The Wars of Watergate

by Stanley I. Kutler

  The men of 1787 recognized the dangers of executive authority—and they meant to scrutinize that power closely. Determining whether it had been abused ultimately posed questions of allocating power—in other words, it posed political questions. In matters of state, political and legal causes may well be indistinguishable. The Framers frankly acknowledged the political quality of impeachments—and their potential for abuse—but they willingly assumed the risk. The grounds for impeachment, Alexander Hamilton wrote in Federalist 65, “are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” Such proceedings, Hamilton acknowledged, would “seldom fail to agitate the passions of the whole community,” carrying the danger that the decision to impeach might be made on the strengths of competing interests or factions.

  The Framers incorporated impeachment into the Constitution as a means for questioning the President’s general conduct as well as of exposing his violations of specific laws or constitutional provisions—in short, impeachment was their formal means for ensuring accountability to the limitations of power. Presidents might, as Madison noted, develop schemes of “peculation or oppression.” But what indeed is “oppressive”? Neither dusty statute books nor criminal codes nor the Constitution offers a clear legal answer. Accordingly, Hamilton concluded that an impeachment or trial was an appropriate “method of national inquest into the conduct of public men.” The Framers knew that men are not angels; they had no reason to bet differently on presidents.

  Whatever the promise and intent of impeachment, by 1819 Thomas Jefferson thought the process cumbersome and archaic. Experience had shown, he wrote, that impeachment was “not even a scare-crow.” Certainly, Jefferson did not believe that any president who had served thus far (Washington, John Adams, Madison, Monroe, and, of course, himself) deserved impeachment. But by that date, Jefferson had come to distrust the federal judiciary and its aggrandizing behavior. In 1803 the House impeached and the Senate convicted Federal Judge John Pickering, notorious for his fits of insanity and drunkenness—hardly much of a precedent. The next year, Jefferson and his congressional lieutenants brought proceedings against Supreme Court Justice Samuel Chase. The House impeached Chase, but the Senate acquitted him. For a variety of reasons, Jefferson did not vigorously support the action, but in later years, his memory of Chase’s behavior undoubtedly contributed to his bias against the judiciary.

  Chase showed blatant partisanship when he presided in the trial of a prominent Jeffersonian for violation of the Sedition Act of 1798. This episode was at the heart of the impeachment proceeding against the jurist. Among the eight impeachment articles, the House charged him with “an indecent solicitude … for the conviction of the accused,… highly disgraceful to the character of a judge, as it was subversive.” The Chase impeachment occurred amidst highly rancorous partisan wrangling. The Federalists, still very much alive, thought—with reason—that the attack upon Chase was but an overture to a full-scale assault upon the Supreme Court by their political adversaries, and that Jefferson’s particular target was his kinsman Chief Justice John Marshall. Chase’s defense counsel and Federalist senators staked some of their case on the partisan issue. The situation was ironic. The Federalists had passed the Sedition Act in large part to quash partisan opposition; now, they conveniently appealed to the legitimacy of political division. For their part, many of the Jeffersonians realized the desirability, even the necessity, for a “new libertarianism” that would insulate political criticism from official reprisal. Both sides thus acknowledged that repression inevitably was circular and contagious. Tolerance served ephemeral majorities and minorities equally well.

  Chase’s defense substantially argued that impeachment required the commission of an indictable crime, a proposition that would effectively narrow the scope of impeachment. The insistence on proof of a crime carried the day; of eight impeachment articles, the managers’ greatest success came on a 19–15 vote against Chase on one count, still short of the two-thirds majority required for conviction. The historical evidence, however, is impressive in showing that neither English practice nor the framers of the American Constitution required an indictable crime as a basis for impeachment. Furthermore, by the standards of any day, Chase’s personal conduct toward the defendant had been oppressive and deserved punishment.8 But the reality is that the Senate acquitted the Justice and severely circumscribed the reach of impeachment. Chase’s trial, nevertheless, resulted in a political retreat of the judiciary, and judges following him have generally accepted a cloistered political life. Jefferson was too harsh: impeachment did have some value as a “scarecrow.”

  The impeachment and trial of Andrew Johnson underlined the hazards of impeachment as a partisan process. Partisanship, of course, is a two-way street. In 1804 no Federalist voted to condemn Chase; similarly, in 1868 no Democrat voted for the impeachment or conviction of Johnson. Indeed, the Senate would have convicted Johnson had the vote been strictly along party lines; Johnson’s survival depended on the acquittal votes of seven “recusant” Republican senators.

  But if the fires of partisanship had not been banked in the 1860s, Congress had learned something from the Chase proceeding: ten of the eleven articles voted against Johnson alleged indictable offenses. The exception—Article X—comfortably fit Hamilton’s category of political crimes. Congress charged in that article that the President had designed and intended “to set aside the rightful authority and powers of Congress, [and] did attempt to bring into disgrace, ridicule, hatred, contempt, and reproach, the Congress of the United States, [and] to impair and destroy the regard and respect … for the Congress.” The President’s speeches, the House charged, were “intemperate, inflammatory, and scandalous,” and had brought his office into “contempt, ridicule, and disgrace.” The Senate never voted on that proposition.9

  As the House Judiciary Committee approached its impeachment inquiry a little more than a century later, both sides appealed to a usable past. President Nixon and his defenders found comfort in the partisanship of the Chase and Johnson impeachments, but primarily they turned to the narrow interpretation requiring the charge of a crime. That interpretation’s fairness and its simplicity offered an understandable doctrine for politicians and laymen alike. Alexander Hamilton’s lofty rhetoric about “political crimes” and “political” proceedings had little chance of resonating in a society that often used “political” as a pejorative word. Republican partisans conveniently forgot Gerald Ford’s 1970 assault on Justice Douglas and his contention that the House alone could identify an impeachable crime. With similar ease, Democratic partisans forgot the arguments advanced by Douglas’s lawyers, ones Democrats had confirmed, which turned on a narrow restriction of the House’s powers. Impeachment, the Democratic-dominated committee concluded in 1970, was for criminal offenses only and was not a “general inquest” into the behavior of judges.

  The Judiciary Committee staff, controlled by the Democratic majority, submitted its appeal to history on February 21, 1974. The report argued that the framers had included impeachment as a means of protecting the Constitution from unforeseen presidential abuses. “Impeachment,” it noted, “is a constitutional safety valve; to fulfill this function, it must be flexible enough to cope with exigencies not now foreseeable.” The report repudiated the criminal-indictability doctrine and closely approximated Ford’s 1970 position.

  James St. Clair and the White House lawyers dutifully provided the committee with their version of history and constitutional law. An indictable crime was a necessary prerequisite for impeachment, St. Clair argued; any other conclusion placed “a subjective gloss on the history of impeachment that results in permitting the Congress to do whatever it deems most politic.” Nixon appeared at a March 6 press conference and took comfort in his lawyers’ report. But he d
id not want people to believe that he favored “a narrow view” of impeachment. That, he feared, “might leave in the minds of some of our viewers and listeners a connotation which would be inaccurate. It is the constitutional view,” he insisted, not just a narrow one. The President apparently knew something others did not, for he added: “The Constitution is very precise.” Nixon noted that Senator Ervin agreed with the indictability doctrine; but he ignored Ervin’s pointed restraint from commenting on the factual question, whether the President had committed an indictable offense.

  After nearly two hundred years of constitutional exegesis, the meaning of the impeachment power remained debatable. Representative William Hungate (D–MO) later complimented the House committee’s staff on its presentation, but he added that no one could tell “a freely elected Member of this Congress how to define impeachment.” The profusion of reports and views unexpectedly confirmed Gerald Ford’s basic proposition: the House alone would decide what constituted a basis for impeachment.10

  The first impeachment resolution was introduced in the Congress by Representative Robert Drinan (D–MA) on July 31, 1973, not coincidentally, it seemed, just after Alexander Butterfield revealed the presidential taping system. Perhaps the suspicions regarding the President might be confirmed after all. Drinan, a Catholic priest and constitutional-law professor, called for an inquiry into the Watergate scandals, the secret bombing of Cambodia, impoundment of allocated funds, the unauthorized taping of conversations, and the development of a “super-secret security force” in the White House.11

  William Cohen (R–ME) respected Drinan as a man in the forefront on issues yet realized that he had little support at the outset. But following the Saturday Night Massacre in October 1973, four impeachment bills appeared in the House hopper, including one from California Republican Paul McCloskey. The new resolutions repeated Drinan’s charges but added others denouncing the President for breaking his trust with Congress when he dismissed Archibald Cox. Edward Hutchinson of the Judiciary Committee told a political lieutenant that it was not likely the House would impeach, despite the “very vocal minority to the contrary.” House Majority Leader Thomas O’Neill later believed that the Republicans made a tactical blunder by not calling up a vote on Drinan’s resolution, for it surely would have been defeated, affording Nixon some measure of vindication and leaving the impression that only a cranky, partisan few favored impeachment. But Gerald Ford told O’Neill that the White House did not want a vote, fearing that people would mistake smoke for fire.12

  The Judiciary Committee faithfully mirrored the House. The membership represented a broad geographical spread, with a proportional share of activists and back-benchers and an ethnic and racial mixture, and reflected a variety of ideological commitments. The leadership was undistinguished. Committee members rarely criticized the two ranking members, both of whom were known for their party loyalty. But Chairman Rodino carefully refrained from partisan or judgmental comments during the inquiry period. He had his ear to the ground within his committee, as well as outside. One Southern Democrat remarked that if O’Neill’s aggressiveness had prevailed, Rodino “would have lost the necessary middle of the roaders that shaped [impeachment] in the final analysis.” He added that Rodino’s style “really paid off in the long run.” Ranking Republican Hutchinson, on the other hand, made his loyalty to Nixon clear yet occasionally obliquely criticized the White House. In March he stated that he would advise the President that executive privilege could not stand in the way of an impeachment inquiry. Earlier, Hutchinson had told one of his constituents, baby-food manufacturer Dan Gerber, that he considered the White House’s handling of the situation incompetent and “incredible.”13

  For Hutchinson, intelligent but not very energetic, leadership essentially consisted of a passive and feckless faith that no Republican would vote to impeach the President. Consequently, he had little understanding, let alone sympathy, for colleagues who demanded a greater measure of cooperation from Nixon. Hutchinson had become the ranking minority member as a result of a coin-flip with Congressman Robert McClory, and he often deferred to the greater activism of his colleague. Nonetheless, when McClory informed his fellow Republicans in a party caucus that he had begun to believe the President had “technically” violated the Constitution, Hutchinson shot back: “Come on now, there’s no nice way you can impeach a President of the United States.” Hutchinson thought that the Nixon-haters and “some very influential groups” had determined to oust the President at any cost. Yet for months he contrarily asserted that the Democrats had a cynical desire, not to impeach Nixon but instead to stretch the proceeding out in order to fuel a useful political issue.14

  Most Democrats on the Judiciary Committee generally identified with the party’s liberal wing, including Harold D. Donohue (MA), Jack Brooks (TX), Robert W. Kastenmeier (WI), Don Edwards (CA), John Conyers, Jr. (MI), Joshua Eilberg (PA), Jerome R. Waldie (CA), Robert F. Drinan (MA), Charles B. Rangel (NY), Barbara Jordan (TX), Elizabeth Holtzman (NY), and Edward Mezvinsky (IA). A more centrist northern and western group included William L. Hungate (MO), Paul S. Sarbanes (MD), John F. Seiberling (OH), George E. Danielson (CA), and Wayne Owens (UT). Southerners Walter Flowers (AL), James R. Mann (SC), and Ray Thornton (AR) rounded out the Democratic majority.

  Two Republican Judiciary Committee centrists from Illinois, Robert McClory and Tom Railsback, had feuded for years. They competed throughout the inquiry for leadership within the minority, and particularly among those Republicans willing to consider impeachment. Several Republicans labored to champion the President’s cause. Charles E. Wiggins (CA), who represented part of Nixon’s old congressional district, quickly emerged as the President’s most able defender on the committee and clearly became the leader of the loyalists. He generally could count on support from Henry P. Smith III (NY), Charles W. Sandman, Jr. (NJ), David W. Dennis (IN), Wiley Mayne (IA), Lawrence J. Hogan (MD), Trent Lott (MS), Harold V. Froehlich (WI), Carlos J. Moorhead (CA), Joseph J. Maraziti (NJ), and Delbert L. Latta (OH). Hamilton Fish, Jr. (NY), M. Caldwell Butler (VA), and William S. Cohen (ME) displayed some independence from the outset, asking pointed questions and sometimes straying from a party-line vote.

  John Doar, the House committee’s special counsel, had begun to organize his own staff at the end of 1973. He thus bypassed the committee’s existing structure, as well as the members’ own staff workers, a decision that resulted in unnecessary rivalries and eventually colored the relationship between Doar and the congressmen. At first, Doar seemed inclined not to use Richard Cates, who already had done much to persuade Rodino that a case for impeachment could be made. Cates had established substantial rapport with the members, a relationship that spanned ideologies and parties. Doar apparently sensed Cates’s standing, as well as his ability, and retained him as Senior Associate General Counsel, along with Bernard Nussbaum.

  By March 1974 Doar had hired a staff that numbered more than 100 persons, almost half of them lawyers. The staff, Democrats and Republicans alike, had no views on impeachment when hired—at least for the record. Forty-three lawyers worked on impeachment matters; eighteen were from Harvard, Yale, and Columbia; and only four came from law schools west of the Mississippi—statistics that undoubtedly reinforced the President’s hostility toward East Coast elites. At the same time, St. Clair directed a White House legal staff of approximately fifteen—while busily engaged on another front with Leon Jaworski and the Watergate Special Prosecution Force.

  In the committee, Doar divided his staff into two groups: one provided legal support for him and directed research into constitutional issues, while the other (largely headed by Cates) conducted various investigations of allegations involving the Plumbers, the Watergate break-in and cover-up, Nixon’s personal finances, White House use of federal agencies for improper political purposes, and other alleged instances of misconduct such as the Cambodia bombing and the impoundment of funds.15

  By most accounts, Chairman Rodino found in John Doar a man
who matched his own caution. Committee members and staff were at sea for months trying to understand Doar’s direction and intent. Congressman Butler, who eventually voted to impeach the President, thought Doar to be like John Foster Dulles: “dull, duller, dulles.” He also believed that Doar favored impeachment; for Doar to enter the contest without ending in impeachment, Butler said, “would be like playing in the World Series and not hitting a home run.” Butler conceded that the staff had struggled to maintain objectivity, yet some observers, then and later, insisted that Doar was committed from the start to carrying out impeachment. One staffer, who claimed a place in Doar’s inner circle, wrote that Doar and this group never had any doubt about impeachment and would proceed to recommend it unless the President somehow presented overwhelming evidence of his innocence. She admitted some uncertainty as to when Doar “made his decision” to recommend impeachment, whether in March or July. Whatever Doar’s true feelings, he left behind him a wake of conflicting testimony as to his intelligence and ability. Fish praised him as a “giant,” while Flowers considered his work “tedious” and his performance like a “shaggy-dog joke.”16

  Members complained that Doar treated them like dull-witted schoolchildren, and veteran staff people found him oblivious to the sensibilities of the members. A prominent staffer thought it symbolic that when Doar made his presentations to the committee, he usually occupied the chair reserved for witnesses. In the meantime, the members indicated that they were wary of Doar by consulting with the regular staff while he spoke. At times, the procedure resulted in the committee staff’s directing questions at members of the inquiry staff. For some, the contest eventually appeared as Doar vs. St. Clair, with the committee sitting as a jury.17

  Much of the criticism of Doar centered on his desire to treat the committee as a grand jury, with himself as the members’ lawyer and mentor, much like the relation of the Special Prosecutor to the Watergate grand jury. Doar rejected any opportunity for the Nixon defense and its lawyers to make a case. The strategy eventually led Doar to deny St. Clair the right to cross-examine any witnesses that appeared before the committee, or to make any presentment of his own. This approach virtually dictated an impeachment, allowing the Senate then to evaluate the guilt or innocence of the accused. Doar betrayed his insensitivity to the political calculus: no member dared vote for impeachment without effective certainty of the President’s guilt. The consequences would have been disastrous. The Republicans naturally objected to Doar’s procedure—although their own lead counsel supported Doar—but longtime committee staff members and liberals joined in opposing him. Rodino at first backed Doar, but in the face of a joint challenge by Edwards and Wiggins, he retreated. Edwards reminded Rodino that in 1970 counsel for Justice Douglas had exercised the right of participating and cross-examining. Edwards, a longtime liberal, realized the basic unfairness of Doar’s position; on a more practical level, he knew that it would only polarize the committee and give credence to the charges that the inquiry was partisan.18