Watergate, page 52
A few days later, on June 19—as Washington awaited John Dean’s testimony—Nixon encouraged his chief of staff to subvert justice, telling Alexander Haig that he wanted to have Melvin Laird intercede with the Beall brothers. He cautioned, “I can’t have it put out that I was trying to fix the case.” Sorting out how to handle the case was a pressing priority; Agnew called Haig three times to discuss it, and Haig finally turned to the head of the Republican National Committee, George H. W. Bush, to contact the older Beall brother. “Senator Beall wasn’t as responsive as he might have been, although he’s damn upset about it,” Haig reported back later.
Richardson never knew that Nixon had tried to interfere, and by late July, the attorney general passed word to Haig: “They say up in Baltimore that they have enough evidence to charge the vice president with 40 felony counts for violations of federal statutes on bribery, tax evasion, and corruption.”
“There’s no mistake on this?” asked Haig, who hadn’t until then understood the scale of the issue and still made no mention of his earlier actions.
“There’s no mistake,” Richardson confirmed. “I’ve never seen such an open-and-shut case.”
On August 1, Maryland U.S. Attorney George Beall officially notified the vice president that he was the target of the investigation. Chuck Colson helped line up a lawyer, and five days later, the allegations leaked in the Wall Street Journal: Agnew had received $1,000 a week in kickbacks for six years as Baltimore County executive and Maryland governor, and he’d taken some $50,000 in payments as vice president too. “Damned lies,” he maintained in a press conference.
As Watergate deepened, the president had long joked that his number two’s ferocity and unpleasantness was his best insurance policy against impeachment—not even the most rabid Democrat preferred Agnew over Nixon—but that’s where the compliments stopped. In fact, he’d never much liked Agnew. They didn’t get along personally, and Nixon, who had been vice president himself, thought the former governor had underperformed at every turn. If he’d behaved like Agnew, Nixon grumbled, “Ike would have fired my ass.” Now they were facing the possibility of a double impeachment—a political disaster that if not properly managed and sequenced would deliver Democratic House Speaker Carl Albert to the White House to serve out the remainder of Nixon’s term.
Nixon also spotted, though, in Agnew’s troubles a potential opportunity. He had long hoped that Texas’s John Connally would be his heir apparent and Republican successor as president; through that summer of ’73, he had waited for the chance to nominate Connally if Agnew resigned. The problem was, Agnew didn’t appear to be in any hurry to leave. “I have no intention to be skewered in this fashion,” he said at an August 8 press conference, before retreating to Frank Sinatra’s Palm Beach home to strategize.II
The gap between Agnew’s outright denials of wrongdoing and the gathering evidence troubled the Nixon team. “I can’t understand how he can make such flat denials in light of the facts that are bound to come out,” Fred Buzhardt warned Nixon.
“Everyone thinks he has to leave,” Nixon, in turn, told Haig.
In August Nixon asked Henry Petersen for his own independent evaluation of Agnew’s troubles, and the Justice Department official reported back on August 15 that the evidence was incontrovertible and damning. “[Nixon] had been reluctant earlier to invest what was left of his own credibility in the lost cause of Agnew’s defense. Now he was determined not to get personally involved,” Haig recalled in his memoirs.III As summer moved into fall, Haig, Buzhardt, and Nixon all faced the challenge of how best to push the vice president of the United States out of his own government.
* * *
On Monday, August 13, Senator Lowell Weicker went to the Danbury federal prison in his home state of Connecticut, to visit his newest constituents: Bernard Barker and the Cuban burglars. Barker’s daughter had asked the Ervin Committee member to come, and in their meeting, he listened as the men explained their role in GEMSTONE and the Watergate break-in, complaining throughout about Hunt’s betrayal—they had believed, because of his preexisting CIA relationship and how he’d represented his work at the White House, that they were working for a fully authorized and protected official U.S. government mission. Weicker asked when they realized otherwise. “I never fully realized,” Barker replied, sadly.
He ultimately spent about six hours with the men and left angered by the unfairness of the justice system. “These were the little guys in Watergate, and they were being punished more severely than some of the big shots,” he recalled.
That same day back in Washington, prosecutors were battling over the looming executive subpoenas. Cox, Lacovara, and Kreindler had spent the preceding two weeks researching, refining, and arguing among themselves about how to best position their case. In between organizing and hiring the office staff, investigating, and grading the last of his final exams for his spring course at Harvard, Cox had been brushing up on his presidential legal history—even spending a Sunday at the office reading an antique law book that traced the story of United States v. Burr, the only legal case in the entire history of the country prior to now in which a president had been subpoenaed.
The case during Thomas Jefferson’s administration stemmed from when former vice president Aaron Burr had been accused of treason. After fleeing U.S. politics following his deadly 1804 duel with Alexander Hamilton, Burr had hatched a subsequent scheme—the exact contours of which today remain sketchy—to break away western portions of the Louisiana Territory, perhaps with the help of Britain or Spain, and stage a military uprising with a goal of installing himself as emperor. He was captured in Alabama and brought to trial in Richmond, Virginia, with Chief Justice Marshall presiding, and Burr’s lawyers subpoenaed Thomas Jefferson to provide a series of letters relating to others involved in Burr’s plan. Marshall’s conclusion was clear: “That the president of the United States may be subpoenaed, and examined as a witness, and requested to produce any paper in his possession, is not controverted,” he wrote. Jefferson half-complied, providing some of the requested material but excising what he deemed irrelevant, and the issue died with Burr’s acquittal before anyone chose to push the president further.
Cox also examined the other landmark historical test of executive power, which came from the midst of the Korean War. A wage dispute with steel unions led to calls for a strike, and Harry Truman instead issued an executive order, citing vague emergency powers, seizing the steel mills and demanding production continue; lawyers for the mills appealed to federal court just twenty-seven minutes after the order was announced. The case, known as Youngstown Sheet & Tube Co. v. Sawyer, quickly found its way to the Supreme Court, where a deeply divided court ultimately ruled that the president lacked the inherent authority to seize the mills, since Congress hadn’t explicitly provided such powers.
It was clear from such cases that the special prosecutor had a hard battle in front of him. The courts and Congress had traditionally given the president a great deal of leeway in deciding what was in the national interest—particularly in the realm of foreign affairs and national security. “The broad framework of the case was simplicity itself, the clash of two traditions of American law,” Doyle later recalled. “Cox would point to the early law books of Henry de Bracton, the Burr case in Jefferson’s time, and the steel seizure case during Truman’s Presidency to show that even a President must submit to the needs of the law. Charles Alan Wright could point to the entire history of the American Presidency to show that no President had ever been compelled to turn over his most secret papers, that no court had gone so far as to interpose itself between a President and his personal judgment of state secrets or of what must remain confidential.”
* * *
On August 15, Nixon delivered yet another national prime-time radio and television address on Watergate—his third since April—repeating his assertion that he had no prior knowledge of the break-in, that he hadn’t taken part in the subsequent cover-up, and that he had neither “authorized nor encouraged” improper or illegal campaign tactics. “That was and that is the simple truth,” he said, continuing on to outline how ill-served he’d been by Kleindienst, Gray, and Dean, all of whom he had wrongly trusted. “Because I trusted the agencies conducting the investigations, because I believed the reports I was getting, I did not believe the newspaper accounts that suggested a coverup. I was convinced there was no coverup, because I was convinced that no one had anything to cover up,” he said. “Far from trying to hide the facts, my effort throughout has been to discover the facts—and to lay those facts before the appropriate law enforcement authorities so that justice could be done and the guilty dealt with.”
From there, he tried to reframe the public debate over his White House tapes—the question, he argued, of presidential confidentiality loomed larger than any legal questions about the Watergate cover-up. “Each day, a President of the United States is required to make difficult decisions on grave issues. It is absolutely necessary, if the President is to be able to do his job as the country expects, that he be able to talk openly and candidly with his advisers about issues and individuals. This kind of frank discussion is only possible when those who take part in it know that what they say is in strictest confidence,” he said. “That is why I shall continue to oppose efforts which would set a precedent that would cripple all future Presidents by inhibiting conversations between them and those they look to for advice.”
He argued it was time after the summer’s worth of hearings to move the country forward. “We have reached a point at which a continued, backward looking obsession with Watergate is causing this nation to neglect matters of far greater importance to all of the American people,” he said. “We must not stay so mired in Watergate that we fail to respond to challenges of surpassing importance to America and the world. We cannot let an obsession with the past destroy our hopes for the future.”
The next day, Jeb Stuart Magruder pleaded guilty to a single count of conspiracy; he would face a maximum of five years in prison. The special prosecutor’s strategy was working. Next in their sights: John Dean.
* * *
Even as Nixon, desperate to change the subject, spoke to the nation, Cox and the FBI investigations proceeded apace. If anything, the probes were accelerating. The original grand jury had been meeting for more than a year, and, as Cox’s spokesman James Doyle recalled, they “thought they had seen it all, and they would trust only themselves to do the job.” As he wrote later, “[They] had been through two sets of prosecutors and tended to be wary, aggressive, and thorough in questioning witnesses. The leaders did not much care about the stature of either the witness or the prosecutor who appeared before them.” In August, the special prosecutor empaneled a second grand jury to focus on the expanding threads of the investigation, from the break-in at Ellsberg’s psychiatrist to the confusing circumstances of the ITT merger.
At the top of the agenda for the second grand jury was George Steinbrenner. The day after Nixon asked the country to untangle itself from Watergate, the FBI sent an “airtel” to its Cleveland Field Office with copies of seven subpoenas for employees of George Steinbrenner’s shipbuilding company, who were suspected of illegally laundering corporate donations to the reelection campaign through fake “bonuses.”
The probe had grown out of a civil lawsuit by the good-government group Common Cause, which had sued the Nixon campaign under the Federal Corrupt Practices Act to force disclosure of its donors—the very ones CREEP had hoped to hide by soliciting donations before the April 7, 1972, deadline of the new campaign finance law. As part of the lawsuit, Common Cause had uncovered that the campaign had kept a special record of two thousand top donors; Maurice Stans had destroyed his copy, but Common Cause found that Rose Mary Woods had held on to hers, and it obtained it through the lawsuit. It was an all but alphabetical list of potential financial crimes—so damning that the press had taken to calling the document “Rosemary’s Baby,” a name pulled from a bestselling 1960s horror novel and hit movie about a New York City woman who sires a son with Satan—and now the FBI was hot on the trail of those names too.
In the clipped language of the FBI, the August 16 message directed, “Cleveland insure that this case receives the same, immediate, and preferred handling as have other cases growing out of the Watergate affair.” If the interviews elicited any admissions that the contributions were indeed phony, Archibald Cox should be notified immediately by teletype. “The Special Prosecutor has indicated extreme interest in this matter,” the airtel said.
The subpoenas and interview requests came as investigators uncovered oddities throughout Steinbrenner’s company—like one American Shipbuilding Company employee who earned $14,500 annually and had received steady annual bonuses of $1,200 until April 1972, when the new campaign finance law kicked in and he suddenly both received a $5,000 bonus and also made a $3,500 donation to a Nixon campaign committee so obscure he couldn’t even remember its name.
When news of the probe broke publicly in the Washington Star, Steinbrenner disavowed any attempt to curry favor with Nixon for his shipbuilding company, saying his donations instead aimed to gain access for Cleveland civic projects. “I got taken,” he complained. “I went in with my eyes open, but I got taken.”
While there were numerous instances and cases involving Nixon’s campaign finance irregularities unfolding across the country, Steinbrenner’s situation stood out to prosecutors. “Steinbrenner had been the first such executive found to be resisting the investigation in an active, criminal manner, and [task force leader Tom] McBride meant to send a message to the business community that such conduct would not pay,” Doyle recalled.
Soon, eight employees were granted immunity to testify about the gifts. The grand jurors sensed the employees’ fear of implicating their boss as they gave vague answers and obfuscations—when one witness finally blurted out a sentence about participating in the scheme, the jurors applauded.
Steinbrenner’s conspiracy was crumbling. Worse was coming for him.
* * *
The morning of August 22, 1972, began inauspiciously for Cox, as he prepared to face down Nixon defense lawyer Charles Alan Wright in Sirica’s sixth-floor courtroom over the question of the presidential subpoena. As Sirica brought the courtroom to order at 10 a.m., sitting before a packed audience of three hundred living humans and four marble statues denoting the great legal minds of antiquity—Moses, Hammurabi, Solon, and Justinian—the special prosecutor nervously spilled his water across the table.
Wright was the first to have the floor, and he gave a detailed defense of the president’s argument that he was exempt from any such subpoenas—deploying along the way one of the most famous lines of judicial scholarship, from Justice Benjamin Cardozo’s 1921 lectures, “The Nature of the Judicial Process”: “We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance.”
For his turn, Cox pointed to the decision in U.S. v. Clark, which allowed for the piercing of the secrecy of jury deliberations with the specific suspicion of wrongdoing. Judge Sirica, he argued, was being asked to apply the same rare exemption to presidential conversations. “There is not merely accusation but there is strong reason to believe that the integrity of the executive office has been corrupted—although the extent of the rot is not yet clear,” Cox explained.
“Getting to the truth of Watergate is a goal of great worth,” Wright agreed, when he regained the floor, “but there may well be times when there are other national interests that are more important than the fullest administration of criminal justice.” The president’s judgment of the national interest, he said, should be respected.
Cox had been anticipating this. With the specific page and paragraph reference in Wright’s own Federal Practice and Procedures book, he refuted the defense, saying that Wright had argued that executive privilege was not an absolute authority and that the courts needed to draw its lines.
Wright was not going to have his own words thrown back at him. “I think this is a matter of much too grave moment for us to attempt to make debater’s points by ad hominem argument against opposing counsel,” he said, proceeding to explain the extreme sensitivity of the recordings involved. Though he possessed security clearance, he explained that Nixon had told him that “in one of the tapes that is the subject of the present subpoena there is national security material so highly sensitive that he does not feel free even to hint to me what the nature of it is. This is the kind of material that will necessarily be made public at least on demand of defendants, if these tapes were ordered produced.” Now it was in the hands of the judge before them.
John Sirica had long understood that history would be made in his courtroom, but the idea of issuing an order targeting the President of the United States brought him pause. His actions in the Liddy case from January were still under review by the appeals court, and he worried about how further ones would be judged. Sirica believed Nixon deserved every benefit of the doubt, and as he weighed his ruling in the tapes subpoena, he found himself often taking walks around the D.C. courthouse to clear his head. The area adjacent, where he walked, was known as John Marshall Park, after the legendary chief justice with whom Sirica felt a distant historic communion. Marshall had held that there was nothing in U.S. law that would stop a president from being subpoenaed.
And if the president could be subpoenaed, Sirica reasoned, then that order must be enforceable.
* * *
As the two lawyers battled in court, Nixon hosted his first press conference in nearly half a year, appearing on the grounds of the Western White House to announce, among other items, that Secretary of State William Rogers was resigning. He would be replaced with Henry Kissinger, who would add heading the State Department to his already heavy list of responsibilities, making the national security advisor one of the most powerful U.S. officials of the entire Cold War.
