After the Tall Timber (53 page)

The whole constitutional system had been, for some time, under attack by all three branches of government. There has been the behavior of the executive, as embodied not just by the President in his understanding of his office, but, paradoxically, by the Independent Counsel in his prosecutions. There has been the behavior of the legislature, in its lascivious travesty of the impeachment process. There has been the conduct of the Supreme Court, intruding on the province of the executive, the legislative, the states, and finally on the rights of every citizen. By making its decision in
Gore v. Bush
, explicitly, unique—to be regarded as having no precedent and setting none—it undermined the whole basis of Anglo-Saxon law, which is grounded in the notion that the decisions derive their validity from being built upon, and in turn relied upon, as precedents.

The Supreme Court, in its power of judicial review, is regarded as nearly sacred within the system and beyond appeal—with one exception: the press. Judicial review is trumped by press review. The Justices are highly aware of this. Judges who claimed to be conservatives, even as they struck most radically at the Constitution, the balance of powers, federalism, the fundamental understandings of the society, played to journalists. Virtually the only decisions of this Court upholding freedoms, under the First Amendment, for example, have been decisions in favor of the press. The press seems less aware of this—still describing the most radical judges, obligingly, as “conservatives.” Somehow, comfortable and serene as the system still seems to be, and as though political life were still in some sense normal, the whole question of legitimacy seemed to rest on so few public officials—until recently Senator Moynihan, for example, and now Justices Stevens, Ginsburg, Souter, Breyer. There is always the possibility that there will be heroes, or that the system is self-correcting. But it will not do for the press, with very few exceptions, simply to join all other bureaucracies, to correct spellings or give us their impressions about race (there are still “tensions”) while, in the ultimate abdication, they miss the factual. Independent journalists have obligations of their own.

2001

ON THE weekend of Memorial Day 1976, at John Doar’s farm near Millerton, New York, there was a reunion of what had been, in 1974, the House Judiciary Committee’s impeachment inquiry staff. John Doar, who was Special Counsel for the inquiry, had since become a partner in a New York law firm, where he was in charge of a major antitrust case. Other members of the staff had returned for the occasion from their various jobs. Some had brought tents and sleeping bags. Others had rooms in the nearby motels and inns. A few were sleeping in the house. More than a hundred people in all showed up, also several dogs, including a small terrier called Credence and a huge English sheepdog, who had attended the original staff picnic, on August 15, 1974, in Washington. Thirty-nine former staff members had chartered a plane from Washington to Pittsburgh, where they were picked up by other former members of the staff. Supper, the first evening, was catered by the local Grange. People took motorcycle rides into the hills. Small bonfires were lit around the farm itself. Some of the youngest bounced on a trampoline or played basketball. From soon after supper until well after midnight, there was square dancing. A band and a caller had been brought in from Hartford. Nearly everyone took part in the square sets and in a virtually endless Virginia reel. In the wildest fantasies of San Clemente, no one could dream that such an event was taking place. And even in Millerton, one had the fleeting impression of dancing on a grave.

It was not a grave, of course. President Nixon had only resigned. After nearly two years, it was no longer clear what that resignation had meant, or even what the inquiry had had to do with it. Meanwhile, with every document published by the Senate Select Committee on Government Operations with Respect to Intelligence Activities (the Church Committee), it was becoming more clear that the case for the impeachment of Richard Nixon, in 1974, had fallen apart.

It all seemed, anyway, long ago, and difficult to remember in detail. In late July 1974, the House Judiciary Committee, under Chairman Peter W. Rodino, had voted to recommend three Articles of Impeachment to the House. Article I was essentially an obstruction of justice charge. Article II charged misuse of the agencies of government. Article III, in effect, charged contempt of Congress, in doctoring and in refusing to produce subpoenaed evidence. In view of the Church Committee’s account of the conduct of previous administrations, including violations of law and abuses of power since at least 1936, the first two Articles seemed to dissolve. As for Article III, there had been disagreement about it from the start. Doar himself ultimately did not support it—on the grounds that requiring the President to produce this evidence, and thereby implicate himself in what would obviously become a highly serious criminal case, was reminiscent of the Star Chamber. Others argued that such a view implicitly endorsed claims of executive privilege, the national security, whatever, as camouflaged euphemisms for the Fifth Amendment; that if the President needed, in effect, to take the Fifth, he ought to be obliged, like any other citizen, to come right out and take it; and that a failure to pass Article III would add to all the other powers of the President a new power, to withhold evidence from the only process the Framers had established specifically to override such claims of secrecy: the impeachment process, the “Grand Inquest of the Nation,” by which the President could be held, constitutionally, to account.

In any case, it didn’t matter. Article III would never have passed, or even existed, without Articles I and II. The problem with all three Articles, and with their accompanying Summary of Information and Final Report, and with the thirty-odd volumes of Statements of Information, which were also published by the House Judiciary Committee, is that, in spite of a valid perception the whole country shared of the integrity of the process at the time, all those volumes never quite made their case, or any case. And one result, which nobody on the staff could possibly have foreseen, was that, in light of the Church Committee report and other documents, what remains of the records of the impeachment inquiry would support not only a claim that Richard Nixon was hounded from office after all, but also, more strangely, the reverse: that the impeachment inquiry itself was just another phase in the continuation of the cover-up.

Neither of these claims, obviously, is right; yet they are not easy to dismiss. As there continue to be revelations of abuses of and by the CIA, the FBI, the IRS, the military, and officials at every level of government and corporate enterprise, in the remote as well as the immediate past, it becomes less and less clear why the Nixon presidency in particular had to end. This summer, the Senate voted overwhelmingly to establish a permanent Office of Special Prosecutor, as though what had seemed, in 1973, an extraordinary crisis, requiring extraordinary measures, was now perceived as a more or less permanent state of affairs in government—and as though such a permanently critical situation could be remedied by the addition of yet another watchman to the constitutionally established existing watchmen in the night. Another indication of the degree to which the specific Nixon case remains still unresolved is implicit in those theories that Nixon was driven from office by a conspiracy within government itself—more specifically, within the CIA. It is as though history already required, in explanation of Nixon’s having left the presidency at all, an elaborate plot, in the form of a reconstruction from scraps of inconsistent evidence of an Agency cabal.

It seems certain, though, that the Nixon presidency, far from being continuous with those before, was in fact unprecedented; that, without the supposition of cabals of any sort, Nixon himself did something not only more than any of his predecessors but altogether else. And the reason why no investigation, by Congress, or the press, or in the courts, has so far managed to establish precisely what he did has to do, I think, both with the way the investigations were conducted and with what I now believe to be the very nature of the case. Putting together some of the circumstances of the impeachment inquiry with a few facts in those Church Committee documents—and trying to reconcile these with several, at the time apparently unaccountable, discrepancies and lapses in the conduct of President Nixon, his lawyers, and his aides—I think one does arrive at a bottom line, a plausible, even obvious explanation of why it was that the Nixon presidency had to end. It may have been for a time unthinkable; or we may have known it all along.

I. WHAT KIND OF CASE?

The inquiry. On the morning of March 27, 1974, Barbara Fletcher, who was in charge of most calls to the impeachment inquiry staff from congressmen and members of the press, received a long-distance call from a young man who claimed that in 1973, as he was walking down Wisconsin Avenue, President Nixon shot at him. For various reasons, few of the logs and records kept by the staff (and now sealed, for the foreseeable future, in the archives of the House Judiciary Committee) are altogether dependable or complete. The files of congressional committees are, in any case, notoriously inaccurate. But because of her diligence and the delicacy of her assignment in dealing with these calls, Miss Fletcher kept scrupulous and exhaustive logs. The young man said he had been wearing a shield. He asked to be given a lie detector test. He left two Milwaukee phone numbers, his mother’s and his own. Miss Fletcher noted all this and said she would pass the information on. It was evident from the whole tone of the entry that the young man, like a lot of other callers—like the lady who brought in her garbage as evidence that she was being poisoned; like the many hundreds of people who sent in rocks, with the message that only he who is without sin should cast them—was not well.

But among the innumerable what-ifs of the inquiry, and of Watergate itself, the problem might not have been a minor one. What if the young man had been completely sane and right? The staff would have been unable to investigate his claim. There were no investigators on the staff. And it is far from clear that shooting at a man in the street is contemplated in the phrase “Treason, Bribery, or other high Crimes and Misdemeanors”—the only grounds on which a President can be impeached. Shooting at a political opponent, certainly, would fall within the constitutional standard, as a “political” crime, that is, a crime against the system and the Constitution itself. But an ordinary violation of the criminal statutes, no matter how serious, is probably not contemplated in the phrase. The astonishingly foolish, poorly reasoned, and poorly documented brief submitted by the White House argued that it is: that “other high Crimes and Misdemeanors” simply meant a literal, ordinary (though in deference to that “high,” a serious) crime, committed in the President’s “public, or official capacity.” It was hard to think of any unlawful acts, apart perhaps from adultery or purse-snatching, which a President might commit in his private, or unofficial capacity. The White House brief was intended, of course, to limit to the narrowest criminal terms any definition of the grounds on which a President might be impeached. It went on to say that “high Crimes and Misdemeanors,” as a term of art, had a unitary meaning, like “bread and butter issues”—a comparison which, in its peculiar vulgarity, exemplified something both slipshod and condescending in the work of the White House lawyers, under James St. Clair, by whom the President was at the time so oddly, badly served. It was true of the whole brief what one of the youngest members of the inquiry said of subsequent documents submitted for the White House: that sooner or later, at their characteristic level of effectiveness, in general and in detail, these lawyers seemed bound to produce a brief on behalf of their client, President Philip N. Nixon.

One effect of the White House brief on grounds for impeachment, however, was to draw attention from the quality of the brief produced by the impeachment inquiry staff. That brief, our brief, which was published on February 20, 1974, was the first indication of what kind of work would be done by a staff of nearly forty lawyers who came from both political parties and from all parts of the country and who had, or claimed to have, by 1974, when they were hired, no view one way or another about whether President Nixon ought to be impeached. “I will say that every staff member was questioned whether or not they had taken a position on impeachment,” Special Counsel Doar told the Judiciary Committee on January 31, 1974, “and if they had, other than that there should be an inquiry, then they were not considered for the job.” For seven months, both Doar and Chairman Rodino insisted that no member of the staff take any side whatever on the question. As late as July 23, 1974, when Minority Counsel Sam Garrison suggested that Democrats on the staff might all along have been inclined to favor impeachment, while Republicans might have tended to oppose it, Rodino said that if he had known Garrison took such a view he would have fired him.

While there were strong reasons for maintaining a bipartisan staff with this apparent viewlessness, in the first serious attempt to impeach a President in more than a century, the criterion is not one for putting together a firm of lawyers. It is more suited to selecting jurors—who are meant unprofessionally to weigh, but never to investigate or to assemble a case. Lawyers are advocates. The lawyers Doar hired were bright, loyal, discreet, and highly recommended. They represented as broad a cross section of the country as the congressmen on the committee. They worked under two ironclad admonitions: to maintain absolute confidentiality and to be “fair.” At the same time, Doar had to proceed on the assumption that almost no one could be trusted. On January 2, 1974, I asked him how, in that case, he was going to keep perfect confidentiality in so large a staff of lawyers. “You work them very hard,” he said, “and you don’t tell them anything.” The brief produced by such a staff was, predictably, deficient.

So were most of the other inquiry documents. It turned out to be unimportant. What was important was that, through months of tension, crises of morale, and professional frustration, the staff did manage to work hard and to keep silent. What they were working on, or thought they were working on, is another matter. Few of them, at the time or even two years later, seemed to have more than an intimation that, while what they were doing was essential, the only thing essential about it was that they be seen to be doing
something
in secret, day and night, for months. “Some of it was the worst time of my life,” one of the junior lawyers said, more than a year after it was over. “What you had for the first few months, you see, was thirty lawyers, treading water.” That “treading water” was his insight. That “for the first few months” was an understatement. The fact that underlay the ordeal was that most of the work, almost all the time by almost all the staff, was a charade. A valuable charade, in that a machine was seen to churn, while no circus took place, and the courts, and a smaller group of Doar’s, and ultimately the congressmen themselves could do their work. But the machine itself, firmly required to be directionless, produced, naturally enough, no investigation and, in the end, no case. It is commonly said that “the case” is in those thirty-odd staff volumes. Only by people who have not read them; hardly anyone has read them.