The Wars of Watergate (88 page)

Two days later, Mike Mansfield delivered an extraordinary reply from the Democrats and Congress. Often criticized for his low-key, nonconfrontational, at times even passive style, Mansfield uncharacteristically challenged the President. He noted that the Democrats had increased their majority in 1972 but shrewdly avoided claiming a partisan mandate; instead, he focused on institutional conflicts and institutional prerogatives. The
congressional
majority reflected a mandate, he said, “to reinforce the nation’s system of checks and balances” and to reverse longstanding trends. Specifically, he cited evidence of “an ominous shift to one-branch government”; executive secrecy in the name of national security; executive impoundment of appropriated funds; executive assaults on the media; executive preemption of authority over the federal budget; multiplying expressions of executive contempt for Congress, and thus, by extension, for the people; executive usurpation of changes in basic organizational structure; and illegal invasions of personal privacy by executive agents.

Mansfield’s charges were reminiscent of such historic constitutional conflicts as those in 1868 against Andrew Johnson as well as of seventeenth-century British struggles involving royal prerogatives and the role of Parliament. Mansfield conceded that Nixon must decide on resignation by himself, but impeachment belonged to Congress, and he insisted that Congress would handle its responsibility “properly, fully, and deliberately.” He praised the
work of the Special Prosecutor and the courts, but the Majority Leader challenged the President’s call for a quick settlement: “there are no judicial shortcuts,” he said. Mansfield’s rejoinder sharply reminded the President of the constitutional dictates for separation of powers and functions in the American system of governance.

Meanwhile, the new Special Prosecutor had begun to listen to the President’s taped conversations and soon concluded that Nixon had been involved in the cover-up of the widening scandal. Leon Jaworski heard how Richard Nixon schooled his aides to commit perjury and how he moved people around as “chessmen,” “to cover this thing up.” Jaworski was “stunned” as he realized that he was in “an entirely different affair” from what he had anticipated.
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On January 30, the same day that President Nixon declared that “one year of Watergate is enough,” the grand jury requested an opportunity to meet with him. Empaneled on June 5, 1972, the jurors had had nearly eighteen months of living with Watergate. They had listened to the evidence that various prosecutors had compiled; they had heard the President’s men, from Haldeman to Dean, testify regarding their own culpability—and also that of the President. The jurors had heard the case prepared by the U.S. Attorney’s office against the Watergate burglars. They had developed some intimacy in that early relationship, an intimacy not quite matched by the more elaborate structure of the Special Prosecution Force. The jurors knew in January 1974 that the new prosecutors were about to make recommendations; yet, they felt some frustration, because one man—the President of the United States—might have information “highly relevant” to their inquiry. Aided by the prosecutors, the foreman wrote to the President requesting that he appear before the grand jury—in any appropriate place.

The request was no surprise to the White House. Jaworski had already suggested the possibility to James St. Clair, the newly arrived special counsel to the President, who immediately rejected it. Instead, St. Clair recommended that the grand jurors submit written questions. When the jurors rejected his advice, St. Clair replied that the President would not see the jury, citing the independence of his office and the press of his duties. He could not resist a final jab at the proceedings, expressing satisfaction that the jurors were “in the closing stages” of an investigation that had so far consumed more than eighteen months.
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The grand jury request was but a pinprick amid the legal challenges assaulting the White House and its new counsel, St. Clair. For the next eight months, he directed a small staff of fifteen lawyers, digesting massive
amounts of materials from the Special Prosecutor, from the defense attorneys in the various pending trials, from the House Judiciary Committee, and from such investigative agencies as the FBI. St. Clair and his group confronted a disparity of more than twenty-five to one in the number of lawyers arrayed against them. He saw himself as “engaged to represent the presidency, not the President.” It was, of course, a distinction that fit the legal and political strategy the President himself had dictated for nearly a year.
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St. Clair had served in 1954 as an assistant to Joseph Welch, the lawyer who represented the U.S. Army in its notorious controversy with Senator Joseph McCarthy. Years later, by then a senior partner in a distinguished Boston law firm, St. Clair represented the Reverend William Sloan Coffin when the government tried Coffin and famed pediatrician Dr. Benjamin Spock for their anti–Vietnam war activities. By some, St. Clair was seen as “all case and no cause.” It was a description intended as pejorative, but it came as flattery to those who preferred a lawyer committed to the work at hand rather than to philosophy. Later, the President described St. Clair as a man who did not understand the public-relations aspects of the case; Jaworski, however, complained that St. Clair was too much a public-relations man. The competing views left St. Clair satisfied that the truth lay in between and showed that he had done his work. He believed there was a certain futility in attempting to cultivate the media; trying to co-opt them, he thought, often provided the opposite result. “My role was as a lawyer. It was not as a media representative.” In fact, however, St. Clair did hold press conferences, in which he sought to explain the President’s legal and constitutional positions.
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St. Clair fared as poorly as his predecessors in his access to the President. According to the President’s appointments secretary and the logs, he rarely saw Nixon alone. When the two met, Haig usually was present. Haig indeed supervised St. Clair closely; according to St. Clair, he saw the Chief of Staff “perhaps on an hourly basis.” Most crucial, St. Clair had no regular access to the White House tapes, the most important evidence in the case. This remained Buzhardt’s area. Some in the Special Prosecutor’s office believed that St. Clair did not listen to tapes in order to protect his deniability. But that may be off the mark. In June, an aide to Haig wrote to him that St. Clair had called, contending that Haig had approved access for St. Clair’s staff people to listen to a tape. “[C]an I therefore deliver these tapes?” the aide queried. “Disapprove,” Haig curtly responded.
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Publicly, the White House stated that St. Clair had replaced Buzhardt, who had been promoted to Counsel to the President. In fact, however, Buzhardt continued to work closely on Watergate matters, especially auditing and safeguarding the tapes. Nixon trusted him for that work more than any other lawyer; in that sense, Buzhardt was irreplaceable. But Buzhardt had his frustration with the President, sometimes requesting an appointment a
dozen times in a day and then failing to gain one. His wife remembered that Buzhardt would work fifteen to nineteen hours, preparing transcripts which he would submit to Nixon, who would then make changes. Charles Lichenstein, a White House aide at the time, watched Buzhardt at work and thought him honest but incompetent, overworked yet incapable of delegating tasks. Nixon undoubtedly had the man he wanted. Jaworski believed that Buzhardt served “the purpose of delaying, and he was pretty good at it.” Early in 1973, Sam Ervin grudgingly praised Buzhardt for his work in another area, saying that if he had commanded Robert E. Lee’s armies, the Civil War “would still be lasting” because Buzhardt was so “very skillful in the art of obstruction.”
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In November 1973, the President had indicated to friendly congressmen that he might release some tape summaries. He assigned Pat Buchanan to review the transcripts, particularly with an eye to refuting John Dean. Buchanan’s report, the President remembered, reassured him that Dean “had lied” about Nixon’s role in the cover-up. Nixon knew that the March 21 tape concerning the cover-up “would cause an uproar,” yet he believed that the nation ultimately would remember that he had acted decisively after that meeting, and what he had said would prove unimportant. Other White House aides disagreed, notably Ziegler, Garment, Ken Clawson, Bryce Harlow, and Richard Moore. Pity, Nixon wrote, that they could not hear all the tapes, for surely then they would be convinced of his rectitude. Significantly, the President claimed that the concern of his advisers over the possible political reaction to the tapes clinched his decision. Sometime in December Nixon decided not to release any tapes. His notes for December 23 were headed by his own question: “Last Christmas here?”
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On December 19 the Senate Select Committee issued three subpoenas for additional presidential materials. The committee’s anxiety for tapes stemmed from a desire to publish as complete a report as possible, but pride also was at stake. Committee interrogators had uncovered the existence of the tapes; Chief Counsel Sam Dash bristled when the House Judiciary Committee refused to share the tapes it had obtained—although he had turned over all of his work product to John Doar and the House committee. The President promptly rejected the Senate committee’s subpoenas, arguing in his familiar fashion that he must protect the confidentiality of the executive against incursions by another branch. Federal judges subsequently rejected the Senate subpoena, provoking Ervin to complain about judicial interference with proper legislative processes.
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After several delays, including revelations of the missing tapes and the 18½-minute gap, Buzhardt delivered seven tapes to Judge Sirica on November 26, one month after the President’s lawyer had agreed to comply with
the subpoena. The Special Prosecutor’s office was pleased with this progress, and after Sirica listened to the tapes
in camera
, the prosecutors received them on December 21. Before releasing the material to the Special Prosecutor, the judge withheld some tapes, thus sustaining some of the President’s claims of executive privilege. Jaworski and his staff immediately realized that the tapes had strengthened their evidence against the President’s men; what was more, they believed they now had a case against Nixon—and it was in the tapes. Jaworski himself told Haig around Christmas that he believed Nixon guilty, a remark that left Haig “surprised” and also “visibly shaken,” according to Jaworski. Haig tried to dissuade Jaworski from his conclusion, but the Special Prosecutor told him that was impossible. After this, Jaworski recalled, Nixon “got tremendously jittery,” and much of the earlier spirit of cooperation dissipated.

Jaworski conducted his White House negotiations exclusively with Haig. Under Haldeman, the paper flow made it clear that the Chief of Staff executed the President’s wishes. Haldeman usually carried out those orders while exercising a minimum of discretion. No similar documentary record has been made available for Haig’s service. But some of the President’s onetime collaborators and longtime friends, such as John Mitchell, believed that Haig operated with far less constraint and much more discretionary room than his predecessor. Several years after the events, when Jaworski read Nixon’s memoirs, he was uncertain whether Haig had always fully conveyed his views and messages to the President.
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Jaworski and Haig met in the White House on December 21. Haig told the Special Prosecutor that the March 21 tape of Nixon’s conversation with Dean was “terrible beyond description.” Jaworski concurred, adding that he found it “unbelievable.” But Haig insisted that “the White House lawyers” believed no criminality attached to the President’s behavior. Jaworski disagreed and suggested that the White House hire a good criminal lawyer. Shortly afterward, Haig called Jaworski at his Houston home, again reporting that Buzhardt found no criminality involved because there was no overt act following the meeting of March 21. Haig and Buzhardt may have invented their own version of criminal law; nevertheless Jaworski again warned the Chief of Staff to get a criminal lawyer. Jaworski, no stranger to criminal wrongdoing, was appalled at the stupidity of maintaining the taping system when such “an evil approach and wrongful conduct by the President” had been taking place. “I would have turned off the system,” Jaworski thought.

The Special Prosecutor returned for a secret White House meeting on December 27. Haig now told him that the President had selected St. Clair as his special counsel. Haig again raised the question of the March 21 transcript, giving Jaworski a White House version as well as Nixon’s interpretation of that conversation. When Jaworski told the Chief of Staff that the tape would be played to the grand jury, Haig expressed deep concern over
its effect. Apparently Haig’s confidence had begun to evaporate. Earlier, when the President told him in a taped June 4, 1973 meeting (heard by Jaworski) that “that damn conversation of March 21st” presented a problem, Haig, faintly audible, apparently said, “I think we can handle that.”
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The President’s surrender of the seven tapes on November 26 convinced the Watergate Special Prosecution Force of his guilt. The tapes indicated the probability that other presidential conversations might substantially increase the evidence against Nixon and his colleagues. Accordingly, in January 1974, the prosecutors requested twenty-five more taped conversations from the White House. When Jaworski met St. Clair on January 22, the President’s lawyer gave no definitive answer to that request, but within a few days, Haig told Jaworski that Nixon had decided not to release any more documents or tapes. St. Clair’s formal answer on February 4 flatly stated “the President’s view” that he had furnished sufficient material. St. Clair suggested that Jaworski, rather than demand the tapes themselves, submit written interrogatories concerning their contents, a tactic designed to forestall further litigation.