The Wars of Watergate

by Stanley I. Kutler

  Dean’s efforts earned him some time for extensive conversations with the President, beginning in February 1973. Ever ingratiating and accommodating, he suggested that Senator Edward Kennedy had pressured Mansfield to create the new Senate Select Committee. Surprisingly, Nixon rejected this line, although less than three weeks earlier he had told Haldeman that the whole affair was a Kennedy plot against him. Talking with Dean, the President reserved his greatest invective for the Republican senators who thought the Senate inquiry should be an objective, bipartisan affair. He considered Ervin a sham, scoffing at his reputed authoritativeness as a constitutional lawyer. He thought Ervin had totally “buffaloed” the designated committee Vice Chairman, Howard Baker; Ervin, he said, “is as partisan as most of our Southern gentlemen are. They, they, they are great politicians. They’re just more clever than the minority [sic]. Just more clever!”

  Nixon clearly was worried when Dean reported that Nixon’s lawyer, Herbert Kalmbach, was being questioned by the U.S. Attorney. Dean earlier had told Haldeman that the prosecutors had subpoenaed Kalmbach’s phone records. The President seemed particularly pleased that questions regarding “San Clemente and the like” had been covered by lawyer-client privilege and were out of bounds. But the landscape was strewn with mines. Nixon raised the question of clemency, asking whether Hunt and the others expected it within “a reasonable time.” Dean thought so, yet he advised the President to tread cautiously because things could become quite “political” in the next six months. Nixon agreed.

  He emphasized that Dean must get through to Kleindienst—he was the “man who can make the difference,” Nixon said; moreover, Kleindienst “owes Mitchell” for his position. Finally, Nixon again raised the Hiss case and applied it in an odd, almost perverse way. He told Dean that Whittaker Chambers, Hiss’s accuser, suffered greatly because he was an informer. Chambers, he thought, was one of the great men and writers of his time. Still, “they finished him.… [T]he informer is not wanted in our society. Either way, that’s the one thing people do sort of line up against.”21 Was that pointed advice for John Dean?

  The trial of Hunt, Liddy, and the Watergate burglars began on January 10 in the U.S. District Court for the District of Columbia. Assistant U.S. Attorney Earl Silbert depicted the break-in as part of a well-financed, many-layered espionage and “special intelligence” operation against the Democratic Party, organized by the Committee to Re-elect the President. Silbert promised to offer evidence on the recruitment of spies, earlier attempts to bug McGovern’s offices, the monitoring of telephone calls from the tap in the Democrats’ Watergate headquarters, and, of course, the facts relating to the capture of the burglars and the activities of Hunt and Liddy. The defendants had been indicted on multiple counts of burglary, conspiracy, and interception of wire and oral communications. Silbert and his assistants had prepared their case carefully and confined it narrowly. The prosecutor realized that in other matters the liberal Circuit Court of Appeals had reversed decisions of presiding judge “Maximum John” Sirica to an unusual degree. Accordingly, Silbert framed his indictment with “shrewd parsimony,” restricting himself to those offenses that appeared beyond dispute. “There was nothing to try,” a former federal attorney later wrote.22

  For his part, Howard Hunt realized that nothing could be gained in a trial. The defense attorneys had responded feebly to Silbert’s presentation with the argument that the defendants had no evil motive, “no criminal intent.” That same day, Hunt offered to plead guilty to three charges, but Sirica promptly refused the offer, citing the strength of the government’s case. The public, he admonished, must have “not only the substance of justice but also the appearance of justice.” On January 11 Hunt pled guilty to all six counts. Patriotism was his last refuge. He had acted, he insisted, “in the best interest of my country”; he added that he had no knowledge of “higher-ups” in the conspiracy. Sirica released Hunt on $100,000 bail.

  The four Cuban burglars similarly pled guilty on January 15 to all counts in the indictment. Responding to questions from Sirica regarding their actions, the burglars insisted that they had acted on behalf of Cuban liberation, and because they believed McGovern’s election would lead to Communism in the United States. They continued to deny any knowledge of the sources of the large amounts of cash discovered in their possession at the time of the break-in. The New York Times reported that great pressure had been exerted on the defendants to plead guilty, but it named no sources.

  McCord and Liddy nevertheless pressed their cases. Judge Sirica often interrupted from the bench, indicating his disdain for testimony that attempted to keep the conspiracy confined to the accused in the case. McCord’s lawyer offered a “defense of duress,” contending that his client thought it necessary to secure intelligence on the Democratic Party in order to protect CREEP officials from bodily harm; therefore, McCord broke a law, the lawyer said, to prevent a greater harm. Sirica brusquely called the argument “ridiculous,” although he later noted that it might have carried more weight if the defense lawyer had been able to say that the former Attorney General of the United States had approved the operation. The jurors, too, were unimpressed. On January 30, after deliberating only ninety minutes, they returned guilty verdicts on all counts against McCord and Liddy. Three days later, Sirica set bail and could not restrain his skepticism. “I am still not satisfied that all the pertinent facts that might be available—I say might be available—have been produced before an American jury.” He expressed the hope that the anticipated Senate inquiry might “get to the bottom of what happened in this case.”23

  Sirica’s statement reflected his knowledge of parallel developments in the Watergate affair. Senator Mansfield was preparing for a debate on his resolution for an investigating committee, and he was carefully assembling the bipartisan support to give it the necessary element of credibility. On the day that Hunt offered his guilty plea, the Justice Department’s Henry Petersen, still in charge of investigating the “Watergate Incident,” assured Congressman Wright Patman that his office had closely followed the leads provided by Patman’s staff and was “vigorously” pursuing “all evidentiary leads.” That same day, Justice filed charges against CREEP for campaign-financing violations.24

  * * *

  Patman’s earlier attempts to unravel the Watergate puzzle failed because of White House pressure, the distractions of the political campaign, and, not least, because his investigation was perceived as a partisan attempt to embarrass the President. In one respect it was indeed partisan: Republican members of the House of Representatives had no interest in discrediting their own national campaign. If the dominant Democratic congressional majority confronted Watergate as something more than politics-as-usual, then it would have to do so on higher ground. Attention to campaign practices and financing provided the ticket.

  The stifling of Patman’s investigation in October 1972 effectively took Watergate off the front pages. George McGovern desperately tried to exploit the issue. But the Democratic presidential candidate could not attract serious attention on more momentous matters; how, then, could he hope to arouse voter interest in what seemed to be a campaign peccadillo? His harsh comparisons to Teapot Dome sounded hysterical, even absurd.

  In the wake of Nixon’s smashing triumph, the verdict in the Watergate trial made little news. The lack of attention reflected the nation’s lack of interest. When the burglars’ trial began, newspaper reports treated it as a commonplace criminal event. The New York Times stories appeared in the inside pages. Howard Hunt’s guilty plea briefly made the headlines, but attention quickly waned, despite Judge Sirica’s dramatic attempts to uncover bigger news.

  Watergate might have remained as the story-that-never-was had it not been for the determination of Mike Mansfield and Sam Ervin. Ervin played a crucial role in securing Senate passage of a resolution calling for the creation of a Select Committee to investigate illegal and unethical conduct in the 1972 presidential campaign. Mansfield, meanwhile, worked behind
the scenes to marshal Democratic support for the resolution. He kept Ervin in the forefront, shrewdly using Ervin’s political capital among Southern Democratic and Republican senators.

  Mansfield gave Ervin command of the floor debate, signalling his intention that the North Carolinian chair the investigation. The conservative Ervin was respected on both sides of the aisle, his integrity was unquestioned, and he was widely known as a constitutional “strict constructionist.” He had been regarded as Richard Russell’s heir apparent for leadership of the Southern caucus. But the Senate’s routine business did not interest him, and he had little taste for day-to-day political negotiations.25 Two decades earlier, Ervin had served on the Select Committee that recommended censure of Senator Joseph McCarthy—an onerous assignment, but one that reflected the confidence of his colleagues. They also appreciated his wit. Supporting censure, Ervin invoked the wisdom of “Uncle Ephraim Swink,” an “arthritic mountaineer,” who described what the Lord had done for him: “Brother, He has mighty nigh ruint me.”

  The Senate’s 77–0 support for Senate Resolution 60, creating the Select Committee, belied the two days of sharp partisan debate. This was a Democratic cause, but even within that camp the leading support came from polar opposites. Ervin may have had a somewhat exaggerated reputation as the Senate’s constitutional authority; nevertheless, in all quarters he was respected for his decency and his sense of fair play. Democratic liberals might chastise him for his conservative views, but they respected him—and also, in view of senatorial club politics, they realized there was little mileage in attacking him. Senator Edward M. Kennedy’s support for an investigation, however, struck many as part of a blood feud with Nixon. Had Kennedy, not Ervin, proposed Senate Resolution 60, the results might well have been different. Ervin scrupulously maintained a correct posture toward the President. At the outset, he found it “simply inconceivable” that Nixon might have been involved.26

  The debate parodied the senatorial process, replete with stylized discourse that masked deep divisions and featuring occasional outbursts of sentiment, declamations of noble purposes—and blatant partisanship. The Republicans could only hope to hobble the investigation; they could not prevent it. Accordingly, they challenged the proposal for the Senate Select Committee on three counts: the numerical composition of the committee, the scope of the investigation, and the expenditures of the committee’s $500,000 allocation.

  Howard Baker led the Republicans and welcomed the idea of a Select Committee. Ervin’s original proposal provided for a committee of five, with three seats earmarked for the Democratic majority. Baker proposed an additional Republican to divide the committee equally along partisan lines. Baker and his fellow Republican, Lowell Weicker of Connecticut, emphasized the need for nonpartisanship. “Partisanship [was] … a serious national problem,” Weicker said; Alaska Republican Ted Stevens worried that the investigation would turn into a “political witch hunt.” Ervin responded on historical and practical grounds, noting the danger of partisan tie votes. The Senate rejected Baker’s amendment on a nearly party-line vote, 45–35. (In fact, an equally divided committee had directed Joseph McCarthy’s censure inquiry. The Republicans had established a three-to-three division to avoid the onus of directing the castigation of one of their own.)

  The scope of the investigation exposed partisan concerns. Baker politely queried Ervin on whether the Select Committee might, in the “spirit of a broad inquiry,” look at other presidential elections. The Republicans wanted the committee to investigate the 1968 and 1964 elections, obviously to substantiate widespread rumors of Democratic skullduggery in those campaigns. Ervin sensed the Republican purpose but obliquely replied that such a diffuse effort could not be fulfilled given the committee’s mandate to report its findings within a year. He distinguished between investigating past rumors and current alleged criminal matters. Diverting the inquiry away from the recent election, he warned, would be “as foolish as the man who went bear hunting and stopped to chase rabbits.”

  But Florida Republican Edward Gurney pushed hard for a wider investigation, while characterizing Watergate as “one of those political wing-dings that happen every political year.” He thought Watergate had no influence whatsoever on the election. John Tower (R–TX) suggested that Democratic acceptance of the broader mandate would serve to defuse any charges of partisanship. But Democratic lines held, and again the Senate turned back the Republican challenge.

  Republican frustration spilled out during a debate on the allocation of Select Committee funds. Specifically, they wanted one-third of the available funds to provide minority staffing. Democratic resistance, Stevens charged, demonstrated the blatantly “partisan concept” of the committee. Ervin apparently realized that the Republican demand mainly was a face-saving gesture, and he agreed to the proposal. Baker and others consistently applauded the idea of a Select Committee, but their remarks seemed more like gestures than convictions. Senator Jesse Helms (R–NC) probably expressed his party’s basic view when he said that the FBI and Patman investigations, and the media coverage, demonstrated that “the Watergate situation has received the closest and most penetrating scrutiny.”27 What the Republicans finally voted for was more an expression of faith in Senator Ervin than of any real desire for a Select Committee. In truth, however, they had little choice in the matter.

  The brief partisan flare-up over Watergate still did not kindle much public interest. The New York Times covered the first day of the Senate debate on page 36; news of the resolution’s passage moved up four pages. After the vote, Senator Baker visited Tennessee and asked a former campaign worker to serve as the committee’s Minority Counsel. The lawyer, Fred Thompson, later admitted that he was barely aware of the Watergate story as it had then unfolded.

  But the White House was not oblivious. The creation of the Senate Select Committee meant that the maintenance of the cover-up would have to be expanded. The new dimensions, however, only increased the likelihood of exposure. Administration resources proved to be limited, vulnerable, and ultimately, incompetent.

  The President realized the danger. On February 11, he told Haldeman that they must discredit the hearings, reiterating the now-familiar theme that this was a commonplace “political crime.” He wanted it stressed that the focus on Watergate was “all a Kennedy deal.” A month later, Nixon wanted his political aides to find a candidate to oppose Sam Ervin in North Carolina and “nip at his heels.”28

  John Dean later revealed details of the Administration’s strategy. While adopting a public posture of cooperation with the Select Committee, presidential staff would make every effort to restrain the investigation and “make it as difficult as possible to get information and witnesses.” They would cultivate the media to expose the inquiry as partisan. “The ultimate goal,” Dean admitted, was “to discredit the hearings and reduce their impact by attempting to show that the Democrats have engaged in the same type of activities.”29

  The Administration’s response was instinctive and in character. The President’s strategy toward Ervin remarkably paralleled that of Charles I regarding parliamentary opposition in seventeenth-century England. Charles “never was … more unfortunate than when he attempted at once to cajole and to undermine [Oliver] Cromwell,” as Thomas Macaulay later wrote. Charles eventually lost his head and his crown. Richard Nixon’s life was never at stake, of course, but neither he nor anyone else realized that his office was in jeopardy. He soon discovered that attempts to “cajole and undermine” Sam Ervin had risks of their own. The contempt shown by such aides as Ehrlichman, who had clashed with Ervin in January over executive privilege, had the added danger of irritating the Senator.

  Ervin was formidable. He had the confidence of his colleagues, and consequently his power increased proportionately. At one committee meeting, Ervin summoned committee member Herman Talmadge (D–GA), then presiding at another meeting. The Georgian promptly came to Ervin’s session, conferred with the Chairman, and left Ervin with his proxy.30 In
time, during the Watergate hearings, Ervin became a neo–folk idol. Ironically, he had been completely out of step with popular sentiments and causes of the past decade. His vaunted role as the Senate’s constitutional expert contrasted with his paternalistic views on civil rights for blacks and equal rights for women (“blame fools”). He had uncritically championed presidential policy on the Vietnam war. Finally, he opposed Medicare legislation—much to his regret in his later retirement years.

  Ervin’s positions faithfully reflected his constituency. But the rhetoric and the abstract value of liberty that he regularly invoked served him well when Watergate emerged as a national concern. His uniquely Southern, cadenced English, and his use of a variety of homespun, Shakespearean, and Biblical allusions, made him an instantly popular television personality. But he often leavened his humor and theatrics with the sharp rhetorical skills of a shrewd Harvard lawyer—which he also was. Critics might have scoffed at him, but Sam Ervin, “country lawyer,” well understood the nation’s mystical constitutional bonds. The President and his staff grossly underestimated Ervin and his serious purposes.

  * * *

  During the early months of 1973, the White House constantly wavered between confidence and apprehension. Haldeman’s aide Larry Higby told the Chief of Staff that Jeb Magruder had fairly well solved all his Watergate problems. Magruder would have no difficulty in court and was certain he would have only a minor role in the forthcoming congressional hearings. Several weeks later, however, the President sharply reversed his view of Congress. He instructed John Ehrlichman to be careful in writing veto messages and not to use “certain words [that] unnecessarily infuriate Congress[.]” Much of the post-election brazenness and euphoria had evaporated, and Nixon warily glimpsed the future.31