The Wars of Watergate (78 page)

The court imposed a suspended sentence of three years’ imprisonment and a $10,000 fine. Richardson’s plea for leniency proved “so great and so compelling,” the judge said, that he made an exception to his usual requirement that tax evaders serve prison time. Several hours earlier, the Vice President delivered a message to the Secretary of State: “I hereby resign the Office of Vice President of the United States effective immediately.” The
President’s aides drafted a letter to the resigning Agnew, stating: “I have been deeply saddened by this whole course of events.” Nixon scrawled “excellent letter” on the draft.
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Spiro Agnew’s troubles offer a run-of-the-mill chapter in the melancholy history of political corruption and greed, distinguished of course by the fact that he was Vice President of the United States and not merely Baltimore County Executive or Maryland Governor. The heightening sense of the importance of ethical propriety and political morality in part dictated Agnew’s fate; more simply, the practical bind that ensnared Nixon made the resignation inevitable. Although disgraced, Agnew had one special contribution to make to the Watergate saga: his forced resignation removed a significant obstacle to unseating the President of the United States. Agnew’s presence as Nixon’s constitutional successor acted as a brake on impeachment.
Time
magazine publisher Hedley Donovan believed in July that Nixon had committed impeachable offenses and had lost his legitimacy. “But the apparent alternative was Spiro Agnew”—evidently an unthinkable one.

Nixon recognized Agnew’s resignation as a “very serious blow,” for it opened pressure on him to resign as well. The lesson learned was that he could not accommodate his opponents and that Agnew’s resignation only whetted their appetites. The President and his advisers, however, had maneuvered that resignation largely because they chose not to follow the path of impeachment. Solicitor General Bork diligently prepared an argument distinguishing the propriety of indicting a vice president from that of indicting a president. Bork’s brief was intended precisely to avoid the possibility of impeaching Agnew. Bork recalled that Buzhardt and the President argued against the case he and Richardson advanced in favor of keeping Agnew in the courts, but finally Nixon agreed that the Justice Department had to proceed. Bork found Nixon impressive and “very sharp”; Richardson told him he had seen the President at his best. Agnew’s lawyers believed that Nixon never really wanted impeachment.
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The decision to move for a criminal indictment of Agnew might have been a lost opportunity for Nixon. Impeachment might have become dangerously popular, to be sure; but it also would have consumed enormous time and energy, perhaps enough so that following an Agnew impeachment, Congress and the nation might have had neither the inclination nor the will to move against the President. For five years, the President had treated Agnew as a pawn. But when the Vice President resigned, Richard Nixon lost his queen.

At the same time Nixon fought his Watergate war, he had his constitutional responsibilities to attend to, not the least of which involved foreign affairs.
Generally, the Watergate affair ran in a separate ring as the Administration busily carried out its disengagement from Vietnam, its rapprochement with China, and its attempts at détente with the Soviet Union. But in October 1973, with the Watergate crisis heightening, the weight of domestic scandal combined with a new war in the Middle East to bring excruciating burdens to the President and to renew skepticism regarding his integrity. Watergate had become inextricably linked to foreign affairs.

On Saturday, October 6, as the President prepared to meet the embattled Agnew, he received word that Egypt and Syria were about to launch an attack upon Israel. Nixon firmly believed that the Soviets had encouraged their Arab clients, heightening the danger of a superpower clash in the region. The Arab attacks caught the Israelis by surprise in the so-called Yom Kippur War, and in the first few days of the war, the Egyptian and Syrian armies made notable gains. By the fourth day, the Israelis had suffered significant casualties and territorial losses. Just prior to Nixon’s meeting with Agnew that day, in which the latter informed him that he would resign, the President ordered a resupply of war matériel for the Israelis. Nixon’s bold decision ensured Israeli the recovery and their ability to carry the war to their enemies. Within weeks, Israeli troops could have easily marched to Cairo and Damascus, but the consequences would have been dubious at best. The President recognized the virtues of a battlefield stalemate: the Soviets would have no reason to intervene in behalf of their clients, and the Arab states would have avoided another military humiliation that could further embitter their relations with the United States. The diplomatic shoals were hazardous to navigate; that Nixon and his aides did so amid the fallout from Watergate made the achievement all the more remarkable.

The Joint Chiefs of Staff had some misgivings over the President’s decision to resupply the Israelis and stalled in executing the President’s order, until Nixon spoke directly to Admiral Thomas Moorer, their Chairman and an outspoken antagonist of Israel. In the short run, the President’s actions on behalf of Israel led directly to the Arab oil embargo of 1973, causing the nation no end of domestic woe. But his stalemate policy had the effect of bringing an end to the war, however uneasy the truce. The real fruits came five years later in the Camp David Accords, which witnessed the first public Arab-Israeli negotiations and settlements since 1949. Egyptian President Anwar Sadat was in no position in 1973 to express public admiration for Nixon, but Israeli Prime Minister Golda Meir had no such compunctions. Throughout Watergate and before the Yom Kippur War, she sent messages of warm “sympathy and understanding” to the President. In later years, when Richard Nixon’s veracity had little public standing, Golda Meir recorded “that he did not break a single one of the promises he made to us.”
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The calm, reasoned foresight that characterized the President’s behavior throughout the Middle East crisis deserted him when he confronted his personal crisis. For the Middle East, Nixon worked as a mediating lawyer, carefully serving the interests of all parties in order to obtain some acceptable result. On the other front, he had himself as a client, and the results were predictably disastrous.

As the Agnew affair wound down, the President told Richardson, “Now that we have disposed of that matter, we can go ahead and get rid of Cox.” Richardson wavered between a belief that this was an offhand remark arising from wishful thinking and a judgment that it reflected settled policy. Two days after Agnew’s resignation, the Circuit Court of Appeals, ruling on Cox’s subpoena in a five-to-two decision, concluded that the President must turn over the relevant tapes to Judge Sirica, who would examine them
in camera
and decide which parts to release to the grand jury. The appellate judges firmly held that Nixon was “not above the law’s commands” but also pleaded for him and the prosecutors to reach an out-of-court settlement. Historically, courts had avoided direct confrontations with presidents. The “least dangerous branch” had “neither force nor will” of its own, as Alexander Hamilton wrote in
Federalist
78. But the majority in this case confronted presidential claims in a spirited manner, denying Nixon’s theories of presidential immunity, sovereignty, and executive privilege. The President’s arguments were stacked against the common-sense notion that no man should judge his own case.

All along, Special Prosecutor Cox had worried about the possibility that the President might not comply with a court order. Some of his staff urged sending a phalanx of U.S. marshals to the White House, conjuring up visions of resistance by Marine guards. Cox himself had visions of Gilbert and Sullivan operettas. During his argument, he told the appeals court that the nation had been “blessed” by a historical pattern of presidential acquiescence in court orders, and he was confident that “the same spirit … would prevail here.” In their opinion, the judges pointedly appealed for such support, noting that courts always “assume that their orders will be obeyed, especially when addressed to responsible government officials.” On October 17 the President scored a rare court victory when Sirica asserted that he lacked authority to support the Senate Select Committee’s subpoena for the tapes.
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The appellate court earlier had urged the lawyers for the committee and the President to chart their own compromise. In a September 13 memorandum, the judges suggested that the President, along with Cox and Charles Wright, examine the tapes and agree as to what material in them was privileged. If any materials remained in dispute, the court said it would “discharge its duty” and decide the matter. Clearly, the judges sought to avoid a constitutional crisis. A week later, however, the lawyers told the court that
they could not agree on any compromise. Suspicion and ill will were rife. Wright believed that Cox had violated the lawyers’ ethics code stipulating that attorneys should not give an opinion of the merits of the claims or defenses of the other party. On July 26 Cox had said that he personally “did not doubt the bona fides of the President’s position but that his people had researched it and were persuaded it was without merit.”
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After the arguments in October, an ebullient Leonard Garment had told the President that the situation seemed promising. Wright had been “in fine form” and had won “obvious respect” from the judges. Garment worried because two judges who could be counted as presidential supporters had recused themselves. Still, he believed that the judges, the “Watergate bar,” and even the press had begun to understand how “mischievous” it would be to order the President to open his most intimate records. But the court found a different, overriding issue, and held Nixon accountable. On October 13, the day after the court’s ruling, Garment and Buzhardt met and spoke by telephone with Wright, who urged them to press ahead with a notice of appeal to the Supreme Court. Wright remained confident that the President still would win. But Nixon (and probably Haig) decided otherwise. They would not risk an adverse ruling in the highest court, one which Nixon had promised to respect. With that, the White House started down a path that within a week left the nation in shock and the Nixon Administration in shambles. Cox, Nixon’s advisers told him, had to go. Murray Chotiner, Nixon’s veteran political mentor, put it succinctly: “This guy Cox will use anything and everybody,” he told the President. “It has to be taken away from him.”
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Nixon’s problem was practical as well as legal. He had to comply somehow with the judicial ruling (unless he appealed) and deliver the tapes to Judge Sirica, yet he had also to prevent them from incriminating him in any way. Cox, of course, was at the heart of the issue for the White House. But day by day, and then hour by hour, the dispute increasingly focused on Richardson and his relationship to the President. Richardson described himself as the “lawyer for the situation,” a role that would enable Cox to carry on his responsibilities and yet somehow preserve the President’s authority and independence. Richardson told Deputy Attorney General William Ruckelshaus that he had “no desire to be a martyr.” Even if Richardson eventually had to leave because of some principle, he must, he said, do everything now to avoid a confrontation. What Richardson did not—and could not—appreciate was the value of the stakes: any compromise served only to compromise the President.

Richardson met Haig and Buzhardt on Monday, October 15, and learned that Nixon would prepare an “authenticated” version of the subpoenaed tapes for Sirica but would fire Cox, thus disposing of his petition for access to the tapes and rendering the case moot. The Attorney General said he
would have to resign himself if Cox were fired. A few hours later, Haig again spoke to Richardson and raised the idea of using Senator John Stennis (D–MS) to verify Nixon’s summaries. After several more calls, Richardson agreed to present the proposal to Cox, which he did that evening and again the next morning. Haig told the Attorney General that “this was it” as far as access to presidential materials was concerned and that the President expected Richardson’s support in the event of a future showdown with Cox. Richardson later claimed that he never committed himself to any agreement beyond a means of authenticating the tapes.
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“Judge” Stennis (as Nixon publicly referred to him that week), seventy-two, had only recently returned to his Senate duties following a long illness. He had been hospitalized during many of the dramatic Watergate disclosures, and a colleague told him that he had “come back to a very different world.” Stennis claimed that the White House had asked him to verify the accuracy of transcripts and said that only “personal talk” would be deleted. For his part, he insisted that he never would have agreed to be a party to submitting authenticated tapes to a court of law. “I was once a judge,” he said, “and the courts can ask for what they want.” If Stennis was truthful, then he never saw the “verifier proposal,” for it clearly stated that he would furnish “a complete and accurate” record to the court and the grand jury. Stennis had no direct dealings with Richardson concerning the matter.
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On October 16 Richardson prepared a proposal for releasing edited transcripts of the tapes, but Buzhardt delayed it in the White House until the next day, when it was transmitted to Cox in the late afternoon. The proposal essentially provided that the President would select a “verifier” to compare the subpoenaed tapes with pertinent transcripts. The verifier was authorized to substitute language in sections of the tapes that covered national-security matters and other areas that he judged embarrassing to the President. Richardson and Cox discussed the proposal twice on the seventeenth and again the next day. On October 18, Cox submitted written comments on the proposal, and Richardson discussed them with the President’s lawyers and Haig in the White House that evening. Cox told Richardson that the idea of using Stennis as a verifier was unacceptable, first because Cox could not rely on such a “unilateral” determination of the evidence, and second, because the proposal only allowed for the release of material relating to the break-in and cover-up and omitted the tapes relevant to other areas under investigation. Cox reminded Richardson that the Attorney General had “pledged that I would not be turned aside.”