The Wars of Watergate

by Stanley I. Kutler

  Sir Edward Coke, the great English jurist of the seventeenth century, defined a pardon as “a work of mercy.” In a similar vein, Alexander Hamilton in Federalist 74 thought that the pardoning power tempered justice that might be “too sanguinary and cruel” in cases of “unfortunate guilt.” In 1915 the Supreme Court concluded that a pardon “carries an imputation of guilt; acceptance a confession of it.” In his first full day of office, President Jimmy Carter, who in the campaign of 1976 slyly exploited the nation’s memory of Nixon’s pardon, granted a pardon to Vietnam draft resisters who had not committed violent acts. During the campaign, he told military veterans that amnesty meant that what you did was right; a pardon, however, only provided forgiveness. Nixon could not escape such judgment; in that sense, President Ford secured for the nation what only a lengthy trial might have gained.31 Jaworski was right: the pardon was no diploma for proud display. Indeed, it became a subject which Richard Nixon always took special pains to avoid, omitting any mention of it whatsoever in his memoirs.

  And yet, Ford himself could not ever wholly escape a perception that he might have participated in a corrupt bargain, a perception that only rekindled cynicism about professed ideals of equal justice and the rule of law. One month after the pardon, the White House issued an extraordinary document detailing the chronology of the relevant events, in an attempt to refute any speculation regarding a possible deal. In the years following the pardon, various observers have impugned Ford’s motives and put unfavorable interpretations on the unfolding events of August and September 1974. Suggestions have been made that Ford promised Nixon a pardon as early as the time of his vice-presidential nomination, and Seymour Hersh has contended that in a September 7, 1974 telephone conversation, Nixon threatened Ford with a public revelation of Ford’s earlier promises of a pardon unless he delivered one.32

  After fifteen years, hearsay alone supports such notions; no documentary evidence has appeared, and no participant close to the event has gone on record with a story of a corrupt bargain. Still, doubts linger; conspiracy hypotheses have an allure for which students of events can devise only the most tenuous of explanations. However refuted, they persist, and however groundless, they always appeal. What people think may be true is often as true as the truth itself. Nixon later acknowledged that he did not use the pardon power himself, because he knew “it would inflame the situation and would obviously look like the ultimate cover-up.” Ford learned that as a painful lesson. For many, his action made a mockery of any notion of equal justice. Representative John Anderson, echoing Ruth’s admonition to Holtzman, criticized the media inclination to view political decisions “under the lenses of suspicion and doubt,” emphasizing ulterior motives and secret deals. Inevitably, he believed, such notions became self-fulfilling prophecies. Small comfort that in an obscure legal challenge to the pardon, a judge praised Ford’s action as “a prudent public policy judgment.”33

  Ford pardoned Richard Nixon to rid himself of Watergate’s lingering presence; yet in doing so he hampered his credibility as a leader and contributed substantially to his electoral defeat in 1976. The pardon issue constituted the largest “polling negative” against the President. For the remainder of Ford’s presidency, Nixon was an albatross seemingly determined to hang on the neck of his benefactor. Nixon insisted on weekly briefings from the Ford White House, covering topics from foreign policy to economic matters. In addition, Ford and his advisers had to answer for Nixon’s allegedly lavish furnishing of his offices. The normally mild-mannered Brent Scowcroft, Ford’s National Security Adviser, snapped, “Nixon is a shit,” when the former President embarked on a trip to China, much to the consternation of the White House.34

  Ford himself never expressed any doubts as to the correctness of his action; yet he realized exactly what Nixon had cost him. He waffled badly in 1974 on the issue of the former President’s contrition. Later, he remembered how Nixon had dodged the real issue of his responsibility. If Nixon had only been more contrite, Ford believed, the pardon might have been more acceptable. But as Ford tartly (disappointedly?) noted: Nixon “couldn’t take that final step.” It was an old Nixon skill, one aide remembered, to protect himself at the expense of others. The framers of the Constitution debated granting pardon only after conviction. They decided otherwise, in the belief that a pardon might be used as a means of obtaining cooperation from an accused individual. But Richard Nixon provided nothing toward resolving Watergate.35

  However much the pardon can be rationalized or explained from a distant perspective, Ford’s action precipitated a convulsive reaction that once again seared the nation. That great body of undecided Americans, who decisively weighed against Richard Nixon as the evidence mounted against him, must have wondered, following his pardon, about the nation’s vaunted concern for equal justice. The energy moving from their doubt was not to be readily dissolved. To acknowledge all that fury, all those assaults against established authority and venerated tradition that had marked the months preceding Nixon’s resignation—and then one month later to dismiss the entire experience saying, “Your nightmare is over”—asked too much of the public. A people roused to such a fever pitch could not easily slide from rage to compassion. In time they might—but not then.

  XXII

  IN THE SHADOW OF WATERGATE

  The pardon no more sounded the last echo from Watergate than it marked Richard Nixon’s permanent departure from the public scene. “Watergate” etched itself into public memory, and sustained itself long after August 1974. “History has a unity and continuity; the present needs the past to explain it; and local history must be read as a part of world history,” historian Frederick Jackson Turner wrote a century ago. Watergate had been conditioned by the traumas of the 1960s; eventually, it influenced domestic and foreign policies in subsequent years, and resonated throughout public life.

  Watergate served as a prescription for attempts to alter the political and legal landscape in the United States, and it became a standard for analyzing political behavior. It did not halt or decisively reverse the long-term trend toward greater executive power and responsibility. Eight years after Nixon’s resignation, the Supreme Court upheld presidential immunity in civil cases, and warned against the “dangers of intrusion” on presidential authority and functions. But the perceived abuses of power during the Nixon presidency led to a variety of “reforms” ranging from attempts to institutionalize the special prosecutor, to curbs on presidential manipulation of executive agencies for personal political gain, to new campaign-financing laws. Watergate had a substantial influence on the political parties and political ideology. The wars of Watergate certainly had some effect on the foreign policy of the Nixon Administration, with consequences for the future as well.

  As much as anything, however, as a symbol and memory, Watergate shaped public discourse even when distorted or exaggerated. In the campaign of 1980, Ronald Reagan attacked a federal court ruling against abortion restrictions as “an abuse of power” as bad as Watergate. Senator Edward Kennedy criticized President Reagan in 1987 for reaching into the “muck of Watergate” to nominate Judge Robert H. Bork to the Supreme Court. Bork never was able to shake his image as a bloody accomplice in the events of October 1973; he had, Kennedy charged, executed “the unconscionable assignment” of firing Archibald Cox, “one of the darkest chapters for the rule of law in American history.” In 1986, Richard Nixon, serenely confident that he had been “rehabilitated,” suddenly found Watergate alive and well, hauntingly compared to the Iran-Contra affair that erupted that fall. Watergate proved to be more than the “dim and distant curiosity” that one historian described.1

  President Ford’s decision not to pardon President Nixon’s indicted aides enabled the Watergate Special Prosecution Force to proceed with the criminal trials. The WGSPF already had secured a number of convictions during the previous twelve months, often resorting to plea-bargaining arrangements—with “bargain basement abandon,” wrote one critic. As early as August 1973
, Special Prosecutor Archibald Cox told his staff to connect the recommended length of Magruder’s sentence to “the extent of his cooperation.”

  Donald Segretti pleaded guilty on October 1, 1973, to three counts of distributing illegal campaign literature and eventually served four months. Dwight Chapin was indicted on November 29, 1973, on four counts of perjury relating to his ties to Segretti. After a five-day trial, he was convicted on two counts on April 5, 1974, and sentenced to ten to thirty months in prison. John Dean pleaded guilty on October 19, 1973, to one count of obstructing justice, but the court delayed his sentence until August 2, 1974, to ensure his continuing cooperation. Judge John Sirica ordered a jail term of one to four years, but Dean served only four months, as Sirica ordered him released following the conviction of Nixon’s closest associates. Dean spent the entire time at Fort Holabird in Maryland, conveniently available foralmost daily questioning in preparation for the Mitchell-Haldeman-Ehrlichman trials, in which he appeared as the principal witness for the prosecution.

  Jeb Magruder offered a guilty plea in August 1973 and received a penal term of one to four years. He, too, appeared as a witness against his former associates and had his sentence reduced. Herbert Kalmbach pleaded guilty in February 1974 to several campaign violations, and in return for his testimony, all other charges were dropped. Richard Kleindienst did not contest a one-count misdemeanor charge for refusing to answer Senate questioners when queried about his role in the ITT antitrust suit. The decision not to press criminal charges against Kleindienst alienated many of Jaworski’s subordinates from the Special Prosecutor. Kleindienst received a thirty-day sentence and a $100 fine, both of which were suspended.

  Charles Colson pleaded guilty to a charge of obstructing justice by scheming to defame and destroy the reputation of Daniel Ellsberg and thereby influence Ellsberg’s trial. Other charges for his role in obstructing justice in the Watergate burglary were dropped, and on June 3, 1974, Judge Gerhard Gesell sentenced Colson to one to three years. Egil Krogh earlier had received a two-to-six-year sentence for his role in planning the break-in of Ellsberg’s psychiatrist’s office; all but six months of the sentence were suspended in exchange for Krogh’s testimony against the others. After a two-week trial, a jury convicted Ehrlichman, Liddy, and two Cuban burglars for violating Dr. Fielding’s civil rights as a result of the break-in; in addition, the jury found Ehrlichman guilty on three counts of perjury. Ehrlichman was sentenced to concurrent prison terms of twenty months to five years. Liddy received a jail sentence to run simultaneously with the one he was then serving in connection with the Watergate burglary.

  The trial of Mitchell, Haldeman, Ehrlichman, Robert Mardian, and Kenneth Parkinson for various charges of conspiracy, obstruction of justice, and perjury began on October 1, 1974. After three months, the jury returned guilty verdicts against all but Parkinson. The appellate court subsequently overturned Mardian’s conviction, ruling that his case should have been severed from the others because of his lawyer’s illness. On February 21, 1975, Richard Nixon’s closest advisers—Mitchell, Haldeman, and Ehrlichman—received sentences of 2½–8 years for their crimes. For many, the verdict represented a conviction of the former president in absentia.2

  Watergate profoundly affected struggles for the leadership and ideological control of the major political parties. Richard Nixon’s fall from grace strengthened the claims of Republican conservative ideologues, who had gained control of the party in 1964 only to find their goals frustrated by the rise of the “pragmatic” Nixon. At the same time, Watergate spurred the elections of Democrats bent on an agenda of reform for the political process who, however, had virtually no cohesive program for national policies. Perceived at first as a Democratic triumph and a Republican debacle, Watergate in reality facilitated the conservative takeover that reinvigorated the Republican Party, and although the Democrats temporarily profited, they left unattended the fissures in their old coalition and ignored the need for fashioning programs that would reverse the crumbling of that coalition.

  The 1964 rout of Barry Goldwater left the Republican conservatives no alternative but Nixon. Yet even before Watergate, as President Nixon reached out for rapprochement with China and as his domestic programs mounted deficits and produced inflation, conservatives found themselves politically estranged. Watergate discredited Nixon personally; it also dealt a blow to the “middle ground” in the Republican Party that Nixon had preempted in the 1960s between the liberal Rockefeller forces and the Goldwater Right. With Nixon’s departure, and Ford’s defeat in 1976, the conservative movement captured the field against the relatively feeble challenges from its intra-party foes.

  Except for the brief Ashbrook insurrection in the 1972 primaries, conservatives had muted their criticism of Nixon, confining it to occasional attacks on isolated policies. But with Nixon’s resignation, conservatives dropped their restraints, launched an ideological assault on his overall policies, and excoriated Ford for maintaining them. William Buckley assailed Nixon for the “humiliating defeat” in Vietnam, for a budget deficit “larger than any Democrat ever dared to endorse,” and for the “baptism of détente” with its attendant talk of the “peace-loving intentions of the Communist superpowers.” Howard Phillips blamed Nixon for passing strategic superiority to the Soviets, for sowing the seeds of economic destruction because of his inability to make difficult choices, for dismantling the American Navy, and for expanding the Great Society contrary to his campaign promises. Foolishly, according to Phillips and others, Nixon believed that if he appeased the Left on policy matters, he would have a respite from his Watergate difficulties. Barber Conable, though a leader of House Republicans and a more traditional Republican conservative, found that many policies he favored which had been endorsed by Nixon had become discredited because of their association with Nixon.

  As President Ford continued the same policies, conservatives refused to submit to party loyalty and offer affection for an incumbent they had once admired. In May 1975 Ronald Reagan condemned Ford for a projected $51-million budget deficit. Conservative Digest reported a poll in June 1975 claiming that 71 percent of its readers thought Ford was doing a “poor” job, and 91 percent opposed his nomination for the 1976 election.3

  The conservative fury against Nixon and his successor nearly resulted in denying the 1976 Republican nomination to Ford, an event that would have been unprecedented in the twentieth century. Senator James Buckley and Pat Buchanan called for an “open convention.” The conservatives massed behind a Reagan candidacy and failed to carry it through only by a scant margin; many believed that a second ballot would have given the nod to the former California governor. When Reagan spoke to the 1975 Conservative Political Action Conference, he invoked the sacred appeal of the “Mandate of 1972,” a mandate that conservatives believed had been given to them to implement their political and social agenda, and not to Nixon personally. The election, they claimed, had emphatically repudiated the ideology of “radicalism” and “social permissiveness” that had captured the Democratic Party. “The mandate of 1972 still exists,” Reagan proclaimed. “The people of America have been confused and disturbed by events since that election, but they hold an unchanged philosophy.” Reagan and his advisers held to that faith. In the 1980 campaign, they used the conservative indictment against Nixon and Ford to telling effect against a Democratic President. Ironically, as President Reagan concluded his second term in 1988, conservative spokesmen, such as Buchanan, once more assailed the nation’s continued “leftward drift.”4

  Richard Nixon’s Republican opponents finally enjoyed a measure of revenge. Fifteen years after he left the presidency, Nixon found himself out of the mainstream of his own party. Periodically, he invoked conservative slogans and labels, but he remained a distrusted and embarrassing figure. The former President had the unique distinction of not appearing at the four presidential nominating conventions of his party that followed his leaving the White House.

  Watergate was chiefly respon
sible for swelling the ranks of congressional Democrats in the 1974 and 1976 elections. In 1974, at the height of interest in the scandal, the Democrats added seventy-five new members to the House. Many of the newcomers were elected on promises of electoral reform. In the meantime, however, the attention to procedural reforms ignored the growing schisms in the Democratic Party, schisms that reflected changing social and economic concerns among the electorate. The 1972 election pointed to the growing strains within the party; Watergate, however, obscured, then postponed, any real understanding or reckoning with the party’s dilemmas. “The Real Majority,” political analysts warned, no longer consisted of the “have-nots” who had formed the basis for Democratic coalitions for more than forty years. The “haves” had new concerns, which made the Democratic Party’s “politics of inclusion” paradoxical, even contradictory.5

  Many of the new Democrats represented marginal districts, often suburban, middle-class, and domesticated to the politics of affluence. The programmatic concerns of the AFL-CIO, minority coalitions, and women’s groups had limited appeal in such districts. The reform-minded new representatives struck a Faustian bargain: the Democratic leadership gave them their “reform” proposals but demanded that they toe the line on policy concerns originating in the party’s traditional constituencies. The newcomers’ support for the leadership’s desired social and economic policies only aroused organized opposition in their local districts from pro-business organizations, as well as from ideological groups demanding a reduced welfare state and support for antiabortion measures.