The Legal Legacy of Watergate

The new President was earnestly in action, the former President departed, and a Watergate-weary nation was eager to turn the scandal over to the historians. But one of Watergate's lessons was that the U.S. legal processes, once activated, cannot be turned on and off with a twist of a judicial wrist. Already it was apparent last week that Citizen Nixon was enmeshed in criminal litigation and that the nation still faces an unwanted decision on what legal toll should yet be exacted of its deposed leader.

Richard Nixon's forced removal from office was a unique and humiliating punishment. But it was also based on the proposition that no man is above the law and that justice must at least strive for equal treatment of all those who break the law. Compassion might dictate immunity from prosecution for Nixon. But would it be just to permit him to go untried while some two dozen of his agents have already paid the penalty of conviction or face trial for crimes committed in his behalf? If all were pardoned in a grand gesture of healing, what of justice for such as Charles Colson, Egil Krogh, Jeb Stuart Magruder, Herbert Kalmbach, Donald Segretti and the lesser Watergate burglars who already have been imprisoned? What of justice in a historical perspective, when so many have admitted their guilt, if Nixon were allowed to cling to the fiction that he resigned only because he had lost his "political base" in Congress?

As Congress prepared for its late summer recess, it was obvious that the lawmakers had no intention of offering any advice on the question of immunity for Nixon, at least until national sentiment has cooled and crystallized. That shifted the burden, perhaps unfairly, to Special Prosecutor Leon Jaworski, who is charged with investigating and prosecuting all Watergate-related crimes. Understandably, he was in no hurry to make that decision. Yet it was widely believed among legal experts in Washington and indeed within his own staff that Jaworski had no choice: the evidence of criminal activity by the former President is sufficient for indictment and Jaworski therefore is under a legal obligation to prosecute Nixon. Simply judged by the law and the facts, the question was not whether, but when.

For Jaworski, his most immediate problem was how to mesh any action against Nixon with the impending Watergate cover-up conspiracy trial of six former Nixon aides. The special prosecutor moved last week to gain more time to study that situation by agreeing with most of the defendants that the trial should be delayed. While the defendants pleaded for postponement because of the massive publicity generated by Nixon's resignation, Jaworski based his concurrence on the need to analyze the 55 tape recordings of White House conversations that Federal Judge John J. Sirica is turning over to Jaworski under orders endorsed by the U.S. Supreme Court. Sirica was to hold a hearing this week on whether the trial should be postponed.

Before the trial is held, Jaworski will have to decide how to treat Nixon, whether as a defense witness, a prosecution witness or defendant. The grand jury that only named Nixon an unindicted co-conspirator because of doubts that a sitting President could be indicted can reconvene at any time to indict Citizen Nixon. A decision of some sort is inevitable since one defendant, John Ehrlichman, last week issued a subpoena for Nixon's testimony at the trial. Accompanying the subpoena, which presumably will be served on Nixon at San Clemente this week, was a check for $302 for his travel expenses to and from Washington and a $20 daily witness fee.

The subpoena from Ehrlichman marked a sharp break in longtime cooperative defense strategy between Ehrlichman and Nixon's other former top aide, H.R. Haldeman. Both had previously denied any attempt to obstruct justice by impeding the Watergate investigation. The devastating June 23, 1972, transcripts of talks between Nixon and Haldeman, however, clearly show that Nixon and Haldeman had used the CIA to impede the FBI probe. TIME has learned that Ehrlichman, who also talked to both CIA and FBI officials at the same time, wants his lawyers to question Nixon about the precise instructions the President had given him. Ehrlichman now claims that he was misled by Nixon and Haldeman into thinking that genuine national security considerations lay behind their desire to get the FBI to restrict its investigation.

For Nixon, the subpoena presents an acute personal problem. He can move to quash it, as he had on several occasions in other litigation as President, but legal experts see little hope of a successful challenge now that he is out of office. Eventually, he probably will either have to plead the Fifth Amendment protection against self-incrimination or testify and perhaps further incriminate himself.

Little Leverage. Unless Congress recommends otherwise or Ford intervenes with a pardon (although a pardon before an indictment apparently is unprecedented), Nixon's most probable trial role may well be as a defendant. He conceivably could attempt to plea bargain with Jaworski, although he has little leverage remaining for that purpose, considering the evidence against him already on record and the fact that there is no higher official that Jaworski could seek to indict. Only a detailed admission of guilt, including his cover-up activities relating to such defendants as Ehrlichman, Haldeman and John Mitchell, would be likely to impress Jaworski. The penalty Nixon would then have to pay presumably would be up to Judge Sirica, although President Ford could of course pardon him after any judicial action.

The Jaworski decision could be influenced by whatever the special prosecutor yet learns about Nixon's Watergate role in the tapes he is now acquiring. His staff indicated last week that it has no plans to subpoena any more tapes or documents from the ex-President. Nevertheless, the Jaworski team demonstrated that it had more than a casual interest in the 950 reels of taped Nixon conversations still locked up in the Executive Office Building. Among their final official acts, Nixon's chief Watergate defense lawyers, James St. Clair and J. Fred Buzhardt, advised Ford's staff that under past precedent, the tapes were the personal property of the former President. Ford's press secretary, J.F. terHorst, announced that Nixon would be able to dispose of them as he wished.

That decision was modified, however, when Ford's assistants learned that Jaworski had been merely advised of the opinion by the Nixon lawyers, rather than consulted on it and concurring with it as the aides had been led to believe. That produced an abrupt about-face from the White House and an announcement from Jaworski's office that it was agreed no tapes will be moved "pending further discussion" with the special prosecutor's staff.

The extraordinary problem of how to deal with criminal activities emanating from the office of the President thus apparently was left--at least temporarily--to the ordinary processes of the judicial system. That seemed to be precisely how representatives of the nation's legal profession prefer to resolve the matter. Meeting in Hawaii, the American Bar Association (see THE LAW) vocally approved without dissent a resolution noting that "the foundation of the American system of law is equal justice under law" and that the law must be applied impartially "regardless of the position or status of any individual alleged to have violated the law."

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