March 11, 2013

Richard Ben-Veniste, a Washington lawyer, was chief of the Watergate Task Force of the Watergate Special Prosecutor’s Office.

We can all accept George F. Will’s thesis [“D.C.’s darkest days,” op-ed, March 7] that the nation’s capital was in far more dire straits during President Richard Nixon’s second term than in the dysfunctional morass we are now suffering. But Will’s acceptance of Robert Bork’s self-serving claim to have been the “protector” of the Watergate investigation is a mischaracterization of history. Bork, then Nixon’s solicitor general, famously carried out the president’s order to fire special prosecutor Archibald Cox after Attorney General Eliot Richardson and Deputy Attorney General William Ruckelshaus refused in what became known as the Saturday Night Massacre.

Bork’s assertion that by firing Cox he acted to protect the ongoing investigation of Watergate crimes is akin to the Army major’s claim during the Vietnam War that “it became necessary to destroy the town to save it.” Secret recordings reveal that well before the controversy surrounding the subpoenaed White House tapes, Nixon discussed with his chief of staff, Alexander Haig, his intention to fire Cox. This was part and parcel of the president’s continuing effort to obstruct the Watergate investigation.

Bork, recently arrived from the Yale Law School faculty, lent his academic credibility to the attempt to justify the firing — which federal judge Gerhard Gesell later ruled was plainly illegal, as Cox could be fired only for “extraordinary impropriety.” (Bork later stipulated that Cox had committed no such impropriety.) The grateful president, Bork recently wrote, promised to nominate him to the Supreme Court upon the next vacancy.

Nixon’s order to fire Cox followed the Watergate prosecutor’s refusal to accept any substitute for the presidential recordings that had been subpoenaed by a grand jury and ordered produced by the courts. Indeed, far from championing an independent investigation that would allow recourse to the judicial process, Bork signed an order on Oct. 23, 1973 — three days after firing Cox — abolishing the Office of the Watergate Special Prosecution Force. Bork’s support for Nixon’s position, if successful, would have kept secret the most devastating evidence against Nixon and his closest associates. It was only after the firestorm of public revulsion following the Saturday Night Massacre that Nixon backed down — producing seven subpoenaed tapes (less 18½ minutes of deliberately erased conversation on one of them) — and acceded to the demand to appoint a new special prosecutor to replace Archibald Cox.

Without the tape-recorded evidence demonstrating irrefutably, in Nixon’s own voice, his knowledge of and active involvement in obstruction of justice, it is likely that Nixon would have escaped impeachment and removal from office. But the next special prosecutor, Leon Jaworski, with a charter virtually identical to his predecessor’s, continued Cox’s pursuit of the evidence — and the rest is (unrevised) history.