By George Lardner Jr.
On Feb. 1, 1974, months before House hearings on the impeachment of Richard M. Nixon began, one of the Watergate special prosecutors drafted what amounted to an indictment of the sitting president, accusing him in four counts of conspiring to obstruct justice and of offering hush money in the process.
Peter F. Rient drew up the "presentment" with the idea of having the Watergate grand jury approve it and transmit it to the House of Representatives. In the end, at special prosecutor Leon Jaworski's cautious insistence, the Watergate lawyers settled on a less accusatory approach, stuffing a bulging briefcase with tapes and other evidence and adding a "road map" of short but cumulatively devastating statements of fact.
In recent weeks, independent counsel Kenneth W. Starr's aides have been combing through the records of these Nixon-era maneuvers for insights on how to handle their expected submission to the House of possibly impeachable offenses by President Clinton.
The law gives them a duty, but little guidance. Enacted in 1978 in response to uncertainties expressed by Watergate prosecutors about their authority to submit grand jury evidence to Congress, the Independent Counsel Act simply states that: "An independent counsel shall advise the House of Representatives of any substantial and credible information ... which may constitute grounds for an impeachment."
One of Starr's advisers, who asked not to be named, confirmed that the independent counsel's staff has been inspecting the Watergate prosecution records, but declined to comment on what course it might follow.
"They [Watergate prosecutors] were basically steering without any navigational chart," he said. "We now have a special statute that deals with this. ... But we do everything very thoroughly and objectively. We try to leave no stone unturned."
Packed into a folder at the National Archives, the 24-year-old Watergate documents reflect some similarities between then and now, aside from the alleged misdeeds in question. Last month, for example, Clinton ended a long period of denial by acknowledging an inappropriate relationship with Monica S. Lewinsky, but coupled the terse admission with an angry attack on Starr, defiantly challenging the independent counsel to stop "prying into private lives."
In early 1974, the Nixon White House signaled its intentions to take a tougher line with investigators, give up no more tapes and press for a quick vote on impeachment, without giving the House Judiciary Committee much time for investigation. Nixon recognized that his predicament was compounded by the unease of his congressional supporters.
"No congressman could afford to seem to be too firmly committed to my camp lest he be accused of not considering the case against me on its merits despite the fact that many on the other side were openly campaigning for impeachment," Nixon wrote in his memoirs.
In notes jotted down in the early morning hours of Jan. 1, 1974, Nixon emphasized his determination to "fight. Fight because if I am forced to resign, the press will become too much of a dominant force in the nation, not only in this administration but for years to come. Fight because resignation would set a precedent and result in a permanent and very destructive change in our whole constitutional system. Fight because resignation could lead to a collapse of our foreign policy initiatives."
His opponents, the president wrote, "are savage destroyers, haters." He saw no end to the demands of investigators.
"These investigations had taken on a life of their own I did not understand why more people could not see that," Nixon added later in a complaint that has been echoed by the Clinton White House. "The various investigators were no longer trying to determine the truth of any particular charges against me. They wanted to go through everything, to pursue every lead, no matter how remote, until they found something that would in their view finally justify my removal from office."
Nixon resolved to "fling down the gauntlet" in his Jan. 30, 1974, State of the Union speech and he did, saying he had provided Jaworski all the material he needed. "I believe the time has come to bring that investigation and the other investigations of this matter to an end," he said. "One year of Watergate is enough."
In his office a few blocks from the White House, Jaworski had concluded by mid-December, little more than a month after taking the job from which Nixon ordered Archibald Cox fired, that Nixon was "criminally involved" in the Watergate coverup. By Jan. 7, the prosecutors he inherited from Cox had drafted a 128-page prosecution memo, which said there was enough evidence, even at that early date, to charge the president with conspiring to obstruct justice, to commit bribery, and to obstruct a criminal investigation through the payment of hush money to one of the Watergate burglars, E. Howard Hunt.
Around the same time, another of Jaworski's men, Richard Weinberg, concluded in a 44-page memo that nothing in the Constitution or legal precedents precluded indictment of an incumbent president. Although there were strong policy reasons for not taking such a step and "curtailing his ability to govern," the memo suggested that the key question was whether the president, if not indicted, might avoid impeachment as well, thereby avoiding any adjudication of guilt or innocence.
Were the evidence overwhelming but impeachment unlikely because Congress could not be legally provided the evidence, then indictment would be in order, the memo said. If the evidence "is less than overwhelming," it added, "then this office should find a lawful way to turn over the evidence."
Jaworski had "no doubt" that the Watergate grand jury wanted to indict Nixon, but he was against it. He said an incumbent president could certainly be indicted for murder, but he had "grave doubts" that he was indictable for the offense of obstruction of justice, especially when the House was engaged in an inquiry to determine whether he should be impeached on that basis.
Jaworski felt that impeachment should come first, but at the same time he voiced doubts in a Jan. 8 memo to his top deputy, Henry Ruth, about being able to "come to the aid of the impeachment process" without trampling on the fair trial rights of the White House aides they were about to indict.
Upset by rumors that Jaworski was reluctant to take any action against Nixon, Rient and three other prosecutors sent Jaworski a strongly worded memo on Feb. 12, reminding him of his mandate to "investigate and prosecute allegations involving the president" and urging him to have the grand jury make a clear statement of its belief that "the President acted criminally," either by indictment or presentment. To do less, they suggested, would be a dereliction of duty.
Jaworski blew up, accusing prosecutor Richard Ben-Veniste at a Feb. 13 meeting of being behind the memo (Ben-Veniste denied it) and saying he did not favor indictment, presentment or even naming Nixon as an unindicted co-conspirator. He said he just wanted the grand jury to transmit certain tapes to the House Judiciary Committee "in case" they were relevant, without any summary or analysis of their contents.
"In retrospect," Ben-Veniste and fellow prosecutor George Frampton wrote in their book, "Stonewall," Jaworski apparently wanted "not to get out ahead of public opinion, not to appear to be 'challenging' the President on the basis of evidence not yet in the public domain." But eventually, he agreed to the factually worded "road map" for the House and to naming Nixon as an unindicted co-conspirator in a manner that would keep the designation secret for months.
Chief U.S. District Judge John J. Sirica accepted the "road map" and the bulging briefcase from grand jury foreman Vladimir Pregelj on March 1, 1974. Hinting that it might take further action of its own, the grand jury said it would "presently defer" to the House panel. After an unsuccessful appeal by Nixon's indicted top aides, Sirica sent the report to the House Judiciary Committee.
Now a Clinton defender who contends that the president's "private" activities are not impeachable, Ben-Veniste said he supposes that Starr will also go through his grand jury and the court to submit his report to the House. "I think that would be more prudent," Ben-Veniste said. "My hunch is Starr will try to be careful here."
© Copyright 1998 The Washington Post Company