The Wars of Watergate

by Stanley I. Kutler

  Railsback, on the other hand, had strong ties to the President. He liked him personally and remembered that Nixon had campaigned on his behalf. At one point, he told Julie Nixon Eisenhower that if her father produced the requested materials, he still had a chance. Railsback gave the same message to Republican National Committee Chairman George Bush. Railsback recalled bitterly that the only reply was more stonewalling. He found the President’s defense efforts disturbing, especially the tampering with tape transcripts. But he also criticized the committee’s staff for failing to do much original investigation on its own.

  Mann, like Butler, had entertained doubts about Nixon since he had arrived in the House in 1969. He thought the President’s war and fiscal policies, and his explanations in the Watergate affair, had been “calculated to mislead, or at least were not candid.” He considered Nixon “so political,” “so partisan,” that he would engage in any type of manipulation to further his own ends. But Mann, certainly conscious of the President’s strong support in his district, remained publicly undecided until early July. At that point, Doar began to visit Mann to discuss proposed articles of impeachment. In time, the two developed mutual admiration, alternately flattering and using one another.

  Thornton believed that Nixon had damaged “the system” with his abuses of power. He saw the White House itself—apart from the executive agencies—as a virtual fourth branch of government, checked by no one. The President’s lack of cooperation with the impeachment inquiry buttressed Thornton’s conviction that the arrogant pattern of abuse was endemic. “Ford brought his life to the Judiciary Committee,” he said, “whereas Nixon brought his lawyers.” As for his constituents, Thornton believed that they trusted him to make a “serious and judicious” decision.

  Flowers spent a great deal of time nursing sentiment in his constituency. For example, in Alabama he described the Fielding break-in as a threat to all Americans. Thinking as a lawyer, Flowers found Nixon’s discussions with Haldeman and Ehrlichman, and his use of grand-jury information, to constitute a particularly striking obstruction of justice. An IRS investigation of Governor Wallace and his brother struck Flowers as “arrogant” and an attempt to manipulate Alabama politics. For him, that was a specific enough abuse of power to warrant impeachment. But Flowers also was very much a man of the House. Nixon’s rejection of the committee’s subpoena “jolted my blood-warmer,” he said. He thought that the President had improperly thwarted the committee’s role and angrily told his colleagues in March that Nixon had “to stop playing games with the Constitution.” The next day, he heard the March 21, 1973 tape of the meeting in which Dean revealed the cover-up to Nixon—“disgusting,” he called it—and became convinced that the President must be impeached. At that point, however, Flowers had a tough primary fight on his hands, and he kept his silence, aware that many of his constituents purportedly believed George McGovern would become president if Nixon were impeached.

  Cohen had been dramatically affected by the Saturday Night Massacre (as had Butler). He and Elliot Richardson lived near each other and had a thriving friendship. Cohen had clashed with the Republican leadership as far back as Ford’s confirmation hearings, when he objected to Ford’s cavalier dismissal of the approach to Judge Byrne in the Ellsberg case. Cohen asked probing and well-prepared questions, but he was limited by time constraints. At one point Hutchinson refused the normal courtesy of granting Cohen some of Butler’s time, indicating how much the Republican leadership distrusted him. Cohen criticized some of his colleagues, particularly Railsback, who deplored in private what the President had done but held back on any public commitment or action, such as voting to subpoena presidential tapes. Unlike others, Cohen had no problem defining the criterion for impeachment. As Robert Frost had said of love, the reason to impeach was indefinable but unmistakable, and he would know it when he saw it. Cohen confronted significant opposition in his district, and he realized that a majority of his constituents opposed impeachment. His mail was vicious, obscene, and—Cohen’s father was Jewish—anti-Semitic.

  By Christmas 1973, Fish believed that impeachment existed as a real possibility but could not be decided by “a poll and popular sentiment.” Impeachment involved a “very, very defined constitutional responsibility” that popularity or party could not affect. Yet he realized the importance of giving “the people understanding [of] what you are doing.” Fish did not believe that the committee would find “the smoking gun,” but he thought enough evidence existed “to spell out the pattern of events in which you could draw conclusions and inference[s]” sufficient to impeach. Before July 22, Fish remembered, the time was “a very lonely thing”; he did not discuss evidence with Republican colleagues, only political implications. Unlike Cohen, Fish had no desire to operate on his own: “I was perfectly willing to confess that I did want company.”

  Railsback recalled that the inquiry was not “all roses,” that at times it became “very antagonistic,” “disputatious,” and “impassionate.” The words and actions of Nixon’s partisan enemies aroused Railsback’s personal and party loyalties, but he also knew that House Republican leaders had sensed his doubts and had grown wary of him. One GOP committee staff member remembered that many Republicans disliked Railsback and thought that he, and others in the group, were “weak men” who easily succumbed to popular pressures. For the Republican stalwarts, impeachment was a partisan matter, like voting for the Speaker.

  The coalition itself had divisions. Fish praised Railsback for his courage; Butler, however, found him too preoccupied with “politics.” Railsback’s longstanding rivalry with McClory may well have animated his drive for leadership within the coalition. McClory had expressed doubts about Nixon’s innocence, and his position as the second-ranking Republican gave him great credibility.53 Yet McClory, along with Hogan and Froehlich, who had some misgivings about the President’s conduct, were excluded from the coalition’s deliberations. “I don’t think any of those folks would have contributed anything,” Butler remarked.

  The seven congressmen later agreed that their coming together had an inevitability about it. They had been singled out in the media for some time as the undecided votes on the committee—“undecided” meaning, of course, “unknown.” Cohen rejected any allegations of manipulation by the House leadership. Neither O’Neill’s pressures, Rodino’s patience, nor Doar’s maneuvers, he said, had influenced formation of the coalition. At bottom, he insisted, with support from the others, “each member ultimately came … to his [own] conclusion.”

  On July 22, all the coalition’s members had their first look at Doar’s draft articles of impeachment. They later agreed that the “ambiguous and vague and arbitrary” language galvanized them into action. That evening, Flowers told Railsback to “get your guys together and I’ll get mine and let’s sit down and visit about this.” Flowers then spoke to Mann and Thornton, who agreed to meet with the others. The next morning the seven gathered in Railsback’s office. Fish was surprised to find the Southern Democrats. At the outset, Railsback asked whether they could find an alternative route to impeachment, such as censure of the President. Flowers pointed out that the committee had responsibility only for deciding the issue of impeachment. They were in the “driver’s seat,” Flowers remembers; the “thing” was “in their hands,” and they realized their power. What was “fragile” was not the coalition members’ attachment to one another; rather, it was their link to the nominal liberal majority, who now found themselves “at the mercy of seven swing votes.” Prospects for bipartisanship on the committee had been dim at the outset, but the coalition, which was truly bipartisan, now found itself with the extraordinary ability to determine the nature and outcome of the impeachment hearings. Without them, impeachment would be a partisan contrivance and forever tarnished.

  During these months Nixon’s moods swung between optimism and gloom. He thought in June that the Democrats feared being held accountable for the disruptions in domestic and foreign policies that impeachment m
ight cause. He also believed that they did not relish Ford as his successor, or the prospect of confronting a united Republican Party. (Later Nixon contended that the Democrats, by contrast, wanted Ford, because he would be easier to defeat in 1976 than any other Republican.) In early July, Nixon looked forward to the 1974 elections, and then beyond, ambitiously anticipating his last chance to impose the “conservative viewpoint” over the McGovernite “radical leftist viewpoint.” He envisioned a day when he would look back over recent events “and see that we shouldn’t have been worried about things all along.” Several weeks later, as the Judiciary Committee prepared to vote and as he awaited the Supreme Court’s ruling on the Special Prosecutor’s subpoena of tapes, the President shifted to a more existential posture: “I intend to live the next week without dying the death of a thousand cuts.… Cowards die a thousand deaths, brave men die only once.” It was, he wrote in his diary, his “Seventh Crisis in spades”; he could only “hope for the best and plan for the worst.” Publicly, Nixon was defiant. He assured supporters on July 18 that he would leave office “in 1977 when I shall have finished my term of office to which I was elected.”

  On July 12 a California jury found John Ehrlichman guilty of perjury and of conspiring to violate Daniel Ellsberg’s civil rights. At the end of the month, the court imposed a twenty-month-to-five-year sentence. Nixon uttered an old refrain. It was a “tragic irony” that Ehrlichman went to jail and Ellsberg went free. Ehrlichman saw it as much more. Shocked, he learned that Fred Buzhardt had signed an affidavit stating that the White House documents contained nothing material to Ehrlichman’s defense. Ehrlichman believed then and in later years that he had been betrayed and went to jail for a crime the President had authorized.54

  Old California friends entertained the President in Bel Air on July 21. It was a pleasant evening, but Nixon later remembered that it was the last time he felt any real hope. He compared his situation to being in the eye of a hurricane. He knew that the political consensus to impeach had been reached. Two days later, he called Governor George Wallace from San Clemente, desperately seeking to enlist Wallace’s help in dissuading Walter Flowers from voting for impeachment. But Wallace told Nixon that it would be improper. The conversation lasted only six minutes. When it ended, the President turned to Haig and said: “Well, Al, there goes the presidency.”55

  XIX

  JUDGMENT DAYS

  THE SUPREME COURT AND THE JUDICIARY COMMITTEE: JULY 1974

  The Watergate spotlight briefly moved from the House Judiciary Committee to the Supreme Court on July 8 as Leon Jaworski and James St. Clair presented their arguments to the Justices. The year-long controversy over the tapes had reached the Court, draped in the constitutional finery that masks American political disputes. The President’s insistence that the immunity of his office justified defying the Special Prosecutor’s demands and the orders of the lower court had remained constant throughout the year. The conflict was one of high drama; sadly, the confrontation had escalated to the point that it offered scant chance for compromise.

  “Scarcely any question arises in the United States that is not resolved, sooner or later, into a judicial question,” noted Alexis de Tocqueville in 1837. By 1974 Tocqueville’s brilliant insight had metamorphosed into an unwritten constitutional corollary. Americans preferred legions of lawyers to battalions of soldiers, and they looked to the Supreme Court as the ultimate locale for the peaceful resolution of political and policy disputes. However contradictory the Court and its power were to democratic theory and impulses, its role had served the nation well for nearly two hundred years. From the time of John Marshall, the Court frequently has fallen afoul of particular interests, yet it has displayed resilience, and its authority has steadily grown. Except in periods of emotional assault upon the institution from those momentarily aggrieved by a decision, the Court’s prestige consistently has remained high among the American people.

  In 1857, the Supreme Court, dominated by a majority of slaveholders, attempted to impress pro-slavery doctrines on constitutional law in the Dred Scott Case. Chief Justice Roger B. Taney’s decision upholding Scott’s master provoked protests throughout the North and the West. The vituperative denunciations of the Court at the time have attracted a great deal of historical attention—at the cost of ignoring a powerful current of opinion that deplored the Dred Scott decision yet recognized the need for maintaining the authority of the Court. “We are a lost people when the supreme tribunal of the law has lost our respect,” ran a typical comment that urged Americans to maintain faith in the efficacy of the Court, despite its momentary lapse. Following the Supreme Court’s desegregation decision in 1954, segregation advocates regularly denounced the Court, yet they persisted in pursuing judicial solutions. So, too, antiabortion activists, infuriated by Roe v. Wade (1973), nevertheless have pressed for a new judicial determination of the question.

  Political battle cries for judicial restraint generally amount to little more than convenient appeals to rally the faithful. “What would we do without the Supreme Court?” asked those who stood between the defenders and root-and-branch critics of the Supreme Court following the Dred Scott decision. The Court had long before firmly established itself as an indispensable component of the American governmental apparatus. “Without some arbiter whose decision should be final the whole system would have collapsed,” Judge Learned Hand once observed.1

  Despite the Supreme Court’s popular image as the ultimate constitutional arbiter, only rarely has it been called upon to consider the limitations of presidential power. The modern benchmark for such judicial determination was made in 1952 when the Justices rejected President Harry Truman’s claim of “inherent powers” to justify his seizure of steel mills to prevent a strike that he believed would impair the Korean War effort. When the steel companies sued to regain control of their property, six of the nine Justices ruled that in the absence of congressional authorization, the President had no such power. In a concurring opinion, Justice Robert H. Jackson eloquently underlined the rule of law: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and the law be made by parliamentary deliberations.”

  William Rehnquist, a Jackson clerk at the time of the Steel Seizure Case, later recalled it as “one of those celebrated constitutional cases where what might be called the tide of public opinion suddenly began to run against the government, for a number of reasons, and … this tide of public opinion had a considerable influence on the Court.” In 1974 Rehnquist implicitly applied that observation to his eight sitting colleagues who considered President Nixon’s appeals that they legitimate his efforts to retain control of the remaining White House tapes. Rehnquist recused himself in the case, citing his past association with the Nixon Administration. Ironically, as Jackson’s clerk he had listened to the arguments in the steel case; as an Associate Justice, he never heard those in U.S. v. Nixon lest he give the appearance of secret participation. Instead, he assigned seats to the Justices’ families, members of Congress, clerks and other Court personnel, the press, and finally, members of the public who would have access to twenty-seven seats, rotated on a five-minute basis.2

  While the Judiciary Committee weighed the President’s political future, the Supreme Court dealt only with his claims of executive privilege to keep his tapes from the Special Prosecutor. The issue was not literally framed as deciding Nixon’s ultimate fate, but the reality was plain. The constitutional process concurrently playing in the House inevitably had the burden of “politics” or “partisanship.” On the other hand, despite the political bearing of the Court’s role, the public to a large extent perceived the Justices as being above politics and parties—serving as disinterested constitutional arbiters. As the Court listened to arguments in U.S. v. Nixon, the editorial writers of the Wall Street Journal asserted that the President’s fate should not be resolved “by a unilateral assertion” of the impeachment p
ower; “only the courts can draw an ongoing body of standards, that is, a body of law, to balance executive privilege against other necessary principles.” Richard Nixon himself had said in 1969 that “Respect for law in a nation is the most priceless asset a free people can have, and the Chief Justice and his associates are the ultimate custodians and guardians of that priceless asset.”3

  The Justices acknowledged the need to give the President his day in court by allowing three hours of argument instead of the normal one hour. As St. Clair began his presentation on July 8, he recognized the Court’s potential for damaging the President’s credibility. He told Chief Justice Warren Burger that “no one could stand here and argue with any candor that a decision of this Court would have no impact whatsoever on the pending inquiry before the House of Representatives concerning the impeachment of the President.” St. Clair sought to persuade the Court to deny the justiciability of the case and so to leave Nixon’s fate to the House alone. The White House much preferred Congress as an adversary. For his part, Jaworski appealed to the Justices to invoke the most sacred phrases in the Court’s constitutional liturgy. John Marshall had written in Marbury v. Madison (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Protecting and interpreting the Constitution, said Marshall, was “of the very essence of judicial duty.” St. Clair to the contrary, that is also what the nation looked for in July 1974.4

  The opposing lawyers publicly exposed the debate that had raged between them for months regarding Jaworski’s independence and St. Clair’s right to defend the President. But St. Clair now moved beyond those arguments and asked the Justices to dismiss the suit because of “the co-pendency of impeachment proceedings.” One Justice interrupted St. Clair, suggesting that this was not the Court’s problem. St. Clair thought otherwise. The Court, he insisted, had a long tradition of not deciding “political questions,” a doctrine that generally provided an escape route from deciding questions best determined by the political branches of government. St. Clair acknowledged that when it had decided “political” matters, as, for example, the legislative reapportionment cases of the 1960s, the Court had acted to strengthen individual rights and the democratic process. But no such consideration was involved in this case, he argued; instead, a decision would affect the proper duties of Congress. Furthermore, St. Clair went on, a decision against Nixon would “diminish” the democratic process, for it would limit the ability of the President to hold confidential discussions with his aides and thus deprive him of the power, duties, and responsibilities given to other presidents.