The Wars of Watergate (91 page)

As John Dean recounted his story to the prosecutors in April 1973, Assistant U.S. Attorney Earl Silbert realized that he must consider the possibility of indicting the President of the United States. He asked an aide to research the constitutional issues involved in that step. The conclusion: “practical reasons” suggested that no president should be indicted without first allowing the process of impeachment to run. Silbert’s aide contended that a president might forbid any government attorney from signing an indictment (an argument that anticipated those who believed that the Special Prosecutor, as an executive officer, was subject to presidential command). Furthermore, a president might pardon himself pending trial. In any case, an indictment could devastate the nation, especially if a president insisted on maintaining office—and he could be convicted and still sit pending impeachment. Finally, the precedent of indicting the Chief Executive might be capriciously invoked by “irresponsible or politically motivated” prosecutors. Instead of indictment, the report to Silbert suggested naming President Nixon as an unindicted co-conspirator or having the grand jury make its report and the evidence available to the public and the House of Representatives. With the advent of the Special Prosecutor, Silbert left the case, but transmitted the report to Archibald Cox.
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The possible scenarios may have been exaggerated, but again, such were the times.

The report to Silbert chiefly relied on practical considerations; after all, no precedents existed for prosecuting a sitting president. In early January 1974, researchers in the Special Prosecutor’s office came to substantially
similar conclusions. But in this office the staff and senior officials were not as sanguine that the House of Representatives would carry out its responsibilities for impeachment. Indeed, references to the “ponderous nature of impeachment proceedings,” the “painfully slow rumination of impeachment allegations,” and the “tortuous course inherent in impeachment” reflected a belief in the Special Prosecutor’s office that the criminal-justice course provided the quicker, more practical method of dealing with presidential misbehavior. Philip Lacovara, a Jaworski aide, concluded that the Special Prosecutor’s office could not “totally abstain from coming to grips” with the possibility of presidential involvement—either through providing evidence to the House of Representatives or in a criminal proceeding.

But the prosecutors had practical problems of their own. Henry Ruth, deputy to both Cox and Jaworski, noted that the Special Prosecutor’s evidence and witnesses would be involved in any House proceeding, thus presenting “the possibility of interference with our own investigations and trials.” Ruth believed that if they did not immediately aid the then-forming House Judiciary Committee staff with evidence, they could find that pending criminal cases might preclude any assistance to the impeachment process. Ruth took seriously recent assertions by both Nixon and Haig that the President never would resign; he thought decisions had to be made on that basis, “and we must face the choices of action immediately.” He was convinced that the White House intended to exclude the Judiciary Committee from evidence provided to the Special Prosecutor. Indeed, St. Clair had forwarded tape transcripts with the understanding that the material would remain secret to all but the grand jurors and the Special Prosecutor. Jaworski thought that furnishing information to the House committee might violate a defendant’s constitutional right to a fair trial. Yet withholding the evidence would effectively throttle the impeachment inquiry. Coupled with a decision not to indict, the result would be to subject subordinates to the criminal process while permitting “the boss,” as Ruth described Nixon, “to walk free among us with undisturbed wealth and dignity.” No impeachment, no indictment, Ruth concluded, offered damaging precedents for the future of presidential accountability.
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By February 12 Jaworski had received what his staff called the “clear and compelling prima facie evidence of the President’s participation in a conspiracy to obstruct justice.” The staff now moved more aggressively for a grand-jury indictment or presentment. Those making the recommendation to Jaworski believed that the Special Prosecutor had “overwhelming public support for committing the decision of the President’s criminal guilt or innocence to the traditional processes of law enforcement.” By their oath, the grand jury, too, had an obligation not to allow anyone to go free out of “fear, favor, affection, reward or hope of reward.” Finally, the staff urged
the preservation of the rule of law and the necessity for maintaining the longstanding principle that “no man in this country is so high that he is above the law.” The Special Prosecutor’s staff concluded that the responsibilities and character of impeachment were utterly unique and independent from those of the criminal process. They no longer would accept the “responsibility” for leaving the determination of the President’s guilt or innocence exclusively to the “political” process in a judgment of impeachment. The advocates of divorcing the criminal proceeding against the President from the impeachment proceedings forcefully stated their conclusion: “We and the Grand Jury do not exist merely for the purpose of assuring that debate on impeachment is fully informed.” In other words, merely transmitting the evidence to Congress no longer was adequate. Prosecutors prosecute.

The report brusquely swept aside the “practical” matters previously thought to militate against indictment—“in essence, political considerations,” the staff declared rather disdainfully. It saw such a course as “formulating public policy in private,” a role for which they claimed a lack of “expertise,” as if prosecutorial discretion was an art or science beyond their ken. Certainly, it was one they quickly mastered. The staff itself disagreed on the indictability of a president but unanimously believed it should recommend a grand-jury presentment that would state the determination of Nixon’s culpability and the conclusion that he would have been indicted had he not been president. Having rejected “practical” and “political” considerations, the staff then offered just such reasons for recommending a grand-jury presentment: it would avoid the spectacle of a presidential trial and possible imprisonment; it would not disable the President or automatically remove him from office without an impeachment; it would focus issues for Congress, if Congress were to consider impeachment, and “responsibility for further action would be placed squarely upon Congress.” The contest was for winning public opinion. Presentment, the staff concluded, would enable a “primary truth” to emerge: “but for the fact that he is President, Richard Nixon would have been indicted.”
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The day before, February 11, 1974, Judge Sirica expressed concern to Jaworski that the grand jury might do something irresponsible. Sirica now was convinced that the House was the proper body for dealing with the President. Jaworski agreed in part, but suggested that the grand jury might request that it be authorized to refer its findings to the Judiciary Committee.
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The primary Watergate grand jury had been assembled on June 5, 1972 and had soon found itself absorbed, if not overtaken, by events. Twenty-three
citizens of the District of Columbia made up the jury, with blacks outnumbering whites almost three to one, reflecting the racial make-up of the area’s population. Eleven of the jurors worked for the government and continued to draw their salaries, in addition to their $20
per diem
remuneration as jurors (later raised, but not retroactively, to $25). The U.S. Attorney’s office selected the foreman, Vladimir Pregelj, a Yugoslavian refugee who worked in the Legislative Reference Service in the Library of Congress as an economic analyst.

The jurors immediately developed a comfortable, friendly relationship with the original U.S. Attorney’s team of Earl Silbert, Seymour Glanzer, and Donald Campbell. They readily asked questions of witnesses and freely discussed matters with the prosecutors afterward. The relationship was informal and friendly—“we were all kind of buddies,” the foreman recalled.

That ambience changed after Cox’s team took over, replacing Silbert and his colleagues. The jurors at first resented the new prosecutors. Similarly, one of the prosecutors became upset when the jurors posed questions of their own to witnesses without clearing them with the prosecutors. Another thought the jurors often were too eager to act and were not always mindful of the fact that the prosecutors knew more than they. In time, however, the jurors and the new team reached an accommodation, and the work proceeded smoothly. The Watergate defendants and their lawyers viewed the grand jurors with hostility—convinced that they could not get a fair trial. But Jaworski praised the jurors as “very objective, very constructive, and very sensible”; their questions, he said, showed their “deep concern, their abiding determination to do what was right.”

The jurors sat for thirty months. Judge George Hart discharged them in December 1974, noting that they had served longer than any other federal jury. For their part, the jurors did not seem to mind the ordeal and appreciated the historic importance of their role.
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On February 25, 1974, Jaworski faced the grand jurors for the first time. Since mid-December, he had believed that Nixon had been “criminally involved” in the cover-up. Early in January, his staff compiled a 128-page report documenting the President’s role. Jaworski realized the prevailing strong sentiment for an indictment of Nixon, particularly on the part of the grand jury’s most articulate members. A straw poll of the jurors present showed a 19–0 vote in favor of an indictment—although they recognized that the evidence might not yet be sufficient for a successful prosecution. They bristled at the thought of being a “rubber stamp.” The growing hostility of Jaworski’s staff toward the President, now buttressed by the growing evidence of Nixon’s apparent complicity in the cover-up, made the Special Prosecutor’s task all the more lonely. He knew, as he told the jurors, that of
all the evidence presented, the President’s conversations undoubtedly had made the most enormous impact on their minds.

But Jaworski pursued his course in his own fashion: cautious and respectful of the President and the presidency, he argued strenuously against indictment. The constitutional doubts, he maintained, were substantial, and undoubtedly an indictment’s constitutionality would be litigated, leaving, Jaworski said, “trauma” within the nation and “scars” on the presidency. Jaworski rankled some of the jurors by focusing on the constitutional issue, and he disappointed some of them by his refusal to deal with the weight of the evidence. Left unspoken was the possibility that a presidential indictment might jeopardize other indictments and, most significantly, the damage to the credibility of the Special Prosecutor should he lose a case against the President for lack of conclusive evidence.

As a compromise gesture, Jaworski told the grand jurors that they could give a report of the evidence and their views about the President to Judge Sirica for eventual transmittal to the House Judiciary Committee. Several jurors expressed their disagreement with Jaworski: they were, he later noted, “appalled by what they [had] heard.” Foreman Pregelj, in particular, challenged Jaworski; Jaworski thought him genuinely “shocked.” The jurors eventually followed the Special Prosecutor’s recommendation—no indictment, but a report to the House. In addition, they secretly named the President as an unindicted co-conspirator. The prosecution believed it essential to name Nixon in order to make his tape recordings admissible as trial evidence. Yet Jaworski feared that a public revelation of Nixon’s status as unindicted co-conspirator would give the President an opportunity to claim that the action had prejudiced his case in the House.
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That same evening, February 25, Nixon held his first televised press conference in four months. Immediately, reporters raised the issue of impeachment. Nixon said he believed that the Constitution precisely defined an impeachable offense and meant, according to his lawyers, that he had to be guilty of a criminal offense. As if to affirm his innocence to the grand jurors, the President doggedly stated that “I do not expect to be impeached.” He reiterated that he would cooperate with the House, “consistent with my constitutional responsibility” to defend the office of the presidency against any attempts to weaken it and also to safeguard the ability of future presidents to carry out their responsibilities.

The inevitable question came when a reporter asked if the President would resign to avoid a political disaster for his party. The question well served Nixon, for it enabled him to raise the issue of “the presidency” above mere partisan concerns. “The stability of this office, the ability of the President to continue to govern, the ability, for example, of this President to continue the great initiatives which have led to a more peaceful world,” all were more important than the success of a political party, he insisted. The “presidency”
must not be “hostage” to the momentary “popularity” of any incumbent. The work must be continued, he concluded, “and I’m going to stay here till I get it done.”
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Two months later, in early May, Jaworski informed Haig that the President had been named an unindicted co-conspirator. Jaworski had been pleased that the news had not leaked; it was staggering to think of newspaper headlines broadcasting the President’s “indictment.” The news “visibly perturbed” the President and his aides, Jaworski learned. Nixon thought that the Special Prosecutor had deceived Haig, for allegedly Jaworski had told the Chief of Staff that no one in the White House had been indicted. The President accused Jaworski of blackmail by threatening to reveal the grand jury’s action unless more tapes were produced. Jaworski, of course, had in fact
prevented
the President’s indictment—a fact known to the White House at the time. Nixon thought he knew the real object of Jaworski’s threat: the Special Prosecutor had demanded incriminating tapes, including the crucial June 23, 1972, conversation with Haldeman, a conversation which the President undoubtedly had listened to, and in which he and Haldeman had concocted the plan for using the CIA to thwart the FBI’s investigation of the Watergate burglary. Haig probably knew the contents of that tape; the same day he met Jaworski, he provided a copy to the President. Haig later claimed that Nixon told him the next day that he was too busy trying to run the country and would not listen to any more tapes. But Nixon later admitted that he had heard the June 23 tape.