Three Cheers for the Red, White & Yellow: Prologue to Impeachment
May 9, 1974
WASHINGTON, D.C. — “The most important subpoena in the history of mankind.” That’s what one of the Judiciary Committee Republicans had called it two weeks ago in a heated plea on behalf of the White House request for a five-day extension of the subpoena deadline.
If tonight’s Judiciary Committee meeting is not the Most Important Committee Meeting in the history of mankind, it is, nevertheless, the first time the Rodino Committee will get to vote on Presidential conduct that might ultimately become the basis for impeachment and conviction. It is the first time the Committee’s Chief Counsel, John Doar, will be making a presentation of evidence against the President, the first time we’ll get to see the man who may prosecute the President for the Senate in action.
It’s Wednesday evening, the first of May, less than 48 hours after the President told his TV audience he wasn’t turning over tapes to the Judiciary Committee, subpoena or no subpoena.
No one can remember the last time the Judiciary Committee met in night session, but Rodino had no choice. He’s been postponing this session for two days, reading transcripts and figuring out his plan. He’d like to postpone it even longer because he figures the more time the Republicans on the Committee spend soaking up the transcripts the less trouble they’re likely to cause him. But he’s got procedural hearings scheduled for tomorrow morning, and evidentiary hearings begin next week, tapes or no tapes, so tonight’s the night. (Nevertheless late this afternoon Rodino couldn’t resist ordering one final postponement — from 7 to 7:45 p.m. — presumably to let Committee members catch the 7 o’clock CBS News dissection of the White House edited transcripts before voting upon their adequacy.)
As the 38 Representatives begin filing into their places behind the two sweeping tiers of dais, they each find a single sheet of paper nestled next to the black button and red bulb at the base of their microphone. The single sheet of paper reads:
“Consideration of: The Response of the President of the United States to the Judiciary Committee’s subpoena.”
The Rodino strategy for this meeting is to try and get as many of the 14 Republicans who voted to issue the subpoena originally to join Rodino and his Democratic majority in putting the President on notice that he has not complied with the Committee subpoena. Rodino knows a case can be made for asking the House to cite the President for contempt now, but even if he managed to force a contempt citation by a narrow party-line vote he doesn’t want to waste his time arguing contempt citations on the House floor, further delaying evidentiary hearings. So instead he wants to send a letter.
The letter Rodino has drafted simply informs the President, for the record, that “as of 10 a.m. Tuesday, April 30” he has failed to comply with the Committee’s subpoena. The letter is terse (25 words or less) and formal. The tone of the letter just before the one that says “Since we have not received your check we are turning this matter over to our attorneys.”
Rodino raps his gavel five times, and as the members take their seats they discover that while they were huddling someone has slipped another sheet of paper on top of their agenda sheets.
“MOTION OF JOHN CONYERS TO CITE THE PRESIDENT FOR CONTEMPT OF CONGRESS”
Conyers smiles silently in his seat in the upper tier, looking like he’s biding his time. And he is. He says not a single word for he next three hours, not participating in the battle of the bar-chart, nor the epic letter-writing contest that followed, not saying a single word until the big roll call vote on the “Donohue” motion when Conyers does say a single word, and the single word is “No,” which throws the entire outcome of the vote into doubt.
The session opens with some preliminary wrangling over procedure, but finally Rodino calls upon Chief Counsel Doar to make a presentation of facts about the subpoena and the President’s response.
Enter the bar-chart covered with brown wrapping paper.
Two aides struggle through a door in the rear of the Committee room maneuvering an odd-looking contraption around the tiers and down in front to the counsel table where Doar awaits holding a schoolteacherish blackboard pointer.
It’s a rickety old three-legged easel, this contraption, looking like it was only recently — and barely — rescued from beneath a pile of heavy objects in a musty attic. The wood is gray, chipped, cracked, and spotted with shadowy stains. Splinters fray loose from the edges. This easel has not been put together by a strict constructionist. The aides are having some trouble getting it to stand up on its own three feet. The prop-leg behind the easel (the press can only see the rear of the easel since the chart in front faces the committee) is shaky, and the whole thing seems to be hanging from a crooked nail fastening the top of the prop-leg to the top of the easel.
After establishing a shaky stability, the staff aides proceed to imperil it as they tear the brown paper wrapping off the front of the posterboard chart mounted on the easel. That’s right, the chart has been covered up with cheap brown paper stapled to its sides. With some difficulty and much tottering of the easel the Committee aides tear the last few scraps of brown paper from underneath the staples and retire hastily off stage.
All this amateurishness is touching perhaps when compared with the slick stacks of shiny, Presidential-sealed binders the President used for his show-and-tell presentation Monday night. But the Committee, particularly the Republicans, do not seem charmed by the homespun quality of this exhibition.
Nor are they further entranced when Doar, taking a schoolteacherish pose with his blackboard pointer, and taking on a schoolteacherish tone of voice, begins explaining his bar-chart as if he were dealing with fourth graders.
“Now if you’ll look at the bottom of the chart there are the numbers one through 52,” he begins.
“Now on the first item requested in the subpoena, the 42 tapes or dictabelts, we have received none — which is what this blank space on the chart indicates.”
Then he gets into the colors. The small red and dark red areas on the chart represent the eight tapes transmitted to the Committee by the Watergate Grand Jury in its famous sealed briefcase.
Finally Doar gets to “the yellow area” on the chart. The Committee subpoena had called for tapes, dictabelts, notes, or transcripts” and the yellow area Doar taps with his pointer represents the edited transcripts delivered yesterday morning.
The yellow area is unlike the red and the white areas, Doar points out to the Committee, because the bars of yellow are not full-size bars, and the yellow area is topped by a broken line.
“The reason why the line is wavy here, rather than up to the full line,” Doar explains “was our way to indicate these are partial transcripts.”
While Doar continues his Sesame Street style discourse on the meaning of yellow, the Republicans are beginning to see red. But they are also beginning to see an opportunity.
Most Republicans had gone into this meeting fearing they’d spend the entire evening defending the President’s action. House Minority Leader Rhodes had called them into his office late this afternoon to put last minute pressure on them to back the President’s action or at least to unite against any condemnation of the President. But several Republicans are unhappy about the President’s cavalier treatment of the Committee’s subpoena, and going into the meeting some of them felt they might have no choice but to vote for some sort of resolution slapping the President’s wrist at the very least.
But the appearance of the bar-chart changes all that. There are some very sharp lawyers on the Republican side of the Committee and they began to realize that instead of having a miserable time defending the President they can have a fine time tearing apart the bar-chart.
Moon-faced David Dennis of Muncie, Indiana, peers down at Doar and his chart with visible contempt. “Now Mr. Doar,” Dennis begins in his best steely and abrasive cross-examination voice, “looking at the category of ‘Notes’ on your chart — you have no personal knowledge whether any notes exist at all, do you?”
Doar stumbles around for a bit, and finally admits that neither he nor the Committee knows whether any notes exist for any particular conversations.
“Therefore,” Dennis charges triumphantly, “even though your chart is white or black in this category, as far as your personal knowledge there may have been 100 per cent compliance … if there were none at all and they supplied none.”
Reluctantly Doar concedes this. Dennis doesn’t let up. He forces Doar to concede that he has heard of only one dictabelt, knows its existence only from hearsay, and that as far as the dictabelt category goes, “the President may be in 100 per cent compliance in that category too, is that not true?”
Doar is unable to argue that one either. Dennis continues to tear the chart apart category by category, implying that Doar and his staff are attempting to perpetrate the kind of misleading public relations tricks the White House has been accused of, concluding finally with great moral outrage, “Now Mr. Doar do you think it’s fair to bring in a chart like this…?”
“Can I explain?” Doar asks plaintively. “Of course I think it’s fair, I—”
“You can explain yourself,” says Dennis, now firmly in command of the exchange, “but…” He launches into a recapitulation of the “distortions” on Doar’s chart.
“Now you explain that,” Dennis demands of Doar.
Doar begins a long-winded discourse on the meaning of a subpoena which Dennis proceeds to interrupt. Democrats try to shout Dennis down with cries of “NO, NO” and a visibly irritated Chairman Rodino finally rescues Doar by telling Dennis his time has expired and recognizing a Democrat.
But the next Republican to speak returns to attack not merely Doar’s bar-chart, but the legal slovenliness he implies the chart is attempting to cover up for. He is Charles Wiggins, distinguished, silver-haired congressman from Nixon’s old congressional district. Wiggins is a conservative loyalist, but he has earned the respect of Democrats as an intelligent and judicious constitutional scholar.
Taking a loftier tone than Dennis, Wiggins doesn’t even deign to question Doar, who still stands alone with his pointer beside his embattled bar-chart.
“l think there is a lesson for this Committee in Mr. Doar’s presentation,” Wiggins begins solemnly. The lesson is that “we should be more careful lawyers than we have in the past,” he says, glancing down at Doar.
Wiggins argues that “careful lawyers” in a matter as serious as impeachment would first have sent the White House written interrogatories to establish for the record just what the President says he has before citing him for failure to supply something he might not have.
“But on the contrary,” says Wiggins, “we embark on a subpoena without even knowing if the material exists.”
“We do know there are tapes,” Doar pipes up plaintively.
“Now do we really know that?” Wiggins asks.
Wiggins’ question brings some derisive laughter from the press and public in the committee room, but he may have a legitimate point. Doar acknowledges that the Committee has not officially established what exists and what doesn’t exist, but protests that “it has not been my experience that in order to issue a subpoena duces tecum” there must be a previous accounting of what is to come.
“It is my experience,” says Wiggins with cold certainty. “I can’t agree with the gentleman’s view of common practice.”
Doar is looking worse and worse, but it remains for Delbert Latta, a Nixon partisan from Ohio, but again, a shrewd lawyer, to poke the final hole in Doar’s presentation.
“Why didn’t you say ‘and’ instead of ‘or’ in your subpoena?” Latta asks Doar.
Doar is puzzled. Latta explains that the wording of the subpoena calls upon the President to supply “tapes, dictabelts, notes, or transcripts.”
“Now isn’t it possible for anybody to interpret that in the alternative?” Latta asks. Syntactically, “or” can be read to imply that the President must supply either tapes or dictabelts or notes or transcripts. The President has supplied transcripts, therefore the President has complied with subpoena.
Doar, beginning to sound a little shaky and even Nixonesque, protests that what he meant to say in the subpoena was the the President must supply tapes and notes and transcripts.
“If that’s what you meant, the subpoena should have said ‘and’ instead of ‘or,’ shouldn’t it have?” Latta demands.
In a voice that is almost inaudible Doar says either “I cede that” or “I see that.” (Although Latta’s “and/or” distinction might seem like frivolous hair-splitting, the very next day a Federal District Judge in Washington threw out a perjury indictment drawn up against one Jake Jacobsen in the dairy fund case because the Watergate Special Prosecutor’s office had based the indictment on an exchange in which Jacobsen was asked, “ls that your testimony?” instead of “Is that true?” It was his testimony, it may or may not have been true but it was his testimony. Case dismissed. One would think that a subpoena issued to the President, the greatest subpoena in the history of mankind and all that, could be drawn without the imprecision Doar ceded. If Doar is no match for Delbert Latta, is he ready to take on James St. Clair?)
Delbert Latta leans back, smiles with satisfaction, and gives Doar a magisterial sneer. “Well, Mr. Doar, since you can’t explain what you meant about so many items on your chart I would hope that when you leave you will pick it up and take it with you.”
And not long after Latta finishes with the chart, the two staff aides who brought it in appear, apparently at the direction of Rodino who knows when to cut his losses. They fold up the rickety easel and bear the much abused chart away to the chambers behind the hearing room.
But the damage has been done. Moderate Republicans who had voted for the subpoena and who might have been coaxed into giving a bipartisan blessing to the Rodino resolution have been offended by what they consider a shabby public relations ploy on the part of the Committee’s majority staff. Before Rodino has the chart carted off, Thomas Railsback, Republican of Illinois and an influential voice with the half-dozen potential Rodino supporters among Republicans on the upcoming vote, complains out loud, “I can see the press coming up afterwards. I can see pictures of that reproduced on the front pages of every newspaper. I want to make it clear I’m not completely satisfied with the President’s response, but I don’t want to see it misrepresented.”
And what have the Committee’s Democrats been doing all this time? Rodino makes it a practice to recognize Democrats and Republicans alternately for five
minutes apiece. While the Republicans were using their five-minute allotments to bullyrag Doar and his pathetic bar-chart. Rodino had the Democrats quietly engaged in what seemed to be pre-arranged catechisms with Doar, designed to put on the record a foundation for a vote of non-compliance now and either contempt or impeachment later. Each Rodino loyalist seemed to be assigned a question to ask Doar. Doar is very good with questioners who are polite to him.
Having seen to it that the foundation has been established, Rodino himself addresses the minority staff at the counsel table and asks them if they don’t concur with Doar’s sage judgements.
Undoubtedly had Mr. Albert Jenner, Chief Minority Counsel, been there to answer he would have concurred with Doar and Rodino. But something funny is going on within the minority counsel staff and Mr. Jenner is not there to answer.
At the opening of tonight’s session it was announced that Mr. Jenner would be unable to be present because of a “very important speaking commitment” tonight, a commitment he had made “many months ago” and just could not back out of now, despite the fact that “the most important subpoena in the history of mankind ” was up for consideration.
The suspicion is that Jenner has been told to stay out of town by Republican partisans on the committee who didn’t want their own chief counsel undermining the difficult task they faced trying to defend the President. A call to the minority staff the following day produced no one who could recall exactly what Jenner’s momentous speaking engagement was, nor where. Not even Jenner’s secretary knew. “A dinner for some judge in Michigan I think,” said someone. “At some law school maybe? I don’t know.” (As it turned out Jenner was speaking at the Washataw County Annual Law Day dinner.)
“Anybody can break a speaking engagement,” an aide to a Judiciary Committee Democrat tells me. “I wouldn’t be surprised if they told Jenner to make sure and keep this one.”
So when Rodino addresses “the minority counsel” and asks him whether he thinks the President is in a state of non-compliance with the Committee’s subpoena, he’s not addressing genteel non-partisan Albert Jenner. He’s addressing hard-line Republican loyalist Sam Garrison, who is not about to make things easier for Rodino and Doar.
“Compliance depends on whether the Committee thinks he is in compliance,” Garrison says. He concedes that “literally” the subpoena “has not been complied with” but he adds that the Committee is not yet “in a state of litigation on the question of compliance so that the President is not yet in a state of compliance or non-compliance, and whether the Committee holds the President in non-compliance depends on whether the Committee thinks he is in non-compliance and places itself in a state of litigation in which case “there are questions of actual non-compliance as opposed to literal non-compliance which…”
Rodino shrinks in horror from this tangled metaphysical thicket and decides it’s about time to move toward a vote. He recognizes, at last, his right hand man, Harold Donohue.
Now it has become common in various press profiles of Committee members to make sport of Harold Donohue. A waning attention span, and the tolls of advancing age are some of the kinder phrases applied to this delightful-looking old gentleman. But if Harold Donohue is a fool, he is a fool of the Shakespearian order, possessed of a special wisdom which places him high above the minor courtiers and knaves on and off the committee who make fun of him.
Equipped with a zen-like clarity of vision, Donohue does not shrink from that thicket of “states of mind” and “states of litigation” which minority counsel Garrison has conjured up.
“Tell me,” Donohue says to Garrison, “when the subpoena said tapes it was your understanding it meant tapes, is that not so?”
Stunned for a moment by a certain inevitability about this line of reasoning, Garrison tries to slide away into “states of litigation,” but before he can get far Donohue brings him up short:
“Please, as a professional man!” he exclaims. It is his was of saying “Shame on you.”
When Garrison continues, unashamed, to argue states of literal and actual compliance, Donohue gives up trying to bring him back to his senses, summarily silences him, and begins to read the motion written out for him.
“I ask the unanimous consent that the Chairman be authorized to send a letter to—”
“Objection!” Half-dozen Republicans shout it at once.
“In view of the objection,” says Donohue. “I move that the chairman be authorized to send a letter to the President…”
His name is William Cohen, he’s a Republican from Maine, and he’s got a letter of his own he wants the Committee to send to the President. He stands up at his desk on the bottom tier while debate on the “Donohue” resolution is droning on and starts handing out Xeroxed copies of his letter. Railsback helps pass them along the top tier.
Cohen, who looks and dresses like a recent ex-jock, wears a perpetually earnest and troubled look on his face. He has quoted “Murder in the Cathedral” for Jim Naughton of the Times and he seems too have been re-reading “The Hollow Men” lately.
“When I voted to issue this subpoena,” he tells the Committee when he gains his five minutes, “I did not consider it to be a hollow act. I considered it an act that had all the history of this great body to sustain it,” he says solemnly.
Cohen reads his letter. While Rodino’s letter had a certain poetic reticence in its terse 25 words, Cohen’s is an epic by comparison, literally 10 times longer.
While Rodino’s single sentence puts the President on notice that he has already irrevocably “failed to comply.” Cohen’s letter has the Committee apologetically “regret to advise you, however, that…these transcripts do not represent full compliance.” (My emphasis.)
Then Cohen’s letter gets into a long sympathetic acknowledgement of the President’s concern for “protecting the office of the President against dissemination of information that is of a national security nature or that is irrelevant or beyond the scope of the Committee’s investigation.” He concludes by mentioning some of the Committee’s dissatisfactions with receiving only edited transcripts, and makes a plea for a negotiated settlement between the White House and the Committee.
As it stands Cohen’s proposed text is far too weak a compromise to pose a threat to Rodino’s position. But then one of Rodino’s usually loyal Democrats, Representative Walter Flowers of Alabama, proposes a complicated amendment to Cohen’s letter. Playing Pound to Cohen’s Eliot, Flowers details a cutting and editing job on Cohen’s letter ( “Now on line 14 skip the part where begins…then jump down to the end of the line…etc.”) that leaves everyone entirely bewildered. Finally Flowers reads his revised version out loud from beginning to end. He’s cut out Cohen’s flabby middle with its solemn obeisance to “national security,” he’s tightened up some vague passages toward the end and added a pledge of “confidentiality.”
Cohen announces he accepts Flower’s entire amendment. Now the new Cohen/Flowers letter is not much different from the Rodino letter. It goes a little further, in fact, by detailing the Committee’s objections to the White House response to the subpoena.
And although one crucial difference between Cohen’s original letter and Rodino’s has not been affected (the Flowers/Cohen letter says the President’s edited transcripts “do not represent full compliance” while the Rodino letter flatly tells the President he has already failed to comply), nevertheless the Flowers/Cohen proposal puts Rodino in a delicate position.
If he agrees to back down from his tougher letter and accept this bipartisan compromise Rodino has a chance of getting at least three and perhaps as many as six or seven Republican votes behind him. Of course he might lose four or five Democratic votes from liberals who couldn’t live with the somewhat fawning tone of the Flowers/Cohen letter.
If Rodino gains Republicans and loses Democrats he’ll only win by a narrow majority, but it will be a narrow bipartisan majority. If he pushes ahead with his own letter he’ll probably win with a narrow majority, but it will be a “narrow straight party-line majority,” that’s what they’ll say in the newspapers. And if he cracks the whip to defeat the Flowers/Cohen letter he risks losing the vote of Flowers who is now acting somewhat unpredictably and losing also perhaps the vote of James R. Mann, the other Southern Democrat on the Committee. That would reduce Rodino’s operating majority to an unstable 20 to 18 margin, or wipe it out entirely, ending the evening with a 19 to 19 tie, rendering the Committee inoperative, the Chairman powerless, and the President triumphant.
So Rodino might well be tempted to support the Flowers/Cohen letter, might well be scared not to. On the other hand, giving in to a weakened statement of a basically weak gesture in the first place before putting his own text to a vote would be abandoning leadership of his own Committee without a fight.
Republicans are standing up and conferring on their wing of the dais, but Rodino stares straight ahead. He doesn’t go for caucuses in the middle of his meeting. On matters of tactics like this he makes his judgment, gives his signal, and expects those loyal to him, those who want to make the Committee work, will follow orders.
Rodino’s vote always comes last in the roll call, but Harold Donohue’s always comes first. And Harold Donohue’s vote signals the way Rodino wants his loyalists to go.
Donohue votes a gruff “No” on the Flowers/Cohen motion. Rodino has decided — as they say in the transcripts — to “tough it out” for his original plan.
All but a few Democrats follow Donohue’s lead and vote No. The Republicans split. About half of them vote for the Flowers/Cohen letter, some because they are genuinely dissatisfied with the President’s response, some because they want to pass the weakest response to the response they possibly can. Nixon loyalists vote against the Flowers/Cohen amendment, considering any reprimand to the President tantamount to a vote for impeachment. So an unusual coalition of Rodino loyalists and Nixon loyalists crushes the Flowers/Cohen motion 27 to 11.
By 11:15 p.m. when the Rodino motion itself finally comes up for a vote most everyone is expecting a straight party-line vote: 21 Democrats for, 17 Republicans against. Not the bipartisan blessing Rodino wanted — Doar’s disastrous bar-chart probably cost him that — but nevertheless a re-affirmation of the Chairman’s ability to get what he wants from his committee when he needs it.
The call of the roll begins. Donohue opens with a ringing “AYE,” followed by reassuring AYES from Democrats Brooks, Kastenmeier, and Huntsgate.
Suddenly, however, things seem to slip out of Rodino’s hands. The fifth name is Conyers and Conyers says NO.
Heads turn all over the committee room. Conyers’s defection reduces Rodino’s party-line majority to 20 to 18. If Rodino loses one more Democratic vote, Flowers for instance, he’s down to a 19 to 19 tie, and that’s as good as losing.
And then, the seventh name on the roll call: another surprise. The seventh name is Waldie, and Waldie votes No.
Over on the Republican side they’re almost twisting in their seats with anticipation. They’ve got Rodino tied up and maybe beaten for the first time.
Flowers comes through with a loyal Yes vote for Rodino, as do the remaining 12 Democrats. But as the clerk starts calling the roll of Republicans, Rodino knows he needs one Yes vote to save himself. The first four Republicans, predictably enough, vote No. Then the clerk calls out Railsback. His vote usually signals how the handful of Republican moderates will go. Railsback votes an emphatic No. As No after No follows, it’s beginning to look like Rodino’s letter to the White House will never get mailed.
But then, in one of those rare moments of genuinely thrilling roll call melodrama Mr. Cohen of Maine, the sixth from last to vote, votes Yes, thereby saving Rodino and his impeachment inquiry from an embarrassing display of helplessness. Cohen’s vote inevitably summons up the name of Senator Ross, the Republican who abandoned his party to cast the deciding vote against the impeachment of Andrew Johnson. With Rodino’s majority obviously much shakier than many had thought, the spotlight may fall increasingly upon the earnest troubled Cohen of Maine in crucial tie-breaking votes.
And Conyers. What was he up to? According to one of his aides, Conyers’s vote was not an abrupt betrayal of his chairman. “All I can tell you is that the vote came as no surprise to Rodino,” the aide says. (If that is so, Rodino is a far better poker player than anyone had suspected. He was conducting the entire meeting, rejecting the Flowers/Cohen compromise, moving ahead with what seemed like total confidence, all the while knowing that he might not have the votes to get anything at all.)
Shortly before midnight, Conyers introduces his contempt citation. He explains he could not be content with sending a meaningless letter when the President has defied the law.
“Because this is ‘Law Day,’ ” Conyers says, “we ought to begin it or at least close it by ordering the President to obey the law.” He cites the law: “U.S. Code Title Two Section 192.”
Waldie seconds the motion, and speaking in support of it, puts Rodino on notice that the Chairman can no longer count on his vote for proposals which sacrifice the inherent powers of the Committee to preserve a face of “bipartisanship.”
Rodino gets angry. “What do you want us to do?” He asks Conyers rhetorically. “Summon the President before the bar of the House to cite him for contempt? Take him into custody…?”
Conyers does not look too upset about that scenario. Rodino urges the Committee to vote against the Conyers proposal. On a roll call vote Conyers’s motion to enforce the law is tabled 33 to four.
The following morning I ask Cohen of Maine what kind of reaction he’d received to his tie-breaking vote.
“I’ve gotten calls from many people in the House supporting me,” Cohen said.
“That’s right, Republicans,” he insisted proudly.
“Do you get a premonitory feeling that you’re going to end up being the Senator Ross in this case?” I ask Cohen. “I mean being the only Republican who—”
“Becoming the Senator who?” Cohen asks me with an earnest but troubled blank look.
“Senator Ross — the one JFK wrote about in ‘Profiles in Courage’ — who cast the deciding vote in the Andrew Johnson impeachment and—”
“I certainly hope not,” says Cohen.