The Wars of Watergate

by Stanley I. Kutler

  In the open society of America, the most private of moments often become the most public of spectacles. When a president embraces his family, visits the Lincoln Memorial, or receives a foreign visitor, we know the probing eye of the television camera will accompany him not only to give us “news,” but to allow us vicariously to experience the event itself. Richard Nixon’s last appearance before White House workers and Administration loyalists seemed, by its nature, a private event. The President could have conducted it in private, had he preferred. His family, he admitted, protested that “after all the agony television had caused us, its prying eye should [not] be allowed to intrude on this last and most intimate moment of all.” But he sensed an opportunity to serve himself and seized the moment. “That’s the way it has to be,” he told them, adding that he owed it to his supporters and to the people. His daughter dutifully found her name mark on the floor.44 Clearly, Nixon would persist in his unceasing quest for gaining love and understanding from America. Spontaneous? In all likelihood, the occasion had all the spontaneity of a pointillist painting.

  Nixon had borne adversity through the years, sometimes with grace, other times with petulance, but always with verve. As he prepared to depart from office, he was reconciled to the inevitability of his punishment. The moment presented him with the opportunity to display a rarely seen introspective side of himself. Whether wallowing in the banality of self-pity or reciting his achievements with a feisty grit and pride, he remained a compelling phenomenon to admirers and adversaries alike.

  Nixon appeared that day as he had so often before: the solitary man, fully exposed, with only a microphone and his family as stage props to shield him; the blatant self-consciousness, the twitching smile, the beaded perspiration, the eyes riveted to the red-lighted television camera, almost oblivious to the live audience before him—all that had become so familiar over more than a quarter-century. Familiarity itself gave reality to the moment; it also, on the surface at least, belied rampant rumors of the President’s drinking, drug use, and depression. Yet, for Nixon, the reality was failure, pain, and shame. Somehow, he steeled himself against such agony.

  Nixon rambled through memories and aphorisms. The advice for others, as so often, was autobiographical. “[T]hose who hate you don’t win unless you hate them, and then you destroy yourself.” He joked—awkwardly, as usual—that he had to find a way to pay his taxes, and that he read books although he was “not educated.” He urged his supporters to be proud of their work and the milestones of the Administration. His “old man” was “a great man because he did his job,” and every job counted to the hilt, regardless of what happened. His mother, too, was remembered. No books would be written about her, “but she was a saint,” he said, as tears welled up in his eyes.

  And then, as he had the night before, Nixon sought to identify with Theodore Roosevelt, a patron saint for presidential toughness. In that first talk, he had quoted Roosevelt’s praise for the “man in the arena,” the man who fought valiantly and ceaselessly for what he believed, and the man who knew the heights of achievement and who, if he failed, failed while “daring greatly.” For his “intimate” gathering, Nixon identified with still another side of Roosevelt—a tender, passionate, loving man obscured behind the image of walking tall with a big stick. The young Roosevelt’s beloved first wife had died of Bright’s disease when she was a mere twenty-three years old (and on the same day as Roosevelt’s mother). Nixon quoted a delicate, moving passage from Roosevelt’s autobiography that described her death and his enduring love for her. With her death, Roosevelt wrote, “the light went out from my life forever.” How strange that Nixon should have identified with Teddy Roosevelt’s lament for his inexplicable loss. For after all, Richard Nixon’s cause for grief was all too explainable.

  BOOK FIVE

  THE IMPACT AND

  MEANING OF WATERGATE

  XXI

  THE “BURDEN I SHALL BEAR FOR EVERY DAY.”

  THE PARDON: SEPTEMBER 1974

  On Sunday morning, September 8, President Gerald R. Ford attended St. John’s Church, across from Lafayette Park. Afterward, he invited a pool of reporters and photographers into the Oval Office, where he read a brief statement and then signed a proclamation granting Richard Nixon a “full, free, and absolute pardon” for any crimes “which he, Richard Nixon, has committed or may have committed” during his presidency. The time had come, the President said, to end this “American tragedy” and restore “tranquility.”

  Ford had no precedents, of course—the situation of his predecessor was unique. But significantly, he gave as his first reason for the pardon the “common knowledge” that the “allegations and accusations” against Nixon threatened his health. He thought that Nixon and his family had suffered long enough, but added that they would suffer no matter what Ford did. Then he turned to the considerations of “equal justice,” contending that Nixon would be “cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.” Ford anticipated long delays in the legal process and endless litigation, circumstances, he said, which would only exacerbate “ugly passions” and challenge the “credibility of our free institutions.” Interestingly, Ford noted that the former President might win his freedom on due-process grounds, with the result that the “verdict of history” might be “even more inconclusive” as to his guilt or innocence. At the end, however, Ford returned to his theme of “ending” Watergate and restoring “tranquility”; the nation could not afford to “prolong the bad dreams that continue to reopen a chapter that is closed.”

  With that, Ford signed the proclamation and released a statement of acceptance from the former President, who acknowledged his “mistakes and misjudgments.” The news of Nixon’s pardon erupted across the country, and the new President of the United States found that he had ignited a firestorm of his own.1

  Among the enumerated powers granted to the President in Article II of the Constitution, few are more absolute than the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The framers frankly acknowledged the “political” purposes of a pardon. Alexander Hamilton in Federalist 74 warmly endorsed its discretionary aspect. There would be, he said, “seasons of insurrection or rebellion,” or “critical moments, when a well-timed offer of pardon … may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

  When or what was that “critical moment” in 1974, that moment that might “restore the tranquility of the commonwealth?” Gerald Ford assumed the presidency on the crest of a wave of popularity and goodwill. “Our long national nightmare of Watergate” was over, he said as he took his oath of office. The change was cause for celebration: “Our Constitution works,” and here “the people rule,” he told the country. It was time to return to the nation’s business. Three days later, he promised Congress that controlling inflation had his top priority; moreover, he pledged he would not tolerate “illegal tappings, eavesdropping, buggings, or break-ins.” The new President and his imagemakers worked strenuously to protect the appearance of an “open presidency.” Ford’s simple earnestness appeared so credible; people seemed desperately eager to again believe their leaders.

  Perhaps the nightmare was over. What remained of Watergate seemed to be a mopping-up operation, one for the Special Prosecutor to conduct through the orderly processes of the legal system. Peter Rodino had closed down the House Judiciary Committee’s impeachment inquiry; the days of ever-more-dramatic political bombshells appeared over. Congress would pass the inevitable spate of “reform” legislation to rectify the certified abuses of power. True enough, the future fate of the former President appeared clouded. Would he be a witness at the forthcoming trials of his former aides? Would he find himself “in the dock,” the focus of his own criminal trial? That prospect undoubtedly h
aunted Richard Nixon and certainly worried his former associates.

  But did Watergate or Nixon’s personal fate impair Ford’s ability to carry out his functions? Did they prevent a return to the “tranquility” that had eluded the nation for nearly two years? We cannot portray national moods and conditions precisely; their fleeting elements can be captured only through the perceptions of beholders, each, of course, with his own interest at stake. It is clear, however, that Ford believed the nightmare still haunted the nation, and that he had an antidote. The new President’s cure had substantial merit; unfortunately, he fumbled its application, with costly short-run effects for him and for the nation.

  At Ford’s confirmation hearings in November 1973, a senator asked the nominee whether a new president might terminate any investigation or criminal prosecution against the president he had succeeded. “I do not think the public would stand for it,” Ford replied.2 One year later, President Ford journeyed to Capitol Hill to explain his decision to grant a pardon to Richard Nixon on September 8. So much of the affair of the past two years had been extraordinary; its dénouement was no exception.

  We have differing versions of when a pardon for Richard Nixon first received serious consideration. Seymour Hersh’s 1983 article on the subject in the Atlantic contended that Nixon selected Ford as his Vice President in October 1973 because “he thought that he could rely on Ford to pardon him.” Ford himself testified that on August 1, 1974, Haig told him that a pardon for Nixon, if he resigned, should be a possibility. J. Fred Buzhardt later insisted that he and his aides only had considered the contingency of Nixon pardoning himself and suggested that if Haig had indeed raised the idea of a Ford pardon, he had done so at Nixon’s behest.

  Buzhardt and his staff had been considering Watergate-related presidential pardons for some time in 1974. When the Supreme Court ruled that Nixon must surrender tapes subpoenaed by the Special Prosecutor, Buzhardt knew that the June 23, 1972 tape was “devastating” and undoubtedly would have a “terminal effect.” He called Haig and St. Clair that same day, suggesting that the President pardon all the defendants and himself, and then resign. Buzhardt had researched the problem and was satisfied that Nixon had the authority to pardon himself, and to do so against prospective charges relating to acts committed while he was President. Buzhardt repeated that suggestion to Haig on August 1, when he knew that Haig was about to inform Ford of the crucial tape transcript. Buzhardt later insisted that he never proposed any discussion of a Ford pardon of Nixon, yet he drafted a pardon proclamation in Gerald Ford’s name, dated August 6, 1974, three days before Nixon’s eventual resignation. Within a few days of the transition, Haig informed Ford that “a White House lawyer” had determined that the President could pardon individuals even before a “criminal action” had been initiated.3

  Haig remained at his post after August 9—much to the consternation of Ford’s longtime retainers. At this critical juncture, Ford found himself surrounded with Nixon’s aides, notably Haig, Buzhardt, and Leonard Garment. Haig apparently had persuaded Ford that he had been running the government for the past ten months and that he was indispensable. The Chief of Staff quickly established himself in Ford’s mind as a man who did things, and thus he made the President somewhat dependent on him, according to Clay Whitehead, who served both Nixon and Ford. Sharing in the typical desire to manage Ford, Henry Kissinger “vetoed” a presidential meeting with the Joint Chiefs of Staff on Ford’s first day in office, but the President ignored him. In his anxiety to avoid appearances of a “Stalin-like purge,” and to avoid tarring innocent people with the Watergate brush, Ford kept much of the Nixon staff in place for several months. Many of Ford’s friends thought it his biggest mistake and that it demonstrated, once again, his excessive loyalty to Nixon.4

  Less than a week after Nixon returned to San Clemente, John Ehrlichman’s lawyers subpoenaed the former President as a witness in the forthcoming trial of Nixon’s former aides. The day before, the Special Prosecutor’s office had said that no decision had been made regarding any prosecution of Nixon. But Nixon had some momentary good news. Ford’s press aide announced that all Nixon tapes and documents not subpoenaed would be returned to Nixon. Ford had agreed to release the material, the spokesman said, on advice from Buzhardt and James St. Clair. They had cited no formal authority, and instead had relied on tradition. But pressure from Jaworski and from Ford’s aides on newly appointed White House Counsel Philip Buchen resulted in a reversal of Ford’s decision. Buchen said that the White House would retain the materials pending the settlement of certain legal issues raised by Jaworski and “others.” Near the end of the month, Nixon received a subpoena to give a deposition for a pending civil trial related to Watergate. From his San Clemente exile, the law’s long arm seemed menacing to Richard Nixon. “Do you think the people want to pick the carcass?” he said in a telephone call to a Republican congressman on August 26, adding that “We’ve got problems with that fellow …”—meaning Jaworski.5

  As Nixon prepared to resign on August 7, the leading members of the Special Prosecution Force considered the question of his immunity, his availability as a witness, the feasibility of gaining a “confession of guilt” from him, and the prospect of obtaining a promise that he would not pardon anyone. Much of this discussion recognized the inevitability of Nixon’s resignation. James Neal, who later prosecuted the leading White House aides, stressed the importance of a confession, remembering the Agnew situation in October 1973. Another Jaworski aide warned that “it would be wrong to allow [a] deal that would forgo prosecution while allowing President [Nixon] to go around … proclaiming innocence.” The prosecutors recognized the importance of bringing the congressional leadership into any “deal.”

  The next day, Haig informed Jaworski of Nixon’s intention to resign and not to pardon any former aides. He also told Jaworski that Nixon would plead the Fifth Amendment if called as a witness in their trials and that he would be taking his presidential papers with him. According to Jaworski, Haig admitted that the tapes had been tampered with but said he did not know who had done so.

  Jaworski’s staff began earnestly to consider the question of an indictment against Nixon on August 9. The issues emerged quickly: that resignation had been sufficient punishment, obtaining a fair trial would be difficult, and prosecution would aggravate political divisions were all factors which militated against any further pursuit of the case; considerations of equal justice under law, the danger of persistent political division until charges against Nixon reached a final disposition, and the possible appearance of a deal’s having been made to exchange resignation for immunity, were all elements which mandated indictment and prosecution. At a meeting later that day, Jaworski insisted that nothing be done in the present context. One of his aides perceptively realized that the prosecutors were in a “no-win” situation, as a decision either way would be criticized.6

  Jaworski aide Philip Lacovara urged him to seek an indictment of Nixon and join his case with that of the other defendants. But other staff members divided on the issue. Neal, perhaps the most experienced prosecutor and political figure in the group, acknowledged that a prima facie case existed against Nixon but argued that “it would not be in the country’s best interest to prosecute him.” He then suggested that Jaworski leave the actual decision to the grand jury. Still another prosecutor urged that the case against Nixon be developed, then presented to President Ford to see if he preferred clemency. He added that if Jaworski chose not to prosecute, then the indictments against the other defendants should be dismissed. But the preponderance of opinion expressed to Jaworski firmly favored prosecution of the former President.7

  Nixon nevertheless had support from many quarters. The day he resigned, Senator J. William Fulbright said that Nixon’s contributions to foreign policy merited the nation’s “gratitude and approbation.” Fulbright suggested both a pardon for Nixon and amnesty for draft resisters, in order to surmount the twin traumas of Watergate and Vietnam. On August 2
0, Ford nominated Nelson A. Rockefeller, Nixon’s old rival, for the vice-presidency. Reporters questioned the former New York governor regarding Nixon’s future. He already had been “hung,” Rockefeller said, and added that he need not “be drawn and quartered.” He proposed that Nixon be given “immunity from prosecution.” That same day, by a 412–3 vote, the House of Representatives accepted the Judiciary Committee’s report on its impeachment inquiry.8

  Clare Boothe Luce, in a New York Times essay, called for a pardon less than a week after Nixon resigned. She dismissed Nixon as simply “one more crime statistic,” and observed that his offenses were far less horrifying than murder, rape, or treason (“Nobody was drowned at Watergate,” she said, in an obvious swipe at Senator Edward Kennedy). For that, Nixon already had suffered “cruel and unusual punishment;” he had been “stripped” of the presidency and had “lost all that made his life rich and meaningful.” “Booking … Citizen Nixon,” Luce wrote, would satisfy only revenge. She urged Ford to use his constitutional power for clemency—“if His Majesty, the public, so wills.” But public sentiment was skeptical: a Gallup poll, conducted between August 16 and 19, showed that 56 percent of the respondents favored a criminal trial for the ex-president.9