Battle Over Presidential Power

All week the subpoenas and presidential refusals arced across Washington like shellfire. Watergate, for so long a kind of inchoate guerrilla war, had developed clear and momentous battle lines. Richard Nixon took his stand behind a barricade of Executive privilege. Neither Sam Ervin's Senate committee nor Special Prosecutor Archibald Cox would get the key White House tapes and documents they were demanding for their investigations of Watergate. At issue, the President declared, is "the independence of the three branches of our Government ... the very heart of our constitutional system." Sam Ervin had a different definition of the question: "Whether the President is above the law." Thus, as Tennessee's Howard Baker observed, "the issue was joined."

Watergate thereby became not only an epic whodunit of daytime television but a political and constitutional struggle of historic dimensions. At stake was nothing less than the definition of presidential powers and the President's relationship to the two other, nominally coequal branches of Government. Nixon's refusal to divulge the White House records raised a constitutional question never before resolved in the republic's 197 years, a decision that might affect the conduct of Presidents yet unborn: To what extent can the Executive Branch maintain strict privacy in defiance of the other branches even if that privacy may cloak a crime?

Quite beyond the specific constitutional issue, Nixon's tenure has increasingly been marked by an extraordinary assertion of presidential powers. John Ehrlichman told the Ervin committee that the President can do almost anything in the name of national security, including committing burglaries. John Mitchell testified blandly that he would have done anything to get Nixon reelected. Such arrogations were piled upon Nixon's massive impoundment of funds appropriated by Congress and upon his claims to the right to make war by fiat, and concealment of how he was conducting that war. It was not perhaps one-man rule, though the atmospherics of Nixon's preWatergate White House often suggested it, at least as told by his subordinates. But it undeniably represented an abuse of presidential power, even given the exigencies of governing in a complex age.

Hide Truth. It was also, of course, a decisive moment in Nixon's own presidency. Whatever the constitutional merits of his case, it is dangerously clouded by the appearance that the President simply has something to hide. For Nixon, this is the bitterest part of the struggle; no matter what high principles he invokes, the separation of powers argument will seem to many only a self-serving excuse to hide the truth. In one astonishingly disingenuous passage in a letter to Sam Ervin, Nixon wrote: "I personally listened to a number of [the tapes]. The tapes are entirely consistent with what I know to be the truth. However, as in any verbatim recording of informal conversations, they contain comments that persons with different perspectives and motivations would inevitably interpret in different ways." Snorted Ervin: "The President says he has heard the tapes, or some of them, and they sustain his position. But he says he's not going to let anyone else hear them for fear they might draw a different conclusion."

Richard Nixon in effect was telling the court of public opinion: Trust me. It was not the best moment for such an appeal. A Gallup poll showed that 24% of those surveyed believe that the President should be forced from office--a rise from 18% only two weeks before. That is a remarkable figure in a nation where only one President has ever been impeached (without being convicted)--a nation that has increasingly come to rely on and even revere the presidency. At the same time, according to Gallup, three out of four Americans now believe Nixon had some part in the Watergate break-in or the coverup.

Nixon still had defenders among the nation's newspapers, although the defense was often hedged. Said the conservative Chicago Tribune last week: "Nixon's letter declining to provide the tapes was not all that unreasonable. Perhaps reason can still be appealed to to produce a compromise that may save the country from this tragically unnecessary battle." The Richmond Times-Dispatch was more emphatic in its support: "His compliance would have shattered the separation of powers principle and left the presidency vulnerable to all kinds of incursions in the future."

But many more newspapers, including some that had supported Nixon until last week, were calling for release of the tapes. Said the Portland (Me.) Press-Herald, a liberal Republican paper: "Is impeachment the only means by which the American public can learn the full facts about Watergate?" The London Times has been consistent in defending Nixon, but last week, after Nixon's refusal, it editorialized: "When an accused man refuses to produce evidence which would decide the matter, the natural inference is that he does not do it because he dare not do it." Columnists Rowland Evans and Robert Novak interviewed 93 blue-collar workers in Jersey City. N.J., a natural Nixon constituency, and found that by a margin of 2 to 1 they wanted the President to turn over the tapes to investigators.

Some Republican Senators are growing increasingly restive. Both Republican minority leaders, the Senate's Hugh Scott and the House's Gerald Ford, counseled Nixon to release the tapes. New York's Conservative Senator James Buckley said: "I think the consensus of the American people will be that the President, while he has the right to exercise the [Executive] privilege, ought not to be exercising it." His brother, Columnist William F. Buckley, wrote last week: "The argument of Executive privilege is too abstract and too implausible to capture the popular imagination. [Americans] will take the President's refusal as grounds for properly drawing adverse inferences." Kansas' Senator Robert Dole, the former Republican National Committee chairman, reported his popular soundings: "A lot of the negative attitude of the people is not Watergate, but that the President hasn't appeared. They think he is hiding."

Julie Eisenhower predicted that her father would speak out on Watergate shortly. But a White House aide suggested that a Nixon statement may not be imminent. Said he: "The President has only got so many bullets to fire," and his previous public pronouncements have been "costly" in their impact on the President's prestige. Said the aide: "Every time he opens his mouth, he's risking rebuttal from a witness."

The Ervin committee first asked for presidential documents four weeks ago, and Nixon refused them. Then came White House Aide Alexander Butterfield's revelation that Nixon had equipped the White House with a taping system to record the President's telephone conversations and meetings. Some of those recordings, especially those involving John Ehrlichman, John Dean and John Mitchell, would clearly contain important Watergate evidence. The committee therefore sent yet another request to the President, asking him to yield not only written documents but the "relevant" tapes as well.

At the same time, Cox requested the tapes of one telephone conversation and seven meetings. Eventually, the White House did supply Cox with a White House memo that dealt with Hunt's shift from the White House to the Re-Election Committee's payroll, and another written by former White House Aide Gordon Strachan, under the principles enunciated by White House Attorney Charles Wright (see box). He said that the President would not withhold material dealing with his role as head of the Republican Party or extensively testified about by other witnesses and already made more or less public. Cox might later use those Nixon concessions as a precedent to establish his claim for other documents.

Nixon sounded out his staff. Within the White House, opinions differed on what the President should do about the issue of the tapes. His lawyers--Leonard Garment and J. Fred Buzhardt--initially advised the President to turn the tapes over to Cox. Domestic Affairs Adviser Melvin Laird and Presidential Aide Bryce Harlow went even further, recommending full disclosure. But Chief of Staff Alexander Haig and Press Secretary Ron Ziegler took the hard line. Said one adviser: "Those who don't believe a flat statement by the President are not going to believe the tapes haven't been tampered with. The hard-liners argued that disclosure would have "serious implications for our friends abroad." Revealing confidential conversations might inhibit them in the future, the argument went.

"If release of the tapes would settle the central questions at issue in the Watergate inquiries." said Nixon's letter, "then their disclosure might serve a substantial public interest that would have to be weighed very heavily against the negatives of disclosure." But Nixon implied that the tapes would be inconclusive, stating that they were susceptible to "different" interpretations.

Nixon and his lawyers argued that revelation would do prohibitive damage to the process of the presidency, that it would set a precedent destroying the frankness and internal freedom in which the White House must operate, that extremely private conversations can easily be wrenched out of context to devastating effect. "There are," said Nixon, "a great many very frank and very private comments, on a wide range of issues and individuals, wholly extraneous to the committee's inquiry."

He did not say so, but the President has a habit in private meetings of playing the devil's advocate. He sometimes hides his true opinion from staff or Cabinet members in order to encourage their frankness or develop new points of view. Nixon can argue that in cold print such intramural skirmishing is subject to misinterpretation.

Says one Nixon aide: "He's digging in, and he thinks the tapes are the most personal of all presidential papers. He's saying to himself. They're not going to get those goddamned papers. They're not going to get those goddamned tapes.' That's his frame of mind."

At the same time that Nixon was writing to Ervin, Wright was sending a letter to Cox, denying his request for the tapes on the grounds that their release would inevitably lead to their being used as evidence in court, thus violating the doctrine of separation of powers. Cox had argued that the doctrine did not apply where his request was concerned because he is a member of the Executive Branch. If that is true, said Wright, then "you are subject to the instructions of your superiors, up to and including the President, and can have access to the presidential papers only as and if the President sees fit to make them available to you."

The White House's intransigent position left the Ervin committee three practical courses of action: 1) drop the demand; 2) leave the matter in abeyance in the hope that public pressure would force the President's hand; or 3) pursue it in the courts. In an executive session, Ervin told the committee: "The President has thrown down the gauntlet. What are we going to do now?" Baker suggested the matter might be submitted to arbitration. Georgia's Senator Herman Talmadge, who has become a dominant figure in the committee's private deliberations, countered emphatically: "We've got to get these hearings over with. We need these tapes, and we've simply got to subpoena the President." When Ervin finally asked if anyone on the committee opposed the idea, no one said a word.

Instead of using the standard subpoena form that would have required a personal appearance by the President, the committee used a special form. To avoid the appearance of being on a "fishing expedition," the committee severely limited the number of White House meetings for which it demanded tapes; it listed five encounters, with dates specified, between the President and John Dean. At the same time, the committee issued a much more scattershot subpoena for "any and all records relating directly or indirectly to the attached list of individuals and to their activities, participations, responsibilities or involvement in any alleged criminal acts" in the 1972 election. The list contained 25 names, including Ehrlichman, H.R. Haldeman, Dean, Mitchell, Charles Colson, Jeb Magruder, G. Gordon Liddy and Ron Ziegler.

The Senators returned to the Caucus Room. Said Ervin: "I deeply regret this action of the committee. I have very different ideas of separation of powers from those expressed by the President ... First, if it exists at all, it only exists in connection with official duties. Second, under no circumstances can it be invoked on either illegal activities or campaign activities." Then he concluded: "I don't think the people of the United States are interested so much in abstruse arguments about the separation of powers or Executive privilege as they are in finding the [truth]. I used to think the Civil War was our country's greatest tragedy. But I do remember that there were some redeeming features in the Civil War, in that there was some spirit of sacrifice and heroism displayed on both sides. I see no redeeming features in Watergate."

Around 6 p.m.. Deputy Counsel Rufus Edmisten and Assistant Chief Counsel Terry Lenzner, accompanied by Staff Research Assistant Polly Dement, climbed into an unmarked Capitol-police car and, pursued by swarms of newsmen in other cars, sped across Washington to the Executive Office Building, which is adjacent to the White House. At the E.O.B., four White House guards painstakingly examined the emissaries' identification cards. At last, Edmisten and the others were led to the office of White House Counsel Leonard Garment, where he and Wright sat watching the 6:30 news on television. "I have something for you." Edmisten said. "Well, I wonder what it could be," Garment replied.

With that, everyone sat down around a coffee table to watch the Watergate segment of the news. Finally Edmisten said, "Well, look, I guess we ought to transact our business." He presented the committee's two subpoenas. Garment laboriously read the documents, then passed them to Wright, who also read them. Finally, as Edmisten and the others shook hands to go, Wright asked: "You don't happen to have one of those paperback Constitutions that Sam Ervin uses all the time, do you?" He was referring to the blue-covered Constitutions that Ervin passes out to constituents. Edmisten pulled a copy-out of his hip pocket and handed it over. Said Wright jokingly: "It's been alleged we need one around here."

The Ervin committee had hoped that Nixon would file a motion to quash the subpoenas, a step that would put the burden of proof on the President's attorneys. Instead, Nixon's men elected to ignore all the subpoenas, simply issuing a letter of refusal and leaving the burden of legal initiative on the committee and on Cox. Immediately, the committee, voting by hand on camera in the hearing room, moved to sue the President for the tapes and documents.

Cox simultaneously petitioned the U.S. District Court to compel the President to "show cause" why he should not comply with his subpoena. "Our view," said Cox, "is that the argument [based on the separation of powers] is not legally sound." Executive Branch employees have long been subject to subpoena by grand juries, he noted, adding that ever since Marbury v. Madison* the Executive has been accountable to the courts, "and this is merely a specific application of that principle." With appropriate irony, Cox's petition was heard by Judge John Sirica, who tried the original Watergate Seven last winter and was as instrumental as anyone in breaking open the case. The judge called for briefs to be submitted next week on Cox's petition. Over the weekend, the Ervin committee staff was laboring to prepare its case regarding the right to possession of the tapes and documents, and would probably file it in federal court at the end of the week. Thus on two fronts the constitutional battle was joined.

Having succeeded in cutting the colonies loose from what they regarded as a despotic monarchy, the founding fathers were extremely wary of the tyrannical potential in the office of Chief Executive. Some, like George Mason of Virginia, advocated an Executive of three persons rather than one. Said Mason: "If strong and extensive powers are vested in the Executive, and that Executive consists only of one person, the Government will of course degenerate into a monarchy." Eventually the founders settled on one President, but the fear of Executive tyranny prompted them to separate the powers of Government and carefully enumerate the President's prerogatives.

Dark Area. What makes the current legal question so difficult is that, as the University of Chicago's Philip Kurland observes, the President and Congress are clashing "in a dark gray area where there are no judicial precedents." Never before has Congress subpoenaed a President. Only once has the Judiciary Branch issued a subpoena to a President. That was in 1807, when Chief Justice John Marshall, performing his collateral role as a district-court judge in Richmond, was trying Aaron Burr for treason. Burr wanted Thomas Jefferson to produce letters written to him by one of the prosecution witnesses.

Marshall dismissed the English idea that "the King can do no wrong," for the American Constitution held the President liable to impeachment and removal, and, added Marshall, "It is not known ever to have been doubted but that the chief magistrate of a state may be served with a subpoena ad testificandum." That is, the President could be subpoenaed to appear as a witness. A more complicated issue was whether the President could be compelled to produce any document in his possession. Ruled Marshall: "The President, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper ... I can readily conceive that the President might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of the exposure." Jefferson handled the problem by denying that the court had a right to subpoena his papers; then he went ahead and produced the letters anyhow. Thus the issue was never forced to a final test.

Some experts believe that Nixon should have followed the Jefferson example, and in the end, of course, he may yet do so along the way to the Supreme Court. But in a letter to Judge Sirica, in which he declined to produce his tapes for Cox, the President argued: "I follow the example of a long line of my predecessors who have consistently adhered to the position that the President is not subject to compulsory process from the courts." He quoted an 1865 statement of then U.S. Attorney General James Speed: "The President of the United States, the heads of the great departments and the Governors of the several states, it has been decided, are not bound to produce papers or disclose information communicated to them, where, in their own judgment, the disclosure would, on public considerations, be inexpedient." He might also have cited advice George Washington got on the subject: "The Executive ought to communicate such papers as the public good would permit, and ought to refuse those the disclosure of which would injure the public."

By that theory, then, it came down to presidential discretion as to whether the public good would be best served by Nixon's releasing his tapes and papers. The question, of course, is: Who judges what is the public good? Nixon has ruled that it would not be served, but the decision leaves him open to the suspicion that what is being served, in the end, is really his own private good.

From the beginning, Presidents have exercised something like Executive privilege, although it did not get that name until Dwight Eisenhower's time. Washington set the precedent by warning Congress that he would not turn over papers that might reveal military secrets or might otherwise be "injurious" to the public. But it is a matter of tradition more than of law, since the Constitution makes no mention of such a presidential right. Says Kurland: "We do not even have a good definition of Executive privilege. It certainly does not mean an individual official's interest--including the President's. We've not yet arrived at the Louis XIV state--'L'etat c'est moi.' "

Solid Ground. A crucial issue is whether the tapes might conceal the commission of a crime--obstruction of justice, for example. If they do, then, University of Utah Law Professor John Flynn observes, "there is no privilege of any kind." But unless the President will yield the tapes, there is no sure way of knowing whether they contain such evidence. The dilemma argues for some compromise solution in which the tapes would be heard in private, either by judges or, to preserve the separation of powers, by a panel of citizens, as Senator Howard Baker suggested.

There is a distinction between the claims of the Ervin committee and of Cox's office. "The President has a stronger, more legitimate interest in refusing to hand the tapes over to the Senate committee," according to Scott Bice, associate dean of the University of Southern California Law Center. "The committee is not concerned with specific crimes but with finding legislative means to prevent those practices in the future. Bad campaign practices can be known without knowing if A or B is guilty." Cox is a member of the Executive Branch and technically subordinate to the President. But since Executive privilege presumably does not extend to crimes, the special prosecutor seems on solid judicial ground in seeking the President's evidence.

Cox himself is very much aware of the historic role he has suddenly assumed, and he approaches it with a mixture of enthusiasm and chagrin. The responsibilities, he says, are "awesome; there is no other word." Says an intimate: "Archie is really in the game, but he's agonizing too." He is determined to pursue Watergate and its related scandals to the end, even if it takes years. Cox expects to be in Washington a long time--long after Richard Nixon, for example. Once he considered resigning if the White House did not supply the documents he wanted, but now he is determined to stay the course, no matter what. The Administration was exerting some counterpressures. Last week the White House extracted from Attorney General Elliot Richardson, Cox's boss at the Justice Department, a statement criticizing Cox's position on the tapes and documents.

Professor Leonard Ratner, a University of Southern California expert on constitutional law, advances an interesting argument: "The President is having considerable difficulty relying on the claim of Executive privilege, where if he refused to turn over the tapes on the grounds that they might be self-incriminating--in other words, called upon the Fifth Amendment--that claim of privilege would be upheld. But he clearly does not want to make that claim."

Ultimately, unless a compromise is reached, the issue will be decided by the Supreme Court. Eventually, if the Supreme Court rules that the issue is appropriate to judicial review, it should hand down a decision in anywhere from six weeks to three months--and Nixon passed the word last week that he will abide by the court's decision, provided it is "definitive," whatever that means.

Close Vote. Although no one has suggested it as a presidential motive, it is obvious that Cox will be hard-pressed to prosecute additional criminal cases in the scandal without access to the tapes. Courts have often thrown out indictments when the Government has refused to produce possibly exculpatory information on the demand of defendants. Thus if, say, John Dean insisted that a taped conversation with the President would clear him, and Nixon refused to give up the tape, Dean would likely have his case dismissed.

It is possible, however, that the court may attempt to avoid the constitutional issue and rule on the cases narrowly. The Justices might decide, for example, that the President had to give up certain tapes simply because he had previously waived Executive privilege and allowed aides who were present during the conversation in question to testify about it before a grand jury or a Senate committee. In that way, the court would skirt the absolute questions of privilege. Some experts predict that a Supreme Court vote would be close. The judgments of the four Nixon appointees may be interesting. The President chose them specifically to give the court a stricter law-and-order direction--and refusal to honor a subpoena hardly represents the spirit of law-and-order.

For all of the floodwaters around the foundations, the White House is determined to project an upbeat mood. Says one aide: "Now that the President has stopped rolling over, it'll have a real impact." The hard-liners argue that the odds are far greater that Nixon will survive Watergate than that he will be forced out.

One Nixon adviser says that, in the hospital, "Nixon had a chance to rest and to reassess an awful lot of things. He came out with the renewed conviction that the American people ultimately will put this whole thing in its proper perspective." Another puts his perception of Nixon's new mood much more bluntly. Says he: "Don't overlook the President's hardheadedness and stubbornness. That's a big factor in this. He's come to see the Ervin committee as partisan and the Cox crowd as a bunch of Democratic left-wingers--Kennedyites and McGovernites." If that is true, Nixon seems to be ignoring the profound opposition and anger of a great many fellow Republicans.

On the surface, at least, Nixon himself seemed relaxed enough last week, perhaps because he could immerse himself in foreign affairs and forget Watergate for the moment. The Shah of Iran came to call (see THE WORLD), offering elaborate praise, and Nixon absorbed it like a man sunbathing. "When you said that we were going to get out of Viet Nam with honor and dignity," said the Shah, "with all those things you have said, you realized them one by one, in an inexorable march toward attaining those noble goals."

Nixon believes that the polls have probably bottomed out, that the public is wearying of the hearings and would just as soon get back to Let's Make a Deal. Around the White House, no crisis atmosphere was allowed to show. Television sets work only intermittently during the day, doubtless in deference to Nixon's own defiant refusal to tune in the Senate proceedings.

The atmosphere contained an almost alarming quality of self-deception. Last week John Connally resigned as a special adviser to the President. It was well known that he had taken an aggressive line on Watergate and that his advice was not welcome. More embarrassing revelations about secret bombings and covert military activity in Cambodia and Laos continued to spill out. Both the House and Senate have passed bills to curb Nixon's power to impound funds appropriated by Congress. Even such a comparatively trivial sign as Kissinger's postponing his trip to Peking, which had been set for early August to discuss a Cambodian settlement with Chou Enlai, aroused speculation. Kissinger is concerned that Watergate has eroded the President's--and his own --ability to conduct foreign policy, and that the longer the crisis goes on, the more damaging and potentially dangerous it is to the nation.

There was occasion, too, to speculate about Nixon's deeper motives in refusing to release the tapes--for example, that he might be biding for time, on the theory that the closer the nation comes to the 1974 congressional elections, the less willing Congressmen will be to involve themselves in an impeachment process. Or that the more time that passes, the less palatable an interim Agnew presidency would be, and the more the American people would be likely to stick with a diminished Nixon for such of his term as might remain.

Some took comfort from the fact that in the ominous murk of Watergate the legal process was at last in operation. Actually, there is a dual process at work in the U.S. now. The nation's institutions have submitted their cases of principle and conflicts of powers to the courts. There, Richard Nixon's argument will be decided as an issue in the collision of separate branches. Simultaneously, Nixon is being tried in the minds of his fellow Americans. The verdict there may be less clear, but it could be far more damaging.

* In the case, considered in 1803, the Supreme Court for the first time declared an act or Congress unconstitutional, thereby establishing the crucial principle of judicial review.

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