority vote of the committee, Jenner was a pivotal and historic figure, the pivot of the pivot, in a sense. Had he construed his job differently, had he seriously disagreed with Doar at any point, Jenner could have obstructed the process at every turn. It is by no means clear what the outcome, under those circumstances, would have been. But the fact is, he did not. Another fact is that he was absent a lot of the time, traveling and lecturing. Jenner still remarks, as he did frequently in the course of the inquiry, that Doar is an “administrator,” while he, Jenner, is a “litigator.” He says he was persuaded of the case against the President in March of 1974, with the grand jury presentment—at the same time, he adds, as Doar. Then, very amiably, he walks over to the shelves of his law office in Chicago, where his inquiry documents are kept. “This will interest you,” he says, “although we’ve kept it top secret. It’s something we relied on very heavily.” And he removes from the shelf a bound copy of Professor C. Vann Woodward’s study. The title is correct. The authorship is attributed to Vance Packard.
That’s how things were, broadly, at the inquiry. And in spite of whatever it did accomplish, what it could not accomplish, or even really attempt, was an investigation of the case. What I am concerned with here is establishing a context for a set of initial assumptions, followed by a few facts from various sources, which led me to what I thought were going to be some wild speculations—about why our side, like their side, could not be doing what it appeared to be doing; about what happened and why, although it is all over, it still seems unsettled now; about what a real investigation, if circumstances had permitted one, would have found. It was evidently not a story of the inexorable processes of simple justice; or of their forces of darkness vanquished by our forces of light. Nixon’s chosen successor has, after all, for two years held his office. He has retained the former President’s unindicted accomplices and aides, and appointed some of the closest of them to positions—the command of NATO, for example—that ought to be unthinkable for men so utterly compromised. Nixon himself carries on as though the investigation never really reached him. And no revelation about him or, these days, any other holder of a public trust has any sense of finality to it. There never seems to be a truth with which it ends. Unless Nixon did something beyond what is known about him, or his men, or any of his predecessors, his departure from office seems random, arbitrary, and even incomplete. What I was left with finally was a set of questions and, I believe, a single inescapable inference—which would account, not so much in the detail of investigative reporting as in the very logic of events, for what I think must be the last fact, the bottom line.
In the early weeks of the inquiry, at about the time the brief on grounds was in the works, Doar considered a number of loose assumptions about what kind of case it was going to be. There was, in general, a Tip of the Iceberg theory: that whatever the inquiry might ultimately reveal, it could only be the small, visible part of what was actually there; the case would have to be made from that small visible part. There was a Narrow Escape theory: that Nixon and his aides, having made what amounted to an extremely radical analysis of the system (namely, that all its processes were meaningless and all its officials essentially corrupt), had begun to supersede the legitimate forms of government in what amounted to a revolutionary coup; the case would have to protect the country from that coup. There was a Robber Baron theory: that certain forms of corruption and violations of the system, like those committed by the robber barons, while they may have been tolerated for years, grow at some historic point beyond the tolerable; the case would have to bring such abuses of the presidency to an end. There was the Pattern of Conduct theory: that, while there may be abuses of power that a President might randomly, and perhaps by mistake commit, a pattern of systematic violations would provide grounds on which he ought to be impeached. And a Higher Standard of Conduct theory: that, since the President alone is required by the Constitution to “take care that the laws be faithfully executed,” the Framers intended (as it is clear, from their letters and debates, they did intend) not to grant the President some “executive privilege” outside the law, but on the contrary, to hold him accountable, by some higher standard than any other citizen, to the law itself. There was the Superintendency theory: that the President, like any other civil or corporate officer, has a reasonable obligation to inquire and to inform himself of the acts of his subordinates, and be held accountable for them, particularly when those acts are crimes committed in his name, and solely for his benefit and on his behalf.
It is obvious that these informal assumptions combined hypotheses about the case with strategies for winning it. More directly in the line of strategy was what to look for and to try to prove. There was the Criminal Act under the Statutes theory, the one set forth in the White House brief, which everyone, from distinguished constitutional scholars to students of the problem in any depth at all, rejected. A Tax Fraud and Emoluments theory—which, for various reasons, including questions posed by the financial affairs of previous Presidents and present congressmen, was never seriously investigated by the staff. And there was a sort of nameless theory, which had to do with getting from the constitutional oath, faithfully to execute the office of President, to the unconstitutional acts, by way of the lies. There is nothing, of course, in the law or in the Constitution which requires anybody not to lie, except under oath. But the President, once he is in office, need not submit to being put under oath; he incurs no risk of perjury. He cannot anyway be indicted while in office; nor can there be an effective warrant to search his premises. The question was whether the President, notwithstanding his special constitutional oath, had a limitless power to commit unlawful acts and to conceal them, by means of a limitless right, in effect, to lie. It was some combination of the Oath-to-the-Acts theory with those in the preceding paragraph which led to the ultimate argument for impeachment, and to the form of the Articles themselves.
All these initial formulations and assumptions were, of course, addressed to the difficult question of what “other high Crimes and Misdemeanors” were. In February 1974, however, one of Doar’s small group wrote, in a very short memo, “I think you’re being too cavalier about bribery.” It had been dismissed. In addition to the problems which followed from any Tax Fraud and Emoluments theory, bribery seemed just too difficult to prove. I remember, however, thinking as I read that memo in February that, if bribery was impossible to prove, then at least two parts of the impeachment provision of the Constitution were obsolete. Having so much occasion to read the phrase “Treason, Bribery, or other high Crimes and Misdemeanors,” I thought that, as far as the presidency was concerned, there was no longer any circumstance in which treason could apply. With the technology of modern warfare, foreign policy—allying oneself, for example, on the instant, with a foreign power previously considered an enemy—was necessarily a matter of presidential discretion. There seemed to be no conceivable sense in which treason, by any definition, could be committed by a modern President.
II. THE DEFENSE
To turn now to those apparently unaccountable White House lapses, discrepancies, things that don’t make any sense. I begin with a proposition that is arguable and that I don’t at all require: that if Nixon himself had been caught, red-handed, in the Watergate he would not have been impeached. Burglary is a literal crime, as required by the White House brief; and burglary of the offices of a political opponent makes it that “political” crime that would satisfy anybody’s brief; but I think he could have explained it away. As for the cover-up, the obstruction of justice, if the President had been caught red-handed and lied about it, he would not have been impeached. There would, of course, have been an outcry. But an outcry is not an impeachment. There had to be many, many outcries, with two years of metaphoric bombshells, and massacres, and smoking guns, before the process was truly under way. The proposit
ion is, anyway, unimportant. At the time of the break-in, President Nixon was at Key Biscayne. It is only to speculate that if he had been involved in the Watergate, personally, unarguably, and directly, he would have fared better than he did. Until November 1972, there was still, of course, the election to think about; there might have been a risk in that election. But not impeachment. Apart from his own acts, it took a lot of time, and people, and institutions, the press, the Special Prosecutor, the Ervin Committee, the courts, before the mechanism was even in place.
It is after he had won the election, however, by an unprecedented margin, that the odd progression of lapses and inconsistencies begins. Why, for instance, immediately or at least soon after the election, did the President not pardon Hunt and the other Watergate burglars and continue to comply with their demands? The money was there. The payments would have continued to be clandestine. There had been, then, no confessions by John Dean or Jeb Magruder, no accusation even by James McCord. There had certainly been no resignation by Attorney General Richard Kleindienst; no appointment of Elliot Richardson, bringing with him the Special Prosecutor, Archibald Cox; no Saturday Night Massacre, triggering resolutions of impeachment. The Ervin Committee hearings had not even begun. At least as late as March 21, 1973, the President could have pardoned all the Watergate defendants (thereby relieving the pressure of impending sentences by Judge Sirica) and simultaneously, vaguely, taken the blame for the whole affair himself. It might have been nothing to impeach him for. And, as we have since had good occasion to know, to pardon is the President’s constitutional right.
Precisely because it would have been safe to pay, pardon, take the blame after the election, it may, however, have seemed safer not to. No politician would have been positively eager to take the blame. For a long time, I thought that was explanation enough. To turn, though, to another, more familiar set of whys: the tapes. Why not, when Alexander Butterfield revealed their existence, destroy the tapes? Why turn over to the House Judiciary Committee what were obviously doctored transcripts of tapes, the originals of which the inquiry staff already had? Why not record, and find, and turn over to the committee a single tape on which the President looked good? His defenders, if they had had the wit to do so, could at least have argued that, while there have been grounds to impeach any President, with Nixon there were, on balance, not only extenuating circumstances but strong, good grounds (the opening to China, peace, détente, whatever) to keep him on. Why not, having decided to turn over any tapes at all, simply flood the Judiciary Committee with tapes, masses of tapes, U-Haul truck after U-Haul truck? Every time the staff seemed to find incriminating evidence, the President’s lawyers would have claimed to find further tapes with exculpatory evidence, all of which, in the name of being “fair,” the inquiry staff would have been obliged to examine. That would presumably have drawn out the inquiry until at least November 1974—when, almost certainly, most members of the Judiciary Committee would have been defeated in the congressional elections, their constituents would have been so impatient with how slow they were. In January 1975, the process would have had to begin again and be drawn out—if anyone could bear to continue with it—until President Nixon had served out his term.
