The House Judiciary Committee finally lost patience last week with the cavalier and inconclusive White House responses to its six-week-old request for presidential tape recordings. Acting with impressive bipartisanship after a tense week of backstage maneuvering, the committee voted, 33 to 3, to subpoena the evidence.
In a sense the committee’s historic action—it was the first resort by the House to a subpoena for evidence from a President in an impeachment inquiry—was more symbolic than practical. Although the committee was on solid legal ground in issuing the subpoena, it has no effective way to enforce it. If Nixon chooses not to honor it fully, the committee can seek a citation against him from the House for contempt of Congress. While ordinary citizens can be imprisoned for such contempt, the only effective recourse for the House in the case of a President apparently would be to add such defiance as another article of impeachment. For Nixon, however, failure to comply with the subpoena would have far more than symbolic impact; it would virtually confirm that there is incriminating material in the subpoenaed conversations that he is trying to hide.
The Judiciary Committee and Republican leaders in both chambers of Congress had worked frantically to avoid this newest constitutional confrontation spawned by Watergate. After Democrat Peter Rodino, chairman of the committee, set Tuesday, April 9, as the firm deadline for a definitive White House response to its Feb. 25 request for 41 tapes, congressional Republicans repeatedly implored Nixon’s chief Watergate counsel, James St. Clair, to respond affirmatively and cooperatively. If he did not, they warned, the subpoena could not be avoided.
As the deadline approached on Tuesday, Dean Burch, Nixon’s newest high-level assistant, carried a copy of St. Clair’s proposed response to Capitol Hill. There the Senate’s top G.O.P. leaders, including Hugh Scott, Robert Griffin, John Tower, Wallace Bennett, Norris Cotton and William Brock, read it and bluntly told Burch that it was inadequate. “It won’t fly,” snapped one of these leaders. “It doesn’t go far enough,” complained Scott. “You’ve got to get a line in there on your intent to cooperate with the committee.” In partial explanation, Burch told the Senate Republican leaders that only one White House lawyer, J. Fred Buzhardt, and a secretary had been assigned to review the tapes. It took them a full day to transcribe just one confusing six-minute segment of conversation on one tape, Burch contended. Some of the Senators suggested that if that were true, more manpower should be assigned to the task.
Burch relayed the senatorial complaints to the White House.
Insulting Letter. St. Clair then redrafted his letter, which was sent to House Judiciary Committee Counsel John Doar. Couched in condescending terms, it asked for two more weeks to “review” the requested material. St. Clair said he “was pleased” with Doar for a letter on April 4 clarifying the eviden£e sought. St. Clair wrote that this “goes a long way toward providing the additional specifications we felt were lacking in your original request.” He said, “The additional material furnished will permit the committee to complete its inquiry promptly,” after this week’s congressional Easter recess. He did not say what that “material” would be. Nixon thus was reserving to himself the decision on what he finally would yield. St. Clair also seemed to link any further furnishing of evidence with his request that he be permitted to take part in the committee’s impeachment deliberations.
Democratic members of the committee considered the letter insulting, but most kept silent and let the Republicans complain. “It was offensive to the House,” protested Edward Hutchinson, the committee’s ranking Republican. “If this is a ruse to prevent us from getting what we asked for, I don’t want to fall for it,” added Robert McClory, one of Nixon’s staunchest backers on the committee. “The letter,” conceded House Republican Leader John Rhodes in understatement, “left a great deal to be desired.”
Rhodes and other Republicans phoned St. Clair to tell him that a subpoena was imminent unless he gave more ground. Rodino, for his part, knew he had a majority in favor of issuing a subpoena. But he did not want the vote to be along party lines. He was also aware of three continuing sources of Republican dissatisfaction with his handling of the committee so far: 1) he had prevented any vote on whether St. Clair should represent the President during committee proceedings; 2) he had similarly postponed any decision on the procedures the committee would follow as evidence on the President’s conduct was considered; 3) he had not yet permitted a narrowing of the committee’s inquiry, which included 56 areas of possible Nixon misconduct. Republicans were chafing under this Rodino rule.
Rodino then moved adroitly to eliminate these sources of partisan tension. He announced that he would convene the committee in the first week after the
Easter recess to “decide on whether and how the issues can be narrowed.” He and the committee Democrats caucused and agreed that St. Clair would be permitted to sit in on the presentation of evidence. Rodino said he would also convene the committee in the second week after the recess to “adopt rules to govern its procedures during the evidentiary hearings.”
A partisan split threatened again, however, when St. Clair made a desperate last-minute attempt to arrange a deal with the committee. At 9:57 a.m., just 33 minutes before the committee was to consider the subpoena issue, St. Clair telephoned Doar. The review of the tapes, he now revealed, could be completed in “a day or two,” after all, and he would then “try” to provide the tapes specified in the first four of six requests put forward by the committee staff. St. Clair asked: Wouldn’t that make a subpoena unnecessary? Replied Doar: “I cannot speak for the committee.”
When the committee met, Doar related St. Clair’s offer. Massachusetts Democrat Harold Donohue nevertheless quickly offered a motion to subpoena all of the requested tapes by April 25. That is three days after the end of the Easter recess, and it more than met St. Clair’s original request for added time to review. Donohue then moved that debate on his motion be limited to a half-hour (less than a minute for each of the 38 members). That set off Republican complaints.
Dilatory Tactics. With partisan passions rising, Doar was asked his opinion on whether St. Clair’s belated offer was acceptable. “My recommendation,” he replied in his flat, unemotional manner, “is that the committee issue the subpoena for all six items today.” Doar’s patience and fairness in the inquiry so far has won respect among Republicans. Some then backed his view. Republicans Hamilton Fish Jr. and Lawrence Hogan complained about the “dilatory tactics” of St. Clair. Republican David Dennis nonetheless asked to subpoena only the first four items. Republican Delbert Latta, a Nixon loyalist, offered a motion that the subpoena be perfected by making the last two items more precise, apparently an attempt to delay a subpoena vote.
Too Equivocal. Reacting cannily and quickly, Chairman Rodino saw a chance to diffuse the emotions. He asked Latta if he had any proposed clarifying language in writing. Caught short, Latta said it would require some time to prepare. Rodino suggested that the committee should recess until afternoon, which would also afford time for more extended debate. During the lunch hour, Latta searched for the proper wording for his amendment, finally adopted the language of a Doar memo explaining the last two items. Rodino gladly accepted it, declaring: “I’m not seeking a confrontation. I’m seeking evidence.”
When the committee reconvened, Latta introduced his amendment, and it carried unanimously. The Republican resistance to subpoenaing all six items had virtually vanished. Robert McClory added a clinching revelation. He told the committee that during the lunch hour he had called St. Clair and asked whether Nixon’s lawyer would put his latest offer in writing. St. Clair had refused. McClory’s patience too thus had expired. “I think the offer is entirely too equivocal,” he said of St. Clair’s stand. When the roll was called, only three Republicans dissented. Among them was Hutchinson, who explained later: “One, the subpoena is unenforceable. Two, they offered to turn over voluntarily the material, and I think in the end would have turned it all over. And three, the subpoena is not returnable until after Easter, and they offered us some material sooner.”
All of the subpoenaed evidence relates to whether Nixon discouraged efforts to cover up the true origins of the Watergate wiretap-burglary and tried to “get the truth out,” as he has repeatedly contended, or whether he cooperated in that concealment. St. Clair apparently was willing to turn over most of the requested conversations covered by the committee’s first four requests, including talks among Nixon and his former aides, H.R. Haldeman, John Ehrlichman and John Dean, between Feb. 20 and March 20, 1973. He did not, however, agree to yield most of the requested tapes after March 21, when all parties agree that Dean told Nixon about the hush money and other cover-up activities of the President’s associates. Two of the subpoenaed items after that date involve Nixon’s conversations with 1) Ehrlichman and Haldeman between April 14 and April 17, and 2) then Attorney General Richard Kleindienst and Henry Petersen, head of the Justice Department’s criminal division, between April 15 and April 18. It was during this period that the cover-up was unraveling.
Opaque Response. The White House response to the subpoena was opaque and critical. Presidential Press Secretary Ronald Ziegler would say only that “additional material” would be supplied by the due date of the subpoena and that this “will be comprehensive and conclusive in terms of the President’s actions.” The White House had not been stalling in delivering evidence, he insisted; any delay was due to the Judiciary Committee’s slowness in getting specific about its requests.
The impact of the subpoena is still far from clear. Certainly, it further eroded Nixon’s standing in Congress, where the Judiciary Committee’s careful approach to its unwanted and awesome duty has been well received. The subpoena will hardly help Nixon’s standing in the court of public opinion. A Harris poll showed last week that Nixon had gained five points in general approval, to 31%; the poll was taken before his huge tax liability was announced. Harris also reported that for the first time a plurality of Americans, 43% to 41 %, feel that the President should be impeached and removed from office.