Watergate, page 62
Sirica all but guffawed. “Has anyone ever suggested who that sinister force might be?” the judge asked.
Haig, trying to catch himself, said that only Woods and Bull had access to the tapes, but outside the courtroom, he brushed aside the thirteen-minute discrepancy as nothing more than the normal confusion of the fair sex: “I’ve known women that think they’ve talked for five minutes and have talked an hour.”
Volner’s own theory, ultimately, was that Woods and Nixon did it together; she reasoned that Nixon was almost certainly too technically inept to manage to erase the tape himself, and Woods was blindly committed to the president. The June 20 tape, she noted and theorized, was the first one listed in the subpoena, so it likely would have been the first Nixon himself listened to. Horrified by what he realized it documented, he’d then attempted to erase the most damaging bit—but then moved onto the second tape and the third and realized, collectively, that others were just as problematic. As she suggested in a later memoir, “He realized that he couldn’t keep erasing subpoenaed material, so he adopted the total stonewall approach. The only solution he saw was to prevent the tapes from ever becoming public.”
Once the FBI and prosecutors had exhausted every investigative avenue they could consider in who might have erased the tape, Jaworski met with the staff, reviewed the available evidence, and concluded, “Three people could have erased the tape, but for a successful prosecution that’s two too many.” Everyone concurred. Besides, as their work continued, it was clear that the eighteen-minute erasure hardly removed the only incriminating material on the tapes. “[The erasure’s] importance was more symbolic than substantive,” Sirica later said. “There turned out to be plenty of evidence left.”
On December 12, the first batch of seven reels arrived at the Special Prosecutor’s Office—all that evidently existed of the nine originally requested conversations. A half-dozen investigators crammed in Ben-Veniste’s office to begin listening to the critical March 21 conversation, the one in which John Dean had testified he’d confronted Nixon about the “cancer close to the presidency.” It was the first time that anyone outside the White House, other than Sirica himself, had had the chance to cross-check the most explosive aspect of Dean’s June testimony to the Ervin Committee.
Listening on a single Sony 800B tape recorder, they strained to hear the twists and turns of the conversation, playing it over and over to catch the nuances. “At first we kept playing short segments and rewinding and playing, looking for phrases like ‘It would be wrong,’ and the key testimony about raising a million dollars,” one of the prosecutors later recalled. Then the prosecutors realized that Nixon was taking the obstruction conspiracy for granted. They listened all the way through. The listener recalled: “It sent a chill through you. You wondered what would happen next. It was as if this conversation was taking place at the time, perhaps in the next room, and you were eavesdropping. It enveloped you. We just stood there and stared at each other, incredulous.”
They played the tape over and over; it was far more damaging to Nixon than the investigators had ever imagined. The most astounding realization was that Hunt’s hush money hadn’t yet been paid at the time of Dean’s conversation with the president—until that moment, everyone had assumed Fred LaRue had delivered the $75,000 on March 19 or March 20, but they listened as Dean recounted the demand and Nixon all but directed it to be paid. The prosecutors had heard enough. They turned off the machine and sat in silence for a few moments, exhausted. “We knew that we had turned the corner on Watergate,” Ben-Veniste recalled later.
It soon became clear to nearly everyone else in the office that something big was happening behind Ben-Veniste’s closed door. The prosecutors summoned Hank Ruth and then, in turn, Jaworski, to listen for themselves. As he did, Jaworski’s face reddened; he couldn’t fathom the idea of the president, sitting in the Oval Office, suborning perjury from his own staff. Walking out of his office, Ben-Veniste muttered, “The guy got hit with his own bat.”
One of the prosecutors wondered aloud, “I don’t understand why they gave us this tape?”
“Can you imagine what was on the one they erased?” another replied.
Feldbaum, astounded, was even more direct: “We’ve got a case against the president.”
* * *
The arrival of the tapes was hardly the only troubling development; Haig had recently allowed a member of the prosecution team supervised access at the White House to certain sets of files, to search for needed evidence, and the investigator, Chuck Breyer, had noticed immediately as he flipped through the papers that certain documents had been retyped to remove or rewrite certain paragraphs—there was no telling what documents might have been removed entirely. “I’m certain that everybody who had a chance to get at those files has done so and removed what they could,” Jaworski explained at a meeting on December 13. The Special Prosecutor’s Office was going to have to plan to compel testimony from the aides and assistants themselves to reconstruct what might have gone missing.
Jaworski’s aggressiveness in those final weeks of 1973 indicated Nixon’s supreme miscalculation; as annoyed as the president had been by Cox, the original special prosecutor had been cautious and deferential to the White House, trying to work in harmony with the president and the Justice Department. He was not a courtroom litigator, or a politician, and his background as a mediator and legal scholar had shown through in his approach to the job. Jaworski was the opposite. “For the greatest gut fight of his career, President Nixon made the mistake of choosing as an opponent a first-class gut-fighter,” Ben-Veniste and Frampton wrote later.
As the year drew to a close, Jaworski wondered, since the White House legal team had listened to the tapes too and clearly knew at least—if not more—than he did about the president’s potential crimes, at what point would Nixon’s team tell the president he wouldn’t survive the scandal ahead?
The special prosecutor made one last attempt to raise the issue with Haig directly. Just before Christmas, with the White House decorated festively for the holiday, the two men met privately in the Map Room, where FDR had once monitored World War II. It was December 21, the first day of winter, and Jaworski was headed home to Texas. The pressure on the White House was coming from all sides; that day, as part of the investigation into the president’s abuse of executive power, Congress had disclosed that, in September 1972, John Dean had urged the IRS to investigate 575 of the president’s enemies; on the economic front, the government had calculated that consumer prices had risen nearly 8.5 percent in the previous year, the highest peacetime increase ever. Americans could feel that pinch every day; across D.C. and the rest of the country, as gasoline shortages continued, some states were even asking citizens not to put up Christmas lights, as a way to meet the ongoing energy crisis. It was a rude and unwelcome comeuppance for a nation that had gorged itself for twenty years on cheap gas and cheap energy as the suburbs expanded.
Sitting in the Map Room, talking bluntly, the chief of staff and the special prosecutor bargained over tapes and documents, and Jaworski raised the March 21 tape. Haig dismissed it, saying the White House lawyers had said it didn’t rise to a crime. “Al, I think you should get the finest criminal lawyer you can find and let him listen to the tape,” Jaworski said. The president was in a bad position, he emphasized, and there was other evidence to back that up.
After, the men walked to the South Portico; a rare D.C. snowfall had blanketed the city, and Mrs. Nixon’s staff had built a snowman on the lawn before them to greet the many officials tromping through the building for holiday receptions. Jaworski understood the immense stress the chief of staff faced. “It’s important, Al—get that lawyer, the best you can find,” Jaworski advised.
As he got into his car, Jaworski saw tears in Haig’s eyes.
I. Volner, who after her divorce and remarriage would go by Jill Wine-Banks, became the first female general counsel of the Army and first female head of the American Bar Association, and would be a frequent television commentator during the Trump years.
Chapter 46 “Do I Fight?”
Gerald Ford was confirmed as Nixon’s new vice president in early December, having passed the FBI, IRS, press, and congressional inquiries with flying colors. Investigators had gone over every government contract totaling more than $50,000 directed to his district since his first election and found none that indicated any untoward favor or personal gain.I The FBI’s background report had taken 1,700 single-spaced pages to conclude what everyone had suspected from the beginning: He was even-tempered, honest, and modest in personality, ambition, and lifestyle. He didn’t even carry a mortgage.
As a man who had dedicated so much of his life to the swirls and traditions of Capitol Hill, the approval of both the House and Senate meant a great deal to him; he was the first American in history to be chosen for the nation’s second-highest office in such a bipartisan, bicameral manner, and his swearing-in brought Washington a collective sigh of relief. The nation had a fully functioning, uncompromised vice president for the first time in months; whatever came next would not be seen as a political coup to install Democratic speaker Carl Albert as leader of the free world.II
Nixon’s troubles surely didn’t let up as Ford arrived. His tax scandal continued to unfurl throughout December, and in response, the president released what he claimed was a fulsome accounting of his personal finances. He also argued that some of the papers at the National Archives still belonged to him—which, if true, would undermine his massive earlier tax deductions. Weicker’s office turned over to the IRS mid-month his calculation that Nixon owed $235,000 in back taxes. The investigation grew, and forensic examiners from California secretary of state Jerry Brown’s office determined that the National Archives deed had indeed been illegally backdated, matching the letter to a typewriter at Kalmbach’s firm that had only been purchased after the expiration of the tax loophole.
It was also revealed, shockingly, that Nixon had paid no local or state taxes in either D.C. or California. “In terms of public opinion, the extravagant, improper tax deduction was the straw that broke Nixon’s back,” Weicker recalled later. “For a president to pay no more in taxes than an indigent was more than people could bear.” Many parts of Watergate were complex, opaque, confusing, and contradictory. But a $700 tax bill? That was something Americans could understand.
In mid-December, Barry Goldwater—long one of Nixon’s strongest backers—worried aloud to the Christian Science Monitor about how the president’s scandals compounded and reinforced the doubt that Nixon could be trusted. “I don’t think it’s Watergate, frankly, as much as it’s just a question in people’s mind of just how honest is this man,” the Arizona senator said. “I hate to think of the old adage ‘Would you buy a used car from Dick Nixon?’ but, that’s what people are asking around the country.”
* * *
As the headlines churned with troubling questions about Nixon, Pete Rodino’s Judiciary Committee followed through on O’Neill’s order to select a chief counsel by Christmas. The pool of lawyers who met the intellectual test necessary for such an intense, high-profile job, as well as possessed the nonpartisan respect and stature required, was minimal. Rodino considered a handful of former prosecutors, as well as the name partner of the prominent law firm Jenner & Block, Albert Jenner, Jr., who had served on the Warren Commission, investigating the Kennedy assassination. One name, though, continued to be mentioned, “a guy who worked at Justice in the sixties.” Rodino and his team struggled to track down a résumé or bio for this supposed legal unicorn, but finally found him on November 20, at the Bedford-Stuyvesant Restoration Corporation.
John Doar was in his office when he received a call from the dean of Yale Law School. Now fifty-two years old, Doar had spent most of the prior decade as a Justice Department lawyer. He’d ended up on the literal front lines of the Civil Rights Movement—prosecuting Klan killers, protecting the Freedom Riders, the march at Selma, and James Meredith as he enrolled at Ole Miss—serving day after day as the physical manifestation of the immense but often tenuous power of the federal government on the ground across the segregated South. In ’67, he had left for private practice, joining the nation’s first community development corporation in New York City.
Now Abraham Goldsmith, the Yale dean, had a simple query: “Would you be interested in being the special counsel to the chairman of the House Judiciary Committee?”
“Yes, I would,” Doar said.
“Well, that’s all I have to ask you,” the Yale dean replied. The men hung up.
When Rodino and Doar met a few nights later, the chairman’s first question was simple: “Have you made up your mind yet on whether there should be an impeachment?” Doar said he hadn’t. By the end of the chat, Rodino sensed Doar was the right man—respected and respectful, hardened and thoughtful. They spoke again and again over the weeks ahead, as Rodino’s main committee counsel Jerry Zeifman built the initial team that would assist Doar if he accepted. One of the first was Wisconsin lawyer–turned-farmer Richard Cates, who had earned a solid reputation as a county prosecutor and trial attorney. Cates spent days reviewing the available evidence and parsing the draft impeachment resolutions already introduced in the House. Before long, he had pieced together what he thought was a convincing theory that the president had obstructed justice. “My god—if this wasn’t the president of the United States and I couldn’t secure a conviction, they could take my license,” he had told Zeifman. “It is horrendously solid.” (It would take the rest of the nation another nine months to prove him right.)
As he reviewed the evidence from the summer Senate hearings, Cates also grew suspicious of the $75,000 payout to Howard Hunt; after all, Liddy had been the White House tie to the Watergate burglary. So why was the money going to Hunt? The only conclusion Cates could see seemed clear: Hunt had something on the White House aside from Watergate. Cates had gotten so far along that Rodino invited him and Zeifman to dinner at the Monocle Restaurant, just off Capitol Hill, at the end of November and cautioned him to slow down—they needed to wait for a special counsel, then for the evidence to marinate with investigators and committee members. This wasn’t about convincing 12 jurors in a Wisconsin courtroom; this was about convincing the equivalent of 435 grand jurors and then 100 actual jurors to gamble their careers, party, and branch of government on a rare and extreme constitutional remedy unused for a century. The potential jury was hardly a collection of pure, angelic innocents when it came to matters of questionable campaign contributions, deals with major supporters, or dirty elections. The investigation could move only at the pace of politics, the ever-cautious Rodino explained. What was nominally a process about law and order and guilt versus innocence truly boiled down to the simple, self-interested question that drove almost every decision by a congressman or senator: Was it good for me politically?
By mid-December, Rodino had settled on Doar, though by then everyone had come to the shared assumption he was the choice—including Doar, who found out that the committee’s hotel reservation for him at the Carroll Arms was open-ended. His two main staff counterparts were Jerome Zeifman, the counsel for the full Judiciary Committee, and Albert Jenner, who would serve as the minority counsel for the inquiry committee. Zeifman and Doar quickly became antagonists, wrestling each other for control of the committee’s overall strategy, but Doar found a close partner in the Republican Jenner. At sixty-six, Jenner had served as the senior counsel to the Warren Commission’s investigation into the Kennedy assassination, dressed religiously in a rotating number of some three hundred bow ties, and became convinced quickly that Nixon’s behavior warranted removal. He and Doar would almost end up working together as co-leaders of the inquiry.III
The staffing efforts in the final weeks of 1973 marked the early formation of what would end up being a team of more than one hundred. The Judiciary Committee commandeered the second floor of what was then known as the Congressional Hotel, an eight-floor, postwar hotel across from the Cannon House Office Building that for twenty years had served as the in-town home for numerous members of Congress. The House had recently taken it over fully and converted it into House Annex #1, a much-needed answer to the crush of additional Hill staff. As they began their work, the space and amenities still very much retained the look and feel of a converted hotel; staffers grew used to storing piles of papers in the abundant bathtubs.
The initial step for Doar, whose first day was December 20, was ensuring that no one without approved access had entry to the floor—the windows were barred, the doors reinforced by steel and secured with special locks, motion detectors installed, and guards posted throughout.
On December 21, an inquiry staffer named Larry Kieves typed up a single, seven-ply index card, recording and summarizing a White House press release about Nixon’s personal finances. At the bottom, he typed “**PF-1-IG,” short for “personal finances, number one, inquiry general file.” Then he separated the cards—yellow on top, then pink, then four green, and finally a blue one, all interspersed with carbons—and began filing them away in the “library,” the large, long room that would become the center of the inquiry’s workspace, gradually filling with filing cabinets and safes.
The so-called “chron cards” were a labor-intensive system that Doar, wary of the newfangled computers then expanding into the workplace, had developed and sworn by during his civil rights work; he maintained that the tactile cards as they were arranged and rearranged could tell stories invisible to the human eye. “I don’t want anything done by machine that can be done by a human being,” he had told his team, and indeed in the months ahead the committee would end up retaining nearly thirty typists just to generate cards, briefs, and letters.IV The attorneys and investigators kept the pink cards for themselves, then filed the yellow cards into a shared chronological file, the green ones into person files, and the blue copies by subject matter. Together, you could cross-reference any nugget of information you needed. Ultimately, the inquiry would amass more than five hundred thousand cross-referenced index cards; by March, engineers had been called to reinforce the library floor.
