The Wars of Watergate (65 page)

Despite the turbulence of the Administration’s changes, Richardson remained optimistic. The new Attorney General told John Ehrlichman that he would continue to have Richardson’s “total respect.” Richardson informed Ehrlichman that he wished he himself had not become “an instrument” in dealing with the affair, but he had not been “convincing enough” to the President. Ehrlichman, confident as ever, said he had no concern as to the outcome of events and believed the whole thing “ephemeral.” “I have that feeling, too,” replied Richardson. But as Richardson reviewed the Watergate affair and the Fielding break-in during the next few days, he had less reason to be so optimistic.
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By this time the demands for a Special Prosecutor had grown irresistible. In his Camp David discussion with Richardson, the President readily conceded the point, even projecting such possible candidates as John J. McCloy, the well-known adviser of presidents dating back to FDR; J. Edward Lumbard, a former U.S. Attorney and now Circuit Court Judge; and Richardson’s former aide, Wilmot R. Hastings. Nixon had periodically discussed the idea of bringing an outside lawyer to the White House to deal exclusively with Watergate. He wanted a respected personality but also someone who was a “friend”; he needed, he told Ehrlichman, someone who would say that despite “all those Segretti projects,…. none of the White House people were involved. There are no other higher-up[s].” But Ehrlichman reminded him that he had a “Dean problem.”
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Within days, Richardson’s staff assistant prepared a list of potential Watergate Special Prosecutors which included Lumbard as well as several sitting, retiring, or former federal judges, notably David Peck, Lawrence Walsh, Henry Friendly, and Harold Tyler. Lumbard and Peck were the early favorites. But Lumbard indicated that no sitting judge should accept the position, and Peck was eliminated because he was a Republican. Cyrus Vance, John Doar, Albert Jenner, Warren Christopher, Alexander Bickel,
Paul Freund, Leon Jaworski, and Archibald Cox were on a list of 100 names compiled by May 11. From that the staff gave Richardson a short list of thirteen. The only full-time sitting judge on the list was Tyler, who was included chiefly because he indicated a desire to leave the bench, not because the staff considered him the most able candidate. Erwin Griswold weighed in with advice to Richardson, his former law student, suggesting that he appoint a “nonpolitical” Democrat like Christopher, Arthur Goldberg, Nicholas Katzenbach, E. Barrett Prettyman, or Simon Rifkind.

Richardson approached numerous people—exactly how many he could not later recall. One after another declined, including Leon Jaworski. The reasons varied: simple lack of interest, realization that the task would be difficult and complex, fear that the position could never have the necessary degree of independence. On May 14 the staff prepared to announce the selection of Judge Tyler, who had served in the Kennedy Justice Department. But the announcement stalled pending the preparation of guidelines for the responsibilities and independence of the Special Prosecutor, something the Senate Judiciary Committee had requested.

Richardson could not act promptly enough to suit Tyler, and the judge decided that he “could not wait much longer in light of my current burdens on the court.” To Richardson, however, Tyler seemed unwilling, after all, to give up his seat. In any event, several days later, Richardson approached Harvard Law School Professor Archibald Cox, who less than a week earlier had been omitted from the staff’s short list. Cox was “up front” regarding his independence, a subject that others only skirted. He readily indicated his interest, and on May 18, Richardson announced his selection.
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Richardson later claimed that no one “forced” him into making the appointment of a Special Prosecutor: “I was fully convinced it should be done.” Yet he confronted a pointed appeal from the Justice Department’s own prosecutors, who had reached a crucial stage of negotiations with witnesses and lawyers and urged that they be allowed to continue. On April 30, U.S. Attorney Harold Titus wrote to Richardson, in a letter signed by his three principal assistants, Earl Silbert, Seymour Glanzer, and Donald Campbell, stating the case. These men had directed the Watergate investigation from the outset—“we have guided the FBI, and we have handled the delicate difficult relationships with witnesses … and possible prospective witnesses such as Magruder and Dean.” Their strategy of bargaining with and inducing certain witnesses to come forth had worked and now had reached a critical state. “We are in the driver’s seat,” they told Richardson, adding, “we have momentum.” The prosecutors chose not to alert Richardson to the fullness of their case, but warned him not to require them to report to the President, because so much of his staff was involved. The President and the prosecutors alike, they feared, would be in an “impossible position.”
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Richardson’s confirmation hearing was so linked to the appointment of a Special Prosecutor that on May 21 the nominee brought Archibald Cox to the Senate Judiciary Committee. Committee members seemed particularly anxious to understand how each man perceived their upcoming relationship. Chairman James Eastland asked Cox whether he thought he could work amicably with Richardson. Cox was certain he would, but he amended the answer to underscore his own commitment to independence, which might mean his and Richardson’s going separate ways. J. Strom Thurmond inquired about Cox’s political affiliation. When Cox responded, “Democratic,” Thurmond thought that this would be fine for public confidence. Even the President’s warmest supporters found it convenient to have the Special Prosecutor come from the “other side.”

Democratic Whip Robert Byrd asked the most questions, the tone of which should have indicated to the President that some traditional Democratic allies had grown uneasy. Byrd asked Richardson and Cox to discuss how they thought their relationship would evolve. Richardson acknowledged that he had conceded a great deal of discretion to Cox. Byrd asked Cox whether he needed still broader authority. No, Cox thought it was clear: “Let’s face it, I think I will have the whip hand.” And “you won’t hesitate to use it?” Byrd asked. “No, sir,” Cox firmly answered. If the Attorney General pressed him for information that he preferred not to give, then Richardson would be reduced to his “final statutory authority”—to fire the Special Prosecutor. How far would Cox go in the investigation—to the Ellsberg case, for example? “Even though that trail should lead, Heaven forbid, to the oval office of the White House?” Byrd queried. Cox was emphatic: “Wherever that trail may lead.”

Byrd explored the Special Prosecutor’s possible dealings with the President. Could the President demand a status report? Not if “I felt that it was against the interests of the investigation,” Cox said. Could the Attorney General overrule him? No, Cox said, Richardson’s only choice would be to dismiss him. Cox challenged the President’s position on immunity, saying he would grant it to witnesses if he thought it proper. Finally, Cox said that the presidential claims of “executive privilege” involved an “appropriate role” for judicial determination. For himself, he expressed great skepticism regarding the doctrine. He told another Senator that executive privilege lay with the executive branch and not with individuals.

Senator John Tunney (D-CA) homed in on the meaning of “extraordinary improprieties,” which was the proposed term for defining what would justify removal of the Special Prosecutor. The answers from both Richardson and Cox were as nebulous as the words themselves. Richardson thought the “public,” expressing itself through the Senate, would have a good deal to
do with firing any Special Prosecutor. Cox thought that if he were guilty of “extraordinary improprieties,” he should be fired.

Several senators raised the delicate issue of Cox’s cooperation with the Department of Justice investigators and prosecutors. Cox told Senator Philip Hart (D–MI) that he would review the status of the investigation and then make his own judgments and decisions as to procedures. Senator Edward Kennedy, perhaps as much Cox’s patron as any senator, tried to stretch the guidelines and the Special Prosecutor’s authority, though without much success. But he spurred Cox to assert that he would make his own staff appointments. Cox also told Kennedy that he expected to phase Henry Petersen out of the investigation. It would not be the last time that those who had pressed the case as far as it had come would be treated with a curious mixture of skepticism and derision.
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Richard Nixon publicly welcomed Richardson’s selection of Cox and complimented his new Attorney General for demonstrating a “determination” to find the truth. “In this effort,” the President said, “he has my full support.” But the public words only veiled the President’s wariness, even anger, over the appointment. One would be hard pressed to invent a more unacceptable choice than Cox, given Nixon’s well-known defensiveness and animosity toward certain groups. Cox represented many of them: Harvard Law School professor, East Coast liberal, Solicitor General in the Kennedy Administration, and still a Kennedy loyalist. (Nixon may not have known that Cox’s maternal great-grandfather, William Evarts, had defended President Andrew Johnson during his impeachment trial in 1868.)

Richardson, of course, was some of the same things as Cox, but the President undoubtedly regarded the new Attorney General as
his
Harvard man. Cox had voted for McGovern, and just two weeks before his selection as Special Prosecutor, he had criticized John Mitchell as “insensitive” toward civil liberties. When he was sworn in on May 24, Senator Edward Kennedy and Mrs. Robert Kennedy attended. Few events of the period left Nixon more bitter. Had Richardson searched specifically for the man the President could least trust, he would have selected Cox, Nixon wrote. “Unfortunately,” as he put it, he had given Richardson “absolute authority” to select a prosecutor, and thus “put the survival of my administration in his hands,” and Richardson in turn had given it to a “partisan viper.”

Within days after he assumed office, Cox’s appointments to positions in the Special Prosecutor’s office raised further distress signals for the President. Cox first selected a Press Secretary, James Doyle, a prominent Washington newsman well known for his anti-Nixon views. He then chose two Harvard Law School colleagues for leading positions on his staff, following them with the staff appointment of James F. Neal, a forty-three-year-old
Nashville attorney who had been the U.S. Attorney in that area and Robert F. Kennedy’s special assistant from 1961 to 1964. Seven of the Special Prosecutor’s eight-person senior staff had held office in the Kennedy and Johnson administrations. More than half the lawyers who served in the Special Prosecutor’s office had graduated from the Harvard Law School.

Cox’s sweeping authority alarmed the Administration even more than his personnel. Richardson and Cox agreed on a charter, and on May 31, the Attorney General directed Cox to investigate all “possible offenses” of the Administration—not just those relating to the Watergate break-in, but including all other “allegations involving the President, members of the White House staff or presidential appointees.” Nixon was “shocked and angry.” Richardson assured Haig that the language referred only to the Watergate break-in and cover-up, but the President knew better. His doubts, resentments, and fears only magnified. His staff and supporters mirrored his mood. Within a few months, White House lawyers and the President’s supporters were contemptuously referring to the Special Prosecutor’s office as “Coxsuckers,” or as “Cox’s Army,” one with “sharp ideological axes to grind.” The Special Prosecutor’s office appeared to them as nothing less than the vanguard for Senator Kennedy’s march to the White House.
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Haig had called Richardson as early as June 19 to complain about Cox after the latter had told reporters he might subpoena the President. Weeks later, Haig told Richardson that the President “was very uptight about Cox” and “wants a line drawn.” If Cox did not stay within the guidelines, Haig warned, they would “get rid” of him. Buzhardt expressed similar sentiments, according to Richardson.
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Perhaps Cox was the wrong man for the job. What he represented, and how he proceeded, undoubtedly exacerbated the situation. Henry Petersen, who naturally resented the transfer of the case from his own jurisdiction, thought Cox “ultra-liberal” and believed the post should have gone to “a less partisan man.” The job required a man “with more detachment”; Cox’s rectitude, Petersen thought, was “second only to God.” Less than three months after Cox’s appointment, Petersen bitterly described his resentment to the Senate Select Committee. “Damn it,” he exploded, “I think it is a reflection on me and the Department of Justice. We could have broken that case wide open, and we would have done it in the most difficult circumstances.… That case was snatched out from under us when we had it 90-percent completed.” By that time, Petersen realized how the President of the United States and his Counsel, John Dean, had so badly misled him. It was a frustrating conclusion to a worthy career.

The staff that Cox assembled underlined “prosecution” as the operative word in the formal title of the office: “Watergate Special Prosecution Force.” Undoubtedly, public spirit motivated many of the men and women in the office. But they were also profoundly hostile to the President and his Administration.
They operated according to the calculus and dictates of persons chosen to pursue alleged wrongdoers: with zeal, passion, and absolute certainty that their subjects must be guilty. Erwin Griswold, Cox’s former Harvard dean, found himself under investigation by some of the young lawyers in the Special Prosecutor’s office. In his interested assessment, most lacked “background or judgment.” They often proceeded with “far more zeal than judgment.” Griswold saw no “corruption in their motives,” but he thought they often went “overboard” to show they were doing their duty.”
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The Senate confirmation hearings reflected Richardson’s and Cox’s wariness toward one another. Their relationship may well have always been a little “uneasy,” as William Ruckelshaus, who was close to both, remembered. They shared Harvard, clerkships with Learned Hand, and friendships with Felix Frankfurter, but Cox’s political commitments and loyalties diverged immensely from Richardson’s. Cox, a Kennedy loyalist, undoubtedly had contempt for Richard Nixon. Richardson had battled the Kennedys’ grip on Massachusetts and had real loyalty to a President who had trusted him with a succession of high, important offices. Spiro Agnew later mocked the “didactic Richardson” as a man who “changed from a transparent toady to a sanctimonious lecturer on morals.” Maybe Watergate transformed him a bit, but until the very end of his tenure, Richardson remained what he always had been: a steadfast, loyal retainer of his patron, the President of the United States.