The Wars of Watergate

by Stanley I. Kutler

  The report brusquely swept aside the “practical” matters previously thought to militate against indictment—“in essence, political considerations,” the staff declared rather disdainfully. It saw such a course as “formulating public policy in private,” a role for which they claimed a lack of “expertise,” as if prosecutorial discretion was an art or science beyond their ken. Certainly, it was one they quickly mastered. The staff itself disagreed on the indictability of a president but unanimously believed it should recommend a grand-jury presentment that would state the determination of Nixon’s culpability and the conclusion that he would have been indicted had he not been president. Having rejected “practical” and “political” considerations, the staff then offered just such reasons for recommending a grand-jury presentment: it would avoid the spectacle of a presidential trial and possible imprisonment; it would not disable the President or automatically remove him from office without an impeachment; it would focus issues for Congress, if Congress were to consider impeachment, and “responsibility for further action would be placed squarely upon Congress.” The contest was for winning public opinion. Presentment, the staff concluded, would enable a “primary truth” to emerge: “but for the fact that he is President, Richard Nixon would have been indicted.”31

  The day before, February 11, 1974, Judge Sirica expressed concern to Jaworski that the grand jury might do something irresponsible. Sirica now was convinced that the House was the proper body for dealing with the President. Jaworski agreed in part, but suggested that the grand jury might request that it be authorized to refer its findings to the Judiciary Committee.32

  The primary Watergate grand jury had been assembled on June 5, 1972 and had soon found itself absorbed, if not overtaken, by events. Twenty-three citizens of the District of Columbia made up the jury, with blacks outnumbering whites almost three to one, reflecting the racial make-up of the area’s population. Eleven of the jurors worked for the government and continued to draw their salaries, in addition to their $20 per diem remuneration as jurors (later raised, but not retroactively, to $25). The U.S. Attorney’s office selected the foreman, Vladimir Pregelj, a Yugoslavian refugee who worked in the Legislative Reference Service in the Library of Congress as an economic analyst.

  The jurors immediately developed a comfortable, friendly relationship with the original U.S. Attorney’s team of Earl Silbert, Seymour Glanzer, and Donald Campbell. They readily asked questions of witnesses and freely discussed matters with the prosecutors afterward. The relationship was informal and friendly—“we were all kind of buddies,” the foreman recalled.

  That ambience changed after Cox’s team took over, replacing Silbert and his colleagues. The jurors at first resented the new prosecutors. Similarly, one of the prosecutors became upset when the jurors posed questions of their own to witnesses without clearing them with the prosecutors. Another thought the jurors often were too eager to act and were not always mindful of the fact that the prosecutors knew more than they. In time, however, the jurors and the new team reached an accommodation, and the work proceeded smoothly. The Watergate defendants and their lawyers viewed the grand jurors with hostility—convinced that they could not get a fair trial. But Jaworski praised the jurors as “very objective, very constructive, and very sensible”; their questions, he said, showed their “deep concern, their abiding determination to do what was right.”

  The jurors sat for thirty months. Judge George Hart discharged them in December 1974, noting that they had served longer than any other federal jury. For their part, the jurors did not seem to mind the ordeal and appreciated the historic importance of their role.33

  On February 25, 1974, Jaworski faced the grand jurors for the first time. Since mid-December, he had believed that Nixon had been “criminally involved” in the cover-up. Early in January, his staff compiled a 128-page report documenting the President’s role. Jaworski realized the prevailing strong sentiment for an indictment of Nixon, particularly on the part of the grand jury’s most articulate members. A straw poll of the jurors present showed a 19–0 vote in favor of an indictment—although they recognized that the evidence might not yet be sufficient for a successful prosecution. They bristled at the thought of being a “rubber stamp.” The growing hostility of Jaworski’s staff toward the President, now buttressed by the growing evidence of Nixon’s apparent complicity in the cover-up, made the Special Prosecutor’s task all the more lonely. He knew, as he told the jurors, that of all the evidence presented, the President’s conversations undoubtedly had made the most enormous impact on their minds.

  But Jaworski pursued his course in his own fashion: cautious and respectful of the President and the presidency, he argued strenuously against indictment. The constitutional doubts, he maintained, were substantial, and undoubtedly an indictment’s constitutionality would be litigated, leaving, Jaworski said, “trauma” within the nation and “scars” on the presidency. Jaworski rankled some of the jurors by focusing on the constitutional issue, and he disappointed some of them by his refusal to deal with the weight of the evidence. Left unspoken was the possibility that a presidential indictment might jeopardize other indictments and, most significantly, the damage to the credibility of the Special Prosecutor should he lose a case against the President for lack of conclusive evidence.

  As a compromise gesture, Jaworski told the grand jurors that they could give a report of the evidence and their views about the President to Judge Sirica for eventual transmittal to the House Judiciary Committee. Several jurors expressed their disagreement with Jaworski: they were, he later noted, “appalled by what they [had] heard.” Foreman Pregelj, in particular, challenged Jaworski; Jaworski thought him genuinely “shocked.” The jurors eventually followed the Special Prosecutor’s recommendation—no indictment, but a report to the House. In addition, they secretly named the President as an unindicted co-conspirator. The prosecution believed it essential to name Nixon in order to make his tape recordings admissible as trial evidence. Yet Jaworski feared that a public revelation of Nixon’s status as unindicted co-conspirator would give the President an opportunity to claim that the action had prejudiced his case in the House.34

  That same evening, February 25, Nixon held his first televised press conference in four months. Immediately, reporters raised the issue of impeachment. Nixon said he believed that the Constitution precisely defined an impeachable offense and meant, according to his lawyers, that he had to be guilty of a criminal offense. As if to affirm his innocence to the grand jurors, the President doggedly stated that “I do not expect to be impeached.” He reiterated that he would cooperate with the House, “consistent with my constitutional responsibility” to defend the office of the presidency against any attempts to weaken it and also to safeguard the ability of future presidents to carry out their responsibilities.

  The inevitable question came when a reporter asked if the President would resign to avoid a political disaster for his party. The question well served Nixon, for it enabled him to raise the issue of “the presidency” above mere partisan concerns. “The stability of this office, the ability of the President to continue to govern, the ability, for example, of this President to continue the great initiatives which have led to a more peaceful world,” all were more important than the success of a political party, he insisted. The “presidency” must not be “hostage” to the momentary “popularity” of any incumbent. The work must be continued, he concluded, “and I’m going to stay here till I get it done.”35

  Two months later, in early May, Jaworski informed Haig that the President had been named an unindicted co-conspirator. Jaworski had been pleased that the news had not leaked; it was staggering to think of newspaper headlines broadcasting the President’s “indictment.” The news “visibly perturbed” the President and his aides, Jaworski learned. Nixon thought that the Special Prosecutor had deceived Haig, for allegedly Jaworski had told the Chief of Staff that no one in the White House had been indicted. The President accused Jaworski of
blackmail by threatening to reveal the grand jury’s action unless more tapes were produced. Jaworski, of course, had in fact prevented the President’s indictment—a fact known to the White House at the time. Nixon thought he knew the real object of Jaworski’s threat: the Special Prosecutor had demanded incriminating tapes, including the crucial June 23, 1972, conversation with Haldeman, a conversation which the President undoubtedly had listened to, and in which he and Haldeman had concocted the plan for using the CIA to thwart the FBI’s investigation of the Watergate burglary. Haig probably knew the contents of that tape; the same day he met Jaworski, he provided a copy to the President. Haig later claimed that Nixon told him the next day that he was too busy trying to run the country and would not listen to any more tapes. But Nixon later admitted that he had heard the June 23 tape.

  According to Nixon, St. Clair opposed any further release of material, and at various times, the President attempted to blame his advisers for urging him to resist the House committee and the Special Prosecutor. St. Clair never directly responded to that criticism except to note that if Nixon did not like the advice, he could always replace his lawyer. For his part, St. Clair claimed never to have known the contents of the June 23, 1972 tape until August 1974. Had he known, he said, he would have urged an early release instead of delaying until the tape had to be pried loose by a Supreme Court order—and following an impeachment vote in the Judiciary Committee. Nixon’s own memory and records provide ample evidence of his conviction that he had to withhold the additional tapes. He knew he could not compromise on these particular tapes by providing only excerpts. “[H]ow we handle the 23rd tape is a very difficult call because I don’t know how it could be excerpted properly,” he noted in a July diary entry. For good reason: the tape segment, eventually made public in August, became famous as the “smoking gun.”36

  * * *

  The unindicted co-conspirator charge had overshadowed the grand jury’s proceedings. The jurors had also returned indictments against a former Attorney General and the President’s three closest aides, as well as others. The indictments came down on March 1. The counts ranged from conspiracy and obstruction of justice to perjury and false declarations to the FBI. The jury listed forty-five overt acts of conspiracy to cover up the true nature of the involvement of the Administration and the re-election committee with the break-in.

  The defendants—Mitchell, Haldeman, Ehrlichman, Colson, Robert Mardian, Kenneth Parkinson, and Gordon Strachan—pled not guilty before Judge Sirica on Saturday morning, March 9. (Jaworski had opposed indicting Mardian and Parkinson, but he could not be “too oppressive to suit” his staff, he remembered. Assistant Attorney General Mardian’s subsequent conviction was overturned, and CREEP counsel Parkinson was acquitted, much to Jaworski’s satisfaction.) The court released the accused on their own recognizance; first, however, they had to be fingerprinted and photographed at FBI offices. The Special Prosecutor found himself moved by the proceedings—and pained in his pride of profession, since all the defendants but Haldeman were lawyers. Jaworski saw Mitchell as a “broken-down old man” and the once-ruthless Colson as “a frightened man”; while Haldeman and Ehrlichman “tried to maintain their bravado.” When Jaworski entered the court, Mitchell rose and greeted him. “You must be very busy these days,” Mitchell said. “Yes,” Jaworski responded, “more so than I wish.” He found the moment “heartrending”; he “had always liked John Mitchell.”37

  Jaworski’s conservative Texas friends had great difficulty comprehending his role. Shortly after the indictments came down, several of them telegraphed the Special Prosecutor, acknowledging that Watergate “was a most stupid thing,” but that the President’s success in foreign policy made it important that he remain in office. Jaworski gently replied that the telegram should properly have gone to the House Judiciary Committee, but he also insisted that Watergate involved “not stupid, but serious offenses.” He had been charged “by law” to investigate serious law violations and “other matters,” he told his friends.38

  The day after the indictments, Vice President Ford said that the grand jury’s sealed report should be sent to the House Judiciary Committee—the “proper place,” he said, to determine President Nixon’s role in the Watergate affair. Increasingly since late 1973, the committee had become the focal point for those determined to end the agony of Watergate. The President’s friends and most extreme enemies made for strange bedfellows on this solution. His enemies apparently favored turning to the committee as the launching place for an effort at impeachment; his friends apparently thought that the committee would deem impeachment an undesirable or impractical step.

  As the talk about impeachment grew, Archibald Cox, true to the lawman’s abiding faith in legal process, warned of the necessity for assuring the public that the President was treated fairly. Speaking in January, he noted that a majority of Americans believed Nixon had been guilty of participating in the cover-up, but a majority also opposed his removal by impeachment. For Cox, this translated into an “intuitive understanding that impeachment is extraordinary,… legitimate only upon some equally fundamental wrong,” that would make the President’s continued service unacceptable to a broad national consensus. If impeachment were to be a serious matter, Cox warned, then the time had come to move away from “the fun of factual disclosures” to the more serious business of creating a “substantive law of impeachment.” This, of course, was the domain of the House Judiciary Committee. Its task, Cox concluded, was “to sense the as-yet-unstated moral intuition” of the nation, and formulate it into a code of conduct for judging the President.39

  But the members of the House Judiciary Committee, particularly the seasoned veterans, preferred the old political maxim festina lente—“make haste slowly.” They realized they had neither the time nor the moral authority to create Cox’s “substantive law of impeachment.” Practical imperatives of political action, and not the intellectual symmetry of theory and precedent, dictated the course of the committee’s progress. The thorny political thicket of impeachment could be raised only by irrefutable evidence. Now, however, the trickle of material assembled by the staff beginning in late 1973 turned into a flood as the Judiciary Committee received, first, the grand-jury material and then the President’s own submission of new tape transcripts.

  On the heels of the release of the transcripts, the White House again erupted with rage toward Leon Jaworski and the Special Prosecution Force. Haig called Deputy Attorney General Lawrence Silberman on April 30 to report that St. Clair had noted discrepancies between Dean’s Senate testimony and his words as recorded in the tapes. St. Clair believed that Dean had shifted his testimony after discussions with Cox, and he wanted copies of internal memos of the Special Prosecutor’s office. “If Leon wants to get rough,” Haig said, “we will get rough.” He never mentioned the purpose of his call, but Silberman considered it a warning of a growing confrontation—and a hint that the White House expected help from the Justice Department. Silberman later called St. Clair directly to remind him that the Special Prosecutor’s charter limited the authority of the Attorney General, emphasizing that he and Attorney General Saxbe considered themselves bound by the charter. St. Clair complained that the Special Prosecutor had to be responsible to someone in the executive branch; Silberman, however, forcefully reminded him that Saxbe had entered into a “compact” with Congress, and that the President must abide by it.

  As soon as the call to St. Clair ended, Silberman received one from the President, who wanted to know something about a pending Special Prosecutor investigation of John Connally. After speaking to Henry Petersen and hearing his approval of the inquiry, Silberman called the President back. Nixon promptly demanded that Silberman dismiss Petersen, told him to call Haig in an hour, and hung up. When Saxbe got the news, he suggested his deputy “tell the President to go piss up a rope.” Petersen provided Silberman with more information about the Connally case and stated that the Criminal Division fully supported Jaworski. Silberman
then called Haig again, said that the President had “misunderstood” the matter, and made it clear that firing Petersen made no sense and that he would not do it. Haig promised to speak to Nixon. He called the Justice Department three hours later, instructing Silberman to take no action against Petersen and declaring that the President never intended to fire him. Haig asked Silberman to keep silent about that issue.40 Who was in charge?

  The President’s wrath against the Justice Department barely concealed his primary target: the Special Prosecutor. His fury paralleled the release of the tape transcripts, an act he thought should end demands for additional materials. On April 16, two weeks before the release, Leon Jaworski had issued a subpoena for sixty-four additional tapes, claiming that they constituted necessary evidence in the pending criminal trial of the President’s aides. Nixon’s lawyers appeared in Sirica’s court on May 2 to oppose the subpoena. Four of the Watergate defendants, however, filed responses supporting the Special Prosecutor’s subpoena, provided that the materials produced be made available in full to them. The White House attorneys resorted to familiar refrains: courts had no authority to rule on the scope of executive privilege, and the dispute was an intra-branch controversy wholly within the jurisdiction of the President to resolve. St. Clair argued in camera on May 14, insisting that the President had “a right to balance the public interest involved in exerting executive privilege on the one hand against the right of defendants in a pending case on the other hand.” It seemed that the executive-privilege argument had been answered by the Court of Appeals in October, but apparently the matter had not been settled to the satisfaction of the President. His authority over the Special Prosecutor had not been litigated, but supposedly it had been resolved by the creation of Jaworski’s charter and the agreement between Saxbe and the Senate Judiciary Committee. Those answers satisfied Sirica. He denied the President’s motion on May 20 and ordered compliance by May 31, subject to appellate review.41