The Wars of Watergate

by Stanley I. Kutler

  Buzhardt had come to the White House in 1973 after nearly three years as General Counsel in the Department of Defense. He had good political ties; he had been a protégé of Senator J. Strom Thurmond and had developed a close relationship with Melvin Laird. As a practicing lawyer, Buzhardt had confined his work to small-town civil matters in his native South Carolina. He was known as a man who could keep secrets. No wonder, then, that among Nixon’s numerous lawyers, only Buzhardt had access to the tapes. Given the President’s special reliance on him, coupled with an inability to delegate any of his responsibilities, Buzhardt was badly overworked, a situation that only aggravated his deteriorating heart condition.13

  Garment contrasted sharply with Buzhardt. Friendly and gregarious, he had had a substantial legal career in New York. A close observer of Richard Nixon since 1965, he was familiar with the labyrinths of the President’s mind and his Byzantine methods of running the White House. Richard Nixon himself was Garment’s cause and fascination. Buzhardt was devoted to conservative politics; Garment promoted himself as the “house liberal.” Haldeman at one point had asked Garment to represent the White House at the Senate Select Committee hearings, but with Dean falling out of favor, Ehrlichman approached Garment in April to act as Counsel. Garment, however, insisted that the President personally ask him. He discussed the question of accessibility with Nixon, but the talk was an exercise in futility. Serving the President, Garment understood, “ultimately is something special.” Nixon himself considered his lawyers not in a traditional lawyer-client relationship, but as staff workers. A lawyer did not deal with the President directly as he would with an ordinary client. After May, Garment and the other lawyers worked through Haig, and thus Nixon preserved his method of staff dealings, despite the fact that he was coping with a legal, and not a political or policy, situation. Nixon’s promise of accessibility “was more honored in the breach,” Garment recalled. But he knew Nixon. He “took it as a given who he [Nixon] was, what he was, and what he wasn’t.”

  The work was frustrating for the lawyers: “We are a little bit in the position of having to tie fishing lines with boxing gloves on,” Garment told his secretary in June. By midsummer, he felt “overwhelmed” and “frustrated,” chiefly because he had no access to the tapes, despite repeated pleas to the President and Haig. Garment also understood his limitations as a criminal lawyer. He feared Nixon’s lawyers would be the “patsy” for the President. By November, he had come to realize that he should have removed himself from the case earlier, but he could not stay away from it—he operated with a kind of obsessiveness; protecting the President in the Watergate affair was “like feeling a sore tooth.” Yet he worried that he might find himself in trouble, for he was learning too much and might have to disclose what he knew. In December, Garment received an anonymous letter from a fellow staff member expressing concern over Garment’s involvement. Garment’s loyalty to the President was commendable, but the writer feared that Garment had been drawn into a web of lies and cosmetic face-saving. He told Garment that it was time for “self-respect and dignity” to supersede loyalty.

  Throughout his time in the White House, Garment spent long hours talking to journalists. Early on, he perceived the game of prosecutorial politics and believed that it had to be countered with public-relations volleys from the White House—to put, as it were, the Administration’s “spin,” or interpretation, on events. His calendar listed regular visits with prominent reporters, including Bob Woodward, J. Anthony Lukas, Theodore White, John Osborne, and Elizabeth Drew. He would discuss imminent revelations with frankness, hoping to defuse their impact. By mid-November Garment saw the President growing more desperate, now realizing that he should have appealed the tapes order to the Supreme Court. Wearily, he told his secretary that Nixon would not or could not “trust” his own lawyers and that it was increasingly difficult to help him.14

  As the President’s case increasingly centered on the control of the tapes, his need for constitutional expertise became all the more apparent. After failing to persuade Bork to handle the case, Haig enticed Charles Alan Wright to join the President’s defense team. Wright taught constitutional law and was an active litigator with substantial Supreme Court experience.

  Nixon’s hiring of Wright dripped with irony. In 1951, as a young professor at the University of Minnesota Law School, Wright had published a book review favorable to Alger Hiss. Senator Richard Nixon fumed and wrote to a Minneapolis friend, urging him to bring the matter of Wright’s beliefs to the attention of the University’s board of regents. Nixon thought Wright had an “obvious left wing bent,” that he was educationally deficient, and that he should not remain on the faculty.

  A year later, the Saturday Review of Literature published two reviews of Whittaker Chambers’s book on the Hiss case, one by Nixon and the other by Wright. Wright’s review was entitled “A Long Work of Fiction.” In 1953 Wright scathingly attacked Federal Judge Harold Medina for his behavior toward the lawyers defending leading Communist Party officials, and he attacked the Supreme Court for upholding the lawyers’ contempt citations. He recognized that Medina’s attacks on the lawyers undermined the ideal of the rule of law that the government purported to defend.15 But time brings strange alliances. Nixon’s Minneapolis friend, who apparently failed to have Wright fired, turned out to be George MacKinnon, whom Nixon appointed to the federal bench and who was one of two judges who supported Wright’s argument in the appeal of the tapes order. MacKinnon considered the balance between the public good in disclosure and the public good in presidential confidentiality and found the greater weight always to be on the side of confidentiality.

  Wright encountered the same frustrations as Garment in defending Nixon. The President ordered him not to meet with Cox or to listen to any of the tapes; the tapes remained Buzhardt’s domain. Like Garment, Wright recognized that a case “was different when your client was the President of the United States.” Still, his inability to deal with the most material evidence left him dissatisfied and even embarrassed. Following Alexander Butterfield’s revelation of the taping system, Wright and Garment were asked how they could adequately represent the President without listening to the tapes. Wright finessed the question: “We certainly feel that we wouldn’t be here if we didn’t hope that we were adequately representing the President, [and] if we didn’t think we have had access to everything we need to adequately represent the President.” Reporters failed to press the point. Four days later, on July 30, Wright was “appalled” to discover that Haldeman had been listening to the tapes, realizing that this undermined Nixon’s own case for confidentiality. Meanwhile, Buzhardt wrote to Haldeman and his lawyers, asking them not to discuss the matter. The Senate Select Committee nevertheless elicited the information.16

  After the October controversies, Wright lost some of his passion. His secretary regarded him as in a “state of shock,” and unenthusiastic about continuing as Nixon’s defense counsel. Like Garment, Wright had some ambivalence about being involved in the case. Later, he remembered the work as “demanding,” with “more than its share of frustrations.” He recalled the physical and emotional strains of his White House role, but in the end he had no regrets. Oliver Wendell Holmes’s dictum that a man should share the passion and action of his time “at a peril of being judged not to have lived,” summed up Wright’s feelings.17 Considering the constraints of his position, Wright served his client with distinction and fervor, if not success.

  Some lawyers refused to accept the conditions the President placed on their service to him. Justice John Sullivan of the Illinois Court of Appeals, whose friendship with Nixon went back to Navy days in the South Pacific, came to the White House in November to join the defense team, mainly because Garment and Wright had begun to withdraw. Sullivan was a highly regarded trial lawyer, but within a few weeks he returned to Illinois, claiming that he had no direct communications with the President and had to see Haig at every turn. Sullivan may also have left because Illinois offici
als questioned the propriety of a sitting judge’s serving as the President’s lawyer.

  Whatever the reason, Sullivan realized unhappily that the White House saw the case not in lawyer’s terms but as a public-relations operation. In a letter to Haig, Sullivan stressed his lack of communication with the Chief of Staff, his dissatisfaction with the quality of Buzhardt’s work, and the fact that Buzhardt in fact was not his subordinate, as had been promised. Sullivan apparently never was told directly whether he did or did not have a job; instead, he seemed to drift away, frustrated by his inability to receive direct answers. The White House offered the post of defense counsel to Erwin Griswold in December, but the former Solicitor General declined, mainly because he had lost faith in the President. There was a genuine concern at this time that Nixon could fall simply for lack of a proper, effective legal defense.18

  * * *

  The draconian dismissal of Archibald Cox assured the appointment of a new Special Prosecutor, one with even more ironclad guarantees of independence than Cox had had. With those considerations, and with far more sense of direction than had characterized the charging of the first Special Prosecutor in the spring, the selection process became much simpler. Apparently, the first choice of Bork and the White House was Leon Jaworski, a Houston lawyer and a confidant of Lyndon Johnson. Elliot Richardson had approached Jaworski about the position in the spring, but he had declined because of inadequate assurances of independence. On November 1 the President announced that Senator William Saxbe (R-OH) would be the new Attorney General, a move denounced by conservatives as “appeasement.” Bork followed Nixon’s announcement to report the Jaworski selection—apparently a matter on which Nixon could not bring himself to speak. Bork said that Jaworski would have no restraints on his freedom to pursue presidential documents, marking a clear retreat from the position Nixon had laid down in his October 26 statement. Jaworski held a press conference in Houston later that day. He said that the nation was “entitled to have some answers without waiting forever, and I intend to get those answers.” He had virtually no knowledge of the staff or office he had inherited. He knew only Cox’s deputy, Henry Ruth, but he quickly determined that the staff was of “crackerjack” quality.

  Leonidas Jaworski was born in 1905 to parents who had recently emigrated from Poland and Austria. He graduated from Baylor University Law School in 1925, established a substantial reputation as a trial lawyer, and eventually became a partner in a leading law firm in Houston. As a young lawyer, Jaworski had lost a black man’s murder case because of a coerced confession, but he later disapproved of the Supreme Court’s Miranda ruling, believing that it had a “very, very … disenchanting … impact upon law-enforcement officials.” After World War II he served at the Nuremberg War Crimes trials, with special responsibility for supervising the investigation of the Dachau concentration camp. He prosecuted numerous SS officials for their Dachau crimes, and later carefully distinguished his work (favorably, of course) from the more political trials of the leading Nazis.

  Jaworski returned to Texas and cultivated important political contacts, including Lyndon Johnson, for whom he handled a number of legal matters. Later, he worked for both Johnson and John F. Kennedy in the contests over irregularities in the 1960 presidential balloting in Texas. Attorney General Robert Kennedy commissioned Jaworski to represent the government when Mississippi Governor Ross Barnett defied federal court desegregation rulings in 1962. Jaworski served on several presidential commissions for Johnson, and he enjoyed the reputation of being one of the President’s intimate advisers. Jaworski was president of the American Bar Association in 1971–72, and in 1972 he actively supported Richard Nixon’s re-election.19

  Archibald Cox always remained the hero to most members of the Watergate Special Prosecution Force and to much of the media. But Jaworski’s appointment truly was a disaster for Richard Nixon. Jaworski’s political and professional reputation denied the President the chance to portray him as a partisan or ideological enemy. The Texas lawyer had enormous prestige, with currency in a world apart, even alien, from that of Cox. That could only result in aligning yet another constituency against the President.

  When Jaworski left for Washington, he did not believe that the President had any criminal involvement in Watergate. He recalled that Haig told him at the time of the appointment that “matters are just revolutionary—almost revolutionary. Something has to be done and has to be done quickly about it.” At first, Jaworski told Haig that he saw no sense in talking about the Special Prosecutor’s position, given the Administration’s recent behavior. Haig replied that this was not “an ordinary tender,” and assured Jaworski that “we can arrange a situation that would be acceptable to you.” At the time of his appointment, Jaworski found Haig “tremendously articulate” and “absolutely sincere.” The new prosecutor had confidence in the men in the Administration who negotiated with him over his status—Bork, Laird, Garment, and Bryce Harlow. But there were other signals. The day after Jaworski accepted the Special Prosecutor’s job, Haig told him that Cox’s staff had acted irresponsibly and advised him to “take a good, close look” at the prosecutors. Incidentally, Jaworski declined an opportunity to visit the President.20

  Bork formally reinstituted the Special Prosecutor’s office on November 2, noting that the specific listing of its functions was “not intended to limit in any manner authority to carry out his functions and responsibilities.” A lengthy appendix to the Special Prosecutor’s charter spelled out the office’s power. Another document, dated November 19, amended the charter to ensure that the Special Prosecutor would not be removed “except for extraordinary improprieties” and then only after the President consulted the Majority and Minority leaders of Congress as well as the ranking members of the two Judiciary Committees to determine “that their consensus is in accord with his proposed actions.” The charter went on to stipulate that the Special Prosecutor’s authority could not be limited without similar consultation. The revamped charter was intended, Bork told Jaworski, as a “safeguard” to “all aspects” of his independence.21 The President had completely succumbed to the demands for a truly independent prosecutor.

  In the days just preceding Jaworski’s appointment, the Senate Judiciary Committee conducted several days of public hearings on the Cox dismissal and heard proposals for insulating the Special Prosecutor from presidential interference. In his appearances before the committee, Cox received enthusiastic support from the Democrats (his removal was “an insult to this committee,” Senator Birch Bayh (D-IN) said). Even Republican leader Hugh Scott praised Cox. But the partisan fires burned brightly. Senator Strom Thurmond charged that Cox had supported anti-Nixon demonstrations at Harvard and had been the “dean” of John F. Kennedy’s “brain trust,” while Senator Edward Kennedy thanked Cox for mentioning “those marvelous things you did for my brother.”

  Cox’s service, however, was history; most of the Judiciary Committee’s attention focused on a bill that would require senatorial agreement for the President to remove the new Special Prosecutor. Senatorial consent to presidential appointments often is required by the Constitution; since 1789, Congress had debated whether the Senate similarly might have to concur in the dismissal of such officers. Generally, Congress had followed James Madison’s advice and agreed that it had no such role. Periodically, however, congressmen have renewed the debate, and in 1867 they passed the Tenure of Office Act, stipulating Senate consent to dismissal in certain cases—a law that Andrew Johnson deliberately violated, resulting in impeachment charges against him in 1868. Cox thought that in certain cases the President’s power of removal “could be circumscribed.” Sam Ervin promptly and sharply disagreed. By November 1—the day Nixon appointed Jaworski—the committee apparently had struck its bargain with the President whereby he would consult with congressional leaders before dismissing the new Special Prosecutor. Senator Roman Hruska thought the assurances sufficient to make it unnecessary to legislate on a matter of dubious constitutionality. S
enator Adlai Stevenson III (D-IL), however, believed it foolish to accept any assurances from Richard Nixon and thought Jaworski naive for doing so.

  Two considerations finally produced a consensus in the Senate Judiciary Committee that the President would deal with Jaworski in good faith and not dismiss him without congressional consultation. First, the committee understood the differences between Cox and Jaworski. Bork spelled it out for them: “Mr. Jaworski is a man far on in a very distinguished career. Mr. Jaworski is not going to pull any punches or do anything that would in any way tarnish what is a magnificent career.” Some senators refused to believe that Nixon was devoted to “discovering the truth,” but they realized that the President could not challenge someone as formidable as Jaworski. Jaworski himself, on November 20, told the committee he was satisfied with the safeguards for his independence. But equally important, Judge Sirica informed Committee Chairman James O. Eastland that the judges wanted no part of appointing a Special Prosecutor such as the committee’s liberal Democrats had proposed. The consensus, however informal, was public enough to cloak Jaworski with sufficient independence to make unlikely another Saturday Night Massacre. Months later, during confirmation hearings for Lawrence Silberman, Nixon’s nominee for Deputy Attorney General, Senator Kennedy questioned Silberman closely on Jaworski’s latitude. While Silberman would not explicitly define “extreme improprieties” as a cause for dismissal, he specifically stated that he would not fire Jaworski for going to court to force the President to turn over tapes or other documents. For Richard Nixon, the Saturday Night Massacre had been in vain, and Jaworski was in a position that Archibald Cox could only envy.22