On October 23, Bork signed an order abolishing the Special Prosecutor’s office effective October 21, and incorporating its functions into the Justice Department. Undoubtedly, at that moment, before the White House fully understood the national mood, there was every intention of giving the Attorney General—and hence the President—greater control over the Watergate prosecutors. Yet, from the moment Bork assumed office until he named a new Special Prosecutor on November 1, Cox’s Watergate Special Prosecution Force experienced no significant interruption in its work. The staff carried out its functions, had the FBI and the IRS continue their authorized investigations, and most important, encountered no interference whatsoever with their duties from Bork, Petersen, or any White House officials. The prosecutors neither were dismissed nor did they have any compelling cause for principled resignation. Whatever the original White House intent in challenging the Special Prosecutor, its only accomplishment had been to get Archibald Cox out of office.
Subsequently, Robert H. Bork’s critics charged him with being “irrelevant” and “passive.” Those descriptions were of a later vintage, designed to discredit Bork’s 1987 nomination to the Supreme Court. In fact, however, Bork was neither the passive instrument his detractors portrayed, nor was he any kind of hero in the affair, as his supporters—including Elliot Richardson—later testified.39
On October 23, Judge Sirica asked the President’s lawyers if they were prepared to respond to his August 29 order for the White House tapes, as modified by the appellate court. Charles Alan Wright, who had eagerly and somewhat confidently anticipated a Supreme Court review, shocked spectators when he announced in Sirica’s court that the “President of the United States would comply in all respects” with that order. Wright said Nixon believed that his offer of summaries was adequate but realized that even if the court agreed, he would have been accused of defying the law. Dramatically and firmly, Wright said that “this President does not defy the law,” and he intended to comply fully with the order. When Wright appeared as the President’s representative before Sirica, he confronted eleven former Cox aides at the prosecution table, anticipating the need to argue for compliance. Bork did nothing to prevent their appearance. The Special Prosecutor’s functions remained intact, and the President had been stymied in his effort to rid himself of his persecutors.
The forty-eight hours following Cox’s dismissal witnessed an extraordinary outburst of official and public indignation, instantly and dramatically reported on television. NBC’s anchorman solemnly suggested that “the country tonight is in the midst of what may be the most serious constitutional crisis in its history.” Opponents and even supporters of the President appeared on television to denounce his “reckless act” and his “Gestapo tactics.” Outside the White House, marchers held signs proclaiming, “Honk for Impeachment.” Nixon bitterly criticized the “apocalyptic” reporting that “painted the night’s events in terms of an administration coup aimed at suppressing opposition.” But subsequent surveys of the television scripts sharply disagreed with his assessment. Most of the material, the surveys revealed, was “pretty bland, pretty straight and pretty sketchy in detail.” Still, the images of outrage and protest conveyed a harsh message.
The Administration was mesmerized. Leonard Garment remembered thinking about little in those days except to marvel “over the mischief we had wrought and the public relations disaster we had brought upon ourselves.” The resignations and dismissals created a public reaction that surprised and dismayed the White House, as Haig admitted. The normally voluble Chief of Staff seemed stunned by events. The Washington Western Union telegraph office received nearly half a million telegrams, a record that dwarfed the response to any prior event. The White House hurriedly summoned Wright back from his classes in Texas and announced that Ruckelshaus had resigned and had not been dismissed as earlier stated. The Administration was in disarray and confused—“like being in the belly of the whale,” Garment noted—and had no sense of how to respond. A White House “talking paper” gamely tried to stanch the flow of negative comment, but the hostility toward Cox or any independent investigation undermined the veneer of the President’s readiness to compromise. Periodically, Nixon’s supporters claimed he had wide support for his dismissal of Cox, but their pronouncements seemed pallid.40
The responses of Washington political figures and media commentators were predictable, but new voices were also heard. Chesterfield Smith, the President of the American Bar Association, told his group that Nixon’s actions had threatened the “rule of law and … the administration of justice.” He charged that the President had taken “overt” action to “abort” established processes and had instituted an “intolerable” assault on the courts. Smith backed Cox’s contention that the President could not choose the nature of evidence essential to criminal proceedings. Finally, he praised “three great lawyers”—Richardson, Ruckelshaus, and Cox—who “honor and cherish the tradition of the legal profession” and who had placed “ethics and professional honor before public office.”
Former Nixon speechwriter William Safire urged Congress to “raise the rumpus it is entitled to raise as a result of the Richardson confirmation double-cross.” Somewhat cryptically, Safire urged Congress and the grand jury to “find out what lies behind the tapes.” Shortly afterward, Senator James Buckley and three of the most conservative Republicans in the House reported that their mail was running 90 percent in favor of impeachment. One of the congressmen insisted that the protest was “not organized” and was a “grassroots” phenomenon. More predictably, the AFL-CIO on October 22 called for the President to resign and for the House to impeach him if he did not.41
Retreat was inevitable all along the line. The “firestorm” following Cox’s dismissal and his superiors’ resignations had given a new momentum to events, a momentum that influenced Wright and Bork and ensured that Nixon could not thwart any investigation of his actions.
In the early morning hours of October 25, the President reportedly had ordered a worldwide military alert of American forces, both conventional and nuclear. The move reflected the Administration’s perception of Soviet intentions to intervene in the Middle East to enforce the precarious cease-fire between Israeli and Arab armies. Several hours later, Nixon briefed congressional leaders, who promptly gave him full support. A careful reading of the Nixon and Kissinger memoirs reveals that the Secretary of State and Haig ordered the alert, not the President, who by then was deeply jolted by the aftershocks of the Cox dismissal. Certainly, Kissinger’s ostentatious public diplomacy and posturing left Nixon’s role only dimly perceived. The President’s passion for control began to focus almost exclusively on Watergate.
When Henry Kissinger faced reporters that day, he displayed surprise and dismay at questions suggesting that the alert was designed to divert attention from Watergate and the events of the past weekend. Bitterly, disdainfully, Kissinger told the media representatives that “it is a symptom of what is happening to our country that it could even be suggested that the United States would alert its forces for domestic reasons.” He assailed the “Watergate bloodhounds,” as he later described them, flatly accused the media of creating “a crisis of confidence” in foreign policy, and warned that there had to be “a minimum of confidence that the … American government [is] not playing with the lives of the American people.” Newsweek nevertheless suggested sinister Administration designs, and it quoted an “Administration source” as saying that “we had a problem and we decided to make the most of it.” In an editorial, the Washington Post responded to Kissinger, sharply reminding him that “our crisis at home was created by the President.”42
If Nixon still seemed master of foreign events, he could react only passively, even submissively, to the domestic storms that battered his Administration. In late October, his speechwriters prepared a text for a television appearance, but Nixon canceled it. The draft bitterly denounced Cox for alone opposing the President’s offer to provide verified summaries of
the tapes. The statement also deplored the “national shock wave” that fostered “cynicism and suspicion,” making difficult the task of governance. Most significantly, the planned talk promised that Stennis would carry out the assignment of preparing verified summaries for Judge Sirica, and that the President would not appoint a new Special Prosecutor. “Experience” had shown that the position was an “inherently … unworkable arrangement” that should not again be attempted.43 The decision to cancel the speech underlined the uncertainty within the White House.
At his October 26 press conference two days later, Nixon announced his intention to appoint a new Special Prosecutor, one with “independence” and “total cooperation” from the executive branch. Bork’s confusion and ambivalence in the Department of Justice during the past five days reflected the twists and turns of the White House’s strategy. Nixon pleaded that it was time to prosecute the guilty and clear the innocent. The President thought it would be unnecessary for a new prosecutor to use the judicial process against him. The compromise of tape summaries that he had offered to Cox, he believed, would be adequate. But the words were hollow, betrayed by Wright’s announcement that the President would comply with existing court orders. Nixon reiterated his familiar arguments on behalf of confidentiality, but again he seemed to be going through the motions. Worse yet, he badly misgauged the temper of Congress when he asserted that he did not think that legislators would have to develop new guidelines for the new Special Prosecutor’s independence. The old fight, however, was there when he blasted Cox as uncooperative and “more interested in the issue than he was in the settlement.” Indeed, Cox was loath to let go. He wrote to Sirica on October 22, reminding him that as “an officer of the Court,” he still could be of some service. “[A]lthough I am reluctant to intrude myself, I wish not to shrink from any obligations,” Cox told the judge—in words that Sirica interpreted as an offer to be counsel to the grand jury. Sirica took no action.44
The time had come to watch congressmen’s feet, not their mouths. Within days, House members had introduced over twenty impeachment or impeachment-inquiry resolutions. Despite the President’s yielding on the tapes, House Judiciary Committee Chairman Peter Rodino announced that his committee would proceed to organize an inquiry. Speaker Carl Albert the same day said that the House must lay “this thing to rest one way or the other.” The full House committee met on October 30 and empowered the Chairman to secure subpoenas without a committee vote. Rodino promised to consult with the Judiciary Committee’s ranking Republican, Edward Hutchinson. His gesture was the first of many to foster a spirit of bipartisanship. A number of Republicans and several Southern Democrats in the House admitted candidly that the events of the past ten days had raised questions regarding the President’s truthfulness. Walter Flowers (D–AL), generally a warm, conservative supporter of the President, was “thoroughly turned off,” especially by Nixon’s obsequious references to “Judge Stennis.” Some of Stennis’s intimates called him that, but Flowers thought the President’s doing it was “just a dirty trick” and an obvious “ploy” to elevate Stennis’s status for Nixon’s advantage.
The “firestorm” had ignited Congress. Ray Thornton (D–AR) and Tom Railsback (R-IL) of the House Judiciary Committee remembered the “storm of mail” after the Cox dismissal. Thornton realized how suddenly “Watergate” was at the center of the committee’s attention, given Agnew’s resignation and the need to confirm a vice-presidential successor, arrive at new guidelines for a Special Prosecutor, and consider impeachment resolutions. Nobody, Thornton said, could have anticipated “judging these extraordinary questions.”45
By month’s end, newspapers across the land and across the political spectrum had called for the President’s resignation or his impeachment. The Atlanta Constitution, the Salt Lake City Tribune, the Boston Globe, the Honolulu Star-Bulletin, and the Detroit News joined the growing chorus, demanding action against the President. Most wrote more in sorrow than in anger; nearly all had supported Nixon’s re-election in 1972. More startling, on November 12, Time published the first editorial in its history, calling upon the President to resign. The editorial catalogued Nixon’s succession of lies and his defiance of court orders and agreements with Congress. He had passed the limits of “permissible” offenses, he had betrayed the constitutional system, his oath, and his “informal compact with the people.” The “nightmare of uncertainty,” Time concluded, “must be ended.”
Sam Ervin received a staggering amount of mail following the Cox dismissal. To his constituents, both those supporting and those opposing the President, he said that the events constituted “a great tragedy for America.” Ervin thought Cox had no reasonable alternative but to oppose the Stennis verification scheme. Some of his correspondents urged him to “Remember Chappaquiddick” and suggested that the smears against the President smacked of a “very strong Communist conspiracy.” Ervin stood his ground, but added that he “fervently hope[d] that past and future events do not give cause for impeachment of the President.”46
The events of the last days of October numbed and galvanized. Bork’s predecessor as Solicitor General, Erwin Griswold, was shocked. Cox, Richardson, and Ruckelshaus had been his students—and all were “honorable men.” Griswold had “lost faith” in the President by April; October’s events only confirmed his misgivings. For recently appointed FBI Director Clarence Kelley, the “Saturday Night Massacre” was a turning point. He no longer thought the Administration could be saved. Kelley’s “emotions,” and those of others in the top echelon of the Bureau, “all shifted into neutral,” for he recognized that the President “had indeed something to hide on those White House tapes.” During the firings, Haig directed Kelley to seal the offices of Richardson and Cox, as well as those of the Special Prosecutor’s staff. But Kelley already was wary, and he ordered his subordinates to maintain contact with Henry Petersen and avoid any appearance of participating in anyone’s cover-up enterprise. Richardson warned Kelley to be careful in his future dealings with the White House. For Richardson, the FBI action was the most blatant exercise of presidential power in the “whole sordid history” of Watergate. “A government of laws was on the verge of becoming a government of one man,” was Richardson’s perception, a strikingly pointed observation from this most accommodating of men.47
In the Saturday Night Massacre, Nixon attempted to flush out his demons from the Watergate thicket. But there were legions more in the undergrowth. The Watergate affair had not yet matured into the “greatest constitutional crisis,” but the full glare of publicity made it clear that matters had escalated to a new level. The unfolding crisis was of a house divided with regard to the fate of its president. Whether the nation would support or reject him now was the question on the table. The fractures, the divisions would have to cease; in one way or another, Richard Nixon would have to “bring us together.”
XVI
“SINISTER FORCES”
FORD, JAWORSKI, TAPE GAPS, AND TAXES: NOVEMBER–DECEMBER 1973
The Nixon Administration was floundering amid the scattered debris. The President had to choose a new Vice President and a new Watergate Special Prosecutor, and he had also to confront the new challenge from the House Judiciary Committee. His two-front war persisted; now, however, he faced fresh adversaries determined to contest his continued right to his political domain. Meanwhile, the demands for his tapes and papers persisted, as the Cox firing heightened suspicions of his conduct.
The assaults on the Administration had matured into criminal indictments for prized (or formerly prized) subordinates. John Dean pleaded guilty on October 19 to one count of conspiracy to obstruct justice, but the charge encompassed a collection of nefarious activities: raising money for the Watergate defendants, suborning Jeb Magruder’s perjury, and gaining access to FBI reports from L. Patrick Gray. Judge John Sirica delayed Dean’s sentencing pending his cooperation in forthcoming criminal trials, a move that promised the President more difficulties in the days ahead. Donald S
egretti pleaded guilty on November 1 to distributing false campaign literature and five weeks later was sentenced to six months in prison. At the end of November, the grand jury indicted Dwight Chapin, the President’s former appointments secretary, on four counts of perjury in connection with his dealings with Segretti.
The President was filled with sympathy, if not remorse, for his people. He told Chapin to “keep your balance and eventually this will all be seen in perspective. Your service to the nation will be remembered long after this unfortunate episode is forgotten.” He had his secretary pass word to Charles Colson that he was confident Colson would get “off” in the end. He uttered a familiar refrain: “The irony is that Ellsberg is a hero and those who tried to protect the nation’s security are now under attack.”1
Egil Krogh, one of the directors of the Plumbers, was indicted on October 11, the first fruits of Archibald Cox’s five-month tenure. The charges consisted of two perjury counts in connection with the burglary of the office of Daniel Ellsberg’s psychiatrist. By the time of the charges, Krogh had admitted in a sworn affidavit to Judge Matthew Byrne (presiding in Ellsberg’s criminal trial) that he had authorized burglars “to engage in covert activity” to secure Ellsberg’s psychiatric history, contrary to his earlier testimony. Several days before the indictment, Nixon confidently assured Krogh that he would be vindicated. “The situation is really topsy-turvy when a man who stole hundreds of top secret documents goes free on a technicality and those who were trying to expose him are prosecuted. Your courage—under great stress—inspires us all.” Nixon seemed genuinely fond of Krogh—“a superior property,” he once labeled him. But when Krogh pleaded guilty on November 30, his statement to the court devastated the foundations of the Administration’s defenses.
The Wars of Watergate Page 61