The Wars of Watergate

by Stanley I. Kutler

  A more serious criticism came from Leon Jaworski, who found Doar almost incapable of understanding the case. Jaworski remembered that lawyers on his staff had Doar in their office night after night, “coaching him, as poor John didn’t know which way was front.” Jaworski’s relationship with Rodino and Doar apparently was somewhat strained, as is typical of competitive agencies each anxious for a lion’s share of the credit. Rodino at one point had complained that Jaworski was withholding material, but the Special Prosecutor dismissed the allegation as a cover for Rodino and Doar’s own dilatoriness.19

  In May 1974, Doar began to read to restless, bored, and confused members of the House committee a multivolume “Statement of Information,” a series of books compiled to illustrate the case against the President. During these presentations, Doar had instructed the staff not to offer any conclusions or intepretations, reflecting his determination to maintain the appearance of fairness. Yet the members craved understanding, particularly an understanding of how numerous, isolated incidents demonstrated a consistent pattern of presidential abuse of power, obstruction of justice, or failure to faithfully execute the laws.20

  Democrats chafed at Doar for being dilatory and insensitive to their needs. Republicans, however, had a different and more serious problem: they believed that their Chief Counsel was unsympathetic to the President and supported Doar’s every move. The minority had named Albert Jenner, a Chicago lawyer, their Chief Counsel in January. Jenner had a reputation as a formidable litigator. He had been senior counsel to the Warren Commission, which had investigated President Kennedy’s assassination, and had played a prominent role some years earlier in challenging the authority of the House Committee on Un-American Activities. Railsback had sponsored Jenner’s appointment. But Republicans may well have had cause for concern from the outset, when Jenner praised Doar and spoke about their “joint effort.”

  A week after his appointment, Jenner publicly stated that the President might be impeached for the actions of his aides, even if he were unaware of them. Attorney General Saxbe called this a “bizarre theory,” while Wiggins furiously criticized Jenner, asking whether he had “appreciated the significance” of his remarks, and urged him to recant. Jenner’s deputy, Sam Garrison, clearly more devoted than his chief to the partisan concerns of the Republicans, complained to Hutchinson that Jenner’s cooperation with Doar had undercut the Republican position on numerous matters, particularly on St. Clair’s participation. Garrison contended that Jenner considered himself answerable primarily to Doar, not to the Republican members. He feared that Jenner might say publicly that he was obligated to voice the minority’s position although he disagreed with it. Jenner’s role was a “farce,” Garrison told Hutchinson; the Chicago lawyer was acting as if he had a “vested right” to his position. The minority tensions became public, and a columnist accused Hutchinson of instructing Garrison to obstruct the proceedings. But the real issue was whether the divided Republicans on the committee could have a single counsel to advocate their views.21

  Republican staffers saw Jenner as caught between the conflicting ambitions of Railsback and Wiggins. Yet they knew that Jenner had not devoted much energy to the problem, as he was constantly worrying about the time it was taking and the drain it had imposed on his Chicago practice. His warmest defenders, such as Cohen, recognized that Jenner had alienated many Republican colleagues. Butler, almost desperate to find an advocate for the President, realized by spring that Jenner was not “speaking for us.” Even Railsback, his sponsor, acknowledged that Jenner had forgotten his role as adviser and instead had become an advocate for impeachment. Some more conservative Republicans, such as Latta, attacked Jenner for his earlier defense of the civil liberties of prostitutes and complained that he had chaired the American Bar Association Section on Individual Rights and Responsibilities—a liberal bastion within the ABA, according to Latta. By February Garrison criticized Jenner for his support of the committee staff’s broad interpretation of the House’s impeachment authority.

  In May Hogan urged Hutchinson to dismiss Jenner—labeling him the “Assistant Majority Counsel.” Hogan charged Jenner with impeding the Republican effort and having been “derelict in serving our needs.” As matters moved to a climax in July, the Republicans—including those leaning toward impeachment, such as Hogan and McClory—voted to inform Rodino that Garrison was their Chief Counsel but that Rodino could consider Jenner as an Associate Committee Counsel. They requested, and Rodino agreed, that Jenner sit at the table with Doar. Thus the anomaly developed that the evidence converted the Minority Counsel to the majority position. By then, according to his later testimony, Jenner had been convinced that Nixon “was and is a liar of the most vicious kind.” He also disparaged committee Republicans who had sought to rush the inquiry in the hopes of gaining an early acquittal before all the evidence had been developed.22

  The issue of secrecy plagued the House committee during much of the inquiry. The matter concerned both White House lawyers, who supplied material, and the Special Prosecutor, who worried that premature revelations might impair future prosecutions. The issue touched the members’ sensibilities, because security requirements prevented their unlimited access to evidentiary material. More fundamentally, Doar and Jenner perceived the inquiry as a grand-jury proceeding, an interpretation that, by giving the committee’s work the secrecy of a grand jury, would severely restrict the President’s defense efforts. The majority and minority counsels met with St. Clair early in February and, in effect, told him how the inquiry would proceed. St. Clair strenuously objected and persuaded congressmen from both parties to reject the grand-jury approach, a rare victory for him.23

  The committee’s assertiveness on the grand-jury issue led to open sniping by members who feared a too-independent staff. Early in March, Railsback and Dennis complained that Doar’s letters to St. Clair had not been circulated to the committee. A month later, Latta, an outspoken Nixon partisan, demanded to know “who is directing this inquiry, whether it is the staff or whether it is this committee.” Latta had support from other Republicans—and in time, from liberal Democrats who objected to Doar’s aloofness. After April, the staff tended, at least on the record, to defer more to the committee, and Rodino seemed particularly sensitive to his colleagues’ complaints that the committee did not control its own inquiry. Latta persisted in attacking the staff for its bias against the President. When Doar discussed illegal campaign contributions, Latta pressed him about similar offenses in Lyndon Johnson’s campaigns. In June, Latta openly mocked his colleagues who agreed with Doar that the committee should hear only a few witnesses and deny St. Clair the right to call his own. Doar had asked for a July 12 cutoff date for testimony; by then, Nixon’s supporters no longer favored a quick end to the inquiry, instead believing that lengthy debate and testimony served their cause best.24

  The committee’s dealings with the President over its requests for tapes sharpened the internal conflict. When the White House submitted its first batch of materials in mid-March, Rodino complained about the lack of cooperation and White House attempts to characterize the committee’s work as a fishing expedition. Brooks called the Administration tactic “White House hucksterism,” but Sandman said that he had heard enough personal attacks on the President and vigorously supported him. Rodino, determined both to defend Doar and to maintain amicable relations among members and staff, replied that the staff had done an excellent job and thanked Sandman for this thoughts and concerns. Again, the grand-jury analogy raised rancor, as some members saw that model as diminishing their role and making them merely the clients of the staff. Mezvinsky had no problem with the theory, however, and argued that St. Clair would have his opportunity to demonstrate “his own renowned trial techniques” in the Senate. But other Democrats realized that theory counted for nothing compared to the necessity for fairness. That need dictated something other than an abstract application of a grand-jury style.25

  The committee’s pursuit of the tapes
provoked passionate attacks from the White House. Presidential adviser Father John McLaughlin appeared at the Harvard Law School Republican Club on March 29 and compared the Judiciary Committee proceedings to Joseph Stalin’s purge trials. He singled out his fellow Jesuit, Congressman Drinan, for his most vitriolic attacks: “No jury in the country would tolerate this man sitting in judgment.… He has all the openmindedness of the Sanhedrin judging Christ,” McLaughlin complained.26

  Throughout April, the committee had bristled at the White House’s delay in releasing more tapes. After extensive wrangling, it approved a bipartisan compromise subpoena on April 11. Two weeks later, St. Clair requested and received an additional five days to comply, a deadline he met when the President released the tape transcripts on April 30. The next day, Doar informed the committee that his staff had reason to believe the edited transcripts they had received (the tapes and Dictabelts had not yet arrived) had numerous inaccuracies and omissions that could be rectified with better listening equipment. Clearly, at this point, the majority considered the President in contempt of the subpoena. Rodino, in a rare display of combativeness, contended that the House, and not the President, must determine the relevance of evidence.

  The White House and the committee repeatedly clashed over the President’s claims to executive privilege and the House’s constitutional authorization for “the sole power to impeach.” What limits could Nixon impose on the inquiry? More than a century earlier, President James K. Polk had promised that the House would receive “all the archives, public or private” and would have “every facility in the power of the Executive afforded them” if the House believed “that there had been malversation in office.” Considerations of confidentiality and national security did, however, constitute a fair qualification on Polk’s generosity. In that regard, the committee had to offer Richard Nixon some running room on his claims of executive privilege and give some credence to his fear that “the institution of the Presidency itself would be fatally compromised.” But the President’s problem was that for every such claim he made, he reinforced assumptions that he was an obstructionist and had something to hide.27

  The committee eventually voted 20–18 to authorize Rodino to write Nixon, informing him that he had failed to comply with the subpoena of April 11. Republican Cohen broke ranks; otherwise the vote followed straight party lines. But that partisanship masked some growing disquiet among Republicans and conservative southerners. Just prior to the vote, Cohen proposed a more conciliatory letter than the Democrats preferred, renewing a plea for the President’s cooperation. The Democrats and Nixon’s hard-line supporters opposed Cohen’s motion, but he picked up eleven votes, including those of Democrats Flowers and Mann and Republicans Railsback, Fish, and Butler. It was a moment that foreshadowed future developments.28

  The committee moved to executive session on May 9, and Doar began his presentation of the “Statement of Information.” During his readings, Doar complained about the inaccuracies his staff had discovered in the few available transcripts of tapes. He also objected to the insertion of the transcripts’ recurrent phrase, “Material unrelated to Presidential action deleted.” “I do not know what that word or those words mean,” Doar told the members; “I do not know what the test is. I do not know whether it is inaction that is covered, [or] is knowledge covered, [or] is lack of knowledge covered.” Doar’s position increased demands for renewed pressure on the White House. At the May 30 meeting, Flowers offered a draft of a letter informing the President that the committee considered his acts a “grave matter”; more ominously, the letter warned Nixon that his actions required members to draw a “negative inference,” and that his refusal to cooperate might itself constitute a ground for impeachment. Flowers’s view reflected the maturation of his suspicions at the time of Cox’s dismissal that President Nixon had something to hide. His motion passed overwhelmingly, 28–10.

  A coalition of the President’s defenders and wavering committee members suggested that the courts decide whether Nixon had complied with the committee’s subpoena. “[I]t is imperative that we not act alone,” Froehlich told the Chairman. Froehlich thought that the House might find itself in the position of having to vote impeachment on what he called “nonsubstantive,” or procedural, grounds, and he apparently believed that it might be easier to cloak the House’s action with judicial support. McClory, as well as Doar and Jenner, however, successfully argued the impropriety of judicial involvement in the responsibilities of the House. Waldie, perhaps the President’s most outspoken opponent, then proposed that the House order its Sergeant-at-Arms to summon Nixon before the House and show cause why he should not be held in contempt. Republicans objected, and Rodino sustained them. But more ominous words came from staunch Nixon loyalists. When the committee issued the subpoena in March that the White House denounced as a “fishing expedition,” Hutchinson thought the subpoena was “not excessive and it’s right on target.” For Hutchinson, that was equivalent to a denunciation of the President. Vice President Ford later claimed he told Nixon in May that he could no longer support the stonewalling and that the House had a right to the information. “We’re handling it this way because we think we’re right,” the President told Ford.29 Publicly, the Vice President maintained his steadfast support of Nixon.

  Meanwhile, numerous members had become restless with Doar’s presentation of the evidence. The information books covered a variety of subjects, with the cover-up being the largest and most important, yet they seemed aimless. The materials were presented chronologically; thus, if numerous calls or conversations occurred in a three-day period, they were set down chronologically. But they related to multiple subjects, and the chronology had to be keyed to the different subjects. Doar’s presentation did not attempt to do that. About July 1, several members turned to Richard Cates and other staff members for succinct summaries of the evidence and some clues as to the reasonable conclusions that could be drawn from it. Cates notified the entire committee of his intention to analyze the material. The first two meetings dedicated to that task lasted three hours each, with only Democratic members in attendance, although some Republican staff workers appeared. Essentially, Cates disentangled the material from its rigid chronological setting to offer a coherent theory of presidential involvement in the cover-up. Following this, Cates held smaller breakfast meetings for a variety of Republicans and Southern Democrats, some hitherto identified as Nixon loyalists. Perhaps his most important meetings occurred during the week of July 12, when Cates met exclusively with a group of undecided Republicans. Hamilton Fish had initiated these meetings, but again, representatives of different factions attended.

  Fish later testified that Cates, “a highly trained trial lawyer who had done exhaustive work,” gave them “a very sensible, rational theory.” Fish found it “convincing”; his colleague, William Cohen, similarly was “very impressed” with Cates’s briefings. Flowers, the Southern conservative, found Cates always available, always helpful, and always “the facts man”—truly, a lawyer’s lawyer.30

  Material began to leak from the committee, much to the consternation of the President and his supporters, but the leaks made little difference, since the major evidence—the tape transcripts—had become a matter of public record. That being the case, members concerned with the appearances of justice and fairness—members from both sides, it must be remembered—had a valid objection to the continuance of executive sessions.

  St. Clair requested that the House committee hearings be open and televised, claiming that the selective leaks of evidence unfairly damaged the President. But Republican staff members sensed a shrewder reason. St. Clair himself had seen how passively the members listened to Doar, their boredom apparent to all. A television spectacle could either discredit the committee or make the members more active, questioning Doar incessantly and dragging the process on indefinitely. The White House now understood that time was on its side and could create a backlash in its favor, as the nation might grow bored with t
he inquiry. Reluctantly, committee Republicans opposed St. Clair’s move. With elections only months away, they had no interest in prolonging the work. McClory reported to an ailing Hutchinson that the inquiry was proceeding “in a most satisfactory manner.”31 As Doar’s presentation wound down, the questions became more desultory, more obviously partisan. For his part, Rodino persistently restricted the members’ questions and comments to keep the proceedings moving. Finally, on June 21, Doar concluded his presentation of the evidence, six weeks and eighteen closed sessions after he had started.

  News releases and deliberate leaks from the committee generated a crescendo of charges and implications of presidential wrongdoing. The President’s popularity continued to plunge. In June and early July, Nixon journeyed to the Mideast, traveling where no American President had before, and then to the Soviet Union for another summit. The televised images of the President riding by train through Egypt, cheered by enthusiastic crowds; continuing on to the long-forbidden and malevolent Syria, leader of the so-called radical bloc of Arab states; receiving a warm, emotional reception in Israel; and finally basking in the glow of an apparently enhanced détente with the Soviets, contrasted jarringly with the steady revelations regarding his behavior at home. Cynics saw Nixon’s foreign activities as an attempt to distract attention from Watergate, of course; and lay analysts had a field day when the President’s physician revealed that Nixon had suffered from phlebitis and a blood clot during the Mideast journey.