The Wars of Watergate (92 page)

According to Nixon, St. Clair opposed any further release of material, and at various times, the President attempted to blame his advisers for urging him to resist the House committee and the Special Prosecutor. St. Clair never directly responded to that criticism except to note that if Nixon did not like the advice, he could always replace his lawyer. For his part, St. Clair claimed never to have known the contents of the June 23, 1972 tape until August 1974. Had he known, he said, he would have urged an early release instead of delaying until the tape had to be pried loose by a Supreme Court order—and following an impeachment vote in the Judiciary Committee. Nixon’s own memory and records provide ample evidence of his conviction that he had to withhold the additional tapes. He knew he could not compromise on these particular tapes by providing only excerpts. “[H]ow we handle the 23rd tape is a very difficult call because I don’t know how it could be excerpted properly,” he noted in a July diary entry. For good reason: the tape segment, eventually made public in August, became famous as the “smoking gun.”
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The unindicted co-conspirator charge had overshadowed the grand jury’s proceedings. The jurors had also returned indictments against a former Attorney General and the President’s three closest aides, as well as others. The indictments came down on March 1. The counts ranged from conspiracy and obstruction of justice to perjury and false declarations to the FBI. The jury listed forty-five overt acts of conspiracy to cover up the true nature of the involvement of the Administration and the re-election committee with the break-in.

The defendants—Mitchell, Haldeman, Ehrlichman, Colson, Robert Mardian, Kenneth Parkinson, and Gordon Strachan—pled not guilty before Judge Sirica on Saturday morning, March 9. (Jaworski had opposed indicting Mardian and Parkinson, but he could not be “too oppressive to suit” his staff, he remembered. Assistant Attorney General Mardian’s subsequent conviction was overturned, and CREEP counsel Parkinson was acquitted, much to Jaworski’s satisfaction.) The court released the accused on their own recognizance; first, however, they had to be fingerprinted and photographed at FBI offices. The Special Prosecutor found himself moved by the proceedings—and pained in his pride of profession, since all the defendants but Haldeman were lawyers. Jaworski saw Mitchell as a “broken-down old man” and the once-ruthless Colson as “a frightened man”; while Haldeman and Ehrlichman “tried to maintain their bravado.” When Jaworski entered the court, Mitchell rose and greeted him. “You must be very busy these days,” Mitchell said. “Yes,” Jaworski responded, “more so than I wish.” He found the moment “heartrending”; he “had always liked John Mitchell.”
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Jaworski’s conservative Texas friends had great difficulty comprehending his role. Shortly after the indictments came down, several of them telegraphed the Special Prosecutor, acknowledging that Watergate “was a most stupid thing,” but that the President’s success in foreign policy made it important that he remain in office. Jaworski gently replied that the telegram should properly have gone to the House Judiciary Committee, but he also insisted that Watergate involved “not stupid, but serious offenses.” He had been charged
“by law”
to investigate serious law violations and “other matters,” he told his friends.
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The day after the indictments, Vice President Ford said that the grand jury’s sealed report should be sent to the House Judiciary Committee—the “proper place,” he said, to determine President Nixon’s role in the Watergate affair. Increasingly since late 1973, the committee had become the focal point for those determined to end the agony of Watergate. The President’s friends and most extreme enemies made for strange bedfellows on this solution. His enemies apparently favored turning to the committee as the launching place
for an effort at impeachment; his friends apparently thought that the committee would deem impeachment an undesirable or impractical step.

As the talk about impeachment grew, Archibald Cox, true to the lawman’s abiding faith in legal process, warned of the necessity for assuring the public that the President was treated fairly. Speaking in January, he noted that a majority of Americans believed Nixon had been guilty of participating in the cover-up, but a majority also opposed his removal by impeachment. For Cox, this translated into an “intuitive understanding that impeachment is extraordinary,… legitimate only upon some equally fundamental wrong,” that would make the President’s continued service unacceptable to a broad national consensus. If impeachment were to be a serious matter, Cox warned, then the time had come to move away from “the fun of factual disclosures” to the more serious business of creating a “substantive law of impeachment.” This, of course, was the domain of the House Judiciary Committee. Its task, Cox concluded, was “to sense the as-yet-unstated moral intuition” of the nation, and formulate it into a code of conduct for judging the President.
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But the members of the House Judiciary Committee, particularly the seasoned veterans, preferred the old political maxim
festina lente
—“make haste slowly.” They realized they had neither the time nor the moral authority to create Cox’s “substantive law of impeachment.” Practical imperatives of political action, and not the intellectual symmetry of theory and precedent, dictated the course of the committee’s progress. The thorny political thicket of impeachment could be raised only by irrefutable evidence. Now, however, the trickle of material assembled by the staff beginning in late 1973 turned into a flood as the Judiciary Committee received, first, the grand-jury material and then the President’s own submission of new tape transcripts.

On the heels of the release of the transcripts, the White House again erupted with rage toward Leon Jaworski and the Special Prosecution Force. Haig called Deputy Attorney General Lawrence Silberman on April 30 to report that St. Clair had noted discrepancies between Dean’s Senate testimony and his words as recorded in the tapes. St. Clair believed that Dean had shifted his testimony after discussions with Cox, and he wanted copies of internal memos of the Special Prosecutor’s office. “If Leon wants to get rough,” Haig said, “we will get rough.” He never mentioned the purpose of his call, but Silberman considered it a warning of a growing confrontation—and a hint that the White House expected help from the Justice Department. Silberman later called St. Clair directly to remind him that the Special Prosecutor’s charter limited the authority of the Attorney General, emphasizing that he and Attorney General Saxbe considered themselves bound by the charter. St. Clair complained that the Special Prosecutor had to be responsible
to someone in the executive branch; Silberman, however, forcefully reminded him that Saxbe had entered into a “compact” with Congress, and that the President must abide by it.

As soon as the call to St. Clair ended, Silberman received one from the President, who wanted to know something about a pending Special Prosecutor investigation of John Connally. After speaking to Henry Petersen and hearing his approval of the inquiry, Silberman called the President back. Nixon promptly demanded that Silberman dismiss Petersen, told him to call Haig in an hour, and hung up. When Saxbe got the news, he suggested his deputy “tell the President to go piss up a rope.” Petersen provided Silberman with more information about the Connally case and stated that the Criminal Division fully supported Jaworski. Silberman then called Haig again, said that the President had “misunderstood” the matter, and made it clear that firing Petersen made no sense and that he would not do it. Haig promised to speak to Nixon. He called the Justice Department three hours later, instructing Silberman to take no action against Petersen and declaring that the President never intended to fire him. Haig asked Silberman to keep silent about that issue.
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Who
was
in charge?

The President’s wrath against the Justice Department barely concealed his primary target: the Special Prosecutor. His fury paralleled the release of the tape transcripts, an act he thought should end demands for additional materials. On April 16, two weeks before the release, Leon Jaworski had issued a subpoena for sixty-four additional tapes, claiming that they constituted necessary evidence in the pending criminal trial of the President’s aides. Nixon’s lawyers appeared in Sirica’s court on May 2 to oppose the subpoena. Four of the Watergate defendants, however, filed responses supporting the Special Prosecutor’s subpoena, provided that the materials produced be made available in full to them. The White House attorneys resorted to familiar refrains: courts had no authority to rule on the scope of executive privilege, and the dispute was an intra-branch controversy wholly within the jurisdiction of the President to resolve. St. Clair argued
in camera
on May 14, insisting that the President had “a right to balance the public interest involved in exerting executive privilege on the one hand against the right of defendants in a pending case on the other hand.” It seemed that the executive-privilege argument had been answered by the Court of Appeals in October, but apparently the matter had not been settled to the satisfaction of the President. His authority over the Special Prosecutor had not been litigated, but supposedly it had been resolved by the creation of Jaworski’s charter and the agreement between Saxbe and the Senate Judiciary Committee. Those answers satisfied Sirica. He denied the President’s motion on May 20 and ordered compliance by May 31, subject to appellate review.
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St. Clair promptly appealed the ruling, thus launching what was to become
United States v. Nixon
, a suit that ended in the Supreme Court and gave the President the “definitive” ruling he had demanded, although not the one he preferred. St. Clair naturally carried the dispute to the Court of Appeals, but Jaworski petitioned the Supreme Court to take immediate jurisdiction. The procedure was unusual but not without precedent. The Supreme Court had taken such a path in the Steel Seizure Case in 1952, the last one that had involved broad considerations of presidential powers. Jaworski argued that the “imperative public importance” of the present issues required that the question be resolved during the Court’s present term; the Justices’ summer break was near, and they would not convene again until the beginning of the Court’s new term in October.

In a brief signed first by Charles Alan Wright and then by St. Clair, the President opposed the move, claiming that it would involve a “rush to judgment,” and quoting Chief Justice Warren Burger’s criticism of haste in the Pentagon Papers case in 1971: “prompt judicial action does not mean unjudicial haste,” the Chief Justice there said, in dissenting from the majority view critical of the government’s injunction against several newspapers. In a separate petition several weeks later (signed only by St. Clair), Nixon also asked the Court for a judgment of the grand jury’s right to name him as an unindicted co-conspirator. The request was merely a sideshow.
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President Nixon later described himself as wavering in this period, amenable to some compromise. He stressed that St. Clair and Buzhardt had urged him to stand fast. Eventually, he said, he came around to their view—a convenient rationalization, given his own worries about the June 23 tape.

During this period, Jaworski sensed that the growing hostility at the White House might well challenge his position. The President “was in a corner, and he was struggling,” Jaworski recalled. Prior to the release of the tapes, the White House acted as if the Judiciary Committee offered the greatest potential danger, and it paid little attention to Jaworski. But Jaworski’s initiation of subpoenas and court proceedings energized Nixon and his staff to confront the new challenge. The House committee, in the President’s mind, constituted chiefly a political threat, an arena in which he thought he could battle on equal terms, but the possibility of an unfavorable Supreme Court decision, one that projected finality, constituted a major danger. Nixon simply could not ignore the Court’s prestige and authority in constitutional matters.

Jaworski, for his part, did not treat lightly any signs of challenge to his authority. He reported to Senate Judiciary Committee Chairman James Eastland on May 20 that St. Clair had argued in Sirica’s court that Jaworski had no standing because the dispute was “an intra-executive dispute”—in short, Jaworski had no right to take the President to court. Jaworski reminded Eastland that he had taken the Special Prosecutor’s position with the understanding
that the President would impose no such restrictions on him—an understanding accepted, he said, by Haig, Buzhardt, Bork, and the members of the Senate Judiciary Committee. Jaworski carefully noted that he did not challenge the President’s right to raise any other defenses, such as executive privilege. But St. Clair had recently told him that the “fact that the President has chosen to resolve this issue by judicial determination and not by a unilateral exercise of his constitutional powers, is evidence of the President’s good faith.” For Jaworski, that position ominously suggested that in spite of all agreements, the President retained an absolute right to thwart the Special Prosecutor.

Jaworski was in a combative mood. Saxbe and Bork wrote to him on June 5, assuring him that their guarantees of independence remained intact but that they thought St. Clair had reason to pursue the question of Jaworski’s jurisdiction. They urged him and St. Clair to work out an agreement for handling the jurisdictional problem. Jaworski responded with lengthy quotations from the Special Prosecutor’s charter which defined his authority. Compromise? “A highly significant principle is involved, as I see it, one that involves not only the integrity of others but mine as well—and accordingly, there is no room for compromise.” He suggested that St. Clair join “us” in agreeing that jurisdiction was present and that the Special Prosecutor had authority to act independent of the President. Privately, Bork believed that Jaworski’s threatening to resign over a jurisdictional dispute would have been “ridiculous.”
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