The Wars of Watergate (86 page)

Watergate indubitably fostered a favorable legislative climate for longtime critics of the Vietnam war and of broad presidential military powers. The House approved the War Powers resolution just one day after Nixon again claimed executive privilege for his tapes. Two days later, the Senate concurred, on the heels of Nixon’s statement that he would not “wallow in Watergate.” Nixon promptly vetoed the bill, charging that Congress had wiped out nearly two hundred years of precedents justifying presidential initiatives. Between the first House vote on October 12, and the veto override on November 7, thirty-three members switched their votes. The Saturday Night Massacre was very much on their minds. House Democratic floor leader Clement Zablocki (D–WI) said that the “time was ripe,” and he pointedly acknowledged the influence of the Cox firing and the tapes question. Zablocki also offered a powerful defense of the War Powers Act’s constitutionality. Senator John Tower (R–TX) underlined the same point, when he recognized that Congress found itself swept up “in the hysteria of Watergate and desire to punish … this President.” Tower warned Congress not to “make the power of the President … a victim of our emotions on Watergate.”
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Tower’s distinction between “this” President and “the” President was an interesting one. Richard Nixon repeatedly tried—without success—to save himself through the same distinction.

The inability of Henry Kissinger and many foreign observers to make the linkage between domestic confidence in the President and the strength of American foreign policy is striking. Nearly a century earlier, Lord Bryce had made the connection. Americans needed to know, he said, the worst as well as the best of themselves—and it was important that all the world should know. Bryce perceived the enormous confidence Americans had in their ability to deal openly with their flaws. He recognized that Americans believed in such procedures to the extent that they thought it would be impossible ever to mistake their own true interests; to believe otherwise, he noted, “seems to them a sort of blasphemy against the human intelligence and its Creator.”

But there were limits to what Bryce labeled the “peculiar buoyancy” and “airy hopefulness” of Americans. The conflict surrounding the President began to resemble a civil war. While ordinary citizens were not on the verge of marching to Bull Run, powerful institutions—the presidency, Congress, the courts, the media—fought like scorpions in a bottle. But the combatants settled on one adversary. Events in the late fall of 1973 unleashed powerful tides against the President. When
Time
called for Nixon’s resignation on
November 12, the effect was startling. Henry Luce, the founder of
Time
, had regarded Nixon as his special protégé, his hope for the vibrant leader so desperately needed by the Republican Party. The magazine’s editors now thought that Nixon and the nation had “passed a tragic point of no return.” Alexander Haig complained that the
Time
editorial was like “being hit in the face with a cold fish.”
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The real danger for the President came not from self-appointed public spokesmen, however, but from the nation’s elected representatives. For the second time in the republic’s history, Congress prepared for the impeachment of a sitting president. A curious consensus for action began to emerge. Vice President Ford had told reporters on December 12 that if the House failed to vote impeachment by the end of April, then clearly the move to impeach the President was “partisan.” Laird announced his White House resignation on December 19. He urged a House vote by March 15—it “would be a healthy thing,” he said—in order to clear the way for the fall elections. Ford and Laird, ever the party loyalists, had their own cause; they didn’t want congressional Republicans running for election to be in the shadow of Watergate. The senior members of the House Judiciary Committee in both parties had a similar understanding of political needs, as they announced plans for reporting the results of their inquiry to the full House in April.
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Doubtless, an early decision by the committee served a variety of political purposes. But the existence of the tapes generated an external influence that neither side could ignore. The case for or against the President in the arena of public opinion hinged on what the tapes could show he did or did not say. In that sense, the House Committee had no control over the calendar of Nixon’s ultimate fate.

When the House launched its impeachment inquiry against Andrew Johnson in 1868, it appointed a select committee to consider the matter. In 1973 the Democratic leadership left the matter to the Judiciary Committee. A variety of explanations have been offered, but the most consistent seems to have been a reluctance to circumvent the normal lines of jurisdiction—in other words, entrenched interests. The most simple reason was that Speaker Carl Albert was in a bind. He could not afford to appoint a special committee that might have made him the beneficiary of its deliberations, since Albert, as Speaker of the House, was in the line of presidential succession, and the nation at the time was without a Vice President.

In truth, the House Judiciary Committee was not highly regarded by the Democratic leadership. For years it had been the fiefdom of its longtime Chairman, Emanuel Celler (D–NY). Celler had a reputation—extending from Democratic leader Thomas O’Neill to the Justice Department’s Henry Petersen—of being excessively cautious, even obstructionist. According to Petersen, Celler consistently had been an obstacle to needed legislative reforms. Peter Rodino, his successor, may have been even less respected. Rodino had
first been elected in 1948, and his primary legislative achievement had been to establish Columbus Day as a national holiday. Although chairman of a major committee, Rodino was not an insider among House leaders; furthermore, he never developed the influence or power of Celler. At the outset of the committee’s hearings, according to O’Neill, Rodino “needed prodding, and on more than one occasion I had to light a fire under his seat.”
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Ironically, Rodino’s innate caution created a drift and inertia in the committee’s proceedings which prevented the early decision sought by others. That development undoubtedly was unintended; nevertheless, the passage of time beyond the intended spring vote, and the introduction of decisive evidence, made for a case that eventually proved irresistible.

In the beginning, the regular Judiciary Committee staff assumed the burden of organizing and preparing materials for the inquiry. Soon, however, new people were added to work exclusively on the impeachment project. In early November, Rodino solicited law schools for suggestions for additional staff. Richard Cates, a former prosecutor then teaching part-time at the University of Wisconsin Law School and highly regarded as a trial lawyer, responded, and through Robert Kastenmeier (D–WI) received an interview with the committee’s Chief Counsel and then with Rodino. He was hired in late November. Cates’s role was to “evaluate the evidence,” as Rodino wished, and determine whether a case could be made for impeachment. Within several weeks, working largely from the findings of the Senate Select Committee, Cates had focused the questions regarding the President’s alleged “high crimes and misdemeanors” and reported that a case could be made. A onetime legislator himself, Cates impressed the members and the regular staff of the Rodino Committee with his integrity and his lawyering skill. He eventually captured the respect and esteem of most members of the committee, cutting across party and ideological lines. But he lacked national stature, and at the outset he had been identified with the committee’s liberal wing.

When President Nixon twice selected a Special Prosecutor, he found it imperative to appoint Democrats, whether the liberal Cox or the more conservative Jaworski. Appearances, as well as substance, dictated those choices. Rodino found himself in a similar position. On December 19 he announced the selection of John M. Doar as Chief Counsel for the committee’s majority. Doar, a Republican originally from Wisconsin but then practicing in New York, had served in the Civil Rights Division of the Justice Department in the Kennedy and Johnson Administrations. He seemed ideal: a Republican who had worked with Democrats in nonpartisan causes. Typically, Rodino procrastinated on the appointment, finally yielding to O’Neill’s “order” to act before Christmas.
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The President’s lawyers, already besieged by numerous subpoenas and hampered by the inadequacy of their support staff—to say nothing of their
uncooperative client—had little time or inclination to consider the prospect of impeachment, which seemed at that juncture politically and constitutionally remote. Their “real world” centered on court orders, briefs, and relations with the new Special Prosecutor. But one important quarter of the government began to think seriously about the unthinkable.

Robert Dixon, Assistant Attorney General, Office of Legal Counsel in the Department of Justice—a position once occupied by William Rehnquist—was an especially thoughtful man. Widely respected in and out of the Justice Department, Dixon was a consummate professional. Elliot Richardson had called on him for advice when confronted with the legal question of whether the President could dismiss Cox. (Dixon advised him in the affirmative.) Now, he found himself thinking about the President’s legal position, and especially about his defense. Dixon and his staff puzzled over the problem of which side the Attorney General should appear for if the President were impeached. Did the Justice Department, or any part of the government, have to provide Nixon’s legal defense? Good lawyering required good anticipation. Dixon had to—and did—consider the possibility of impeachment by late 1973.
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Following Andrew Johnson’s one-vote acquittal in his impeachment trial in the Senate in May 1868, contemporary politicians and subsequent historians alike condemned the impeachment proceeding as brutally partisan and thus cast opprobrium over the constitutional mandate for the public questioning and removal of presidents. The framers of the Constitution, however, had carefully crafted safeguards against executive tyranny. After all, their colonial and revolutionary experience justified suspicion of executive power. The ultimate protection, for the Framers, lay in the time-honored English practice of impeaching executive officers—that is, holding a public inquest into their conduct of public office, as Alexander Hamilton wrote in
Federalist
65. Yet impeachment had a slender history in the United States. The first great impeachment trial, that of Supreme Court Justice Samuel Chase in 1807, appeared designed more to satisfy the partisanship of the Jeffersonians than to examine Chase’s improprieties. The Johnson and Chase trials historically had been treated as aberrations, not models.
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In early 1973, impeachment was perceived as analogous to nuclear weapons: available, yet too dangerous to use. But the ultimate weapon suddenly proved alive and well in Washington as 1973 drew to a close.

Watergate Special Prosecutor Archibald Cox with reporters just hours before his dismissal, October 1973.
(Washington Star)

Leon Jaworski, Cox’s successor.
(Washington Star)