Watergate, page 46
“Did you ever hear of the Watergate affair?” the judiciary chair asked, by way of greeting. The room erupted in laughter.
“Yes, Mr. Chairman,” Richardson replied.
“All right—now, if you are Attorney General, what are you going to do about it?” Eastland continued.
Richardson promised that he would “undertake that responsibility determined to pursue the truth wherever it may lead. I have examined my conscience on that score. I am satisfied that I am prepared to do that without fear or favor, and with regard solely to the public interest.”
“What about a special prosecutor?” Eastland said, raising the idea that had been growing in popularity in the preceding weeks. Within moments, the topic of Richardson’s nomination itself was all but shelved as the hearing devolved into a discussion about the charge and independence of such a role. Richardson had no intention of giving up full control of the case and pushed for a special assistant attorney general to lead the investigation autonomously, making clear that he would not fire any special prosecutor unless his actions were “arbitrary, capricious, or irrational.” Several senators pushed for more—suggesting Congress adopt the model used in the Teapot Dome scandal, when Congress itself had appointed independent prosecutors.
Robert C. Byrd of West Virginia made clear that unless Richardson embraced the committee’s suggestions for a special prosecutor, he would halt the nomination at once. Eventually, everyone agreed Richardson would set to work immediately finding an independent investigator; he needed a trial attorney, an experienced fact-finder—and fast.
The White House suggested two former Democratic governors, Pat Brown and Warren Hearnes, both of whom Richardson rejected. Meanwhile, his own first four choices—federal judge Harold Tyler, former deputy attorney general Warren Christopher, and retired New York state appeals court justice David Peck—turned him down or took themselves out of the running. It was an embarrassing series of setbacks for a man who wasn’t even confirmed yet as attorney general, and he was forced to stop ranking his choices so there was no “scorecard on refusals.” “The smart ones knew there was a mess of trouble in this thing,” Richardson’s aide Wilmot Hastings said.
Finally, Richardson reached Harvard Law legend Archibald Cox during a lecture series at the University of California. The former U.S. solicitor general under President Kennedy, Cox hadn’t been on any initial candidate lists, but the deeper into the field Richardson got, the more his name had come up. He had worked as a labor arbitrator and built a national reputation helping to respond to student protests at Columbia and Harvard during the peak of the antiwar movement, experiences where Richardson knew he’d shown “unfailing fairness and firmness.” He didn’t have that central characteristic of trial experience, but he had integrity, which seemed just as critical. (The fact that Cox had worked for three Democratic presidents didn’t hurt either.) Over the phone, Richardson asked if the law professor was, in his word, “available?”
Cox knew he didn’t want to be. “This is probably a no-win job,” he told his wife, Phyllis. “I’ll be damned by everybody.” And yet, he knew someone had to do it. He was late in his career, tenured at Harvard Law, with no ambitions for public office. It might as well be him. As his wife later said, “I know Archie will love it. It appeals to his old-fashioned sense of being called by the nation.”
Two days later, on May 18, Richardson announced that if he was confirmed, he would name Cox to a $38,000-a-year job as special prosecutor. “This is a task of tremendous importance,” he said. “Somehow, we must restore confidence, honor and integrity in government.” Both men touted that they’d come to an amicable understanding about Cox’s independence, agreeing on terms “word for word.”II One of those terms, perhaps most importantly—and most presciently—was the conditions under which Cox could be fired: Richardson could only do so personally, and only for “extraordinary improprieties.”
On Monday, May 21, as Mitchell and Stans pleaded not guilty in New York to the charges in the Vesco case, Cox appeared in Washington alongside Richardson at the would-be attorney general’s confirmation hearing. Time and again, Cox emphasized that he was comfortable with the level of independence he’d have from Richardson. “The only authority he retained is the authority to give me hell if I don’t do the job,” Cox said of Richardson. “Let’s face it, I’ll have the whip hand.”
“And you won’t hesitate to use it?” asked Senator Robert C. Byrd.
“No sir,” Cox promised.
The next day, Leonard Garment appeared in the White House Press Room to release a massive four-thousand-word statement from the president, responding to the first days of hearings, with equal parts national apology and political defense. The statement had grown out of days of labor by Pat Buchanan, Haig, Garment, Buzhardt, and others who had drafted versions around a conference table in presidential writer David Gergen’s office, delivering them to Nixon in his hideaway, and then waiting patiently as he edited and revised in solitude.
In an echo of his April 30 speech, where he professed that the root cause of Watergate grew out of how much he cared for the country and how seriously he took his duties as president, Nixon again argued that he’d had only the best intentions—it was his staff who had “gone beyond my directives” and that he “should have given more heed to the warning signals I received along the way about a Watergate coverup and less to the reassurances.” As soon as he’d realized what Haldeman, Ehrlichman, Dean, or others might have done, he had acted quickly. “I had no prior knowledge of the Watergate operation,” the president said, the first in a list of seven points he wanted the nation to understand, continuing:
I took no part in, nor was I aware of, any subsequent efforts that may have been made to cover up Watergate.
At no time did I authorize any offer of executive clemency for the Watergate defendants, nor did I know of any such offer.
I did not know, until the time of my own investigation, of any effort to provide the Watergate defendants with funds.
At no time did I attempt, or did I authorize others to attempt, to implicate the CIA in the Watergate matter.
It was not until the time of my own investigation that I learned of the break-in at the office of Mr. Ellsberg’s psychiatrist, and I specifically authorized the furnishing of this information to Judge Byrne.
I neither authorized nor encouraged subordinates to engage in illegal or improper campaign tactics.
At least six of those points would later prove lies.
Altogether, it was a powerful statement—one featured prominently in banner headlines the next day, juxtaposed with photos of McCord and Caulfield testifying to the Ervin Committee—and served its purpose well. The Senate, Richardson, and Cox all felt reassured by the president’s words; Cox, especially, was buoyed by the lines about waiving executive privilege. “The assumption was that I would get to see everything,” he recalled later.
Thursday, after the Senate confirmed his nomination as attorney general, Elliot Richardson gave his farewell press conference at the Defense Department and made clear that his priority in his new job was to restore the nation’s trust in its law enforcement. “A kind of sleaziness has infected the ways in which things have been done,” he said from behind his Pentagon desk, as he doodled stars on the scratch pad before him. “I think there is an opportunity to restore confidence through finding ways in which the law enforcement process can be made to be, and perceived to be, scrupulous in the ways in which it carries out its job.”
On Friday the 25th, he was sworn in at the White House by Chief Justice Warren Burger, after which he and President Nixon greeted the two hundred guests into a State Dining Room reception. “The attorney general would be happy to see those of you who do not have any matters pending before the courts at the moment,” Nixon quipped.
The room roared with applause.
In private, though, Nixon didn’t see much to joke about. The scandal was now more than just a distraction from the nation’s business; it was becoming a literal threat to his legacy. Even as Richardson was sworn in, the Richard M. Nixon Foundation announced that the plans and fundraising for a presidential library were being shelved as the majority of the seven trustees who were supposed to build the permanent monument to his career were now implicated in the cover-up: Ehrlichman, Haldeman, Mitchell, and Kalmbach.
At the White House, the president’s darkness was starting to appear inescapable, his grumblings about resigning more constant. “Wouldn’t it really be better for the country, you know to just check out?” he’d asked Haig the night before Richardson’s swearing-in. “I can’t fight the damn battle, you know, with people running in with their little tidbits and their rumors all that crap.” Later that night, with his family, he asked, “Do you think I should resign?” His daughters Julie and Tricia Nixon rejected the premise outright; Pat Nixon was circumspect too. She saw Ervin as a mortal danger and could only watch the Senate hearings in half-hour doses. “The hearings [were] just like a snake about to devour people,” she told a friend.
That night was the last time he’d mention resignation to his family until August 2, 1974.
* * *
That same Friday morning, the front page of the New York Times announced Magruder would plead guilty and cooperate with prosecutors. Next to it was another headline, a tragic reminder of the long reach of the still-widening Watergate scandal: “A House Member Apparent Suicide.”
A longtime congressional aide, William Mills, had won his seat after its occupant, his boss Representative Rogers Morton, was named Nixon’s interior secretary in 1971, but it had been a tough fight; the mid-cycle special election struggled for money, given the short timespan it had to raise funds. Morton had turned to CREEP for help. In April 1971, his assistant took the first distribution from the piles of campaign cash that had accumulated in Hugh Sloan’s safe and delivered the $25,000 gift to Mills’s campaign—money that was never reported on either federal or state disclosure reports.
Maryland authorities had begun investigating the slush fund cash after the Government Accounting Office investigation uncovered and made public questions about the donation earlier that week. With Watergate dominating the national headlines and the newspapers filled with stories of people making deals with prosecutors, Mills evidently feared that his political career was over—or worse.
He was found dead in an Eastern Shore barn, near his horses, after shooting himself with a twelve-gauge shotgun. Among the seven different suicide notes Mills left, authorities said, was one lamenting “he had done nothing wrong but said he couldn’t prove it, and so there was no other way out.” Mills, a World War II army veteran and a proud member of the Elks and the Rotary Club, left behind a wife, a twenty-four-year-old daughter, and a sixteen-year-old son.
I. Caulfield had taken a leave of absence earlier that month from the Treasury Department when the Los Angeles Times first broke news of his clandestine meetings with McCord.
II. It wasn’t quite that simple—there actually were several rounds of suggestions and negotiations over the job’s specific scope and mission, but it was all amicable and Cox did effectively get everything he requested—including specific authority not just to investigate the burglary but to investigate White House misdeeds and personnel generally; Cox sensed from reading the newspapers that there were aspects of the case, like ITT and the Ellsberg burglary, that might not be directly related to the DNC burglary but were part and parcel of similar behavior.
Chapter 32 “A Russian Novel”
If Richardson’s swearing-in featured grand White House ceremony, Archibald Cox’s was the opposite, only a low-key ceremony at the Justice Department that reunited the various chapters of his career. His bow ties would become famous over the course of the next five months, but for that day, he had borrowed a standard red, pin-striped necktie from his brother. He was sworn in by FDR’s solicitor general, his first boss in Washington, as Robert Kennedy’s widow, Ethel, and Senator Ted Kennedy both looked on from the audience.
It was clear immediately that Cox would have to triangulate his own position among at least four other centers of gravity in the Watergate case—the existing prosecutors and Judge Sirica’s grand jury, the Ervin Committee, the president, and the Justice Department itself—and catch up on his reading. As he and Phyllis relocated to Washington, he filled his briefcase every trip with sensitive reports and case files. Two U.S. marshals traveled alongside him and came home with him each night, not to protect him, but to secure the papers. As his wife recalled, “I fed them and watched them watch Archie.”
In D.C., Cox started to build an organization that would be known as the Watergate Special Prosecution Force. He was joined by two Harvard Law colleagues, James Vorenberg, a onetime McGovern policy advisor, and Philip Heymann, a former solicitor general colleague who, twenty years Cox’s junior, was all but a son to him. At their first meeting in Room 1111 of the Justice Department, the small team was far outnumbered by the press waiting outside. James Doyle, a Washington Star reporter recruited as the special prosecutor’s new spokesperson, took stock of his new boss, dressed in signature bow tie and suede Wallabee shoes. “Prosecutors are supposed to have the instincts of a shark; this one seemed more the dolphin. High-pitched voice. Very intelligent,” he recalled later.
Cox understood precisely the incredible power and national trust being vested in his new role. Just days after his appointment, he confided in Vorenberg that he felt he was “being asked to play god.”
“It’s sort of playing St. Peter, isn’t?” Vorenberg clarified.
“I’d be content to settle for that role,” Cox agreed. “He doesn’t pass the judgments.”
Their first night in the office, the team asked Henry Petersen to stop by and talk to them about the case. Over hours—sometimes collegially, sometimes testily—Cox asked for documents and quizzed Petersen on his meetings with the president, Mitchell, Kleindienst, and Gray. At one point, he asked the assistant attorney general: “Did you ever get a report from the president of what Dean told him?”
“That report is on tape, but I didn’t want to hear it,” Petersen replied. “The president said [on April 16] I could hear it if I wanted to, but I couldn’t listen to that tape because we were dealing with Dean and his counsel.”
“Do you mean Dean’s conversation with the president is on tape?” Cox said, startled.
“So I’ve been told,” Petersen said.
They kept talking, and Petersen’s defensiveness finally overwhelmed the meeting, as Cox wondered aloud how thorough the summary he was getting of Petersen’s conversations with Nixon and the other officials could be. “I’m not very good at cross-examining presidents,” Petersen finally grumbled.
“No, I doubt any of us are,” Cox replied.
Cox also met with Earl Silbert, Seymour Glanzer, and Donald Campbell, the three D.C. prosecutors who had handled the Watergate case up until then, who had been making noise publicly about quitting in the days leading up to Cox’s arrival. The trio, who had weathered nearly a year of harsh criticism about their handling of the investigation, argued that they’d now nearly solved the case and just needed time to wrap it up; in their eyes, the addition of a special prosecutor was an insult—and too late to be of any help. They told the press the case would be done in sixty days if they remained in charge.I
Publicly Cox gave them a vote of confidence, but he still began to formulate his own team, calling first upon James Neal, the Nashville federal prosecutor who had won a conviction of Jimmy Hoffa in 1964 while Cox was solicitor general. “Jim, I desperately need a trial man to get on top of this case,” he pitched, initially agreeing that Neal could work for just two weeks. (He ended up staying indefinitely, much to the consternation of his small Tennessee law firm.)
Cox’s next stop was Sam Dash; the two men had known each other for years—Cox had been the Senate investigator’s labor law professor at Harvard Law—and the special prosecutor now hoped he could convince his former student that the Senate should now step back from its investigation and give him space to work, indict, and try defendants. “It doesn’t seem to make any sense that there should be two investigations, does it?” But Dash resisted; America didn’t yet have a reason to trust the Justice Department and it needed to continue its own search for answers. Despite rounds of effort with Dash, Ervin, and even, later, after pressing Judge Sirica to weigh in, Cox was unable to stop the Senate hearings.
The last of Cox’s initial meetings came on June 6, with the toughest audience of all: Nixon’s three-member defense team: Fred Buzhardt, Leonard Garment, and Charles Alan Wright, the newest addition to the team, who had been brought in to focus on the case’s special questions about presidential powers. Garment had assumed Dean’s role as the president’s personal White House counsel, whereas Buzhardt was solely focused on the Watergate case, and Wright even more specifically focused on the constitutional questions raised by the scandal and resulting investigations.
They met, awkwardly and tensely, in the Special Prosecutor’s Office, where Cox raised the topic of Petersen’s odd conversation with the president on April 16. He wanted the tape of the conversation between Nixon and Dean if it existed, as well as Petersen’s documentation of that meeting. Buzhardt rapped his West Point ring on the meeting table and said the president would turn over no such thing, dismissing the “tape” that Petersen and Nixon discussed as an after-the-fact Dictabelt recording of the president’s own recollection of the exchange.II A request was also made for nearly a year’s worth of White House meeting and call logs, detailing the president’s interactions with top aides, which would be invaluable in determining who was present for what conversations and which witnesses could testify to what. The lawyers at least agreed to think about it.
