CHAPTER SIXTEEN
1969-1973
There was not much reason for me to distrust Richard Nixon at the outset of his presidency. The early stages of my acquaintanceship with him were congenial. He was both interesting and entertaining. In the spring of 1953, when I came home from the army, I went down to Washington to visit my brother the new senator, and Nixon, the new vice president, spotted me in the Capitol. (As president of the Senate, the vice president has an office in the Capitol building.) He invited me in, and we spent a cordial forty-five minutes in conversation.
Jack liked him as well back then. My brother and Nixon had both been elected to Congress in 1946, and the two of them would often chat and joke with each other. Jack respected that Nixon was also a navy man, and he found him to be intelligent and pleasant. I suppose that neither of us had been paying all that much attention when Nixon ran his lessthan-pleasant campaign for the Senate in 1950, which he won by attacking his Democratic opponent, Helen Gahagan Douglas, as a communist sympathizer and dubbed her "the Pink Lady--pink right down to her underwear."
In later years, Nixon did not feel quite so pleasant toward me or members of my family. He was bitter over his narrow loss of the presidency to Jack in 1960. And he had lost the governorship of California to Pat Brown just two years later. Still, he came back again to win the presidency over Hubert Humphrey in the rubble of all that had disintegrated in the year 1968. He won by less than a percentage point, as the third-party candidate George Wallace of Alabama swept five traditionally Democratic states in the Deep South and pulled away more than 13 percent of the total votes.
It was clear I'd infuriated Nixon with my May 1969 speech denouncing Hamburger Hill and, by extension, the Vietnam War policies that he now administered. Almost immediately after that, I began tangling with the administration over a series of Supreme Court nominations that I and others felt were antithetical to the court's independence from ideology. My base of operations was an obscure Judiciary subcommittee that I had agreed to chair in that same year: Administrative Practices and Procedures.
In the past, "Ad-Prac" wielded little legislative influence, and few people outside the Senate even knew it existed. But my growing understanding of the ways the Senate operated told me it had the opportunity to be otherwise. It was true that Ad-Prac had statutory jurisdiction over only a small number of areas. But as I discovered, it enjoyed a surprisingly broad mandate--essentially the entire federal bureaucracy--for administrative oversight. Over the ensuing years, our subcommittee was able to change federal policy in varied and substantial ways. For instance, with the help of a young staffer who served as special counsel to the committee in 1974, we deregulated the airline industry and abolished the Civil Aeronautics Board. That young staffer was Stephen Breyer, now associate justice of the United State Supreme Court.
My opposition to the administration's policies was not personal, but Nixon took things quite personally indeed. I quickly drew his distaste, as well as his need for control and vengeance. By 1971, although I didn't know it at the time, I was a member of his infamous "enemies list." Since the tally of those "enemies" eventually reached forty-seven thousand, I was never really able to savor a sense of prestige at being included, even after I found out about it.
In May 1971, the president directed his chief of staff, H. R. Haldeman, to wiretap my telephones, along with those of Ed Muskie, Hubert Humphrey, and several other Democrats. He also had assigned his operatives to research and put their own spin on the Chappaquiddick tragedy to maximize the damage to my reputation and perhaps end my Senate career. He ordered his aides to plant two spies within my Secret Service detail. Their assignment would be to catch me in the company of another woman. It is not clear whether that directive was ever carried out. A batch of recently released papers from the Nixon Library included one of Haldeman's notes, reminding himself, "Get him--compromising situation.... Get evidence--use another Dem as front."
As to Nixon's Supreme Court appointments and his other misadventures with the Constitution:
My daughter Kara not long ago gave me a lovely Christmas present: 200 Notable Days: Senate Stories, 1787 to 2002. It was written by the splendid Historian of the United States Senate, Richard A. Baker. Its narratives contain several references to James Madison's seminal Notes of Debates in the Federal Convention of 1787, the event known familiarly as the Constitutional Convention. Madison shows clearly that the last major decision on the appointing of justices effectively divided the responsibility between the president and the Senate. This principle--"advise and consent" is its familiar label--is far too often overlooked during consideration of appointments to the federal bench. The president is usually able to convince the American people that he has sole authority and responsibility for these appointments, and that unless one can find an egregious circumstance, the overwhelming requirement on the Senate is to defer to the president and approve the nominee. But the Founding Fathers did not intend it that way. Quite significantly, they stipulated that justices would have lifetime appointments--which implies enormous responsibility for interpreting the Constitution. To help regulate that responsibility, they provided for the utmost deliberation, and assigned that deliberation to the Senate.
These different views on the standards for confirmation didn't really come into play, however, until Richard Nixon put them to the test. Prior to his administration, nominations were made based on suitable judicial temperament, experience, integrity, independence, and knowledge of the law, and there was a strong bias in favor of confirmation. Nixon skewed the process, however, by substituting political ideology for judicial independence. For many of us, that change in nomination procedures meant a change in the level of confirmation scrutiny.
The first confrontation erupted in July 1969, just six months into the administration's first term. Abe Fortas, a liberal-leaning associate justice and close friend of Lyndon Johnson, resigned from the Court after questions arose over a retainer he had accepted from a financier friend who later went to prison for securities violations. Nixon's choice as a replacement was a solid southern conservative: Clement Haynsworth of South Carolina, then chief judge of the Fourth Circuit Court of Appeals. This was the same Clement Haynsworth who had been a judge in Tunney's and my winning moot court argument at the University of Virginia back in 1959. He was the first southerner to be nominated to the high court since 1942.
The early support for him was strong, and consensus had it that he would be easily confirmed. But almost immediately, several civil rights groups declared their intention to oppose him. They charged that Haynsworth had contrived to undercut the mandates of Brown v. Board of Education at a time when the law required him to expedite school desegregation. They also pointed to his judicial opinion upholding the right of a hospital that practiced hiring and patient discrimination to receive federal funds. There was also strong opposition from organized labor. In my questioning, I handled the nominee gently at the outset. Anticipating that he would refuse to discuss specific cases, I tried to elicit whether Haynsworth was sensitive to the dynamic social forces of the times, and in particular with the grievances of the young, the poor, and the minorities of America. If he showed that he was not, I reasoned, one could argue that his votes on freedom of speech and defendants' rights might reflect his indifference, if not hostility, to such forces.
Haynsworth saw it coming. We fenced carefully. I tried several variations of my inquiry. How did he view the frustrations of young and poor people? What did he see as the underlying causes? But the dignified Haynsworth stuck to artfully bland responses. The committee voted to recommend confirmation by a vote of ten to seven. I coupled my dissenting vote with a request to President Nixon that he withdraw the nomination. Media and public opinion had by now turned sharply against Haynsworth, and some Republican senators joined me in this request. Nixon refused. In the sharp floor debates that followed, there were allegations of a conflict of interest, and Democratic and Republican support for the nominee further eroded. In November his confirmation was rejected, fifty-five to forty-five, with seventeen Republicans, including several members of their leadership, voting no.
The Senate's repudiation of the president's chosen candidate for the Supreme Court sent shock waves through Washington. It was a game changer. A president's nominees would no longer be rubber-stamped by a compliant Senate.
The defeat exposed Nixon's deeper propensities for control and revenge. The outraged president vowed in effect to stuff his next nomination down the Democrats' throats. He is reported to have ordered an adviser to "go out this time and find a good federal judge further south and further to the right." Nixon's reasoning was that the Haynsworth defeat had given him carte blanche: liberal Republicans would not dare buck their president in a second straight confirmation process, and many Democrats would feel equally reluctant--enough to make a second repudiation next to impossible.
Nixon's designated adviser was Harry Dent. Dent was the conceptual thinker behind Nixon's "Southern strategy" of increasing his base and converting Democrats in the South by assuring them that he would not force civil rights laws on unwilling states.
Dent went out and found G. Harrold Carswell, a U.S. Court of Appeals judge from Tallahassee, Florida. Florida newspapers promptly published a speech Carswell had made in 1948 while campaigning for the state legislature: "I believe that segregation of the races is proper.... I yield to no man in the firm, vigorous belief in the principles of white supremacy."
The day after the Florida press disclosures, a damning bill of particulars surfaced via the offices of Marian Wright Edelman, the visionary activist lawyer and founder of the Washington Research Project and the Children's Defense Fund, who had warned us that we were making a mistake when the Senate confirmed Carswell to the 5th Circuit without a serious fight in June of 1969. Listing Carswell's efforts to slow desegregation in Florida schools, his uncivil manner as a judge toward black lawyers, and his refusal to hold hearings on habeas corpus petitions involving black defendants, Edelman and her fellow lawyers concluded that Carswell had been "more hostile to civil rights cases than any other federal judge in Florida."
Nixon's tactical calculations were uncomfortably close to the truth, at least at the outset. At a meeting on January 23, 1970, Birch Bayh, Joe Tydings, and Phil Hart agreed with Birch's oft-voiced perception that it requires staggering resources and energy to defeat even a bad presidential nomination.
I could not attend that meeting, but was represented by a first-rate young staffer, Jim Flug, a Harvard Law School graduate. Flug had made a meticulous head count of senators likely to support Carswell, those likely to oppose him, and those on the fence who might respond to "go along with proper kinds of brotherly pressure" and oppose the nominee. It appeared that Carswell could indeed be defeated. We went to work. As the Judiciary Committee hearings began on January 27, I bore in on news reports that Carswell, then a U.S. attorney, had maneuvered to keep a Tallahassee municipal golf course segregated even after such discrimination had been ruled illegal. He denied involvement in any such thing. Three days after that, another Flug memo, titled "How to Beat Carswell," listed sixty-one senators who might oppose the man "if we can get the full civil-rights apparatus working, which it's beginning to do."
Birch Bayh was an outstanding leader in this battle and wanted to delay the committee vote on Carswell for two weeks to allow public opposition to grow. He managed it via a clever parliamentary maneuver that outfoxed Strom Thurmond.
Nevertheless, on February 16, the Judiciary Committee voted to recommend the confirmation of Carswell by a vote of thirteen to four. Bayh, Hart, Tydings, and I were the four "no" votes. We authored a joint dissent that hammered at Carswell's "lack of achievement and eminence in the law," and at his basic competence as a judge. Meanwhile, our strategy of letting opposition grow was working. It soon reached a flood tide among dozens of law school deans and professors, poverty lawyers by the hundreds, and several of the most influential law journals. Liberal Republicans began to back away. And then on March 16 came what many feel was the coup de grace against Carswell--delivered not by the opposition but by a blooper from his own floor leader, Senator Roman Hruska of Nebraska.
The thickset and pugnacious Hruska, flailing for any kind of toehold as the tide turned against his man, blurted to a radio interviewer that even if Carswell was mediocre, there were lots of mediocre people in the country, and they too were entitled to representation on the Supreme Court. "We can't have all Brandeises and Frankfurters and Cardozos and stuff like that there," Hruska stoutly affirmed. It proved the most enduring quotation of his career.
Still, Nixon hung on, trying to marshal a counteroffensive against the backlash. Several southern judges endorsed Carswell, as did the American Bar Association; but these had little impact. In March we achieved another valuable delay, persuading Mike Mansfield to hold up a full Senate debate. This had the happy effect of giving the Senate time to complete action on the Voting Rights extension bill, which included a provision I'd long championed, lowering the federal voting age to eighteen. The extension passed, and we turned our energies back to the Supreme Court nomination fight. The New York Times had predicted that Carswell would narrowly be confirmed, perhaps by a forty-nine to forty-seven vote. But the actual results showed another embarrassment for Nixon. His nominee was rejected by fifty-one to forty-five, as thirteen Republicans joined the majority. (Seventeen Democrats, mostly southern, voted to confirm.)
Nixon publicly held his rage in check; he remarked icily and artfully at a press conference that the Senate, "as presently constituted," would not confirm a southern nominee who shared the president's vision of strict constructionism. A few weeks later, reportedly at the suggestion of Chief Justice Warren Burger, he nominated Burger's fellow Minnesotan and close friend, Harry Blackmun, to the Court. Blackmun held strong conservative credentials as well; but his answers to my questions at his hearing--he affirmed that the Court should continue to be "the real bastion of freedom and liberty" in the nation--told me he would be an acceptable choice. He was confirmed unanimously, and eventually became one of the most effective and outspoken progressives on the Court until he retired in 1994, and was replaced by my former counsel, Stephen Breyer.
Racial insensitivity continued to run through Nixon's Supreme Court nominees. When Hugo Black and John Marshall Harlan announced their impending retirements in September 1971, Nixon's first choice for the nomination was Congressman Richard Poff of Virginia. In 1956 Poff had signed the Southern Manifesto protesting the Court's landmark Brown v. Board of Education decision outlawing school desegregation. Poff declined Nixon's offer.
Eventually, Nixon nominated former assistant attorney general of the Office of Legal Counsel William Rehnquist and Lewis Powell, a moderate conservative from Virginia. I was lulled, at first, into a sense of relief when I saw these names. At least these were men of reputation and some accomplishment. And in fact Powell, who was confirmed easily, served as a centrist and consensus-builder on the bench for fifteen years.
Rehnquist was another matter.
I knew that Rehnquist's conservatism ran deeper than Powell's. He was rumored to have held questionable positions on race matters. Still, hoping with everyone else that a third standoff with the president could be avoided, I withheld any final opinion until the hearings. In retrospect, given the historic consequences, perhaps I should have pounced right away. But it probably would not have mattered. Nixon played this round with the instincts of a chess master in the endgame. He understood the steep odds against another standoff.
Controversy erupted almost immediately. As with the earlier nominees, the civil rights community mobilized its opposition to Rehnquist. Revelations surfaced that in 1964, just seven years earlier, he had testified in opposition to desegregating public accommodations in Phoenix--at the same moment, virtually, that Congress was en route to passing the Civil Rights Act. He was shown to have favored restrictive covenants in housing and to have fought school desegregation, remarking, "We are no more dedicated to an integrated society than we are to a segregated society. We are instead dedicated to a free society."
Charges also surfaced that from 1958 through 1964, Rehnquist, as a lawyer working for the Republican Party in Arizona, repeatedly had confronted black and Hispanic citizens at polling places in Arizona and tried to prevent them from voting. The NAACP released affidavits sworn to by two African-American men that they had witnessed Rehnquist challenging black voters at a Phoenix precinct in November 1964. One of these men added that a black woman had come to him in tears: as she'd stood in line, Rehnquist approached her and demanded that she recite the Constitution as a prerequisite to voting. After a scuffle involving the two men and Rehnquist, police removed the young lawyer from the precinct. He later returned in a car. Rehnquist responded by insisting that he'd been near the voting lines only to supply legal advice to people who were in fact challenging voters.
My opening-day questioning of Rehnquist on November 4, 1971, focused on the nominee's assaults on civil liberties. I grilled him on his role in supplying legal justification for the administration's use of wiretapping, electronic surveillance, and "no-knock" entries of residences in drug cases. I also pressed him on his role in "containing" the anti-Vietnam rally on the Washington Mall earlier that year, which resulted in the arrest or detention of twelve thousand peaceful demonstrators. That particular action was later voided by the courts on First Amendment grounds.
There was opposition fatigue, in the press, in the nation, and even in the Senate. No revelation of insensitivity on issues of race or violations of civil liberties seemed to resonate or stir opposition to Rehnquist. The nominee proved adept at deflecting the queries with platitudes. And then the administration claimed executive privilege to prohibit the committee from gaining access to memos that Rehnquist had written to Attorney General John Mitchell on these issues. Rehnquist also protested that disclosure of the memos would violate the privacy of the "attorney/client" relationship. Given that the client of the attorney general is the American people, I did not understand how this relationship could be "private." Nevertheless, we saw the same arguments being used decades later by President George W. Bush to block the committee's access to documents in the confirmation hearing of Rehnquist's former law clerk, John Roberts, to succeed his old boss as chief justice of the United States.
Newsweek released a bombshell a day after the hearings began. On November 5, the magazine published the contents of a memo written by Rehnquist in 1952, when he was a twenty-seven-year-old clerk for Justice Robert H. Jackson.
The memo, "A Random Thought on Segregation Cases," could not have laid out its argument more candidly or clearly: "Plessy vs. Ferguson [the infamous 'separate but equal' doctrine handed down by the Court in 1896] was right and should be reaffirmed." Under that reasoning, Brown v. Board of Education should not have overruled Plessy, but instead should have upheld the constitutionality of segregation in our public schools.
Its conclusion read, "To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."
In other words, as long as we're in the majority, we can decide what the minority is entitled to. We're the boss.
How did Rehnquist justify his majority-rule view of racial fairness? He said the memo did not reflect his views. "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use," Rehnquist wrote in a letter he delivered to James Eastland, the committee chairman. Why Justice Jackson, who in fact voted to strike down school desegregation in Brown v. Board of Education, would ask for such a memo was never explained. Jackson died in 1954, shortly after his vote on the historic Brown decision, and thus was unavailable to answer Rehnquist's allegation.
Rehnquist's confirmation (by a resounding vote of sixty-eight to twenty-six) owed much, I believe (and as Nixon had foreseen), to the Senate's institutional reluctance to repudiate a president a third consecutive time. The unfortunate result was, in my opinion, a justice whose record was disqualifying on its face.
What we now call "Watergate" was in fact a confluence of at least three currents that began flowing in 1971. The first was the International Telephone and Telegraph scandal, which involved essentially the same players, the same atmosphere, and the same activities that comprised the larger chain of wrongdoings. The second involved Nixon's firing of the special prosecutor he'd appointed to investigate the many allegations. The third was Watergate itself: the illegal break-ins by clandestine agents seeking to gain information about Nixon's adversaries, the illegal payoffs to those agents, and the illegal cover-ups of both activities.
The ITT affair began to surface in the summer of 1971, at about the same time the New York Times and Washington Post began publishing the Pentagon Papers and nearly a year before the storied break-ins at the Watergate office complex. This was not entirely a coincidence. Daniel Ellsberg's bold procurement of those papers--the Defense Department's top-secret history of the war that revealed a pattern of official lying about its prosecution--had driven the secrecy-obsessed Nixon to his catastrophic spree of surveillance and revenge. In September 1971, summoning the same "plumbers" unit that a year later would try to bug the Democratic offices at the Watergate complex, Nixon authorized a burglary raid on the office of Ellsberg's psychiatrist. Their mission was to scavenge for files that would call into question the former defense analyst's sanity.
In July 1971, the Republican National Committee announced that San Diego, Richard Nixon's preferred city, would be the site of its 1972 convention. A little more than a week later, the Nixon Justice Department revealed that it was dropping the appeals of three major antitrust suits involving ITT--appeals that had seemed likely to be upheld in the Supreme Court. This news was quickly followed by the abrupt resignation of Richard McLaren, the chief of the department's antitrust division, who'd built the cases and had a reputation as a relentless watchdog of conglomerate mergers. Just days after his resignation, McLaren was given a federal judgeship in Chicago, the appointment brokered by Deputy Attorney General Richard Kleindienst, who persuaded the chairman of the Judiciary Committee, Jim Eastland, not to hold confirmation hearings. I immediately smelled a rat, but could find no evidence that the judgeship was tainted, or any reason why it might have been. The syndicated columnist Jack Anderson smelled one as well, and said so in a December 9 column--an artful solicitation, as Anderson himself later admitted, for more information from anyone out there who might possess it.
Things grew more intriguing when Kleindienst--a longtime Arizona friend of William Rehnquist and a colleague of his at Justice--turned up in early 1972 as Richard Nixon's nominee for attorney general. He would replace John Mitchell, who'd resigned to spearhead Nixon's reelection campaign.
Kleindienst's original confirmation hearings elicited some opposition on the Committee, but not enough to prevent him from being reported out favorably. However, Kleindienst's troubles were just beginning. On February 29, and again on March 1, Jack Anderson published columns that called Kleindienst's integrity into question. His trial-balloon column had paid off: an informant, whom Anderson never named, appeared at the columnist's Washington offices and presented an internal ITT memo that amounted to the first "smoking gun" of the long Watergate affair. It explained why the administration had quietly dropped the antitrust investigations against ITT: the company had struck a secret deal with the administration to donate $400,000 to bankroll the San Diego convention. (The city itself had refused to finance the event.)
Why San Diego? Nixon was a Californian who loved the coastal stretches and the political climate below Los Angeles. He'd purchased his San Clemente estate, just an hour's drive up the highway from the city, in 1969. The region was a good deal more conservative than Los Angeles or San Francisco, and Nixon wanted a televised show of popular enthusiasm to contrast with that of his likely opponent, George McGovern.
The memo's author was an ITT lobbyist named Dita Beard. Beard asserted that Mitchell and Nixon not only knew about the company's donation, but had approved the terms under which it had been given. The go-between had been Kleindienst.
Kleindienst immediately demanded that the Senate reopen his hearings so that he could clear his name. In a hastily arranged private meeting with me in my Senate office on March 1, he insisted that he had never talked to Mitchell or anyone else at the White House about the ITT case, and that he certainly had never brokered any illegal agreements. He was lying.
He certainly got his wish about the hearings, and then some. Eastland agreed to reconvene the hearings. We started on March 2 and went on for twenty-two sessions. Eastland was, as always, very fair to me, and allowed me to call most of the witnesses I wanted and to use my Ad-Prac subcommittee staff to do the necessary investigatory work. Those hearings were the most intense I'd participated in since my arrival in the Senate, and I wanted them that way. (In certain respects, they formed a procedural template for the Watergate hearings themselves.) Often the sessions would last well into the evening, after which I'd convene my weary staff at the McLean house at around 10 p.m. to discuss the draft questions for the next day.
Kleindienst appeared five times, but we had plenty to talk about even in his absence. Just about every day brought new revelations: of meetings between ITT executives and Justice Department officials; of document shredding in the ITT offices; of skewed financial studies by the corporation for the White House. My fellow Democrats and I pressed the White House hard for documentation covering the antitrust settlements, and the White House, after strongly resisting us at first, complied. I asked Kleindienst for the record whether he had had any contact from the White House on the cases, and he replied, "No, sir"--a perjury, as it developed.
Dita Beard herself was a piece of work, as I discovered when five other senators and I visited her in Denver on March 26. I felt that as the author of the fateful memo, she should come and testify in the hearings, but when we learned that she was confined to an osteopathic hospital in Denver with a weak heart, Eastland authorized a bipartisan delegation to go and take her testimony there. We arrived at Rocky Mountain Osteopathic Hospital to find a crusty, fast-talking woman in her early fifties who sprayed jumbled thoughts in salty language at us as she alternately sucked on cigarettes and gulped from her oxygen mask.
It was not the most productive of testimonies I've witnessed, but it was among the most colorful. As we senators, a court reporter, Flug, and a lawyer for Eastland stood awkwardly around her bed, she smoked and coughed and denied having written the memo, which she'd earlier owned up to until the week before the hearing. She dropped administration names and called various people sons of bitches. When the Florida Republican Senator Edward Gurney asked her what she knew about Kleindienst, the arrows on her blood pressure machine went straight up, and she gasped and clutched at her throat until the doctor stopped the session and ushered us out of the room. I looked at Phil Hart, and saw that he was nearly as pale as Mrs. Beard herself. "That's it," Hart declared. He was not going to go back into that room, for fear that our witness might seize up and die.
Mrs. Beard was tougher than Hart thought, however. The week before the hearing, she had received an undercover bedside visit by one of Nixon's "plumbers," E. Howard Hunt, who showed up under a bizarre red wig and equipped with a voice-alteration device, apparently to persuade her to renounce the memo. I'm still amazed by it all: the appearance of a stealthy figure, cloaked in disguise, trying to interrogate and intimidate a hacking, chain-smoking, oxygen-gulping, bedridden emphysemic with a foul mouth.
Despite the overwhelming indications of governmental cover-up and illegal agreements presented to the committee, Kleindienst sailed once again to confirmation, over the objections of me and three others, which we laid out in a long, detailed minority report. We could not know it at the time, but damning evidence against him existed, spooled within one of the notorious White House tapes that Nixon maintained. It did not surface for another year and a half, when special prosecutor Archibald Cox listened to it and related the following passage to me:
NIXON: I want something clearly understood, and, if it is not understood, McLaren's ass is to be out within one hour. The IT-and-T thing--stay the hell out of it. Is that clear? That's an order.
KLEINDIENST: Well, you mean the order is to--
NIXON: The order is to leave the goddamned thing alone. Now, I've said this, Dick, a number of times, and you fellows apparently don't get the message over there. I do not want McLaren to run around prosecuting people, raising hell about conglomerates, stirring things up at this point. Now, you keep him the hell out of that. Is that clear?
KLEINDIENST: Well, Mr. President--
NIXON: Or either he resigns. I'd rather have him out anyway. I don't like the son of a bitch.
KLEINDIENST: That brief has to be filed tomorrow.
NIXON: That's right. Don't file the brief.
KLEINDIENST: Your order is not to file a brief?
NIXON: My order is to drop the goddamn thing. Is that clear?
KLEINDIENST: Yeah, I understand that.
This episode, I believe, was the true beginning of Watergate. Nixon now felt the heat of curiosity from congressional Democrats and the party's leaders. His instinct was to dive more deeply into the murk. Five days after Kleindienst assumed office, on June 17, 1972, came the celebrated break-in at Democratic headquarters. Larry O'Brien, one of my brother Jack's closest and most valued aides, was now the chairman of the party, and it was his conversations the intruders were seeking to tap via an electronic "bug." Their arrests on the scene were the beginning of the end for Nixon's reign of secrecy and imperialism.
Kleindienst might have clamped down on the Watergate abuses before they metastasized, but he apparently lacked the nerve. The day after the break-in, "plumber" G. Gordon Liddy himself told the new attorney general that the scheme was traceable to the White House, and that he should act to get the five men released. To Kleindienst's credit, he refused. But he failed to report what amounted to a criminal confession. He resigned his office the following April, was convicted of a perjury misdemeanor for his false testimony to our committee, and given a suspended sentence and fine.
Now events began to quicken, as the Washington Post and other newspapers fastened onto the possibility of a massive political scandal. In late September, the Post's Bob Woodward and Carl Bernstein reported that John Mitchell controlled a secret fund of as much as $700,000 that financed equally secret intelligence-gathering and sabotage operations. On October 10, FBI agents produced evidence that the break-in at O'Brien's office was part of this massive campaign.
Watergate was by now "Watergate" in press coverage. But the American public had not yet focused its attention on these developments, or perhaps could not yet summon the belief that they were real. Political party leaders, though, were paying very close attention indeed. The presidential election was only weeks away. Nixon remained popular in key sectors of the electorate. McGovern, who'd been nominated at the "New Politics" Democratic convention in Miami Beach, was seeking a mandate to end the Vietnam War; but since April he'd found himself smeared as the candidate of "amnesty, abortion, and acid." He was further damaged by the revelations that his vice presidential choice, Thomas Eagleton of Missouri, a good and decent man, had been hospitalized in the past and treated for depression, including receiving electric shock therapy. In those days, receiving psychiatric treatment alone might be considered as a disqualifier for public office--there was still a lack of understanding and terrible stigma associated with mental health issues in general. Adding hospitalization and electric shock to the mix sadly compounded the problem. In 1972, unlike vice presidential selections since then, there was no extensive vetting process that would have turned up an issue that might not play well in public. In fact, McGovern had settled on Eagleton as his running mate only after rejecting--or being rejected by--several other candidates. I found myself in this field: McGovern had invited me to run on the ticket with him when I telephoned to congratulate him on his nomination. The vice presidency had never really interested me; certainly not as an alternative to the Senate, where I could directly affect public policy. But given the party's low standing in the polls and the urgency of electing a Democrat after the wreckage of Nixon's reign, I briefly considered it. In the end, I turned it down.
McGovern then sounded out Gaylord Nelson, the Wisconsin senator who'd been the principal founder of Earth Day in 1970. After Nelson said no, McGovern talked to Senator Abe Ribicoff of Connecticut, who'd placed his name in nomination, with similar results. His list of possibilities after that showed flashes of what we now call "thinking outside the box": Leonard Woodcock of the United Auto Workers, the CBS News anchor Walter Cronkite, Father Theodore Hesburgh of Notre Dame, Mayor Kevin White of Boston, and the Texas Democrat Frances "Sissy" Farenthold.
Among McGovern's earliest choices was his eventual running mate, my brother-in-law Sargent Shriver. But Sarge, who was in Moscow at the time, initially demurred as well. And so the choice came down to Eagleton. After the Missourian left the ticket following the disclosures about his psychiatric history, McGovern first spoke to Hubert Humphrey and then to Ed Muskie about joining his ticket.
In early August 1972, I had a conversation with Hubert and told him that I would make the case to McGovern if he were interested. Humphrey said that first of all, he liked McGovern; second, he wanted to beat Nixon; but third, he'd taken quite a knocking around and felt that people would say, "There's good old Hubert. He comes out every time the bell rings." Humphrey ultimately turned it down.
I had a conversation with McGovern in the back of the Senate on Thursday afternoon, August 3. He told me that he was interested in Sarge, but that he wanted to approach Muskie first. The next evening, I went to the Cape for dinner at the Shrivers' and told Sarge that if Muskie turned it down I thought he would be offered the job.
McGovern called Sarge the next day and he came to see me before he accepted. Sarge said that he would not accept the offer if I objected. Some people were concerned that if Sarge were the successful vice presidential candidate in 1972, he would be making it more difficult for me to run for president in the future.
It is true that there was lingering unhappiness among some RFK supporters who thought that in 1968 Sarge should have resigned or taken leave from his post as ambassador to France and returned to America to help out with Bobby's presidential campaign. I personally had steered clear of this controversy. It just didn't bother me. I felt the same way about Sarge's being on the ticket in '72. I raised no objection.
I began to receive calls and visits from Democrats frantic to resurrect McGovern's campaign by a formal investigation of Watergate. They wanted me to convene hearings. I wanted to convene hearings as well. But the process was hardly as simple as it sounded.
Stewart Alsop laid out the difficulties in his Newsweek column of October 2, a week before the FBI report. He noted that two Senate bodies were tailor-made for such a probe: Sam Ervin's subcommittee on constitutional rights and John McClellan's Government Operations Committee. But given that both men represented southern, anti-McGovern states--North Carolina and Arkansas, respectively--this was unlikely.
Noting that "the Watergate affair is a snake that badly needs to be scotched," Alsop declared that the mandate for action lay with me: "It is a case of Kennedy or nothing." But obstacles lay in my own path as well. Alsop predicted that I would be attacked "all-out as a demagogue using his... chairmanship to play politics, compromising the rights of the accused in the process."
Alsop was referring to my Ad-Prac subcommittee, and he was partly correct. I had indeed hesitated to advance my subcommittee, believing that an investigation would be more credible with the public if led by a chairman more conservative than myself. I too thought that either Ervin's or McClellan's bodies would be a good choice. Ervin in particular was known as a great civil libertarian aside from his views on civil rights. But I wanted in, and I had no doubt that Ad-Prac's mandate would take the investigation deeper than even my colleagues imagined. The ideal entree for Ad-Prac would be an invitation from one of these conservative southern Democrats to urge Ad-Prac to take the lead. I thought I knew a way of getting this to happen.
On October 3, I wrote to Ervin, exhorting him to get things going through his constitutional rights subcommittee. He replied in exactly the manner I'd hoped: "It seems to me appropriate for the Administrative Practices and Procedures subcommittee to investigate this matter and I want to assure you of my support should you decide to open an inquiry along these lines."
I moved quickly. Two days later, I notified my subcommittee members that we were going forward. On October 12, I ordered a "preliminary inquiry" into the matter, which included subpoena power. My plan, which had Ervin's support, was to bypass the Watergate burglars--who in any case were being prosecuted criminally--and train my sights on the Justice Department itself, sending out subpoenas to any official who might have known, participated in, or controlled the bugging and sabotage operations. And so it happened: we went after telephone and banking records of people under suspicion, and compelled testimony from several of the key figures. Among the first of these, whom we called to testify in November, was Donald Segretti, the young "dirty tricks" specialist from the Committee to Re-elect the President, who admitted that his source of funds for forging campaign literature was none other than Nixon's personal counsel (and bagman) Herbert Kalmbach.
Richard Nixon crushed George McGovern in the November election, winning more than 60 percent of the vote--and proving, incidentally, that none of the Watergate transgressions had even been relevant to his reelection. But as 1973 began, a steady cannonade of new revelations, convictions, resignations, and hearings erupted and dismantled his administration piece by piece. On April 30, 1973, the core of his brain trust--H. R. Haldeman, John Ehrlichman, and Kleindienst--resigned, and White House counsel John Dean was fired.
In the early spring, Mike Mansfield persuaded Sam Ervin to chair the hearings looking into Watergate. I was not a member of Ervin's special Senate committee, respecting Mansfield's view that my status as a possible candidate for the presidency in 1976 would have raised conflict-of-interest questions. On May 18, the Senate Watergate committee began its nationally televised hearings. White House tapes of February 1973 revealed Nixon and his counsel John Dean discussing the new Ervin committee and how they might spin it as merely a front for me and my own pernicious vendetta against the president. Ervin, Dean declared, was only a puppet for me; in fact, I was "behind" the entire creation of the hearings. He assured Nixon, "The partisan cast of this will become more apparent."
I supplied Ervin's committee with the vast body of testimony and findings developed by my Ad-Prac subcommittee, and they used it to great effect. It included a complex chart that interconnected the many people and many groups implicated in the overlapping scandals.
Most Americans of a certain age recall the highlights of Watergate's long denouement: the bombshell remark by witness Alexander Butterfield on July 13 that Nixon had taped all conversations and phone calls in his office since 1973; the protracted struggle for possession of the tapes highlighted by the "Saturday Night Massacre" of October 20; the bizarre "eighteen-and-a-half-minute gap" on one of the key subpoenaed tapes on December 7; the Supreme Court's unanimous ruling on July 24, 1974, that Nixon must turn over the tapes of sixty-four previously unreleased conversations; and, finally, on August 8, 1974, Nixon's resignation as president and the swearing in of Gerald Ford.
I want to return briefly to the "Saturday Night Massacre," because I had some personal experience with its heroes.
The seeds of it lay in Nixon's appointment in May 1973 of Elliot Richardson, the distinguished war veteran, Harvard Law School graduate, and, at the time, secretary of defense, as his new attorney general, succeeding Kleindienst. I admired Richardson, a liberal Republican with a long record of achievement in several cabinet posts, but I'd made it clear to him that he would not be confirmed by the Judiciary Committee unless he agreed to appoint a special prosecutor. My committee colleagues and I were convinced by this time that only a strong prosecutor independent of party loyalties or control would be credible enough with the public and the press to demand the hardest truths from this administration. After a series of private conversations with me, Richardson promised he would make such an appointment.
Richardson approached several possible candidates, but in late May settled on what I thought was a masterful choice: Archibald Cox, the legal scholar who had served my brother Jack as adviser, speechwriter, and, later, solicitor general. I admired Cox's ability, intelligence, and integrity, and I was determined that he function without the slightest hint of pressure. So I spoke again with Richardson, insisting--against his own wishes at first--that he agree to one condition, and one condition only, under which he would fire Cox or carry out a presidential order to fire him: "extraordinary impropriety."
It did not take Richardson long to understand the importance of this condition, and he agreed to it. Better still, he stood behind it when the inevitable phone call from Nixon reached him.
That call came on October 20. Since July, Cox (backed up by a district court order) had been demanding that Nixon release his newly revealed tape collection to Ervin's committee. Nixon resisted, growing more and more defiant as the weeks passed. On October 19 the desperate president concocted a scheme: he would offer a compromise. He prevailed on Senator John Stennis, the Mississippi Democrat, to listen to the tapes and send Cox a summary of them. The ridiculousness of this plan was obvious. Stennis and Nixon enjoyed a warm friendship. And Stennis was nearly deaf.
Archibald Cox unconditionally refused this transparent ploy. Nixon exploded; he picked up the telephone on October 20, called Richardson, and demanded that the new attorney general fire Cox. An historic crossroads was at hand. Would Elliot Richardson cave in? Had he done so, oversight of the tapes would almost certainly have defaulted to Stennis, Nixon would then have escaped the threat of impeachment, and his illegitimate power would have continued to stain American governance.
Richardson held strong. Nixon responded by firing Cox through the offices of Solicitor General Robert Bork, and abolishing the office of special prosecutor. Before the night was finished, Richardson had resigned, and so had his deputy, William Ruckleshaus. The president had won the night. But he had only succeeded in raising the level of suspicion against him--and of calls for his impeachment.
A final footnote to Watergate: virtually since the moment the existence of the Oval Office tapes became public knowledge, Americans have wondered where Richard Nixon came up with the idea of recording the conversations that ultimately brought him down.
I believe I know the answer: he got it from my brother Jack.
President Kennedy had a taping system in his office. He was not the first president to do so, nor the last until Nixon. Franklin Roosevelt recorded a few hours of press conference conversation with a large, unwieldy prototype. Both Harry Truman and Dwight Eisenhower experimented with the idea. But it was Jack's system that seems to have caught Nixon's imagination. My brother in fact recorded the fewest number of hours of any president, and nothing was confidential. But they included the intense and historically invaluable deliberations over the Bay of Pigs, the Cuban Missile Crisis, and the early debates over going into Vietnam.
Perhaps Richard Nixon envisioned compiling a comparable record of his own presidential triumphs. His fatal modification was to install a voice-activated mechanism, which removes the user's volition. Jack and other presidents, by contrast, relied on the conscious procedure of flipping a switch.