Thrust and Riposte in the Agnew Battle

For Vice President Spiro Agnew, battling to preserve his post and his political future, there was good news and bad news last week. He won a surprise and legally surprising tactical victory in his efforts to halt leaks from the grand jury's investigation of him for bribery, extortion, conspiracy and tax evasion. Yet the President of the U.S. went out of his way to set the public record straight on his support of the prosecution and the seriousness of the charges, even as he accepted Agnew's right, fiercely asserted the week before, not to resign if indicted. Worst of all for Agnew, the Government argued for the first time that a sitting Vice President could be indicted and disclosed that it was pressing for an indictment before Oct. 26, when the five-year statute of limitations on some of the charges will run out.

Agnew's courtroom victory came after his lawyers had moved to quash the grand jury investigation by arguing that it was not only unconstitutional--a Vice President could not be indicted--but that the Justice Department had leaked so much detrimental material about Agnew to the press that the jurors were bound to be prejudiced. In a highly unusual action, Judge Walter E. Hoffman granted Agnew's attorneys the power to gather information about the extent of the leaks by questioning under oath any persons they felt to be "appropriate and necessary"--a sweeping definition that could be interpreted to cover not only newsmen but Justice Department officials up to and including Attorney General Elliot Richardson himself.

Agnew's attorneys promptly subpoenaed a number of newsmen and press organizations, including TIME, and raised serious questions about the freedom of the press that are sure to create a new set of constitutional court battles (see following story).

In turn, Richardson, in a brief filed in court, rejected Agnew's plea for immunity on constitutional grounds by arguing forcefully that Agnew could be indicted before he was impeached. The brief, signed by Solicitor General Robert H. Bork but clearly Richardson's responsibility, claimed that only the President was immune from prosecution prior to impeachment--a point of view that may have a vital bearing later on if Richard Nixon ever is indicted.

Not Indispensable. While noting that the President was indispensable to the conduct of the nation's affairs, the brief argued that the same could not be said for the Vice President. "Without in any way denigrating the constitutional functions of a Vice President," argued the brief, "there have been many occasions in our history when the nation lacked a Vice President and suffered no ill consequence." Indeed, not only could the Vice President be indicted but tried, convicted and even jailed while holding office, although the brief did admit, in a straight-faced style, that jail might "interfere in some degree with [his] exercise of his public duties."

To avoid the prospect of the nation's Vice President sitting in a cell, Richardson suggested a new approach. He urged Judge Hoffman to let the grand jury press on with its investigation and bring in an indictment, should the evidence warrant one, which would stop the statute of limitations from running out. Then, instead of quickly going to trial, and if the Vice President agreed, the Justice Department would give the House of Representatives a chance to impeach Agnew. Only if the House elected not to would Richardson move ahead with the prosecution. Judge Hoffman is expected to rule on the constitutional issue by the end of this month.

Richard Nixon took care to put more distance between himself and his Vice President. Speaking at an informal press conference, Nixon had praise for Agnew's "years of distinguished service as Vice President." But then Nixon fired back at his Vice President, who, by implication, had attacked him in his speech in Los Angeles a few days before. Agnew had accused Nixon's Justice Department of trying to destroy him with "malicious, immoral and illegal" news leaks. Contrary to Agnew's claim in his speech that he was being hounded by trumped-up claims, Nixon said that the charges "are serious and not frivolous." Nixon also defended Henry Petersen, the head of Justice's Criminal Division, who Agnew said was out to bag him as a trophy. Said the President: "If I did not support Mr. Petersen's handling of the investigation, he would have been removed by this time."

That gave Agnew a chance to retort but instead, speaking at a Republican fund raiser in Chicago, the Vice President sought to ease the tension that was damaging the party by calling Nixon "a great President," and saying: "Thank God we have a man who has faced some of the most unbelievable pressures and handled them."

These days, however, the President and the Vice President act like two men linked by a heavy chain--each eager to be free of the other and able to fight his own battle, and yet each recognizing that their fates are bound together. They have never been real friends, and now the bitterness between the two is so strong that few of the aides in either camp attempt to deny it exists.

Yet Nixon cannot disown Agnew without further angering the conservatives in both parties. A Gallup poll last week showed that only 32% of the nation approved of the way that the President was handling his job, a drop of 6% since the Agnew case erupted and only 1% above his low mark during the depths of Watergate. And a Harris poll reported that 51% of the American people feel that Congress would be justified in beginning impeachment proceedings against the President if he refused a court order to turn over the Watergate tapes to a panel of judges.

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