The Wars of Watergate (68 page)

Throughout March and April Weicker became a familiar television figure, particularly for his spirited defense of Pat Gray and then for his equally spirited assault on the White House for its manipulation of Gray. But for many, much of that anger appeared contrived to boost the political stock of a first-term Senator who had captured only 38 percent of the vote in a three-way race. Whatever Weicker’s motives, however, his behavior to some extent forced the Ervin Committee to operate more openly than the Administration and Baker would have liked. The President’s supporters, with some justification, condemned the steady stream of leaks and the committee’s skillful use of television as an ordeal, not as an investigative tool necessarily characterized by fair play. Weicker, however, insisted on openness. At the outset he challenged his colleagues: “The most refreshing thing we can do is open the doors and let the press come in so that even our meetings would be public.” Secrecy and concealment, he contended, had been the hallmarks of the Watergate affair; he saw no reason for the investigators to operate in the same manner.
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If Weicker’s actions were complex, Baker’s were nothing less than Byzantine.
He developed back-channel lines to the White House, constantly sending word that Nixon was not to be misled by his public statements. Yet those statements were devastating, particularly Baker’s relentless—but largely misunderstood—line: “What did the President know, and when did he know it?” Baker rarely sought to pursue the circumstantial evidence that he elicited from witnesses, and as a former prosecutor noted, he interfered when others tried to do so.
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He projected extremely well on television, combining a boyish smile with the appearance of a diffident, nonpartisan pursuit of the truth. In the end, Baker served himself well: a Republican, he nonetheless emerged from a Democratic-dominated show with his reputation substantially enhanced. He subsequently parlayed that performance into the position of Senate Republican leader and gained national visibility as a presidential contender.

The Watergate hearings developed into a blend of education and extravaganza, and Sam Ervin was the undisputed impresario of both. When his White House critics called him the “Great Constitutionalist,” they both mocked and honored his reputation. Ervin’s constitutional views on some of the great issues of the day—on race, most notably—made him an unlikely paladin for any anti-Nixon venture. But the Administration’s views on wiretapping, executive privilege, and separation of powers deeply offended Ervin’s traditional, at times literal, understanding of the American Constitution. Whatever the depth of his constitutional knowledge or the extent of his commitments (and both were far greater than Ehrlichman and Buchanan would concede), Ervin unquestionably gave the lie to the Administration’s litany that the Senate proceedings merely masked a vicious, determined effort of Democrats and liberals to destroy their archenemy, Richard Nixon. Ervin hardly qualified as a member of any New York–Washington axis. Any notion that he fronted for Edward Kennedy or liberals, or that he sought to destroy Richard Nixon’s presidency, bordered on the absurd.

Nixon’s aides only reflected his own attitudes toward Ervin. Shortly after his re-election, the President had Ervin on his mind, suggesting to Ehrlichman that some move be made to embarrass Ervin for the benefit of Jesse Helms, the Republican junior Senator from North Carolina. When Ervin asked Ehrlichman to waive a retirement-age requirement for an FCC commissioner, Ehrlichman coolly ignored him. After the creation of the Senate Select Committee, Nixon called Ervin one of four jackasses. In May 1973, North Carolina Republican officials confirmed that Haldeman had requested them to “dig up something to discredit Ervin and blast him with it.” Ervin responded to a reporter that the statute of limitations had expired on his past indiscretions, and he no longer had the capacity to commit others.
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Sam Ervin had been a prime force in establishing the committee, and he easily dominated it. His Democratic colleagues gave him free rein. He hired Dash, a man with a considerable background in criminal law as a prosecutor
and professor, who in turn assembled a formidable staff of lawyers and investigators. Dash, at forty-eight, was eighteen years older than Fred Thompson, his Republican counterpart. His experience in the Philadelphia District Attorney’s office and as a trial attorney in the Criminal Division of the Department of Justice, and his prominence in academic circles, dwarfed Thompson’s brief tenure as an Assistant U.S. Attorney in Tennessee with a few years in private practice. Ervin, Dash, and the majority staff simply overwhelmed the lesser—and divided—Republican forces. Ervin himself was splendid media copy; he used some of his own staff for the committee’s work, and they skillfully leaked tantalizing and explosive information. From the start, the Senate Select Committee had the best of the White House when it came to public relations.

Congressional hearings in television’s early days had attracted considerable attention. They did so both because their subject matter was dramatic—witness the Kefauver Crime Hearings and the Army-McCarthy Hearings—and because of skimpy competition from daytime network commercial programming. By 1973, however, daytime television was big business. Was Watergate of such compelling public interest as to justify coverage by the networks, entailing huge revenue losses? After the dramatic April 30 White House resignations, the television networks indicated a growing interest in the forthcoming proceedings. Broadcast executives pressed Dash for his schedule of witnesses. He disappointed them when he outlined his plan for building his case from lower-level officials before turning to the big names.
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A week before the hearings began on May 17, public television committed itself to live coverage, but the three commercial networks remained undecided. At the last moment, they chose to cover the first day’s proceedings but to remain flexible thereafter. Network executives offered their own self-fulfilling prophecies. A CBS official feared that after a few days, the network would hear from “200,000 nice little old ladies whose favorite soap opera had been pre-empted by something called Watergate.” By the second day of the hearings, the networks’ lament was predictable. They complained that the hearings had attracted only 9.5 million viewers, down more than 4 million from their normal audiences. By the end of the first week, ABC and CBS revealed that their callers were speaking ten to one against live coverage. Most were angry: “We’re sick of nothing but Watergate, Watergate.” “Watergate is being shoved down our throats.” “You’re hurting the President.” By the beginning of the second week, the networks reached an unprecedented agreement among themselves to rotate live coverage, ostensibly to satisfy “viewer discontent.” The real discontent was in the boardrooms, since each hour of pre-empted programming lost the networks an estimated $120,000 in advertising revenues.
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The networks did gain the sensational interest necessary to lure audiences when James McCord testified on the second day of the hearings that the cover-up could be linked to “the very highest levels of the White House.” On May 21, the Senate Foreign Relations Committee released memoranda written by Vernon Walters of the CIA, including one quoting Haldeman as saying several days after the break-in that it was “the President’s wish” for Walters to talk to Gray regarding the investigation. Haldeman heatedly denied the allegation: “I can flatly say the President was not involved in any cover-up of anything at any time.”

Nixon spoke for himself the next day. In a lengthy statement, he maintained that he had no prior knowledge of the break-in; that he had “no part in, nor was I aware of, subsequent efforts that may have been made to cover up Watergate”; that he knew of no offers of executive clemency; that his directive to Walters was meant only to protect covert CIA operations and that he never intended or attempted to involve the CIA in Watergate; that not until his own investigation had he learned of the break-in of Ellsberg’s psychiatrist’s office; and that he “specifically authorized” furnishing that information to Judge Byrne in California. While Nixon said he knew of the Plumbers, he denied approving or having knowledge of their illegal activities. “It now appears,” he added, that some persons had “gone beyond” his directives and used national security as an excuse “to cover up any involvement they or certain others might have had in Watergate.” Excessive zeal in behalf of the President and national security had become Nixon’s basic defense line. But now the President’s men were on their own. To underscore that point, the President reversed himself on executive privilege. He would not sanction such claims whenever testimony involved possible criminal conduct. A month earlier, on April 17, when the President publicly acknowledged his recognition of “serious charges” about the Watergate case, he had insisted emphatically that he “reserved” executive privilege and that it might be asserted regarding any questions raised during the hearings.
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The President’s reversal on May 22 dramatically underscored his eroding position; nothing declined more sharply than his ability to challenge Congress. The irony of his situation must have tormented him. He repeatedly pressed his aides on President Truman’s behavior, insisting that Truman had improperly asserted executive privilege both in the Hiss case and following allegations of corruption among his aides. While claiming that Truman had behaved wrongly, President Nixon had seemed intent on following that course. Did he remember Congressman Richard Nixon of California, who had challenged a presidential order on executive privilege in 1948, contending that it was wrong “from a constitutional standpoint or on the basis of the merits”? To allow such power, Nixon then argued—as Senator Ervin had contended for years—would prevent Congress from excercising its proper investigative authority.

The control of information and access to it were at the heart of the Administration’s strategy. Typically, it coated its political problem with legal and constitutional protection—this time, until May 22, in the guise of executive privilege. In February and March, the President directed Ehrlichman and Dean to check the precedents for invoking executive privilege. He ordered that Republican leaders and “friendly columnists” be informed that executive privilege was not designed to cover up anything criminal and that he intended to cooperate fully with the Ervin Committee.

As late as April 10, Attorney General Kleindienst offered a spirited, feisty defense of the most luxuriant claims of executive privilege. He told a group of senators that presidential aides could not be compelled to testify before Congress for reasons “fundamental to our system of government.” His authority rested in part on separation-of-powers doctrine, but more on the basis of customary precedents. Kleindienst, however, had a way of turning separation of powers into a doctrine of totally separate spheres utterly ignoring that necessary degree of cooperation and civility that makes the American system work. He told Senator Edmund Muskie that if the President commanded him not to appear before a congressional committee, that would be the end of the matter. “So our power to command is in the President’s hands?” Muskie queried. Congressional power to get information was limited to commanding citizens, not the President, Kleindienst answered. Brusquely, he added: “You do not have the power to compel me to come up here if the President directs me not to[,] and even if you would attempt to compel me, I would not come here.”

After the testy exchanges with Muskie, Ervin pressed the Attorney General and narrowed the question:

Kleindienst sharpened the confrontation:

The sardonic smile that played across Kleindienst’s face barely masked the chip on his shoulder. “Impeach the President”—it was as if to say, Drop the atomic bomb. That exchange had occurred in April. Now, in May, such confidence, such arrogance was on the wane. Nixon’s reversal on executive privilege signaled the retreat. The steady stream of his men before the Senate Select Committee left the doctrine in shambles, at least as far as Congress was concerned. The courts, indeed, provided one final forum for invoking the privilege, but that was for another day.

Meanwhile, references to impeachment no longer were viewed as black humor; indeed, the time for thinking the unthinkable rapidly was drawing close. Besides the Senate Select Committee, five other congressional committees were scrutinizing Administration behavior in areas as diverse as the sale of wheat to the Soviet Union, the settlement of an antitrust suit against ITT, and the domestic activities of the CIA. A New York grand jury handed down indictments on May 10 against John Mitchell and Maurice Stans for alleged campaign-law violations. Most important, Nixon now faced a two-front war—against the Senate Select Committee and the new enemy within, the Special Prosecutor. Events outpaced reactions. His ten-month-old containment policy had collapsed, and Richard Nixon stood at the brink of losing control of his own fate.

Sam Ervin gaveled the Senate Select Committee to order on May 17. On the same day, Elliot Richardson announced his guidelines for the Special Prosecutor post, but the limelight had shifted. A congressional inquiry takes on a particular coloration, all the more so when the events and personalities are as dramatic as those of Watergate. In such hearings, the lonely, isolated witness confronts a panel of interlocutors. The committee and its staff move steadily toward a well-defined goal, while all but the most cooperative and friendly witnesses resist that advance and provide information designed to limit their own culpability.