Watergate, page 56
After, though they had no written agreement laying out the terms or scope, Haig and Buzhardt told Richardson that the senator was on board, and the attorney general—who believed from his conversation with the White House team that day that this was effectively the plan already proposed by Cox himself in September—summoned Cox to float it. At six that Monday night, the men met. Both understood, implicitly, the stakes of the conversation; their jobs likely hung in the balance. As they spoke and Cox lobbed increasingly confounding questions highlighting why the compromise was such a poor solution, Richardson at first doodled and then began to get dressed in his formal tuxedo for a White House dinner he was set to attend. The tension in the room rose as Richardson’s answers kept falling short. Before long, Cox felt that the choice of Stennis was a trap—a figure who would provide a fig leaf of impartiality, with the strong support of the Senate, while actually bending entirely to the White House’s whim. As the special prosecutor left Richardson’s office that night, someone who spotted him in the hallway said he “look[ed] like he had just been told to clean out his desk.”
The next morning, Richardson and Cox met again, the conversation a mix of negotiation and hostage diplomacy. The attorney general told Cox that they had until Friday to work out a deal. If not, he said, “the consequences will be very serious for both of us.” He finally agreed to write out a formal proposal, and Cox left.
Tuesday night, October 16, NBC’s John Chancellor announced on the evening news that negotiations were underway for a compromise between the White House and the special prosecutor—the first public word of a process that Nixon’s team had hoped to keep secret.
Nixon, for his part, was fully entrenched in the Middle East crisis at Camp David (even watching that night the 1938 drama Suez, about the building of the canal that was now the focus of such geopolitical drama), but his first call Wednesday morning was to Buzhardt, and they talked for twenty minutes as the president ate breakfast. After helicoptering back to the White House, Nixon met with an assembled delegation of Arab foreign ministers, from Algeria, Kuwait, Morocco, and Saudi Arabia, to discuss how to advance peace in the Middle East.
Across town, Cox, clad in his signature bow tie, announced a trio of guilty pleas by major U.S. companies—American Airlines, Goodyear Tire and Rubber Company, and Minnesota Mining and Manufacturing Company—for making illegal contributions to Nixon’s reelection campaign, the first convictions the campaign finance task force led by Tom McBride had won. Cox, in his remarks, also said he planned to charge personally the “responsible corporate officer” in each instance, and thus had secured guilty pleas from the board chairs of both Goodyear and Minnesota Mining. He explained that American’s leadership was not being charged because the company and its chair, George Spater, had voluntarily come forward in July. “I believe that the example of American Airlines and Mr. Spater had a good deal to do with prompting others to come forward with voluntary disclosures of corporate contributions,” he said.
It was a small victory for Cox in the face of another major development that Wednesday: Sirica had blocked the Ervin Committee’s request to force Nixon to turn over the tapes to the Senate, arguing that since Congress hadn’t explicitly authorized Ervin’s lawsuit, the federal court had no jurisdiction. The ruling meant that Cox’s lawsuit would stand alone before the appeals court, and the special prosecutor was on his own.VI
Richardson, meanwhile, spent the day refining a written proposal for Stennis, going through multiple iterations with Buzhardt, who provided edits that appeared to the attorney general to have come directly from the president. They finalized a draft around 5 p.m. and sent it by messenger to Cox, written on a plain sheet of white paper and entitled only “A Proposal.” Upon receipt, Cox called the attorney general. “I think I should respond in writing, Elliot,” he said. “It would be more careful.”
Right away, Cox listed the weighty pros and cons of the Stennis Proposal in a staff memo. The pros included “avoid the risk of a constitutional crisis,” the “struggle over impeachment,” and the “break-up of the Special Prosecution Force and dismissal of the Attorney General.” The cons included the possibility that the evidence would be useless. “There is no reason to believe that an edited transcript would meet the needs of prosecution at the trial,” one segment read. “It seemed to me that it would be hard to settle for any proposal where one man became the arbitrary instrument to replace the accepted systems of grand juries, judges, and petit juries,” Doyle recalled telling Cox that day. “Part of our job was to convince the American people that the system operated, and operated with integrity.”
That Wednesday night, Richardson had long planned to host a small party to celebrate William Ruckelshaus’s Senate confirmation. As he drove home to prepare, he recalled, an offhand comment from earlier in the day weighed on him: He’d been eating a late lunch with Henry Kissinger at the State Department, when at 1:38 p.m., the secretary of state was interrupted by a telephone call update from Nixon about the progress of the Arab foreign ministers’ talk at the White House. They spoke for just five minutes, but after hanging up, Kissinger had told Richardson how distracted Nixon seemed: “He must really want to get rid of Archie Cox badly. He started talking about it in the middle of our conversation about the Middle East.”
Later that night, the twenty guests at Richardson’s home witnessed an increasingly strange scene, as the attorney general seemed clearly in professional distress. He gave an odd philosophical toast, quoting a book called McSorley’s Wonderful Saloon, and its line about “there are no little people,” before moving into his study to speak about duty, obligation, and accountability. Driving home afterward around midnight, a puzzled Washington Post columnist David Broder asked his wife, “What the hell was going on back there?”
* * *
Across town, that night also found John Dean sitting in the Special Prosecutor’s Office amid the final stages of negotiating a plea deal between Jim Neal and Dean’s lawyer, Charles Shaffer. Even though Dean had provided such vital early evidence about the cover-up, there was little debate among Cox’s team that he needed to face his own felony guilty plea. “Archie Cox was particularly firm in his personal determination that Dean be prosecuted no matter what,” Ben-Veniste and Frampton recalled. “Moral balancing aside, the realpolitik of the situation was that Dean would not be an effective witness at trial if he got a free ride.”VII
The single-felony-charge had become something of a go-to for the worst actors of the cover-up—a precedent first set with LaRue and Magruder, and James Neal had even put similar deals on the table for Haldeman and Mitchell, both of whom declined. They also had finally decided on the same approach for Bart Porter, the CRP scheduler who out of misguided loyalty had perjured himself to back up Magruder’s cover story about the campaign money funneled to Liddy. None of the prosecutors had had much appetite for prosecuting such a little fish among the cabinet officials, White House leaders, and corporate titans who populated so many of the open cases, but Ben-Veniste also pushed: How could the Special Prosecution Force decline to prosecute such an open-and-shut case of lying to federal agents? “The chances are that Porter might never have been prosecuted at all if he had something the prosecutors needed, but he was not so lucky,” Ben-Veniste and Frampton recalled. Porter too faced a single count, of making false statements to the FBI, and received a one-month prison sentence.
Now, even amid the showdown of the tapes, the case against Dean moved forward. Peter Reint, one of the investigators in the Special Prosecutor’s Office, had been hard at work through the summer and fall trying to piece together a workable charge against Dean, whose conversations with Silbert’s team about immunity early in the year had unfolded chaotically and tainted the chances of prosecuting many of the specific crimes he’d participated in. By comparing Dean’s words, the prosecutors’ work, and the available evidence, Reint zeroed in on two instances of obstruction that Dean had never volunteered—one, in the days after the burglary, when Dean had met with CIA’s Vernon Walters and asked for money to pay off the burglars, and one in January 1973 when Dean enlisted John Caulfield to tell McCord that Nixon would grant him clemency if he kept quiet.
Late into that Wednesday evening, they discussed every facet of the deal and the specifics that Dean would mention in his guilty plea. Shaffer and Dean reviewed the letter that Cox would provide Dean in exchange for the plea, which contained a standard clause saying the former White House counsel could still be prosecuted for perjury if it was later proved he’d given false testimony. The moment that Shaffer signed off on the letter, Jim Neal had a sinking realization: Dean was staring down the possibility that the White House tapes that would corroborate or contradict his testimony would be released within hours, and he clearly was comfortable they would back his story. “When Charlie came back in that door and said, ‘He says it’s okay,’ I knew John Dean’s version of events was accurate, and I knew that Archie Cox was in serious trouble with the president,” he recalled later.
By then, it was 2:30 a.m. Thursday morning. As Washington slept, overseas in the Middle East, a thousand Israeli and Egyptian tanks fought on the edge of the Suez, as the Yom Kippur War reached a potentially climactic stage. The Soviet Union launched calls for peace before its allies were overrun by the US-resupplied Israel, giving Richard Nixon a small victory.
* * *
Through the week, options for a friendly settlement narrowed between the White House and the Justice Department. Thursday, a New York Times column by renowned legal journalist Anthony Lewis traced the “warning signal from the White House of constitutional crises ahead” and how “over this long summer and fall, the tapes issue has taken on a life of its own. It has become a test of the principle that rulers in a democracy, like those ruled, are subject to the law.” Day by day, congressional pressure on the White House to comply with the court order on the tapes grew, and the president’s own allies and aides conceded that impeachment would be a foregone conclusion if he resisted.
Cox too was in an equally difficult position—“He is essentially alone in all this,” Lewis wrote. “He has no institution behind him, no powerful colleagues, no party. The questions are not easy ones”—and he spent the day weighing those options, typing up and refining a two-page response to the proposal from Richardson and the White House. The pressure he felt was evident in a sentence he typed and then ultimately deleted from the final draft: “I can hardly be expected to negotiate these issues with the implicit threat of dismissal hanging over my head.”
Elliot Richardson reviewed the counterproposal that night at the White House with Haig and all three of the president’s Watergate lawyers: Buzhardt, Wright, and Garment. The team told Richardson, flatly, that Cox’s rejection of the Stennis compromise required the attorney general to fire the special prosecutor. “I wondered whether I was the only sane man in the room or whether I was the one who was crazy,” he said later. Richardson urged Wright to call Cox and talk directly.
The White House lawyer reached the special prosecutor that evening at his brother’s house, where the family was eating dinner. Wright, who had been in Texas for most of the week and was coming into the Stennis Proposal conversation for the first time that day, enthusiastically pitched the idea to Cox and laid out “four stipulations” Cox had to agree to, including the previously mentioned prohibition on seeking any further presidential records.
“You catch me in a difficult position, Charlie,” Cox said. “I’m sitting on the floor at my brother’s house and we’re in the middle of dinner. There are children running about. I don’t think I ought to be put in a position of responding under these circumstances, do you?” He suggested that Wright draft a letter. He would respond the next day.
As Wright and Cox spoke, Richardson sat at home, pondering a question that had come up with increasing frequency: Protect the country or protect his reputation and tenure? He grabbed a yellow legal pad to answer it for himself. He started to write a list entitled, simply, “Why I Must Resign.” He ended up with seven items, starting with “It was a consideration of my confirmation that I appoint a Special Prosecutor and I reserved the right to fire him only in the case of some egregiously unreasonable action.” Rejecting the Stennis Proposal, in Richardson’s mind, didn’t qualify. He continued to write; the resulting list was a remarkably self-aware document—the type of which few leaders are ever honest enough to write privately about themselves, as Richardson argued that a special prosecutor was required precisely because he could never provide the requisite independence. “I am by temperament a team player,” he wrote in number three. “I cannot now change spots completely enough to be perceived to be—or feel that I am—as independent as I should be.” At the end of the day, Richardson felt that Nixon’s position was simply wrong and increasingly indefensible. “Many problems and headaches could have been avoided by cooperation with [Cox] more and fighting him less.”
His final sentence made clear what almost surely would come next: “I cannot stay if [Cox] goes.”
I. The Krogh indictment especially set off alarms at the White House, which believed Cox had clear instructions to stay away from “national security” cases. In their mind, Krogh’s work with the Plumbers was tightly tied into fears about exposing the Moorer-Radford spying operation by the Joint Chiefs of Staff within the National Security Council. Cox and Richardson, though, never grasped how worried the White House was about that scandal and considered the charges against Krogh straightforward and unrelated to national security: Krogh had been asked if he knew of Hunt and Liddy’s travels to Los Angeles, and replied, repeatedly, “No, I do not.” Prosecutors, though, could show he did.
II. As it turned out, O’Neill’s estimate was off by only two months.
III. A single judge, George MacKinnon, fully dissented, arguing that the president did, in fact, possess absolute executive privilege.
IV. He once told the chief of naval operations, “Blacks had come down from the trees a lot later than we did.”
V. Haig’s notes from the time make clear that the plan was basically to have Buzhardt summarize the tapes and have Stennis sign off. “Have Fred there. Fred will prepare report for him,” Haig scribbled on October 15.
VI. Ervin, Baker, and the rest of the committee moved quickly to pass a special law specifically assigning jurisdiction of their legal case to the U.S. District Court and that the matter focused on vital legislative functions; the bill moved rapidly through the House and the Senate and would become law in December without the president’s signature.
VII. As Cox said one day, “If everything else goes down the drain, the one thing I can cling to is Dean’s venality.”
Chapter 40 “The Mahogany Coffin”
Friday, October 19, 1973, was a perfect fall day in Washington—high in the mid-sixties, clear, with a gentle north breeze. It should have been marked with a great celebration—Henry Kissinger had received the Nobel Peace Prize that week, along with Le Duc Tho, for their work ending the American war in Vietnam—but no such enthusiasm could be found at the White House. The Middle East was in trouble, Nixon was in trouble, and now even his friends were in trouble: The Miami Herald’s front page that day had broken news that the special prosecutor was investigating the president’s best friend Bebe Rebozo for possible tax violations stemming from a $100,000 payment he had managed from Howard Hughes, supposedly a campaign contribution. Rebozo had boarded a plane from Miami to D.C. that day to have dinner with Nixon; there’s no record of their conversations, but it’s hard to imagine they were joyful. Surely, part of it referenced all the trouble caused by Archibald Cox.
The special prosecutor had received Wright’s letter around eight-thirty that morning and read it with a rising sense of dread. The White House lawyer had skipped over the four “stipulations” he’d established over the phone, and instead framed their conversation as Cox rejecting the “very reasonable proposal that the Attorney General put to you.” Cox’s counterproposals, Wright said, “depart[ed] so far from that proposal and the purpose for which it was made that we could not accede to them in any form.” Cox realized what was happening: He was being sandbagged, made to look like he was the unreasonable one.
Cox set the letter down on the conference table before his top aides—Henry Ruth, Phil Lacovara, Peter Kreindler, and James Doyle—so they could read it too. “Very clever lies,” he simply stated. The special prosecutor was due in Sirica’s courtroom at 10 a.m. for Dean’s guilty plea and quickly drafted his own response to Wright, writing in cursive pencil on a yellow legal pad. More for posterity than an actual need to respond, Cox wrote that the White House lawyer’s summary of their conversation “require[d] a little fleshing out” and proceeded to enumerate the four “stipulations” given the night before. “These points should be borne in mind in considering whether the proposal put before me is very reasonable,” he wrote. “I have a strong desire to avoid any form of confrontation but I could not conscientiously agree to your stipulations without unfaithfulness to the pledges which I gave the Senate prior to my appointment.”
The special prosecutor’s team understood the impasse and what it might mean for their investigation. At 9 a.m., one of the prosecutors, John Barker, went down to the bank on the building’s first floor, opened a safe-deposit box, and placed copies of the correspondence with the White House inside. Other key files were spirited out to the dusty Virginia basement of George Frampton’s grandmother.
