"Where Even Richard Nixon Has Got Soul": Countering Conrad Black

Like Conrad Black, I consider myself something of an aficionado of Richard Nixon and his presidency. He was certainly among the most fascinating men to occupy the office; an introvert in the most extroverted of professions, an accomplished intellect who wore what he considered to be an inferior education on his sleeve, and a truly angry person who prevailed in politics - which is almost entirely dependent on personal relationships and accommodation.

It is a truism these days to suggest that Nixon was the author of his own downfall, becoming the most Shakespearean figure in White House history. The most nominated major party politician in history (five times for president or vice-president, a distinction he shares with Franklin Delano Roosevelt), Nixon mastered both policy and politics in a way that was unequaled by anyone, except perhaps Bill Clinton. As Lord Black reports in yesterday's editorial in The National Post, Nixon's accomplishments were many and legendary, particularly the 1972 "China opening", which I believe was more responsible for the end of the Cold War than any other single event.

It is a truism these days to suggest that Nixon was the author of his own downfall, becoming the most Shakespearean figure in White House history. As he himself conceded in his interview with David Frost, "I gave them a sword and they twisted it with relish." Later in the same interview, he opines "I brought myself down."

Just as a conservative is a liberal who has been mugged, a civil libertarian is not infrequently a conservative that has been jailed. Conrad Black has rather famously endured some rather storied legal difficulties over the last decade, and it was in that context that he wrote his most recent biography, The Invincible Quest: The Life of Richard Milhous Nixon (which was published in the United States as Richard M. Nixon: A Life in Full.) The book, as well as yesterday's Post editorial, serve as interesting legal apologia for Nixon's involvement in the Watergate scandal that eventually removed him from office.

In the Post column, Lord Black doesn't address whether President Nixon committed impeachable offenses. He simply contends that no violations of a criminal statute were committed by the 37th president of the United States, saying that Nixon engaged in "Unworthy actions … but not criminal ones." However, the issue of impeachment is important and should be looked at before addressing Nixon's criminal culpability in Watergate.

My position on impeachment is that it doesn't happen enough. Most modern presidents have been guilty of impeachable offences, and the fact that they haven't been pursued by Congress only makes it more difficult to keep subsequent presidents in check. The Democratic left, for example, is upset that President Obama commenced bombing of Libya this week absent any congressional authorization. Unfortunately, the modern precedent for that rests in Harry Truman's Korean War, with only the authorization of the U.N Security Council, a clear violation of Article 1, Section 8 of the Constitution.

The then-Republican majority in Congress was right to impeach President Clinton in 1998, but they proudly ignored the multiple - and far more serious - offenses against the Constitution and several sections of the federal code committed by President Reagan in the Iran-Contra Affair.

Those that submit that regular impeachments would create anarchy in the Executive Branch overlook the fact that failing to use that tool has incentivized presidents to regularly act outside both the law and the constitutional restraints of their office, creating what historian Arthur M. Schlesinger Jr. rightly named The Imperial Presidency.

The constitutional language requiring conviction of "Treason, Bribery, or other high Crimes and Misdemeanors" aside, impeachment has historically been a political tool rather than a legal one. It is for that reason that Congress is prohibited from issuing a "bill of attainder", leaving that to the judiciary in the event of a criminal convention. Nixon's future vice-president, then House minority leader Gerald Ford put it best when he said that "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history" during the hearings to remove Justice William O. Douglas, which we now know was engineered by the Nixon White House.

If impeachment were considered a singular legal tool, requiring criminal actions, any further legal proceeding would also be prohibited by the Fifth and Sixth Amendments. That clearly isn't the case, and it why President Clinton sought and reached an agreement with the Office of Independent Counsel in his last days in office to avoid indictment.

Of the three Articles of Impeachment passed by House Judiciary Committee against President Nixon, only one (obstruction of justice in Article 1) was a clear violation of federal criminal law. As Senator Barry Goldwater advised Nixon on August 7, 1974, there were fewer than a dozen votes to acquit in the Senate. Nixon certainly would have been removed from office, and Lord Black was wise not to make this part of his argument.

However, in making his case, Black frequently mixes impeachable acts with criminal liability, and the Constitution makes clear that the two are very different.

After the Watergate affair came to light, Nixon’s attorney-general appointed a special prosecutor, Archibald Cox, who had a mandate to investigate anything he thought might be an offence “arising out of the 1972 election.” Nixon’s public contention was that he had known nothing of the June, 1972 break-in at the Democratic National Committee headquarters at the Watergate office complex (in which nothing was stolen or damaged), which was true; had no knowledge of any attempt to cover it up (tenuous); knew nothing of any offers of clemency for the accused intruders (probably true), or of any offers to provide them with funds (not true); knew nothing of the break-in at the office of the psychotherapist of the man who stole and gave to the media the Pentagon Papers (which discredited the Kennedy and Johnson administrations), which was true; and had not authorized subordinates to engage in improper campaign tactics (tenuous). In all these matters, he had a national-security argument that was sometimes a stretch, but precedented and arguable. His opponents sought to incriminate him with, in effect, involuntarily obtained taped testimony of his; and with perjured evidence, which should not have been admissible, of his turncoat counsel, John Dean.

Legally speaking, the cover-up is what matters and that's where the criminal liability on Nixon's part would almost certainly have been found by a Washington jury, had he not been pardoned by Ford a month after his resignation. This is compounded by the June 17, 1972 conversation that directly forced Nixon's resignation.

The so-called “smoking gun” at the end of the process consisted of revelations that a trio of Nixon’s aides — Robert Haldeman, John Ehrlichmann and John Dean — suggested to Nixon that the director and deputy director of Central Intelligence, Richard Helms and General Vernon Walters respectively, be asked to invite the FBI to desist from investigating the Watergate affair on the grounds that the intruders were Cuban and the whole matter could back into national-security areas, including anti-Castro clandestine activities. Nixon agreed with the plan, and the request was made. But Helms and Walters said they would follow a direct presidential order but not otherwise, and Nixon declined to make any such request. This was a pathetically feeble case for obstruction of justice. (Both Helms and Walters told me that they did not think Nixon had committed a crime in the matter.)

(...)

The only area of legal vulnerability Nixon had was on the matter of paying a million dollars to Howard Hunt, one of the Watergate break-in organizers. It is not clear in this case, and certainly not clear elsewhere, that Nixon approved payments in exchange for altered testimony. In a fair trial in a dispassionate atmosphere, Nixon would not have been convicted on the Hunt matter, and certainly not on any of the rest. But no such trial was available to him. He followed, in the circumstances, the best course, and resigned voluntarily. Nixon maintained to his grave (in 1994), and beyond, that he had “committed errors unworthy of a president” but no illegalities.

Since neither Helms or Walters were practicing criminal lawyers - and Helms himself was later convicted of lying to Congress - their opinions are legally irrelevant.

From my understanding of U.S law, it could be successfully argued that the "smoking gun" conversation marked the beginning of a conspiracy to obstruct justice, which is separate and apart from obstruction itself. It doesn't necessarily follow that the conspiracy be successful for overall guilt to be established beyond a reasonable doubt.

Under America's (overly broad) conspiracy laws, what is called "an act in furtherance" is required and those acts themselves need not be crimes in and of themselves. For example, if you conspire to rob a bank with someone else, renting or borrowing a getaway car is considered an act in furtherance. Nor is it necessary for your co-conspirators to even know the details of the conspiracy.

If you accept that a conspiracy began on June 17 with the direction to have the CIA interfere with the FBI's investigation, which it did, an act in furtherance can be established in the March 20 conversation when Nixon told Dean that he knew where a million dollars for Hunt could be found - without having to prove a corrupt motive (likely witness tampering or subornation of perjury) in doing so.

More important, every act of the cover-up following June 17 would constitute an act in furtherance of the overall conspiracy. And there were several dozen of those, almost all of which were captured on tape. A prosecutor could also potentially argue that Nixon's exercise of his constitutional prerogatives in denying the tapes to the Senate and Cox were part if an underlying conspiracy, even if the president felt that he was constitutionally obligated to do it.

Of course, none of that is particularly relevant. When President Ford was considering the Nixon pardon, he was told by the second special prosecutor, Leon Jaworski, that a fair trial couldn't be held in the District of Columbia for at least two years. Even then, there would be no guarantee that a fair trial could ever be conducted in the aftermath of the first presidential resignation in American history. Finding twelve jurors that had no opinion on Nixon's guilt or innocence would probably be impossible well into the 1980s, thereby denying the former president his right to a speedy trial.

Then there's the matter of what a federal prosecution of Nixon would have done to the country. The previous decade had seen the King and two Kennedy assassinations, Vietnam and the multiple government lies that arose from it, the downfall of Lyndon Johnson and, finally, Watergate. Even as he resigned, more Americans approved of Nixon than they later would of George W. Bush when he left office. A trial would have only served to further tear the country apart, making the pardon not only the right thing to do, but the only thing.

I agree with Conrad Black that Richard Milhous Nixon was a much better than average president and that history will eventually reevaluate his many great accomplishments. But I would argue that continuing to debate whether he was "treated fairly" only retards and further delays that from happening. Irrespective of his other achievements, no matter how fine and admirable they might be, Richard Milhous Nixon also committed multiple impeachable offenses and engaged in a criminal conspiracy to obstruct justice. The only reason that we're even still having this debate is Nixon went to his grave without admitting it.

Nixon's resignation was the right thing to do, both for the country and for himself. If he had been allowed to escape without consequence after his actions became public knowledge, it would have sent a clear message that future presidents would be a law unto themselves and that nothing would constitute an impeachable act.