St. Clair promptly appealed the ruling, thus launching what was to become United States v. Nixon, a suit that ended in the Supreme Court and gave the President the “definitive” ruling he had demanded, although not the one he preferred. St. Clair naturally carried the dispute to the Court of Appeals, but Jaworski petitioned the Supreme Court to take immediate jurisdiction. The procedure was unusual but not without precedent. The Supreme Court had taken such a path in the Steel Seizure Case in 1952, the last one that had involved broad considerations of presidential powers. Jaworski argued that the “imperative public importance” of the present issues required that the question be resolved during the Court’s present term; the Justices’ summer break was near, and they would not convene again until the beginning of the Court’s new term in October.
In a brief signed first by Charles Alan Wright and then by St. Clair, the President opposed the move, claiming that it would involve a “rush to judgment,” and quoting Chief Justice Warren Burger’s criticism of haste in the Pentagon Papers case in 1971: “prompt judicial action does not mean unjudicial haste,” the Chief Justice there said, in dissenting from the majority view critical of the government’s injunction against several newspapers. In a separate petition several weeks later (signed only by St. Clair), Nixon also asked the Court for a judgment of the grand jury’s right to name him as an unindicted co-conspirator. The request was merely a sideshow.42
President Nixon later described himself as wavering in this period, amenable to some compromise. He stressed that St. Clair and Buzhardt had urged him to stand fast. Eventually, he said, he came around to their view—a convenient rationalization, given his own worries about the June 23 tape.
During this period, Jaworski sensed that the growing hostility at the White House might well challenge his position. The President “was in a corner, and he was struggling,” Jaworski recalled. Prior to the release of the tapes, the White House acted as if the Judiciary Committee offered the greatest potential danger, and it paid little attention to Jaworski. But Jaworski’s initiation of subpoenas and court proceedings energized Nixon and his staff to confront the new challenge. The House committee, in the President’s mind, constituted chiefly a political threat, an arena in which he thought he could battle on equal terms, but the possibility of an unfavorable Supreme Court decision, one that projected finality, constituted a major danger. Nixon simply could not ignore the Court’s prestige and authority in constitutional matters.
Jaworski, for his part, did not treat lightly any signs of challenge to his authority. He reported to Senate Judiciary Committee Chairman James Eastland on May 20 that St. Clair had argued in Sirica’s court that Jaworski had no standing because the dispute was “an intra-executive dispute”—in short, Jaworski had no right to take the President to court. Jaworski reminded Eastland that he had taken the Special Prosecutor’s position with the understanding that the President would impose no such restrictions on him—an understanding accepted, he said, by Haig, Buzhardt, Bork, and the members of the Senate Judiciary Committee. Jaworski carefully noted that he did not challenge the President’s right to raise any other defenses, such as executive privilege. But St. Clair had recently told him that the “fact that the President has chosen to resolve this issue by judicial determination and not by a unilateral exercise of his constitutional powers, is evidence of the President’s good faith.” For Jaworski, that position ominously suggested that in spite of all agreements, the President retained an absolute right to thwart the Special Prosecutor.
Jaworski was in a combative mood. Saxbe and Bork wrote to him on June 5, assuring him that their guarantees of independence remained intact but that they thought St. Clair had reason to pursue the question of Jaworski’s jurisdiction. They urged him and St. Clair to work out an agreement for handling the jurisdictional problem. Jaworski responded with lengthy quotations from the Special Prosecutor’s charter which defined his authority. Compromise? “A highly significant principle is involved, as I see it, one that involves not only the integrity of others but mine as well—and accordingly, there is no room for compromise.” He suggested that St. Clair join “us” in agreeing that jurisdiction was present and that the Special Prosecutor had authority to act independent of the President. Privately, Bork believed that Jaworski’s threatening to resign over a jurisdictional dispute would have been “ridiculous.”43
Jaworski continued to raise the issue well into June, as he and St. Clair engaged in an acrimonious exchange of letters. St. Clair insisted that he had done his “duty” by challenging Jaworski’s jurisdiction. For the Special Prosecutor, however, that move had violated the letter and spirit of his agreements with the executive branch and had also violated his charter. Jaworski accused the President’s special counsel of “sophistry”—a lawyer’s euphemism for lying and deception. St. Clair firmly denied that he had tried to “hoodwink” anyone. He later asserted that he was merely protecting the “presidency”; a clear run for Jaworski, he thought, would have been “an irretrievable inroad into the authority of the President of the United States.”
The dispute perhaps raised Jaworski’s ire more than any single event in his tenure. Clearly, he viewed St. Clair’s words and actions as those of St. Clair’s master, and therefore as especially sinister in their implications. By raising the jurisdictional issue, St. Clair invited judicial intervention against the Special Prosecutor. After all, the Supreme Court had neither a vested interest in the Special Prosecutor nor had it made a commitment guaranteeing his independence. If the Court ruled that the Special Prosecutor had no jurisdiction, then to whom would he appeal for the preservation of his existence?
Leon Jaworski was unwilling to be fired on behalf of a vaguely defined principle of jurisdiction; for him, that principle no longer was in dispute, as it had been at the time of Cox’s dismissal. He believed that he had ironclad guarantees of independence. “If I had agreed to serve on any other basis, after what happened to Archibald Cox,” he told St. Clair, “I should have had my head examined.”44 Was the White House position on Jaworski’s jurisdiction its ultimate fallback to prevent further disclosures? Nixon knew of the dispute, according to St. Clair; his subsequent silence on the motive for raising the matter was rare.
After some sharp disagreement, the Supreme Court on May 31 granted Jaworski’s petition for a writ of certiorari. The House Judiciary Committee had begun its hearings; the Special Prosecutor remained intact; and now the President faced a formidable third front in the Supreme Court. A year earlier, the favorite White House metaphor consisted of circled wagons under assault from savages. Now, staffers referred to the slow, painful “death of a thousand cuts”; now, too, they had to deal with the “smoking gun,” the taped conversation of June 23, 1972, with all its potential for creating a mortal self-inflicted wound.
Nixon told a friendly interviewer at the time that he slept well, he had no “tingling nerves” or “churning stomach.” He offered a brave front, standing on his indispensability if the country were to seize “this moment.” If we did not, he said, “the world will inevitably move to a conflagration that will destroy everything that we’ve made—everything that this civilization has produced.” Meanwhile, Philip Buchen, a close adviser to Vice President Ford, put together a group to plan for a transition in the event that Nixon were removed or resigned.45 For the President, his advice to himself at the beginning of the year was all the more imperative: fight.
XVIII
“WELL, AL, THERE GOES THE PRESIDENCY.”
THE HOUSE JUDICIARY COMMITTEE: JUNE–JULY 1974
The time had come to think the unthinkable. Impeachment was an idea that slowly moved from absurdity to reality. Long shunned, even taboo in the minds of some, the very word triggered waves of shock and indignation. When President Nixon’s troubles mounted in April 1973, highly regarded liberal Senator Philip Hart raised the possibility of impeachment. New York Times columnist James Reston was alarmed that such an “eminently rational” man could be “smitten by
the spring madness.” Reston castigated the President and his detractors alike for their idle threats, their chip-on-the-shoulder attitude.
Just a week earlier, Attorney General Richard Kleindienst had contemptuously challenged senators to impeach the President when they had questioned Nixon’s interpretation of executive privilege. “You do not need evidence to impeach a President,” he said; Congress is the sole judge, and “that is the end, with or without facts,” he added. Kleindienst’s recklessness shocked Senator J. William Fulbright. “Politically,” he thought impeachment “disastrous,” and added that “nothing, I hope ever gets so far … that we would even consider using that course.”
Slightly more than a year later, however, the House Judiciary Committee turned its attention to that very consideration. Committee member Hamilton Fish remembered impeachment as “about the most difficult thing to imagine.” But for Fish’s colleague Ray Thornton, it was not unthinkable; he viewed impeachment as the system’s “safety valve.” Shortly after the Saturday Night Massacre, Thornton told his conservative constituents, most of whom had supported Nixon, that he hoped impeachment would not be necessary, yet he emphasized that he would “not hesitate to vote my convictions” if he believed the President had violated the Constitution. “The preservation of our system of government is more important to me than any man’s continuance in office, including my own,” Thornton said.1
Tradition, custom, and practicality strongly militated against impeachment. President Andrew Johnson’s acquittal by one vote discredited the process; the acquittal seemed so burnished in the American mind as to make impeachment irrelevant, a curiosity, at times even laughable. Twenty years after the Johnson trial, Lord Bryce described impeachment as “the heaviest piece of machinery in the constitutional arsenal,” and “unfit for ordinary use.” In 1960 a prominent presidential scholar thought that the next impeachment would involve not a high political crime but rather “a low personal” one, such as shooting a senator.2 No wonder, then, that Kleindienst so freely challenged the senators.
On a practical basis, impeachment was hard for congressmen to consider, given the President’s ability to influence vital events. During a lengthy impeachment proceeding, the President might pursue popular legislative goals, appealing to diverse interest groups; or he might pursue an activist role in foreign affairs and achieve a major diplomatic breakthrough. If he did, congressmen considering impeachment risked appearing as petty assassins bent on obstructing cherished programs and ideals. Still, the history of the Constitution, as well as practical considerations, provided some compelling reasons for considering the impeachment of Richard Nixon.
The Constitution boldly experimented in its delegation of governmental authority, and in no area more so than that of executive power. Republican governments had a checkered, even sordid, history prior to 1787. They had floundered and collapsed, largely as a result of executive mismanagement or tyranny. The “president” designed by the framers offered a bold, innovative approach for establishing an equilibrium between power and restraint. Presidential power to “execute” the laws, to operate as “commander-in-chief” of the armed forces, and “to make treaties” offered the basis for a broad, generous construction of executive authority. Given the Framers’ recent experience with George III, however, neither they nor their constituents conceded “all sail and no anchor” to the office or the man. James Madison pointedly reminded Americans in Federalist 48 of the dangers to liberty “from the overgrown and all-grasping prerogative of an hereditary magistrate.”
The basic constitutional formula for presidential accountability lay with the prescribed mechanisms of checks and balances, such as congressional authority over appropriations, the Congress’s confirmation of executive officers and consent to treaties, and its ability to override a presidential veto. But the provision for impeachment perhaps best reinforced accountability, as it implicitly rejected the traditional English doctrine that “the king could do no wrong.” William Blackstone had summed up that tradition when he wrote in the eighteenth century that the “king cannot misuse his power without the advice of evil counsellors, and the assistance of wicked ministers.” Those counsellors and ministers might be impeached, but not the king himself.
The history of English impeachment is the story of the drive against absolutist pretensions, the corresponding rise of parliamentary supremacy, and the eventual discarding of the practice. Parliament used impeachment to remove the king’s “wicked ministers” throughout the protracted seventeenth-century struggles with the Crown, but the rise of cabinet government, serviced by members of Parliament, made the device unnecessary, as Parliament’s own majorities could repudiate “wicked ministers.” When the conflict between royal power and Parliament abated by the early eighteenth century, Parliament had established the principle that the king “could not assume responsibility for the unpopular and unsuccessful actions of his ministers.” The king might do no wrong, but those who acted in his name were accountable. Ironically, as Americans incorporated their impeachment formula into the 1787 Constitution, Parliament launched what was to be its last great impeachment trial—an eight-year proceeding to remove Warren Hastings as Governor-General of the East India Company.3
The American constitutional formula for separation of powers ran precisely counter to the English development of the fusion of powers and parliamentary supremacy. The Constitution’s framers rejected executive participation in the legislative branch, thus ensuring separation and providing, in Congress, a way for impeachment to begin and proceed. Combining their senses of history as well as their experiences, the Framers and the state ratifying conventions constructed a careful impeachment procedure and a substantial body of commentary on its justification and meaning. Article II, Section 4 of the Constitution provided that the President and all civil officers might be removed following impeachment and conviction for “treason, bribery, or other high crimes and misdemeanors.” The House had the sole power of impeachment; the Senate had the sole power to try the impeached; and the Chief Justice presided over the Senate in the event of a presidential impeachment trial. The constitutional reference to “high crimes and misdemeanors” is not language historically vague in source or meaning. Its origins can be traced to an impeachment proceeding in England in 1386 and amounted to a catalogue of political crime. The language has been best described as “words of art confined to impeachments, without roots in the ordinary criminal law.”4
Unlike later generations, the Framers had no difficulty in recognizing the political nature of the process. They viewed tyranny and abuses of power as familiar political phenomena, to be treated accordingly. Political crimes required political solutions. From the outset, the Framers advocated impeachment as the most effective means for limiting presidential power and for removal; it was the ultimate peaceful defense against executive tyranny. The evidence overwhelmingly points to the conclusion that the framers provided future generations with a powerful, flexible tool for determining malfeasance and abuses by officials. An impeachment inquiry did not (or need not) presume guilt and removal; the audit of executive power simply counted as another form of vigilance for maintaining liberty. To read the Constitution’s words in any other way would be to transform historical context and meaning into semantic theorizing and legal abstraction. It also would miss the point that the Framers were practical and realistic politicians. Human nature being as it is, Patrick Henry reminded his fellow Virginians, we could not always expect to be governed by “good” presidents. “Without real checks,” Henry said, “it will not suffice that some of them are good.”5
Benjamin Franklin whimsically offered impeachment as a practical alternative to assassination. As usual, Madison best blended the historical and practical imperatives. He thought impeachment “indispensable” to protect the nation against the President’s “incapacity, negligence or perfidy.” He might suffer diminished capacities; he might betray the nation to foreign powers; or, Madison added, “he might pervert his a
dministration into a scheme of peculation or oppression.” The last caution against “oppression” encapsulated four centuries of English constitutional experience with impeachment and the political meaning of “high crimes and misdemeanors.” Madison’s fellow Virginian George Mason feared that the President might “subvert the Constitution,” and proposed adding “maladministration” to the catalogue of impeachable offenses. Madison thought the idea a bit vague, however, and as the Constitutional Convention ended, he proposed that impeachment be reserved for “high crimes and misdemeanors”—words familiar and understandable to the convention.6
The rejection of Mason’s suggestion seemed to rule out impeaching a president for “petty misconduct” or for want of judgment. In the North Carolina ratifying convention, James Iredell (a future Supreme Court Justice) thought that impeachment “must be for an error of the heart, and not of the head.” Iredell’s dictum became, in time, the standard for requiring evil motives as a basic criterion for impeachment. In South Carolina, Charles Cotesworth Pinckney thought that impeachment could lie for those “who behave amiss, or betray their public trust.” In the Virginia convention, Madison lent his authority to the proposition that “if the President be connected, in any suspicious manner with any person, and there be grounds to believe that he will shelter him, then he might be impeached.” Madison, it should be remembered, had thought Mason’s “maladministration” notion too vague. Quite simply, in all their debates, the Framers acknowledged the subjectivity of impeachment proceedings.7
The Wars of Watergate Page 70
