The Emperor's New Clothes: Exposing the Truth from Watergate to 9/11by Richard Ben-Veniste
Richard Ben-Veniste hates being lied to. He especially hates it when the American people are lied to. Widely respected as a trial lawyer, Ben-Veniste delivers a fascinating insider's tale in his memoir of a career spent fighting hypocrisy and seeking accountability among the highest ranks of government.
A legal wunderkind, Ben-Veniste was hired at age thirty/p>… See more details below
Richard Ben-Veniste hates being lied to. He especially hates it when the American people are lied to. Widely respected as a trial lawyer, Ben-Veniste delivers a fascinating insider's tale in his memoir of a career spent fighting hypocrisy and seeking accountability among the highest ranks of government.
A legal wunderkind, Ben-Veniste was hired at age thirty by Special Prosecutor Archibald Cox to investigate the Watergate cover-up. As chief of the Watergate Task Force at the time of the infamous "Saturday Night Massacre," the author played an important role in prosecuting the case and revealed the extent of Richard Nixon's involvement with his top lieutenants in a conspiracy to obstruct justice and commit perjury.
Prior to Watergate, Ben-Veniste had investigated and prosecuted corruption in the office of Speaker of the House John W. McCormack. In 1980 the author served as a defense lawyer in the controversial Abscam case, delving into a flawed sting operation that pushed the boundaries of legality and tested due process of law. In the Senate Whitewater hearings, Ben-Veniste helped expose the partisan agenda behind the effort to take down President Clinton. The author gained further national prominence as a member of the 9/11 Commission, in which his artful questioning of Condoleeza Rice revealed how ill-prepared the Bush Administration had been in the weeks leading up to 9/11.
A lifelong devotee to the principles of an open democracy, the author argues that the pursuit of truth is not one that should depend on party affiliations—that we should all seek to be partisans for the truth. Ben-Veniste recounts a remarkable career spent at the center of the most poignant public investigations of the last half century, fighting the abuse of power by those who wielded it most.
“Richard Ben-Veniste is a very special lawyer. He has written a very special book. You should read it. You will be palpably richer for having done so.”—F. Lee Bailey, author of When the Husband Is the Suspect
“Super lawyer Richard Ben-Veniste has played a major role in the most interesting and challenging scandals in Washington over the last forty years.… I’ve been trying to get the real story from him for years—and here it is!”—Terry McAuliffe, author of What a Party!
“Richard Ben-Veniste is as tough and as smart as they come. In this new book he inspires us with his commitment to justice, fairness, and the truth.”—Paul Begala, author of Third Term
“Ben-Veniste punches like a heavyweight, attacking hubris and hypocrisy in a career that spans four decades of major scandals. A knockout!”—Roger Cossack, ESPN legal analyst
“Richard Ben-Veniste’s fascinating narrative highlights his pursuit of the bad guys through the legal system and his service to the American public and the Constitution.”—Daniel Schorr, National Public Radio, and author of Come to Think of It
“Richard Ben-Veniste has written a compelling book that recounts his five-decade pursuit of truth and transparency from successive American administrations.”—Valerie Plame Wilson and former U.S. ambassador Joseph C. Wilson
“Reading Richard Ben-Veniste’s book gave me a sense of eavesdropping on the history of the late twentieth century and the new millennium with all of its mendacity, nobility, and folly. Ben-Veniste is that rare attorney who can combine first-rate legal acumen with riveting storytelling.”—Eric Dezenhall, CEO of Dezenhall Resources and author of Damage Control
“Richard Ben-Veniste dismantles and exposes with rapier-like precision the mechanics of disinformation, once considered the monopoly of totalitarian societies.”—Arnaud de Borchgrave, director of the Transnational Threats Project, Center for Strategic and International Studies
“Richard Ben-Veniste has been at the center of many of Washington’'s most historic brawls. His entertaining history is told truly from inside the eye of the storm.”—Jane Mayer, author of The Dark Side
“In the small world of towering giants of the legal profession who could do it all—investigate exhaustively, handle the written and spoken word at the highest levels, and prowl the courtroom with skill, cunning, and an ineluctable quest for truth…Richard Ben-Veniste is a very special lawyer. He has written a very special book. You should read it. You will be palpably richer for having done so.”—F. Lee Bailey
“Richard Ben-Veniste is one of the most distinguished lawyers in the United States. His leading roles in the Watergate, Whitewater, Abscam, and 9/11 Commission investigations showed him to be both a highly effective investigator and a guardian of civil liberties.”—Bob Woodward, author of The War Within
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Read an Excerpt
I watched John Dean drone through his fantastic testimony about the Watergate cover-up on television in the living room of my Manhattan apartment. Dean's monotone belied the explosive content of his allegations, detailing a ten-month cover-up orchestrated by the most powerful men in government, including President Richard M. Nixon himself. How could anyone believe that Nixon, wizard of the dark arts, had entrusted this young, blond, bespectacled twerp with the authority to run an insanely stupid and dangerous obstruction of justice right out of the White House counsel's office? My instincts as a prosecutor with all of five years of experience, albeit in the most highly regarded U.S. attorney's office in the nation, told me that Dean was exaggerating the role of higher-ups in an effort to escape punishment for his own misdeeds. Indeed, the Senate Watergate Committee, led by Sam Ervin of North Carolina, had already granted Dean immunity as a condition of his willingness to testify. I had seen many targets of criminal investigations try to plea-bargain their way out of serious prison time by turning state's evidence against their former friends and accomplices. The criminal justice system is dependent on this process. One of the most difficult tests of a prosecutor's judgment and integrity is the ability to separate the wheat from the chaff in such situations—to make a determination about the credibility of accusations from the mouths of people under tremendous pressure to save themselves by implicating others.
I shook my head in disbelief. Despite the details, Dean's story just didn't add up. One hell of a fight would be shaping up in Washington.
My thoughts about the implications of Dean's testimony were interrupted by a telephone call that would change my life. Jim Vorenberg, a Harvard law professor and friend of the newly appointed Watergate special prosecutor, Archibald Cox, called to ask if I would be interested in interviewing for a job on Cox's staff Vorenberg told me that Cox would be interviewing federal prosecutors who could jump in to conduct grand jury investigations and then try cases in the event indictments were returned. I was high on Vorenberg's list of possible candidates. Time was of the essence for assembling a staff .I told Vorenberg I would be on a plane to Washington the next day. If offered the job, I suspected I would be moving to Washington and would play a role in unwinding the greatest political scandal in American history.
Watergate had entered my life at a crossroads in my fledgling career. I had become restless at the U.S. attorney's office, even after my promotion to head the special prosecutions/anti-corruption unit. My relationship with the woman I was living with wasn't working out, and I was thinking seriously about leaving New York. A few months earlier, I had given a lot of thought to accepting an offer by the Department of Justice to head the Organized Crime Strike Force for Northern California, Oregon, and Washington. I would be based in San Francisco and would also have jurisdiction over Hawaii. But there was one major hitch—there was hardly any organized crime there. The Mafia in California was, at best, a joke. Would I be willing to accept a professional diet of chasing small-time gamblers in return for the benefits of the natural beauty and relaxed lifestyle that came with the territory? I agonized over my decision for weeks before turning down the offer.
The next morning, I stepped off the Eastern Airlines Shuttle, oblivious to Washington's famous humidity. Watergate promised to be the most compelling drama to be played out on America's stage. It seemed as though providence had guided my hand in turning down the strike force job when Watergate was just around the corner.
I met Jim Vorenberg in the special prosecutor's suite of offices—two floors at 1425 K Street N.W. in the heart of Washington's business corridor. I liked Jim immediately and found his lack of pretension and ready sense of humor a welcome change from the stereotypical law professor. Jim had done some background research on me and said that my experience in prosecuting corrupt public officials made me an attractive candidate for a senior position, despite my youth. If Archie—as everyone on staff called the reserved Yankee law professor—agreed, Vorenberg would recommend me to lead one of the task forces that had been created to address the broad categories of investigation that lay ahead. Vorenberg ticked off campaign finance, dirty tricks, the plumbers, and ITT as possibilities. The only task force leader's position that was taken was the one dealing with the Watergate cover-up. James Neal, an experienced former prosecutor who had established a highly successful criminal defense practice in Nashville, had already been selected for that position and had been on the job for a month. Cox and Neal had known each other from the Kennedy administration, for which Cox had been solicitor general and Neal had prosecuted Attorney General Robert F. Kennedy's number-one target—Teamster president Jimmy Hoff a. At forty-five, Vorenberg was a couple of years older than Neal. In the Kennedy administration, he had served under Bobby Kennedy as chief of a newly created Office of Criminal Justice. Immediately after Cox was sworn in, Cox and Vorenberg's first call was to Neal to see if their former colleague would join them in Washington.
I told Vorenberg that titles were not important to me; the only part of the investigation that truly appealed to me was the cover-up. I would gladly pick up and move to Washington for the opportunity to be Jim Neal's number two on the cover-up investigation—if Cox and Neal were to offer me that position. Jim sat back in his chair and thought for a moment. "Let's see how it goes with Archie. Then you can meet with Neal and see whether the two of you could work together."
Archibald Cox had a reputation as a stern and forbidding legal scholar, self-righteous and unyielding. His roots and background were about as different from mine as anything I could imagine. My interview lasted fifteen minutes. Professor Cox's appearance—tall, ramrod straight, with close-cropped steel-gray hair and clear blue eyes—did nothing to suggest the slightest connection between us. The starkness of his office, freshly painted white and unadorned with anything on the walls to personalize it, was of a piece with his unfashionable gray suit and drab narrow necktie. By contrast, I wore my hair in the longish contemporary style of the early 1970s, particularly unflattering in my case, given its tendency to frizz up at the slightest mention of humidity. Summer in the reclaimed swamp that is our nation's capital is synonymous with humidity. I was wearing a wide paisley tie—equally contemporary and an equally unfortunate fashion statement, given the benefit of hindsight. Photographs of me from this period evoke spontaneous gales of derisive laughter from my daughters. If my appearance was disconcerting to Cox, he gave no indication of it. He was all about substance, a trait I could be thankful for as I look back on our first encounter.
Archie spoke slowly, carefully choosing his words, as they fl owed into full sentences, the sentences into perfect paragraphs. He gestured for emphasis with the stub of a missing finger, the casualty I surmised of a long-ago accident chopping wood, one of his favorite activities for exercise and relaxation (with the added Yankee virtue of usefulness). After going over some of the cases I had prosecuted, Archie quizzed me on my reaction to a series of hypothetical situations involving bribery or conflict of interest, referring to himself as the perpetrator. What would I do as the prosecutor in each of the hypotheticals? What process would I use in reaching my decision? As our brief meeting ended, Cox gave me no indication of whether I had passed or failed.
After ducking his head in for a brief chat with Archie, Vorenberg cheerfully led me down the hallway to meet with Jim Neal. Apparently, I had survived Cox's scrutiny. As different as Archie Cox was from me in one direction, Jim Neal was in the other. A dyed-in-the-wool Southerner, Neal had gone to the University of Wyoming on a football scholarship before attending law school at Vanderbilt. Barrel-chested and bandy-legged, Neal's booming Nashville twang could be heard throughout the office as he greeted me. Neal's ruggedly handsome face broke into a big smile as he removed a large unlit cigar from his teeth and shook my hand. Introductions over, Vorenberg excused himself and left us to feel each other out.
Neal and I hit it off from the start. He was an accomplished trial lawyer, the real McCoy. While he had won a conviction against Jimmy Hoff a, I had prosecuted Hoffa's de facto successor as head of the free-spending Teamsters pension fund, Allen Dorfman. We compared notes on our experience with the cast of characters surrounding Hoff a and soon were regaling each other with anecdotes that had us laughing until tears were rolling down my cheeks. We discussed the Watergate cover-up allegations and the best way to proceed with an investigation. John Dean of course would be central to our focus. Neal knew Dean's canny lawyer, Charles Shaffer, as a former colleague in the Kennedy Justice Department. He believed Charlie to be both highly skilled and completely trustworthy, an assessment that proved entirely accurate. Jim confided that his obligations to clients and his partner would require his return to his two-man law practice in Nashville in the near term. He would turn over the day-to-day running of the cover-up investigation to his next in command with the hope that he would be able to return to participate in any major Watergate trial. If that happened, he would share the trial responsibilities with me. Our conversation had morphed from the theoretical to the practical. This was an offer I couldn't refuse. We sealed our understanding with a handshake. "How soon can you get down here?" Neal asked, lighting his cigar. I thought I could convince my boss, the U.S. attorney, to allow me a week to transition and reassign ongoing matters to my deputy, a very capable and ambitious young lawyer named Rudolph Giuliani.
I circled back to Jim Vorenberg with news of my agreement with Neal. We stopped for a perfunctory good-bye handshake with Archie, and I was on my way back to New York. As sophisticated and worldly as I supposed myself to be, I began to realize that New Yorkers could be just as parochial and limited as anyone from Hicktown, USA. I was in for a real educational experience.
A week later, July 4, 1973, I moved into the Hilton Hotel at 16th and K, which was to be my home for two months until I could find an apartment. I immediately dove into the mountain of memos and transcripts that were required for me to get up to speed. On my first day on the job, I glanced into the office of another of my new colleagues, a Harvard law professor who was in earnest conversation with Tony Ulasewicz, the Runyonesque former New York City cop-cum-private investigator, who had been enlisted by Nixon's personal lawyer, Herbert Kalmbach, to secretly deliver cash to the five Watergate burglars and their supervisors, E. Howard Hunt and G. Gordon Liddy. To my astonishment, the professor was discussing giving Ulasewicz "informal" immunity in return for his version of events. In what was a total departure from cordial manners, I asked the professor if he might step into the hallway for a moment, introduced myself, and told him not to interview any other cover-up witnesses, much less make any promises to them in connection with their cooperation. The contingent of law professors was soon relieved of any responsibility for gathering facts and making deals that could bind the Watergate special prosecutor in any later proceeding.
The Watergate Task Force, as the group assigned to investigate the cover-up/obstruction of justice case was known, grew to seven in number. Jill Wine, a Chicago native who had been a year behind me at Columbia Law, had already distinguished herself as a tough Department of Justice lawyer specializing in labor racketeering—the first woman organized crime prosecutor in the department's history. George Frampton and Gerry Goldman had been top students at Harvard Law and each had been rewarded with a prestigious clerkship with a Supreme Court justice. Peter Rient, who had overlapped with me in the U.S. attorney's office, became the "law man" on our team, assigned legal research and brief-writing responsibilities. Larry Iason and Judy Denny, both promising young legal scholars, rounded out our team—average age, thirty-one, even with "old man" Neal at the helm.
The months from July to October were grueling fourteen-hour daily marathons, as we began to assimilate the prior investigative work of the original prosecutors from the DC U.S. attorney's office and the Senate Watergate investigators (two of whom, Terry Lenzner and David Dorsen, had also been colleagues of mine in the Southern District of New York) and build upon that foundation. Our priorities were set by Archie Cox. Even though John Dean had been granted immunity by the Senate Watergate Committee in return for his extensive testimony, Cox was determined not to let Dean off the hook. We would make every effort to find a way to prosecute the young White House lawyer for his central role in the cover-up, even though following the Senate's lead would have given us cover and greatly expedited our effort to investigate the involvement of the most senior White House officials.
The revelation by Nixon aide Alexander Butterfield of a surreptitious White House taping system crashed upon Watergate's shores. Cox publicly pledged to seek access to the tapes for evidence they might yield about the alleged cover-up. The stakes regarding Dean's cooperation as a witness for the prosecution grew dramatically.
Archie came under tremendous pressure from the White House to back off and agree to a "compromise" that would deny us a firsthand review of the taped conversations among Nixon and his top lieutenants, H. R. Haldeman, John Ehrlichman, John Mitchell, and Chuck Colson, that we had identified, using a combination of White House logs and insider testimony. Yet Archie remained firm about Dean. "If everything else goes down the drain, the one thing I can cling to is Dean's venality," he explained.
Nixon, of course, pegged Cox as a part of the Eastern elite establishment, a Kennedy man at that, who was "out to get" Nixon. The reality was much different. Cox was bent on providing a scrupulously fair investigation that would withstand scrutiny by any objective observer. On several occasions when we updated Archie on the progress of our investigation, our boss questioned us closely on the appropriateness of various investigative tradecraft. It was not enough to point out "this is what prosecutors do." "But is it fair?" was the bottom-line question to which Archie always returned. So to some extent we were obliged to reinvent the wheel and think through issues I had never questioned. I developed a tremendous admiration for Archibald Cox and what he stood for. Nixon, on the other hand, was playing by a different set of rules.
John Dean found himself between a rock and a hard place. The White House mounted a furious attack on Dean, focusing on his alleged motive of trying to besmirch others in an attempt to save himself from a jail term. Yet Cox rejected anything less than a plea to a felony count of obstruction of justice, which carried a maximum five-year penalty. Charlie Shaffer felt he was holding good cards and refused to budge: We needed Dean; moreover, everything he had testified to before the Senate was protected by the "use immunity" the Senate had conferred upon his client. Eventually we would have to back down and give immunity to Dean also.
But what if we could find an area of possible prosecution that had not been the subject of Dean's extensive Senate testimony? Combing carefully through the record, the team found just such an omission. It involved Dean's attempt to induce James McCord, one of the Watergate burglars, to plead guilty rather than go to trial by making him a veiled offer of presidential clemency if he did so. We knew about this episode through witnesses who had testified before Dean's Senate appearance. We drafted an indictment outlining such a charge to show Dean that Archie meant what he said. Neal told Shaffer that we had Dean boxed. It was time for his client to plead guilty and throw in with the good guys.
Meanwhile, the drama over the White House tapes had moved from hot to white hot. Cox's appointment as Watergate special prosecutor had been the result of Nixon's attempt to shore up his administration's eroding credibility by appointing Elliot Richardson, his Boston Brahmin secretary of defense, to be attorney general. Coinciding with his announcement of the resignations of Haldeman and Ehrlichman, his two closest aides tarnished by Watergate revelations and dumped overboard by the chief, the Richardson appointment was the type of bold move Nixon reveled in. Richardson's spotless reputation for integrity would surely head off the growing political sentiment for an in de pen dent inquiry into Watergate. But the Democrat-controlled Senate wanted more—a guaranty that Richardson would appoint an in de pen dent special prosecutor who would investigate allegations of a Watergate cover-up and other abuses of executive power free from White House control. It was more than a suggestion. The Senate Judiciary Committee made it clear that Richardson's confirmation as attorney general would depend on his selection of a special prosecutor with guarantees of independence. Richardson signaled his acceptance of such a condition and his willingness to name an individual who would pass muster. Richardson picked his former Harvard Law professor, Archibald Cox, who appeared with the nominee before the Judiciary Committee and testified to Richardson's promise of independence, further guaranteed in a written charter. Cox could be removed only for "extraordinary improprieties." Richardson was confirmed two days later.
By mid-October, the behind-the-scenes maneuvering shadowing our attempt to have the courts enforce our subpoena for Nixon's tape recordings of seven specified conversations had reached its zenith. On October 12, the Court of Appeals for the District of Columbia Circuit affirmed the decision of District Court Chief Judge John Sirica ordering Nixon to turn the tapes over to the grand jury. The appellate court gave the president one week to comply.
During one of our task force meetings with Archie, I suggested that it might be a good idea to ask Judge Sirica for an order sequestering the tapes while the president appealed Sirica's ruling. Archie brushed aside my suggestion. "The president of the United States is not going to tamper with evidence under subpoena. To seek such an order would look like overreaching." While he was mistaken on the first count, Archie was right about the second. And he was under enough pressure to back off his demand to get the tapes that he didn't need to open a second front by suggesting that Nixon couldn't be trusted to safeguard the tapes in his custody during the legal battle.
Meanwhile, Nixon had cooked up a fiendishly disingenuous "compromise" to avoid turning over the original tapes to us. Styled the "Stennis compromise," Nixon proposed that he would submit summaries of the subpoenaed conversations to Senator John Stennis of Mississippi, who would verify that the summaries accurately portrayed what was on tape. Cox would then give up any attempt to get the actual recordings.
There were two reasons why the proposal was a nonstarter. Summaries, or even verbatim transcripts, would be inadmissible as evidence in any case we might wish to bring. If that were not enough, there was good reason to suspect that Stennis would be suboptimal as an authenticator. Although a Demo crat, the ultraconservative Stennis saw eye to eye with Nixon on the conduct of the Vietnam War and supported strong measures to curb dissent. Moreover, there were serious questions about whether the seventy-two-year-old senator had the endurance or hearing acuity to verify what was on the tapes with any degree of reliability. Beyond age alone, Stennis was recovering from gunshot wounds to his head from a recent mugging in his Capitol Hill neighborhood. To top it off , Nixon's new White House counsel, Fred Buzhardt, formerly counsel to the Defense Department, had worked closely in the past with Stennis, who as the powerful chairman of the Senate Armed Ser vices Committee had earned the nickname "the Undertaker" for the Pentagon secrets that stayed buried under his leadership. Buzhardt would be "helping" Stennis with the verification process. Archie didn't need to get into the second reason for concern—a political trap were he to question the senior Democrat's bona fides. The inadmissibility of summaries as evidence would suffice as a cogent reason not to accept Nixon's offer.
What was unknown publicly was how strongly Elliot Richardson pushed Archie to agree to the Stennis compromise. Archie tried to reason with his former student, to no avail. Then a new demand was added: Not only would he have to content himself with summaries, Cox would have to promise not to seek judicial enforcement of any additional subpoenas for White House tapes. How could a prosecutor voluntarily abandon a demand for specific evidence that two courts had ordered be turned over, not to mention forswear seeking what promised to be the most reliable evidence of what was said behind closed doors between and among those being investigated?
Richardson's strong desire to continue on as attorney general provided Nixon and Haig with the leverage to put crushing pressure on him to get Cox to agree to their terms. Richardson knew that unless Cox either acceded or resigned under pressure to do so, he would be forced into the position of firing the man he had promised would not be discharged "except for extraordinary improprieties" or tendering his own resignation.
As October 19, 1973, the date the Court of Appeals had set for Nixon to turn over the subpoenaed tapes, approached, the efforts to persuade Dean to plead guilty accelerated. The draft indictment had convinced Dean of the seriousness of our intention that he would not get off scot-free. Shaffer told us his client was ready to plead guilty. Led by Jim Neal, we engaged in a marathon session with Dean and Shaffer that went on into the early morning hours of Thursday, October 18. We insisted on a provision in the plea agreement that would leave Dean vulnerable to an additional prosecution for perjury if the tapes proved him to be a liar. Dean readily consented.
It was agreed that Dean would enter his plea on Friday, the same day as the deadline for Nixon to comply with the order to turn over the tapes. Dean's guilty plea was a dramatic step forward in the effort to build a case against the higher-ups Dean claimed had ordered the cover-up. I had worked intensely with Jim Neal for more than four months since our first meeting. With Dean's plea of guilty to conspiracy to obstruct justice, Jim would return to his law practice in Nashville. Friday would be his last day.
We returned to the office from Judge Sirica's courtroom to say our good-byes to Jim. Despite the important milestone of securing John Dean's guilty plea, the mood in the office was somber. Nixon had handed off "negotiations" from Attorney General Richardson to Charles Alan Wright, a prominent constitutional law professor from Texas. No longer was there any pretense of give-and-take. Wright's message was take it or leave it. Unless Cox accepted the Stennis compromise, the president would "follow the course of action in the best interests of the country." What the hell did that mean? Cox wrote back that he could not accept a proposal totally at odds with his guarantee of independence. Wright responded that further communications would be futile: The president would do what he had to do. The constitutional law professor pen pals ceased postal artillery between K Street and Pennsylvania Avenue. The clock ticked down as the time for fi ling court papers expired. Archie looked totally forlorn. His belief that at the end of the day, the president of the United States would act honorably and in conformity with the pledges so publicly made to him was eroding by the minute. At 6:30, Elliot Richardson called to read Cox a letter from Nixon to Richardson, in which the president had instructed his attorney general to tell Cox to make no further attempts to compel production of presidential tapes, notes, or other memoranda.
At 9 p.m., the White House went public. Nixon would not pursue an appeal to the Supreme Court. Nor would he turn over the subpoenaed tapes. Rather, he had made a very generous and reasonable offer to Cox in order to avoid the continued "strain" the Watergate investigation had imposed on the American people. In order to avoid a constitutional confrontation, Nixon offered a summary of the tapes, which would be verified by Senator John Stennis, a distinguished and respected American patriot. In return, Cox had been ordered not to subpoena any more tapes. Breathtaking in the president's disregard for the rulings of the two courts and the attorney general's earlier assurances of Cox's independence, the White House sprang a final surprise. Senators Sam Ervin and Howard Baker, the leaders of the Senate Watergate Committee, had endorsed the Stennis compromise as a resolution of the committee's parallel demand for the tapes. This was a shocking stab in the back. Judge Sirica had ruled against the Senate, distinguishing between a grand jury's preeminent right to gather evidence in a criminal investigation and Congress's desire to compel a co-equal branch of government to disgorge its confidential communications. The Watergate Committee, which had moved the investigation along so importantly, was selling us out and giving Nixon cover for fl outing the legal process. I was stunned and disillusioned; I could hardly imagine Archie Cox's distress.
In fact, Archie was busily at work, scratching out on a yellow legal pad an outline of his reasons for rejecting Nixon's offer. He intended to explain his position directly to the American people in a press conference the next day. Meanwhile, at the White House, General Alexander Haig, who had replaced H. R. Haldeman as Nixon's chief of staff , was war-gaming the possible outcomes. The smart money was on Richardson staying on message; the hope was that Cox would resign.
Saturday morning was my first day as leader of the Watergate cover-up team. As events unfolded at warp speed, it could easily have been my last. The entire staff assembled in our office library at 11 a.m. so that Archie could explain what was going on. The mood in the room reflected both anger and despair. We were being outflanked by Nixon and abandoned by our natural allies, the Senate Watergate Committee leaders. Archie had traded his signature bow tie for a standard maroon striped four-in-hand. With a blue button-down oxford shirt and a gray tweed suit, he still appeared far more professor than Washington lawyer. His unkempt, bushy eyebrows with wiry hairs going every which way contrasted with his salt-and-pepper buzz cut. He gave a brief summary of the past week's events and told us he would try to explain at the press conference why he could not accept the president's demands. For the first time I saw Archie's natural reserve break down as he told us how proud he was of his staff and how much he appreciated the hard work we had put in since he was appointed. It was possible the president would fire him; if that happened, he hoped we would stay on as long as possible, for our effort was important to the country.
The possibility that Nixon would lash out and fire Cox for disobedience had been the subject of discussion among us for weeks. In fact, we had assembled copies of important memos summarizing evidence and transcripts of key testimony, which George Frampton had then squirreled away in his grandmother's attic in Virginia. But such precautions seemed a stretch. After all, we were lawyers, working as part of the Department of Justice, not rebel bomb throwers. What could the president do?
At 12:30, we walked to the main hall of the National Press Club, a few blocks south down 14th Street from our office, to take seats for the one o'clock press conference. The room was rapidly filling and seats were becoming scarce. The television networks were covering it live. Could the Harvard law professor and former solicitor general, so comfortable with abstract legal principles, hold the attention of a lay audience, much less battle the entire White House spin apparatus?
Archie spoke in the slow, measured cadence that I had grown to know so well in our staff meetings. He started off by referring to the morning's news reports.
"I read a headline in one of the newspapers this morning that said, 'Cox Defiant,' " he began. "But I don't feel defiant." He didn't want a fight, least of all with the president. He did not want to provoke a constitutional confrontation, nor was he "out to get" the president. Indeed, he was brought up to have the highest regard for the presidency. He worried about the possibility that he had grown "too big for my britches." He wanted to assure the public that his was not some manifestation of his own vanity but an expression of the principle of law to which he was dedicated. In the vernacular of The Godfather, which was still some years off , Cox made clear this was not personal; it was a matter of business. He looked the American public in the eye and told them how he had decided that following a path that would lead to evidence admissible in a court of law was the only "responsible" course of action he could follow. The message came through clearly that Cox took his responsibility seriously. By his words and demeanor, Archie communicated that there was not a whit of vanity about him. The rejection of the president's offer did not imply any doubt about Senator Stennis's integrity, Archie continued, but rather a commitment to adhere to established principles rather than some one-off recipe for avoiding confrontation. He detailed the communications with Nixon's representatives over the past weeks and ended with an apology for being "professorially" long-winded. As he opened the floor to questions from the press, I reflected that Archie had humanized himself not only as a man of integrity and dedication to principle, but also as a man who could be introspective and worried about taking himself too seriously. It was a bravura performance of courage and principle. How could America not get it?
The questions from the floor gave Archie the opportunity to expand upon his theme and deal with the critical question of how Elliot Richardson would behave. Given the defections of Ervin and Baker, if Richardson found some way to justify abandoning his pledge to Cox that he could conduct an in de pen dent investigation, as Nixon and Haig were hoping, all might be lost. Archie had clung to the belief that in the end, Elliot would act honorably. There was some reason to hope for such an outcome. When Richardson had read Nixon's letter to him, he made clear to Archie that he was informing Cox of the president's demand, not ordering him to abandon his quest for the tapes. Now Cox sought to stitch Richardson into the fabric of his defense of principle. What if he were fired after this news conference? asked one of the journalists. Only the attorney general could legally fire him, Cox replied. What if Elliot Richardson fired him on the president's order? was the follow-up question. Archie launched into a bit of constitutional history, asking the reporter to "remember" that when Andrew Jackson's secretary of the treasury refused the president's order to transfer money from the central bank, he fired him and appointed a new treasury secretary. When the new secretary also refused the order, Jackson fired him too and appointed a third, who finally agreed to do the president's bidding. Cox was trying to escalate the political cost to Nixon of pursuing a strategy of firing him. If Richardson would not execute an order to fire Cox, despite the efforts he had made along the way to convince Archie to accept a compromise, would Nixon be willing to sacrifice Richardson in the bargain? We would not have to wait long to find out.
We milled around after the press conference, talking in hushed tones about Archie's performance. For me, it was then and remains today the single most inspiring act of personal courage and commitment to the core principles of the rule of law that I have ever witnessed. I was enormously proud to be associated with Archibald Cox.
The ball was now squarely in Nixon's court. The president had ordered Cox to drop his pursuit of the tapes, and Cox responded that he would neither resign nor obey Nixon's demand. There was nothing we could do but wait. Judge Sirica had set a court hearing for Tuesday, where he would hear the formal White House response to the appellate court's order. I was accustomed to waiting for juries to finish their deliberations in cases I had tried. Nothing productive could be accomplished during deliberations—you had already done everything you could do to affect the outcome. So we all went home to wait. There was no point hanging around the office. After all, nothing official ever happens in Washington on a Saturday night.
Excerpted from The Emperor's New Clothes by Richard Ben-Veniste
Copyright © 2009 by Richard Ben-Veniste
Published in June 2009 by St. Martin's Press
All rights reserved. This work is protected under copyright laws and reproduction is strictly prohibited. Permission to reproduce the material in any manner or medium must be secured from the Publisher.
Meet the Author
Richard Ben-Veniste is a partner in the international law firm Mayer Brown LLP. Among his many distinctions, he served as a member of the bipartisan 9/11 Commission, as Minority Chief Counsel for the Senate Whitewater Committee, as Chief of the Watergate Task Force of the Watergate Special Prosecutor's Office, and as Chief of the Special Prosecutions Section of the United States Attorney's Office for the Southern District of New York. He lives in Washington, D.C., with his wife and daughter.
Richard Ben-Veniste is a partner in the international law firm Mayer Brown LLP. Among his many distinctions, he served as a member of the bipartisan 9/11 Commission, as Minority Chief Counsel for the Senate Whitewater Committee, as Chief of the Watergate Task Force of the Watergate Special Prosecutor’s Office, and as Chief of the Special Prosecutions Section of the United States Attorney’s Office for the Southern District of New York. He is the author of The Emperor's New Clothes: Exposing the Truth from Watergate to 9/11. He lives in Washington, D.C., with his wife and daughter.
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