The Wars of Watergate (104 page)

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.”
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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.
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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.
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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.
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The committee had approached the point of diminishing returns. Mann originally had included the subpoena issue in his draft of Article I, but contended that Doar insisted the topic be treated separately. Perhaps Doar reasoned that it might be best to have another article in reserve for a House vote—even one for members to oppose, in order to appear more fair-minded. But Mann and the other conservatives had exposed themselves enough on two votes; now, it seemed, it was time to demonstrate mercy. William Cohen
refused to support Article III because the entire House had not voted the President in contempt, and he did not think it fair to raise the issue to an impeachable charge. Fish at first agreed with Cohen, but later events caused him to regret his action.
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Except for the final votes, the remainder of the day belonged to the Democratic liberals. First, John Conyers introduced an article condemning the President for his taking “unilateral” military actions against Cambodia without informing Congress and for insisting that he had not done so. Edward Mezvinsky then submitted a fifth article, charging the President with willfully evading income taxes and with receiving compensation in the form of excessive government expenditures for his estates. Both articles failed, 26–12.

Mann thought that he had an agreement with Peter Rodino that these articles would not be introduced, but he realized that the liberals “had to do it.” Later, he graciously said that Conyers and others had restrained themselves so as not to overstate the committee’s case against the President. In the first vote, Rodino and seven other Democrats joined a solid Republican opposition; in the second, such liberal stalwarts as Hungate, Waldie, and Drinan refused to support the motion. On the Cambodian issue, Cohen pointed out that the President’s action followed congressional “sloth and default”; correctly, he noted that far too many members of Congress knew about the bombing and both explicitly and implicitly supported it. The tax issue presented complications of factual interpretations and the expiration of the statutes of limitation, as well as sensitive matters that touched closely on the members’ own behavior. Cohen saw the charge as “blatant partisanship,” while Jack Brooks considered it an issue of “fairness,” understandable to all Americans. This time, Charles Sandman may have won some sympathy for the President when he complained that “any least little thing that Richard does is a crime.”
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In the wake of the votes, unfounded reports circulated of an impending
kamikaze
attack on the Capitol by military units loyal to the President. Rodino and other Democrats supposedly reacted tearfully to the results of the final voting. Cohen, who had courageously exposed himself for months, found such emotions “disgusting,” and thought some of the “hired partisans” were feigning their sadness. He knew there “wasn’t too much room for sympathy or empathy or anything else for Richard Nixon.” Politics was on the minds of some. After the vote, Flowers retreated to his office and discussed the ramifications of his votes with his staff. “Let’s figure out how we are not going to get burned in the next election based upon this,” he told them. Party feeling in his native Maine left Cohen somewhat embittered. Shortly after the vote, he appeared in the state, and a hostile questioner
reminded him of Maine’s great Civil War senator, William Pitt Fessenden, who had opposed the impeachment of Andrew Johnson. Cohen cleverly reminded her that Fessenden had broken party ranks to do so. Mann castigated the Republican loyalists for their partisanship, blaming them for inspiring a flood of hostile mail and telegrams from his district.

At this point, Senate Republican leader Hugh Scott told Vice President Ford that he considered the case lost, with impeachment and conviction virtual certainties. But Nixon loyalist Senator Carl Curtis (R–NB) urged Hutchinson to “drive home the point over and over again” that no hard evidence existed for “a legal basis for impeachment.” On the other side, Congressman Wright Patman had a long memory and now understood, he thought, how and why his committee had blocked his proposed Watergate inquiry in October 1972. He urged Judiciary Committee members to cite the event as further obstruction of justice on the part of the President.
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The President had not only lost in the Judiciary Committee, but his public support had plummeted. Whatever one’s sentiments about impeachment, the prevailing view was that the televised proceedings had conveyed an image of congressional conscientiousness, intelligence, and fair-mindedness. Those images nourished a public confidence that lent some legitimacy and calm to the eventual outcome of events.
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Television ratings services gave the White House advance information on their findings. On July 30, as the committee debate ended, the Nielsen Company informed White House aides that the debate had an estimated audience of 35–40 million—extraordinarily high numbers. A few days later, Nielsen reported that the average household watched 1.9 days of a possible four of the debates, for an average of 3 hours and 43 minutes. The viewing audience translated into double the American population of 1868, the year the House impeached Andrew Johnson. Only 10 percent of U.S. adults heard
none
of the House committee proceedings on television or radio. A Louis Harris poll taken on August 2, a week after the first vote, showed public opinion favoring impeachment 66–27 percent. Pro-impeachment sentiment had risen 13 percent in one week.
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Public opinion in the Watergate affair amounted to an extraconstitutional check and balance not envisioned by the framers of the Constitution. Little could they imagine an impeachment process in full view of the American population—“live,” to use an ahistorical term. Perhaps public opinion eventually perceived the blatant and petty partisanship on both sides that characterized the Andrew Johnson affair, but its influence in 1868 is hard to measure. In 1974, on the other hand, the committee members went to great lengths to make sure that the public understood how and why they acted as they did. That was not a formal constitutional check, but it fulfilled James
Madison’s anticipation of the “second sense of the community” as a restraining and validating influence on government.

After the final committee vote, the President spent a restless night. Early the next morning, he wrote out his options: resign immediately; resign if the full House voted impeachment; or fight through the Senate trial. Nixon’s “natural instinct” prevailed over any reasoned approach to the options, for at the end of his notes, he wrote: “End career as a fighter.” The only other real alternative was to set a precedent for resignation—and that was “far worse,” he thought. But hours later, according to Nixon, Haig read the June 23, 1972, tape transcript “for the first time” and agreed with Buzhardt and St. Clair: “I just don’t see how we can survive this one,” Haig told the President. The next day, August 1, Nixon told Haig that he intended to resign.
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Life went on around the President, however. He still had the power to do favors for friends, although White House aides recommended that in the light of the Chinese “internal situation,” Ambassador George Bush not ask the Peking government to allow comedian Bob Hope to tape a television special there. More important, Nixon’s political and public-relations advisers carried on the resistance. As he and Haig discussed the most incriminating tape transcripts, an aide told the General that the White House must not concede the outcome of an ultimate vote on impeachment in the House. He urged that House Republicans get the message that they had “no easy loophole,” that impeachment was bad for the country and destructive of the presidency. “We should say flatly,” the aide wrote, “that no politician is going to get off the hook or shirk his duty in this matter.” Meanwhile, other advisers offered recommendations to St. Clair of lawyers to assist him in the Senate trial, including Wiggins and Senator John Sherman Cooper (R–KY).
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Dean Burch, the former Federal Communications Commission Chairman, had come to the White House in March 1974 to coordinate political and public-relations defenses. Burch suspected he had been chosen because the President and Haig believed that Burch could “tame” his friend Barry Goldwater. That prospect was rather unlikely; nevertheless, Burch could not resist the offer. Burch, his chief aide, Charles Lichenstein, and others met daily to decide on tactics and strategy. Like St. Clair, Burch and his group suffered a great handicap in having no direct access to their “client.” Haig had absolute control over their activities; moreover, unlike similar groups who had worked with Haldeman, they did not have the benefit of even indirect presidential orders. The result was a vacuum, as Haig orchestrated efforts of which the President had no knowledge, and which, if he had known of them, he would have realized the futility of pursuing. Meanwhile, Haig prepared Nixon’s “talking papers” for meetings with Burch and other
counselors. The defense effort also suffered from faulty intelligence. In June Burch informed the President that House Republican leader John Rhodes assured him that no Republicans would vote to impeach.