The Wars of Watergate (76 page)

Nixon later blamed his decision not to destroy the tapes on “well-intentioned lawyers who had the cockeyed notion that I would be destroying evidence.” Leonard Garment acknowledged his role in persuading the President of that position. Despite the lack of a subpoena, Garment believed that the Senate’s demand and the Special Prosecutor’s intention to move for the tapes constituted public knowledge of and public demand for the evidence. Once Butterfield had revealed the tapes’ existence, Garment argued, destruction would have been an obstruction of justice. Curiously, Nixon’s longtime adversary, Washington attorney Edward Bennett Williams, who represented the
Washington Post
and the Democratic National Committee in its 1972 civil suit against CREEP, said he would have advised Nixon to destroy the tapes and make the action public, as long as they were not under subpoena. Williams believed that the President could have said he would not risk compromising conversations with heads of state and foreign ambassadors, not to mention his own aides.
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Pat Nixon could not understand her husband’s decision. But his daughter Tricia sensed how threatening the tapes were. Her father repeatedly had told her that the tapes could be taken either way, that they contained nothing damaging, yet he might be impeached because of their content. “Because he has said the latter,” she wrote, “knowing Daddy, the latter is the way he really feels.”
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In a remarkably tantalizing, yet blunt and dark, passage in his memoirs, Nixon unveiled probably the most deep-seated of his motives in preserving the White House tapes: the tapes, he wrote, “were my best insurance against the unforeseeable future. I was prepared to believe that others, even people close to me, would turn against me just as Dean had done, and in that case the tapes would give me at least some protection.”

Henry Kissinger, a somber observer of that lonely side of Nixon, described how the President might also have taped conversations for devious purposes. Just before Nixon was scheduled to sign the order for the Christmas bombing of North Vietnam in 1972, he summoned Kissinger to his office. There, Haldeman confronted the National Security Adviser, and proceeded to argue vehemently against the measure—even though Kissinger and Nixon had carefully determined their course of action beforehand. Kissinger reflexively defended the decision. Meanwhile, the President remained silent and ultimately signed the order. In all probability, Kissinger believed, Nixon had used the secret recording system in that instance to set up Kissinger as the perpetrator of the deed, in the event anything went wrong.
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What is often unsaid in the backward-looking interpretations of Nixon’s decision by himself and others is that the President and many around him confidently believed that no one could force him to divulge the tapes. Few knowing students of constitutional law would have anticipated the unanimous decision of the Supreme Court in 1974 forcing Nixon to surrender some of his tapes. However imprecise and vague the standing of executive privilege as constitutional doctrine, mere presidential assertion of the prerogative had historically been enough to sustain it. Common sense, too, dictated that presidential conversations required an important element of confidentiality, generally not to be violated. The conflict here was between the practical problems of governance on the one side and both the demands of criminal justice and the necessity for cleansing the Augean stables of political corruption on the other. Political and public sentiment eventually propelled a resolution of the dilemma; but time, in that sense, was not Nixon’s ally.

Sam Ervin and his fellow Senate Select Committee members responded to the Butterfield revelation with an appeal to the President that he surrender all relevant tapes and documents. On July 23 Nixon emphatically rejected
the plea, again insisting that he needed to preserve the principle of confidentiality for the presidency. In a separate letter sent that day, he marked his growing estrangement from Congress by refusing a private meeting with Ervin and Baker. The committee promptly issued a subpoena for the tapes. Ervin contended that no writ of executive privilege extended to “either alleged illegal activities or political campaign activities.” Never before had a congressional committee served a subpoena on the President, and not since 1807 had a president received a subpoena from any source. Nixon’s two-front war heated up. On that same day, his lawyers rejected a similar request for the tapes from Special Prosecutor Cox. One lawyer pointedly reminded Cox that he was part of the executive branch and therefore subject to presidential orders—“and can have access to presidential papers only as and if the President sees fit to make them available to you.” Cox was unimpressed, and he, too, similarly secured a subpoena.

The President “respectfully” rejected the Senate’s subpoena on July 26. Executive privilege, he insisted in reply to Ervin, was at stake. He had invoked it, Nixon said, “only with regard to documents and recordings that cannot be made public consistent with the confidentiality essential to the functioning of the office of the President.” In short, the President would decide the priority between “confidentiality” and “alleged illegal activities,” as Ervin described them. The day before, Nixon informed Judge John Sirica that he would “decline” Cox’s subpoena, contending that historical precedents demonstrated that presidents could not be subjected to compulsory process from the courts. Responding to a motion by Cox, Sirica directed the President’s lawyers to appear for arguments on August 7 and show cause for declining to produce the tapes. As the judge set down his order, the White House announced that the President “would abide by a definitive decision of the highest court,” a remark Nixon repeated at his August 22 news conference.

Cox and a presidential lawyer, Charles Alan Wright, clashed in Sirica’s courtroom on August 22. Both men touched on sensitive propositions. Wright maintained that the constitutional provision for impeachment provided the only remedy for checking and balancing the President in cases like the one at hand. Cox not so obliquely challenged the President to comply with a subpoena or “dismiss the case”—presumably by firing the Special Prosecutor. But then, Cox noted, “the people will know where the responsibility lies.” A week later, Sirica ordered Nixon to turn over some tapes for his personal examination. Citing Chief Justice John Marshall’s ruling in a case involving Thomas Jefferson, Sirica held that there could be “no exception whatever” to the compulsory process of the courts. In a brief statement issued at San Clemente on that day, the President announced he would appeal. Perhaps he would have preferred simply to refuse and “let Judge Sirica enforce his order,” to paraphrase President Andrew Jackson’s alleged reaction
to another John Marshall ruling. But Nixon later acknowledged that he “recognized the political reality,” and instead of defying Sirica, he decided to observe regular appellate procedures.
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Cox’s actions, despite his public disavowals of personal antagonism toward the President, reinforced Nixon’s convictions that he had given Attorney General Elliot Richardson too much latitude and that Cox spearheaded a Kennedy vendetta. A month before Butterfield’s revelations, Cox had requested a tape Nixon had mentioned to Henry Petersen in April. Buzhardt refused. Because of Richardson’s generous charter to Cox, the President thought the Special Prosecutor “was so powerful” that a clash “was inevitable.” By then, Richardson clearly had lost favor in the White House. In June he had urged the President to be more forthcoming about Watergate, in an “open forum.” When Nixon’s tactics did not change, Richardson thought it merely an error of judgment. Eventually he “realized that Richard Nixon was more likely to be guilty than stupid.”

At the time, Richardson’s administrative assistant sensed that the White House had little interest in the Attorney General’s advice. The President “and his beleaguered lieutenants,” the aide warned, were bent on survival. They were likely to regard Richardson’s concerns for integrity and credibility “as either bullshit or dissembling” and to meet them with “suspicion and distrust.” Richardson would have to walk a tightrope between the survival concerns of the White House and the enforcement demands of the criminal-justice system. “[A]t some point,” the aide continued, “you’ll have to [be] ready to draw the line (we once talked about there being worse things than resigning or being fired)”—that line being the Attorney General’s willingness to stand by his deputy, Ruckelshaus, his support of Cox, his continuing the investigation of Vice President Agnew, and his refusal to defend the break-in of Ellsberg’s psychiatrist on national-security grounds. At this early point—July 9—Richardson’s inner circle knew that Archibald Cox represented the fighting ground. Richardson could reassure Haig that he would put certain restraints on Cox’s jurisdiction, but in the end, he would “necessarily have to come back to the very broad guidelines announced and endorsed by the Senate.” As the controversy over the tapes intensified, Richardson told the American Bar Association in August that he would “for-swear politics” for himself in order to counter the suspicion of political influence in the Justice Department.

Richardson, however, occasionally waffled between his loyalty and obligations to the President and his public responsibilities to the Special Prosecutor. In late July he was reported as saying that he did not believe Cox had a clear right to the tapes. Cox’s “investigation of a crime doesn’t by itself confer a right of access” to confidential presidential papers, he remarked.
But Richardson, too, sensed a long court struggle, even envisioning Solicitor General Robert Bork’s arguing the question in the Supreme Court. Richardson walked a fine line. He believed that Cox had been acting “in full accord with the requirements of his job.” Yet he knew it was important to find a practical means for reconciling the competing public interests of confidentiality for the President and the need to uncover criminal evidence. In fact, that was the nature of Richardson’s role in the three remaining months of his tenure.
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It was a stressful time for the President. Flying to New Orleans on August 20 to address the Veterans of Foreign Wars, Nixon heard that a threat had been made on his life. Arriving at the convention hall, he suddenly turned on Press Secretary Ziegler, grabbed him, angrily pushed him toward pursuing reporters, and shouted that he did not want the press with him. The White House insisted that the incident never happened, but CBS had captured it on film and played it twice. There was heightened speculation that the President was mentally breaking down, drinking to excess, or both. He believed that his August 15 address had struck a responsive chord; he was certain that “people were tired of Watergate.” If so, his New Orleans behavior raised to a different level questions of his competency. Watergate preoccupied Nixon as the fight over the tapes gathered momentum, and there were other signs of the strain. On October 20 his longtime patron and supporter Norman Chandler, publisher of the
Los Angeles Times
, died of cancer. Just prior to this, when the President had been staying in San Clemente, he had twice failed to carry out scheduled visits with Chandler.
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Nixon first heard that Vice President Agnew had legal problems of his own at a meeting with Haldeman and Ehrlichman on April 14, 1973. Haldeman reported that a Baltimore grand jury had been investigating bribery and “kickback” charges against Agnew when he was governor of Maryland, and allegations that he continued to accept illegal payments as Vice President. Those charges also led to an investigation of Agnew for income-tax evasion. According to Haldeman, Agnew was “absolutely scared shitless.” Nixon was preoccupied with his own troubles; “he’s just got to ride that through—what the hell—” the President remarked.

When Richardson assumed office in May, he immediately was preoccupied with the selection of a Special Prosecutor. But he also learned that the U.S. Attorney’s office in Baltimore had Agnew under investigation and realized he eventually would have to confront the situation himself. In July Richardson’s aide suggested that the time had come to inform the President. “I am worried about the matter surfacing and it developing that you knew
about it and hadn’t told him,” the aide wrote. As Richardson briefed Nixon, he was struck by the President’s lack of surprise. Nixon, typically, was well informed about the various compartments of his Administration.
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From the moment of his selection as Nixon’s running mate in 1968, Agnew had been a focal point of controversy. In large part, this stemmed from Nixon’s desire to use Agnew to attack his favorite targets, the media and liberals, a role that made Agnew the “household word” that he had not previously been. Those who regarded him as an ethnic Throttlebottom soon recognized his talents as an effective political voice on the hustings. Suave, distinguished-looking, and articulate, the Vice President represented a story-book tale of ethnic success. As Maryland’s governor, he faced down black leaders of the Baltimore riots in 1968, a moment that made him an instant celebrity with conservatives and the Nixon organization. In fact, Agnew’s momentary fame obscured what later came to be recognized: that he was a commonplace man, who, as a Nixon speechwriter wrote, merely said what good Republicans “say on commuter trains when their thoughts turn from moneymaking to politics.” Moneymaking—before, during, and after his tenure as Vice President—seemed to be the thing that excited Agnew most. When asked if he was happy to be selected as Nixon’s running mate, Agnew replied: “The ability to be happy is directly proportional to the ability to suffer, and as you grow older you feel everything less.”
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After his Des Moines assault on the media in November 1969, Agnew became not only a household word but, to the consternation of some Administration insiders, a growing power within Republican circles. He appealed to and comforted that Silent Majority who deplored the constant stream of protest and demonstrations against authority. In his June 1969 commencement address at Ohio State University, Agnew said that a society that feared its children was “effete.” The “tough guy”—from Wyatt Earp to Dirty Harry—who stands up in contrast to a weak society is the stuff of American myth and legend. Agnew did not disappoint. “A sniveling, hand-wringing power structure deserves the violent rebellion it encourages. If my generation doesn’t stop cringing, yours,” he told his young audience, “will inherit a lawless society where emotion and muscle displace reason.” After American Indian militants demonstrated in Washington, Agnew urged the President to press criminal charges, contending that the Administration would look “McGovernish” if it in any way condoned the action.
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