The Wars of Watergate (79 page)

Slowly but surely, events had put Richardson in an untenable position. The White House staff interpreted Cox’s letter as a rejection and agreed that he should be fired if he would not accept the proposal. They believed that the President could persuade the nation that his action was correct. Richardson
disagreed with both judgments. If Cox were dismissed, Richardson understood that the Justice Department once again would have control of the case, a situation that certainly would not be acceptable to Congress. He urged Wright to speak directly to Cox and persuade him of the merits of involving Stennis.

In a letter to Cox on October 18, Wright warned that “we could not accede” to his demands “in any form.” He maintained that the proposal to use Stennis would “put to rest any possible thought that the President might himself have been involved in the Watergate break-in or cover-up.” (Wright, however, had never listened to the tapes, as Nixon had barred him from doing so.) He spoke to Cox Thursday evening. At one point, according to Cox, Wright added a stipulation that he “categorically agree not to subpoena any other White House tape, paper or document.” Both Cox and Richardson interpreted that message as an attempt to trap Cox into rejecting the President’s proposal, this forcing his own resignation or justifying his removal. Cox grimly stated that the prohibition against any further pursuit of evidence required him to violate his pledge to the Senate Judiciary Committee. “I cannot,” he stated emphatically, “break my promise now.” But Wright left his paper trail—“in the unhappy event that our correspondence should see the light of day.” He said that Cox had exaggerated: the President had no intention of denying all tapes; only “private Presidential papers” would be excluded. He praised Richardson’s “very reasonable” and generous proposal involving Senator Stennis. Clearly, any further communication was futile. “We will be forced to take the actions that the President deems appropriate in these circumstances,” stated Wright.

That same evening Richardson prepared notes outlining reasons for his own resignation. When Haig told him the next morning that the Wright-Cox negotiations had failed, Richardson asked to see the President, expecting to resign immediately. But when he arrived at the White House on Friday morning, Haig told him that firing Cox was not necessarily linked to rejection of the Stennis proposal. Richardson momentarily thought he would not have to resign. He then told Haig and the President’s lawyers that the prohibition against Cox’s seeking additional materials was not part of the original agreement and should be withdrawn. By this time, however, Nixon apparently had irrevocably linked using Stennis with such a prohibition. Haig misinformed Richardson that Stennis had agreed to serve, that Howard Baker endorsed the idea, and that Sam Ervin would be consulted that afternoon.

Richardson meanwhile met with his advisers, who pressed him to oppose the “linked proposal.” He spoke again to Haig, and to Buzhardt, arguing that he could not support it and that it served the President ill. But someone—the President or Haig or the lawyers, or all of them—remained adamant.
Haig called Richardson that evening and read him a letter from Nixon instructing the Attorney General to direct Cox to make no further attempts to secure presidential materials by subpoena. The President apologized for his “limited” intrusion on Richardson’s promised independence in dealing with the Special Prosecutor. But the fault, he insisted, was Cox’s. If Cox had “agreed to the very reasonable proposal,” there would have been no confrontation. Samuel Dash, Counsel to the Senate Select Committee, thought that the President was “determined” to dismiss Cox; Garment, however, later “categorically” denied that the Stennis proposal was designed to force Cox into open rebellion. Although the Stennis plan might have been unacceptable to Cox, the White House hoped that it would be sufficient for Richardson to remain in the Administration.

Richardson balked, because he knew that the prohibition on Cox could not work and that the Special Prosecutor would resist it. He told Cox of the President’s decision but made clear that he was not relaying the instruction. He prepared a statement (never released) noting that the Stennis plan represented a “significant and sensible” compromise but that the prohibition linkage was “inconsistent” with the original understandings regarding the Special Prosecutor’s charge. Richardson always prided himself on being a “loyal team player.” On Friday, October 19, he allowed himself a rare moment of judgment when he wrote that the President had been unduly hostile toward Cox. “Many problems and headaches could have been avoided by cooperating with him more and fighting him less,” Richardson noted.

Nixon summoned Ervin from North Carolina to meet him and Baker that same Friday afternoon. He informed them of his idea for using Stennis, and they agreed to discuss it with the Senate Watergate Committee. Although Nixon asked them not to talk to the press, that evening the White House announced that Ervin and Baker had agreed to accept Stennis’s verification of White House summaries. Ervin spoke to Stennis, who understood he would have custody of the tapes and make verbatim transcripts. For his part, Ervin claimed that he considered the proposal “spurious” from the start and said he never knew of the proposal to prohibit access to tapes unrelated to the break-in and cover-up. He later realized, as Lowell Weicker told him, that he had been “zonked” by Nixon.

On Saturday morning, Richardson informed the President of his opposition, and once more broached a compromise that would not have barred Cox from using the judicial process. Sirica had to be persuaded to accept the Stennis verifier idea, he said, adding that Cox had agreed to abide by Sirica’s decision. In lieu of the prohibition proposal, Richardson suggested that the President offer the verifier idea as a precedent in the event Cox sought more material. But clearly the White House projected the use of Stennis as a onetime expedient designed to avoid total humiliation and damaging revelations
on the part of the President. What Richardson only later realized was that finally the White House no longer could accept an “independent” Special Prosecutor—or even an Attorney General who felt obligated to keep his public promises of independence.
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Archibald Cox had been mainly a spectator—an informed one, to be sure—of the maneuvers between the White House and Richardson. He had been in touch with the Attorney General as well as with Wright, however, and had made his own views forcefully known. For an hour or so on Saturday, October 20, Cox occupied center stage and in a press conference tripped the charge wires carefully laid out by the White House. He offered a masterful professorial performance, designed to explain the legal and constitutional confrontation in terms that struck at the core of layman’s treasured values essential to the American system.

“I’m certainly not out to get the President of the United States,” Cox disarmingly said at the outset. But he believed it necessary to demonstrate that Nixon had failed to comply with the court order for release of the White House tapes. Cox realized that he had to overcome the Administration’s strategy of presenting the use of Stennis as a reasonable alternative. He skirted any question of Stennis’s integrity but stressed the dangerous precedent of bypassing established institutions and procedures for evaluating evidence. Cox simply did not believe that tape summaries could be submitted as evidence in a trial. Finally, Cox contended that the prohibition on further subpoenas irreparably damaged his ability to carry out his mandate and that it violated the guidelines set forth by the Attorney General for the Senate in May. Although he maintained that the Stennis proposal was inadequate, the Special Prosecutor said he believed that he and Richardson had been negotiating some compromise in good faith. Wright’s phone call on Thursday evening, however, made it clear to Cox that he was being “confronted with things that were drawn in such a way that I could not accept them.”

Responding to questions, Cox at first insisted that only Richardson could fire him but later acknowledged that the President “can always work his will.” The tenor of the questions, and Cox’s answers, left little doubt about the coming course of events. The Special Prosecutor would not—could not—desist from carrying out his appointed functions, yet to do so would only invite the wrath of the President and Cox’s dismissal.

“I did not have to wait long for Haig’s call telling me that the President wanted me to fire Cox,” Richardson recalled. He then asked Haig for an appointment with the President that afternoon. Richardson knew his only honorable alternative.
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In Richardson’s public letter of resignation, he reminded the President
that he had pledged independence for the Special Prosecutor. Still, he offered a note of civility, more in regret than in defiance, stating that he fully respected the President’s reasons for discharging Cox.

The moment of resignation was unpleasant. Meeting Richardson that Saturday afternoon, the President urged him to delay his departure because of the Middle East crisis. Nixon accused him of putting his “personal commitments ahead of the public interest.” Richardson retorted: “I can only say that I believe my resignation is in the public interest.” Nixon later bitterly recalled the meeting and blamed Richardson’s resignation chiefly on his unwillingness to support the proposal linking access to some tapes and denial of access to others. Supported only by Haig, Nixon claimed that Richardson himself had formulated the prohibition idea. Ruckelshaus had reason to believe that Haig had misjudged Richardson and assured the President that the Attorney General would remain with them. More than a decade later, Richardson claimed that Haig had “dangled the prospect of White House support” for the 1976 Republican presidential nomination, implying that the Administration could do him “a lot of good.” For his part, Haig angrily believed that Richardson had “made him look bad in front of the President.” Early in November, Richardson gave Nixon the benefit of the doubt. He told the Senate Judiciary Committee that he thought the President had made “a reasonable effort”—though a “wrongheaded” one—to compromise. Eventually, in May 1974, Richardson recognized that Nixon had determined that Cox must go and that somehow Richardson must be “induced” to go along with the President’s wishes.
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The events of October 20 moved swiftly and decisively, and with results precisely opposite to what the President and his lawyers had anticipated. Instead of simply removing Archibald Cox’s probing lance, they raised a “firestorm” of protest that permanently scarred Nixon’s credibility with the public, and, most damaging, with congressional Republicans and Southern Democrats. The news and televised images of FBI agents, following a White House directive, sealing the Special Prosecutor’s office and barring access by Cox’s staff, shocked and frightened the nation. The ominous action raised talk of a coup and prompted comparisons to the Reichstag fire that prepared Germany for the rise of Hitler. Leon Jaworski, viewing events from Texas, thought the FBI’s actions resembled those of the Gestapo.

A decade and a half later, the reverberations from those events still influenced the American political landscape, including the confirmation hearings of a Supreme Court nominee. The “Saturday Night Massacre”—a name appropriate to the bloody political hemorrhaging—of October 20, 1973, was one more irretrievable blunder by the President.

Several incidents are indisputable: Elliot Richardson refused to fire Archibald Cox and resigned; when his deputy, William Ruckelshaus, similarly refused Haig’s command (“this is an order from your Commander-in-Chief”), Ruckelshaus resigned—although that evening the White House insisted he had been fired. Haig told Ruckelshaus that Cox had embarrassed the President during the Middle East crisis, and he insisted it was necessary for the Administration to close ranks. Ruckelshaus suggested that the President should postpone firing Cox if he had such a problem. The Justice Department’s third-in-command, Solicitor General Robert H. Bork, then agreed to carry out the President’s order, to a significant extent because of the urging of Richardson. Why Bork acted as he did, exactly how he acted, and what were the consequences of his acts, became matters of some dispute.

Richardson and Ruckelshaus urged Bork to carry out the President’s order to ensure continuity in the Department. At first, Bork was surprised, having convinced himself the night before that Richardson had worked out a satisfactory arrangement with Cox respecting access to the tapes. Bork expressed some anger, according to Ruckelshaus, claiming that he had come to Washington to be the Supreme Court’s lawyer, and now, for the third time in eight months, he had to consider resigning. He told Richardson and Ruckelshaus that he would carry out the order but then would resign so that he would not be perceived as an
apparatchik.
Bork then decided—following the theory of his former colleague Yale Law School Professor Alexander Bickel—that in firing Cox he would merely be the instrument of the President’s proper power to do so. All three understood that if Bork did not carry out the order, the White House would send someone else to do it—presumably Buzhardt. That, they believed, would only threaten departmental morale and continuity even more seriously. When Bork told Haig he would carry out the order but had been considering resigning immediately afterward, he had “the distinct impression that [Haig] didn’t really much care about the second part of my quandary.”
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Bork shortly afterward went to the White House, where he received his commission and had a chat with the President. Nixon told him that he wanted a “prosecution and not a persecution.” That evening, Bork announced Cox’s dismissal. Bork believed that Haig somehow understood that following Cox’s dismissal the Special Prosecutor’s office would have to continue in some form, but both the President and his Chief of Staff “seemed to think that if they got a professional prosecutor life would be easier. As a matter of fact,” Bork observed, “life was tougher.”

Meanwhile, life was certainly tough for Bork. The next day, he met with Cox’s assistants and with Henry Petersen. Cox’s staff, obviously shaken, viewed Bork with distrust, particularly when they learned that the Special Prosecutor’s office would come under the jurisdiction of Petersen’s Criminal
Division of the Justice Department. Bork told the prosecutors to continue with their court appearances and pursuit of subpoenas—and that, he remembered, did not please the White House.