Pressing Hard for the Evidence

He basked in the prime-time televised applause of broadcast executives in Houston. He startled a waitress, "Shrimp" Hamilton, by dropping in at the lunch counter of Houston's Keystone Drugstore to buy a cup of coffee and a 6-oz. jar of hot "Evangeline peppers" (leaving a $1 tip). He took a stroll downtown in that city, and paused to speak with a traffic policeman, Ignacio Aranda. He chatted with U.S. astronauts and Soviet technicians at the Lyndon B. Johnson Space Center, lauding their courage for never "giving up," not even during dire emergencies in space.

Ostensibly, Richard Nixon was enjoying another good week in his public relations offensive against Watergate.

But related events were still unfolding beyond his control. A leading conservative Senator publicly urged him to resign. The Watergate special prosecutor issued a subpoena for more White House evidence--destroying Nixon's repeated claim that he had been fully cooperating with the multiple investigations.

Federal courts on two levels directed that a grand jury report on the President's Watergate role must go this week to the House Judiciary Committee, which is conducting an impeachment inquiry. Nixon continued to drop in two public-opinion polls, reaching his lowest point yet in popularity.

The call for Nixon to resign was issued by Conservative-Republican Senator James Buckley, who was co-chairman of his 1972 re-election campaign in New York. It was the first complete break by a leading conservative--and it was a blow to Nixon's efforts to hang onto the hard-core support that would give him the one-third-plus-one vote in the Senate needed to block any effort to remove him from office. Buckley's eloquent statement (see box next page) was overdrawn in describing the terrors of a Senate trial of the President and sugarcoated in its acceptance of the notion that Nixon's Watergate problems were being pursued only by critics to overturn the 1972 election results. But it was a sound assessment of the practical realities of Nixon's current situation, and it rocked Republicans.

The President's public position was also undercut by the revelation that Special Prosecutor Leon Jaworski had issued a new subpoena for Watergate evidence. At the time that Nixon was telling his Houston audience that he had "cooperated completely with the grand jury" in its Watergate investigations, he knew--but did not mention--that Jaworski had been denied many tapes and documents and had therefore issued a subpoena to get them. Its existence was not revealed by Jaworski, but by Nixon's counsel, James St. Clair, in a television interview. Jaworski had been willing to keep the matter secret so that the White House could save face by delivering the evidence and later claiming that it had done so "voluntarily."

What Jaworski Wants. If the White House fails to supply the evidence, Jaworski will almost certainly petition the Washington federal court this week to enforce the subpoena. This could touch off another round of court fights similar to those last summer, when Nixon tried to withhold subpoenaed tapes and papers sought by Archibald Cox, the special prosecutor whom Nixon fired for persisting in demanding evidence. Nixon had claimed that most of the material was protected by Executive privilege--a claim that both Federal Judge John J. Sirica and the U.S. Court of Appeals rejected. Presumably, the courts would do so again.

The new subpoena deals primarily with the handling of campaign funds. Jaworski is also seeking further evidence, and he may subpoena that as well. The evidence being sought includes tapes and documents related to: 1) the possible "sale" of ambassadorships to large contributors to Nixon's political campaigns; 2) the Administration's settlement of an antitrust suit against ITT after a large campaign contribution was pledged by the company; 3) meetings at which Nixon and his aides discussed increased dairy price supports and a $2 million pledge of campaign aid by milk producers; 4) Nixon's notations from the summer and fall of 1972 on the White House daily news summary, which may have included instructions to his aides on what action to take on Watergate developments; 5) the records of former White House Aide John Ehrlichman on his dealings with Nixon's secret squad of plumber investigators; 6) other Nixon conversations with his aides relating to the Watergate cover-up conspiracy; 7) the location of the tape containing an 18 1/2-minute gap during the time that Nixon claimed all of the subpoenaed tapes were in his custody, as well as of persons who had access to it.

Even as the special prosecutor was forced to take legal steps to compel the turnover of White House evidence, the House Judiciary Committee, headed by New Jersey Democrat Peter Rodino, received a forward assist in its investigation of presidential conduct. Moving swiftly, federal courts on two levels ordered that a grand jury report dealing specifically with Nixon's Watergate role must be given this week to Rodino for the impeachment inquiry.

Grand Jury Report. First, in an impressively detailed 22-page decision, Judge Sirica said that he had carefully examined the grand jury report and found that "there can be no question regarding its materiality" to the impeachment inquiry. The package includes: 1) a letter recommending that the grand jury's findings be transmitted to the Judiciary Committee; 2) an index of specific acts by the President, presumably related to the cover-up conspiracy; 3) a briefcase full of documents and sworn testimony supporting those findings of fact. Wrote Sirica: "We deal in a matter of the most critical moment to the nation, an impeachment investigation involving the President of the U.S. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information."

Sirica--who turned 70 last week and thereupon shifted from chief judge to a senior judge of the federal district court in Washington--rejected claims by lawyers for the indicted conspirators that the grand jury had no power to make such a report and that giving the material to the House committee could prejudice their clients' trials if the evidence became public. The appeals court promptly supported Sirica's decision.

The appeals judges had examined the summary of facts listed by the grand jury and found them impressive enough to warrant quick transferral to Rodino.

The grand jury report bears on the payments made to the original Watergate defendants to keep them quiet --and on whether Nixon really did act to cut the payments off, as he has repeatedly contended. Of course, other time bombs could be ticking away in that briefcase full of tape transcripts, White House documents and the testimony of former Nixon associates.

Although Nixon has already yielded some 700 documents and 19 tapes, he continued to insist in Houston that to give up any more would "weaken the presidency of the United States" and could even lead to "the destruction of the office of the President." His audience, consisting mainly of prosperous radio-and television-station owners and managers, applauded both his sharp replies and some of the tougher questions posed by broadcast newsmen. Firmly and aggressively in command of the situation, Nixon insisted that he was not trying to hide anything; he simply wanted to ensure that no future President would be surrounded by fearful advisers who are "yes men" too timid to give their boss "the variety of views he needs to make the right kind of decision."

Nixon never came to grips with the main question posed by CBS Correspondent Dan Rather, although the exchange between them was electric. Noting both applause and scattered boos as Rather identified himself, Nixon asked pointedly: "Are you running for something?" Rather replied firmly: "No, sir, Mr. President, are you?" But how, Rather asked, could the House perform its constitutional duties if the President, the person under investigation in the impeachment inquiry, was "allowed to limit its access to potential evidence"? Nixon answered circuitously. He contended that the House investigators were not abiding by the Constitution's grounds for impeachment: "Treason, bribery or other high crimes or misdemeanors." He added: "I am suggesting that the House follow the Constitution.

If they do, I will." Nixon ignored the fact that the House, not he, must define what those terms really mean.

Executive Privilege. Nixon was totally misleading in an answer to NBC'S Tom Brokaw, who wanted to know how the President could justify his repeated claim that he was just following the precedent set by past Presidents in withholding evidence from the Judiciary Committee. Only Andrew Johnson, Brokaw noted, had faced an impeachment inquiry--and he yielded everything that the House demanded. Nixon conceded that Brokaw was right on Johnson but argued that the "principle of confidentiality" between President and advisers was applicable in an impeachment proceeding as well as in any other congressional investigation.

There is no precedent in U.S. history for that view. No President has ever claimed the right to withhold documents from a duly authorized impeachment inquiry. Regarding the far less urgent business of the special prosecutor's criminal investigation into the activities of the President's aides, Judge Sirica has written: "The Constitution mentions no Executive privileges, much less any absolute Executive privileges ... even the Chief Executive is subject to the mandate of the law when he has no valid claim of privilege." Those words were cited by the appeals court that confirmed Sirica's decision last week.

Nixon and his special counsel, James St. Clair, still resisted requests by the Rodino committee staff for 42 Nixon tapes and an undisclosed number of documents embracing a variety of presidential activities that are under investigation. The request is aimed primarily at securing tapes and papers that would clarify the following events in the winter and spring of 1973:

-- Conversations between Nixon and Haldeman on Feb. 20, in which they discussed finding a new Government job for Jeb Stuart Magruder, deputy director of the Nixon re-election committee.

Magruder, who has admitted helping plan the Watergate wiretapping, claims that Haldeman told him that a job would be found, but not one requiring Senate confirmation because of Magruder's involvement in Watergate. If Haldeman told Nixon the same thing, that would destroy the President's claims of not knowing then about any complicity of his political aides in Watergate.

-- Conversations on Feb. 27 between Nixon, Haldeman and Ehrlichman.

Dean contends that at this time he was told by Nixon to see him directly about Watergate problems because the other two aides were "principals" in the matter and had too many other duties. These tapes could also indicate that Nixon knew early on about the coverup.

-- Talks between Nixon and Ehrlichman on March 27 and March 30.

These took place about the time that the President assigned Ehrlichman to conduct an "investigation" of the Watergate conspiracy--even though Dean had told Nixon that Ehrlichman was one of the conspirators. What kind of instructions did Nixon give Ehrlichman?

> A flurry of conversations between Nixon, Haldeman and Ehrlichman from April 14 to April 17. This was at a time when Dean and Magruder were revealing the cover-up to Justice Department prosecutors. Were Nixon and his closest aides discussing how to handle the revelations, and did their conversations indicate much earlier knowledge of the coverup?

-- The dialogue at a meeting of Nixon, Attorney General Richard Kleindienst and a top assistant, Henry Petersen, on April 15. This was when they informed Nixon that Dean and Magruder had named other Nixon aides as being involved in the coverup. Was Nixon really "dumbfounded," as Kleindienst testified, or surprisingly calm, as Petersen described him at the Senate Watergate committee hearings9

Although the Rodino staffs requests for documents thus had specific and legitimate aims, they were still portrayed by Nixon and St. Clair as too vague and extensive. Nixon said at Houston that the committee wanted to "bring a U-Haul trailer" up to the White House and carry out the presidential files. Members of Congress were bristling at such exaggerations. There was overwhelming sentiment in the Congress that it would not tolerate Nixon's withholding of evidence from the Rodino committee. Nevertheless, Ziegler insisted that the White House would not supply the evidence requested by the Rodino staff until the committee "defines the charges" against Nixon and specifies "what materials are wanted and why."

St. Clair did manage, however, to provoke a partisan split within the committee. He argued that he must be allowed to be present and to cross-examine any witnesses whom the committee calls as it attempts to determine what charges, if any, to lodge against the President. Disputing St. Clair's argument, Rodino contended that his committee's investigation is not a trial or an adversary proceeding; it is akin to a fact-finding grand jury probe in which potential defendants are not represented by counsel because no one has yet been charged. Yet Republicans on the committee had a point in noting that fairness would be better perceived by the public if St. Clair was allowed to quiz witnesses. In at least four of the dozen federal impeachment cases in the nation's history, the impeached official was represented by counsel in preliminary hearings.

Irrelevant Drive. The situation now is more complex. To speed the inquiry, the Judiciary Committee's chief counsel, John Doar, has proposed taking sworn depositions from witnesses and presenting these documents to the full committee as evidence. This would replace lengthy committee hearings. Because this procedure has not been part of past impeachment proceedings, it is controversial.

The committee leaders hope to reach a compromise with St. Clair. They are willing to discard the idea of taking depositions. Instead, the staff would interview witnesses, who would not be under oath but would be asked to sign their statements. Since these would be less formal than depositions, no cross-examination would be appropriate. Whether committee Republicans will accept that proposal is still in doubt.

The threat of partisan division in the impeachment inquiry remained one of Nixon's best hopes for stalling an adverse committee decision. Certainly, his public relations drive was increasingly irrelevant. As Republican Senator John Tower of Texas observed: "I suppose it humanizes him a little in the public's mind when he walks into a diner and chats with a black waitress. But his problem is in Washington now. Hell, he ain't running for county sheriff."

Though Nixon's campaign might stem his slide in public approval, it could hardly raise him significantly from his recent lows. Two polls taken just before he launched his public appearances showed that he was still slipping in esteem. Gallup recorded a two-point drop in the public's approval of Nixon's performance, to a new low of 25%, while Harris reported a three-point slide in its rating, to 26%. Even the President's support among political conservatives appeared to be fading (see story page 15). Conservative Columnist George F. Will wrote that the one-quarter of the public that still approves of the President is not a conservative bloc. Instead, "it is largely an inattentive bloc of people who support Presidents, no matter who, no matter what."

Nor could Nixon take any comfort from a blast by Chesterfield Smith, a Lakeland, Fla., trial lawyer who is president of the American Bar Association. Said he: "I completely and wholly disagree with Mr. Nixon's contention that dragging out Watergate drags down America. The American people want wrongdoing uncovered and the wrongdoers punished, no matter how high the office they hold. By claiming Executive privilege, the President is obstructing justice, whether legally or illegally." Smith said that when Nixon claims that he is "not a crook," he ought "to define what a crook is. He has not aided in uncovering Watergate."

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