It was Saturday, October 20, 1973, and President Richard Nixon had just fired the Watergate special prosecutor Archibald Cox. In a dramatic flexing of executive muscle, Nixon also ordered the Federal Bureau of Investigation, a part of the Justice Department, to seal the office of the Watergate Special Prosecution Force.
“We can’t do that,” said FBI agent Angelo Lano when FBI brass relayed the order at about 8:00 P.M. from the White House. For sixteen months, Lano had been heading up the Bureau’s investigation of the break-in at the Democratic National Committee headquarters in the Watergate office complex. After Cox’s appointment in May 1973, the FBI had also been assisting the Watergate prosecutor. Lano and his team of investigators had already concluded that President Nixon was implicated in a cover-up. “That man’s going to jail,” Lano told his boss. “You don’t want to do this.”1
But Lano and a second FBI special agent dutifully went over to the special prosecutor’s headquarters.
“Traitor!” the lawyers who were still working in the office yelled at Lano.
“Look, I don’t want to be here,” replied the embarrassed FBI agent. “Do me a favor, lock your doors, lock the safes, just close everything up. We’ll mind our business….And if you continue working, fine, but don’t take anything out tonight.” Lano had no desire to get the FBI mixed up in what was clearly an effort by Nixon to obstruct the prosecutor’s valid criminal investigation.
The FBI takeover was televised to a shocked nation. In Texas, a former prosecutor from World War II and the future Watergate special prosecutor, Leon Jaworski, thought he was viewing a newsreel from Nazi Germany.2
“Everybody in the world was angry,” recalled Lano, who never believed he or the FBI should have been ordered to stop the independent investigation of a president.3
The impeachment of Richard Nixon doesn’t begin with a break-in; it begins with a reckless and very public abuse of executive power on a Saturday night in October 1973. Since May 1973, Archibald Cox and the Watergate Special Prosecution Force had been investigating illegal activity by the Nixon administration, most notably links between the president’s reelection campaign and the Watergate break-in in June 1972. In July 1973, Cox learned that Nixon had been secretly recording conversations in the White House since 1971. He sought the tapes for the evidence they might hold, and in doing so he posed a mortal threat to the Nixon presidency. The president knew better than almost anyone in his White House that his political future depended on no law enforcement official getting access to his White House recordings.
As Cox waged an increasingly successful court battle over access to ten recorded conversations, Nixon began scheming how to get rid of him before the issue reached the U.S. Supreme Court, where Nixon thought he might lose. “I’m going to clear the decks,” an enraged president vowed to his top aides.4 These aides, especially his chief of staff, Alexander M. Haig, Jr., had repeatedly talked Nixon off this political ledge. By October 20, after the White House floated a “compromise” that would involve giving the special prosecutor edited transcripts to be verified by an elderly Southern Democratic senator, John Stennis, which Cox refused, even Haig believed there was enough political cover to proceed—Cox’s firing would now be a consequence of his own intransigence rather than Nixon’s obstinacy and obstruction. Nixon ordered Attorney General Elliot Richardson to fire Cox and close the Watergate probe.5
The drama of what ensued—a series of events that became known as the Saturday Night Massacre—magnified Nixon’s political miscalculation. Neither the attorney general nor the deputy attorney general, William Ruckelshaus, would fire Cox. Instead each resigned, arguing the special prosecutor had done nothing to warrant his removal. The third man in the hierarchy at Justice, Solicitor General Robert Bork, who was now acting attorney general, agreed to fire Cox. Then Nixon poured more fuel on the fire. Through Haig he ordered Bork to send the FBI to seal the offices of Cox’s team and of Richardson and Ruckelshaus.
With that, Nixon pushed America across a psychological line. Until the night of October 20, the American political class and the country’s media elite, let alone most Americans, were not seriously considering impeachment, despite living for more than sixteen months with the Watergate scandal. Since the summer of 1972 the public had learned about corrupt activities on the part of Nixon’s lieutenants—a dirty tricks campaign involving a young Roger Stone, the hiring of private detectives to dig up dirt on Senator Edward Kennedy, a program of wiretapping White House aides and newsmen, an “Enemies List” of political adversaries to be targeted by the Internal Revenue Service, and a domestic covert operations team (“the Plumbers”) that had broken into the office of the psychiatrist of Daniel Ellsberg, the country’s most celebrated whistle-blower. All of this was dismaying, but with the exception of testimony by one White House insider—former White House counsel John W. Dean—there was no publicly available evidence linking Richard Nixon himself to what former attorney general John Mitchell called “the White House Horrors.”
With the lone exception of liberal congressman Rev. Robert Drinan, a Jesuit priest from Massachusetts, Democrats had stayed away from advocating the impeachment of Nixon for the scandals swirling around his administration, despite controlling both houses of Congress and generally detesting the man. Senator Kennedy reflected the thinking of many in the congressional leadership when he told his sister privately that “a known quantity was better than an unknown.” Even with the changed political climate, Kennedy was “a bit skeptical of the will of some of his colleagues.”6 Nearly twenty years earlier another Massachusetts senator, his brother and future president, John F. Kennedy, had described the impeachment of Andrew Johnson as “a reckless abuse of legislative power.”7 That impeachment was a discredited constitutional remedy had remained the prevailing view ever since.
The Saturday Night Massacre, which was inescapably Nixon’s doing, awoke presidential impeachment from a century-long slumber. In the week following the firing of Cox, twenty impeachment resolutions were introduced in Congress.8 For the first time, the Nixon administration requested a congressional head count of those for and against impeachment.9
Nevertheless, despite the bombshells of October 1973, the impeachment of Richard Nixon was anything but inevitable. There was no one alive who had witnessed its use against an American president. There were few experts in academia, and there wasn’t a single federal legislator who had a clue how to go about it. The public had its own deep doubts. Although support for Nixon’s removal from office had doubled from 19 to 38 percent in the wake of Cox’s firing, a 51 percent majority simply opposed impeachment.10 It was little known and, in some cases, feared by Americans. Some Alabamans, for example, were convinced that the process meant the loser of the previous election, Senator George McGovern of South Dakota, would become president.11 To understand how a forgotten and suspect constitutional remedy ultimately beat the odds, we must start by looking at how Richard Nixon unintentionally revived the beast.
Why did President Nixon risk so much to keep his tapes hidden? Because he was part of a conspiracy he needed to hide. Nixon was in Key Biscayne, Florida, when he learned that five men working for his reelection committee had been caught early on the morning of Saturday, June 17, 1972, fixing listening devices they had already planted in the headquarters of the Democratic National Committee at the Watergate. At that moment the president had a historic decision to make: He could turn in his men for breaking the law, or he could obstruct justice by trying to cover it up.
When Nixon returned to Washington, D.C., on Tuesday, June 20, he discussed the Watergate business with his chief of staff, H. Robbins “Bob” Haldeman. Haldeman and Nixon had weathered many political storms together. Back in 1971, Nixon had made plain to Haldeman his desire for both wiretapping for domestic political intelligence and a dirty tricks campaign linked to his reelection bid in 1972.12
The polls at the time showed the president barely more popular than his likely Democratic challenger, Senator Edmund Muskie of Maine. Later that year Haldeman had conferred with the president’s designated reelection campaign manager, Attorney General John Mitchell, on selecting G. Gordon Liddy to run the espionage operation. Haldeman and Nixon knew Liddy and his operations chief, E. Howard Hunt, from the activities of the Plumbers in 1971. Haldeman was informed when Mitchell approved Liddy’s program of spying and bugging but left the operational details to the Committee to Re-Elect the President, officially abbreviated as CRP but known by some as CREEP. Haldeman did insist in April 1972, however, that the program shift its focus from Muskie to the more likely Democratic nominee, George McGovern.13
At their first meeting on June 20, Nixon and Haldeman spent roughly eighteen and a half minutes discussing Watergate. Nixon did not order an investigation of how Mitchell, his former law partner, had messed up. Instead he went straight into damage control. Three days later, on June 23, the cover-up met its first challenge. The FBI, which had jurisdiction over investigating the Watergate break-in because it involved wiretapping, a federal crime, had found uncashed checks in the burglars’ hotel room, and these would connect the crime to the Committee to Re-Elect the President. In a conversation that day which would later be known as “the smoking gun,” Nixon ordered Haldeman to get the CIA to lie to the FBI, saying this was some kind of hush-hush national security matter, with the goal of getting the FBI to stop this politically dangerous avenue of investigation.14
The challenges of containing the damage quickly increased, ballooning into payments to the burglars’ families to stay quiet—payments made by Nixon’s personal lawyer, Herbert Kalmbach—and coaching administration members in lying to FBI investigators.
On September 15, 1972, a grand jury returned indictments against the five burglars as well as Hunt and Liddy for “conspiracy, burglary and violation of the federal laws against electronic interception of oral communications.” Since no one in the reelection committee or the White House was also indicted, Nixon’s cover-up seemed to be airtight.15
Meanwhile, the president, who believed that the best defense was offense, went on the offensive. A year earlier, on June 23, 1971, Nixon had ordered Haldeman to create a “tax list” of his political enemies for harassment by the IRS. When the DNC had launched a civil suit against the Committee to Re-Elect the President, Nixon wanted to go after the chairman of the DNC, Lawrence F. O’Brien, whom he suspected of underreporting lobbying income. As Nixon reminded Dean and Haldeman in a conversation on September 15, 1972, following the indictments—a recording that would later loom large in the impeachment inquiry—he expected the IRS to be used as a weapon against his political enemies.16
Throughout the fall of 1972, as Nixon continued to maintain a huge lead in polls over Democratic nominee George McGovern, two young reporters at The Washington Post, Bob Woodward and Carl Bernstein, pushed hard to investigate possible links between CRP, the White House, and the Liddy-Hunt operation. The Nixon White House denied all of it.
The Watergate scandal had no perceptible effect on the presidential election, which Nixon won in a landslide. The cover-up, however, soon came under severe strain. As the trial of the seven indicted for involvement in the Watergate bugging operation began in January 1973, Judge John Sirica, a lifelong Republican who had been appointed to the D.C. bench by Dwight D. Eisenhower, smelled something foul. “Somebody’s lying in my courtroom,” he bellowed at his clerk D. Todd Christofferson.17 Christofferson agreed, but neither could determine who from the CRP was the liar.
Even after the seven men were found guilty, Sirica refused to give up on the case. At the end of January, he handed down long sentences, hoping the men might talk. Nixon reacted by signaling through aides that there would be pardons in the future for the loyal. Meanwhile, Haldeman made leftover campaign funds available to feed the ever-greedier cover-up machine. In March, the first major crack appeared when one of the burglars, a CIA veteran, sent a letter to Sirica admitting that “there was political pressure applied to the defendants to plead guilty and remain silent.”18
As the burglars’ demands for cash and clemency grew, the president’s point person for containment, White House counsel John Dean, approached Nixon on March 21, 1973, to warn that the cover-up was metastasizing as “a cancer on the presidency.” Keeping Hunt and the burglars quiet was going to cost even more money, maybe as much as $1 million. To Dean’s surprise,, the president didn’t flinch at the number. Instead, he discussed how to raise the cash with his secretary, Rose Mary Woods. The next day, at a meeting with Dean, Haldeman, and Mitchell, he assured Mitchell that the goal was still “containment” and that he wanted everyone to “stonewall” the investigators.
On April 30, Nixon forced his chief of staff Haldeman and his domestic affairs adviser John Ehrlichman to resign, and he fired Dean over the Watergate scandal. With federal prosecutors getting closer to learning his role in the cover-up, John Dean sought immunity. In May, the Senate Watergate Committee began hearings, and Dean was granted immunity to testify. His highly detailed testimony riveted the nation. For the first time, one of the president’s men placed him in the cover-up.
Had the major revelations stopped there, the story of Watergate would have been Nixon’s word against Dean’s, with the Nixon presidency likely surviving because enough Americans would have given their president the benefit of the doubt. Up to this point, Nixon’s participation in “containment” payments and ties to the break-in in the first place remained behind closed White House doors. But there was another bombshell about to drop. White House staff secretary Alexander Butterfield revealed to the Senate in July that Nixon had a taping system. Apparently the president had recorded the key conversations that Dean had testified about. Indeed, he’d had a White House recording system installed in February 1971 and had been taping most of his conversations ever since.
Richard Nixon was not the first president to bug his own White House. John F. Kennedy and Lyndon Johnson had installed machines in some of the same places, but theirs had on/off switches, whereas Nixon’s system was sound activated due to his inability to operate equipment. It had picked up almost everything he and his inner circle had said to one another in the White House—the good, the bad, and the ugly. And the ugly was criminal. It would be up to Archibald Cox, the recently appointed Watergate special prosecutor, to get those tapes.
Nixon never liked Cox, who had worked for John F. Kennedy and attended Harvard, two of Nixon’s top triggers. He also knew that Cox was a threat to the cover-up. Cox would head the third investigation of the Watergate scandal, joining those conducted by the Senate and the assistant U.S. attorney in D.C. working with the FBI. Of the three, Nixon feared Cox’ s investigation the most because of its independence. For months the president fumed over Cox’s appointment, looking for the right moment to get rid of him. In his obsession with Cox, Nixon never imagined that removing him would prompt the one major player in Washington not already investigating Watergate—the House of Representatives—to take a serious interest.
In the wake of the Saturday Night Massacre, Democratic leaders in the House made two important decisions. The first was to pursue impeachment hearings, which only now in retrospect seems inevitable. For months, even before Cox’s firing, pressure had been building on the Speaker of the House Carl Albert and House Majority Leader Thomas P. “Tip” O’Neill to gear up for impeachment proceedings. For a number of liberal Democrats, the Senate Watergate hearings had produced more than enough evidence of a sleazy administration to warrant impeachment. Albert and O’Neill apparently disagreed, and until October 23, 1973, had found ways to keep the dogs of impeachment well leashed. But now that the public had so decidedly turned against Nixon that even Republicans were calling for a constitutional inquiry, Albert and O’Neill decided to start the process. The second decision involved giving the House Judiciary Committee, made up of twenty-one Democrats and seventeen Republicans, the responsibility for leading this effort, by shaping any articles of impeachment and deciding whether to bring them to the floor of the full House.
The House Judiciary Committee had initially served this function in 1868, so there was an argument to follow precedent.19 But due to a shocking primary upset in Brooklyn in 1972 (won by the thirty-one-year-old Elizabeth Holtzman) that knocked out the venerable Judiciary Committee chair Emanuel Celler, the new chairman was an untested and undistinguished machine politician from Newark named Peter Rodino. Fellow Democrats had so little regard for Rodino that several lobbied to form a special committee to manage impeachment and put it all under someone else.20
It was easy to underestimate this man. In the words of Francis O’Brien, his chief of staff from August 1973 through the impeachment summer, the soft-spoken, bantam-sized Rodino “was not a forceful figure.” Yet, he was territorial and insisted that impeachment go through the Judiciary Committee. For all his quiet resolve, Rodino would not have gotten the historic role that allowed him to transform his reputation had it not been for a strong, forceful patron: Tip O’Neill told everyone, “Peter is the perfect man for the job.”21
Once Rodino had O’Neill’s blessing to start the inquiry, he decided to pull an end run around the hard-core pro-impeachment faction of liberal Democrats on the Judiciary Committee. From the start, Rodino had a clear view of how to pull off a successful impeachment. The ghost of Andrew Johnson weighed heavily on him and the other Democratic leaders: Impeachment had a reputation as a tool of the disreputable partisan. Rodino saw the liberal impeachers as likely to drive Congress into a partisan prosecution of the president that would not only divide the nation but likely fail, as in 1868, to persuade two-thirds of the Senate, thanks to Nixon’s support among Southern Democrats.
The end run involved displacing the committee’s partisan majority counsel Jerome Zeifman, a favorite of the hard-line impeachers. Rodino told his young chief of staff Francis O’Brien that he wanted instead to hire a general counsel specifically for the inquiry that the Judiciary Committee would oversee. “This person should not be partisan. This person should be of high intellectual standing and should be honorable.” Rodino said finding a registered Republican “would be the best of all worlds.”22
O’Brien called law school deans from Harvard to Ohio State to Berkeley, looking for a choice everyone could support. “There were a lot of names, but there was no consensus,” he found.23 In a world before the Web, research was a time-consuming undertaking. In early November, Rodino’s best friend reached out to Albert Jenner, Jr., a fabled Chicago trial lawyer who had served in the staff of the Warren Commission in 1964, but Jenner did not want to leave his law practice. When he fell through, O’Brien was out of leads.24
Meanwhile, the pro-impeachment group, led by Texas Democrat Jack Brooks, operated as though they were in charge, even hiring Richard Cates, a Democratic state legislator in Wisconsin, to begin the inquiry, a move that infuriated Rodino. Rodino knew little about what Cates was doing, but he knew about Cates’s supporters on his committee. “For them the case was closed,” O’Brien recalled, “and that was a real problem.”
As Rodino was wresting control of his own impeachment inquiry from the radical impeachers on the Judiciary Committee, the White House was struggling to avoid impeachment altogether. Dismayed by the national reaction to the Saturday Night Massacre, Haig asked for a quick sounding of congressional opinion from William Timmons, the president’s assistant for legislative affairs. Timmons reported on Monday, October 22, 1973, that “loyal friends are still with the president, opponents are for impeachment, and the ‘swing’ voters are undecided at this point trying to feel the public pulse and anticipate the next action.”25 Although he assured Haig that “there is not sufficient support in the House to impeach the President or in the Senate to convict him,” he said the margin for survival was narrow in the Senate, where at best Nixon could count on the support of only forty senators, mainly Republicans with some Southern Democrats. The House was Nixon’s better bet. Best of all would be to stop the process in the House Judiciary Committee.
In the immediate aftermath of Cox’s firing, Nixon and his team decided not to risk more erosion of public and congressional support. Haig had Bork remove all of the FBI agents guarding the offices of the special prosecutor, the attorney general, and the deputy attorney general. Bork himself went before Cox’s former team and promised that they would all keep their jobs. The bigger surprises came when the White House announced that it would be hiring a replacement for Cox (ultimately it would be Texas Democrat Leon Jaworski), and that meanwhile it would hand over tapes of conversations that Cox had subpoenaed to the Sirica court, which was weighing indicting White House officials for obstruction of justice, perjury, and conspiracy, the two issues that had led to the Saturday Night Massacre.
This effort at transparency produced a new fiasco for the White House. Nixon’s lawyers revealed to the court that on one of the tapes—of a conversation from June 20, 1972—there was an eighteen-and-a-half-minute gap; they claimed that two of the other subpoenaed conversations didn’t exist at all. Even Bork, who had not heard any of these recordings, began to wonder whether Nixon was, indeed, guilty of something.26
Back in the House Judiciary Committee, as O’Brien searched for a general counsel, Rodino found that he had enemies looking to break him before he could even start the impeachment inquiry. In late October or early November, journalist Jerry Landauer of The Wall Street Journal came to him with rumors that Rodino was under investigation by the Justice Department for being part of the Jersey mob.27 Tip O’Neill suspected he knew who was to blame: the White House.28 Though the rumors ultimately came to nothing, they worried Rodino and signaled to him and O’Brien just how aggressively the Nixon White House intended to fight impeachment.
O’Brien finally found Rodino’s man in John Doar, a registered Republican who had been hired by Dwight Eisenhower to work in the Justice Department and stayed on to work for the Kennedys.29 As a member of the civil rights division of the Justice Department, Doar had been a quiet, diligent, and courageous force for change in the South throughout the 1960s. His method was to amass oceans of data to force reluctant judges and juries to help the federal government dismantle the South’s racial caste system. In 1967, he had successfully overseen the trial of the Klansmen accused of killing three civil rights workers in Philadelphia, Mississippi, in 1964.30
Rodino envisioned a process that would be as nonpartisan as possible, and told Doar he would have free rein to hire an impeachment inquiry staff. “We’re going to be different,” he explained. “We’re not going to have a counsel to the Republicans. We’re not going to have a counsel to the Democrats. We’re not going to have two different staffs working. We’re going to have one staff and it’s going to be integrated by everybody.”31
Rodino announced his choice on December 21, 1973, and a few days later, at the urging of two Republican congressmen on the committee, Thomas Railsback and Wiley Mayne, Albert Jenner agreed to join Doar as his associate general counsel. In the spirit of Rodino’s nonpartisan inquiry, Doar and Jenner jointly agreed that their staff would be hired as “a single law office with no real minority.” All did not go perfectly for Doar, however. Just as he accepted the post, he learned about Dick Cates, who had already been hired for the impeachment probe. Since he hadn’t recruited Cates, Doar wanted him fired. Rodino and O’Brien managed to persuade Doar to let him stay. They had to give a crumb to the hard-core pro-impeachment Democrats.32
Doar wasted little time in hiring his staff. Briefing the entire committee for the first time in early January 1974, he said he was hiring “some new lawyers.” He would ultimately hire one hundred people, many of whom were lawyers.33 He also wasted no time in trying to assemble the materials that his team would need. He went to the Senate Watergate Committee, which gave him full cooperation and eighteen boxes of materials.34 Watergate special prosecutor Leon Jaworski, however, turned out to be less helpful, at least in the beginning.
The Constitution does not set out how the House is supposed to investigate a president at risk of impeachment, nor what power it has to get whatever information it feels necessary for the task. As Doar assembled his team to start the inquiry, two powerful men in Washington, from the other two branches of government, believed they already possessed sufficient information to impeach the president, but the question was, what could they—or must they—share with the branch that actually had the power to impeach?
In the second week of December 1973, Judge Sirica, who was presiding over the Watergate grand jury, and his law clerk D. Todd Christofferson, donned headphones for the first time and started listening to the White House tapes that Cox had subpoenaed and then lost his job over. On Monday, December 10, they reached the recording of the March 21, 1973, conversation between the president and John Dean, where Dean discussed the continuing cover-up as “a cancer on the presidency.” It shocked them. Here was Nixon hearing about the cover-up and being told that for it to continue a million dollars in additional hush money needed to be found. Instead of throwing Dean out of the office, Nixon calmly discussed how to get it.
“Todd and I left the courthouse that evening tired and dispirited,” Sirica later wrote. “I remembered Nixon saying earlier in the fall, ‘I am not a crook.’ Well, I felt we did have a dishonest man in the White House, a president who had violated the law, who had conspired to obstruct the very laws he was sworn to uphold. It was a frightening thing to know.”35 After hearing the tape, the judge and his clerk concluded impeachment was “very possible.”36
A few days later, after Sirica had deemed the conversation relevant to the Watergate investigation, the March 21 conversation was sent over to the Watergate Special Prosecution Force. Leon Jaworski reached the same conclusion as Sirica. Richard Nixon had engaged in obstruction of justice. “I had not come to Washington expecting this,” Jaworski later wrote.37
Were Nixon an ordinary citizen, he would not only be indicted but likely convicted of a felony. But Jaworski—unlike his staff—did not believe that a sitting president, however guilty, could be indicted for obstruction of justice.38 That the House had already started an impeachment inquiry made indicting the president even less justifiable to Jaworski. A president under these circumstances either resigned or was impeached and removed after a trial in the Senate. Jaworski, who wanted to get back to Texas as soon as he could, hoped Nixon would resign.39 On December 21, he went to visit Haig to let him know about the tape. “I’m afraid the President engaged in criminal conduct,” he told Haig. Haig brushed him off, saying that the White House had its own transcript of that conversation, and Nixon’s White House lawyers were sure that it did not incriminate him. Jaworski suggested Nixon hire the best criminal lawyer in the country.40
Jaworski thought resignation would be a neater solution to the problem of a criminal president, because he was convinced that the Federal Rules of Criminal Procedure prevented him from formally sharing with Congress what he knew from the grand jury. Judge Sirica observed the absurdity of the situation: “As far as I could see, Jaworski had the evidence, but not the power to do much about the president. The [Judiciary] committee, and Congress, did have ultimate power, but in early 1974, they lacked the evidence.”41 Within the Watergate Special Prosecution Force, a debate arose over how to give Doar, for the sake of Congress, the March 21 tape. Jaworski’s deputy, Henry Ruth, who had worked with Doar in the Justice Department, believed that the tape alone could impeach Nixon, forestalling an expensive and divisive inquiry.
In January 1974, Jaworski and Ruth informally briefed Doar as much as they felt they could. Ruth apparently went further, giving Doar details of the Nixon-Dean conversation without actually showing him a transcript. The Watergate prosecutors were energetically and creatively pushing Doar to use Rodino’s authority to force Sirica and the grand jury to hand over the transcript. One of the younger committee staff who babysat Doar’s son made use of the opportunity to urge the adolescent, “Tell your father to subpoena the March 21 tape.”42
Doar resented the pressure and disagreed with how Ruth and the younger prosecutors understood the impeachment process. After dinner at Ruth’s home one night in January, Doar outlined their disagreement.
There are really two theories of this case. The first…the young, Harvard law school eastern liberal theory is that in order to impeach a President, you have to show that he is guilty of criminal conduct (Watergate)….The other theory…is that you first look at the totality of the President’s conduct over an extended period of time to see whether or not there has been a pattern of improper conduct by key Presidential appointees acting for the Presidency. And second, that in some instances, the standard of Presidential responsibility depends on the seriousness or enormity of the threat to our institutions.43
Doar, who had fought the caste system in the South by looking for a pattern of institutional racism, was more at ease with the second theory. “I thought that the country shouldn’t be left with making a decision about impeaching a president on the conduct of the president on one day. I thought that was…not going to help the country get over this, and so we tried to pull everything together of the president’s conduct over a period of time.”44
Doar likened the House inquiry to a grand jury in that it would take its information in secret and then decide whether or not to indict Richard Nixon. Under the Constitution, the Senate would be the place for the trial. Doar believed the Judiciary Committee’s fact-finding mission should not be adversarial and sold Rodino on the concept that the inquiry would be driven by the committee staff, which would then provide the members with all of the data. Neither Doar nor the committee staff would make any recommendations, leaving the decision of whether to impeach to the members themselves. Keeping with this approach, Rodino and Doar decided that what the staff collected would be described as “information,” not evidence.
Behind this vision was some hard political strategy. Regardless of what the evidence showed, neither Rodino nor Doar wanted the process to fail as in 1868. This was not to be a partisan impeachment. If the members approved an article of impeachment, it needed to have a chance of being accepted by the entire House and then the Senate. This could happen only with broad bipartisan support, starting in the Judiciary Committee, itself. Effective bipartisanship would require sensitivity by Rodino and Doar to the concerns of Republican members and to those Democrats in very pro-Nixon districts.45
By late January 1974, Bryce Harlow, a White House counselor who had been advising Republican presidents since 1953 and was widely respected on both sides of the aisle, thought that the Nixon presidency was an impending train wreck. Harlow did not believe that impeachment was inevitable—Nixon had just hired the celebrated trial lawyer James St. Clair of Boston to lead his defense—but for the presidency to survive, there had to be an immediate course correction.
The biggest problem was that the president himself was disengaged. “Nixon was almost incommunicado,” Harlow later recalled.46 The second serious problem was that what little direction Nixon had given his lieutenants was wrongheaded. “Our present stance,” Harlow noted, “is to ‘stonewall’ the Committee, giving nothing whatever.” Harlow felt that Nixon was in a funk and did not fully appreciate that with the start of impeachment proceedings the game had changed.
Harlow recommended enlightened and deceptive cooperation. The president’s defense team believed that whatever the special prosecutor had, Jaworski would make available to the Judiciary Committee “either voluntarily or through legislation.” So it was better public relations to announce now that the White House wanted Jaworski to share his materials. What Harlow wanted to avoid was frustrating the committee so much that they issued a subpoena. “We must realize that a stonewalling of the Committee will arm the Committee with a devastating article of impeachment—one likely to sail through the House,” Harlow wrote to Haig.47
The White House had already picked up that Rodino and Doar intended to make the impeachment inquiry as bipartisan as possible. Like an intelligence officer analyzing the weaknesses of an adversary, Harlow explained that they could use this noble effort against the House committee.
The goal of the White House should be to turn Rodino and Doar’s apparent caution into a liability. The White House should pretend cooperation, accentuate public impatience, and force a vote by the committee and the House months before Doar and Rodino figured out they needed more taped conversations from the summer of 1972, which might include the June 23 moment when Nixon decided to use the CIA to obstruct the FBI’s investigation, or Nixon’s suggestions to Ehrlichman in July as to how CREEP aides could perjure themselves in interviews with the FBI. Nixon conversed about many subjects, foreign and domestic, on the tapes but most of the time when he mentioned Watergate to his closest advisers, he was actively committing a crime.
The counter-impeachment strategy required that intense pressure be put on Rodino, Doar, and the committee to wrap up their inquiry fast. The problem was that House Republicans, in general, did not want the White House to exert any direct pressure on members of the committee.
“This situation is intolerable,” Harlow complained to Haig. As a result, Nixon’s team suggested setting up a fake “national organization…to bring counter-pressures to bear on the Committee and the House.” While a fake lobby pushed in Washington, the White House hoped to manipulate public pressure on Rodino and the Democrats by artificially inflating the economy to make Nixon look indispensable to the country’s well-being.
At his very first meeting with committee members in January 1974, John Doar explained that he had no position on the definition of “high crimes and misdemeanors.” The first task of his new team was to define the meaning of that phrase.48 By February, the House Judiciary Committee staff had concluded that presidential impeachment was more than an extension of law enforcement. It was a device linked to the founders’ basic desire for a Goldilocks executive: one not too weak but one not too strong. The staff reported that impeachment “was an integral element in a system of checks and balances which maintains an equilibrium among the separate powers of the government.” In other words, a president could be impeached without having committed a crime.49
Meanwhile, lawyers at the Department of Justice and the White House had also completed reports on how to define an impeachable offense. Also at issue for them, too, was whether the president had to commit a criminal offense to be impeached. After studying the Constitution, the records of the Constitutional Convention, subsequent statements by the founders, and later impeachment precedents, the Nixon Justice Department determined there were two views of the matter but refused to pick a side.
The “narrow view” was founded in the conclusion that the offense had to involve the breaking of a criminal law. The “broad view” accepted noncriminal “political crimes” as the basis for impeachment. There was evidence supporting both views. But there was nothing that suggested one view was more correct than the other.
Not surprisingly, the White House disagreed with the equanimity of its own Justice Department and the “broad view” of the House Judiciary Committee staff. It believed that the framers had intentionally excluded political impeachments and that, eighty years later, the Senate had rejected the “broad view” in the trial of Andrew Johnson. They believed the founders wanted the legislative branch to have power to ensure “the obedience of the executive to the criminal law.” In sum, a president should be removed only for committing a crime.50
In late February, John Doar, on behalf of the committee, made his first formal request to James St. Clair for additional materials from the White House. His letter, dated February 25, asked for several White House recordings from February, March, and April 1973. In addition, to help with future requests, Doar wrote, “we believe the next logical step is for you to outline for us how the White House files are indexed, how Presidential Papers are indexed and how Presidential conversations and memoranda are indexed.”51 The White House ignored this request. Despite the advice from senior aide Bryce Harlow, at this point Richard Nixon could see no reason to offer any cooperation to his would-be impeachers.
Nixon’s stance did not last long, however. On March 1, 1974, the Watergate grand jury, on the recommendation of the special prosecutor, returned indictments of seven of Nixon’s key lieutenants, including Haldeman, Ehrlichman, and Mitchell, and secretly named Nixon as an unindicted co-conspirator. The indictments—which signaled the end of the grand jury’s activities—freed Jaworski from the legal constraints on sharing what the grand jury had received from the White House—including the tape of Nixon’s March 21, 1973, conversation with Dean—with the House. Understanding this, the president realized that it was time to implement the strategy of deceptive cooperation that Harlow had suggested in late January.
At a press conference on March 6, Nixon announced not only that he hoped Jaworski would share what he had received from the White House with the House Judiciary Committee, but the president added he was prepared to answer “written interrogatories” from the committee and would even meet with Rodino and Hutchinson to answer their questions, under oath.
This was a clever attempt at misdirection. While offering cooperation, Nixon said nothing about the committee’s February 25 requests. Instead, when asked about how he would handle additional requests from the committee, Nixon replied that he thought the House already had what it needed to complete the expeditious impeachment inquiry it had promised:
[I]f all that is really involved in this instance is to cart everything that is in the White House down to a committee and to have them paw through it on a fishing expedition, it will take them not a matter of months, so that they can complete their investigation and, we trust, their decision by the first of May—which I understand is Mr. Rodino’s object—but it would take them months and perhaps even as long as a year.
Nixon’s press conference comments launched the White House strategy of demeaning Doar’s efforts to collect additional information for the committee as a “fishing expedition” and therefore unnecessary and unfair.52 On March 15, in front of a group of business executives in Chicago, Nixon repeated this line:
[W]hy not just give the members of the Judiciary Committee the right to come in and have all the tapes of every Presidential conversation, a fishing license or a complete right to go in and go through all the Presidential files in order to find out whether or not there is a possibility that some action had been taken which might be and might result in an impeachable offense [?]
The reason why we cannot go that far…is very simply this: It isn’t a question that the President has something to hide; it is the fact that every President—Democrat and Republican—from the founding of this Republic, has recognized the necessity of protecting the confidentiality of Presidential conversations with his associates…[I]f that confidentiality principle is completely destroyed, future Presidents will not have the benefit of the kind of advice that an executive needs to make the right decision. He will be surrounded by a group of eunuchs…53
Although the fate of the committee’s own request for materials remained uncertain, the indictment had the unmistakable effect of dramatically improving the quality of information available to its inquiry. On March 26, Doar picked up a “bulging briefcase” that held not only the tape of the notorious March 21 “cancer on the presidency” conversation, but six others as well. And Jaworski had something else for the House inquiry. His staff had prepared a document—called the “road map”—linking Nixon directly to a criminal conspiracy to obstruct justice. This was a “series of guideposts if the House Judiciary Committee wished to follow them,” Jaworski noted.54
The success of Nixon’s strategy of deceptive cooperation with the impeachment process depended on convincing most Americans and their members of Congress that Richard Nixon was being more reasonable than the Democrats. The White House, however, did not grasp the significance of how Rodino and Doar conceived of the impeachment process. Investigating Nixon entailed more for Rodino and Doar than just acquiring relevant evidence; it also involved exorcising the ghost of Andrew Johnson’s partisan impeachment. In practice this meant creating trust among those who dismissed most liberal Democrats as mindless impeachers. From the beginning of the process, Rodino, his chief aide O’Brien, and Doar made personal calls on what Rodino referred to as “the middle.”
The middle on the Judiciary Committee was not defined by ideology; it was defined by the dilemma of suspecting Nixon was impeachable when neither your political tribe nor your constituents wanted you to vote for impeachment. On the Democratic side it consisted of two Southern conservatives, Walter Flowers of Alabama and James Mann of South Carolina, and a moderate from a very pro-Nixon district in Arkansas, Raymond Thornton. On the Republican side, it included liberal and moderate Republicans such as William Cohen of Maine, Hamilton Fish of New York, and Thomas Railsback of Illinois, as well as the Southern conservative M. Caldwell Butler.55 Rodino and Doar’s encouragement of the middle not only made swaying the undecideds possible; it would complicate Nixon’s efforts to justify his stonewalling as a response to partisanship.
By March 1974, Rodino’s handling of the pro-impeachment Democrats—whom Caldwell Butler called the “Hanging Democrats”—had already impressed all of the Republicans on the committee. “He has done a magnificent job of keeping them in line,” the forty-eight-year-old Butler confided to his diary.56 Butler prided himself on having an open mind on impeachment. But even a staunch Nixon supporter on the committee like Carlos Moorhead of California was impressed with the Democrat’s efforts at impartiality. Moorhead reported to the White House just after the president’s March 6 news conference that all of the Republicans believed that Rodino had “bent over backwards to be fair,” and he saw this as a problem for Richard Nixon.
“The President must convince the American people he is bending over backwards,” Moorhead pleaded. “He appears to offer cooperation one week and then withdraws it the next.”57
At the end of March 1974, House Minority Leader John Rhodes warned the White House that if the president did not offer more cooperation to the Judiciary Committee, its members would be forced to use a subpoena to request more materials.58 In response to this criticism from Republicans, the White House doubled down. After Congressman Thomas Railsback, a forty-two-year-old Republican member of the Judiciary Committee from the corn belt, sent a letter to President Nixon urging more cooperation, the White House reached out to the chairman of John Deere, the largest employer in his district, to apply pressure to Railsback to keep in line.59
No House committee had ever served a subpoena on a president in an impeachment hearing. In February, the full House had overwhelmingly passed a resolution giving the Judiciary Committee the right to issue subpoenas. The Constitution was silent on what should happen if the president refused to cooperate. In January, Bryce Harlow had warned Nixon that he needed to avoid that kind of constitutional clash because, at the very least, the House could respond by passing an article of impeachment just for noncompliance. But Harlow’s suggested solution was a dodge, pretending to cooperate long enough to discredit the impeachment process.
And Nixon liked the odds of being able to turn the American people against the impeachers. “The law case will be decided by the PR case,” Nixon wrote to Haig in early March.
“St. Clair sees it too much as a trial,” he added in mid-March, “not as a public relations exercise.”60 The goal was to strip off not only the Republicans on the committee, turning them against the use of a subpoena, but also Southern Democrats whose constituents associated partisanship by congressional Democrats with East Coast liberalism.
The White House’s cynical stirring of the pot to avoid a subpoena did not go unnoticed by Nixon’s target audience. Forty-five-year-old freshman Democratic congressman Raymond Thornton of Arkansas was someone that Richard Nixon counted on to hold on to power. The large, rural fourth congressional district along the Arkansas-Louisiana border he represented was Nixon country. Although Thornton was himself comparatively moderate, his base supported the president.
Thornton, however, “couldn’t stomach” the White House strategy.61 It reminded him of a political observation Abraham Lincoln once made. “If you want to stop a church from being built,” Lincoln advised, “don’t attack the religion, but start an argument where the best location would be.”
“It appears to me,” Thornton continued, “that the strategy of the White House is to insist on withholding evidence and start an argument about the procedural methods used by the Committee in an effort to divide the Committee and make it appear that it is being unfair procedurally.”62
Thus did the White House’s hardball impeachment strategy build momentum for not only the first presidential impeachment subpoena but one that was bipartisan. On April 4, the ever-cautious Rodino opened a Judiciary Committee meeting with “a slight tremor” in his voice. It was time, he argued, to put additional pressure on the White House to comply with the committee’s requests. It had been six weeks since John Doar had sent his first major request to St. Clair, and there was still no answer. “The patience of this Committee is now wearing thin.”
Sensitive to the White House’s refrain of “fishing expedition,” Rodino stressed that Doar had made “a specific request…for specific evidence of specific facts of specific relevance to our inquiry.” The ranking Republican on the Judiciary Committee, J. Edward Hutchinson, who actually opposed a subpoena, nevertheless backed up Rodino’s plea for more White House cooperation. “I cannot understand why,” Hutchinson explained, “there should be at this late date any doubt in anyone’s mind as to what it is we are after.”63 He and Rodino decided to send St. Clair another letter, giving the White House until April 9 to supply the materials voluntarily. If possible, they wanted them sooner.
With the impending collapse of its anti-subpoena strategy—and the president still adamantly against compliance—the White House returned to an idea that it had considered in late 1973. After the first batch of tapes was handed over to Sirica, some of Nixon’s aides debated releasing transcripts of the tapes, including the damaging March 21 tape. The theory was that the White House could get ahead of the bad news by confusing the public about the meaning of the tapes. Bryce Harlow had convinced Haig before Christmas that this was a stupid idea, and the transcripts remained in White House files.64
The debate in April, as in December, revolved around the question of whether the country, in words later made famous by Jack Nicholson in the film A Few Good Men, could “handle the truth.” Harlow resisted releasing the transcripts because the public would learn that Nixon was cold, calculating, and amoral. He believed that the American people were naïve and would punish Nixon when they learned the truth of how Washington really worked.
In April, Haig and Special White House Counsel J. Fred Buzhardt disagreed. They believed that Nixon’s supporters were loyalists who would follow wherever he led; but he had to lead. Nixon himself was paralyzed with indecision. Although he was in too much of a funk to recall precisely what he had said on tape, he knew himself well enough to know it would be harsh and politically, if not legally, damaging. The president’s hapless personal lawyer, James St. Clair, remained blissfully ignorant of the content of the tapes and just asked to be able to give the House something, anything.
Over Harlow’s misgivings, Nixon accepted that the House had to receive something, so he approved restarting the transcription process suspended in December. The Judiciary Committee would receive transcripts but not tapes.65 White House staff would now transcribe the additional forty-two conversations from late March and April 1973 that the committee had identified as relevant in February. None of the staffers tasked to do the job was a trained transcriber, nor was there time to establish any quality control. To keep the crash program confidential, no audio technicians were contracted to improve the quality of the copies of the recordings the junior staffers were using. Moreover, Nixon insisted that he personally edit every page of transcript. This was not only a recipe for creating inaccurate transcripts, but if Nixon personally edited out incriminating sections or altered words in legally helpful ways, this was a recipe for a charge of obstruction of justice.
And this process would take some time. On April 9, 1974, St. Clair wrote to Doar for a delay until after Congress’s Easter recess because the materials were “under review.” Nixon did not allow St. Clair to reveal to the committee or to the Republican congressional leadership that what was on the table were transcripts and not actual tapes. With the White House taking this gamble, Bryce Harlow quietly resigned. Henceforth, the president would have no impeachment adviser who had the gravitas to tell him no.
The White House’s vague play for more time, without any consultation with Capitol Hill, widened cracks in the GOP caucus in the committee. At a Republican meeting on April 10, Railsback, Cohen, Fish, and even Nixon supporter Charles Sandman of New Jersey told their colleagues that with no end of White House evasions in sight, they were now prepared to join the Democrats in issuing a subpoena. Although Hutchinson agreed that St. Clair’s letter was “evasive and offensive,” he just couldn’t subpoena a Republican president. Nevertheless he made no serious effort to dissuade his colleagues from voting with the Democrats.66
The next day, Thursday, April 11, 1974, Rodino and Doar thought the time had finally arrived to consider the historic step of subpoenaing the president. Although it was likely the committee would support a subpoena, the majority had no idea how many Republican votes they would get.67 Earlier that morning Doar engaged in some hand-holding with one possible Republican ally, M. Caldwell Butler of Virginia, who wanted to know as much as he could about the draft subpoena.68
Rodino started the April 11 meeting by outlining a list of new concessions to Republican members. James St. Clair would be allowed to represent the president once the inquiry staff began its presentation of subpoenaed evidence to the members, and he would be invited to call any witnesses he wished to testify. Although Rodino said nothing about cross-examination, a demand also made by committee Republicans, he promised the issue would be resolved after the recess.
Then he had Doar describe a call received from St. Clair earlier that morning. The White House was now offering an as-yet-undefined “partial compliance” to stave off a subpoena.69 This last-minute and vague White House gambit deflated the Republicans on the committee. “This is beneath the dignity of the White House,” thought Caldwell Butler, who was now resolved to support a subpoena. “That triggered it….He was trifling with us.”70 Only a week earlier the Virginia Republican had thought there was not enough evidence of noncompliance to warrant seeking a subpoena.71 But St. Clair’s stalling changed his mind.
The subpoena resolution, including an amendment advanced by Republican Delbert Latta of Ohio that Rodino had allowed as a last show of compromise to committee Republicans, passed 33 to 3, with only Hutchinson, Trent Lott of Mississippi, and Charles Wiggins, who represented Nixon’s birthplace of Yorba Linda, California, voting against it. Butler was impressed with the show. “You have to give Rodino credit. He played it by ear this morning.”72 The president had until April 25 to comply.
“The battle lines are drawn,” Thornton of Arkansas noted to himself.73 If Nixon chose to ignore the subpoena, his noncompliance could itself constitute an article of impeachment.
The April 11 subpoena and its deadline would open the door to Nixon’s greatest blunder since the firing of Cox. The near unanimity of the vote in the committee undermined the president’s defense that the subpoena was a partisan attack. The White House would have to give the committee something.
At the end of April, St. Clair asked for, and received, yet another stay of execution from the House. By this point, Nixon had decided that in order to show his supporters that he was trying to cooperate with an unfriendly House, he would release the transcripts publicly at the same time he released them to the House.
The House Judiciary Committee had no idea of the madness that its bipartisan subpoena provoked in the Nixon White House. Desperate to cling to the presidency, the president was in the residence, inaccessible to most of his staff, reading over a thousand pages of transcripts, cutting this and cutting that. At the eleventh hour Nixon reluctantly accepted a staff recommendation to include the March 21, 1973, transcript, along with transcripts of all of the other conversations that Archibald Cox had subpoenaed in 1973.
But Nixon drew the line on allowing the Congress to read anything that was unequivocally impeachable. He did not want the House to know everything he had said to Dean and Haldeman on September 15, 1972. Sirica had ruled the last thirteen minutes of that conversation, in which Nixon abused his authority as president to sic the IRS on his political enemies, as irrelevant to the Watergate trial. Nixon knew that presidential abuses of power were relevant to an impeachment inquiry, but he cut that section of tape out anyway. Similarly, the White House transcript for a March 22, 1973, conversation did not include the section where Nixon told his top lieutenants “I want you to stonewall it, let them plead the Fifth Amendment, cover-up….”74
These last-minute decisions meant that the transcripts were not ready when Nixon spoke to the nation on April 29, 1974. “As far as what the president personally knew and did with regard to Watergate and the coverup is concerned,” Nixon explained, “these materials—together with those already made available—will tell it all.”75 On a table beside him were two mounds of black binders said to contain the transcripts. They were empty. Once again, Nixon offered a deal. He told the televised audience that he would allow Chairman Rodino and Edward Hutchinson not only to verify the transcripts but to have access to the original tapes to check his edits for relevancy. The committee as a whole, and its staff of trained lawyers, would not, however, be permitted to listen. In a transparent appeal for sympathy, Nixon closed his speech likening himself to Abraham Lincoln, “another president…subjected to unmerciful attack.”
Richard Nixon hadn’t a clue of the entirety of the risks implicit in gaming the subpoena with transcripts. Since late March, another secret transcription project had been under way in Washington, D.C., and nothing had leaked about it to the White House. The “bulging briefcase” the committee had received from the Watergate grand jury included seven White House tapes. As soon as those tapes entered the vault at the inquiry staff offices in the old Congressional Hotel, Doar set up a team to transcribe them, empowering the staff to explore equipment to improve the audio quality of the copies they had, while testing the aural skills of the staff to identify those best suited to this tough transcription work. The White House transcripts released at the end of April included conversations that the House Judiciary Committee could now check against their own transcripts. Without understanding his jeopardy, the president had just authorized an easily verifiable obstruction of justice.76
When the White House started calling around Congress on April 29 to prepare Republicans for the fact that Nixon would respond to the subpoena with transcripts and not tapes, Congressman Railsback informed Doar and asked for his thoughts. Doar and his staff believed the tapes were needed to clarify two issues: Did Nixon order the payment of hush money, and once he heard about the cover-up by Dean, did he undertake a serious effort to end it and bring the perpetrators to justice? Transcripts edited by Nixon were unlikely to hold the answers to those questions. “This would be unacceptable,” Doar replied. “It would be an affront to the Judiciary Committee.”77
The transcripts started arriving the next day, and Rodino had a huge decision to make. He knew where his special counsel Doar stood, but what about the members of the committee, especially the Republicans? Their reaction mattered. If Nixon were held in noncompliance, his transcription offer could itself constitute an article of impeachment, or lead to a motion of censure on the floor of the House. Rodino’s goal throughout this process was to pass bipartisan articles of impeachment, if any. In that spirit, he called Virginian Caldwell Butler to gauge his reaction to Nixon’s offer.
“What do you think of things?” he asked Butler. “I want your calm, sober and reasoned views [on the events of the past twenty-four hours].”78
Remarkably, Butler told Rodino not to accept the president’s offer as it stood. He was not suggesting that the committee refuse the transcripts and find Nixon in contempt. But Butler had heard enough about the difficulties of understanding the tapes that he wanted Rodino and Hutchinson to insist that when they went to the White House to verify the transcripts and the edits they be allowed to bring counsel and staff.79
On May 1, 1974, Rodino convened an unusual evening meeting of the committee to decide what to do. Rodino was caught in the middle. He wasn’t sure he wanted to find the president in noncompliance. But some hard-line Democrats wanted to censure Nixon, and the other Democrats wanted to declare him at least in complete noncompliance of the subpoena. Most Republicans preferred to negotiate some more with Nixon and planned to let the Democrats take the lead in pressing for compliance. Ultimately, when two pro-impeachment Democrats decided not to support Rodino on any compromise, Bill Cohen of Maine became the only Republican to vote in favor of sending a terse letter of noncompliance. Had he not backed Rodino, the tally would have been 19 to 19, and the committee would have been paralyzed.80
Feeling good about the politics of the moment—especially after an outpouring of support for the president’s speech, which had promised honest cooperation, and had preceded anyone actually reading any transcripts—the White House jumped on the committee’s letter of noncompliance and used it to assail the entire committee for partisanship. The arrogance of the reaction was not limited to public criticism of the impeachment process. Nixon briefly considered making a different deal with the special prosecutor, who was asking for another group of tapes that included the recording of a June 23, 1972, meeting in which Nixon had approved using the CIA against the FBI for political reasons. But Nixon quickly changed his mind when he listened to that conversation on May 6. “No more tapes,” he told Haig afterward. “We’ve done enough.”81
On May 7, James St. Clair announced that Nixon would not be providing any more tapes to the House Judiciary Committee or to the Special Prosecutor. Nixon was doubling down again. He no longer cared that his treatment of a subpoena could become an article of impeachment.
Unfortunately for the president, many people took the time to wade through the 1,200 pages of transcripts, especially Republican congressmen. Within a few days, the ugliness of Nixon’s approach to power leapt from the transcript pages and offended many, just as Bryce Harlow had feared. Elite opinion in Washington turned hard against Nixon. Most Democrats and all of the mainstream media were already there. But in the wake of reading the transcripts, for a brief moment even the Republican congressional leadership tried to bring the Nixon presidency to a swift end. The crisis didn’t last very long, but it revealed that the president’s support among congressional Republican leaders was soft.
On May 9, John Anderson, the head of the House Republican Conference, called for Nixon’s “voluntary resignation.” House Majority Leader John Rhodes also said that Nixon should consider resigning.82 As the Republicans attacked a president from their own party, Democrats stayed relatively silent. For a moment, it looked as if Republicans would solve the country’s Watergate problem.
The crisis was heating up on the day that the impeachment inquiry was scheduled to have its first public session after more than sixteen weeks of closed sessions. Caldwell Butler and Bill Cohen, who sat next to each other, wondered as they entered the chamber whether the impeachment process was about to be overtaken by events.83 But it turned out that as of May 1974 the Republican congressional leadership lacked the collective will to force a Republican president to resign, however much it disliked and mistrusted him. When the resignation trial balloons appeared to anger the Nixon base, public Republican criticism ended for the sake of the midterms in November.84
Privately, however, prominent Republicans continued to doubt Nixon’s long-term political survival. On May 14, Senate Majority Leader Mike Mansfield and Senate Minority Leader Hugh Scott met with Gerald Ford. They wanted him to start thinking about his presidency. The transcription fiasco had left the Nixon presidency so badly damaged that Mansfield and Scott had started jointly planning for a televised trial in the Senate, should the House impeach Nixon. “Jerry,” Scott explained, “there’s a better than fifty-fifty chance that you will be President before long.”85
As Nixon struggled with the loyalty of the congressional Republican leadership, John Doar and the impeachment staff readied the materials they had painstakingly prepared to present to the committee. Starting on May 9 and for the next six weeks, Doar read out loud in his upper-Midwest monotone 7,200 pages, grouped into 650 “statements of information” from thirty-six binders.86 The material, which was read to all members of the House Judiciary Committee in closed sessions, covered all of the controversial activities of the Nixon administration regarding the Watergate break-in and the Plumbers operation. It also provided detailed chronologies linked to concerns that Nixon had accepted bribes from milk producers, had manipulated anti-trust enforcement for the sake of telecom giant ITT, and had cheated on his personal tax returns. Doar decided to read every word to create a common baseline of facts and to be sure no member of Congress could plausibly deny having had access to a key piece of information.
The effect was unintentionally mind-numbing. “It was rather like studying a course in college,” Raymond Thornton of Arkansas noted. Indeed, but this was not a popular class. “The clock did seem to stand still,” he added.
But besides the tone there was the challenge presented by the mode of presentation. Doar read document after document without giving any interpretation. The committee members could follow along in their own binder copies, but there was no narrative through line. Rodino, who was careful not to criticize Doar in front of the members, privately told his personal staff that the “statements of information” were “too dense” and the whole presentation was “not understandable.”87
The staff presentation came close to splitting apart the Democratic caucus on the committee. The long-simmering dissatisfaction of Rodino’s pro-impeachment subcommittee chairmen—Jack Brooks, Robert Kastenmeier, John Conyers, Jr., and Don Edwards—boiled over into open rebellion against the Doar-led effort. “They tell me Doar is an archivist, not a prosecutor,” Tip O’Neill told journalist Jimmy Breslin.88
Behind closed doors the Democratic partisans plotted to take control of the inquiry. Conyers and Edwards approached Dick Cates to see if he would consider sidelining Doar by becoming majority counsel for the Democrats. The partisans feared that due to Doar’s nonpartisan approach when it came time to vote, they would lack a strong case to justify impeaching Nixon. But Cates refused to participate in a palace coup. In the months since Doar had tried to fire him, the two men had developed a deep mutual respect and an understanding of the differences in each other’s approaches.89
Committee Republicans were largely oblivious to these rifts. Doar had certainly bored them and they were equally exhausted by the weeks of presentation, but they were not near open revolt. Most of them still respected Rodino and Doar for “bending over backwards” to be fair-minded. Their problem was that they lacked any leadership—either of the steady, meandering Rodino sort or of the hell-raisin’ Jack Brooks variety.
With Ed Hutchinson hobbled by health issues, the number-two Republican, Robert McClory of Illinois, warned his colleagues that “the Democrats’ scenario [is] to show one massive Watergate cover-up.” The more discerning Charles Wiggins understood that Doar’s effort was designed to assemble a pattern of misconduct.90 The Republican problem was they couldn’t agree over what to do about it. With the White House keeping them at arm’s length and their own House leadership unsure as to whether to save the unpopular Nixon, the committee Republicans were largely on their own.91 Most of the Republicans at least agreed with the “narrow view” of impeachment. They were not impressed with Doar’s presentation of a pattern of misconduct, they needed evidence of criminal presidential conduct to impeach.
There was plenty of evidence of criminal presidential activity on the tapes. Starting in mid-May, regular members of the committee were permitted to listen to the raw tapes that the grand jury had turned over on March 26, including the infamous March 21, 1973, “cancer on the presidency” conversation.
However, it turned out that the Republican partisan mind refused to absorb the incriminating nature of the tapes. The reaction of the GOP hard-liners validated Doar’s position in his debate with Jaworski’s team. They rationalized what they heard.92 They did not react as Sirica and Jaworski had when they’d first heard Nixon and Dean discuss paying hush money on March 21, 1973. Politicians were not about to give up on a president of their own party for misbehaving on one day. Wiggins, Sandman, and Hutchinson heard only that Nixon had not apparently gone through with the hush-money payment. The fact that he mused about it was disappointing but not impeachable. This was not the smoking gun regarding criminal conduct that the GOP partisans demanded to see or hear before considering impeaching the president.
Open-minded Republicans, the ones who saw their responsibilities as constitutional and not political, refused to rationalize Nixon’s behavior as the partisans did, but they still wanted more information than was on the tapes. For them, the chance to interview witnesses seemed a way “to resolve the ambiguities” of Doar’s staff presentation and the tapes. The request to Rodino and Doar that the committee have the opportunity to hear witnesses before ending its inquiry was something that united both the partisan and open-minded Republicans. Hard-core Nixon defenders believed witnesses, under friendly questioning, would demonstrate that the president had not done what Democrats inferred, whereas open-minded Republicans hoped that more information from these witnesses would help them connect some of Doar’s many, many dots.93
“It is my belief at this point,” Thomas Railsback noted privately in mid-June, “that if the Democrats fail to call such people as John Dean, Bob Haldeman, John Ehrlichman, [Charles] Colson, Henry Petersen that they will be asking for trouble and it is not likely that the Republicans will support an impeachment vote.”94
Outside the political limelight, the Doar approach was having some positive effects. Quietly, a new group was gradually emerging that bridged party lines and included members who were not looking for a so-called smoking gun. These members were embracing the broad view of impeachment for which evidence of the commission of a crime by the president himself was not a requirement. Caldwell Butler was now satisfied that Nixon had overseen an amoral administration. The issue for him was whether it was in the public interest to remove him. In many ways he felt he had been a “good president.”95
In mid-June, thirty-eight-year-old Democrat Barbara Jordan of Texas was asking the same questions, which she shared with Butler. The liberal African American woman and the conservative white Southern man, though undecided, were thinking about impeachment in similar ways. “We see eye-to-eye on impeachment,” Butler noted in his diary after a brief conversation on the floor of the House.96
It took Rodino and Doar a while to appreciate the importance of giving undecided Republicans the opportunity to ask questions of John Dean and others. But, by the end of June, this compromise seemed necessary. To shore up support among Republicans, Rodino announced that the committee would invite witnesses to whom the members could ask questions, just as they had wanted. Admiringly and with some frustration, Nixon defender Trent Lott of Mississippi said to Rodino’s chief of staff: “It’s very frustrating because he gives us everything we want.”97
Rodino, ironically, at that moment in the impeachment process had a better feel for what the Republicans needed than his own party. On the morning of June 27, 1974, he breezily told two reporters, Jack Nelson of the Los Angeles Times and Sam Donaldson of ABC News, who were hanging out in Francis O’Brien’s office, that he thought all twenty-one committee Democrats would vote for impeachment, and he even mentioned five Republicans—including Railsback, Butler, and Cohen—who were likely to support them. This chat was on the record. “That was a mistake,” O’Brien realized immediately, not because Rodino might be wrong, but because this kind of statement ran counter to his painstaking efforts to build confidence in a nonjudgmental, nonpartisan inquiry. The inquiry, after all, was not yet over and the debates had yet to begin.98
The scale of the chairman’s problems multiplied when he met with his caucus later in the day. When Rodino continued to exude confidence about the direction the process was going, a clutch of key Democrats—the three Southerners, Thornton, Mann, and Flowers—told the chairman they were not there. Even more shocking was the skepticism expressed by Paul Sarbanes of Maryland and Barbara Jordan of Texas. These undecided Democrats believed that the staff presentations didn’t lead anywhere. Bewildered, Rodino told the caucus that he could not “understand how anyone who had seen and heard what he had heard could continue to have doubts.” The Democratic majority was in disarray.99
And it was about to get worse. Shortly after the Democratic caucus, the Los Angeles Times broke the story of what Rodino had told its reporter that morning. Rodino asked O’Brien what to do. “I told him to go to the floor and deny it,” O’Brien recalled. O’Brien and Rodino knew this would be a bold-faced lie. “To this day I regret that I did.” Rodino went to the well of the House and lied.
Richard Nixon, who was in Moscow and noticed the Los Angeles Times story somewhat later, took Rodino’s reported statement at face value. He had always assumed that the Democrats would play the impeachment game as hard and as single-mindedly as he would in their place. “There was no question in my mind that the House Judiciary Committee was going to vote to impeach me,” he wrote after learning about Rodino’s statement. “It was the margin of that vote that would assume a vital importance.”100
Nixon had no idea that there were still good odds that the Judiciary Committee might not impeach him. In the crucial month to come, the members would have to work hard to make sense of what Doar and the staff had provided them. If they somehow found a way to connect the dots, however, the nation’s first bipartisan impeachment of a president was likely.
As July began, Doar’s assumption that open-minded elected representatives would accept the removal of a president for a pattern of action that threatened the very institutions that protected their liberty was under severe strain. He was right in believing that if you gave them a mosaic of information they would be able to pull together a story themselves. These were intelligent, hardworking, and responsible individuals. Doar’s mistake was in forgetting that besides being lawyers, they were politicians.
These representatives needed more than the solution to an intellectual puzzle to be able to vote against a man supported by their party or, in the case of the Southern Democrats, by most of their constituents. Not being a politician, Doar did not understand that these individuals had to feel they could advocate impeachment, on their own, in their own words and in a way their supporters could understand. By making them passive recipients of information, Doar had not helped them become advocates.
This process of turning supporters into advocates of impeaching Richard Nixon would take place in July. Decades later Americans would ask themselves whether members of Congress were capable only of bitter partisanship. For four weeks at a pivotal moment in American history in 1974, a handful of elected representatives found that something greater than partisanship could guide them when the fate of the country hung in the balance.
“I wanted to get it ‘right,’ ” remembered Raymond Thornton of Arkansas. “This was most likely the most important task that I would ever have in government.”101 From the beginning, Thornton had concluded impeachment was “a safety valve for our system of government, not merely a punishment for crimes or misbehavior.” On June 4, 1974, he dictated for his personal record that “such charges must not be brought lightly, but on substantial evidence; the actions complained of threaten the continued existence of our country as a constitutional government under which all men are held equally accountable under the law.” Thornton believed that he had to forget about the fact that he was an elected official. “This decision is too vital and too important to be based upon partisan politics or newspaper headlines.”102
Remarkably, six other members of Congress came to a similar understanding around the same time. For months they had been connecting the dots—Doar’s dots—on their own. It was noteworthy that they accepted the information pulled together by the impeachment staff as their baseline of facts. There was no alternative timeline or fake news conspiracy to distract them from deciding if this pattern of conduct warranted removal of a president from office. However inconvenient they might be, facts were facts. Not one of them doubted that the Nixon White House had become a criminal enterprise. The question was whether a fairly elected president should lose his job, if his direct responsibility could arguably only be inferred.
The month of July brought the moment of decision for these undecided representatives because Rodino had scheduled publicly televised hearings and a vote for the last week of the month. With this deadline looming, these men decided to seek one another out and start talking through the correct course of action as jurors and as politicians.103 The first move occurred among the Republicans on July 9. Caldwell Butler noticed Hamilton Fish of New York and Bill Cohen of Maine chatting by the House water cooler—sharing what the old-fashioned Butler called “the scuttlebutt.”
Joining the conversation, “partly by invitation, partly by aggression,” Butler said “those of us who [were] still on the fence got to visit a little bit.” They all had “the same problems”: They were considering impeachment but were worried about how to justify it to themselves and, more important, to their constituents. “The elderly, primitive Republicans [were] his [Nixon’s] strongest defenders,” recalled Butler. Middle-age voters were not as rigid, and young people didn’t believe in defending at all costs.104 Butler, who had made up his own mind about Nixon, was still hung up on the issue of whether the country could stand the trauma of an impeachment. Fish had an answer: “It’s already a tragedy. It’s a great American tragedy.”
The men realized that the impeachment of the president was in their hands. If the committee vote was close, Nixon might survive the vote in the House and there would be no trial in the Senate, but if a Southern Democrat like Walter Flowers joined the pro-impeachment Republicans, the president would be impeached. Drawing from history, Butler thought of his fellow undecided Republicans as similar to the “Mugwumps,” the nineteenth-century Republicans who left the party to support Democrat Grover Cleveland for president. The twentieth-century Mugwumps felt a kinship with Southern Democrats. At their impromptu July 9 chat, Fish, Cohen, and Butler resolved it was time to reach out to Walter Flowers of Alabama, “who was in the same boat.”105
Over the next few days, these men learned things that made justifying impeachment easier. Rodino’s concession of allowing the committee to interview witnesses following John Doar’s presentation of the facts turned out to be an unintended stroke of genius. The hearings with the witnesses “breathed new life into the proceedings,” Walter Flowers recalled. “They made everything more vivid.”
Between July 2 and July 17, 1974, the committee interviewed ten witnesses, a process that had a profound effect on the Mugwumps and the Southern Democrats. Later each man would point to a different moment with a different witness as making the difference in their decision making.
For Tom Railsback it was former White House counsel John Dean’s July 11 testimony that moved him closer to voting against the president. Railsback was much less convinced of the pattern of conduct theory than the other Mugwumps. He was still looking for some sort of smoking gun of presidential involvement in the misconduct. Dean’s revelation of his conversation with Nixon on September 15, 1972, about using the IRS against political enemies, was the evidence Railsback felt he needed to justify holding Nixon guilty of abusing his executive powers.
“Dean knew that that thirteen-minute segment of tape was eventually going to come out, so his recollection of that conversation had a certain authenticity,” said Railsback.106 The next day, Railsback told the Republican caucus that he might just vote for impeachment. “I hope you will be a minority of a minority,” said Hutchinson, adding “his great offense of anyone voting to impeach a Republican president.”107
Conservative South Carolina Democrat James Mann wasn’t looking for a smoking gun. He needed to convince himself by talking to Nixon’s lieutenants that Richard Nixon was the source of the amorality and criminality of his administration. On July 17 Herbert Kalmbach, the president’s personal lawyer who facilitated hush payments to the Watergate burglars in the summer of 1972, left Mann with no doubt that Nixon had approved the payments.
MANN: You regarded Haldeman as the right arm and Ehrlichman as the left arm, a man who had the total confidence of the President?
KALMBACH: Yes, sir.
MANN: And you went to him on July 26, to Mr. Ehrlichman, and you looked him in the eye and got his assurance that in effect, what you were doing was authorized—is that correct?
KALMBACH: Yes, sir.108
“This did more to jell the thinking of the undecided,” Mann recalled a year later, “when we realized the monstrosity of what Richard Nixon had done to the lives of certain people with no remorse shown.”109 Whatever one might have thought of Kalmbach’s ethical compass, the president had hung his personal lawyer out to dry.
Besides the testimony, the committee received another influential source of new information in July. On July 9, the committee staff issued a report showing the differences between Nixon’s transcripts and the transcripts drawn from the tapes received from the grand jury. The White House had omitted, for example, a whole section from a March 22 conversation where the president had said, “I don’t give a shit what happens. I want you all to stonewall it, let them plead the Fifth Amendment, cover-up or anything else, if it’ll save it—save the plan. That’s the whole point.”110
Each manipulation of the transcripts was additional proof that President Nixon’s cover-up was ongoing. The House didn’t know that Nixon had edited these transcripts himself, but the fact that he vouched for them was enough to make him responsible. The impeachment process rests on the presumption that Congress can get what it needs to pass judgment on the chief executive. One of the discoveries of the Impeachment Summer of 1974 was that this process gets very difficult if the president uses his staff and the resources of the executive branch to actively subvert the process. Upstairs in the White House, Nixon had desperately tried to edit out his crimes to stay in office. He had forgotten that the House had access to a few of the original tapes, and could make its own truer transcripts, because he had handed these tapes over to Sirica and the special prosecutor in late 1973. As a result, the April 30, 1974, transcripts were additional proof of obstruction of justice, an impeachable offense.
Nixon’s time in office was running out. On July 17, 1974, Butler went to lunch with a Republican colleague in the House Virginia delegation. Congressman Joel T. Broyhill told Butler that the smart play would be to support the president: “A vote for impeachment will offend your diehards, and you won’t get any votes from Democrats,” he said. Butler knew that, politically, Broyhill was right, but he considered the partisan argument a crutch since his obligations on the committee were constitutional, not political.
“You better start educating your people that impeachment is not a conviction,” Butler replied. “A vote for impeachment is a vote for a trial.” He had all but made up his mind.111
On July 18, Nixon’s lawyer James St. Clair gave an elegant and powerful rebuttal before the committee. The president could not be impeached by the actions of his own lieutenants, he argued. Pointing to the perceived weakness of the materials amassed by the committee, St. Clair insisted that only “clear and convincing evidence” of presidential authorization for the misdeeds of Haldeman, Ehrlichman, Mitchell, and Dean should lead to impeachment. And St. Clair did not see any.
Then St. Clair made a mistake. He used a dramatic gesture to show how little the committee knew about his client’s true motivation. He introduced a transcript of three minutes of tape from a conversation with Haldeman on March 22, 1973, that purported to show Nixon’s unwillingness to proceed with the demands for hush money outlined by John Dean on March 21. Where had this tape been? It had been subpoenaed by the Judiciary Committee, but until this moment Nixon had not thought to offer it. The White House’s ploy was more than cynical; it was offensive and stupid. By dangling a helpful piece of tape, Nixon and St. Clair were reminding the entire committee that they really didn’t know what Nixon didn’t want them to know. “It was a low blow,” recalled Walter Flowers.112
Following St. Clair’s defense statement, the House Republican leadership held an afternoon caucus. Despite his doubts about Nixon, which he had expressed back in May, Minority Leader John Rhodes had decided that at this pivotal moment in history Republicans had an obligation to defend Richard Nixon. Unlike the Mugwumps, Rhodes, who was a pedestrian leader, lacked the imagination to think beyond tribal loyalty. Ed Hutchinson chimed in that he assumed that all seventeen committee Republicans would vote against impeachment. The president’s most articulate defender on the committee, Charles Wiggins of California, responded that there wasn’t “a scintilla of evidence” proving the president himself had committed a crime. Wiggins was going to defend Yorba Linda’s favorite son unless someone showed him the kind of smoking gun that sent people to jail in mystery novels.
But unanimity was impossible for the Republicans in July 1974. John Anderson, the third ranking Republican in the House, took “violent exception” to Wiggins. Since the mini-crisis in May when Anderson had called on the president to resign, he hadn’t changed his mind that Nixon had to go. Anderson believed that anything less than impeachment would send the signal that Congress condoned Nixon’s obstructionism and abuses of power. Railsback also spoke up.
Caldwell Butler said nothing at the meeting, but Rhodes’s call for tribal loyalty did not move him. “I think we as the Republican Party ought to be measured by how it responds to the problem,” he recorded in his diary the next day. “If we respond by condoning or putting our feet in the ground we are really going to hurt the party.”113
The partisanship of the GOP leadership on July 18, 1974, spurred the Mugwumps on the committee to action. In the days since the water cooler conversation, they hadn’t reached out to any Democrats. That evening three of them approached two of the key Southern Democratic members, James Mann and Walter Flowers, who were happy to see them. “I want to be sure we are not going to lose this thing on the floor [of the House] if I vote for impeachment,” Flowers told the Republicans. He knew his vote would be influential among Southern Democrats. Flowers and Mann both believed that if they and Raymond Thornton of Arkansas presented a unified front, between thirty and forty Southern Democrats in the House would follow their lead. But the articles they approved must be defensible to others like them.114
Bill Cohen stressed that there were only two reasons to impeach Nixon: agency abuse and obstruction of justice. Mann and Flowers agreed. They disliked the view of liberal Democrats that Nixon should be removed for offenses beyond the context of the Watergate break-in and cover-up, such as for attacking Cambodia, for impounding money appropriated by Congress, or for selling ambassadorships. However distasteful these actions were, they did not warrant impeachment.115
The testimony from the live witnesses was not the only source of glue allowing the members to pull Doar’s material together. Rodino and Doar had taken the shock of the Democrats’ pushback at the end of June to heart, too. They encouraged Dick Cates, who remained loyal to Doar, to begin holding voluntary seminars with interested committee members to demonstrate how the evidence could be assembled to make the case of impeachment. Initially these discussions were for Democrats only, but in mid-July Cohen and Fish asked to be included. Fish, who had found the live witnesses less impressive, credited Cates with “having such familiarity with it that he could…weave a plausible story.”116 Despite the fact that Cates was now doing unofficially and quietly what Jack Brooks and the hard-line Democratic impeachment crowd had wanted him to do publicly and officially, pressure was still mounting on Doar among the Democrats to be an advocate for impeachment.117
“John felt strongly that the committee did not want the staff or John or anyone reaching a conclusion for them,” recalled staff member Evan Davis.118 But in July, Rodino made the case to Doar that he had to. Jack Brooks had already started distributing his own draft articles of impeachment, and it was unlikely that any Republican or Southern Democrat would support them.
On July 19, Doar passed around some draft articles of impeachment, largely written by Judiciary Committee staff with input from him and his former special assistant at the Justice Department, professor Owen Fiss of the University of Chicago Law School. The staff also produced a “summary of information,” a condensed and pointed version of the thirty-six volumes of statements of information. Finally, also on July 19, Doar himself gave a presentation arguing for impeachment.
Although they appreciated Doar’s presentation, the Mugwumps and Southern Democrats did not believe they could vote for any of his articles either. “Running through those articles were allegations that…were not supported by evidence,” Railsback recalled. In some cases this involved “imputing misconduct by his subordinates to the President and holding him impeachable for those reasons.”
“I do not know of a Republican,” he concluded, “who could support any one of those articles.”119 Among the southern Democrats, Walter Flowers didn’t even read them.
On July 21, Railsback, while studying the summary of information at his home in Western Springs, Illinois, concluded he was ready to vote to impeach the president for direct involvement in the cover-up. “I could see that the President had not, in fact, been telling the American people the truth and that this was direct involvement on his part.” Railsback now knew that Nixon had lied when he told the nation that once he had heard about the cover-up from Dean in March 1973, he had acted to shut it down. On April 29, in his televised speech introducing the infamous transcript, Nixon had vowed, “[A]fter March 21…my actions were directed toward finding the facts and seeing that justice was done, fairly and according to the law.”120
“There were statements that he made that had been reliably contradicted,” Railsback recalled in thinking back to all of the times that Nixon had lied to the American people about Watergate. Doing this review “all of [a] sudden gave me a sense of decision and conclusion and finality that I could vote for impeachment and have good evidence behind me,” Railsback recalled.121 Once he had made up his mind to vote for impeachment, he also decided he had to do something about the draft articles.
James Mann knew something about Doar that Railsback didn’t: Doar wasn’t committed to his own articles. He cared only about getting the votes of the undecided. “I saw my role,” John Doar later recalled, “if there was to be a vote to impeach the president, to have the vote of the committee be at least two-thirds, and if you want to know what I thought about all that six or seven months, that’s what I thought about.122
Doar had a partner in James Mann, who was by now convinced that Nixon was guilty of impeachable conduct. In recent weeks, Doar had been conferring a lot with Mann, meeting him at about 8:00 A.M. almost every morning. Around July 16, two or three days before Doar formally sent his articles to the entire committee, he showed them to Mann. By Monday, July 22, 1974, Doar and Mann were heading a small group of staffers and Democrats secretly reworking the articles.123
The Democratic caucus on July 22 was the last one before the committee was set to begin a televised debate. All three Southern Democrats were ready to impeach Nixon, but they had yet to start working together, even though they still shared a concern that their liberal colleagues would present them with unacceptable articles of impeachment. “There was still strong discussion by some Democrats about Cambodia and about taxes and everything,” Thornton recalled. Unknown to Mann or Doar, Thornton had written up his own article of impeachment, which emphasized Nixon’s role in obstructing justice as a participant in the cover-up.124 Thornton read it to the caucus and from Mann’s reaction realized that they were on the same page.
The focal point of the entire impeachment process now shifted to this handful of Southern Democrats and the Republican Mugwumps. “Rodino understood,” Elizabeth Holtzman of Brooklyn later recalled, “and I think by that time most of us understood, that impeachment was never going to happen unless Republicans participated and Southern Democrats participated.”125 Since not a single Republican vote could be taken for granted, Rodino needed a majority of the Southern Democrats—Flowers, Mann, and Thornton—to pass any articles of impeachment.
Following the afternoon meeting of the entire committee, where members discussed the procedures for the forthcoming televised debate, Walter Flowers went over to Tom Railsback to suggest a meeting of the Southern Democrats with the Mugwumps “for the purpose of deciding what we wanted to do.”126 Railsback suggested meeting in his office at 8:00 A.M. the next morning. That night, Mann, Flowers, and Thornton got together for the first time that impeachment summer to discuss over bourbon a common strategy with their new Republican allies.
The next morning the Mugwumps met the Southern Democrats. The meeting began with Flowers, Mann, Thornton, Butler, and the minority counsel Thomas Mooney joining Railsback in his office. Fish and Cohen then walked in.
The sight of Caldwell Butler emboldened Railsback. The fact that a conservative Southern Republican “would have enough guts to adhere to his convictions” was an immense source of confidence for Railsback. They were all bucking the pressure from their own leaders and constituents.
Even though the meeting took place in his office and over the weekend he thought he had found direct evidence of Nixon’s participation in the cover-up, Railsback was still open to finding a way to penalize the president short of impeachment. He opened the meeting asking whether the right punishment for Nixon was truly impeachment. For about thirty minutes, the group wondered whether it was right to tie up Congress for six months, which would be the effect of choosing to impeach Nixon rather than censure him. To a man, however, they rejected censure. Once all had rejected the idea of anything less than impeachment, Flowers set the tone for the meeting: “Let’s get all this evidence and shake it down and see what are the areas we really agree on here.”
Thornton shared his conviction that Richard Nixon represented a threat to the U.S. Constitution. Mann’s view was that the American people needed to be educated about the extent to which Nixon’s conduct posed a threat to the country. He couldn’t think of an alternative to impeachment to deliver that message. The group decided that Nixon should be impeached for obstructing justice—the cover-up—and for abusing his presidential powers. Flowers and Fish both believed that the press, which all agreed was biased against Nixon, was missing the big picture of the threat that his very conduct posed.
Besides agreeing that they would all work together to impeach Nixon, the group decided to draft the necessary articles. The bipartisan coalition—which Flowers called an “unholy alliance” and Railsback later dubbed “the fragile coalition”—asked Thomas Mooney to work up a new article on obstruction of justice with Railsback, and Cohen and Mann were to write an article on abuse of power. Mann would route these drafts through the drafting group that he and Doar had set up earlier so that the partisans would not know where they came from. At the end, the group also decided they would not tell the press about themselves.127
For months, Lou Cannon of The Washington Post had been covering the impeachment proceedings. A Californian who had started in journalism covering Californian politics, Cannon typically started his day by checking in on his current beat with three of the Judiciary Committee’s Californian members, Democrat Don Edwards, and Republicans Carlos Moorhead and Charles Wiggins. Today he doesn’t recall who told him about the extraordinary meeting that had just occurred. When Cannon called Railsback to confirm what he had picked up, the congressman panicked. He wanted Cannon to hold the story. The group had just gotten together, and he worried that the GOP leadership would come after them. Cannon felt he had to go with the story but promised not to use the name of minority staffer Tom Mooney, who was working on an article of impeachment, since Railsback convinced him Ed Hutchinson would fire Mooney.128
Whoever told Cannon told others. Journalist Elizabeth Drew, whom Railsback had met for lunch the day before, noted in her impeachment diary on July 23 that “at the moment, the meeting is still something of a secret.”129 By the afternoon, news of the first meeting of “the unholy alliance” that morning had spread to the White House.
Just before 4:00 P.M. Washington time (1:00 P.M. at Nixon’s Western White House in San Clemente), Bill Timmons called Haig to say that it looked as if the wall of Southern Democrats—Flowers, Mann, and Thornton—that Nixon counted on was crumbling in the House Judiciary Committee. After a series of calls to politicians across the country, and especially the South, to gauge opinions, Haig felt he had no choice but to call Alabama governor George Wallace, a potential last-ditch ally for Nixon among influential Southern Democrats. Months earlier the governor’s chief aide, Taylor Hardin, had told Haig “to call on Wallace if there was anything he could do to help.”130 With impeachment closing in, there was no better moment. Wallace could probably help with Walter Flowers, who had been his campaign manager in 1968.
Haig called the governor’s office at 3:11 San Clemente time, 5:11 P.M. in Montgomery, Alabama. Shockingly, Wallace’s assistant said that the governor would not speak to the White House chief of staff. He would speak only with Nixon himself. The news was just getting worse. This turn of events must have stunned Nixon, because he didn’t call Wallace immediately.
Mann, Thornton, and Flowers were highly respected, and if they were gone, Nixon could not hope to get the more than thirty to thirty-five conservative Democrats in the wider House to support him. Assuming that all of the Republicans would support Nixon—which the White House already knew was unlikely—he still did not have enough votes to suppress an impeachment vote in the House. However humiliating it might be, Nixon had to make the call to Wallace. He hoped Wallace could influence fellow Alabaman Walter Flowers’s vote, not because it alone was enough to alter the outcome in the Judiciary Committee but because it could influence other Southern conservatives not to abandon their president when the entire House voted on impeachment. Nixon had to grovel. At 3:52 P.M., Nixon was speaking to Wallace. The conversation would be a turning point for Nixon in his impeachment crisis.
“When I got Wallace on the phone he played it cozy,” Nixon later dictated to his diary. “He said he couldn’t quite hear me at first, and then said that he hadn’t expected the call, that nobody had told him about it.”
Nixon must have said something about the weakness of the evidence that his enemies in the House had arrayed against him because, as Nixon noted, Wallace said “he hadn’t examined the evidence” and added “that he prayed for me.”
Nixon felt he still had to make his political request. He needed Wallace to call Flowers and ask him to support his president. Wallace told Nixon “he didn’t think it proper for him to call Flowers, that he thought Flowers might resent it and that if he changed his mind he would let me know.”
Nixon understood he was being brushed off. “I knew when I hung up the phone that he would not change his mind.”
After the call with Wallace ended, Nixon turned to Haig and said, “Well, Al, there goes the presidency.”131
Less than twenty-four hours later, Nixon’s presidency suffered yet another blow. Outside the House, the special prosecutor Leon Jaworski had continued his fight for the Nixon tapes on a parallel track to the impeachment proceedings. After the White House refused to comply with an April 18, 1974, subpoena from the Watergate grand jury, Judge Sirica ruled against the president. Jaworski with St. Clair’s agreement then opted to fast-track the issue to the Supreme Court.
At 11:05 A.M., July 24, 1974, the clerk announced the Supreme Court decision in United States v. Nixon. It was unanimous.
The court recognized the concept of executive privilege but said that it could not prevent the sharing of presidential materials—the tapes—with the investigation of a criminal matter. The court was not intervening in the impeachment proceedings, as this case had to do with materials subpoenaed by the special prosecutor in April 1974. But the decision would ultimately have the effect of cutting both the impeachment process and Nixon’s second term short.
White House counsel Fred Buzhardt was the first high-level Nixon official to read the decision. The game was over for Nixon. For just over a year, Buzhardt had known that Nixon would be found guilty of obstruction of justice if the tapes from the summer of 1972 were ever released. Sometime in mid-1973, in an effort to be able to defend the president, Buzhardt had listened to those tapes. For a year, Buzhardt had apparently justified his role in preventing disclosure of evidence of the president’s complicity in a crime as a lawyer would in defending a guilty client. But the Supreme Court decision had altered circumstances irrevocably. If the investigations continued and Nixon did not hand over the tapes, Buzhardt himself might be guilty of obstruction of justice.132
He called Alexander Haig in California. It was just after 8:00 A.M. at the Western White House. We will likely never know exactly what Buzhardt said, because he and Haig would later spin a web of deceit about the events of this day. “If you only knew what happened,” Haig teasingly told Bob Woodward months after the Nixon presidency had ended.133 But there is enough to sketch out the likely timetable of events. There can be no doubt that the country danced on the knife-edge of a constitutional crisis without most anybody outside San Clemente knowing it.
At some point that day—likely in the morning—Buzhardt laid out for Haig his recommendation for the president. Buzhardt believed Nixon should resign without complying with the order so that the tapes, especially the June 23, 1972, tape, never saw the light of day. Buzhardt also suggested “mooting” any future criminal case against Nixon by having him pardon all of the convicted and indicted men, and perhaps Buzhardt as well, just in case. Haig agreed to let Buzhardt begin drafting a list of people to be pardoned.134
Buzhardt also called Nixon’s impeachment lawyer, James St. Clair, who was in San Clemente, to let him know. St. Clair dismissed Buzhardt’s concerns. He did not believe any tape could be that damning. His advice to the president would be to comply with the court order and hand over the tapes.
Nixon was beside himself when he learned of the Supreme Court’s decision from Haig.
“There’s no air in it at all,” said Haig.
“None at all?” Nixon asked incredulously.135
Nixon was determined never to let any judge, prosecutor, or member of Congress hear the June 23, 1972, tape in which he directed the CIA to quash the FBI investigation. His great hope had been that the Supreme Court would recognize a national security exemption—i.e., give him some “air”—that would allow him to declare the June 23 tape out of bounds because it involved the CIA. Richard Nixon still believed he deserved to be president of the United States whatever his conduct.
It was at this moment that General Alexander Haig defected to the Union. With the exception of the eight days that he had delayed the firing of Archibald Cox in October 1973, Haig had actively enabled the darkest of Nixon’s intentions since becoming chief of staff the previous May. He had actively avoided knowing what Buzhardt could have told him—he refused to listen to a single tape—with the effect that he could single-mindedly engage in thwarting the courts, the Congress, and the public from learning about Nixon’s actual conduct—1972–73.
Now the U.S. Supreme Court had weighed in, the truth would come out, and Haig was not about to go down with the Nixon ship. Haig and Nixon spent the next four hours, largely alone but sometimes with St. Clair, discussing what to do. St. Clair counseled compliance, but he had no juice with the president. It was Haig who managed to wear Nixon down. Had Nixon followed his instincts that day, the United States would have plunged into a constitutional crisis.
In the end, Nixon accepted a middling position. He would not pardon anyone. He would respect the court order, but he would drag out compliance—holding on to the June 23 tape as long as possible, certainly past the vote the Judiciary Committee expected in a few days. At 7:00 P.M., eight hours after the court had issued its decision, St. Clair announced that Nixon would comply, as if there had never been a doubt.
The members of the emerging bipartisan block on the Judiciary Committee knew nothing about these events in California. They were caucusing again in Railsback’s office when the news broke of the 8–0 decision in United States v. Nixon. Their concern was still how to draft articles of impeachment that they could support. When they later heard that Nixon would comply with the court’s decision, it was decided that they would leave it up to the full House to assess the import of the new tapes. The coalition felt they had enough to support impeachment for obstruction of justice and doubted Nixon would have fought so hard to prevent the release of tapes that would exonerate him. Railsback, at least, hoped there could be more evidence—directly implicating Nixon and not just his lieutenants—to justify the abuse of powers article.
A few hours later, likely in response to the Supreme Court decision, someone leaked that direct evidence to the media. At the tail end of the September 15, 1972, conversation with Dean after the first indictments, Nixon had complained about the lack of progress in siccing the IRS on his enemies. Initially Judge Sirica had ruled that portion of the conversation—lasting about seventeen minutes—irrelevant to the special prosecutor, and it neither went to Jaworski, nor later to the Judiciary Committee.136 The leak was a transcript of those seventeen minutes, and the leaker was likely someone in the White House. Was it Haig? We may never know, but it was likely a Republican who wanted to give Nixon a final push out. No one in either the House of Representatives or on the Watergate Special Prosecution Force had that transcript, and the Sirica court did not make transcripts.
When a friendly journalist made sure Railsback saw this information even before it was published, the congressman immediately grasped that this was the hoped-for smoking gun to prove presidential abuse of powers.137 The quotes from the tape confirmed John Dean’s testimony to the Judiciary Committee. Railsback lost no time in telling Caldwell Butler and letting him take a look at it. Until that moment, Butler had believed there was only a “thin reed” linking Nixon to misuse of the IRS.138 Railsback then arranged a secret meeting with three Nixon diehards—Wiggins, Wiley Mayne of Iowa, and David Dennis of Indiana—in a staffer’s office.
“Look, men, here’s what I’ve got. I wonder whether this will make a difference to you,” Railsback explained. Wiggins shrugged it off. It was too late. The others agreed with Wiggins. They would vote no on any article of impeachment, and this piece of purloined evidence was not enough to change their minds.139
As the bipartisan group worked behind the scenes with the blessing of Rodino and Doar to develop articles that would be broadly supported, the public witnessed the first televised debate on presidential impeachment. Over the course of July 25 and July 26, 1974, each of the thirty-eight members of the Judiciary Committee would share their view of impeaching Richard Nixon with the American people. All the Mugwumps and the Southern Democrats revealed that they intended to vote for impeachment, surprising and, in many cases, disappointing their constituents. Although ultimately not a member of the bipartisan group, Barbara Jordan had decided to support impeachment. In fact, Jordan would electrify the nation with her eloquence and become a household name.
There was an ugly side to this public disclosure. Overnight, Thomas Railsback began receiving death threats, and his family was given FBI protection. Caldwell Butler’s wife was getting crank calls, and another caller told a member of his staff, “Your life isn’t worth a nickel.”140 Similarly, Bill Cohen’s wife received alarming calls, and anti-Semitic letters showed up at his office.141
Even before the start of the Judiciary Committee’s public hearings, President Nixon’s approval rating had dropped to 24 percent, the lowest of his presidency, with 53 percent of Americans supporting impeachment.142 At the same time, Nixon’s base seemed to be getting angrier and was lashing out in response to the growing calls for his removal.
Meanwhile, the bipartisan effort on the Judiciary Committee annoyed both Democratic and Republican partisans, and Friday, July 26, 1974, brought their last offensive. The Democratic partisans decided to force the Mugwumps to vote on every article of impeachment separately, thus drawing out the political pain for them, since each vote would be televised to their constituents. For some time the Southern Democrats and the Mugwumps had been telling Rodino it would make their task easier if they could vote on all of the articles of impeachment at once, rather than having the committee take up each article individually. Rodino tried to help them but lost this battle.
Later that day, the Republican partisans led their own attempt to get revenge. Charles Sandman and Charles Wiggins attacked the article on obstruction of justice for lacking specificity. At Doar’s insistence, and with the acquiescence of the bipartisan group, the article alleged that Nixon had adopted “a policy” of covering up. In front of a national audience, Wiggins very effectively pressed the supporters of impeachment to prove that such a policy existed, and they couldn’t.143
“By the time 6 P.M. rolled around…after constant requests for specificity, we, the coalition, felt like a battered boxer waiting for the bell to ring in order to retreat to a quiet corner,” recalled Butler.144 The bipartisan group gathered during the dinner break to figure out what to do. Bill Cohen believed the impeachment process was “in danger at that point.”
“Damn it,” he told the others, “I’ll draft article one myself if I have to stay up all night to do it.”145
None of them was considering throwing in the towel. It was too late for that. Walter Flowers believed they had a special moral obligation to respond directly to the challenge made by Nixon’s defenders on the committee. “The American people identified with those of us in the middle,” he recalled. Only this bipartisan coalition could effectively explain to most Americans why Nixon had to go. “If we are going to impeach the president of the United States,” Flowers said to the group that evening, “we are going to have to do a good, clean job of it, and it’s time we took over.” Resolved to proceed, the men calmed one another down and decided against adding more specifics to the article—it would then be sixty pages long—but to find another way to include more details in the debate. They needed the impeachment inquiry staff’s help.
Overnight, Doar’s staff went into overdrive producing a document linking evidence to every part of the article. And Flowers used parliamentary procedure during the morning session to introduce specifics related to every count into the public record. Then Railsback proposed an amendment, which passed, that removed the reference to an explicit presidential policy. The article now very clearly stated that Nixon was being impeached for obstruction of justice because of demonstrable presidential actions and not because of a theory that the sum total of the actions of his subordinates suggested an explicit presidential policy.
At 7:00 P.M. on July 27, 1974, the committee finally voted on the first article of impeachment. Butler, Cohen, Fish, Flowers, Mann, Railsback, and Thornton supported article one, ensuring for the first time in U.S. history that the impeachment of a president could reflect a bipartisan will. With Republicans Lawrence Hogan of Maryland and Harold Froehlich of Wisconsin also supporting the article, the vote was a lopsided 27 to 11.
The abuse of powers article sailed through 28 to 10 on July 29, and a third article, dinging Nixon for refusing to comply with the committee’s subpoenas, also passed. The third article, however, received fewer Mugwump votes, and Mann and Flowers opposed it. Articles regarding the secret bombing of Cambodia and Nixon’s tax evasion did not pass, failing even to get enough Democratic votes.
At this point, Nixon’s removal from office became highly likely. As the members of the bipartisan coalition understood, the fact that Southern Democrats and so many Republicans supported the first two articles of impeachment ensured that the president would be impeached by the House. And as he had been warned in the wake of the Saturday Night Massacre, his support was even weaker in the Senate.
Nixon made a last lonely, futile effort to cheat the odds. Buzhardt and Haig had transcripts made of the June 23, 1972, tape, in which Nixon ordered the CIA to obstruct the FBI Watergate investigation, and decided to test the waters with Nixon’s diehards on the committee.
There is no one who had worked harder and more intelligently on the committee for Nixon than Charles Wiggins of California. Wiggins, who had voted against all of the articles, was invited to the White House on August 2 to read the transcript. Wiggins was devastated. It was one thing to receive a purloined tape transcript from a journalist, which was the case when Railsback had shown him the IRS conversation transcript on July 25. But this was the White House’s official transcript. The president had committed a crime.
It takes great courage for a politician to change his mind after he has taken a public position on a matter of consequence. And there was nothing for that generation of elected officials of greater importance than the impeachment of Richard Nixon. “Holy smoke! It’s all over,” Wiggins told Haig, before bitterly criticizing the White House. He felt personally betrayed by Nixon.146 Wiggins did not consider himself some mindless partisan who defended a president of his own party because that is what was expected. Rather, he had a narrow view of impeachment and had voted accordingly.
As journalist Lou Cannon, who knew Wiggins, later noted, “It was one of those rare cases in political history, when people change their position 180 degrees by the facts.”147 Wiggins issued a public statement saying he would vote for impeachment when the matter came before the whole House. So, too, did Trent Lott, who was also privately shown a transcript by the White House.148
The walls closed in on Nixon. When the White House publicly released a transcript of the June 23 conversation, on Monday, August 5, 1974, Republican senators had the same reaction as Wiggins. Nixon was a liar and a criminal. That night Bill Timmons reported to Haig that the number of senators Nixon could count on had dropped to seven. Nixon learned the news while cruising on the presidential yacht Sequoia.149
The next morning Barber Conable of New York, an influential Republican congressman, called the June 23 transcript “the smoking gun” and approached the Democratic leadership to recommend fast-tracking impeachment by the full House. Rodino contacted Sarbanes of Maryland, Don Edwards of California, Mann, and Railsback, who were likely to be the House managers when the issue reached the Senate.150 The Democrats and the Republicans thought that there was so little opposition they could get the whole thing over with in the House in two days.
The president perceived that his remaining support in the Congress had collapsed. That same day, August 6, Nixon tasked his best speechwriter, Raymond Price, to write a resignation speech. After a choreographed dance that included a visit from Republican congressional leaders on August 7, Nixon told the nation of his decision to resign on August 8, effective the next day.
On Friday, August 9, 1974, Nixon chose to give a eulogy at his own political funeral. After leaving the East Room and flying from the South Lawn on Marine One, Nixon left the capital before Congress could formally impeach him.
Barbara Bush, who witnessed the president and the First Lady’s departure alongside her husband, chairman of the Republican National Committee George H. W. Bush, remembered that “by the time we re-entered the White House all of the pictures [of Nixon] had been changed.”151 Gerald Ford’s face now smiled from the official presidential portrait. The U.S. government hadn’t missed a beat.
Another photograph was emblematic of this extraordinary historical moment. The day after the House Judiciary Committee had ended its impeachment hearings in July, Caldwell Butler and his wife, Virginia, visited with Peter Rodino in his office. Rodino was on the cover of the current issue of Time, and the Butlers wanted their copy of the magazine signed. Butler was as much of a conservative Republican as ever, but he was proud of his work with his liberal Democratic chairman. The signed photograph became a keepsake of an unusual bipartisan moment in American history.152
Had Richard Nixon not resigned, he would certainly have been impeached by the House and most likely convicted by the Senate. Peter Rodino and John Doar had been essentially right about the preconditions for a successful presidential impeachment: There had to be a commonly accepted baseline of facts, an atmosphere of trust among the members of the House Judiciary Committee, and a disciplined commitment by the committee chair and the inquiry staff to bipartisanship.
But those were only the preconditions.
Even still, Richard Nixon very nearly finished his second term. His impeachment holds worrisome lessons for future Congresses. Law enforcement and the judiciary had evidence of Nixon’s criminal behavior eight months before he left office, and yet there was no predictable way to ensure his removal. Impeachment is a political process, not a legal one, and by hampering access to information while encouraging his defenders to demand a very high level of proof of direct presidential misconduct, Nixon almost stymied that process. But Nixon had made tapes, and the public and Congress learned about those tapes before he could destroy them. Fortunately for the nation, Richard Nixon could never figure out how to untangle himself from those tapes. Equally fortunate for the nation was the fact that in 1974 a group of elected officials, from both parties, were prepared to take political, and even personal, risks to follow that evidence wherever it led for the sake of a Constitution they all revered.