18

JULY 4

THE PRESIDENT RETURNED from his trip to Moscow last evening—on the eve of the Fourth of July—landing in Limestone, Maine. The arrival, exquisitely timed for 7:30 E.D.T., was broadcast on the television networks. Last night, President Nixon said, “It’s always good to come home to America. That is particularly so when one comes home from a journey that has advanced the cause of peace in the world.”

The United States and the Soviet Union failed to reach a comprehensive agreement on arms limitation. There are a number of indications that this failure resulted from the domestic troubles of the President, who is staking so much on the argument that he is indispensable to our foreign policy. It appears that, with Kissinger in the Middle East for much of the spring, and the President otherwise preoccupied, preparations for these talks were not accorded the necessary priority. Moreover, it appears that the President did not wish to risk giving further offense to conservatives, who opposed substantial arms-limitations agreements, and who also could decide the President’s fate in a Senate trial.

Senate Republicans have retained an outside lawyer to help them prepare for a trial of the President in the Senate.

The inquiry staff of the House Judiciary Committee has completed a draft of articles of impeachment.

JULY 5

Dr. Walter Tkach, the President’s personal physician, said in an interview today which appeared in the New York Daily News that the President had risked his life in making the trip to the Middle East: “He took a calculated risk. It could have killed him.”

JULY 8

One of those really hot Washington days. Even in the early morning, one feels the moist heat, and knows that it will get worse as the day goes on. On days like this, it is almost too hot to move. Cars break down. Tennis is out of the question. Shortly after nine, the Popsicle man is doing a brisk business with the crowd that has been waiting—some of it for two days—in front of the Supreme Court for a chance to hear the argument today of the cases of United States of America v. Richard M. Nixon, President of the United States, et al., and Richard M. Nixon, President of the United States, et al. v. United States of America. When Leon Jaworski, the Special Prosecutor, arrived this morning, the crowd cheered, and someone in the crowd shouted “Go, U.S.A.!”

Inside this building, with its marble hallways, there is a special coolness—one would feel it whatever the temperature outside. It is as if this were a sort of temple, and people in it conduct themselves accordingly. They do not behave as if this were just another government building, or even another court. It is the supreme court. Inside this building, voices are hushed and steps are measured. We have come to think of this court as the guarantor of our safety, as the last refuge when other remedies fail. Sometimes, it has even performed as that. We do not think of it much as being composed of nine human beings, whose temperaments and degrees of intelligence vary—human beings appointed to lifetime terms by different Presidents for different reasons. One cannot help thinking today of what Nixon tried to do to this court. Of how he insulted it with his attempted appointments of Clement F. Haynsworth, Jr., and G. Harrold Carswell, both defeated in the Senate, and with the other highly undistinguished names that were floated—and perhaps even seriously considered. After the uproar, the two most recent vacancies were filled by Lewis Powell, the conservative and respected Virginia attorney, and William Rehnquist, the highly conservative Justice Department official. Referring to his Supreme Court nominations, Nixon used to talk about the need to “strengthen the peace forces as against the criminal forces.” As it happens, he has filled four of the nine seats on the Court, almost a majority, and, as a result, on questions of civil rights and civil liberties the Court has, as he intended, become more conservative.

The issue of how to establish accountability for what has been done in the Nixon Administration has taken us to the Congress, to the White House, to the Justice Department, to the District Court, and now here. Once more, Nixon has drawn a line that must be put to institutional tests. To be argued here today is a melange of issues of great Constitutional import, and also, perhaps, of great consequence to the fate of the President—for we are here because Nixon clearly does not want to surrender some tapes that Judge Sirica has ordered him to turn over to the Special Prosecutor for the cover-up trial. Whether it is something about those particular tapes or it is that the President has simply decided that a line must be drawn somewhere, we can’t know. The President has not said whether he would obey an order of the Supreme Court. Last fall, when it was thought that a similar issue might have to be brought to this court, he said he would obey a “definitive” decision. That pledge has not been repeated. The principal legal issue before the Court today is whether the President’s right to invoke executive privilege is absolute, even in a criminal proceeding—an argument that was rejected by the District Court (and, in the tapes controversy last fall, was also rejected by the Court of Appeals).

The White House, in its brief to the Court, argued that only the President has the right to decide what information is privileged, and that the District Court cannot substitute its judgment. It argued that if the President is deemed to have abused this privilege, the only appropriate remedy is impeachment (in which proceeding the President is also invoking executive privilege). “The President is not subject to the criminal process,” the brief says. The White House also argued that the court process was “being used as a discovery tool for the impeachment proceedings,” because the material turned over to the District Court would go to the House Judiciary Committee. (This is not automatically the case. The President made the decision in March to give the House committee material he had given the Special Prosecutor, though perhaps as a practical matter he had no choice.) The White House brief also asserted that the dispute between the Special Prosecutor and the President is an intra-executive-branch dispute, in which the courts have no role, and, because of the impeachment inquiry, is a political matter, in which the courts should not intervene. The White House asked the Court, further, to review the grand jury’s right to name the President as an unindicted co-conspirator.

The Special Prosecutor argued that because of the congressional arrangements with the Attorney General he has independent authority; that the courts do have the right to decide this issue; that “the public purpose underlying the executive privilege for governmental deliberations precludes its application to shield alleged criminality.” The Special Prosecutor’s brief asked, “Shall the evidence from the White House be confined to what a single person, highly interested in the outcome, is willing to make available?”

Beneath all these nice, and important, legal arguments is a very tough political and legal struggle, being fought by some very determined people. The President does not want to give up those tapes. Leon Jaworski is determined to call him to account. It was Jaworski who suggested to the grand jury that, since the question of whether a President could be indicted was unsettled (and could therefore be tested, and could upset the entire proceeding against the cover-up), Nixon be named an unindicted co-conspirator, and that the information on which the grand jury based its conclusion that the President should be indicted be sent to the House Judiciary Committee. The naming of the President as an unindicted co-conspirator then became another weapon that Jaworski could use to make evidence involving the President admissible in the cover-up trial, and to strengthen his argument that the President should not have the privilege of withholding evidence.

There were questions about Jaworski when this prosperous and well-connected Texan, a former president of the American Bar Association, succeeded Archibald Cox as Special Prosecutor. The main question was whether he would be as independent as Cox or would be deferential to the office of the President. But the Special Prosecutor’s staff was still in place and had been gathering evidence, and it would have been difficult for any new Special Prosecutor to turn his back on it. And something seems to have happened to people who examined this case closely—some determination seems to have seized them. Beyond that, something else was working in the mind of Leon Jaworski: his experiences as one of the Nuremberg prosecutors. As he examined the evidence of what had taken place during the Nixon Administration, Jaworski came to believe—and he privately let some people here know that he believed—that there were some analogies between what had happened in Germany and what had happened here. He saw parallels in the way power is accrued, and the way the rights of individuals are undermined, and the way the public is apathetic until it is too late. The loss of freedom takes place incrementally and rather unostentatiously, he concluded; if it were attempted through a sudden great uprising, there would be great opposition, and it would fail. It begins, he came to believe, by small steps—by gradual erosion of the institutional safeguards. He felt that what Egil Krogh and Charles Colson said when they were sentenced indicated that it had begun to happen here—and how far it would have gone nobody knows. Both had talked of how the President’s interest was seen as being paramount—of greater importance than individual rights. What struck Jaworski in his experience in Germany, and stayed with him—and what he thought about, and talked about privately, as he proceeded as Special Prosecutor—was the seemingly inconsequential way that it began there, and how it grew, and also how the German people kept their eyes closed until it was too late. They were not bad people, he felt, but they had become indifferent to what was moral and right—had preferred not to think about it.

The Supreme Court chamber holds only about three hundred people. Those of us who do not regularly cover the Court have to rotate seats, and are placed behind the row of massive marble columns at the left side of the courtroom. If we as much as rise slightly from our seats to peek around a column to see which Justice is speaking, one of the superintendents sternly motions to us to be seated. If one is not an expert at distinguishing the voice of Justice Byron White from that of Justice Potter Stewart, there is a problem. Haldeman is here, and so is Henry Petersen. Haldeman is seated next to Mrs. Leon Jaworski. Representatives Railsback, Cohen, and McClory are here. A few members of the public who waited and waited in line are also here.

The Justices, in their black robes, listen intently as the arguments proceed; several rock back and forth in their chairs. At the far right of the dais where they sit is the empty chair of Rehnquist, who has excused himself from this case because of his former association with the Administration. The tall marble columns on both sides of the room, the marble walls, the floor of red-and-black marble, the burgundy carpets, and the burgundy velour drapes along both side walls and behind the Justices add to the majesty of this chamber. People sit here reverentially, hushed, as if they were in fact in a temple.

“If there is any one principle of law that Marbury v. Madison decides,” Jaworski says to the Justices, “it is that it is up to the Court to say what the law is.” We are back to that, and this case could be just as important. Jaworski stands there—the familiar shock of wavy white hair above the round face with the bulbous nose, and the dark-rimmed glasses. He is asserting his right to sue for the tapes, saying that the office of the Special Prosecutor “to some degree could be described as a quasi-independent agency.” Justice Stewart asks if Jaworski is arguing that “there is no right of executive privilege.” Jaworski responds that he is not, and says, “It has been traditionally recognized, and appropriately so, in a number of cases, as we see it. We do not think it is an appropriate one in this case. But, we certainly do not feel that it has any Constitutional base.” Powell, in his soft Virginia accent, asks, “Is it your view that there are no inferences to be derived from the doctrine of separation of powers?” Jaworski says that “the privilege” as recognized judicially may have been tied to a separation-of-powers doctrine but that “the separation-of-powers doctrine in the exercise of and calling for executive privilege has not been applied in a number of instances.” Jaworski goes on to say, “What it really narrows down to is a somewhat simple but very important issue in the administration of criminal justice, and that is whether the President, in a pending prosecution, can withhold material evidence from the court, merely on his assertion that the evidence involves confidential communications.” (The more narrowly the point is drawn, the easier it might be for the Court to decide in his favor.) Jaworski adds that, “painful as it is”—and he lowers his voice slightly as he says that—the grand jury’s finding that the President was to be named as an unindicted co-conspirator is “sufficient to show prima facie that the President was involved in the proceedings in the course and in the continuation of the particular conspiracy that was charged.” In order to get around the sticky problem of whether the Court must approve the grand jury’s finding of the President as an unindicted co-conspirator in order to find that the President must surrender the tapes, Justice Stewart takes Jaworski through a series of questions designed to separate the two issues. Even if that finding had not been made, Justice Stewart suggests, “you would still be here.” “That is right,” Jaworski says.

A Supreme Court oral argument is not, as many often expect, like a declamatory contest but is conducted more in the low-key style of reasonable men talking over interesting questions. The Justices have usually read the briefs, and they want to pursue with counsel the questions that trouble or interest them. There is an art to appellate arguing—it requires skills different from the pyrotechnics of convincing a jury—and this is the Wimbledon of appellate arguing. Counsel must be prepared to drop his line of argument, answer the Justices, perceive what is troubling them, and refashion the argument to deal with what is in the Justices’ minds. Today, the Justices have clearly read the briefs and have undoubtedly discussed the issues with their clerks, and they are particularly active in asking questions. Jaworski is not conspicuously good at dealing with this form of courtroom argument, and St. Clair is only slightly better. They have not trained for it. But this case will be decided on the issues, not on the style of the argument. Sometimes the Justices help the counsel out of a difficult spot; sometimes they make a point by way of asking a question. Both Jaworski and St. Clair are in business suits. (I remember seeing Archibald Cox some years ago, as Solicitor General, arguing here in a swallow-tailed coat. Government attorneys usually wear swallow-tailed coats when they argue here, but Jaworski has chosen to wear a suit today as an illustration of his point that he is not a member of the executive branch.)

St. Clair, slightly stout and in a blue suit, talks about the “co-pendency” of the impeachment inquiry and about the value of the tapes to that inquiry.

Justice Thurgood Marshall observes, “I don’t know what is in the tapes. I assume you do.”

“No, I don’t,” St. Clair responds.

“You don’t know, either?” says a puzzled Justice Marshall. “Well, how do you know that they are subject to executive privilege?”

St. Clair, speaking more forcefully than Jaworski, says that they are subject to executive privilege because “there is a preliminary showing that they are conversations between the President and his close aides.” St. Clair takes off and puts on his glasses as he speaks, and refers to Jaworski as “my brother.” (All lawyers are “brothers” at the bar.) St. Clair argues that there are only three branches of government, and that the President is “the chief law-enforcement officer,” adding, “He shall take care to see that the laws are enforced. The executive power is vested in him, in one man.”

Justice Stewart, who usually votes with the conservative bloc, says, “Your argument is a very good one as a matter of political science, and it would be a very fine one as a matter of Constitutional and probably statutory law—except hasn’t your client dealt himself out of that argument by what has been done in the creation of the Special Prosecutor?”

All this makes one wonder whether a President in trouble would ever again establish a Special Prosecutor. St. Clair argues that the President is the prosecutor, and that only he can decide what material is needed. “If anything, a decision in this case against the President would tend to diminish the democratic process,” St. Clair argues. He continues, “This President ought not to have any less powers than any other President ought to have,” and he says, “One of the necessary results as I view them from my brother’s argument is that because of the circumstances of this case, Richard Nixon is, let’s say, an eighty-five-percent President, not a one-hundred-percent President. And that can’t be, Constitutionally. The framers of the Constitution had in mind a strong Presidency.”

St. Clair is doing his best, using his wits, but he has a difficult argument to make. He served as a staff assistant to Joseph N. Welch, the special Army counsel at the McCarthy hearings in 1954. A member of a highly regarded Boston law firm, he went to work for Nixon in January, and now he is here. Gray-haired and gap-toothed, St. Clair is more portly than he appears on television. One often wonders what he really thinks. Other lawyers tell me they would insist upon seeing (or hearing) their client’s best evidence, even if the client were the President. How has he felt in serving not just as the President’s lawyer but also as his public-relations man? How does he really feel about making the circular argument he is making here—that the Special Prosecutor has not shown that the tapes are relevant to the case, and that the Prosecutor cannot show that the evidence he seeks is relevant, because he doesn’t know what is in the tapes?

Justice Powell, whose conservative philosophy embraces a feeling for the preservation of institutions, is the focus of much attention today. Powell has a good mind, and will be influential with the Court in this case. And so it is noticed in this courtroom when Powell asks, “What public interest is there in preserving secrecy with respect to a criminal conspiracy?”

St. Clair says, “The answer, sir, is that a criminal conspiracy is criminal only after it’s proven to be criminal.”

It is also noticed when Chief Justice Warren Burger, Nixon’s appointee, asks if Judge Sirica couldn’t screen the tapes, to withhold parts that are irrelevant or involve sensitive material.

Philip Lacovara, a thirty-year-old attorney in the Special Prosecutor’s office, mustachioed and wearing steel-rimmed glasses, makes the rebuttal argument for the Special Prosecutor’s side. Lacovara, who has served in the Solicitor General’s office, knows how to deal with this court. He takes the Justices’ spoken concerns, and points that St. Clair may have scored, and weaves them into a flowing argument for his side of the case. Responding to Justice Powell’s concern that this case might set a precedent for other grand juries to name a President as an unindicted co-conspirator, and so might give “a politically motivated prosecutor … a rather far-reaching power,” Lacovara concedes that this could be a problem but argues that “grand juries usually are not malicious” and “even prosecutors cannot be assumed to be malicious.” He goes on, “We have a resilient society, where people can be trusted to sort out truth from falsehoods. … And I think the inherent dignity of the Presidential office on any incumbent provides him with a notable check against being defeated, or, as my colleague says, impeached by the action of a grand jury.” He says, “This is perhaps the most notorious event—notorious case—in recent times.” He says, “The President has not been displaced from office—he still is President, he still functions in accordance with his Constitutional powers.” A subpoena is “a traditional, ordinary, prosaic remedy,” he says, for “a trial that was brought to a head without regard to the impeachment inquiry.” And he argues that the fact that there might be political consequences should not prevent a court ruling—that that argument would have prevented the court from deciding Marbury v. Madison. He cites the late Justice Felix Frankfurter, and he even manages to cite Rehnquist. He cites momentous decisions by the Supreme Court over the years, and says that in those cases “the Court understood its duty to interpret the Constitution.” He continues, “That’s all we ask for today. And we submit that this Court should fully, explicitly, and decisively”—he pauses, and then adds—“and definitively” uphold Judge Sirica’s order that the tapes be produced.

Courtroom 6 of the United States District Court House, on Constituion Avenue, a short distance from Capitol Hill. The second courtroom of the day—the décor plainer and the proceedings more routine. But this afternoon John Ehrlichman is on the stand. Once, he was in virtual charge of the government. Now he is on trial here for his role in the break-in at Dr. Fielding’s office. Ehrlichman, forty-nine, is wearing gold-rimmed aviator-style glasses, which seem new, and he is tanned and looks a bit heavier than when he was in power. But he has the same sure, confident style as before. He juts his chin forward and nods as he says, “Yes, sir,” or corrects William Merrill, the Associate Special Prosecutor, who is trying this case, or even chastises Merrill. (“You have generalized from the specific; and I’ve watched you do it.”)

Merrill, a fifty-one-year-old attorney from Detroit, is low-key, undramatic, and unruffled. He has wavy graying hair and wears dark-rimmed glasses; a Midwestern accent is detectable in his quiet voice. He reads from papers atop a briefcase atop a table, sometimes pausing at length between questions. Each man, in his own way—Merrill’s unassuming, Ehrlichman’s confident—is performing for the jury, the six men and six women who are the regular jurors, and who sit, with their six alternates, in the box on the left. Nine of the regular jurors are black. Ehrlichman’s chief attorney is William Frates, a middle-aged man with wavy hair and a Southern accent—Bebe Rebozo’s attorney. (Ehrlichman has dropped John J. Wilson, who continues to serve as Haldeman’s attorney.) Ehrlichman has also retained two black attorneys for this trial.

The arrangement in this courtroom is like a scene from Separate Tables. Ehrlichman’s table is in the front. Behind it is a table where two other defendants, Bernard Barker and Eugenio Martinez, are seated with their attorneys. Martinez is slight, with curly gray hair and olive skin, and is nattily dressed. It has recently been reported that in connection with his various C.I.A. activities Martinez participated in some three hundred break-ins. Bernard Barker has a seedier look; he is stumpy and wears thick, tinted glasses. These historic figures—veterans of the break-ins at the Watergate and at Dr. Fielding’s office—are suddenly very human-looking, not very interesting, and rather sad. Last week, Howard Hunt testified here that when he hired them for the Ellsberg break-in he told them it was an operation against a “traitor” to the country.

At a third table, off to the right, is Gordon Liddy. Liddy has a prison pallor, dark hair, and a dark mustache. His eyes dart about a lot, and he takes many notes. One wonders about the silent Liddy: what he knows, what he did, why he is keeping quiet. Judge Gesell’s pinkish face is slightly rounder than it appears in photographs, and his glasses sometimes slip down his button nose. Ehrlichman is charged with, among other things, lying to the grand jury when he said he did not know that before the break-in the C.I.A. had been asked by the White House plumbers to prepare a psychological profile of Ellsberg. (The profile said that Ellsberg had acted out of patriotic motives in leaking the Pentagon Papers, so the C.I.A. was asked to prepare another psychological profile. The second profile said that the leaking of the Pentagon Papers was an “act of aggression” against his father, against Lyndon Johnson—whom he identified with his father—and against his analyst.) Ehrlichman is asked about the memorandum in which Egil Krogh and David Young, the directors of the plumbers, proposed “a covert operation … to examine all the medical files still held by Ellsberg’s psychoanalyst”—the memorandum that Ehrlichman initialled, adding the notation “If done under your assurance that it is not traceable.” This memo is one of several “overt acts” cited in the indictment.

Today, Ehrlichman says that he did not explore the “philosophical or deeper meaning” of the word “examine.” Ehrlichman also says, “I was simply reasserting our understanding that these people would not be identified as White House people.”

Ehrlichman says that when Krogh told him of the break-in, Krogh said that Hunt and Liddy or people obtained by them had gone into Dr. Fielding’s office to get Ellsberg’s psychiatric records, that they hadn’t found them, that they had attempted to mask what they had done by tearing up the place to make it look as if a burglar had been after drugs. (Krogh has said that he and Ehrlichman were upset when they saw pictures of the damage that had been done to Dr. Fielding’s office; it has never been clear whether their perturbation was over the break-in or over the damage.) Ehrlichman says that he told Krogh, “It was incredibly bad judgment.”

Liddy grimaces.

And then Merrill asks Ehrlichman a series of questions in rapid succession:

“Did you ever report this to the Beverly Hills Police Department?”

“No.”

“Did you ask Mr. Krogh to report it to the Beverly Hills Police Department?”

“No, I certainly didn’t.”

“Did you instruct Mr. Krogh to write a memorandum about it and how it had all happened?”

“No, I didn’t.”

“Did you write a memorandum about it?”

“No.”

“Did you advise the Department of Justice about it?”

“Did I? No, I did not.”

Merrill asks Ehrlichman if after that Labor Day weekend in 1971, when the break-in occurred, Ehrlichman informed the President of what happened.

“I discussed it with the President.”

“When?”

“In March of 1973.”

It is steaming hot outside this afternoon; the temperature is in the nineties, and we are having our first air-pollution alert of the summer.

The Dow-Jones average declined twenty-one points today—to its lowest point in three and a half years.

Charles Colson went to jail today. Asked what reading material he was taking, he replied, “I have a couple of editions of the Bible with me. That’s all.”

JULY 9

The partisan lines within the Judiciary Committee are said to be “hardening.” The talk is that the “drift” is against the committee, against impeachment by the House, and perhaps even against a committee vote to impeach. The Southern Democrats—particularly Flowers—are said to be uncertain about how they will vote. Barbara Jordan, Democrat of Texas, is said to be uncertain. There are other things— whitecaps, perhaps—strengthening the sense that the current is against definitive action by the committee. What Democratic leaders fear most is a partisan vote for impeachment. There is even some thought among Democrats—not well formed yet, but there—of having the President censured rather than impeached. Around Washington, one is aware of a growing doubt—even among those who have favored impeachment—whether it is worth it all anymore. There is a growing fatigue with the whole thing. There is an increasing desire to turn it off—if the people who wish to could only figure out how. The extent to which the diminished interest in seeing it through is fed by fears of failure is not clear, because people do not express those fears very much. But they are there. Many people feel that it would be worse to lose this fight than not to go through with it. To lose this fight might be to condone the Administration’s actions, and to vindicate Nixon. (An aide has said that Nixon would be “magnanimous” if he was vindicated. The transcripts leave another impression.) Some of the fears may result from the realization that decisions of great moment are almost upon us. Decisions are going to be made this summer which will determine what kind of country this will be far into the future.

It is not surprising that many of the Judiciary Committee members are, or appear, indecisive. The decision they face is a formidable one. Moreover, it is in the nature of the political mind—most such minds, at least—to put off the big decisions. The political mind is opportunistic, rides the wave of the moment, avoids the difficult decisions until they must be made. With luck, they may not have to be. The Democrats fear a partisan proceeding. The fears of the Republicans are more complex. The fear of that supposed twenty-five percent of the Party who are diehard Nixon supporters doesn’t quite explain it. I talked today with an important Republican who is in touch with members of various segments of the Party. He predicted that impeachment would fail in the House.

I asked what had become of the Republicans’ desire to have Nixon out of office.

He said that there was a big difference between wishing the President out of office and voting to impeach him—“a one-hundred-and-eighty-degree difference.” A Republican member of Congress who voted to impeach, he explained, would have to spend a great deal of time during his reëlection campaign explaining the vote. If he voted against impeachment, the Republican candidate could say that the evidence was not sufficient, and then he could get on with talking about other issues. This man said that the estimate that twenty-five percent of the Republican voters are unyielding in their support of Nixon is probably too high. He added that Republican politicians like to inflate this figure and exaggerate the amount of mail they receive, so that people will be impressed by the difficult spot they are in. The amount of mail that the politicians are receiving on this issue is not all that high, he said. However, he said, it would not take very many Nixon supporters to give a Republican who had voted for impeachment a hard time. All that would be needed would be two or three people at each political meeting raising questions, making the candidate defend his vote. Politicians know that, he said.

Furthermore, this man explained, Republican leaders across the country—such as the county chairmen—are by no means united on the question of whether it would be preferable for Nixon to leave office. Some do not want Ford as the incumbent in 1976, because they are for Rockefeller, or Reagan, or want to stay loose. Rockefeller has been travelling about the country cultivating local Republican leaders. For Republican leaders, the 1976 nomination is the highest stake. Therefore, he went on, there are many Republican leaders who, in pursuit of the longer-range goal of the 1976 nomination, would not mind—as the specifically affected members of Congress would—Republican congressional losses in November. In fact, he said, there are those Republicans who would not mind at all if in the next two years there was an overwhelmingly Democratic Congress, on which to place much of the blame for whatever goes wrong.

There is another factor in the county chairmen’s minds, this man said. Many perquisites can flow from the party in power, and the person who is in power can determine the course of that flow. Given the right flow, the county chairman can be the one to parcel out such attractive and lucrative federal largesse as the designation of who will do the Federal Housing Administration or Veterans Administration home-loan closings in that area. These perquisites are of more value to the county chairman than such things as federal judgeships, this man explained. Right now, with CREEP demolished and the President clinging for dear life to what remains of his Party support, the county chairmen are doing rather nicely in obtaining such benefits through the Republican National Committee. A new President might—as most Presidents have done in the past—establish his own structure for consolidating power within the Party, with federal largesse as an instrument.

This man, who knows Nixon, said that the President would never resign. He said that he had never met anyone in politics who was as tough as Nixon. He suggested that this might be because Nixon had such a difficult early life—a harder life, this man said, than any other President he could think of. The difficulties of Nixon’s early life—the poverty, the tuberculosis-stricken brothers, the father’s business failures—had, he said, made the President incredibly disciplined, tough. Trouble can affect people in different ways, and the way it seems to have affected Nixon is to have given him a very hard shell. Said this man, “He is not bothered by things that would get to other men. There is no group he would listen to. No group. No one. Not his wife. Not Bebe. No one. He doesn’t read the messages sent to him in the press. God, he’s tough!”

It seems possible as of now that the White House is getting through to the people—that its repeated attacks on the Judiciary Committee, its assertions that its problems have been brought about by the “media” are sinking in. This period makes one think about where public relations ends and propaganda begins.

JULY 10

The committee’s version of the transcripts of eight conversations which have already been released by the White House shows the President saying on March 13th, in response to his own question as to whether it was too late to “go the hang-out road,” “Yes, it is.” The White House version did not have any answer. The committee version shows the President saying, “The hang-out road’s going to have to be rejected. I, some, I understand it was rejected.” The White House version of this was “The hang-out road (inaudible).” On March 21st, according to the committee version, the President says about Hunt’s demand for money, “We should buy the time.” The White House version had the President saying, “We can buy the time.” The committee transcript has the President referring to the possibility that Hunt may “squeal.” The White House transcript doesn’t. The committee transcript also shows that on March 22nd (the meeting in which the President and his aides discussed the nature of the “hang-out”—whether it would be, as Haldeman and Dean described it, a “limited hang-out” or, as Ehrlichman suggested, a “modified limited hang-out”), when the President instructed Mitchell to “stonewall,” he went on to say, “On the other hand… I would prefer, as I said to you, that you do it the other way. And I would particularly prefer to do it that other way if it’s going to come out that way anyway.” But then the President also said, “But that’s, uh, you know, up to this point, the whole theory has been containment, as you know, John.” In the White House transcript, the President, discussing the appearance of some of his aides before the Watergate grand jury, said, “But you can say I don’t remember.” In the Judiciary Committee version, the President says, “Just be damned sure you say I don’t remember.”

Yesterday, Ron Ziegler accused the committee of having embarked upon a “hypoed public-relations campaign.”

JULY 12

The amount of material with which we are being bombarded now is simply getting out of hand. The Judiciary Committee has released the first eight of eighteen beige-bound volumes of evidence, and today three fat green-covered volumes constituting the final report of the Ervin committee arrive. The Judiciary Committee volumes, entitled “Statement of Information,” lay out the case the way Doar did before the committee: statement of fact and supporting evidence following statement of fact and supporting evidence. The first eight volumes cover the Watergate break-in and cover-up. The Ervin-committee report is for release on Sunday.

The Judiciary Committee’s presentation begins with memos from Gordon Strachan, Haldeman’s deputy, about the fact that “Operation Sandwedge,” a plan to form a covert intelligence unit through a private security organization to be established by John Caulfield [and to include Rose Mary Woods’ brother, Joseph, a former Sheriff of Cook County, Illinois, and a former F.B.I. agent], had fallen through, and mentioning that “The Attorney General discussed with John Dean the need to develop a political intelligence capability,” and that Gordon Liddy, who had been working in the White House, would become general counsel to the Finance Committee to Re-Elect the President, and would “handle political intelligence as well as legal matters. Liddy will also work with Dean on the ‘political enemies’ project.” In his Dictabelt recording about the meeting on March 21st, the President said, “The, uh, very great danger [is] that somebody like H-Hunt is going to blow.” The President also told the Dictabelt: “I learned for the first time that, uh, Ehrlichman apparently had sent Hunt and his crew out to check into Ellsberg, uh, to see something about his, uh, check something about his, uh, uh, psychiatric problem with his doctor, or something like that. That seemed to me to be a very curious junket for, uh, Ehrlichman to be involved in.” The President has said that he was told about this for the first time on March 17th, and the transcripts show him discussing the Ellsberg break-in with Dean on that date. This Dictabelt was volunteered to the court by the President when the White House said that the Dictabelt of another meeting with Dean was missing.

On a CBS News Special Report last night about the newly released committee evidence, Ron Ziegler said that “to release all the material dribble by dribble … in my view manipulates public opinion.” Said Ziegler, “One reason why I can spot a public-relations campaign is I know one when I see one.”

John Ehrlichman was found guilty today of conspiracy and perjury in connection with the break-in at Dr. Fielding’s office. Barker, Martinez, and Liddy were also found guilty of conspiracy.

I wondered what impact the release of all the material was having on House members. The moderate Republican told me, “None. Zero. Nobody really understands it. Nobody but the committee has taken the time to listen or read. Around here, it’s the same old refrain: they want to wait until the committee makes its recommendations. When I read in the papers about the comparative transcripts, I nearly jumped out of my skin, but I came down here and found people yawning. There is a feeling that the moment of truth is not here yet. We have given our proxies to the Judiciary Committee. The whole issue still seems kind of remote. It’s strange and it’s scandalous; it’s sort of as if we had parked our morals on some obscure shelf.”

JULY 14

Sunday. On Friday, when the Ervin committee met with the press for the last time to distribute its report, Sam Ervin, referring to the fact that in the light of the House Judiciary Committee’s consideration of impeachment the report refrained from drawing ultimate conclusions about whether the President had carried out his Constitutional responsibilities in an acceptable manner, said, “There are two ways to indicate a horse. One is to draw a picture that is a great likeness. And the other is to draw a picture that is a great likeness and write under it ‘This is a horse.’ We just drew the picture.”

The report raised again a question that we had almost forgotten, and one that the House Judiciary Committee, for its own reasons, is treating only peripherally—the question of whether in 1972 we had a genuine election. Ervin, in a section of the report setting forth his own separate views, wrote that the first objective of the “various illegal and unethical activities” studied by the committee was “to destroy insofar as the Presidential election of 1972 was concerned the integrity of the process by which the President of the United States is nominated and elected.” The report covered the extensive intelligence-gathering by the Administration, beginning soon after Nixon’s inauguration in 1969 (the committee has also found that John Caulfield and Anthony Ulasewicz, the private White House detectives, carried out some seventy investigations); it said that the Watergate break-in had to be seen in the context of other White House activities, including the Huston plan and the plumbers; it spoke of the “misuse of large amounts of money, especially difficult-to-trace cash that was held in secret places in the White House and elsewhere”; it talked of the use of the I.R.S., the F.B.I., and the C.I.A. for political purposes (it said that the I.R.S. was “a preferred target of the White House staff in its attempts to politicize independent agencies”); it mentioned the “Responsiveness Program,” in which there was an attempt to shape the activities of departments and agencies in ways that would help the President’s reëlection; it dealt with milk and with the sale of ambassadorships; it alleged that some money that Rebozo had sworn was turned over to the Nixon campaign committee was actually diverted to pay for improvements on the Nixon properties (including a swimming pool and a new roof extension) and to buy a pair of platinum-and-diamond earrings (costing $5,650) for Mrs. Nixon.

Among the proposals that the Ervin committee made was one for the establishment of a permanent “public attorney,” to be appointed by the judiciary and confirmed by the Senate. The committee also recommended curbs on intelligence-gathering activities in the White House, prohibition of the examination of tax returns of others by anyone in the executive office, prohibition of wiretapping without court orders, and a number of new regulations covering campaign activities.

And so this committee, which in its fumbling way fixed in the public mind an indelible picture of abuse of power, has gone out of business, and left the country an agenda worth thinking about. The question is whether the people and the politicians will want to think about it.

After meeting with the President at San Clemente yesterday, Vice-President Ford said that there is a “possibility” that the Judiciary Committee may vote to impeach the President but that he does not consider the committee to be reflective of the House, and that he felt “strongly” that the House would reject impeachment, because “the preponderance of the evidence favors the President.”

JULY 18

Commenting on Charles Colson’s elusive testimony before the Judiciary Committee this week, Caldwell Butler, the Republican from Virginia, said, “He seems to be trying to be candid, but he hasn’t had much experience in that area.” Kalmbach’s testimony this week about how the dairy representatives had had to reaffirm their two-million-dollar commitment—in a midnight meeting with Kalmbach and Murray Chotiner at the Madison Hotel here—before the price-support increase was announced was said by several committee members to have been very damaging. Although the committee is not expected to include the milk episode in its list of charges, Kalmbach’s testimony seems to have contributed to a darkening picture in many members’ minds of the way business was conducted in the White House. Trent Lott, the Mississippi Republican, who is a strong supporter of the President, remarked that Kalmbach’s testimony gave “more of an impression … that there was some sort of understanding.” Lott added, “I’d just as soon he hadn’t said some of the things he said.” Kalmbach told the committee of arrangements with three people for contributions in exchange for ambassadorships. Of that testimony, Lawrence Hogan, the Republican from Maryland, said, “This is the most damaging stuff I’ve heard yet.”

Many of the witnesses, it may be remembered, were called at the behest of St. Clair, and the Democrats feared a display of them on television. (Rodino achieved the trade-off of closed hearings in exchange for calling all the witnesses on St. Clair’s list. One of these—Haldeman—refused to testify.) But if those witnesses were supposed to somehow demolish the case against the President, they have apparently failed to do so. One Democratic member thinks that perhaps the witnesses who might have helped the Administration fell flat because they had nothing new to say. As for Dean, whose questioning by St. Clair yielded little, the member said, “Dean knew exactly what he was going to say. He has been saying it for a long time.” Dean remained cool and poised, and impressed the members with what appeared to be a good memory. Robert McClory said, “He has done very well in the face of very skillful cross-examination. He was a damaging witness as far as the President was concerned.”

In this, the last week before the committee begins consideration of the articles of impeachment, the tension and the frayed nerves have been even more apparent—and so have the theatrics. One can hear the tension in the voices of the committee members, and even of the usually polite members of their now overworked staffs. The committee has been meeting evenings. Last night, a committee member I had called returned my call at ten-forty-five—he had just returned home after the committee recessed—and said, “I haven’t signed any mail. I haven’t done a damn thing. We get only a half hour for dinner now. Everybody is kind of on edge now.” On Tuesday, Charles Wiggins told reporters that he expected all the committee Republicans to vote against impeachment. Some Republicans (and committee staff members as well) interpreted this as a form of pressure and went into a state of high dudgeon. Railsback told reporters that he and “at least” three other Republicans—Cohen, Fish, and Butler—would remain undecided until they heard St. Clair’s and the committee lawyers’ final arguments. Cohen asserted that Wiggins was not speaking for him. McClory told reporters that he wanted to be on the undecided list, too. (Some skeptics thought that this was because the Republican “undecideds” are now the center of attention—might even be on the cover of next week’s Time.) McClory told reporters he was troubled by the fact that “so many of those who were in the White House are now in jail or have completed their terms or are awaiting sentence.” Said McClory, “There was obviously wrongdoing taking place right under the President’s nose, and I’m very concerned. Is that any way to run a White House?”

While Albert Jenner conducted the questioning of Kalmbach, John Doar remained in the inquiry-staff offices writing his summary of the case and continuing to prepare articles of impeachment. Doar wants to show the committee the patterns now—to get across such things as the Administration’s pattern of establishing deniability. What one staff aide calls “the consciousness-raising sessions”—briefings of committee members by staff members—are taking place in the mornings and at night. Doar has had sessions with Flowers, Mann, Ray Thornton (Arkansas Democrat), and Barbara Jordan. Mann and Flowers are said to be especially uncertain. Doar has shown Mann the articles—referred to as the R (for Rodino) articles—that will be placed before the committee; the other members of the committee have not seen them. Rodino has had talks with Thornton and Flowers. Some Democratic members, including Elizabeth Holtzman, Jack Brooks, and Don Edwards, have prepared articles. Paul Sarbanes (Maryland Democrat) has prepared a sort of outline of the case, covering a spectrum of misbehavior, including the number of times the President has lied to the public about the events that the committee has been looking into. Ad-hoc strategy meetings of Rodino and other Democrats take place just before committee meetings, or on the House floor during votes.

Some of the Republican “undecideds” have been talking among themselves. Cohen and Butler, who sit next to each other in committee meetings, have been talking over the case during the hearings. Cohen and Railsback have gone out to dinner twice this week, and once Charles Sandman joined them. Last Sunday, Cohen and Fish met at Cohen’s house with Richard Cates, the inquiry-staff expert on the cover-up, and three members of the minority staff. Some members noticed a different, tougher tone in Hogan’s questioning of Kalmbach last night.

On Tuesday, Republicans asked Jenner to draw up a summary replying to Doar’s and making the arguments against impeachment. Jenner refused, saying that his role was to provide “a professional opinion to a client, which is the entire committee.” He told reporters that what he was doing was part of a Constitutional process, involving the highest privilege in the Constitution—impeachment—and that what was called for was the judgment of a lawyer with a professional responsibility to the committee and to the people.

St. Clair presented his final argument against impeachment to the committee today, saying that no case had been made against the President on any of the charges. And he offered an excerpt from a transcript of a conversation of March 22nd—the tape of which was subpoenaed by the committee and refused by the President. The excerpt quoted the President as saying, “I don’t mean to be blackmailed by Hunt—that goes too far.” St. Clair told reporters that elsewhere in the meeting the President “indicated it would be right to pay money to Hunt for humanitarian purposes.” Which doesn’t seem to help the President’s case.

The volumes of the committee’s evidence have continued to pour forth this week. They tell of White House pressures on the I.R.S. to audit a list of McGovern supporters, to place Caulfield and Liddy in sensitive I.R.S. positions, to create tax problems for Lawrence O’Brien when he was chairman of the Democratic National Committee—all of them pressures that, according to affidavits supplied by two former I.R.S. commissioners, were resisted. The committee says that the President met with Haldeman and Dean on September 15, 1972, to discuss “taking steps to overcome the unwillingness of the I.R.S. to follow up on complaints,” and Dean has said that he discussed the O’Brien case with the President. The committee evidence also shows that Ehrlichman complained to I.R.S. Commissioner Johnnie M. Walters, when Walters reported that he considered the O’Brien case closed, “I’m goddam tired of your foot-dragging tactics.” (The Ervin committee had quoted Ehrlichman as saying in executive session, “I wanted them to turn up something and send [O’Brien] to jail before the election, and unfortunately it didn’t materialize.”) And that Haldeman invoked the President’s name in asking another White House aide to obtain information from the I.R.S. about the tax problems of George Wallace’s brother Gerald, which was then leaked to Jack Anderson, the columnist. And that Mitchell, while he was Attorney General, apparently passed on ambassadorships. (“Concerning ambassadorships,” Gordon Strachan wrote to Haldeman on December 2, 1971, in one of several memoranda about how the 1972 campaign would be organized, “Kalmbach will get a case by case determination from the Attorney General.” In another memo, Strachan wrote that two donations “should be returned, since the European commitments cannot now be met.”)

The committee evidence also contains memoranda indicating that Kissinger was concerned about news leaks in 1969 and asked Hoover if he could make an effort to find where they had come from, and that this was followed by a visit to the F.B.I. by Haig, then Kissinger’s deputy, who proposed names of people to be tapped, and that shortly thereafter Kissinger went to the F.B.I. offices to read the logs of the taps. It shows that subsequently the President, Kissinger, Haldeman, and Ehrlichman received reports on the taps. It shows that Haldeman later requested the reinstitution of a tap of a member of the National Security Council. It states that none of the members of the National Security Council who were tapped were found to have been the source of the leaks that perturbed their superiors, nor were the other tapped White House staff members found to have leaked classified information. It shows that the President ordered the tapping of a television commentator. (Mitchell also requested physical surveillance of the commentator but was dissuaded by the F.B.I.).

Not all of the taps were carried out through the F.B.I.: John Ehrlichman directed Caulfield to have a tap placed on the phone of columnist Joseph Kraft, and we have already learned that the Secret Service tapped the President’s brother, Donald. The committee evidence indicates that the F.B.I. tapping program was terminated in 1971 at the insistence of Hoover. (One reason suggested for this particular timing was that Hoover was about to testify before Congress and customarily preferred to give a low figure for the number of taps that were being maintained.) The evidence also shows that about January, 1970, Ehrlichman, apparently referring to the use of information that the committee said was “contained in one of the summaries of the 1969-71 wiretaps to be used in connection with political action in opposition to persons critical of the Administration’s Vietnam policy,” wrote in a memo to Haldeman, “H. This is the kind of early warning we need more of. Your game planners are now in an excellent position to map anticipatory action.”

The President is in San Clemente.

JULY 19

John Doar summarized the case against the President before the Judiciary Committee today. He said, “Reasonable men acting reasonably would find the President guilty.” Speaking with unaccustomed passion, Doar talked of the President’s “enormous crimes,” and said that he could not remain indifferent if President Nixon or any other President committed “the terrible deed of subverting the Constitution.” Jenner supported Doar’s argument, and told the committee members that they had an obligation to live up to the ideals of the nation’s founders and to determine “whether that country and that Constitution are to be preserved.” In addition to the written summary of the case, Doar submitted several sets of articles of impeachment, of which one set, the work of Doar and the staff, contained four articles—the R articles. They would impeach the President for the cover-up; for “a pattern of massive and persistent abuse of power for political purposes involving unlawful and un-Constitutional invasion of the rights and privacy of individual citizens of the United States,” including the break-in at Dr. Fielding’s office, unlawful surveillance and wiretapping, and attempted use the I.R.S. for political purposes; for failure to comply with the committee’s subpoenas; and for the “fraud” of backdating the deed of his Vice-Presidential papers for the purposes of taking tax deductions.

The article on taxes is a surprise, but Rodino and his staff feel that the tax issue is an “attractive” one, and also one that, since the Special Prosecutor is now looking into the matter of the President’s taxes and finances, should be kept alive until the case reaches the Senate. The tax article says that other investigations—by the I.R.S. and the Joint Committee on Internal Revenue Taxation—were thwarted “solely by reason of the fact that Richard M. Nixon was President of the United States and that impeachment proceedings against him had been instituted.”

A second set of articles, also drafted by the staff, makes similar charges against the President, each article charging that the actions were in violation of the President’s oath of office and his “duty to take care that the laws be faithfully executed.” The staff has still other drafts, which it has not submitted. And articles drafted by members have been submitted. The idea now is to put articles before the members, for them to talk about and think about over the next few days, and see what sort of consensus might arise. The committee will meet again tomorrow—Saturday.

On television tonight, Ron Ziegler, at San Clemente, is clearly much upset. He looks stung. He calls Doar a “partisan ideologue,” who has been proceeding in a “partisan, duplicitous, false way.” Ziegler says that there is no justification for the fact that the articles were drawn up before all the evidence was presented, and that Doar has proceeded as if he were operating “a kangaroo court.”