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Monday, May 20, 2013

Watergate Revisited

“What did the President Know, and When did he know it?” — Howard Baker.

Last week marked the 40th anniversary of the opening of the Watergate Hearings (May 17, 1973). Conducted by a special committee convened by the United States Senate to investigate the Watergate burglaries and the ensuing Watergate scandal after it was learned that the Watergate burglars had been directed to break into and wiretap the headquarters of the Democratic National Committee by the Committee to Re-elect the President, President Richard Nixon's re-election campaign fund raising organization.

The Committee played a pivotal role in gathering evidence that would lead to the indictment of forty administration officials and the conviction of several of Nixon's aides for obstruction of justice and other crimes. Its revelations prompted the introduction of articles of impeachment against the President in the House of Representatives, which led to Nixon's resignation.

The Members of the Committee were:

  • Sam J. Ervin, Chairman, D-North Carolina
  • Daniel K. Inouye, D-Hawaii
  • Joseph M. Montoya, D-New Mexico
  • Herman E. Talmadge, D-Georgia
  • Howard H. Baker, Jr., Ranking Member, R-Tennessee
  • Edward J. Gurney, R-Florida
  • Lowell P. Weicker, Jr., R-Connecticut

Watergate COmmittee

Members of the Watergate Committee. Left to right: Sam Ervin, Sam Dash, Lowell Weicker, Howard Baker, and  deputy counsel Rufus Edmisten. (AP Photo)

With its Beaux Arts design, inlaid floors of veined black marble, and Corinthian columns, the Kennedy Caucus Room is among the most imposing sites on Capitol Hill. But it seemed even more august on June 25, 1973, when it was still called the Senate Caucus Room. That was the day the Senate Select Committee on Presidential Campaign Activities heard testimony from John Dean. The former White House counsel, just 34, looked every bit the ambitious young Republican in his owlish glasses and crisp summer suit—except he was incriminating the Republican president of the United States. He read a 246-page opening statement that went far beyond the original 1972 break-in at the Democratic National Committee’s headquarters at the Watergate office building. The Nixon White House, he said, hatched enemies lists, obstructed justice, and doled out hush money. President Nixon himself, Dean asserted, knew much about it.

The televised hearings were already an unexpected hit that summer, but the ratings soared with Dean’s testimony. Still, when Dean finished, Nixon’s defenders dismissed his account as one man’s obfuscations and misinterpretations of what the president meant. Then, a few weeks later, a former White House aide named Alexander Butterfield testified before the committee that the president had installed a taping system in the White House. Butterfield, who at the time headed the Federal Aviation Administration, had previously spoken to federal prosecutors, but they hadn’t asked about recordings, and so he said nothing. The Senate committee’s staff had asked. Now everyone knew that the answers to Watergate didn’t rest on Dean’s word; they could be corroborated. The fight for those tapes eventually went to the Supreme Court and led to Nixon’s resignation in 1974.

Forty years after its first hearing, the Senate Watergate Committee is worth remembering, and not for nostalgia’s sake. At a time when Congress — and especially the filibuster-happy Senate — is incapable of consensus, it’s easy to become wistful about a bygone era of camaraderie. No wonder we hear so many apocryphal stories of Tip O’Neill and Ronald Reagan being friends and hoisting beers after 5 p.m.

But the Senate Watergate Committee members wore no halos. They fought. They nursed ambitions. Yet they managed to get the important things right because of wise choices, strong staff, a different political climate, and, perhaps, incomprehensibly high stakes. Pining for ye olden days is pointless, but seeing how senators coped with a crisis can still inspire and instruct. “Back then, Congress was able to perform its functions with great duty. I’m deeply distressed by what’s happened since,” John Dean, now 74, recalled recently from his home in California. Most of the Senate Watergate Committee principals are gone now. The once precocious, like Dean, are senior citizens. But if you speak to those who are still around each describes a Senate Watergate Committee that was riven with tension and yet did the right thing. How?

At first, the break-in at the Watergate complex seemed like a “third-rate burglary,” in the words of White House press secretary Ron Ziegler. It mattered little in November 1972, when Nixon won 49 states. But by the spring of 1973, the burglars had pleaded guilty or had been convicted, their ties to the Nixon reelection effort and the CIA were at least partially revealed, and the cover-up was starting to be exposed. In February, the Senate voted unanimously to form a select committee to investigate. Before the first hearings on May 17, 1973, acting FBI Director Patrick Gray resigned over the destruction of files from the White House safe of burglary mastermind E. Howard Hunt, and top White House aides H.R. Haldeman and John Ehrlichman quit after being implicated in the cover-up. Then-White House Counsel Dean was fired by a president looking to make him a scapegoat.

Today, it’s hard to imagine any White House investigation being endorsed unanimously. Yet it wasn’t because senators were somehow more genial back then. Republicans were prepared to defend Nixon, as many of them on and off the committee did, until it became untenable. The Democrat-controlled Senate in 1973 saw public opinion shifting after the 1972 election and for them Nixon-bashing had been a sport since the 1950s and came naturally. But it was the Republicans that saw the handwriting on the wall of their political future and began to shift their position.

So the two sides were fighting from the outset. Republicans insisted that the committee be evenly divided between the parties, but Mike Mansfield, the deft Montana Democrat who shepherded Great Society legislation through the upper chamber and would become the longest-serving majority leader in Senate history, insisted that a panel with an even number could end up deadlocked. He got his way. “The idea that this was some grand bipartisan time is wrong,” recalls Scott Armstrong, an investigator on the Democratic staff and a longtime journalist.

Still, Mansfield made important moves to temper the partisanship and present a wise Democratic face to the nation. In past investigations, the chair often went to the senator who led the fight to create the panel, which in this case would have meant Edward Kennedy. But Kennedy’s presidential aspirations were obvious; his family was still the vessel for Democratic hopes. Nixon had lost what many considered a stolen election to John F. Kennedy in 1960, and he loathed the Massachusetts clan. Even as Mansfield denied Kennedy the honor, he might have been tempted to give the gavel another of the telegenic liberals peppering the Senate. The Democrats were feeling their vinegar, having expanded their majority in 1972 despite the Nixon landslide.

Instead, Mansfield tapped Sam Ervin, the senior senator from North Carolina, calling the Democrat at his snowbound home in Morganton to make the case for chairing the panel. Ervin seemed like an odd choice for the television era. Time magazine would write: “The jowls jiggled. The eyebrows rolled up and down in waves. The forehead seemed seized by spasms.” But if Ervin was more Foghorn Leghorn than Robert Redford, he made up for it in other ways. At 76, the World War I veteran had been born in the 19th century and harbored no presidential ambitions in the 20th. No liberal, he was arguably to the right of the president on fiscal matters and had voted against the Civil Rights Act.

What’s more, Ervin was one of the foremost constitutional lawyers in the Senate; he had a passion for civil liberties and checking executive power. (If Ervin were alive today he would be aligned more with Ron Paul than Chuck Schumer) Shortly after being elected to the Senate in 1954, he was appointed to the select committee that censured Sen. Joseph McCarthy. He pushed back against the Eisenhower administration’s invocation of “executive privilege,” sometimes with a justified critique (he flayed unsanctioned moves by federal agencies) and sometimes not (Ervin denounced the use of federal troops to integrate Little Rock schools in 1957). Still, by 1973 Ervin had renounced segregation and become a respected figure in the Senate and, eventually, nationally—even among liberals repulsed by Jim Crow. His cornpone humor and slow-as-molasses yarns masked his Harvard law degree and ability to navigate the Watergate scandal’s legal thicket.

In 1956, Senator Ervin helped organize resistance to the 1954 Brown v. Board of Education Supreme Court decision calling for desegregation of schools by drafting The Southern Manifesto; this influential document encouraged defiance of desegregation and was signed by all but a few of the Southern members of Congress. (In his autobiography, "Preserving the Constitution," Ervin said he later changed his mind on the Brown decision, stating that the decision, to the extent it eliminated mandatory segregation, was correct, but that forced integration, required under later decisions, was improper.)

Defenders of Ervin argue that his opposition to most civil rights legislation was based on his commitment to the preservation of the Constitution in its pristine formulation that he repeatedly stated encapsulated civil, human and equal rights for all. There is little if any evidence that he engaged in the racial demagoguery of many of his Southern colleagues. Some historians consider Ervin's position to be one of "cognitive dissonance" because he opposed federal legislation to combat race-based discrimination, but did not do so in harsh, ugly terms. While he once maintained that Americans were entitled to "their prejudices as well as their allergies", he did not seem to be motivated by prejudice himself, but more by his suspicion of federal power. Ervin said he didn't like what the Warren Court "has done to the Constitution".

Ervin was also a staunch opponent of the Immigration and Nationality Act of 1965 that abolished the nationality quotas that beginning in 1968. He felt that the principal of tying allowed numbers of immigrants from a given country to the number of people who had ancestral origins in that country and lived in the United States should be retained.

Meanwhile, Ervin's strict construction of the Constitution also made him a liberal hero for his support of civil liberties, his opposition to "no knock" search laws, and the growing intrusions of data banks and lie-detector tests as invasions of privacy. In 1966, Senator Ervin played a major role in the defeat of a Constitutional amendment to make prayer in public schools compulsory. Ervin also favored the exclusionary rule under the Fourth Amendment, which made illegally-seized evidence inadmissible in criminal trials.

In summary Ervin believed more in the Constitution than the platform of the Democratic Party Platform.

Over time, Mansfield’s wisdom would become obvious. As chairman, Ervin seemed fair and probing, if an unlikely folk hero. The committee’s hearings were broadcast all day on public-television stations and by the broadcast networks, which rotated their coverage. At night, the prime-time audiences watched the replays. In that pre-C-SPAN age, the entire committee — including staff of both parties — became famous, for the most part adored regardless of political affiliation. Fred Thompson, the Republican counsel on the panel, recalls walking into a restaurant in the summer of 1973 with his wife and being spontaneously applauded.

The Democrats were just as careful in selecting their other members of the committee. Herman Talmadge, another Dixiecrat, was a social friend of the Nixons — to the extent anyone could be. Joseph Montoya was a young senator from New Mexico at a time when being Latino would stymie rather than spur national ambitions. Daniel Inouye would serve in the Senate for almost 40 more years as the embodiment of circumspection. Many years before he became president, the Woodrow Wilson wrote, “The only really self-governing people is that people which discusses and interrogates its administration.” He concluded that Congress’s “informing function should be preferred even to its legislative function,” and this is what the Watergate Committee did on camera.

Sen. Hugh Scott, the Republican leader, showed similarly good judgment. Two of the members he picked — Lowell Weicker of Connecticut and Ed Gurney of Florida — represented opposite wings of the party. Weicker was a progressive liberal, and Gurney was an arch Nixon defender. Scott chose Sen. Howard Baker to be the ranking member of the Senate Watergate Committee.

The Committee Members:

Sam_Ervin Daniel_Inouye,_official_Senate_photo_portrait,_2008 Joseph_M_Montoya

Left to Right: Sam Ervin, Daniel Inouye, Joseph Montoya

HermanTalmadge (1) Howard_Baker_1989 Edward_J_Gurney

Left to right: Herman Talmadge, Howard Baker, Ed Gurney


Lowell Weicker

Some historians have mythologized Baker’s role on the dais. Being known as the Republican willing to take on Nixon helped make the Tennessean his party’s leader in the Senate, a presidential contender in 1980, and an elder statesman as the White House chief of staff who served Ronald Reagan. But the famously polite Baker, now 87, was not as resolutely nonpartisan as he has been portrayed. He was close to the White House, and years later it emerged that Nixon considered appointing him to the Supreme Court in 1971. (Another young Republican lawyer, William Rehnquist, got the nod instead.) Baker and his ranking counsel—the 30-year-old Fred Thompson, who also became a senator and presidential candidate—had regular contact with the White House during the investigation.

The back channel often infuriated the majority staff and when Baker parted company from Ervin and the Democrats the rift threatened to hamper the committee. For instance, Baker and Gurney opposed granting immunity to Dean. They echoed the White House line that Dean was likely the Watergate ringleader. Democrats argued that Dean’s testimony was essential and limited immunity was the way to get it. Besides, prosecutors could charge Dean as long as they made their case without Dean’s testimony. As often happened, Baker found himself without the votes to prevail and went along with the Democrats and Weicker, who usually voted with them.

When it came time for Dean to testify, Baker asked him the most celebrated question of the hearings: “What did the president know, and when did he know it?” (Alas, in the decades that followed, it became a tired trope used in even the flimsiest accusations of executive-branch malfeasance or a gazillion other faux scandals.) But Baker had asked the question to probe Dean’s veracity, not to indict Nixon.

If Baker was closer to Nixon than was widely thought — he even told the White House not to be overly worried by his public posture — the important thing is that he was not a reflexive Nixon defender. As evidence mounted, he kept lines to the White House open but didn’t derail the inquiry. And that may reflect better on Baker than if he’d always been a Nixon critic. So in 1973, the committee unanimously asked for the Nixon tapes, the beginning of the battle that most served justice. In 1974, Baker and Ervin entertained but never agreed to Nixon’s last-ditch efforts to avoid turning over the tapes, including one more-than-a-little-bizarre scheme to have septuagenarian Sen. John Stennis listen to the tapes and report back. (To make the offer even more unpalatable, the Mississippian was still slowed from multiple gunshot wounds he suffered when he was mugged near his home in Washington’s Cleveland Park; and as it turned out, Nixon wasn’t even planning to make all the tapes available to Stennis, a former judge.) Baker “was a facilitator,” Thompson said. “He tried to keep our disputes behind closed doors and be able to work things out.” This is a far cry from the Democrat Party controlled Senate of today with it’s lock-step to Harry Reid and Chuck Schumer.

What makes the Senate Watergate Committee’s success even more remarkable is that it didn’t have a road map. There’s nothing explicit in the Constitution about congressional investigations, and there’s something counterintuitive about legislators taking on a quasi-judicial function with an ability to hold persons in contempt. But Congress seized that power when it probed Gen. Arthur St. Clair’s defeat at the hands of Indians in 1791, and it has discharged it ever since.

When the Senate Watergate Committee was empaneled in 1973 there hadn’t been a nationally lauded select panel in many years. In 1959, the McClellan Commission examined labor abuses and made possible the famed showdown between a young Robert F. Kennedy and Teamsters boss Jimmy Hoffa. In 1950, the Kefauver Commission looked at organized crime. The great committees of the 1930s and 1940s had receded even further in modern memory, such as the 1941 commission on waste in defense spending that elevated Harry S. Truman, and the 1932 Pecora Commission that investigated the causes of the Depression. Each met the test of a congressional investigation: finding the origins of a problem, galvanizing public opinion, and inspiring important legislation.

The Watergate team had to build a committee from nothing for the biggest stakes of all — the fate of a presidency. Ironically, limited membership (just seven senators) helped the panel, but a large, well-led staff also made a difference. Sam Dash — a respected Washington lawyer who had helmed or written investigations of corruption in Chicago’s municipal courts, British abuses in Northern Ireland, and wiretapping — was the chief counsel. Ervin promised Dash independence, and he used it to hire top-flight talent. For instance, Terry Lenzner, a Democratic investigator who, like his brethren, interviewed and tracked down witnesses and helped put the case together, would go on to lead Washington’s premiere investigative firm (IGI), working for the likes of Bill Clinton. “He was incredibly loyal,” Lenzner remembers, recalling how Dash and the committee backed controversial subpoenas of the president’s brothers, Ed and Donald Nixon, as well as the president’s assistant, Rosemary Woods.

But for all of the tensions, the accomplishments were myriad. John Dean recalls he chose to tell his story to the committee in part because he questioned whether the federal prosecutors on the case were independent of the White House and because he trusted Dash, whom he knew from a Bar Association panel. Dean was also a neighbor of Weicker on Quay Street in Alexandria, Va., a few yards from the Potomac, and later sold his house to the senator. And the staff prepared him well. They did the same with Alexander Butterfield, who revealed the taping system. The Republicans tried to put the taping system in the best light, but when Nixon denied the committee’s request to hear the tapes, senators issued a subpoena that helped launch the cavalcade of investigations into the White House.

By June 1974, the committee’s work was done. It had unearthed the tapes, delivered Dean, and educated the public. The House Judiciary Committee, with its impeachment hearings, was ascendant. The final report by Ervin’s committee sparked a bevy of campaign-finance laws (many of which have been undone since then, especially by the Citizens United case in 2010). In an example of how the spirit of reform infused the committee’s report, Baker called for automatic voter registration — something impossible to imagine coming from a Republican senator today. Ethics guidelines for lawyers, mandated by the American Bar Association, were inspired by Watergate.

But if the legislation the committee spurred has been largely erased—the independent-counsel law is another that is no more — the committee was still central to Nixon’s fall, and it became a model of how a congressional panel could operate, even if Congress didn’t always follow the model. Today, the House Committee on Oversight and Government Reform with its 38 members (22 Republicans and 16 Democrats) is a cautionary tale. With 38 House members, it is becoming a cacophonous, partisan committee incapable of getting all of the facts out and educating the public. There are just too many oxen to gore that make it difficult to separate the wheat from the chafe.

No one can re-create the alchemy that made the Watergate hearings. But partisanship tempered by prudent self-interest surely helps. And it offers more proof that committees, whether they’re temporary or permanent, are more likely to be islands of sanity than the Senate floor, at least for now. Today, when the Senate resembles a clogged drain, committees still do useful work. Like some screwball comedy where opposites attract, Barbara Boxer and James Inhofe confect a complex transportation bill just as Debbie Stabenow and Pat Roberts do for agriculture.

What’s more, all those last-minute, all-nighter deals short-circuit committees and reduce any chance for compromise. “Relationships are at the heart of it,” Lenzner recalls. “Ervin and Baker had a good, close relationship. They played together, they worked together. People had differences, but it didn’t impinge on the progress of the committee.” History would be different if it did.

It is now time for the House to appoint a 2 select committees One to uncover the truth in the Benghazi attack and the second, and perhaps more importantly, to expose the illegal actions of the IRS and the connection with Barak Obama. Boehner, like Mansfield, will have to be cautious in his selections, but Pelosi — that’s another matter. She is no Hugh Scott.

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