Defying Nixon's Reach for Power

THE jowls jiggled. The eyebrows rolled up and down in waves. The forehead seemed seized by spasms. Yet the lips continuously courted a smile, suggesting an inner bemusement. The words tumbled out disarmingly, softened by the gentle Southern tones and the folksy idiom. But they conveyed a sense of moral outrage.

"Divine right went out with the American Revolution and doesn't belong to White House aides," the speaker said. "What meat do they eat that makes them grow so great? I am not willing to elevate them to a position above the great mass of the American people. I don't think we have any such thing as royalty or nobility that exempts them. I'm not going to let anybody come down at night like Nicodemus* and whisper something in my ear that no one else can hear. That is not Executive privilege. It is Executive poppycock."

With those words, typically skittering from Shakespeare to the Bible, North Carolina's Democratic Senator Sam J. Ervin Jr. was stepping up the rapidly accelerating tempo in a showdown over secrecy between the U.S. Senate and President Nixon. If the President will not allow his aides to testify publicly and under oath before the Select Senate Committee on Presidential Campaign Activities, Ervin vows, he will seek to have them arrested.

That threat is not an idle one. Ervin, 76, is chairman of the select committee that is investigating attempts to interfere with last year's presidential campaign. That includes the break-in and wiretapping of Democratic National Committee headquarters in Washington's Watergate complex last June. In defying Sam Ervin on this matter, the President is in collision with the most formidable Senator that this proud body could choose to lead its cause. Charming yet fearless, Ervin is the Senate's foremost authority on the Constitution, a former state supreme court justice and one of the few legislators who prefer the hard work of personal research in quiet libraries to the hurly-burly of cloakroom arm-twisting. He has, in a sense, spent much of his career preparing for precisely this kind of fight.

The Ervin committee, which has full subpoena powers, also has solid legal grounds for contending that White House officials cannot spurn any such subpoenas. Since he hopes to begin televised hearings in about two weeks, the issue is reaching a climax. It could easily lead to the most fascinating Capitol Hill TV drama since the Army-McCarthy hearings of 1954.

Mess. The stakes go far beyond whatever may be discovered about Watergate. Already, the adverse implications of that affair have undermined the credibility of Richard Nixon as a leader devoted to rigid standards of old-fashioned morality, to a stern and equal application of law, to an open and accountable Administration. Until the Watergate mess is cleared up, Nixon's closest political and official associates --and the President himself--will be operating under the handicap of a widespread and bipartisan suspicion that they have something sinister to hide.

Serious charges have been made in testimony before Senate committees and a grand jury in Washington, in statements by FBI agents and convicted Watergate conspirators, and in press reports that have not been effectively rebutted. Officials of the President's reelection committee got suitcases full of cash from secret donors, including one who is under investigation for violating federal laws. They failed to keep the complete financial records required by law. The President's personal lawyer admitted paying a political saboteur, and his official lawyer recommended the hiring of one of the Watergate conspirators. The FBI was used to gather campaign information, and cooperated chummily with White House officials whom it should have been investigating.

Last week the Watergate affair claimed its highest-level casualty so far. Nixon reluctantly complied with the request by L. Patrick Gray III that his name be withdrawn from Senate consideration as permanent director of the FBI (see following story page 16).

Ervin's dramatic drive to clarify all the murky mysteries surrounding Watergate is part of an even broader clash between two branches of Government. The White House and the Congress are locked in a struggle that goes to the very foundations of the Constitution. On a wide variety of fronts, Ervin is leading the challenge to the Executive Branch's expansion of power.

Beyond being the chief Watergate prober, Ervin is a key member of a special Senate subcommittee set up to investigate the President's excessive use of Executive privilege. The subcommittee, chaired by Maine's Senator Edmund Muskie, will begin hearings this week. Ervin is also chairman of the Senate's Judiciary Subcommittee on Constitutional Rights, which is trying to block Administration-supported attempts to force newsmen to reveal their confidential sources in judicial proceedings. He has proposed a "press shield" law that would protect newsmen who are subpoenaed at federal and state levels from having to reveal their sources or unpublished information, unless they had witnessed a crime or had personally received a confession. Ervin had modified his bill several times on the basis of testimony before his committee --an example of how open he is to reasoned arguments by witnesses.

In addition, Ervin is chairman of two Senate bodies--the Government Operations Committee and the Judiciary Subcommittee on the Separation of Powers--that are trying to prevent the President from impounding funds. Nixon is claiming the right to withhold funds that have been voted by Congress and thus in effect to determine Government priorities regardless of the express wish of congressional lawmakers. Last week Ervin introduced an amendment to an unrelated bill that would oblige the President to seek congressional approval before impounding any funds. The amendment passed, 70 to 24.

If the amendment is enacted, Nixon will veto it. The difficulty of overriding such a veto was convincingly demonstrated last week when Senators failed by four votes to muster the two-thirds vote necessary to overcome Nixon's veto of a $2.6 billion program to rehabilitate handicapped persons: the first such spending clash of the new congressional term.

Why, so late in his career, has the Senate turned to Sam Ervin to carry its banner in so many battles? Reports TIME'S congressional correspondent Neil MacNeil: "Sam Ervin has been called 'the last of the founding fathers' --and in a way it is true. For more than a dozen years, he has chaired hearing after hearing on constitutional rights and the erosion of the separation of powers. Those hearings were conducted in all but empty committee rooms. This was his vineyard, and he worked it alone. Now the Congress has at long last taken alarm. It has decided that it needs a constitutionalist--a man of great legal knowledge and judicial temperament--and in discovering that fact, it has discovered Sam Ervin."

Ervin is no brashly partisan Democrat seeking publicity by challenging the Republican President. Basically a shy if mirthful man, he has spent 19 years in the Senate without attracting much national attention. His press conference last week was only the third one that he has called in all of those years. In many ways, despite his party affiliation, he is Nixon's kind of Senator. He is probably even more tightfisted and fiscally conservative than the President. In interpreting the Constitution, he fully meets Nixon's standard of a "strict constructionist." Nixon recently called him "a great constitutional lawyer." No one is more eager than Ervin to go along with a central theme of Nixon's second inaugural address: "We have lived too long with the consequences of attempting to gather all power and responsibility in Washington."

It is precisely because he feels that his beloved Constitution is being trampled upon by the President in an unprecedented power grab that Ervin is leading the effort in Congress to regain its rights. He considers the Nixon Administration "the most oppressive" that he has known, not only in its arrogance toward Congress but in its snooping on individuals, its extension of police powers and its harassing of newsmen. Ervin sees all such activity as violating the Constitution, which he calls "the finest thing to come out of the mind of man."

Thirst. Throughout Ervin's long career he has distrusted what he calls "the insatiable thirst for power of well-meaning men." As he sees it, "the Constitution was made to guard the people against the dangers of good intentions. There are men of all ages who mean to govern. They promise to be good masters, but they mean to be masters. The Constitution was written primarily to keep the Government from being masters of the American people."

Self-effacing and good-natured, although never a backslapper, Ervin was chosen by Senate Majority Leader Mike Mansfield to head the select committee because, Mansfield explained: "Sam is the only man we could have picked on either side who would have the respect of the Senate as a whole." Moreover, Ervin does not now have--and never has had--higher political ambitions. It is ironic that liberals, in particular, see Ervin as a heroic figure. Not too many years ago they were gnashing their teeth at his skillful, legal arguments against civil rights laws.

Now Ervin has the broad support of not only the Senate's Democratic liberals but also its Democratic conservatives and many Republicans. Nixon's secretive handling of the Watergate affair has dismayed his strongest backers. Republican office holders feel that they are being needlessly tarred by Watergate and want the real culprits exposed. Also, many Congressmen disdain such intimate Nixon aides as John Ehrlichman, H.R. Haldeman and their assistants, who are often regarded by veteran politicians as arrogant, inexperienced and selfishly protective of the President. Noting that some members of the White House staff seem to be enmeshed in the Watergate affair, one Republican Senator said sarcastically: "It couldn't happen to a better bunch of guys."

In addition, Senators of both parties almost unanimously dispute Nixon's claim that Executive privilege protects his staff against congressional inquiry. That idea, unmentioned in the Constitution, rests on the doctrine of the separation of powers between the branches of Government. The thinking is that Congress cannot intrude upon the decision-making process of the Executive Branch and thus cannot demand to know the private advice that the President gets from his staff. Indeed, Presidents have traditionally demanded and been granted this privilege.

In his Watergate investigation, Sam Ervin is not trying to find out what White House aides may have told the President about some proper aspect of their official duties. He wants to know whether they took part in political ac tivities that may have been illegal or im proper or whether they know who did so. Yet Nixon has tried to ban any of his aides, even those no longer on his staff, from testifying before any con gressional committee. Last week the Washington Post revealed that Nixon's chief counsel, John W. Dean III, had cited this privilege to avoid releasing travel documents to the General Ac counting Office, which was trying to find out whether White House officials had made political campaign trips in Air Force planes without reimbursing the Government.

Wrong. The President will allow his staff members to respond to written questions from Ervin's committee. "But you cannot put a piece of paper under oath and cross-examine it," Ervin pro tested. Later, in a show of compromise, Nixon said that he would let some aides be questioned personally, but not un der oath and not in public. Yet Ervin in sists that, if the truth about Watergate is to emerge, the public -- and not just a few Senators -- has the right to "observe the demeanor of the witnesses and to judge their credibility."

The impasse between Ervin and Nixon seems to offer no avenue toward compromise. Nixon has said that he "would welcome" a court test on his de cree of Executive privilege, adding:

"Perhaps this is the time to have the highest court of this land make a de finitive decision." It is hard to find a legal scholar who thinks that Nixon would win his case.

Harvard's Raoul Berger, a specialist in the history of Executive privilege, scoffs at the Nixon claims of broad staff immunity from questioning as "utterly ridiculous -- it's Executive propaganda without historical precedent. Nixon is all wrong on this." Yale Law Professor Alexander Bickel agrees, noting that some subjects discussed with the Pres ident are protected by the doctrine, but individuals as such are not. Nixon's attempt to put all aides under the doctrine, says Bickel, "can't hold water."

Even a high Justice Department official conceded under heavy questioning by a House subcommittee last week that a White House aide could not claim Executive privilege if a committee asked about any "wrongdoing" by the aide. Deputy Assistant Attorney General Mary C. Lawton agreed, for example, that Dean, Nixon's counsel, would have to testify if he was accused of obstructing the FBI'S inquiry into the Watergate crimes. At his unsuccessful nomination hearings to succeed J. Edgar Hoover as director of the FBI, Gray testified that Dean "probably had lied" to FBI agents. Dean was given more than 80 FBI reports on Watergate by Gray, even though he had recommended the employment of one of the convicted wiretappers, G. Gordon Liddy.

Presidential Press Secretary Ronald Ziegler stressed the Administration's willingness to cooperate with investigations by noting that Nixon had ordered his aides to appear if subpoenaed by the federal grand jury in Washington that is probing the Watergate affair. Yet the gesture was meaningless, since the President has no power to exempt his aides from any such subpoenas. This also puts the White House in a new bind: if it responds to subpoenas from the Judicial Branch, why not from the Legislative Branch? Ervin fully intends to ask his committee to subpoena members of the White House staff if they do not respond voluntarily.

Bible Country. Ervin considers himself "a liberal in the true sense of the word," in the Jeffersonian sense that Government exists to make men free rather than to control them. That emphasis on individual liberty and responsibility--so often advocated by Richard Nixon--was common among Ervin's Scottish Presbyterian forebears. It is also a dominant view in the mountains around Morganton, N.C. (pop. 14,000), where Ervin has spent nearly his entire life, except when away on official duties. It is Bible country, in which many lifelong residents still see card playing and dancing as evil, and tolerate only a thirst for moonshine liquor. Ervin, who drinks only moderately and spoils fine bourbon by mixing it with ginger ale, has a keen taste for the difference between good and bad home brew.

Ervin's father Sam Ervin Sr. was a self-educated, sharp lawyer who passionately hated F.D.R. and the kind of centralized authority that Roosevelt seized. As early as age 15, "Little Sam" began visiting his father's one-room office across from the county courthouse to learn law the way Father had, by reading one dry legal text after another.

Sam went at 16 to the University of North Carolina, where he developed a lifelong fondness for poetry (favoring Tennyson, Kipling and Shakespeare) and a knack for memorizing it. Always a hearty laugher, especially at his own jokes, he was elected president of his senior class and chosen its "best egg."

Shortly before graduation day in 1917, Ervin enlisted as an infantry private in World War I. He was wounded in action twice in France and won the Silver Star for "conspicuous gallantry" and the Distinguished Service Cross.

After returning for brief law study at Chapel Hill, Ervin passed the North Carolina bar examination. But he decided that he needed more training and entered Harvard Law School as an advanced, third-year student. After earning his degree ('22), he then began an unusual career in which he never reached for opportunities but had them thrust upon him. While he was still at Harvard, some friends, without his knowledge, nominated him as a Democratic candidate for the North Carolina legislature. Although eager to begin his law practice, he grudgingly accepted and, to his surprise, won in his Republican district. Ervin's talent for the deft oratorical put-down surfaced in Raleigh. When the state legislature in 1925 was convulsed by a Bible-belt debate over whether to allow the teaching of evolution in public schools, Ervin helped prevent such a ban by ridiculing it. "Only one good thing can come of this," he protested. "The monkeys in the jungle will be pleased to know that the North Carolina legislature has absolved them from any responsibility for humanity in general and for the North Carolina legislature in particular."

After serving three scattered terms, Ervin left the legislature to devote full time to practicing law with his father. "It was from him that I got the feeling that the freedom of the individual--no matter how lowly he is--is fundamental," Ervin recalls. The elder Ervin was especially incensed at any hint of police brutality. Young Sam was reluctantly drawn away from law practice by a series of appointments that Governors or other officials persuaded him to accept: in 1935 as a county court judge, in 1937 as a superior court judge, in 1948 as a state supreme court justice.

During his six years on the North Carolina supreme court, Ervin gained a reputation for making sound judgments and writing clear, well-reasoned decisions. His aim, he says, was to "write decisions that didn't need interpretation," which are a rarity on many courts. Ervin is proudest of his role in the case of a black man who had been convicted of raping a white woman. Suspicious, Ervin pored over the trial's 1,200 pages of testimony, decided that the evidence was inconclusive, and had the man freed. The Senator still recalls what the relieved but resigned man said: "Boss, we never get off death row. We are on death row from the day we be here until the day we die."

Turmoil. Ervin's judicial career was briefly interrupted in 1946, when he was urged to run for the congressional seat held by his younger brother Joseph, who, suffering from painful osteomyelitis, had committed suicide. Ervin agreed only on condition that he would not seek reelection; he preferred to stay in North Carolina. That preference was abandoned again in 1954, upon the death of one of the state's most colorful Senators, Clyde Hoey. Governor William Umstead insisted that a reluctant Ervin replace Hoey.

The new Senator arrived in Washington at a highly emotional time--and was sworn into office by Richard Nixon, then Vice President. The Senate was in turmoil over what to do about the rampaging anti-Communist antics of Wisconsin Senator Joseph McCarthy and the Supreme Court's Brown decision ordering the desegregation of public schools. Ervin soon became embroiled in both battles.

Senator after Senator timidly turned down the thankless task of serving on the committee that would consider whether McCarthy should be censured. Lyndon Johnson, then minority leader, turned to Ervin because of his background as a judge. Ervin served on the committee and wholeheartedly advocated censure after hearing the evidence. His first major speech on the Senate floor denounced McCarthy for his "fantastic and foul accusations." Ervin declared that McCarthy should be expelled because he was afflicted with either "moral incapacity" or "mental incapacity." After the Senate censured McCarthy, L.B.J. told Ervin: "You showed that you don't scare easily."

Nor did Ervin shy from carrying the banner of Southern states against school integration, expanded voting rights and opening public accommodations to blacks. His arguments were based on a higher intellectual plane than those of most Southern Senators, but this seemed a blind spot in his general devotion to individual rights. He held that the Supreme Court should never have taken up the Brown case, that it was legislating rather than interpreting. He could never see how federal law could force the owner of a hamburger stand to serve everyone, on the assumption that the seller was engaged in interstate commerce. In Ervin's view, busing white children from neighborhood schools deprives them of their rights in the vague hope of helping blacks. Ervin contended that the Government has no power to require such acts.

In a sense, Ervin has been consistent in his limited view of federal authority. Some of his scholarly critics complain that Ervin's Constitution seems to lack a 14th Amendment, which provides for due process and equal treatment under the law. Ervin now concedes that, under the 14th Amendment, a constitutional case can be made for dismantling dual school systems, but he still insists that it provides no power to compel schools to integrate.

In pursuing his independent course in the Senate, Ervin has deplored wiretapping by federal authorities but has shown little concern about it at state and local levels. He drew the wrath of Women's Liberationists by fighting the women's rights amendment to the Constitution, terming it the "unisex amendment" and contending that it would deprive women of such present legal benefits as exemption from the draft and freedom from prosecution for non-support of children. Despite his church-going constituency, he has fought attempts to permit prayer in public schools. The Constitution, he insists, has wisely erected a wall between church and state.

With little fanfare, Ervin has used his chairmanships to advance individual liberties. He inspired the revised Uniform Code of Military Justice, claiming that servicemen were subject to arbitrary discipline rather than justice. He pushed through a bill preventing any Indian tribal council from depriving an Indian of his constitutional rights. Ervin led a reform of the bail system, giving judges the power to release suspects too poor to pay bail but likely to appear for trial. He secured passage of a bill limiting the use of lie-detector tests in screening federal employees.

Ervin has exposed the widespread surveillance of antiwar groups, black militants and even Congressmen and Senators by the U.S. Army. Through committee hearings, he has attacked the compilation by various Government agencies of a wide range of personal computerized data on citizens. He has denounced the Nixon Administration's crime bill for Washington, D.C., which permits jailing people who are considered dangerous but have not been convicted of any crime, as "a blueprint for a police state."

Despite his blunt language when aroused, Ervin is a compassionate man who has conducted his many committee hearings with courtesy and respect for witnesses. The transcripts are replete with phrases like "I am very much impressed by your statement" or "I want to congratulate you on the very lucid manner in which you stated your views." That is partly why Ervin seems to be the ideal Senator to hold those potentially volatile hearings on the many ramifications of Watergate.

That reputation for fairness was tarnished two weeks ago, when Ervin was called away to attend the funeral of his youngest brother. In his absence, the investigation almost got out of hand. One of the convicted Watergate wiretappers, James W. McCord Jr., began making sensational allegations of White House involvement. He talked to the committee's staff investigator, Samuel Dash, 48, and to the committee itself. Dash, trying to apply pressure on the six other convicted conspirators to also talk, unwisely called a press conference to reveal that McCord had "promised to tell everything he knows."

Leaks. There were widespread leaks to newsmen about McCord's charges--all of which seemed to be based on hearsay and were so far unsubstantiated. One committee member, Connecticut Republican Lowell P. Weicker Jr., publicly demanded the resignation of Haldeman, the President's chief of staff. Weicker claimed that Haldeman "probably" knew about an operation of political sabotage against the Democrats that was far broader than the Watergate eavesdropping.

The resulting news stories gave Presidential Press Secretary Ziegler a choice opportunity last week to accuse the Ervin committee of "irresponsible leaks of tidal-wave proportions." Added Ziegler: "I would encourage the chairman to get his own disorganized house in order so that the investigation can go forward in a proper atmosphere of traditional fairness and due process."

Ervin, returning to Washington, moved to do just that. He protested that the leaks were coming not from his committee but from McCord's lawyers. Nevertheless, with the support of the committee's ranking Republican, Tennessee's Howard H. Baker Jr.,* Ervin ordered the committee not to hold any more closed-door hearings. Prospective witnesses would talk only privately to the staff investigators until public hearings begin. And the chairman ordered the start of those hearings moved up so that they would begin after the Easter recess, which ends April 25.

Ervin and Baker took an even stronger step, indirectly criticizing Weicker. They issued a short press release stating: "In the interests of fairness and justice, the committee wishes to state publicly that it has received no evidence of any nature linking Mr. Haldeman with any illegal activities in connection with the presidential campaign of 1972." The chastised Weicker, admitting "I know when I've been zinged," said he had no such evidence against Haldeman--but indicated that he still thought Haldeman ought to quit because "he is chief of staff--and I hold him responsible for what happened."

Watchdog. The Ervin orders to hurry up the start of the hearings seemed necessary to keep rumors from running wild, but it shortened the time for careful staff investigation into the exceedingly complex and clouded affair. A priority aim of the committee would seem to be to unravel the tangled role played by White House Counsel Dean. He had insisted on sitting in on FBI interviews with White House personnel, and had asked for all FBI reports, but more as a White House watchdog, it seemed, than in a search for truth.

Dean's role seems pivotal, and the Ervin committee may have a tough time finding out just what it was. Last week Press Secretary Ziegler refused to respond to a series of questions that TIME put to him about both Dean and the President. Assuming that Nixon had no advance knowledge of the Watergate wiretapping, what did the President do when he heard about it? Did he summon his top aides and ask them about it? If not, why not? Did he rely entirely on Dean to conduct a White House investigation? What did Dean report? Was the President satisfied with whatever Dean told him, or did he question others? Does he feel that he now knows all about how Watergate happened and who was involved? If so, why does he not reveal all and spare himself the potential embarrassment of having the Ervin committee do so?

Those questions go, of course, to the heart of just how much Nixon can be hurt by the whole sordid affair. A survey conducted for the Wall Street Journal by a Princeton, N.J., polling firm disclosed last week that Watergate is arousing widespread concern and is seriously damaging the President and his party. Clearly, Nixon and his staff are going to have to face up to the consequences of Watergate and the manner in which the President's re-election campaign was conducted. It is not enough to issue indignant denials and then claim that aides can discuss the matter only in secret or behind the closed doors of grand jury rooms.

Ervin is not going to stand for that kind of evasion. For him, the Watergate investigation is a matter not just of high politics or powerful personalities but also of the most profound constitutional principles. In a far different context (a criminal case in which Ervin as a state supreme court justice argued to free a convicted man), he stated his first concern. "What may be the ultimate fate of the prisoner is of relatively minor importance in the sum of things," he wrote. "His role on life's stage, like ours, soon ends. But what happens to the law is of the gravest moment. The preservation unimpaired of our basic rules of procedure is an end far more desirable than that of hurrying a single sinner to what may be his merited doom."

The judicial Sam Ervin may well conclude, after a fair hearing, that Nixon's top aides did not behave illegally or unethically in last fall's presidential campaign. If so, they have nothing to fear from his committee. But if they are not clean, they can expect no forgiveness for sins against the spirit of the Constitution from this persistent libertarian, who declares that "open and full disclosure of the governing process is essential to the operation of a free society." Mindful of the past, vigilant of the present and concerned about the future, Senator Sam Ervin warns: "Throughout history, rulers have invoked secrecy regarding their actions in order to enslave the citizenry."

*According to the Gospel of John, Nicodemus, a Pharisee, came to Jesus at night and asked him about his teachings and his divinity. - Besides Ervin, Baker and Weicker, the select committee consists of Democrats Herman E. Talmadge, Daniel K. Inouye and Joseph M. Montoya, and Republican Edward J. Gurney.

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