I. The Hour Of The Founders

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The system was manifestly not working. But neither was the President’s defense. On national television Nixon bitterly assailed the press for its “outrageous, vicious, distorted” reporting, but the popular outrage convinced him, nonetheless, to surrender the nine tapes to the court. Almost at once the White House tapes began their singular career of encompassing the President’s ruin. On October 31 the White House disclosed that two of the taped conversations were missing, including one between the President and his campaign manager, John Mitchell, which had taken place the day after Nixon returned from a Florida vacation and three days after the Watergate break-in. Three weeks later the tapes dealt Nixon a more potent blow. There was an eighteen-and-a-half-minute gap, the White House announced, in a taped conversation between the President and Haldeman, which had also taken place the day after he returned from Florida. The White House suggested first that the President’s secretary, Rose Mary Woods, had accidentally erased part of the tape while transcribing it. When the loyal Miss Woods could not demonstrate in court how she could have pressed the “erase” button unwittingly for eighteen straight minutes, the White House attributed the gap to “some sinister force.” On January 15, 1974, court-appointed experts provided a more humdrum explanation. The gap had been produced by at least five manual erasures. Someone in the White House had deliberately destroyed evidence that might have proved that President Nixon knew of the Watergate cover-up from the start.

AT THIS POINT THE Judiciary Committee was in its third month of considering whether to consider. But by now there was scarcely an American who did not think the President guilty, and on February 6, 1974, the House voted 410 to 4 to authorize the Judiciary Committee to begin investigating possible grounds for impeaching the President of the United States. It had taken ten consecutive months of the most damning revelations of criminal misconduct, a titanic outburst of public indignation, and an unbroken record of presidential deceit, defiance, and evasion in order to compel Congress to take its first real step. That long record of immobility and feigned indifference boded ill for the future.

The White House knew how to exploit congressional reluctance. One tactic involved a highly technical but momentous question: What constituted an impeachable offense? On February 21 the staff of the Judiciary Committee had issued a report. Led by two distinguished attorneys, John Doar, a fifty-two-year-old Wisconsin Independent, and Albert Jenner, a sixty-seven-year-old Chicago Republican, the staff had taken the broad view of impeachment for which Hamilton and Madison had contended in the Federalist papers. Despite the constitutional phrase “high Crimes and Misdemeanors,” the staff report had argued that an impeachable offense did not have to be a crime. “Some of the most grievous offenses against our Constitutional form of government may not entail violations of the criminal law. ”

Men of great power do not commit crimes: they procure crimes without having to issue incriminating orders. A word to the servile suffices.

The White House launched a powerful counterattack. At a news conference on February 25, the President contended that only proven criminal misconduct supplied grounds for impeachment. On February 28, the White House drove home his point with a tightly argued legal paper: If a President could be impeached for anything other than a crime of “a very serious nature,” it would expose the Presidency to “political impeachments.”

The argument was plausible. But if Congress accepted it, the Watergate crisis could only end in disaster. Men of great power do not commit crimes. They procure crimes without having to issue incriminating orders. A word to the servile suffices. “Who will free me from this turbulent priest,” asked Henry II, and four of his barons bashed in the skull of Thomas àBecket. The ease with which the powerful can arrange “deniability, ” to use the Watergate catchword, was one reason the criminal standard was so dangerous to liberty. Instead of having to take care that the laws be faithfully executed, a President, under that standard, would only have to take care to insulate himself from the criminal activities of his agents. Moreover, the standard could not reach the most dangerous offenses. There is no crime in the statute books called “attempted tyranny. ”

 
 
 
 

Yet the White House campaign to narrow the definition of impeachment met with immediate success. In March one of the members of the House of Representatives said that before voting to impeach Nixon, he would “want to know beyond a reasonable doubt that he was directly involved in the commission of a crime.” To impeach the President for the grave abuse of his powers, lawmakers said, would be politically impossible. On the Judiciary Committee itself the senior Republican, Edward Hutchinson of Michigan, disavowed the staff’s view of impeachment and adopted the President’s. Until the final days of the crisis, the criminal definition of impeachment was to hang over the country’s fate like the sword of Damocles.