Nixon’s Resignation Reconsidered | The American Spectator | USA News and Politics
Nixon’s Resignation Reconsidered
by
Cover of The Alternative, December 1972 (The American Spectator)

Richard Nixon resigned 45 years ago, on August 9, 1974, in the face of certain impeachment by the House of Representatives and probable conviction following a Senate trial. It also seems that he did so to spare the nation further agony from the Watergate scandal. While two other presidents have been impeached and stood trial in the Senate, neither Andrew Johnson in 1868 nor Bill Clinton in 1998 was convicted. Nixon remains the only living president to have left office before completing his term.

There is no question that Nixon was on the ropes and that his voluntary departure helped heal a badly wounded nation, but so much new information has surfaced in the past four decades that we should ask ourselves whether his resignation was actually a mistake — and whether it would have been better for the nation, if not for him, to have had a Senate trial.

This article was originally published in the American Spectator print magazine. Click here for online access!

The question is particularly relevant today, with constant calls to impeach President Trump in the midst of an equally divisive era.

While I don’t normally write articles in the first person, this analysis will be highly personal. You see, I was there throughout the Watergate scandal. I worked on Nixon’s White House staff for five years, knew and had worked with all of Watergate’s major players, and served as principal deputy on his Watergate defense team. In the latter regard, I transcribed the infamous White House tapes, supervised the document rooms holding the seized files of principal defendants, and staffed presidential counselors on Watergate issues and developments. As you might already know, it ended rather badly, with Nixon resigning in disgrace and two dozen members of his administration convicted and imprisoned.

I have fretted about this almost every day since. My wife of 45 years calls it my “Nixon obsession”: How could a staff that did so much good in Nixon’s first term have gotten it so wrong in his reelection campaign? How could rumors and accusations that I knew to be baseless at the time still persist as accepted fact in the years that followed? Why hadn’t others who knew far more than I come forward to present Nixon’s side of the story? 

In 2002, as the last man standing, I set out to tell the Watergate story from an inside-the-White-House point of view — and made a startling discovery. All of the surviving records from the Watergate Special Prosecution Force (WSPF) are kept at our National Archives and most can be accessed through Freedom of Information Act (FOIA) requests. I got busy and, because of my insider knowledge, had a little better idea of just where to look — and I’ve uncovered some surprising documents. 

My analysis is divided into three sections: What we knew then — and why Nixon’s resignation was the best choice for the nation, what we know now — and why his resignation may have been a huge mistake, and the lessons we should take from this discovery. You can already tell where I come out: It was right for Nixon to resign at the time because had totally lost the moral authority to govern. But, in retrospect, his resignation seems completely unjustified because what we now know might have come out in a Senate trial. Nixon was essentially railroaded out of office by specially recruited, highly partisan prosecutors. Knowing that today, we’d better be very cautious about how we treat President Trump.

What We Knew Then

President Nixon had an extraordinarily successful first term, best known for his foreign affairs triumphs: opening trade with China, leading Soviet détente and the Strategic Arms Limitation Talks, ending the Vietnam War with the Paris Peace Accords, and reestablishing American influence in the Middle East, including saving Israel in the Yom Kippur War. 

His domestic successes, though less well known, are equally impressive: restoring law and order; appointing four new Supreme Court justices to stop the leftward lurch of Earl Warren’s court; cleaning up the environment through the creation of the EPA and passage of the Clean Water Act, the Clean Air Act, the Ocean Dumping Act, and the Marine Mammal Protection Act; peacefully desegregating southern schools and continuing integration of northern trade unions through the Philadelphia Plan; restoring the rights of Native Americans by ending the policy of assimilation; and quadrupling the number of women appointed to senior government positions. Nixon also restructured the Executive Office of the President through the revitalization of the National Security Council, transformation of the Office of Management and Budget, and creation of the Domestic Policy Council — laying a foundation for the modern presidency that stands to this day.

If not for Watergate, Nixon’s presidency may have been among the most successful in history. But all of that was washed away in the torrential downpour of the first national scandal since Teapot Dome: a perfect political storm that engulfed Nixon and his senior aides. 

For those readers who did not live through those halcyon days of yore, here is a partial list of what went wrong.

Break-In and Cover-Up 

Five men were caught red-handed on June 17, 1972, in the offices of the Democratic National Committee in the Watergate Office Building. One of them had been a CIA wireman and was head of security for Nixon’s reelection campaign, the Committee for the Reelection of the President (CRP). It soon came out that two others, also connected with CRP, had directed the break-in: G. Gordon Liddy, a former FBI agent, and E. Howard Hunt, a career CIA agent. All were indicted on September 15, 1972, and convicted on January 30, 1973. There was speculation from the outset that knowledge and approval of the break-in went far higher within the Nixon administration. It was soon revealed that there had indeed been an extensive cover-up — which collapsed gloriously shortly after the break-in defendants’ sentencing on March 21, 1973.

For those tracing parallels to today, this is where the two situations part ways. In Watergate, there was no doubt that real crimes were committed: there really was an actual break-in and an actual cover-up. The only issues were who and how many were involved. From a legal perspective, a cover-up is a conspiracy to obstruct justice — and one of the more interesting things about the law of conspiracy is that, once a conspiracy plot is shown to exist, it takes almost no proof to add additional defendants. Thus, in a highly politicized prosecution, simply having been nearby could (and did) have catastrophic consequences. With Trump, there is no proof that a conspiracy existed at all. So naturally, the likelihood of prosecution from association with Trump is much lower.

Ervin Committee Hearings

For the vast majority of Americans, Watergate awareness came from the nationally televised hearings of the Senate Select Committee on Presidential Campaign Activities (or the Ervin Committee, chaired by Sen. Sam Ervin), which burst onto the public stage with the dramatic testimony of Nixon’s own lawyer, John Dean, who had obtained immunity in exchange for testifying against his former colleagues. His testimony regarding the cover-up’s existence was quite persuasive. After all, he was the one who had been running it. 

But the hearings stood out for another reason. Unlike a criminal prosecution, in which the government has to prove its allegations through evidence introduced under strict procedures and with its witnesses testifying under oath and subject to cross-examination, the Ervin Committee hearings were conducted as a legislative trial, in which only the accused were under oath and the government was not required — or even expected — to prove its own case. 

This was an unusual situation because potential defendants typically either refuse to appear or take the Fifth Amendment and refuse to testify. But that’s not what happened in Watergate, in which newly named WSPF prosecutors postponed any cover-up indictments for 10 months while the nation gorged itself on the Ervin Committee hearings.

House Judiciary Committee Chairman Jerrold Nadler is trying to create a duplication of the Ervin Committee with today’s committee, but his efforts lack the drama, the politically appealing witnesses, and the TV audience that fueled the Ervin Committee’s popularity.

Creation of the Watergate Special Prosecution Force

Edward Kennedy and his colleagues on the Senate Judiciary Committee demanded the appointment of a special prosecutor as a condition of confirming Elliot Richardson as Nixon’s new Attorney General in 1973. They also demanded that the special prosecutor operate with complete independence from the Department of Justice. Richardson saw little reason to object: he hoped someday to run for president himself, so he really didn’t want to be attorney general at that particular time anyway, and he certainly didn’t want to have anything to do with Watergate investigations or prosecutions destined to devastate the Republican Party. He consented to the appointment of his former Harvard law professor Archibald Cox as special prosecutor and happily agreed to full and unreviewed delegation of his authority as attorney general. 

Cox, much like Robert Mueller, was largely a figurehead. He was already showing his age and had recently gone deaf in one ear. Besides, he had no prosecutorial experience; he’d taught labor law at Harvard. Even still, he was Sen. Kennedy’s first choice. He’d been the lead speechwriter for Jack Kennedy’s 1960 presidential campaign, had traveled on the candidate’s plane, and had assembled Kennedy’s much-vaunted Harvard brain trust. Following JFK’s election, Cox had become solicitor general under his brother, Robert Kennedy. He was seen as the adult in the room at the Department of Justice. It was Cox who had been principal adviser to Sen. Kennedy, leading the opposition to Nixon’s Supreme Court nominees. 

Specially Recruited, Highly Partisan Prosecutors 

It should have come as no surprise that Cox delegated WSPF recruiting to James Vorenberg, a fellow law professor who had taught criminal law. Vorenberg hired only people whom he knew or who were recommended by people he knew, and he assembled a specially selected team of some 70 lawyers, virtually all Ivy League graduates, the top 17 of whom had worked together in the Kennedy/Johnson Department of Justice. Readers should note the constitutional inversion here: these were the very people voted out of office with Nixon’s 1968 election, now in control of the government’s investigative and prosecutorial powers. Vorenberg announced at their first press conference in June 1973 their intent to investigate each and every allegation of wrongdoing by the Nixon administration since it had assumed office some five years prior.

Compared to WSPF prosecutors, Mueller’s team was much smaller, its investigations less broad, and its successes dramatically fewer. Threatening as it was, you could even call it the “junior varsity” of special prosecutors.

Comprehensive Cover-Up Indictments 

The steady drip, drip, drip of rumors, accusations, and “What if?” media speculation in Watergate continued unabated month after month until comprehensive cover-up indictments were announced on March 1, 1974, accompanied by a sealed report that the grand jury asked be forwarded to the House of Representatives. This was quickly nicknamed the “Road Map” because it was said to contain evidence that would lead to Nixon’s impeachment. 

The transmittal of secret grand jury information was highly improper, but it was condoned by District Judge John Sirica and the D.C. Circuit Court. No doubt this is what the Mueller team hoped to do with Trump grand jury material, but they rightfully feared that today’s judges would be far less accommodating. 

It soon developed that Nixon himself had been named by the grand jury, along with some 18 others, as an unindicted co-conspirator. This action was something Leon Jaworski had said (in his January 8, 1974, memo to his deputy) that Cox had opposed, because “it was just a back-handed way of sticking the knife in” the president. But, once Cox had been fired in the Saturday Night Massacre (so named because Attorney General Richardson and his deputy had quit rather than carry out Nixon’s instructions), his staff swore vengeance and left no stone unturned — as Jaworski put it (in a second memo to his deputy dated January 21, 1974) — in the effort to get Nixon “at all cost.” 

Release of White House Tape Transcripts 

Presidential assistant Alexander Butterfield had testified on July 16, 1973, to the existence of a White House taping system. His testimony quickly led both to the belief that the tapes would provide definitive evidence of Nixon’s own involvement and to litigation over their confidentiality. As Nixon’s situation continued to deteriorate — gleefully helped along by the liberal establishment media, who had dogged Nixon since he had exposed their hero Alger Hiss in 1948 as a former Communist spy — White House defenders began to suspect that the tapes themselves were not nearly as bad as the public had been led to believe. Besides, their release would undercut the testimony of John Dean, who had now become Nixon’s principal accuser. Transcripts of some 50 presidential conversations were released on April 30, 1974, along with a 50-page legal analysis outlining the president’s case. 

The reaction was unexpected: Nixon’s opponents and their advocates in the media pivoted as one — much like what followed the release of the Mueller report, which found no collusion involving President Trump. No longer would Dean’s now-undermined allegations be the focus of press coverage. No, now the expressed concern was that the tapes showed Nixon was all too human. In the privacy of his own office, he was bitter, petty, and small-minded. This was not the soaring rhetoric of a Roosevelt or a Kennedy: Nixon was “unpresidential” — similar to the way the two-year claim of Russian collusion has been abandoned in favor of new “racist” claims about President Trump. 

Revelation of the “White House Horrors” 

Materials were improperly taken from Dean’s counsel’s files in his effort to obtain personal immunity. Among these were documents given by Dean to prosecutors that showed abuse of powers. These became known as the “White House Horrors”: (i) Seventeen wiretaps had been placed on NSC staff members without court blessing, (ii) Liddy and Hunt had conducted a prior break-in in the name of national security (the Fielding break-in), and (iii) the White House had adopted a secret plan for gathering intelligence on left-wing radicals (the Huston Plan). Needless to say, these revelations seriously undermined public confidence in the Nixon administration. 

Nixon’s Dramatic Demise 

The outlook for the administration’s survival had already been bleak, but calls for Nixon’s resignation reached their crescendo in the three-week period beginning July 24 with the Supreme Court’s 8-0 decision to uphold the special prosecutor’s subpoena for 64 additional tapes. 

Just three days later, beginning July 27, HJC adopted three articles of impeachment: obstruction of justice, abuse of power, and refusal to comply with House subpoenas. 

The denouement came August 5, when the White House released the transcript of one of the special prosecutor’s subpoenaed tapes: that of June 23, 1972 — from six days after the Watergate burglar arrests — which showed President Nixon concurring with his staff’s recommendation that they get the CIA to tell the FBI not to interview two Watergate witnesses. It was quickly — and accurately — labeled the “Smoking Gun.”

Any remaining Nixon support collapsed completely. There was a pro forma meeting on August 7, when Sens. Barry Goldwater (R-Ariz.), Hugh Scott (R-Pa.), and House Minority Leader John Rhodes (R-Ariz.) came to the White House to tell the president that not only was his situation hopeless but that prolonging the nation’s agony by demanding a Senate trial would also devastate the Republican Party in the fall elections. 

And so, for the second time in his political career (the first being when he declined to challenge voter fraud in Illinois and Texas in his 1960 loss to Jack Kennedy), Nixon chose his country over his personal ambition and declined to fight for his claim to the presidency.

In a nationally televised speech on the evening of August 8, Nixon announced he would resign at noon the following day. The next morning, he bid adieu to his staff in an East Room ceremony, walked to the helicopter on the South Lawn that would take him to Andrews Air Force Base, and boarded Air Force One for the flight to California. His resignation took effect somewhere over Kansas, and he landed at El Toro Marine Base a private citizen.

Should He Have Resigned? 

Heck, yes; he had no real choice! I had been one of his strongest supporters, working countless hours on his public policy initiatives and then on his Watergate defense team — up until I listened to the “Smoking Gun” tape of June 23, 1972.

You see, on the very afternoon of the Supreme Court’s decision, I had been privy to conversations with my boss and Nixon’s lead defense lawyer Fred Buzhardt, Nixon, and his chief of staff Alexander Haig, at the Western White House in San Clemente. Buzhardt had listened to the June 23 tape for the first time and concluded that it contained unambiguous proof that Nixon had been part of a cover-up conspiracy from the very outset. He wanted Nixon to destroy the tapes and resign rather than give his enemies undeniable proof of such criminal action. His advice was not accepted. The decision was made to release the transcript and see what followed. 

I was the one who transcribed that tape later that morning — and the one who first characterized it as the “Smoking Gun.” The nation didn’t learn until August 5, when my transcript was released, but I knew from that day forward — two full weeks before the public — that Nixon’s presidency was doomed. I was certain that he needed to — and would — resign. And good riddance: he’d lied to the American people and, worse, he’d lied to his lawyers! I was in the East Room on August 9 for his staff goodbye and on the South Lawn for the helicopter’s liftoff. I was sorry to see him go — all that we’d worked on lost in total collapse — but I was certain that’s what he needed to do. 

I didn’t have to leave my position as associate director of the Domestic Council, but I felt personally responsible: my friends and colleagues had brought this about. I was a “Nixon holdover,” and I needed to make room for new people in the Ford administration. I joined a law firm (fortunately with the foresight to obtain a “clearance” letter from the special prosecutor) and even suffered the indignity of having to testify on the government’s behalf as a chain-of-custody witness to facilitate introduction into evidence of some White House documents.

Shortly after Ford lost the 1976 election to Jimmy Carter, we moved to Philadelphia, where I embarked on a 35-year career as a corporate lawyer for a series of national insurance companies. I thought that I’d left Washington and Watergate well behind me.

What We Know Now

That’s where things stood for almost 30 years. Sure, I missed my former colleagues, and so I began arranging and hosting annual reunions of what we call the White House Policy Planning Staffs (circa 1970s) — which is mainly staff members of the Domestic Council, the National Security Council, and the Office of Management and Budget. These were the folks who worked on many of Nixon’s successful initiatives in his first term. They were the ones who helped the president to govern, not necessarily the ones who were in the election campaigns of 1968 or 1972.

It dawned on me sometime in 2002 that no one remained alive with any real understanding of what had happened within Nixon’s own defense team: what we had tried to do, what we expected to fight over, how we intended to proceed — up until the “Smoking Gun” tape came out of nowhere and undercut all our strategies. 

I resolved to preserve the record of those efforts and set out to write my story — but on my own terms. I didn’t have to interview anyone else. I had been there — a youngster perhaps, but I was in the room when the critical defense decisions were made.

I finished my initial manuscript, but a few factual questions remained. Nixon’s papers, including the tapes, had been seized by the Presidential Recordings and Materials Preservation Act of 1974 and stored at the National Archives in College Park, Maryland (Archives II).

When meeting with Nixon Project archivists, I discovered that the special prosecutors’ records — all the WSPF files that had survived — also were kept at Archives II. This was like coming across, some 30 years later, the coach’s playbook from the team that had beaten you in the state championships. You knew your team and your own game plan, but now you could see theirs. All you had to do was submit FOIA requests. There was a whole lot of material I was eager to review.

I’ve now been at this for 15 years, and what I’ve discovered changes everything I thought I knew about Watergate. Here are some of the revelations.

Misunderstanding the “Smoking Gun” Tape

Among my more startling discoveries is that we lawyers were completely wrong on our interpretation of the “Smoking Gun” tape. Far from being an attempt to thwart the FBI’s Watergate investigation, it turns out to have been an effort to avoid disclosure of substantial campaign donations to Nixon’s reelection committee by two very prominent Democrats. While every person involved in that original effort is now in agreement as to its real meaning, the best summary comes from John Dean himself, in The Nixon Defense, a book written in 2014:

When revealed by order of the U.S. Supreme Court in late July 1974, this became known as the “smoking gun” conversation, because it was viewed as hard evidence, demonstrating beyond question, that Nixon’s final defense about the Watergate break-in … was bogus, which doomed the Nixon presidency. Ironically, this conversation has been mistakenly understood as an effort by Nixon and Haldeman to shut down the FBI’s entire Watergate investigation. This appears to be the case only when viewed out of context. In August 1974, when the conversation was revealed, and Nixon and his lawyers had to focus on this conversation, he had long forgotten what was actually involved; they assumed it had the same meaning as everyone else. In reality, it was only an effort by Haldeman to stop the FBI from investigating an anonymous campaign contribution from Mexico that Justice Department prosecutors had already agreed was outside the scoop of the Watergate investigation…. In fact, this conversation did not put the lie to Nixon’s … statements, and had Nixon known that he might have survived its disclosure to fight another day…. In short, the smoking gun was only firing blanks.

Dean had been aware of this misinterpretation all along but did not think it worthwhile to say so earlier. Regardless of whether you find his 2014 admission persuasive or not, it is uncontroverted that no one even knew about this tape until its August 5 release. What, then, did WSPF prosecutors claim in bringing Nixon to his knees well before that tape’s release? 

Secret — and Fraudulent — Allegations of Nixon’s Personal Wrongdoing 

What the special prosecutors actually did to Richard Nixon is quite astonishing: they wrongfully assured both grand jurors and HJC staff that Nixon had personally approved the payment of “hush money” to Howard Hunt. Admittedly, there was circumstantial evidence to this effect. Nixon had first learned of Hunt’s blackmail demands from Dean on the morning of March 21, 1973, and a payment to Hunt’s lawyer had been made that very evening. Yet prosecutors were never able to prove the necessary chain of events to make the case that this was done at Nixon’s personal behest. 

That didn’t stop them, however. They simply misrepresented the facts to cover their lack of direct evidence. This was fully and finally proven just last year. In response to my petition, Chief District Court Judge Beryl Howell unsealed the “Road Map,” which shows conclusively that WSPF prosecutors had no factual basis for their claim of Nixon’s personal approval for the “hush money” payment to Hunt. 

WSPF prosecutors’ secret misrepresentations in the “Road Map” have striking parallels to equally critical misrepresentations made to the Foreign Intelligence Surveillance (FISA) Court by the Obama Department of Justice, enabling them to institute surveillance of the Trump campaign. In both cases, prosecutors gave incomplete and misleading information, in secret, suggesting criminal acts by the president. 

Wrongfully assured of Nixon’s personal involvement, the grand jurors named him an unindicted co-conspirator in the Watergate cover-up. They also adopted the prosecutors’ Road Map as their own and transmitted these same material misrepresentations of fact to the HJC. Four months later, in June 1974, prosecutors began a series of secret meetings, improperly sharing grand jury information and convincing HJC staff of this same fraudulent hypothesis of Nixon having personally approved the hush money payment. As with the grand jurors, it’s little wonder the HJC approved the first article of impeachment, accusing Nixon of obstruction of justice.

Among the more interesting aspects of this situation is that neither Nixon nor any of us on his defense team had any inkling of WSPF’s allegation — either to the grand jury or to HJC staff. There were no witnesses to testify to such an accusation: neither H. R. Haldeman, nor John Mitchell, nor Fred LaRue, nor even Dean ever once — then or since — has offered direct testimony as to Nixon’s personal involvement. WSPF prosecutors’ hypothesis has remained entirely circumstantial. As such, there was no direct accusation made in the HJC hearings and no reason for Nixon or his defense team even to be aware of the accusation. If we had known, we could have refuted it. If Nixon had known that this was the basis for advocating his indictment or impeachment, he would never have resigned — since he would have known that he hadn’t committed the alleged act.

So much for destroying Nixon himself. How did WSPF prosecutors go about securing convictions of his top aides?

Secret Meetings Between Trial Judges and Watergate Prosecutors 

There is documented proof of a series of secret meetings between Chief Judge John Sirica and Watergate prosecutors. I don’t know which is the bigger surprise: that they were secretly meeting to resolve issues in advance of trial or that they were documenting their agreements in memos to their files. The mother lode of these documents, improperly removed in 1974 when Jaworski left office, first came to light in 2013 in response to my FOIA requests.

Cox’s Secret Meeting With Chief Appellate Judge David Bazelon 

At one point, Cox became so worried about the sustainability of Judge Sirica’s one-sided rulings in favor of the prosecutors that he feared their conviction verdicts would be overturned on appeal. He secretly approached Chief Appellate Judge David Bazelon to explain how the judicial panels could be stacked to maintain Bazelon’s slim one-vote liberal majority. Sure enough, each of the 12 appeals from Sirica’s criminal trials was heard by the full nine-judge appellate court, sitting en banc — a circumstance unprecedented in any federal appellate court anywhere in the country, before or since. 

John Dean’s Changing Story

John Dean became WSPF’s principal witness, and they cut him a special deal. Before that, when Dean first approached career prosecutors as his cover-up collapsed, their internal documents show that he never mentioned a conspiracy involving Nixon or his top aides. That only came about after Dean was fired as Nixon’s counsel and career prosecutors declined to grant immunity. Even then, Dean’s immunity came from the Ervin Committee and not from federal prosecutors. Regardless, once WSPF prosecutors had replaced the career prosecutors who had broken the cover-up, they chose to treat their only star witness with kid gloves. He was allowed to plead to a single felony. 

This was a huge concession. By his own admission, Dean had been the cover-up’s “chief desk officer”; he had encouraged others to lie to the grand jury (subornation of perjury), held back and then shredded materials from Hunt’s safe (destruction of evidence), shared prosecution information with defendants (improper disclosure of government information), and taken campaign funds to pay for his honeymoon (embezzlement).

Surprised to learn this? Here’s the New York Times report from Dean’s Virginia disbarment:

The disbarment action was brought by the Virginia State Bar, which charged that Mr. Dean had been guilty of unprofessional conduct by withholding evidence, inducing a witness to commit perjury, authorizing payment of hush money to the Watergate burglars and diverting money to his own use. The three Circuit Court judges found Mr. Dean guilty of “unethical, unprofessional and unwarranted conduct as an attorney-at-law violating the code of professional ethics.” They ordered that Mr. Dean’s license to practice law in Virginia be revoked.

WSPF prosecutors’ special treatment of their star witness (while deliberately hiding documents showing changes in his testimony that, by law, should have been shared with defense counsel) stands in startling contrast to Mueller’s vicious treatment of witnesses in their Trump investigation — witnesses like Paul Manafort, George Papadopoulos, and Roger Stone who resisted seeing things the way prosecutors wanted. 

The WSPF’s special treatment of witnesses was actually much worse. Although Dean was sentenced to a prison term of one to four years for his role in running the cover-up, this was just for show, to increase his witness credibility before the trial jurors. Instead of prison, Dean was put into a witness protection program, where he spent his nights at Fort Holabird, Maryland (replete with conjugal visits), and his days in a dedicated WSPF office, where he worked on writing his book. He was released immediately following the cover-up trial, without probation or parole, having spent only four months in technical confinement. Dean never spent a single night in jail — something he proudly proclaimed during his recent appearance before Nadler’s House Judiciary Committee.

The temporary prison ruse, however, worked quite well. Dean’s testimony was believed by the cover-up jurors, who convicted Nixon’s top aides on all counts — conspiracy, obstruction, and perjury — on January 1, 1975.

Revelations From Yale’s Abuse of Power Study and the Church Committee’s Report

Two developments following Nixon’s resignation have cast new light on the significance of alleged abuses of power. The facts underlying each of these revelations were well known to Nixon’s opponents but deliberately kept secret from his supporters and the American public. 

First, a comprehensive study of abuse of power allegations made against prior presidents had been authorized by the HJC and led by Yale history professor C. Vann Woodward. It was supervised by Hillary Rodham but suppressed when it showed that abuse of power accusations against Nixon differed little from those made against virtually every president, beginning with George Washington. To everyone’s great surprise, the Yale study was published in book form three months following Nixon’s resignation. It showed that such tug-of-wars between the legislative and executive branches had occurred with every president since our nation’s founding. 

Second, the Church Committee’s 1976 report of its investigations into domestic-intelligence-gathering operations showed the “White House Horrors” to be little different from the massive and long-standing Fourth-Amendment violations (such as warrantless searches and seizures, supposedly justified by national security concerns) of American citizens’ privacy rights that the FBI, CIA, and Military Intelligence Corps had conducted under each president at least as far back as 1936. You may or may not agree with their national security rationale, but the report did show that the actions of the Nixon administration were hardly extraordinary.

The Church Committee revelations also led to the 1978 creation of the FISA courts, to which the government now goes before undertaking such national security searches and seizures. But the secret operation of both institutions — grand juries and FISA courts — depend upon prosecutors’ full and fair disclosure of the factual information underlying their requests. 

Lessons for Today

Nixon chose to resign rather than put the nation through further agony. One result of his choice is that he and his senior aides went to their graves never knowing of prosecutors’ secret allegations about the president or about the clear due-process violations that accompanied their cover-up convictions. 

Perhaps the most candid retrospective appraisal was made by Ben Bradlee, the Washington Post   ’s executive editor during Watergate, in an unpublished interview with Barbara Feinman conducted on May 16, 1990 (the interview only came to light in 2013):

Well, you know, Watergate in retrospect, it’s hard to believe that people were that dumb, were that insane to do that. And it’s achieved a prominence in history and in my life that it doesn’t really deserve….

I mean the crime itself was really not a great deal. Had it not been for the Nixon resignation it would be really a blip in history. The Iran–Contra hearing was a much more significant violation of the democratic ethic than anything in Watergate. Watergate really was dirty tricks and arrogance and people thinking that they were all-powerful and could ride roughshod over civil liberties, but it wasn’t dealing in smuggled arms and buying foreign nations and shit like that.

And Bradlee’s characterization was made before any of the many instances of judicial and prosecutorial wrongdoing had been uncovered.

Perhaps, but only perhaps, if Nixon had chosen to stand trial before the Senate, more of the backstory of this wrongdoing might have come out. We will simply never know for sure, but Leon Jaworski’s first interview after he resigned as special prosecutor — conducted by none other than Bob Woodward — does give us a clue. These quotes are taken from the opening two paragraphs of Woodward’s typed notes from his December 5, 1974, interview:

Sez there were a lot of one-on-one conversations that nobody knows about but him and the other party.

Most important “focus” in his view was working out arrangement to get the material to House Judiciary; this especially critical because of decision not to indict RMN. HJC was “very slow” getting started, he sez, and would never have gotten off the ground without the info provided by SPO. It was a “roadmap.”

Jaworski appears to have been most eager to disclose his secret meetings with Judge Sirica, as well as all of the grand jury information that WSPF prosecutors had improperly shared with HJC staff. But Woodward, intrepid investigative reporter that he was, never bothered to follow through on Jaworski’s comments. One result (along with the fact that Jaworski improperly took his confidential Watergate files with him when leaving office) is that it has taken over four decades for much of this information to surface.

In a Senate trial, had one occurred, the “Road Map” itself would certainly have appeared, perhaps along with prosecutors’ baseless assertion that Fred LaRue had obtained Mitchell’s permission to make the “hush money” payment in the early afternoon of March 21. This missing fact was critical for their concocted scenario of Nixon’s personal involvement to be credible at all. The kid-glove treatment of John Dean, as well as WSPF documentation of the dramatic changes in his testimony, might also have come out under cross-examination. In addition, it would have been difficult to suppress the Yale study or the Church Committee information about equally questionable acts of prior administrations. 

I will leave it at this: If the public had known of the totally erroneous accusations made in secret against President Nixon and the judicial and prosecutorial wrongdoing that characterized the Watergate investigations, it is doubtful the Democrats could have mustered the necessary two-thirds vote to convict and remove Nixon from office. And, if he had survived, then the due-process travesty of the cover-up trial might not have unfolded as it did.

Stage Play on Nixon Impeachment

We will never know for sure what might have happened had Nixon chosen to stand trial. But it’s fascinating to think about, and I am currently consulting on the plot of a stage play that speculates about this very subject. Trial on the Potomac: The Impeachment of Richard Nixon had the New York debut of its first reading in late November. No historical information is changed from what we knew then, except that all of the information that I’ve uncovered over the past 40 years is portrayed as coming out during the Senate trial. 

The play opens with Nixon announcing on August 8, 1974, that he will not resign, but has chosen instead to stand trial in the Senate. Edward Kennedy’s staff complains of Nixon’s selfishness in demanding that his accusers produce their evidence, but Kennedy sees Nixon’s decision as helping his own expected 1976 bid for the presidency. The House adopts two articles of impeachment, but drops the abuse of power article when it learns of the Yale study of similar allegations against prior presidents — suppressed by HJC staffer Hillary Rodham — and the revelations of Fourth-Amendment violations committed in the name of national security stretching back to 1936, as later revealed in the Church Committee. 

John Doar, HJC’s majority counsel, acts as lead prosecutor, with Chief Justice Warren Burger presiding — thus adhering to the same format as in the Clinton impeachment trial. It is during the cross-examination of the House’s three principal witnesses that Watergate truths begin to emerge: John Dean admits to his own criminal wrongdoing, to changing his story to allege a conspiracy, and to his fake imprisonment. Henry Ruth, the longtime deputy special prosecutor, admits to the secret, but fraudulent, accusations about Richard Nixon that had been made to Watergate grand jurors and to HJC staff. James Neal, the cover-up trial’s lead prosecutor, admits to the series of secret meetings with Judge Sirica, to the politicized nature of their indictment decisions, and to their participation in Dean’s false sentencing. 

The play’s most dramatic scene occurs with the testimony of Richard Nixon, who now realizes the lies that prosecutors have told behind his back. He is defiant. He was gracious when his election was stolen in 1960, but he won’t play the fool a second time. The play ends as Chief Justice Burger calls for the Senate vote — leaving the audience to ponder whether or not, in light of all that has come out, the Democrats could have mustered the necessary two-thirds vote for conviction. 

Of course, the play is speculative. We don’t know what might have happened if Nixon had chosen to stand trial. There is no guarantee that the information we know today would have come out during the trial itself, but trials have remained throughout Judeo-Christian history the best method for ascertaining the truth about prior events. 

The Role of Divided Government

An interesting pattern began with Richard Nixon: Each and every time in modern history that a lame-duck president has been faced by a totally hostile Congress (that is, both houses in opposition to the party controlling the White House), a seemingly mundane problem morphs into a national scandal. 

Think about it. There is Nixon and Watergate, Reagan and Iran–Contra, Clinton and Whitewater/Lewinsky, Bush II and the outing of Valerie Plame. These examples always involve appointment of a special prosecutor, but it is not clear whether that appointment is a cause or an effect of this pattern. What does seem clear is that the party controlling Congress is acting on the belief that the incumbent president has lost his authority to govern and that the opposing party should be running the country instead. It’s nothing personal, you see: They are simply using the scandal to improve their chances to retake the White House in the next election. 

Perhaps this reflects a flaw in our constitutional system, exacerbated by the 1947 adoption of the 22nd Amendment, which limits the president to two terms in office. The lame-duck president has been reelected to serve a four-year term — and will continue to do so, regardless of the loss of his party’s popularity in Congress. 

It is instructive to point out that this situation could not arise in a parliamentary system. If the prime minister’s party lost control of Parliament or failed in a party-line vote, it would be seen as no longer representing the nation. The government would fall, and there would have to be a new election. 

Necessity of a Strong Executive

In the last analysis, our Constitution was grounded on the concept of a strong and unitary executive. One of the most persistent fears of our Founding Fathers was that it might become too easy to depose a president. This is why they granted the power to impeach but set a high bar for its accomplishment. 

Initial accusations, screaming headlines, and daily doses of scandal and outrage are not necessarily based on facts — and it frequently takes considerable time for complete stories to develop. One is reminded of the saying, “Act in haste, repent at leisure.” It is certainly true of the constitutional power to impeach — but an actual Senate trial, with the House having to present its case through witnesses, under oath and subject to cross-examination, offers the most promising chance for a true picture to emerge.

Where does all this leave us? We now have good reason to believe that, 45 years ago, Richard Nixon was driven from office and two dozen members of his administration convicted and imprisoned by hugely improper actions of a specially recruited, highly political team of prosecutors who were exempt from DOJ oversight by demand of the Senate Judiciary Committee. Nixon chose to resign rather than put the nation through further agony. But he might well have made the wrong decision.  

It is well worth taking a very cautious approach today with President Trump to be sure we don’t make that mistake again.

This article was originally published in The American Spectator’s fall 2019 print magazine. Click here for online access!

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