Tuesday, September 4, 2018

Pericopes of the Week: Jaworski and Ervin

Recent television appearances of John Dean led me last week to re-read several Watergate-related books on my shelf. Among these are Leon Jaworski's memoir, The Right and the Power: The Prosecution of Watergate (Houston: Gulf Publishing, 1976), and Sam J. Ervin Jr's The Whole Truth: The Watergate Conspiracy (New York: Random House, 1980). Dean's own Blind Ambition (New York: Simon and Schuster, 1976) and Theodore H. White's Breach of Faith: The Fall of Richard Nixon (New York: Scribner, 1975) also received attention. A short detour took me to the thirty-seventh chapter ("President Nixon and the Crisis in the Presidency") in the fifth edition of The American Constitution, by Alfred H. Kelly and Winfred A. Harbison (New York: W. W. Norton & Company, 1976).

Looking ahead to a future beyond 1976, the latter book ends with the following warning: "Perhaps the most disturbing aspect of the Nixon crisis is that an entire coterie of men who showed little or no understanding of the profound principles underlying constitutional government in the United States were able for some years to exercise effective control of the presidential office. They were at length repudiated. But the kind of challenge they posed can be met successfully in the future only as long as American society is knit together powerfully by a sense of destiny arising out of a common devotion to the underlying values of constitutional liberty" (Kelly and Harbison, pp. 1039-40).

In light of our present political crisis, reading Jaworski (who was appointed special prosecutor after Archibald Cox had been fired in the Saturday Night Massacre) and Ervin (who was the chair of the Senate Select Committee on Watergate) produces multiple moments of deja vu.

Both of these public servants argued (1) that a judge can issue a subpoena for the president to testify before a grand jury (and/or produce subpoenaed evidence for a grand jury, thus severely restricting so-called "executive privilege"); and (2) that a grand jury can at the very least name a sitting president as an unindicted co-conspirator in an indictment.

Ervin went further:

"I reject this theory [that the president cannot be prosecuted for a crime unless he has first been impeached by a majority of the House of Representatives and removed from office by two-thirds of the Senate] on the basis of an extreme illustration. If he is exempt from criminal prosecution until he has been impeached by the House and removed from office by the Senate, the President can constitutionally forestall his impeachment and removal from office, and thus evade responsibility for his criminal acts by perpetrating unpunishable homicides upon a sufficient number of those representatives and senators who think he merits impeachment and removal" (Ervin, p. 99).

Jaworski, who as a practicing Presbyterian occasionally offers commentary of a spiritual nature in this memoir, ends the book with this brief paragraph: "From Watergate we learned what generations before us have known: our Constitution works. And during the Watergate years it was interpreted again so as to affirm that no one--absolutely no one--is above the law" (Jaworski, p. 279).

While Ervin's book is frequently repetitious and occasionally devolves into a dry list of facts ("Haldeman said this.... And then Ehrlichman said this...."), it contains many bon mots. Here are a few:

"I can't resist the temptation to philosophize just a little about Watergate. The evidence thus far introduced or presented before this committee tends to show that men upon whom fortune had smiled benevolently and who possessed great financial power, great political power, and great governmental power, undertook to nullify the laws of man and the laws of God for the purpose of gaining what history will call a very temporary advantage.... The evidence also indicates that the efforts to nullify the laws of man might have succeeded if it had not been for a courageous Federal Judge, Judge Sirica, and a very untiring set of investigative reporters. But you come from a state like  the State of Mississippi, where they have great faith in the fact that the laws of God are embodied in the King James version of the Bible, and I think that those who participated in this effort to nullify the laws of God overlooked one of the laws of God which is set forth in the seventh verse of the sixth chapter of Galatians: 'Be not deceived. God is not mocked; for whatsoever a man soweth, that shall he also reap.'" (Ervin, p. 182)

Ervin quotes Justice Robert H. Jackson: "Men have discovered no technique for long preserving free government except that the executive be under the law" (p. 223).

And Ervin ends his book by summarizing the comments he made to the Select Committee when it submitted its final report to the Senate in June 1974. Here is a brief portion of those remarks:

"[The presidential aids who perpetrated Watergate] apparently believed that the President is above the Constitution, and has the autocratic power to suspend its provisions if he decides in his own unreviewable judgment that his action in so doing promotes his own political interests or the welfare of the nation.... I digress to reject this doctrine of the constitutional omnipotence of the President. As long as I have a mind to think, a tongue to speak, and a heart to love my country, I shall deny that the Constitution confers any autocratic power on the President, or authorizes him to convert George Washington's America into Gaius Caesar's Rome....

"Candor compels the confession... that law alone will not suffice to prevent future Watergates. In saying this, I do not disparage the essential role which law plays in the life of our nation. As one who has labored as a practicing lawyer, a judge, and a legislator all of my adult years, I venerate the law as an instrument of service to society. At the same time, however, I know the weakness of the law as well as its strength.

"Law is not self-executing. Unfortunately, at times its execution rests in the hands of those who are faithless to it. And even when its enforcement is committed to those who revere it, law merely deters some human beings from offending, and punishes other human beings for offending. It does not make men good. This task can be performed only by ethics or religion or morality....

"When all is said, the only sure antidote for future Watergates is understanding of fundamental principles and intellectual and moral integrity in the men and women who achieve or are entrusted with governmental or political power." (Ervin, p. 312)