One Man Against the World: The Tragedy of Richard Nixon (41 page)

Ehrlichman, who had presided over the Plumbers, was snarling and imperious. He defended the president’s national security powers, even when it came to burglary, to protect state secrets. He confronted the courtly country lawyer Herman Talmadge, a Georgia Democrat, who reminded him of the Magna Carta, the thirteenth-century foundation of Anglo-American law, and its ideal that a man’s home was his castle, and that his castle could be defended against a king.

Q: Do you remember when we were in law school, we studied a famous principle of law that came from England, and also is well-known in this country, that no matter how humble a man’s cottage is, that even the King of England cannot enter without his consent?

A: I am afraid that has been considerably eroded over the years, has it not?

Q: Down in my country we still think it is a pretty legitimate principle of law.

The Senate gallery applauded. Ehrlichman’s jutting jaw dropped. At that moment, a federal grand jury in Los Angeles was preparing a sealed indictment against him for the break-in at Ellsberg’s psychiatrist’s office, a Plumbers operation he had approved in writing.

John Mitchell was the worst witness of all. He was by then a broken man, destroyed by his devotion to Richard Nixon; the public breakdown of his mad wife, Martha; and his thirst for Scotch whisky. Mitchell lied under oath, attesting that he had undertaken no reelection campaign responsibilities while he was still attorney general. And he said that, in order to protect the president’s reputation before the 1972 ballot, he had concealed his knowledge of what he called “the White House horrors,” in particular the crimes of the Plumbers.

In a moment of truth, Talmadge again stuck in the dagger.

Q: You placed the expediency of the next election above your responsibilities as an intimate to advise the President of the peril that surrounded him?…

A: In my mind, the re-election of Richard Nixon, compared to what was available on the other side, was so important that I just put it in that context.

Mitchell, Haldeman, and Ehrlichman would face federal indictments in a matter of months, the grand jury handing up the case to the Watergate special prosecutor. But by then the lawyer who held that title was no longer Archibald Cox.

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In the fall of 1973, Richard Nixon faced a legal confrontation that had no precedent in the history of the United States.

On August 29, Judge Sirica ordered a subpoena
duces tecum
—Latin for “bring it with you”—to be served upon the president. It demanded that he deliver to the court nine White House tapes requested by Cox so that the judge could hear them in chambers; then he would decide if they should be turned over to the prosecutor. No criminal subpoena ever had been enforced upon a president; no court ever had compelled a chief executive to turn over documents against his will.

In a statement issued from San Clemente, Nixon said he would appeal. By September, the Watergate Committee had reconvened hearings in the Senate; Sam Ervin and his investigators wanted the secret recordings, too. Nixon’s counselors considered tossing the tapes into a bonfire; the threat of spending ten years in prison was a stumbling block. They asked themselves: Who would strike the match? King Timahoe?
*

By the time a federal appeals court upheld Sirica’s order, the president already had proclaimed that he would not tear down the walls of the White House to comply with Cox or the Congress. He would abide only by a “definitive” decision by the Supreme Court. The president, when asked, would not define what he meant by definitive. He had appointed four of the nine justices; would he heed a divided court? What if the Court said to turn over the tapes and the president said no?

The nation was in uncharted territory. The only recourse under the Constitution if Nixon defied the High Court was impeachment—an indictment by the House of Representatives and a conviction by a two-thirds vote in the Senate—and no president ever had suffered that fate. The battle for the tapes continued in the courts and expanded rapidly into the political arena. A constitutional confrontation seemed imminent by October.

And October was when the Nixon administration, and the president himself, began to disintegrate.

*   *   *

Nixon had an ever-shifting set of schemes to avoid turning over the subpoenaed tapes. One was to fire Archibald Cox. Another was to create highly edited summaries of transcripts that might convey the gist of the tapes to the satisfaction of the courts and Congress. Or they might not.

On October 1, Rose Mary Woods took one of the nine tapes—a conversation among Nixon, Haldeman, and Ehrlichman from June 20, 1972, three days after the Watergate break-in—and began transcribing it using a new apparatus called a Uher 5000, with a foot pedal that would let her stop, start, and rewind the tape without taking her fingers off the typewriter keys. Later that day, by the president’s account, she reported to Nixon that something had gone wrong: after answering the phone with the rewind pedal on, she’d returned to the tape to find a five-minute buzz in the recording where voices had once been.

Nixon checked with Haig and Buzhardt and they reported (wrongly) that the tape in question was
not
among the nine under subpoena. Nixon put the problem out of his mind and went on a long drive in a White House limousine to talk to Haig about what was really worrying him: Spiro T. Agnew, the vice president of the United States.

Nixon knew all about Agnew’s crooked conduct, having been informed of the facts by Elliot Richardson, the attorney general since May 29, and by William D. Ruckelshaus, the deputy attorney general, recently sworn in after serving seventy-nine days as the acting director of the FBI—a man Nixon called, with apparent sincerity, Mister Clean.

The evidence against Agnew was ironclad, a casebook in corruption. Five construction executives and engineers in Maryland had sworn under oath that, for eight years, beginning in 1964, they had been paying off Agnew (a county executive and the state’s governor before becoming vice president) in exchange for receiving state contracts. These kickbacks, regular monthly payments of up to ten thousand dollars apiece, had continued through December 1972. Agnew at least once pocketed an envelope of cash in the basement of the White House.

For months Agnew had fought a furious battle to dodge the charges. He said flatly that he would not go to prison and he would not face an indictment. He had argued with Nixon and Richardson that the case had to be quashed. If they did not meet his demands, he threatened, he would take his case to the American people—which he did. His rabble-rousing public rants were exactly the kind of embarrassment Nixon did not need at the moment.

At 6:00 p.m. on October 9, the Oval Office gatekeeper Steve Bull announced, “Mr. President, the Vice President.” Nixon and Agnew shook hands and sat down in front of the fireplace. Agnew had given in but, greedy to the last, in return for his resignation he asked the president to help him find lucrative corporate contracts abroad. As they parted, Nixon assured Agnew that he could always count on his friendship. The next day, the vice president of the United States became the former vice president. He stood in a federal courthouse in his hometown, Baltimore, Maryland, and pleaded no contest to a single charge of failing to report $29,500 in income during 1967, when he was the governor. This plea bargain, the judge said, was an unusually generous deal; he generally jailed tax evaders. The resolution was a suspended three-year sentence, a $10,000 fine, and Agnew’s resignation.

On the afternoon of October 10, Nixon said to Richardson, “Now that we have disposed of that matter, we can go ahead and get rid of Cox.” Only Richardson, not the president, had the legal power to do that. Nixon had struck that deal himself; at the time, the arrangement had seemed to him the line of least resistance.

*   *   *

Nixon had weighed four choices to replace Agnew as vice president: Ronald Reagan, the governor of California, whom he considered a lightweight; Nelson Rockefeller, the governor of New York, whom he disliked; John Connally, his former treasury secretary and trusted confidant, whom he wanted to succeed him as president; and Gerald Ford of Michigan, the Republican minority leader of the House, respected as a decent human being if not regarded as the brightest light in the legislature.

A rapid consultation with the Republican chiefs in Congress made Nixon realize that only Ford could be confirmed, as required under the Constitution, without a struggle.

A peculiarity of the American political system requires presidential appointees to undergo background checks by the FBI. A civic panic began in the quiet city of Grand Rapids, Michigan, as seventy-five FBI agents arrived and began to question anyone who had ever heard of Gerald Ford. On October 15, Bill Ruckelshaus, as the Bureau’s former acting director, booked a flight to Grand Rapids, intending to quell the citizenry. He stuck his head into the attorney general’s office to inform him.

Richardson looked up, his elegant visage a mask of misery.

“We’ve got an even worse problem than Agnew,” he said.

That’s not possible, Ruckelshaus said.

“Yes, it is,” Richardson replied. “The President wants to fire Cox.”

“He’ll never do it,” Ruckelshaus said confidently. “The American people won’t tolerate it.” He was half right. The president’s problem was political, not legal. If he fired Cox, Nixon would wound himself.

Cox wanted to enforce the appeals court’s order for Nixon to produce the nine subpoenaed tapes forthwith. Nixon’s new gambit was to produce edited summaries of the tapes, and the tapes themselves, to the seventy-two-year-old Mississippi senator John Stennis, a highly conservative Democrat and a reliable political ally to the Nixon administration. Stennis would then verify the summaries and turn them, not the tapes, over to Cox.

But this compromise, as Nixon called it, was a calamity in the making.

Senator Stennis was known to be half deaf and in poor health, recovering from gunshot wounds suffered in a mugging months before; moreover, the senator had never agreed to a plan to review summaries, only to read complete transcripts. Three of the subpoenaed tapes could not be transcribed in any fashion: the Dean conversation of April 15 did not exist; a Nixon-Mitchell telephone call immediately after the Watergate break-in could not be found; and worse yet (if there could be worse), the tape Rose Mary Woods had been working on had an inexplicable gap—not just five minutes, but eighteen and a half minutes—made by at least five erasures, an incendiary fact that hinted at foul play.

In a letter that Haig dictated to Richardson on Friday, October 19, Nixon ordered Cox to cease and desist from seeking any more tapes, notes, or memos from the White House. He had a new incentive for this improper demand: John Dean had just agreed to plead guilty to obstruction of justice. Under the plea agreement, struck with Cox, Dean would go to prison but would first serve as a sworn government witness in any trial against the president’s men or, conceivably, the president himself.

“The President all along intended either to force Cox’s resignation or induce Richardson to fire him,” Ruckelshaus said in 2009. “The reason was simple. Cox was getting too close. In the nine tapes in question, or those subsequently acquired by the Special Prosecutor, were several smoking guns. This was why my earlier assumption about the willingness of the President to fire Cox was wrong. The act of firing Cox was that of a desperate man. Adverse public reaction must have seemed preferable to handing your accuser the still-hot weapon with your fingerprints all over it. Richardson was attempting to work out a compromise that would accommodate all legitimate and honorable interests. The President’s intentions were neither.”

There matters stood on Friday evening. A showdown was certain.

On Saturday morning, October 20, Cox called a press conference. “I am certainly not out to get the President of the United States,” he said, but Nixon had overstepped his powers by obstructing the work of the special prosecutor’s office. The president was not complying with the law or the legal agreement that gave Cox the right to follow the evidence wherever it led. Cox would go back to court to pursue the case. And he reminded his listeners, a nationwide television audience, that the president could not fire him. Only the attorney general had that right.

Richardson, after receiving an angry telephone call from Al Haig ordering him to fire Cox forthwith, requested a face-to-face meeting with the president. The meeting took place at 4:30 p.m. It was short and ugly; Richardson was back in his office before 5:00. He was beginning to describe their confrontation to Ruckelshaus and the third-ranking man in the Justice Department—the solicitor general, Robert Bork, whose job was to represent the president before the Supreme Court—when the phone rang again. Al Haig calling: this time for Ruckelshaus. Their conversation was brief—and brutal, too. Fire Cox now, Haig said; this is an order from your commander in chief. The deputy attorney general declined. Haig then asked to talk to Bob Bork.

“Both Elliot and I had urged Bork to comply if his conscience would permit,” Ruckelshaus remembered. “We were frankly worried about the stability of the government. Bork indicated to us that he believed the President had the power to fire Cox and he was simply the instrument of the exercise of that power. He thus issued the order discharging Cox.”
*
At 8:00 p.m. on October 20, the White House announced that Richardson had resigned and Ruckelshaus and Cox had been fired. The special prosecutor’s office was abolished by presidential order and sealed by FBI agents.

Cox had the last word: “Whether we shall continue to be a government of laws and not men is for Congress and ultimately the American people” to decide. That statement made the deadlines for Sunday’s papers. When asked what he would do next, Cox’s spokesman James Doyle said, “I’m going home to read about the Reichstag fire.” That ended the constitutional cataclysm of the Saturday Night Massacre and began a political conflagration.

*   *   *