The Wars of Watergate (102 page)

The nation barely had time to absorb the impact of the Supreme Court’s decision, for that same evening, July 24, the House Judiciary Committee reassembled to continue its impeachment inquiry. Now its debates would be aired on prime-time television. Nixon had fought throughout his presidency to control the media, to use it to his advantage. Whether in unveiling his Cabinet or in announcing his China visit or his selection of Gerald Ford, he had tried to persuade the nation that he was the right man doing the right thing. It was fitting, then, that following his repudiation by the Supreme Court, his “enemies” mounted their own television spectacular, as choreographed in its production and as emotional in its impact as anything that Richard Nixon might have imagined doing.

As the debate opened, Chairman Peter Rodino waited, gavel poised in midair, for the television prompter to signal the start of the proceedings, just as if he were officiating at an athletic event. The air was thick with real drama. For so long, impeachment had been unimaginable; now, the nation was to be a witness to proceedings that might lead to that very end. The Supreme Court news did not overshadow the evening’s events in the Judiciary Committee, yet it was pervasive. Moreover, the Court’s opinion neutralized contentions that partisan Democrats alone opposed the President, as Nixon’s own Chief Justice had rendered the opinion. And some on the committee knew that there would be an unusual outcome to the impeachment
inquiry, since at least six Republicans and three Southern Democrats had determined to vote against the President. The “fragile coalition” had met for nearly six hours in Tom Railsback’s office that day, mapping strategy to control the language of the outcome that now was cast. Rodino’s apparent calm and dignity masked the behind-the-scenes activity that surrounded the coalition’s efforts to draft resolutions to be introduced that evening by the Democrats.

The Chairman’s speech had been carefully crafted by his aides. It spoke for fairness and education, with a sense of the occasion. “Make no mistake about it,” Rodino said. “This is a turning point, whatever we decide.” He at once broadened and narrowed the problem before the committee. The House inquiry was not that of a court of law, he told the audience. Quoting Edmund Burke’s 1788 definition of impeachment, Rodino said that the inquiry involved accusation and judgment by statesmen of other statesmen who had abused power, and it was not dependent “upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality.” The narrow question centered on whether the President had told the truth when he said he had been deceived by subordinates, and whether or not he himself had participated in a design systematically to cover up the role of his agents and associates in an illegal political-intelligence operation, together with related activities—whether he, in short, had engaged in a course of conduct that had impeded his faithful execution of the laws and had done this for his own political interest and protection. Finally, Rodino pointedly underlined the constitutional nature of the proceeding. No one welcomed such a test of constitutional practices, he said; still, “our own public trust, our own commitment to the Constitution,” were at stake.
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Edward Hutchinson briefly responded. His educational homily for the audience focused on the “political” nature of impeachment. He revealed that the committee had not even agreed on the nature and scope of an impeachable crime, as if to discredit impeachment itself as well as the process at hand. Taking his assignment one step further, Hutchinson reflected on the awesome burden of impeachment; conviction allowed for no discretion to fit the punishment to the crime: removal was the only course. Evidence of a serious offense might exist, yet such an offense, he suggested, might not warrant so extreme a measure. He warned his colleagues—and the public—that the offense should be of “sufficient gravity” to justify removal. Finally, Hutchinson took note of the day’s events in the Supreme Court and suggested that the Chairman consider postponement until the President yielded additional evidence. Rodino ignored him and instead turned to the committee’s senior Democrat, Harold D. Donohue, who introduced a resolution and two articles of charges against Nixon. For the first time in more than a century, Congress confronted the President of the United States with the very real possibility of impeachment.
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The first article of impeachment charged that the President, by obstructing and impeding the administration of justice, had violated his constitutional duty “to take care that the laws be faithfully executed.” Nixon personally, or through his agents, had pursued a policy to delay or impede the investigation of the Watergate “illegal entry,” to cover up the identity of those responsible for the action, and to cover up and conceal “related unlawful covert activities.” A list of specific items followed, including misusing the CIA to impede the investigation, interfering with the conduct of the FBI and the Department of Justice, “approving, condoning, acquiescing in, and counseling” others to give false testimony, and suppressing or withholding evidence.

The proposed Article II charged that Nixon had, directly or through subordinates, “abused the powers vested in him.” This abuse included the misuse of such various agencies as the FBI, the IRS, and the Secret Service to violate the constitutional rights of citizens; the creation of the Special Investigative Unit (the “Plumbers”) to engage in unlawful covert activities; and the exercise of the President’s position to impede lawful inquiries into the conduct of his office. At the end of the article, the drafters stated a number of charges centering on Nixon’s dealings with Congress, including providing misleading information; refusing to honor congressional subpoenas designed to pursue an impeachment inquiry; and personally or through his agents, seeking to undermine the legitimacy of congressional inquiries into his conduct. Finally, it was charged, his conduct included making “false and deceptive statements” regarding his knowledge of and actions related to matters under investigation.

Donohue did nothing more than introduce the resolutions bearing his name. Article I resulted from feverish drafting efforts during the previous two days by members of the coalition and committee staffers. Responding to the members’ wishes for something concrete to debate, John Doar hastily assembled his draft articles and presented them on July 19. Several members of the coalition, including Caldwell Butler, met with Richard Cates on Saturday morning, July 20, and again had been impressed with Cates’s tight summary of the evidence and its inexorable conclusion. No such precision appeared in the Doar drafts, which struck the coalition members as vague, rambling, and altogether “a sloppy piece of work.” Butler considered them “incompetent” and “shocking” in their inaccuracies. Dissatisfaction with the drafts galvanized the coalition into collective action, and led to their July 23 meeting in Railsback’s office. Rodino was well aware of the coalition’s activity, and he urged James Mann to rework the articles in consultation with his allies and present them to the whole committee before debate began on July 24. Some language had to be on the table, and as late as the afternoon of the twenty-fourth, Rodino continued to press Mann for “something” to present. The Donohue resolutions were the result. But even after
they were introduced, Mann remained busy, refining them and consulting with his coalition partners, as well as with Doar.
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The Southern Democrats had caucused among themselves and agreed upon “obstruction of justice” and “abuse of power” as the unifying themes for any articles of impeachment. Ray Thornton drafted one article containing charges of obstruction of justice, abuse of power, and defiance of congressional subpoenas. But, sensitive to the egos of others, Thornton did not lay the draft before the entire group. Meanwhile, Mann prepared a draft article enumerating the President’s use of the IRS, the attempt to use the CIA to scuttle the FBI’s investigation, the framing of the Huston Plan, the use of the Plumbers, the failure to comply with committee subpoenas, and the making of misleading statements to the public. Walter Flowers, still grasping for some alternative to impeachment, now suggested that censure might be easier. Flowers pushed hard on this point throughout that evening and the next day, but the others prevailed, arguing that censure was not a fitting punishment for the offenses (a position that Flowers would conveniently adopt as his own during the public debates). That same evening, Tom Mooney, a Judiciary Committee staffer with close links to Railsback, armed with copies of the Doar, Mann, and Thornton drafts, also began to compose articles on his own.

When the coalition reconvened at 8:00
A.M.
on July 23, Mooney offered a draft article focusing on the President’s obstruction of justice. Working through the afternoon, periodically meeting with Mann and other members, Mooney assembled four other drafts before producing one for circulation. Five of the members met the next morning and developed two more drafts. They realized that their articles had to be drawn with the severity of any indictment, charging Nixon only with what could be proven. Nothing troubled them more than linking the President to actions of his subordinates. They knew, as Mooney said, that they must “not attribute something to the President that was done by one of his agents.” The acts may not have been Nixon’s, the members concluded, but they could link him to “approving, condoning, and acquiescing” in unlawful activities, as Butler suggested. The coalition also carefully avoided attributing motives to Nixon that could not be substantiated, such as the charge that he had considered executive clemency to gain silence and false testimony from the Watergate burglars. Meanwhile, Mooney learned that Robert McClory had instructed Franklin Polk, another minority staff member, to draft an article on abuse of power.

Mann carried his draft to Rodino a few hours before the opening of the public debate. Just prior to that, the group wrote important changes, particularly one designed to make it unnecessary to prove that the President succeeded in accomplishing the purposes of his unlawful activities. At the beginning of specific charges, they now inserted the words “endeavoring to misuse,” or “endeavoring to cause” to describe Nixon’s action. Flowers
and others demanded that any reference to Daniel Ellsberg be deleted, because they believed him to be a “traitor.” The resultant language stipulated that the President had concealed “the existence of related unlawful covert activities.” Even after Donohue introduced the resolution, the coalition continued to fine-tune the obstruction-of-justice article, the one which they considered the most basic and understandable for impeachment. At a dinner meeting on July 25, with the debate already underway, they changed such words as “burglary” and “illegal entry” to describe the events of June 17, 1972 at the Watergate, replacing them with “unlawful entry,” words taken from the D.C. Criminal Code; the members of the coalition, after all, were lawyers.

The coalition had the Mann and Thornton drafts of the charges in Article II on July 23. Meanwhile, McClory, aided by Jenner and Polk, had developed a similar article. Like Mann, McClory planned to incorporate the President’s refusal to comply with committee subpoenas as part of his charge, but he agreed to submit it as a separate article when some members of the coalition refused to support it. In the haste to provide material for Donohue’s introduction, however, the drafters did not have time to separate the subpoena charges; that refinement would have to wait for substitute motions during the debate of the whole committee. Significantly, the coalition failed to delete any reference to Ellsberg and the Fielding break-in. Article II simply did not bind together all the members of the coalition with the same passionate commitment to its principles that characterized the Democratic majority of the committee.

Each member of the full committee had fifteen minutes during the opening debate for his remarks. The proceedings carried through the afternoon and the evening of the second day, July 25. Most of the remarks were predictable. Liberal Democrats made it clear that they had heard enough over the past months. They were ready to “fulfill their constitutional obligation.” The President, Don Edwards declared, had engaged in “serious misdeeds,” he had “corrupted and subverted” political and governmental processes, and he “should be impeached.” The President’s defenders were equally predictable, demanding that impeachment proceedings meet the standards of a criminal legal trial, attacking the paucity and flimsiness of the evidence and the partisan political character of the proceedings, and stressing the relative morality of political behavior. Mayne charged that the case consisted only of “inferences,” while Dennis insisted that the Nixon Administration was “not the first to be guilty of shoddy practices.”

Attention focused on those “undecided” members, that coalition of Republicans and Southern Democrats who might provide a special stamp of legitimacy and bipartisanship for an impeachment vote. The politics of impeachment
involved more than simple arithmetic. Those supposedly uncommitted congressmen had, in fact, determined their course, and had drafted the resolutions on the table. As they began to reveal their positions publicly, their remarks ranged from embarrassment to outrage and even to expressions of faint hope that the President still might rescue himself. And they all spoke directly to their own constituencies—districts, it will be recalled, which had given the President substantial support in the past.

Railsback rambled with a confusing, even maudlin presentation of his own position. He had “agonized” throughout the inquiry, for Richard Nixon twice had campaigned for him, and Railsback regarded him as a “friend.” He offered high praise for the President’s record, but he had “problems” and “concerns” to share with his colleagues and constituents. He then outlined his views of how Nixon had abused power and obstructed justice in the cover-up of White House involvement in political-intelligence activities.

The next morning, Hamilton Fish ignored Richard Nixon and spoke instead of his own duties as a member of the House and of the nature of impeachment. The evidence “deeply troubled” Fish. Hinting at his course, he concluded that “if the evidence is clear, then our constitutional duty is no less clear.” William Cohen was less elusive and made his position quite plain. He had prepared for his remarks by reading the
Federalist Papers
, and thought, “how in the world did we ever get from the
Federalist Papers
to the edited transcripts?” Cohen distinguished between impeachment and a criminal accusation, noting that impeachment involved a determination of “those acts which strike at the very core of our constitutional and political system.” Furthermore, he disabused his audience of the popular notion that circumstantial evidence had no validity. Finally, he dismissed any allegations of a conspiracy against Richard Nixon. The President’s wounds had been self-inflicted, Cohen declared, and he had invoked “valuable and viable” doctrines such as national security and executive privilege for the wrong reasons and had dangerously weakened their future credibility. “I think,” Cohen concluded, “that no man should be able to bind up our destiny, our perpetuation, our success, with the chains of his personal destiny.”