Robert Dixon, Assistant Attorney General, Office of Legal Counsel in the Department of Justice—a position once occupied by William Rehnquist—was an especially thoughtful man. Widely respected in and out of the Justice Department, Dixon was a consummate professional. Elliot Richardson had called on him for advice when confronted with the legal question of whether the President could dismiss Cox. (Dixon advised him in the affirmative.) Now, he found himself thinking about the President’s legal position, and especially about his defense. Dixon and his staff puzzled over the problem of which side the Attorney General should appear for if the President were impeached. Did the Justice Department, or any part of the government, have to provide Nixon’s legal defense? Good lawyering required good anticipation. Dixon had to—and did—consider the possibility of impeachment by late 1973.47
Following Andrew Johnson’s one-vote acquittal in his impeachment trial in the Senate in May 1868, contemporary politicians and subsequent historians alike condemned the impeachment proceeding as brutally partisan and thus cast opprobrium over the constitutional mandate for the public questioning and removal of presidents. The framers of the Constitution, however, had carefully crafted safeguards against executive tyranny. After all, their colonial and revolutionary experience justified suspicion of executive power. The ultimate protection, for the Framers, lay in the time-honored English practice of impeaching executive officers—that is, holding a public inquest into their conduct of public office, as Alexander Hamilton wrote in Federalist 65. Yet impeachment had a slender history in the United States. The first great impeachment trial, that of Supreme Court Justice Samuel Chase in 1807, appeared designed more to satisfy the partisanship of the Jeffersonians than to examine Chase’s improprieties. The Johnson and Chase trials historically had been treated as aberrations, not models.48 In early 1973, impeachment was perceived as analogous to nuclear weapons: available, yet too dangerous to use. But the ultimate weapon suddenly proved alive and well in Washington as 1973 drew to a close.
Watergate Special Prosecutor Archibald Cox with reporters just hours before his dismissal, October 1973. (Washington Star)
Leon Jaworski, Cox’s successor. (Washington Star)
Presidential lawyer Charles Alan Wright, Senator Ervin, Nixon, Senator Baker, and Haig, just prior to Cox’s firing. (National Archives)
Newly appointed Attorney General William Saxbe (left), Nixon, and Solicitor General Robert Bork after the “Saturday Night Massacre,” (National Archives)
House Judiciary Committee Chairman Peter Rodino (left) and Committee Counsel John Doar, May 1974. (Washington Star)
James St. Clair, Nixon’s lawyer during the impeachment process, May 1974. (National Archives)
Nixon and Anwar Sadat in Egypt, June 1974, just after passing beneath banner proclaiming “We Trust Nixon.” (National Archives)
Senators Hugh Scott and Barry Goldwater and House Republican leader John Rhodes, after discussing impeachment and resignation with the President, August 7, 1974. (National Archives)
Pro- and anti-Nixon demonstrators in front of the White House on the night of Nixon’s resignation announcement, August 8, 1974. (Washington Star)
Rose Mary Woods, the “fifth Nixon” and the President’s personal secretary, on the day of Nixon’s resignation. (National Archives)
Nixon and family at the East Room farewell ceremony, August 9, 1974. (National Archives)
Nixon’s departure. (National Archives)
Vice President and Mrs. Gerald Ford return to the White House after Nixon’s departure, August 9, 1974. (National Archives)
XVII
“FIGHT”
TAPES AND INDICTMENTS, JANUARY–MAY 1974
For Richard Nixon, the opening of the new year heralded the “campaign of my life.” The passing of the old year kindled introspection in him, as it had a year earlier. “Do I fight all out or do I now begin the long process to prepare for a change, meaning, in effect, resignation?” he asked himself. The President reflected not just on his personal fate but on his obligations, as he saw them, to constitutional government. A resignation, he believed, would establish a dangerous precedent that later Congresses might use as leverage against presidents. That path conveniently would relieve Congress of its constitutional responsibility for impeachment. The course was obvious: “fight.” Fight, otherwise the media and Congress would become overly dominant, and “our foreign policy initiatives” would collapse, Nixon thought. But characteristically, the President exposed his personal motives; resignation, he realized, “admits guilt.”
Nixon was determined to conduct the Watergate war with style and substance. “Above all else: Dignity, command, faith, head high, no fear, build a new spirit, drive, act like a President, act like a winner,” he wrote. “Opponents are savage destroyers, haters. Time to use full power of the President to fight overwhelming forces arrayed against us.”1
But Nixon also realized that he must absolve himself of guilt. And most immediately, that involved his dealings with the Special Prosecutor, who continued to demand presidential tapes and documents. The tapes had become the tarbaby of the confrontation. For one side, they loomed large as evidence of criminality and, more important, as authority for legitimating the growing assault on the President’s standing. For Nixon’s cause, those very reasons made it imperative to resist the demands.
The President’s combativeness surfaced in his State of the Union message on January 30, 1974. He sounded the incumbent’s familiar chord: America was better off after five years of his Administration. He painted a dismal picture of the state of the nation in 1968: at war in Southeast Asia, alienated from China, its cities burning, its college campuses like battlegrounds for political rather than intellectual encounter, crime and drugs on the increase—all in sharp contrast, the President proudly noted, to where he had led the nation since. But what was at stake was the future—and the present. Nixon offered the standard prescriptions for ensuring national greatness, but he also inserted a “personal word” regarding the lingering issue of the day. It was time, he said, to bring the matter to an end. “One year of Watergate is enough.”
Nixon claimed that he had given the Special Prosecutor “all the material that he needs to conclude his investigations and to proceed to prosecute the guilty and to clear the innocent.” He promised to cooperate with the House Judiciary Committee, consistent with his “responsibilities to the Office of the Presidency of the United States.” He would not, he insisted, do anything to weaken the office for his successors; moreover, he had “no intention whatever of ever walking away from the job that the people elected me to do for the people of the United States.”
Two days later, Mike Mansfield delivered an extraordinary reply from the Democrats and Congress. Often criticized for his low-key, nonconfrontational, at times even passive style, Mansfield uncharacteristically challenged the President. He noted that the Democrats had increased their majority in 1972 but shrewdly avoided claiming a partisan mandate; instead, he focused on institutional conflicts and institutional prerogatives. The congressional majority reflected a mandate, he said, “to reinforce the nation’s system of checks and balances” and to reverse longstanding trends. Specifically, he cited evidence of “an ominous shift to one-branch government”; executive secrecy in the name of national security; executive impoundment of appropriated funds; executive assaults on the media; executive preemption of authority over the federal budget; multiplying expressions of executive contempt for Congress, and thus, by extension, for the people; executive usurpation of changes in basic organizational structure; and illegal invasions of personal privacy by executive agents.
Mansfield’s charges were reminiscent of such historic constitutional conflicts as those in 1868 against Andrew Johnson as well as of seventeenth-century British struggles involving royal prerogatives and the role of Parliament. Mansfield conceded that Nixon must decide on resignation by himself, but impeachment belonged to Congress, and he insisted that Congress would handle it
s responsibility “properly, fully, and deliberately.” He praised the work of the Special Prosecutor and the courts, but the Majority Leader challenged the President’s call for a quick settlement: “there are no judicial shortcuts,” he said. Mansfield’s rejoinder sharply reminded the President of the constitutional dictates for separation of powers and functions in the American system of governance.
Meanwhile, the new Special Prosecutor had begun to listen to the President’s taped conversations and soon concluded that Nixon had been involved in the cover-up of the widening scandal. Leon Jaworski heard how Richard Nixon schooled his aides to commit perjury and how he moved people around as “chessmen,” “to cover this thing up.” Jaworski was “stunned” as he realized that he was in “an entirely different affair” from what he had anticipated.2
On January 30, the same day that President Nixon declared that “one year of Watergate is enough,” the grand jury requested an opportunity to meet with him. Empaneled on June 5, 1972, the jurors had had nearly eighteen months of living with Watergate. They had listened to the evidence that various prosecutors had compiled; they had heard the President’s men, from Haldeman to Dean, testify regarding their own culpability—and also that of the President. The jurors had heard the case prepared by the U.S. Attorney’s office against the Watergate burglars. They had developed some intimacy in that early relationship, an intimacy not quite matched by the more elaborate structure of the Special Prosecution Force. The jurors knew in January 1974 that the new prosecutors were about to make recommendations; yet, they felt some frustration, because one man—the President of the United States—might have information “highly relevant” to their inquiry. Aided by the prosecutors, the foreman wrote to the President requesting that he appear before the grand jury—in any appropriate place.
The request was no surprise to the White House. Jaworski had already suggested the possibility to James St. Clair, the newly arrived special counsel to the President, who immediately rejected it. Instead, St. Clair recommended that the grand jurors submit written questions. When the jurors rejected his advice, St. Clair replied that the President would not see the jury, citing the independence of his office and the press of his duties. He could not resist a final jab at the proceedings, expressing satisfaction that the jurors were “in the closing stages” of an investigation that had so far consumed more than eighteen months.3
The grand jury request was but a pinprick amid the legal challenges assaulting the White House and its new counsel, St. Clair. For the next eight months, he directed a small staff of fifteen lawyers, digesting massive amounts of materials from the Special Prosecutor, from the defense attorneys in the various pending trials, from the House Judiciary Committee, and from such investigative agencies as the FBI. St. Clair and his group confronted a disparity of more than twenty-five to one in the number of lawyers arrayed against them. He saw himself as “engaged to represent the presidency, not the President.” It was, of course, a distinction that fit the legal and political strategy the President himself had dictated for nearly a year.4
St. Clair had served in 1954 as an assistant to Joseph Welch, the lawyer who represented the U.S. Army in its notorious controversy with Senator Joseph McCarthy. Years later, by then a senior partner in a distinguished Boston law firm, St. Clair represented the Reverend William Sloan Coffin when the government tried Coffin and famed pediatrician Dr. Benjamin Spock for their anti–Vietnam war activities. By some, St. Clair was seen as “all case and no cause.” It was a description intended as pejorative, but it came as flattery to those who preferred a lawyer committed to the work at hand rather than to philosophy. Later, the President described St. Clair as a man who did not understand the public-relations aspects of the case; Jaworski, however, complained that St. Clair was too much a public-relations man. The competing views left St. Clair satisfied that the truth lay in between and showed that he had done his work. He believed there was a certain futility in attempting to cultivate the media; trying to co-opt them, he thought, often provided the opposite result. “My role was as a lawyer. It was not as a media representative.” In fact, however, St. Clair did hold press conferences, in which he sought to explain the President’s legal and constitutional positions.5
St. Clair fared as poorly as his predecessors in his access to the President. According to the President’s appointments secretary and the logs, he rarely saw Nixon alone. When the two met, Haig usually was present. Haig indeed supervised St. Clair closely; according to St. Clair, he saw the Chief of Staff “perhaps on an hourly basis.” Most crucial, St. Clair had no regular access to the White House tapes, the most important evidence in the case. This remained Buzhardt’s area. Some in the Special Prosecutor’s office believed that St. Clair did not listen to tapes in order to protect his deniability. But that may be off the mark. In June, an aide to Haig wrote to him that St. Clair had called, contending that Haig had approved access for St. Clair’s staff people to listen to a tape. “[C]an I therefore deliver these tapes?” the aide queried. “Disapprove,” Haig curtly responded.6
Publicly, the White House stated that St. Clair had replaced Buzhardt, who had been promoted to Counsel to the President. In fact, however, Buzhardt continued to work closely on Watergate matters, especially auditing and safeguarding the tapes. Nixon trusted him for that work more than any other lawyer; in that sense, Buzhardt was irreplaceable. But Buzhardt had his frustration with the President, sometimes requesting an appointment a dozen times in a day and then failing to gain one. His wife remembered that Buzhardt would work fifteen to nineteen hours, preparing transcripts which he would submit to Nixon, who would then make changes. Charles Lichenstein, a White House aide at the time, watched Buzhardt at work and thought him honest but incompetent, overworked yet incapable of delegating tasks. Nixon undoubtedly had the man he wanted. Jaworski believed that Buzhardt served “the purpose of delaying, and he was pretty good at it.” Early in 1973, Sam Ervin grudgingly praised Buzhardt for his work in another area, saying that if he had commanded Robert E. Lee’s armies, the Civil War “would still be lasting” because Buzhardt was so “very skillful in the art of obstruction.”7
In November 1973, the President had indicated to friendly congressmen that he might release some tape summaries. He assigned Pat Buchanan to review the transcripts, particularly with an eye to refuting John Dean. Buchanan’s report, the President remembered, reassured him that Dean “had lied” about Nixon’s role in the cover-up. Nixon knew that the March 21 tape concerning the cover-up “would cause an uproar,” yet he believed that the nation ultimately would remember that he had acted decisively after that meeting, and what he had said would prove unimportant. Other White House aides disagreed, notably Ziegler, Garment, Ken Clawson, Bryce Harlow, and Richard Moore. Pity, Nixon wrote, that they could not hear all the tapes, for surely then they would be convinced of his rectitude. Significantly, the President claimed that the concern of his advisers over the possible political reaction to the tapes clinched his decision. Sometime in December Nixon decided not to release any tapes. His notes for December 23 were headed by his own question: “Last Christmas here?”8
On December 19 the Senate Select Committee issued three subpoenas for additional presidential materials. The committee’s anxiety for tapes stemmed from a desire to publish as complete a report as possible, but pride also was at stake. Committee interrogators had uncovered the existence of the tapes; Chief Counsel Sam Dash bristled when the House Judiciary Committee refused to share the tapes it had obtained—although he had turned over all of his work product to John Doar and the House committee. The President promptly rejected the Senate committee’s subpoenas, arguing in his familiar fashion that he must protect the confidentiality of the executive against incursions by another branch. Federal judges subsequently rejected the Senate subpoena, provoking Ervin to complain about judicial interference with proper legislative processes.9
After several delays, including revelations of the missing tapes and the 18½-minute gap
, Buzhardt delivered seven tapes to Judge Sirica on November 26, one month after the President’s lawyer had agreed to comply with the subpoena. The Special Prosecutor’s office was pleased with this progress, and after Sirica listened to the tapes in camera, the prosecutors received them on December 21. Before releasing the material to the Special Prosecutor, the judge withheld some tapes, thus sustaining some of the President’s claims of executive privilege. Jaworski and his staff immediately realized that the tapes had strengthened their evidence against the President’s men; what was more, they believed they now had a case against Nixon—and it was in the tapes. Jaworski himself told Haig around Christmas that he believed Nixon guilty, a remark that left Haig “surprised” and also “visibly shaken,” according to Jaworski. Haig tried to dissuade Jaworski from his conclusion, but the Special Prosecutor told him that was impossible. After this, Jaworski recalled, Nixon “got tremendously jittery,” and much of the earlier spirit of cooperation dissipated.
Jaworski conducted his White House negotiations exclusively with Haig. Under Haldeman, the paper flow made it clear that the Chief of Staff executed the President’s wishes. Haldeman usually carried out those orders while exercising a minimum of discretion. No similar documentary record has been made available for Haig’s service. But some of the President’s onetime collaborators and longtime friends, such as John Mitchell, believed that Haig operated with far less constraint and much more discretionary room than his predecessor. Several years after the events, when Jaworski read Nixon’s memoirs, he was uncertain whether Haig had always fully conveyed his views and messages to the President.10
The Wars of Watergate Page 66
