Saturday, March 2, 2024

Flashback, March 1974: Nixon Imperiled as Watergate ‘Unindicted Co-Conspirator’

A 50-page grand jury report in early March 1974 shattered the relative calm that had descended on Washington after Richard Nixon had appointed Leon Jaworski four months earlier as the special prosecutor investigating the Watergate scandal.

Nixon may have felt that at last, the firestorm ignited by the firing of Jaworski’s predecessor, Archibald Cox, and the resignations of Attorney General Elliott Richardson and William Ruckelshaus in protest during the “Saturday Night Massacre” had settled down.

He had stated in the annual State of the Union message that “one year of Watergate is enough,” and Jaworski’s crackdown on leaks from his office even as he sifted through evidence surrounding the coverup of the June 1972 break-in at Democratic national headquarters allowed the President to catch his breath and believe that he could hold onto his office.

But the sealed grand jury report altered the political atmosphere immediately, as noted by New Yorker reporter Elizabeth Drew, in in one of the best contemporary accounts of the crisis that drove Nixon from office, Washington Journal:

“Even though the indictment was expected, it came as a hammer blow. That keeps happening: the impact of the actual event is sharper and more disturbing than was anticipated. We can anticipate the facts but not their impact, their emotional reverberations. So we are unnerved when seven former Administration and reelection-committee officials—including the President’s closest associates, men who held great power—are indicted.”

Those figures included Nixon’s chief of staff H.R. Haldeman, domestic policy adviser John Ehrlichman, former Attorney General John Mitchell, and special counsel Charles Colson, all of whom were convicted for their role in the affair.

But the big bombshell was contained in a bulging briefcase that passed from the jury to Judge John Sirica, then to the House Judiciary Committee: the naming of Nixon as an “unindicted co-conspirator” in the case—a dubious first for the American Presidency.

The President’s career was in mortal danger now, as Capitol Hill had been notified that his involvement in the coverup was extensive—enough that it might constitute evidence that he had committed the “high crimes and misdemeanors” that could trigger impeachment.

The question at the heart of Watergate—is the President above the law?—was now posed inescapably.  It would not be answered clearly even with the resignation of Nixon, once his political support had evaporated, five months later.

His pardon by successor Gerald Ford left an imperfect denouement, with the President out of office but never having been brought to trial, let alone found guilty by a jury (though Ford would emphasize that the pardon constituted admission of wrongdoing).

Even before then, however, the case had, to some extent, been clouded with ambiguity. Though impeachment had been mentioned in the Constitution, that document had been silent on whether the President could be indicted.

In fact, as related in Win McCormack’s article in the March 2024 New Republic, the answer had developed out of another investigation of the time, involving bribery charges against Spiro Agnew.

The Vice-President had moved to sidestep the investigation into his conduct as governor of Maryland (with, as it turned out, Agnew continuing his larcenous ways as he moved into the nation’s second-highest office) by demanding a trial by the Senate.

The Justice Department had wanted a determination that the Vice President could be indicted. The Veep, every bit as corrupt as Nixon but more bombastic and less capable than the President, would otherwise be left in charge with his own corruption charges pending if Nixon were indicted.

Left unsaid by Richardson and his lieutenants but clearly implied, however, was that the wish for a finding that though a Veep could be indicted, a sitting President could not.

While Jaworski was eager to accept this solution, many in the group of prosecutors he had inherited from Cox were not. Jill Wine-Banks, for instance, a young assistant prosecutor, disagreed with her boss.

A few years ago, in promoting her memoir, Watergate Girl, she pointed out the injustice of Nixon’s men going to jail while their boss suffered no such penalty.

The makeshift solutions meant to ensure, as the cliché of the time went, that “the system worked” were not without critics even then, as Wine-Bank’s example demonstrates.

Americans' tendency to forgot (or, for some youngsters, never learn) their history has meant that many might even regard the scandal, in the dismissive phrase of Nixon press secretary Ronald Ziegler, as a "third-rate burglary."

Drew's account offers a useful reminder of why the crisis involved far more than a mere break-in, even that it wasn't simply that "the coverup was worse than the crime":

"The problem for the White House, as we keep learning, was that there was so much to cover up. The break-in at the Watergate combined the elements of covert operations, espionage, secret funds, hidden contributions, and aggression against political opponents (real and perceived) which also characterized other activities carried out under the Administration.”

But, in deciding to review Donald Trump’s claim of Presidential immunity from prosecution, the Supreme Court may well make a greater hash of things than occurred in 1974 under Chief Justice Warren Burger, when the justices' unanimous decision might have  upheld the doctrine of executive privilege but not in the case of a criminal prosecution.

In contrast, now the court contains one associate justice (Clarence Thomas) whose wife connived behind the scenes to keep Trump in powera conflict of interest if there ever was one.

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