The perception that the Justice Department’s investigation was compromised was not without reason, but both Cox and Ervin knew better. The U.S. Attorney’s office had in fact discovered the cover-up conspiracy and had broken the case by the time Cox took control, and before Senator Ervin’s committee provided a public venting of what the prosecutors had learned.
The U.S. Attorneys’ narrow construction of the criminal case against the Watergate burglars had aroused criticism and even suspicion of their motives. As the trial ended, Earl Silbert, frustrated by his inability to “turn” any of the defendants, told reporters that “there is no evidence of a wider conspiracy.” He was right; but the rapid exposure of evidence in the next few weeks unfairly made him appear either incompetent or part of yet another cover-up. Later, critics such as Senator Ervin thought that if the prosecutors had pursued leads as far back as August 1972, they might have discovered the involvement of various White House aides, such as Strachan and Chapin—implying that that discovery might have led to Haldeman and the President. But as Ervin acknowledged, “hindsight is easier than foresight.” The Senator, furthermore, failed to acknowledge John Dean’s success in keeping the prosecutors at bay.
By the end of May, Henry Petersen had come under increasing attack, which touched the prosecutors themselves. Critics scoffed at Petersen’s reluctance to impinge on executive privilege and probe conversations between Nixon and Dean. Petersen’s view that the President could not be prosecuted was well known, as was his insistence that only the House of Representatives could consider incriminating evidence against him. Even the prosecutors themselves were a bit wary about Petersen, their superior. They advised Elliot Richardson as early as April 30 that Petersen should withdraw from the case. At that point, Silbert and his associates had discovered the extent of Dean’s conversations with Petersen, and they realized that Petersen might himself have to be a witness in the case. Dean demanded that Silbert not tell Petersen of Dean’s revelations regarding “Mr. P”—as Dean’s lawyer referred to the President—quite simply because he was no longer sure of Petersen.23
By mid-May, the prosecutors had effectively sealed their case against the President’s men for their roles in the break-in and the cover-up. Harold Titus, Silbert’s superior, wrote to Richardson on the fifteenth, describing the delicate state of the case. His aides had worked long and hard but had only begun to gain the necessary evidence to make their arguments. Just at this time, for example, Fred LaRue had corroborated Mitchell’s role in the cover-up. Most important of all, the prosecutors had gained Dean’s cooperation, without granting him immunity. Dean and his lawyer had bargained hard for immunity at the outset, when Dean had confined his incriminating remarks to Haldeman and Ehrlichman. Whether because he failed to gain immunity, or in a further gamble to do so, Dean later decided to implicate the President as well. But Silbert stood fast, as he understood throughout that if he granted immunity, both Dean and the prosecution would suffer a loss of credibility. Silbert, moreover, firmly believed that Dean was the ringmaster of the cover-up, the one who had “perverted the system.”
In his May 15 letter, Titus worried that the Senate Select Committee hearings, scheduled to begin in two days, might irreparably harm subsequent trial efforts. Such publicity, he feared, might be so prejudicial as to affect the government’s ability to select a fair and impartial jury. Titus hoped that somehow Richardson might persuade Ervin to give the prosecutors more time to complete their work. But Richardson had his own problems. He had yet to be confirmed—and Ervin served as a key member of the Senate Judiciary Committee—and he had not yet selected a Watergate Special Prosecutor. Hence it was “inappropriate” for him “to intervene at this juncture,” Richardson told Titus. Once it became clear that the Senate hearing would proceed and that Richardson had no choice but to select a Special Prosecutor, Titus wrote back on May 18, for the record, saying that Richardson should be aware of “the totality of the current investigation.” The major witnesses in the case had been interviewed at length, and most had appeared before the grand jury. A “key member” of the conspiracy had agreed to plead guilty without immunity. Titus meant Dean, of course, though he did not identify him.24
By then, the Watergate investigation was contested turf. Samuel Dash, the Senate Select Committee’s Counsel, and his staff dismissed any attempts to restrain their efforts. Dash’s staff divided when they heard Silbert’s request that they tread carefully for fear of upsetting the indictments. The dominant voices simply refused to trust the prosecutors and insisted that the hearings proceed. Dash met Silbert in an attempt to settle their differences, but distrust on Dash’s side, and Silbert’s concern with protecting his case, doomed any attempts at cooperation. Dash was convinced that Dean was more willing to cooperate with the Senate than with the prosecutors. The Select Committee’s workers, of course, had their history to make, but one knowledgeable staff member later conceded that “Silbert had broken the case—that’s why Dean and McCord came to us.” Meanwhile, Cox indicated to Dash that he had doubts about the credibility and motivation of Dean. Cox knew at that point—quite correctly—that if Dean were the best witness, then the whole case rested on his credibility.25
Time flew like an arrow for Silbert and his colleagues. The Senate hearings opened on May 17, and Richardson appointed Cox the next day. The U.S. Attorneys’ days in the case were numbered. Cox eased the transition in order not to lose the momentum of the case. The federal prosecutors briefed their successors at great length as to the evidence and prosecutorial theories they had developed. James Neal, who had gained the conviction of Jimmy Hoffa, was brought to Washington by Cox in late May, to prepare for prosecutions. Neal graciously complimented the prosecutors for their efforts. Silbert was ambivalent. The appointment of the Special Prosecutor deprived him and his associates of a proper share of public credit; still, he had grown weary of the unfair criticism and of maintaining proper procedures and fairness in the face of media pressures. Ultimately, he acknowledged that “the special prosecutor may be considered necessary for the appearance of justice.”26
When the U.S. Attorneys surrendered control, they provided Cox with a detailed eighty-seven-page summary of their efforts. Silbert set down the basic nature of the misdeeds and criminal violations by White House aides, CREEP staff, CIA and FBI leaders, and Justice Department officials. At this point much of what they knew came from the testimony of Dean, Magruder, various CREEP workers, and the Plumbers’ chief operatives, Krogh and Young. The charges were clear; what remained was to garner and assemble the evidence necessary to gain convictions.
At the end of his report, Silbert listed witnesses yet to be interviewed or presented to the grand jury. He named twenty-seven in all—number 27 being no less than Richard Nixon himself. “Were he not President,” Silbert wrote, “there is no question but that President Nixon would have to be questioned about a number of matters.” Silbert ticked off the President’s post–break-in conversations with Haldeman, Ehrlichman, Helms, Walters—and most important, with Dean. Silbert had crossed the Rubicon in his trust of the President. Nixon’s May 22 statement proclaiming his innocence, “rather than answering all the questions, raises a host of others,” Silbert observed. An interview with the President, he suggested, “could be vital in determining the truth.”
The federal prosecutors’ report to Cox was a turning point for the President’s fortunes. For the first time a duly constituted authority had officially raised the possibility of Nixon’s own involvement in aspects of the criminal conspiracy. Ironically, the May 22 press conference statement of the President had raised the prosecutors’ suspicions. (“I neither authorized nor encouraged subordinates to engage in illegal or improper campaign tactics.”) Nixon’s lengthy discussion of the creation of the Plumbers, his relation to it, the 1969 wiretaps, the abortive Domestic Intelligence Reorganization (Huston Plan) of 1970, and the White House response to the Watergate break-in, indicated some presidential involvement. Though he steadfastly de
nied any criminal conduct or wrongdoing on his part, the President’s admissions raised the possibility that he might not be the best judge of his own innocence. Nixon himself had conceded that different people “saw the same situation with different eyes and heard the same words with different ears.”
The prosecutors no longer had the mandate, the time, or the resources to question the President. The case now belonged to Cox. But the U.S. Attorney’s office also understood the problem of confronting the President of the United States: “obviously a matter of such extreme sensitivity, raising Constitutional questions.” The buck was passed: “whatever steps are taken,” they told Cox, “can only be by you.”
If Archibald Cox had left Harvard Yard to take on the guise of Macduff and impose a well-deserved retribution on Macbeth, here was his opportunity. He refused. Cox was inclined to “lay off for now,” as he noted on the U.S. Attorney’s summary memo. The numerous, varied cast of the President’s men who might be implicated in wrongdoing was imposing and challenging enough. Dirty tricks, campaign excesses, and possible criminal conspiracies seemed to offer a full table. The President himself? Dash suggested such a possibility to Cox at the same time Silbert’s report did, but Cox simply responded that whatever his office learned would be passed on in his eventual report to Congress.27 Cox believed (or preferred to believe) at this point, as did Henry Petersen and others in the Department of Justice, that presidential wrongdoing first required a response by Congress. In June 1973, the notion of a prosecutorial challenge to the President seemed best confined to the realm of black humor.
As the case passed to the Special Prosecutor, the U.S. Attorney’s office provided Cox with their materials. Silbert and his colleagues would not reap the harvest of a year’s intimate contact with the Watergate case and the growing ramifications of it; that glory would belong to others. On June 29 they wrote to Cox, renewing a request to withdraw from the case. They used the occasion to state the record of their long, arduous work. By mid-April their office had uncovered “the existence of a massive conspiracy to obstruct justice, the participants therein, and their motives.” They broke Magruder, successfully pried information from Dean without immunizing him, discovered the Plumbers’ operations, and gained several guilty pleas. Finally, the prosecutors realized that their separation from the case might seem to justify criticism of their work. “Such speculation is wholly unwarranted,” they bluntly concluded. Cox replied graciously, acknowledging that they had suffered unfairly from adverse criticism and adding that he and his staff believed that the prosecutors had acted only in accord with their “honest judgment and in complete good faith.”28
With that, Cox focused on completing his housekeeping chores for his new position and on expanding the investigation. He established his own channel to the FBI, designed to bypass the Attorney General and the Criminal Division of the Justice Department, a move that only reinforced public feeling that he had taken over a discredited investigation. Cox’s chief aides urged him to turn his hoard of political capital into tangible assets as quickly as possible. The Special Prosecutor should provide for an appropriation for “a very sizable professional and support staff,” adequate office quarters, and senior and middle-level staffers “while this issue is hot.” He should demand access to presidential papers and information on CIA and FBI internal-security operations, and he should mount a challenge to the President’s views on executive privilege. Ultimately, Cox’s office boasted a staff of more than 150 persons, including a security group of 19. Cox paid close attention to staff dealings with the press. The problem was delicate. He could not afford to alienate so substantial an ally, yet he could not risk prejudicial publicity that might jeopardize any of his cases.29
Cox perceived that his task force had a substantial rival in the Senate Select Committee. The committee had been at its work for more than three months when Cox appeared on the scene. The day before Richardson announced Cox’s appointment, the committee launched its public hearings. Cox quickly came to the same conclusion that Earl Silbert had reached: the committee’s public hearings could well interfere with future prosecutions. Several days after Cox’s appointment, Select Committee Counsel Sam Dash paid a courtesy call on his former professor. He offered Cox access to the committee’s computerized files and asked what else he could do. “Disband,” Cox said.
Senator Howard Baker later characterized Cox’s attitude toward the Ervin Committee as preferring that “we go out of business.” On June 4 Cox specifically asked Ervin to suspend the hearings until all trials had been held, in order to “promote our mutual goals.” He thought that the hearings would impede investigations because witnesses would rather bargain than testify publicly; he worried that excessive publicity would undermine accepted standards for fair trials; he believed that grand-jury proceedings might better protect the innocent; and finally, he argued that dual investigations would result in confusing releases of bits and pieces of information.
Cox told Ervin that he feared his request might be construed as a cover-up, but Ervin recognized that Cox simply did not want the Select Committee in the field. What Cox desired, the Senator told his colleagues, was for the committee to delay “until the last ringing echo of Gabriel’s horn trebles off into silence.” Ervin and Senator Herman Talmadge argued that the committee had no power to delay, however, since it operated under orders from the full Senate.
When the Select Committee applied to Judge John Sirica for immunity for Magruder and Dean, Cox perfunctorily challenged the request, urging the judge to require private hearings for the witnesses or deny the committee access to them altogether. With intended irony, Dash invoked an argument Cox had made as Solicitor General in the Kennedy Administration, that courts could not interfere with congressional public hearings to protect pending criminal trials. Judge Sirica emphatically agreed with Dash and Solicitor General Cox.30
The Senate Select Committee prepared for more than three months for the public hearings. The White House did likewise, beginning with Ehrlichman presiding over a lengthy meeting in San Clemente in February to discuss the committee and White House moves. The participants agreed to delegate a liaison with Howard Baker, one directed by Dean. Ehrlichman assessed the committee and dismissed the Democrats as inevitably partisan. He told Dean that the name of Senator Daniel Inouye (D–HI) should be pronounced “Ain’t no way,” for “ain’t no way he’s going to give us anything but problems.”
Shortly after the committee convened, Baker visited the President for a “totally off-the-record,” “private” meeting and reported on the committee’s early activities. Ervin, Baker commented, was “full of compliments”—it was not clear whether they were for Republican members or for the President. Nixon urged Baker to keep the investigation confined to the Watergate burglary, rule out hearsay evidence, and invoke the “Hiss rules,” whatever those were. Several times over the next week, Nixon insisted that executive privilege not be compromised, but somehow he confused what he regarded as Truman’s “cover-up” of the Hiss affair with a proper course of action for himself. Yet he proved willing to compromise, suggesting that his staff might answer written questions from the Senate committee. Discussions of the forthcoming hearings repeatedly evoked presidential soliloquies on his role in the Hiss hearing. As always, Nixon believed that he had earned “their” hatred because of that case. The “New York–Washington axis,” he firmly believed, was out “to get” him.
The President directed that his aides guide Republican congressional leaders in establishing a firm defensive line against the committee. At one and the same time, he said that the issue must be “defused” and that he would not tolerate a cover-up. He wanted Kleindienst and Baker to work together to ensure executive sessions for White House personnel and thereby avoid confrontations over executive privilege. But in the Administration, confrontation often accompanied conciliation. Nixon wanted Ziegler briefed so that he could “kick the Ervin committee.” Haldeman meanwhile would publicize examples of Democratic Party
sabotage and violence during the campaign. By April 11 the President wished to know who would handle the “counter-attack” against the committee; he particularly wanted questions to be raised concerning Democratic campaign spending and practices. He instructed Ehrlichman to talk to their friends in the press and urge them to cease writing about the Administration’s lack of cooperation with the committee. Nixon, however, underestimated the situation, confidently believing that Senators Baker and Edward Gurney would provide strong minority reports, thus reducing the heat. Still, he looked for a deal with Ervin whereby John Dean might testify in executive session.31
Charles Colson and Ehrlichman worked together to develop guidelines that might best protect the President’s aides and his claims to executive privilege once the hearings commenced. John Mitchell contributed a bit to the discussions, as did Baker. Ehrlichman and Ervin negotiated at length—with their telephone conversations dutifully taped by Ehrlichman.32
The President trusted Baker and Gurney. But Lowell Weicker troubled him deeply. “What the hell makes Weicker tick?” Nixon asked Haldeman and Ehrlichman. “Nobody’s been able to figure that out,” Ehrlichman responded. Several days later, Ehrlichman asked Baker the same question.33
The Wars of Watergate Page 50
