The Wars of Watergate

by Stanley I. Kutler

  The President “respectfully” rejected the Senate’s subpoena on July 26. Executive privilege, he insisted in reply to Ervin, was at stake. He had invoked it, Nixon said, “only with regard to documents and recordings that cannot be made public consistent with the confidentiality essential to the functioning of the office of the President.” In short, the President would decide the priority between “confidentiality” and “alleged illegal activities,” as Ervin described them. The day before, Nixon informed Judge John Sirica that he would “decline” Cox’s subpoena, contending that historical precedents demonstrated that presidents could not be subjected to compulsory process from the courts. Responding to a motion by Cox, Sirica directed the President’s lawyers to appear for arguments on August 7 and show cause for declining to produce the tapes. As the judge set down his order, the White House announced that the President “would abide by a definitive decision of the highest court,” a remark Nixon repeated at his August 22 news conference.

  Cox and a presidential lawyer, Charles Alan Wright, clashed in Sirica’s courtroom on August 22. Both men touched on sensitive propositions. Wright maintained that the constitutional provision for impeachment provided the only remedy for checking and balancing the President in cases like the one at hand. Cox not so obliquely challenged the President to comply with a subpoena or “dismiss the case”—presumably by firing the Special Prosecutor. But then, Cox noted, “the people will know where the responsibility lies.” A week later, Sirica ordered Nixon to turn over some tapes for his personal examination. Citing Chief Justice John Marshall’s ruling in a case involving Thomas Jefferson, Sirica held that there could be “no exception whatever” to the compulsory process of the courts. In a brief statement issued at San Clemente on that day, the President announced he would appeal. Perhaps he would have preferred simply to refuse and “let Judge Sirica enforce his order,” to paraphrase President Andrew Jackson’s alleged reaction to another John Marshall ruling. But Nixon later acknowledged that he “recognized the political reality,” and instead of defying Sirica, he decided to observe regular appellate procedures.10

  Cox’s actions, despite his public disavowals of personal antagonism toward the President, reinforced Nixon’s convictions that he had given Attorney General Elliot Richardson too much latitude and that Cox spearheaded a Kennedy vendetta. A month before Butterfield’s revelations, Cox had requested a tape Nixon had mentioned to Henry Petersen in April. Buzhardt refused. Because of Richardson’s generous charter to Cox, the President thought the Special Prosecutor “was so powerful” that a clash “was inevitable.” By then, Richardson clearly had lost favor in the White House. In June he had urged the President to be more forthcoming about Watergate, in an “open forum.” When Nixon’s tactics did not change, Richardson thought it merely an error of judgment. Eventually he “realized that Richard Nixon was more likely to be guilty than stupid.”

  At the time, Richardson’s administrative assistant sensed that the White House had little interest in the Attorney General’s advice. The President “and his beleaguered lieutenants,” the aide warned, were bent on survival. They were likely to regard Richardson’s concerns for integrity and credibility “as either bullshit or dissembling” and to meet them with “suspicion and distrust.” Richardson would have to walk a tightrope between the survival concerns of the White House and the enforcement demands of the criminal-justice system. “[A]t some point,” the aide continued, “you’ll have to [be] ready to draw the line (we once talked about there being worse things than resigning or being fired)”—that line being the Attorney General’s willingness to stand by his deputy, Ruckelshaus, his support of Cox, his continuing the investigation of Vice President Agnew, and his refusal to defend the break-in of Ellsberg’s psychiatrist on national-security grounds. At this early point—July 9—Richardson’s inner circle knew that Archibald Cox represented the fighting ground. Richardson could reassure Haig that he would put certain restraints on Cox’s jurisdiction, but in the end, he would “necessarily have to come back to the very broad guidelines announced and endorsed by the Senate.” As the controversy over the tapes intensified, Richardson told the American Bar Association in August that he would “for-swear politics” for himself in order to counter the suspicion of political influence in the Justice Department.

  Richardson, however, occasionally waffled between his loyalty and obligations to the President and his public responsibilities to the Special Prosecutor. In late July he was reported as saying that he did not believe Cox had a clear right to the tapes. Cox’s “investigation of a crime doesn’t by itself confer a right of access” to confidential presidential papers, he remarked. But Richardson, too, sensed a long court struggle, even envisioning Solicitor General Robert Bork’s arguing the question in the Supreme Court. Richardson walked a fine line. He believed that Cox had been acting “in full accord with the requirements of his job.” Yet he knew it was important to find a practical means for reconciling the competing public interests of confidentiality for the President and the need to uncover criminal evidence. In fact, that was the nature of Richardson’s role in the three remaining months of his tenure.11

  It was a stressful time for the President. Flying to New Orleans on August 20 to address the Veterans of Foreign Wars, Nixon heard that a threat had been made on his life. Arriving at the convention hall, he suddenly turned on Press Secretary Ziegler, grabbed him, angrily pushed him toward pursuing reporters, and shouted that he did not want the press with him. The White House insisted that the incident never happened, but CBS had captured it on film and played it twice. There was heightened speculation that the President was mentally breaking down, drinking to excess, or both. He believed that his August 15 address had struck a responsive chord; he was certain that “people were tired of Watergate.” If so, his New Orleans behavior raised to a different level questions of his competency. Watergate preoccupied Nixon as the fight over the tapes gathered momentum, and there were other signs of the strain. On October 20 his longtime patron and supporter Norman Chandler, publisher of the Los Angeles Times, died of cancer. Just prior to this, when the President had been staying in San Clemente, he had twice failed to carry out scheduled visits with Chandler.12

  Nixon first heard that Vice President Agnew had legal problems of his own at a meeting with Haldeman and Ehrlichman on April 14, 1973. Haldeman reported that a Baltimore grand jury had been investigating bribery and “kickback” charges against Agnew when he was governor of Maryland, and allegations that he continued to accept illegal payments as Vice President. Those charges also led to an investigation of Agnew for income-tax evasion. According to Haldeman, Agnew was “absolutely scared shitless.” Nixon was preoccupied with his own troubles; “he’s just got to ride that through—what the hell—” the President remarked.

  When Richardson assumed office in May, he immediately was preoccupied with the selection of a Special Prosecutor. But he also learned that the U.S. Attorney’s office in Baltimore had Agnew under investigation and realized he eventually would have to confront the situation himself. In July Richardson’s aide suggested that the time had come to inform the President. “I am worried about the matter surfacing and it developing that you knew about it and hadn’t told him,” the aide wrote. As Richardson briefed Nixon, he was struck by the President’s lack of surprise. Nixon, typically, was well informed about the various compartments of his Administration.13

  From the moment of his selection as Nixon’s running mate in 1968, Agnew had been a focal point of controversy. In large part, this stemmed from Nixon’s desire to use Agnew to attack his favorite targets, the media and liberals, a role that made Agnew the “household word” that he had not previously been. Those who regarded him as an ethnic Throttlebottom soon recognized his talents as an effective political voice on the hustings. Suave, distinguished-looking, and articulate, the Vice President represented a story-book tale of ethnic success. As Maryland’s governor, he faced down black leaders of the Baltimore riots in
1968, a moment that made him an instant celebrity with conservatives and the Nixon organization. In fact, Agnew’s momentary fame obscured what later came to be recognized: that he was a commonplace man, who, as a Nixon speechwriter wrote, merely said what good Republicans “say on commuter trains when their thoughts turn from moneymaking to politics.” Moneymaking—before, during, and after his tenure as Vice President—seemed to be the thing that excited Agnew most. When asked if he was happy to be selected as Nixon’s running mate, Agnew replied: “The ability to be happy is directly proportional to the ability to suffer, and as you grow older you feel everything less.”14

  After his Des Moines assault on the media in November 1969, Agnew became not only a household word but, to the consternation of some Administration insiders, a growing power within Republican circles. He appealed to and comforted that Silent Majority who deplored the constant stream of protest and demonstrations against authority. In his June 1969 commencement address at Ohio State University, Agnew said that a society that feared its children was “effete.” The “tough guy”—from Wyatt Earp to Dirty Harry—who stands up in contrast to a weak society is the stuff of American myth and legend. Agnew did not disappoint. “A sniveling, hand-wringing power structure deserves the violent rebellion it encourages. If my generation doesn’t stop cringing, yours,” he told his young audience, “will inherit a lawless society where emotion and muscle displace reason.” After American Indian militants demonstrated in Washington, Agnew urged the President to press criminal charges, contending that the Administration would look “McGovernish” if it in any way condoned the action.15

  The institutional limits of the office of Vice President frustrated Agnew, and his relationship with the President was marred by distrust and antipathy, as has often been the case, given the nature of the two offices. Nixon added feelings of contempt. According to Henry Kissinger, the President had referred to Agnew as his insurance policy against assassination attempts. When asked by a newspaper columnist whether he had briefed Agnew on Henry Kissinger’s contact with the Chinese in 1971, Nixon seemed incredulous. “Oh, of course not,” the President replied. The two men rarely saw each other and rarely exchanged views, a situation that only added to the Vice President’s frustration. “I had long desired to be his close partner, but he preferred to work with a controlled staff,” Agnew noted. He knew, according to one of his aides, that Haldeman and Ehrlichman, as well as other White House staffers, “looked at him with disdain and didn’t pay any attention to him.”

  Agnew bitterly remembered that he never engaged the President in a substantive conversation. He claimed that Haldeman had told him that the President did not appreciate it if he said anything that could be “construed to be mildly not in accord with his thinking.” Unlike most Vice Presidents (including Nixon during the Eisenhower years), who publicly insisted that they shared in decision making, Agnew refreshingly acknowledged that he never participated directly in any decision. When the two would talk, the President generally embarked on “a rambling, time-consuming monologue,” successfully avoiding subjects not to his liking. “I was not of the inner circle,” Agnew candidly admitted. Privately, he told his own aides that the Administration was “intellectually bankrupt.” He disagreed passionately with the China move but muted his criticism. His contempt for the President’s staff was boundless; he considered them “mere technicians,” utterly lacking in principles. Those who admired Agnew praised his intellectual honesty and his loyalty to his friends, a source of both weakness and strength but “a problem Nixon never had,” according to one of Agnew’s more cynical aides.16

  After the 1972 election, Agnew believed that the President, now a lame duck, resented Agnew’s growing political stature and was miffed as well at his failure to put John Connally in Agnew’s place. But at that time Nixon told Haldeman that while he did not wish Agnew to appear as his heir apparent, he had no desire to push him down. Agnew, he said, was not the ideal choice as a successor, but Nixon thought he might be the best of a bad lot.17

  By the summer of 1973, the Wall Street Journal had been investigating rumors of Agnew’s illegal activities for more than a year and had learned of the Baltimore grand-jury inquiry. The newspaper advised Agnew on August 6 that it would publish the story the next day, mainly fearing that it would be scooped by another newspaper. Agnew immediately informed reporters that he had learned he was under investigation for extortion, bribery, and tax evasion—all of which he actually had known since April. He insisted he was innocent and was confident that the criminal-justice system would vindicate him. Two days later he appeared at a televised news conference to denounce the allegations as “damned lies.” Agnew said he had nothing to hide, that he had no expectation of being indicted, and that he certainly would not resign.

  Agnew visited the President on August 7 for nearly two hours. He reported that Nixon had “unequivocally” supported him, but Agnew added that he was not “looking around to see who’s supporting me. I’m defending myself.” The next day the President expressed “confidence” in Agnew. At his August 22 news conference, Nixon again asserted “confidence in [Agnew’s] integrity” and praised his “courageous conduct and ability.” He joined the Vice President in denouncing leaks from the Department of Justice, the Baltimore prosecutors, and the grand jury. The two men saw each other again on September 1, and four days later at his news conference, the President once more denounced the charges against Agnew as “innuendo and otherwise,” but he properly refused to discuss the substance of those charges.18

  During the next several weeks, Agnew and his staff realized that the President’s support was lukewarm, given Nixon’s own calendar of woes. The Agnew camp channeled its hostility toward Attorney General Richardson, who, Agnew believed, was engaged in nothing less than a plot to discredit and remove him in order to further his own presidential ambitions. Richardson had written to Agnew on August 1, informing him of the investigation; meanwhile he had told Nixon, through Haig, that he had never seen such a “cut-and-dried” case. Richardson advised the President of his appraisal on August 6—before Nixon met Agnew. Presidential counselors Buzhardt and Garment supported Richardson’s assessment. The President’s own evaluation of the situation was coldly realistic. He knew the charges were serious and persuasive; he also realized that Agnew’s denials had aroused a sympathetic constituency. Yet if the President actively defended Agnew, and the charges were substantiated, he would only impair what he described as his “own already dwindling credibility.” If he adopted a neutral stance, however, he knew he would enrage Agnew’s supporters. The President wisely chose the second course, stoically willing “to bear the brunt of the criticism that was to come.”19

  For his part, Agnew later claimed to have warned the President that the investigation was merely an attempt to embarrass the Administration and that it was foolish to believe it would divert attention from Watergate. He understood, to some extent, that his removal would make it easier for the “left-wingers who despised us both” to force the President from office. Later, Agnew came to believe that Nixon sought to pacify Richardson because he was preparing to move against Cox. “I was treated like a pawn in the game—the game of the Watergate cover-up,” Agnew wrote. He did not realize at the time the President’s own vulnerability and weakness; otherwise, he claimed, he “might have fought it out.” Conspiracy notions had fueled Agnew’s most successful political rhetoric during his first term; quite naturally, he believed that again he had been victimized by what he undoubtedly regarded as an “elite, effete” cabal—this time led by Attorney General Richardson.

  Agnew and his staff felt that Richardson “was out to get” him. He later added the touch of Zionist conspiracy: Richardson wanted someone in the line of presidential succession who, like Nixon, “would defend Israel, whatever the risk to the United States.” Agnew was convinced that Richardson sensed the President was “cracking” under the Watergate strain, and “so I must be knocked out of the line of succession before
it was too late.”

  Curiously, three years after he left the White House, Nixon lent some credence to Agnew’s darkest suspicions when he noted Richardson’s presidential ambitions for 1976 and worried that the Attorney General might have had some political motivation. The charges against Richardson, of course, were absurd. He had inherited the Agnew case; moreover, the evidence against Agnew readily persuaded such varied White House advisers as Haig, Buzhardt, and Garment. Henry Petersen had only the highest regard for Richardson’s professionalism in the affair; “I never met a man who was so careful,” Petersen recalled. Richardson, he thought, was “one of the best, if not the best” Attorney General he had ever served. Melvin Laird learned of the Agnew case from Buzhardt. Buzhardt’s advice prompted Laird to tell his Republican congressional friends “not to get too far out in front in defense of the Vice President.” Ironically, a few days after Agnew’s resignation, and as Richardson prepared for his own, the Attorney General noted that rather than proving his independence, the Agnew affair had reinforced the convictions of some that he had merely served the President’s interests.20

  Agnew’s felonies had no relation whatsoever to the mounting catalogue of Watergate crimes. But the Vice President’s situation and eventual departure from office worsened Nixon’s deteriorating position. After Petersen became involved for the Justice Department, the President called him on numerous occasions, expressing opinions that the case against Agnew would not lead to impeachment and that somehow Petersen might “handle” the Baltimore prosecutors. A New York lawyer, a warm Nixon admirer, urged the President to ask Agnew to suspend himself if indicted; if he refused, the President himself should request Agnew to vacate his office in the Executive Office Building. The lawyer claimed—without knowing them—that the liberal New York attorneys representing Agnew were motivated by “the continued distress the internal feuding” caused the President. Apparently, she appreciated what Nixon liked to hear.