The Wars of Watergate

by Stanley I. Kutler

  Caldwell Butler’s Virginia district had supported Nixon overwhelmingly. Flowers regularly teased Butler about the pickup trucks filled with armed constituents that would visit him if he opposed the President. But Butler’s dismay with Nixon and his annoyance at the narrow partisanship of the President’s defenders on the committee finally burst forth in a wave of passion and anger that belied his usual calm. Although Butler had to confront a skeptical district, he seemed to focus his public remarks on his fellow House committee Republicans. Watergate, he reminded them, “is our shame,” a scandal for a party that had campaigned so often against corruption and misconduct. “We cannot indulge ourselves in the luxury of patronizing or excusing the misconduct of our own people.” He challenged the loyalists’ analogy of a criminal trial and their rationalization of the relativism of corruption. Butler found such standards “frightening,” for they in effect condoned and left unpunished presidential conduct designed to subvert the processes he had sworn to uphold. We, Butler said, will then have said to the nation: “These mistakes are inconsequential and unimportant.” The evidence was “clear, direct, and convincing”—St. Clair’s words—that Richard Nixon had abused power and that he had engaged in a “pattern of misrepresentation and half-truths” to explain his conduct in the Watergate affair, a policy “cynically based on the premise that the truth itself is negotiable.”

  The combination of Mann and Butler left no doubt as to the outcome. Together, they offered a bipartisan conservative condemnation of the President. Together, they combined the sadness and fury that must have flowed through all but the most committed Nixon-haters and loyalists alike. Mann’s voice broke at the end of his remarks; Butler, his passion spent, quietly said that his “present inclination” was to support impeachment, but “there will be no joy in it for me.”18

  When debate opened at noon on July 26, McClory moved to postpone consideration of the impeachment articles for ten days, if the President assured the committee within twenty-four hours that he would provide the House with the tapes which the Supreme Court had ordered him to submit to Judge Sirica. McClory had no expectation that Nixon would make the materials available. Apparently, he simply wanted to demonstrate that the committee had treated the President fairly and with proper deference. At the same time, he announced his intention to introduce a separate article of impeachment, charging Nixon with contempt of Congress, for his failure to comply with earlier subpoenas. Brooks, Railsback, and Sandman, representing the three major factions in the committee, rejected the gesture as meaningless and opposed it. McClory’s motion failed, 27–11. By now the President commanded virtually no trust. A Gallup poll released that same day revealed that his disapproval rating had risen to 63 percent, while his support had fallen to 24 percent.19

  At this point, Paul Sarbanes introduced a substitute Article I which had been drafted largely by Mann, Butler, and Mooney. Why Sarbanes? Mann had presented the substitute to the committee’s Democratic caucus. “I just looked around the room and picked out Paul Sarbanes and said [he] is the best man to do it,” Mann said. “And like a good soldier, he didn’t flinch.” Sarbanes had little opportunity to study the changes he would propose, but Mann credited him with a “remarkable job” of presentation. Mann admitted that he “just didn’t care to be that far out front.” After all, he had said at the outset of debate that he still had reservations on how he would vote. Meanwhile, he noted that the Democratic liberals carefully worked to be “helpful rather than wanting to impose their thoughts.”20

  Hutchinson attacked Sarbanes for the lack of “specific detail” in the charges. Railsback, in the style of what members call a “planned colloquy,” tried to help Sarbanes frame an answer, suggesting that the committee could provide the entire House with supporting information. But Wiggins and Sandman would have none of that. For Wiggins, obstruction of justice was a criminal offense, and any article of impeachment had to contain specific evidence of such acts on the part of the President. Sandman’s attack on Sarbanes’s article bordered on the abusive. He taunted Sarbanes with demands for specificity. “I want answers, and this is what I am entitled to,” Sandman said. “This is a charge against the President of the United States, [and] he is entitled to know specifically what he did wrong.… Do you or do you not believe, and you can say yes or no, that the President is entitled to know in the articles of impeachment specifically, on what day he did that thing for which you say he should be removed from office?” Sandman’s gusts of passion seemed calculated to extinguish whatever lights of reason could be culled from the evidence. His onslaught was emotional, but it was effective in planting seeds of doubt—and in shaking some of the resolve of the “fragile coalition.”

  By late afternoon the Democrats had recovered somewhat and had begun to reply effectively to Wiggins and Sandman. Rodino read a staff member’s hurried note citing previous impeachment proceedings in which a body of evidence was provided apart from the articles themselves. Sarbanes reviewed the documentary evidence, to provide the members with “some appreciation” of the details behind the charges. None of them was unfamiliar. Hungate scoffed at Sandman and Wiggins. If someone brought an elephant through the door, and a member called it an elephant, he suggested that others would consider it “a mouse with a glandular condition.” Still, the President’s supporters persisted, alternating between Wiggins’s demands for specificity and Sandman’s denunciations of the proceedings. “Isn’t it amazing? They are willing to do anything except make these articles specific,” Sandman said with mordant glee. Even McClory, clearly willing to impeach the President on other grounds, charged that the allegations in Sarbanes’s article were “weak” and “fuzzy.”21

  The counterassault by Wiggins and Sandman blistered the pro-impeachment forces. The Republican loyalists had little hope of moving those Democrats who had been firmly convinced by the evidence to vote against the President. Their target was the tenuous, uneasy bloc of approximately six Republicans and three Southern Democrats. Their shock tactics momentarily stunned the coalition and severely tested its mettle. The Sarbanes substitute motion was properly their responsibility; yet, when Wiggins and Sandman demanded specificity, none of them seemed able to respond with the data that had been carefully assembled since October. Cohen, certainly the Republican most solidly persuaded against Nixon, thought “the whole thing” was in danger at that point. The opposition to the President was on the verge of public and national embarrassment. During the nine-month investigation, Sandman had said virtually nothing. Suddenly, he asked: “Well, where’s the evidence?” It was embarrassing.

  That night, Democrats Mann and Flowers, and Republicans Cohen, Railsback, Butler, and Hogan met for dinner and a post-mortem at the Capitol Hill Club. Some blamed Doar and poor staff communication for their own weak reply to Wiggins and Sandman. Flowers complained that the Democratic majority had not made the case. Cohen disagreed. “The members had got stung and they didn’t really know what to do,” he later recalled. The specificity that Wiggins and Sandman had demanded was readily available. Cohen told his colleagues that they could stay up all night, redraft the articles, and enumerate the specifics. He then proceeded to tick off all the lawyerlike “to wits” and “et ceteras.” But he had no takers.

  Butler and Mooney remembered the “state of panic” and chaos that pervaded the group that evening. Flowers said that Sandman was the biggest hero in his Alabama district. The “specificators” had “licked us,” he complained. Meanwhile, ever politic, he suggested that the group maintain its image of neutrality. But the time for neutrality had passed. The coalition only bent; it did not break. The members had decided, and they were committed. Cohen deplored the label “fragile coalition.” He had reached the point where it didn’t really matter to him whether others “stayed in or stayed out,” as he had made his resolve. And so had his colleagues. The bloc remained intact, and despite Flowers, a number of them eagerly responded to the challenge of the President’s defenders.

  * * *
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br />   When the coalition members returned for the evening session, they held their own against the loyalists’ attacks. They “talked facts” in response to the demands of Wiggins and Sandman. Barbara Jordan dismissed the calls for specificity as “phantom arguments, bottomless arguments.” She rebuked any claims that the President had not been given due process, pointing out the role the committee had granted St. Clair. “Due process? Due process tripled. Due process quadrupled,” she said with solemn dignity. Sandman, however, was not through, and he moved to strike the first paragraph of the article Sarbanes had proposed, on obstruction—the very heart of the charge. Coalition members Railsback, Cohen, Fish, Thornton, and Flowers joined the Democrats to reinforce the points made late that afternoon regarding a full report, as well as citing specific instances of presidential wrongdoing. The debate became increasingly rancorous, as Nixon’s supporters barely disguised their contempt for Republicans who opposed him. At the end of the evening, Harold Froehlich signalled another Republican defection when he suggested that the committee provide evidentiary facts in its report to the House rather than in its articles of impeachment. With that, Sandman’s motion was rejected 27–11.

  Sandman sometimes appeared a man who could not put the trees together to form a forest, but by Saturday afternoon, July 26, he knew the count. He saw no need to “bore the American public with a rehashing” of material and acknowledged that the votes were there to pass the article. Wiggins, too, sensed the futility of the situation. The glue holding together the coalition—in Wiggins’s opinion, self-interest and an erroneous understanding of constitutional responsibility—proved strong enough.22

  But some members, including Flowers, still believed that their constituents needed more justification for the step the committee was about to take. Although the outcome was apparent, at the late afternoon session Flowers moved to strike individual paragraphs from Article I, making his motions one at a time, mainly to give his fellow coalition members an opportunity to recite the specific evidence they had absorbed Friday night and Saturday morning. Each motion was defeated by the predictable majority, and with one exception, Flowers simply recorded himself as “present” in voting on his motions. Sandman would have none of such sham and pointedly rebuked Flowers. Rodino, however, continued to pamper his Alabama colleague, even providing him a final opportunity to justify his vote. Flowers then briefly yielded to allow Fish to speak to his “friends and supporters” in New York who supported Nixon. “There was no smoking gun,” Fish noted. “The whole room was filled with smoke.”

  Suddenly, dramatically, Rodino asked for a vote on the Sarbanes substitute Article I that the coalition had prepared. Choruses of “ayes” and “noes” responded. But Rodino called the roll, and thirty-eight members recorded their vote. The afternoon pattern held firm, and by a 27–11 vote, the committee adopted one article of impeachment against Richard Nixon. Six Republicans—Butler, Cohen, Fish, Froehlich, Hogan, and Railsback—joined the twenty-one Democrats.23 The bipartisan vote, transcending ideological alliances as it did, belied charges that the committee’s proceedings were a partisan vendetta. Richard Nixon had brought the committee together, as he was to bring the nation together—though clearly not the way he had intended in 1968. It was fourteen years to the day since he had first been nominated for the presidency.

  XX

  “I HEREBY RESIGN.”

  AUGUST 1974

  Richard Nixon received the news of his own “Saturday Night Massacre” in his San Clemente beach trailer; it was, he said, “exactly” what he had “feared.” He realized a sense of historical shame—the “first President in 106 years to be recommended for impeachment.” Not the kind of first on which he usually prided himself. Compounding his anguish, the June 23 tape, in which he had discussed using the CIA to cover up the Watergate break-in, was, he knew, “like slow-fused dynamite,” waiting to explode. He expected his lawyer and aides to soon tell him that the situation was no longer manageable. The President had conceded impeachment in his own mind and was resigned to a six-month Senate trial. But according to his account, that weekend he considered the risks to the nation of a crippled presidency. He also worried about his own financial future, aware that if impeached and convicted, he would lose all government benefits.

  Returning to Washington on July 29, Nixon found the White House “cloaked in gloom,” the staff’s confidence “shattered.” St. Clair had returned from a long weekend at Cape Cod and learned the contents of the June 23 tape. According to Nixon, his “breezy optimism” had evaporated. Now, St. Clair expressed concern for his own liability as a party to obstruction of justice.1

  The House Judiciary Committee resumed deliberations on July 29. In three sessions that day, and three the following day, the members considered four more articles of impeachment. The debates seemed anticlimactic, considering that one article of impeachment had already been approved. Many of the issues raised during the debate over Article I remained apparent when the members discussed the abuses of power charged in Article II. Because they were so similar, the outcome of the debate on Article II never was in doubt, particularly since the “fragile coalition” saw the two articles as different sides of the same coin. But the members seemed anxious to conclude the proceedings and to allow the fate of the President to run into other channels.

  At the opening session, William Hungate offered a substitute for Harold Donohue’s second article. The language had been refined, but the most important changes involved the deletion, both of the section on presidential defiance of the committee’s subpoenas and of the various clauses charging Nixon with impeding and interfering with the power of the House to conduct an impeachment inquiry. Removed, too, was the clause accusing the President of “making false and deceptive statements to the American people” regarding his role in unlawful events. The Hungate substitute catalogued presidential abuses of power similar to those mentioned in the original resolution, but it pointedly avoided the phrase “abuse of power.” The new article cited Nixon’s misdeeds, in a passage following the statement that he had disregarded his constitutional duty “to take care that the laws be faithfully executed.” The President, Hungate’s article said, had “repeatedly” engaged in conduct that violated constitutional rights, impaired the proper administration of justice and the conduct of lawful inquiries, or contravened laws and purposes governing executive-branch agencies. Finally, the article stated that Nixon had acted “in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.”2

  Charles Wiggins insisted that abuse of power did not fall within the meaning of “high crimes and misdemeanors” and again argued that the only impeachable crimes were indictable ones. Edward Hutchinson admitted some of the President’s actions had been questionable but found no evidence that they involved “unconstitutional conduct.” Robert McClory, who had voted against Article I, now answered his fellow Republicans. Abuse of power, he said, “really gets at the crux of our responsibilities here for it directed attention toward the President’s oath and his constitutional obligations.” The Plumbers’ actions, and the misuse of such agencies as the FBI, the CIA, and the IRS, constituted “clear acts of misconduct.” It was essential, McClory argued, that Congress define a standard of constitutional behavior and establish a precedent for other presidents. Setting that standard and enforcing the Constitution, he thought, made the second article paramount. “I realize that there is no nice way to impeach a President of the United States,” he concluded, almost mocking Hutchinson’s same words to the Republican caucus earlier in the month.3

  The Republican loyalists proposed various motions to strike Hungate’s substitute article, but this time their opponents were better prepared. For example, when Wiley Mayne insisted that the Plumbers had a national-security purpose, Hamilton Fish had Albert Jenner read the relevant evidence pointing to the conclusion that the Plumbers�
�� goal was to cultivate public relations, not to protect national security. The President’s supporters repeatedly emphasized his need to maintain national security and domestic order, but to no avail. Walter Flowers, for one, frankly acknowledged that he considered the abuses of power more important as a charge than obstruction of justice—an “abuse of public trust,” he said, implying that if actions of this kind were left unchecked, no restraint on executive power would be possible. James Mann warned that if presidents were unaccountable, they would be free to do whatever they chose. “But, the next time there may be no watchman in the night,” he warned. The voting lines held. McClory crossed over to the majority, and the committee approved Article II, 28–10.4

  A sense of overkill pervaded the final day of debate. First, McClory presented Article III, accusing the President, “without lawful cause or excuse,” of having failed on three occasions to produce materials duly subpoenaed by the committee and thereby having acted “in derogation of the power of impeachment,” vested solely in the House. He saw the issue as proper for impeachment, for it involved a violation of constitutional duty and lack of respect for the constitutional powers of the legislative branch. Further, he thought that the article could provide an important precedent for defining the proper role of the executive.

  Given the dislike of McClory on the part of some members of the coalition, it may have been a combination of personal pique and skepticism that animated their reaction to McClory’s article. Ray Thornton alone of their number supported the article. Tom Railsback thought it might alienate House Republicans who would vote for articles I and II. For all the talk of legislative prerogatives, it is ironic that Railsback also opposed the article because the committee had not challenged the President’s defiance in court. McClory picked up only one Republican vote (Hogan’s) and lost two southerners; nevertheless, the article passed, 21–17.5