by Tim Weiner
CHAPTER TWENTY-THREE
“The President of the United States can never admit that”
WATERGATE WAS now more than a botched burglary. Warrantless burglaries and bugs, bald-faced lies obstructing justice, black bags crammed with hush money, B-52 bombings erased by falsified records—whether in the name of national security or the reelection of Richard Nixon—were abuses of presidential power.
Under the rule of law, the Senate Watergate Hearings were not a trial. But the rule of law had been taking a beating of late. The Justice Department and the FBI had been discredited. Few trusted Nixon to clean house rather than cover up the dirt. Piercing the shield of executive privilege that the president claimed would require a sharp force.
So the Senate unanimously commanded the new attorney general, Elliot Richardson,* a Republican stalwart who had run the Pentagon loyally since Nixon’s second inaugural, to appoint a special prosecutor with the independent authority to investigate the president. He chose a man tailor-made to enrage Nixon: Archibald Cox, President Kennedy’s solicitor general. Richardson vouched for Cox’s capacity to handle “the grave, difficult and delicate issues” he would confront. Nixon described the genteel Cox as “the partisan viper … planted in our bosom.”
The prevailing political atmosphere—in particular, the fact that Cox was investigating the president himself—compelled Nixon to make an unusual concession. He agreed that only the attorney general had the power to dismiss Cox. The special prosecutor was an independent force; the president could not slay the viper with the stroke of a pen. Cox requested and received the files of the prosecutors who had put the Watergate burglars in prison—and who were continuing to call witnesses before the federal grand jury overseen by Judge Sirica. They meticulously prepared an eighty-seven-page précis of their findings, listing twenty-seven people who were potential targets for indictment.
Number twenty-seven was the president of the United States. They cited Vernon Walters’s memoranda as essential evidence. The Walters memcons, now circulating among senators and senior Justice Department prosecutors, included the meeting where Walters was told that the president wanted the CIA to shut down the Watergate investigation. The White House tape of that meeting would one day be known as the smoking gun.
The special prosecutor’s power was one among many weapons aimed at the White House that spring.
* * *
Two events took place in Congress that would change history. One was without fanfare, the other without precedent.
First, the War Powers Resolution of 1973 was introduced by congressman Clement Zablocki, an unheralded Wisconsin Democrat. Its intent was to resolve the Constitution’s division of military authority between the president and Congress.
The Constitution makes the president commander in chief of the armed forces; it gives Congress the authority to declare war and the responsibility to support the armed forces by appropriating money. The War Powers Resolution said that the president had to consult with Congress about making war; it required a formal declaration of war, absent a national emergency caused by a surprise attack; and it gave the president sixty days to win congressional approval for financing a war. This bill would be passed into law, over President Nixon’s veto, six months later. It would prove a revolutionary act.
Then, on May 11, that tumultuous day at the White House, the House of Representatives voted 219–188 to cut off funds for the bombing of Cambodia.
The transmissions picked up by Sylvana Foa’s five-dollar pocket radio had reverberated around the world. This vote marked the first time the House had passed an end-the-war bill, an act within its power: under the Constitution, all spending bills must originate in the House. Between early February and the end of April 1973, the United States had dropped 83,837 tons of bombs on Cambodia, roughly seven Hiroshimas, at a cost of $159.5 million (about $840 million in today’s dollars). The Pentagon had been caught trying to transfer $150 million from other operating accounts into another three months’ worth of bombs for Cambodia.
Now the House had said no. If the Senate followed suit, that vote would go straight to the heart of the issues raised by the War Powers Resolution. Can the president conduct a war any way he wants? Or can Congress, since it buys the bombs and the war planes with tax dollars, control the president? Nixon could continue the bombing—and he did. But he risked laying his power on the line and provoking a constitutional crisis—and he would.
Nixon had undertaken many of the major military offensives of the Vietnam War without consulting Congress; he had created a three-billion-dollar slush fund, stashed throughout the federal government, for classified military and intelligence operations; he had established scores of secret statutes without consulting the courts—all by invoking a declaration of national emergency first proclaimed by J. Edgar Hoover at the start of the Cold War. A Senate select committee created in June 1972 was slowly and painstakingly uncovering these facts, showing how Nixon had usurped power, unconstitutionally placing the presidency above Congress and the courts.
“The balance between the three branches was under attack by Nixon,” said William Green Miller, staff director of the Special Select Committee on Emergency Powers and War Powers, and later the U.S. ambassador to Ukraine. The war in Vietnam and “the misuse of power and intelligence in Watergate all are part of the constitutional debate” at the time. “The constitutional balance had to be restored.”
The issues of presidential powers and presidential secrecy had been festering for years. After the War Powers Resolution was introduced, Sen. J. William Fulbright, chairman of the Foreign Relations Committee since 1959, said flatly, “Watergate is the bursting of the boil.”
* * *
On May 17, 1973, Sen. Sam Ervin Jr. brought the Senate Watergate Committee to order, banging a colorful wooden gavel handcrafted by North Carolina Cherokees. “The Founding Fathers,” he intoned, “knew that those who are entrusted with power are susceptible to the disease of tyrants, which George Washington rightly described as ‘love of power and the proneness to abuse it.’”
The committee’s first witness was Robert C. Odle Jr., the straight-arrow administrator of the Committee to Re-Elect the President. His conduct had been flawless, save for one fact: he had hired James McCord as CREEP’s security director.
Odle remembered hearing about the Watergate break-in a few hours after it took place, while he was working on a Saturday morning at CREEP headquarters. “That could never happen here,” Odle told a colleague. “I have this guy working for me named Jim McCord, and he has got this place really tight, and all I can say is I am glad McCord works for me.” At that moment, McCord was under arrest. When Odle learned that, “I was extremely concerned,” he testified. “I mean, here was our security director in jail.”
“How long did you keep Mr. McCord on the payroll after the Watergate bugging?”
“About one minute,” Odle answered.
The next thing he remembered was G. Gordon Liddy standing in the hallway at CREEP and asking where the paper shredder was. “I saw him with a pile of papers, perhaps a foot high,” Odle told Sen. Howard Baker. The stack went into the shredder.
Despite the gravity of the moment, Odle brought levity to the proceedings. “We tried from the beginning to save documents,” he testified, to show that CREEP was a “well-run, fairly thrifty campaign.” Senators, staff, and some reporters started to giggle. “That seems funny now, I know,” Odle said. “We wanted to save the documents because we thought it might be interesting for a scholar to go back in 100 years and…” At this point, the transcript shows, the hearings dissolved into laughter. Senator Baker complimented Odle by noting that when the committee broke for lunch, the television network covering the hearing had returned to its regular program, the popular game show To Tell the Truth.
After hearing detailed testimony from the police officers who had arrested James McCord and his Cuban American cohorts inside the Democratic National Committee, Ervin recessed the proceedings
at 5:15 p.m. The next major witness on the following day, Friday, May 18, would be McCord himself.
* * *
Shortly before McCord arrived at the witness table, President Nixon convened a Cabinet meeting at the White House. Among those present was the new chairman of the Republican National Committee, George H. W. Bush.
After hearing reports on how the rest of the government was faring, Nixon turned to the continued American bombing in Cambodia, the upcoming summit visit of the Soviet leader Leonid Brezhnev in June, and Watergate’s effect on the American body politic.
“The problem in Southeast Asia is blown out of proportion because of Cambodia,” Nixon told his Cabinet. “The purpose of bombing is not to get into a war in Cambodia, but to enforce the peace in Vietnam.” There was no peace. At that moment, Kissinger was opening six days of talks in Paris with President Thieu of South Vietnam and his adversary Le Duc Tho of the Hanoi Politburo, trying to salvage the failed cease-fire. The negotiations were fruitless; even Kissinger called them a charade. The war went on.
The June summit with the Soviets would be “a watershed in world history,” Nixon predicted. “Either we move forward on a constructive basis as we began last year, or we stop. If it is the latter, the world will be a dangerous place.… A lot is riding on the visit.” Kissinger had spent May 4–9 with Brezhnev, trying to work out an agenda for the summit. But he found the Soviet leader agreeable to little beyond a grand pronouncement against nuclear war.
As for Watergate, “It is rough and will get rougher,” Nixon said. “The crap will fly, but don’t think we have to deny every charge.”
“Be proud,” Nixon urged them. “Just say you don’t believe the President is involved.”
* * *
James McCord, not yet fifty, had spent five years at the FBI and nineteen years as a security officer specializing in surveillance and counter-surveillance at the CIA. A trusted friend in law enforcement, Jack Caulfield, John Ehrlichman’s gumshoe, had recruited him as CREEP’s security director.
In his explosive letter to Judge Sirica, McCord had said, “There was political pressure applied to the defendants to plead guilty and remain silent” at the Watergate burglars’ trial. McCord had not pleaded guilty or taken hush money. So what was that pressure? Watergate counsel Sam Dash asked.
McCord described three clandestine meetings with Caulfield held during the burglars’ trial, while he was free on bond, in January 1973. The two men talked twice at a parking area overlooking the Potomac River, and once during a two-hour car ride through the Virginia countryside. McCord said Caulfield told him he was delivering messages from “the very highest levels of the White House”: Plead guilty. Stay silent. You’ll go to jail for a year or less. There would be executive clemency to cut his sentence short, financial support for his family while he was behind bars, and a good job when he went free. McCord testified that Caulfield said that “the President’s ability to govern is at stake”; the government might fall if the cover-up failed.
McCord had told Caulfield that he knew the president had his problems, but “I had a problem with the massive injustice of the whole trial being a sham, and that I would fight it every way I know how.” In response to questions from Sam Ervin, McCord said that promises of executive clemency and clandestine caretaking also came from his codefendant Howard Hunt and Hunt’s lawyer; as the evidence would show, these assurances had been extracted from Hunt’s comrade and Nixon’s counselor Chuck Colson.
On Tuesday, May 22, Caulfield followed McCord to the witness table, taking his oath to tell the truth. He confirmed every aspect of McCord’s testimony about their secret meetings, and then he added startling details. In early January 1973, at the start of the Watergate burglars’ trial, Caulfield, the acting assistant director for enforcement at the Bureau of Alcohol, Tobacco and Firearms, was attending a drug conference in San Clemente when he received a telephone call in his hotel room from John Dean.
Dean asked him to leave the hotel and call him back from a public telephone. He told Caulfield that “he had a very important message which he wanted me to deliver to James McCord.” The message was: “1) A year is a long time; 2) Your wife and family will be taken care of; 3) You will be rehabilitated with employment when this is all over.” Point one was an implicit promise of executive clemency; the minimum sentence that “Maximum John” could impose under federal law would be at least one year. Points two and three were explicit offers of cash in exchange for silence.
“I immediately realized that I was being asked to do a very dangerous thing,” Caulfield testified. “I said to Mr. Dean that I did not think it was wise to send me on such a mission since Mr. McCord knew, as many others did, that I had worked closely with Mr. Dean and Mr. Ehrlichman at the White House.”
Despite his misgivings, he met again and again with McCord. “I specifically renewed the offer of executive clemency,” he testified. McCord said no. Dean instructed Caulfield before their third meeting to “impress upon him as fully as you can that this offer of executive clemency is a sincere offer which comes from the very highest levels of the White House.”
Chief counsel Sam Dash had questions on this point: “You do know, do you not, that the President is the only person in this country who can grant executive clemency in a federal criminal matter?”
“Yes, sir, I do.”
“Did you understand when you were speaking with Mr. Dean that Mr. Dean wanted you to transmit the message to Mr. McCord that the offer of executive clemency was made with the proper authority?”
“Yes, sir.”
Millions of Americans were now glued to their television sets.
* * *
At about 4:00 p.m. on May 22, as Caulfield testified, the White House started handing out a four-thousand-word white paper, President Nixon’s longest and most detailed statement about Watergate to date. Nixon had painstakingly rewritten every word of the draft and issued it in the first person—and almost every word of the preamble was false.
I can and do state categorically:
1. I had no prior knowledge of the Watergate operation.
2. I took no part in, nor was I aware of, any subsequent efforts that may have been made to cover up Watergate.
3. At no time did I authorize any offer of executive clemency for the Watergate defendants, nor did I know of any such offer.
4. I did not know, until the time of my own investigation, of any effort to provide the Watergate defendants with funds.
5. At no time did I attempt, or did I authorize others to attempt, to implicate the CIA in the Watergate matter.
6. It was not until the time of my own investigation that I learned of the break-in at the office of Mr. Ellsberg’s psychiatrist, and I specifically authorized the furnishing of this information to Judge Byrne.
7. I neither authorized nor encouraged subordinates to engage in illegal or improper campaign tactics.
Point one was true. Points two through seven were lies.
Point two: Nixon began trying to cover up Watergate six days after the break-in. He lied to White House aides, high officials of the Justice Department, the FBI, the CIA, Congress, and federal prosecutors. Four times, on tape, he suborned perjury by CREEP’s second-in-command, Jeb Magruder. He withheld evidence by reflex.
Point three: Nixon twice authorized Colson to promise clemency to Howard Hunt and, as sworn testimony that very day suggested, promised clemency through John Dean to James McCord, the first man to blow the whistle on the Watergate cover-up.
Point four: Nixon, on tape, discussed hush money for Watergate defendants with Dean, Haldeman, Tom Pappas, and Rose Mary Woods.
Point five: Nixon tried to find a way to use the CIA connections of six of the seven Watergate burglars to pin blame for the break-in on the Agency. He authorized Haldeman and Ehrlichman to pressure the CIA into obstructing the FBI’s investigation.
Point six: Dean told Nixon, on tape, about the Plumbers’ burglary of Ellsberg’s psychiatrist’s office. Nixon
did not look into the facts. Arguably it was a felony for Nixon to conceal his knowledge of the crime.
Point seven: Nixon, using Chuck Colson as his point man, spied on the campaigns and campaign contributors of his 1972 opponents, including George McGovern and Ed Muskie. He misused the IRS and the Secret Service in acts of political espionage.
The white paper could have been a chance for absolution. Nixon admitted that he’d authorized the White House wiretaps—but he omitted the fact that the taps never identified a leak. He promised that “executive privilege will not be invoked as to any testimony” at the Watergate hearings—but he reserved the privilege to withhold documents. He admitted the existence of the Huston Plan—but he never said, “I approved it.” In that passage, he had edited out the first person singular.
The first draft had said: “‘I ordered that they use any means necessary, including illegal means,’” Nixon told Haig. “The President of the United States can never admit that.”
The cover-up of the cover-up was the penultimate act in his downfall, an approaching darkness at the end of the tunnel. The white paper would become a template for the first article of the impeachment of the president.
* * *
Yet the flickering genius of Richard Nixon flared two days later, when he gave a fiery speech to the American prisoners of war returned from Vietnam.
Nixon always spoke triumphantly of ending the war. Soldiers with boots on the ground knew better. “There’s going to be a full-blown war starting up after we leave,” said Col. Einar Himma, one of the last American combat officers to take off from the Tan Son Nhut Air Base in Saigon. “The fighting has never stopped anyway.”
After years of secret negotiating to end the war, and the gradual replacement of American divisions by Saigon’s forces under Vietnamization, what Nixon had accomplished in the end was a straight swap: the complete withdrawal of American combat forces in exchange for the release of 591 American prisoners of war. And on May 24, 1973, he invited every one of those POWs and their wives for a briefing and a reception at the State Department and supper on the White House Lawn. With 1,300 guests, it was said to be the biggest formal dinner ever held at the Executive Mansion.