November 19th, 2019


Presidents and Impeachment: Richard Nixon and the Firing of Archibald Cox

Archibald Cox Jr. was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy. He had been an expert on labor law and was also an authority on constitutional law. The Journal of Legal Studies has identified Cox as one of the most cited legal scholars of the 20th century. Cox became famous when Attorney General nominee Elliot Richardson appointed him as Special Prosecutor to oversee the federal criminal investigation into the Watergate burglary and other related crimes that became popularly known as the Watergate scandal. Cox had a famous and dramatic confrontation with President Richard Nixon when he subpoenaed the tapes the president had secretly recorded of his Oval Office conversations. In response, Nixon directly ordered Cox to cease seeking any further tapes or presidential materials. When Cox refused, Nixon fired him in an incident that became known as the Saturday Night Massacre.

On May 16, 1973, Cox, who was a profession at Berkley, received a call from Secretary of Defense Elliot Richardson, President Nixon's nominee for attorney general. Richardson asked Cox if he would consider taking the position of Special Prosecutor in the Watergate investigation. It was the day before his 61st birthday, and Cox had woken up that morning without hearing in his right ear (a condition his doctor would tell him a few days later was permanent). This almost made him refuse Richardson's request. Richardson had attended Harvard College and Law School, where he had been a student of Cox's. Despite Richardson's affiliation with the Republican Party, in 1967 Cox had supported Richardson in the latter's successful bid for for attorney general of Massachusetts.

Cox accepted an appointment to investigate "all offenses arising out of the 1972 election involving the president, the White House staff or presidential appointments." It was not limited to Watergate. Cox was given discretion to decide "whether and to what extent he will inform or consult with the attorney general" on any matter being investigated. The White House thus lost its access to the investigation. Cox was also granted the right to discuss his findings and progress with the press at his discretion. Finally, Cox could be dismissed only by Richardson for "extraordinary improprieties". At his hearing before the Senate Judiciary Committee, Cox said that the only restraint the president or the Justice Department had over him was to fire him. He vowed to follow the evidence even if it led "to the oval office."

Nixon publicly welcomed the selection, but privately he seethed with anger. In his memoir he said: "If Richardson searched specifically for the man whom I least trusted, he could hardly have done better." There was some skepticism that Cox was"too soft—not nasty enough." Nixon believed that Cox's association with the Kennedy family underscored his partisan nature.

Cox hired James F. Neal, the U.S. attorney who obtained the conviction of Jimmy Hoffa in 1964 for jury tampering, to join his team and Neal became Cox's second-in-command and chief trial attorney. On June 3, published reports said that White House Counsel John Dean would testify that he had spoken to the president about Watergate 35 times. The White House refused to release logs of their conversations, but that they would not be turned over on the ground that they were covered by "executive privilege." Cox had to craft a reasonably specific subpoena that might be enforced in court.

Nixon's defense team was made up of former Democrat Leonard Garment, University of Texas constitutional law professor Charles Alan Wright, and J. Fred Buzhardt. Cox made a number of requests, including the tape of the conversation between Nixon and Dean. Nixon's lawyers argued that executive privilege applied not only to presidential documents but ones of his aides such as H. R. Haldeman and John Ehrlichman. No resolution was arrived at.

Nixon's lawyers sent Cox a package containing the logs of presidential meetings and telephone conferences with key aides, including Dean, Haldeman, and Ehrlichman. The documents proved helpful in drafting subpoenas sufficiently specific to obtain documents, and later tapes, when their existence became known.

On July 6, American Airlines admitted that it made an illegal $55,000 campaign contribution to Nixon's personal lawyer Herb Kalmbach. Within the next two months the Special Prosecutor's office would uncover illegal contributions by Ashland Oil, Gulf Oil, Goodyear Tire and Rubber, Minnesota Mining and Manufacturing, Phillips Petroleum, and Braniff Airlines. Herb Kalmbach was scheduled to testify before the Senate Watergate Committee on July 16. But instead, Haldeman's aide Colonel Alexander Butterfield was inserted as a "mystery witness." During his 30-minute testimony he revealed the secret taping system that was installed in the Oval Office, the president's office at the Executive Office Building, and at Camp David. This was a voice-activated mechanism designed to capture everything spoken by or to the president. The existence of the tapes was the biggest piece of evidence unearthed by the Senate Watergate Committee.

The tapes would show that Dean's account was accurate, making the president complicit in obstruction of justice. On July 18 Cox sent Buzhardt a written request for eight specific tapes. On July 23, the request for the tapes was denied on grounds of executive privilege and separation of powers. That evening Cox had a grand jury subpoena demanding the eight tapes and three other items[x] served on Buzhardt who accepted on behalf of the president.

On July 26, Chief Judge John J. Sirica received a letter from Nixon responding to the subpoena in which he asserted that it would be as inappropriate for the court to compel him as it would for him to compel the court. He was therefore not producing the tapes. Cox was able to convince a grand jury to request that Judge Sirica issue an order to Nixon to show cause why there should not be prompt compliance with the subpoena. Sirica had the members individually polled and issued the order. Sirica allowed the parties a month to brief the issue, which came for a hearing on August 22. Cox argued that there was "strong reason to believe the integrity of the executive office has been corrupted". He said that since Nixon permitted his staff to testify about the meetings covered by the tapes but refused to turn over the tapes themselves, the tapes would be the better evidence of what transpired.

On August 29, the court ordered the president to deliver all the material to him for review. Judge Sirica ignored the national security argument. The White House quickly announced that Nixon would "not comply with the order." Nixon launched an appeal and the Circuit Court of Appeals ordered the proceedings expedited, scheduling argument for the following week before the entire circuit. The Circuit Court's recommendation was that the parties come to an arrangement whereby the president would submit portions of the tapes to Cox and Wright who would decide with Nixon what portions would be submitted to the grand jury. Cox announced that he was willing to discuss the matter with the White House lawyers. Nixon refused to to negotiate.

Meanwhile, Donald Segretti had agreed to plead guilty to three counts of illegal campaign activity. It was now preparing a perjury indictment against Dwight Chapin. Perjury indictments were prepared against John Mitchell and Egil Krogh. Krogh was indicted on October 11. After the Krogh indictment, Richardson met with Cox on October 12. The break-in of Daniel Ellsberg's psychiatrist's office was still claimed by the White House to involve national security matters, and Richardson and Cox had an agreement that Cox would notify the attorney general before any indictment in that matter was filed. Richardson wanted to know why he was not notified. Cox explained that the agreement did not involve perjury indictments, which he said could not betray national security secrets, since they would involve public testimony. Richardson agreed with this assessment.

That same day, the Circuit Court of Appeals had filed their decision just after 6 p.m. In a 5–2 decision the Court of Appeals ruled against Nixon. Cox was also to be given access to the material requested. The court said, "any concern over confidentiality is minimized by the attorney general's designation of a distinguished and reflective counsel as Special Prosecutor."

Cox met Richardson at 6:00 p.m. on Monday, October 15. Richardson conveyed Nixon's proposal to have Senator John Stennis authenticate transcripts of relevant portions of the tapes. Cox did not hear from Richardson the rest of Tuesday or Wednesday. Cox was opposed to the proposal. Senator Stennis, a Nixon supporter, was partially deaf and had only recently had recovered from a near fatal gunshot wound in a mugging in January.

On Thursday, October 18, Cox drafted an 11-point reply to Richardson. Cox felt that it was unfair to depend on one individual to be responsible for verification, so he proposed Neal's idea of three mutually acceptable persons. He commented on the method for determining what portions would be transcribed and suggested that the tapes be subject to analysis for tampering. Richardson around 6 p.m. brought it to the White House. Nixon's counsel Wright responded with four points. On Friday October 19 at 7:20 Richardson phoned Cox at home and read him a letter he just received from Wright informing him that the Stennis plan had been agreed to by the leadership of the Senate Watergate Committee and that Cox would be instructed to not pursue any further presidential material. A statement was to be released that night. The statement claimed that the plan had the approval of Senators Sam Ervin and Howard Baker, who, the statement falsely said, were the ones who proposed Senator Stennis. Cox had refused to agree, but Nixon planned to take the proposal to Judge Sirica and instructed his lawyers not to seek Supreme Court review. Cox saw the statement as riddled with falsehoods. Cox issued a press release announcing there would be a press conference on Saturday, at 1:00 p.m. The next day at the press conference, Cox revealed the Nixon plan. He did not consider himself bound by the president's directive. Cox defended Elliott Richardson as being honorable.

In response, Nixon decided to fire Cox. Neither Richardson nor his deputy William Ruckelshaus would agree to carry out the order. Each resigned, rather than follow Nixon's order to fire Cox. Solicitor General Robert Bork (third in line at the Justice Department) in a face-to-face meeting with the president agreed to issue the order as the acting attorney general. Unlike his two former superiors, Bork chose not to resign. Bork sent a written order to Cox by messenger that evening to Cox's home.

At 8:25 p.m. press secretary Ron Ziegler announced what would later become known as the "Saturday Night Massacre." He explained that Cox had been fired. He added, inaccurately, that "the office of the Special Prosecution Force has been abolished as of approximately 8 P.M. tonight." Chief of Staff Alexander Haig directed the offices of the Special Prosecutor to be publicly sealed, as well as those of Richardson and Ruckelshaus. He told the press: "You would turn the country into a banana republic if you allowed defiance of the president." FBI agents showed up at the Special Prosecutor's offices at 9:00 p.m. and briefly prevented deputy prosecutor Henry Ruth from entering. Staffers inside were told they were not permitted to remove any documents, official or personal. Cox's statement on his termination read: "Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people."

Nixon's actions had the opposite effect to what the president had anticipated. They led to a mass of protest that permanently damaged Nixon's credibility with the public as well as with Congressional Republicans and Southern Democrats. About 450,000 telegrams and cables reached the White House and Congress. Outside the White House, marchers held signs saying "Honk for Impeachment". Car horns were heard in downtown Washington day and night for two weeks. The next day John B. Anderson, Chairman of the House Republican Conference, predicted that "impeachment resolutions are going to be raining down like hailstorms." George H.W. Bush, then Chairman of the Republican National Committee, visited the White House, hoping to persuade the president to rehire Richardson. On Tuesday, Speaker Carl Albert began referring impeachment resolutions to the House Judiciary Committee with the consent of Gerald Ford.

On Tuesday afternoon lawyers from the Special Prosecutor's force as well as Nixon's lawyersmet in the courtroom of Judge Sirica, for further proceedings on the subpoenas. Sirica drafted an order to show cause why Nixon should not be held in contempt. Nixon's lawyers announced that the president was prepared to produce all the material ordered.

Leon Jaworski was layer appointed Special Prosecutor. Because of Nixon's wounded public standing, he was given even more independence than Cox had. Cox had a brief farewell meeting with his staff (all kept by Jaworski), telling them how important it was that they continue and assuring them of Jaworski's good faith. He and his wife Phyllis then drove off in their pickup truck to their home in Brooksville, Maine.

Happy Birthday James Garfield

On November 19, 1831 (188 years ago today) James Abram Garfield, the 20th President of the United States, was born in Moreland Hills, Ohio. He was the youngest of five children born to Abram and Eliza Garfield. His father, who was known locally as a wrestler, died when Garfield was 18 months old. The future president was raised by his mother, who said of her youngest child, "He was the largest babe I had and looked like a red Irishman."

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Raised in poverty, Garfield worked at many jobs to finance his higher education at Williams College, Massachusetts, where he graduated from in 1856. He was a preacher at Franklin Circle Christian Church in 1857 and 1858, making him the only President to have served as a clergyman. He married Lucretia Rudolph in 1858 and, in 1860, was admitted to practice law in 1861, while serving as an Ohio State Senator from 1859 to 1861.

Garfield was opposed to Confederate secession, and served as a Major General in the Union Army during the Civil War. He fought in the battles of Middle Creek, Shiloh and Chickamauga. He was first elected to Congress in 1862 as Representative of the 19th District of Ohio. Garfield gained a reputation as a skilled orator in congress. He was Chairman of the Military Affairs Committee and the Appropriations Committee and a member of the Ways and Means Committee. Garfield initially agreed with Radical Republican views regarding Reconstruction, but later favored a moderate approach for civil rights enforcement for Freedmen. Garfield served nine consecutive terms in congress.

In 1880, the Ohio legislature elected him to the U.S. Senate. In that same year, the Republican National Convention ran into a deadlock as the three leading Republican presidential contenders – Ulysses S. Grant, James G. Blaine and John Sherman – failed to garner the requisite support at their convention. Garfield became the party's compromise nominee for the 1880 Presidential Election and successfully campaigned to defeat Democrat Winfield Hancock in the election. He is thus far the only sitting member of the House of Representatives to have been elected to the presidency.

Garfield's accomplishments as President included a controversial resurgence of Presidential authority, as opposed to the system of Senatorial courtesy when it came to making executive appointments. He sought to purge corruption in the Post Office Department and he appointed several African-Americans to prominent federal positions. As President, Garfield advocated a bi-metal monetary system, agricultural technology, an educated electorate, and civil rights for African-Americans. He proposed substantial civil service reform, eventually passed by Congress in 1883 and signed into law by his successor, Chester A. Arthur, as the Pendleton Civil Service Reform Act.

Garfield's presidency lasted just 200 days, from March 4, 1881, until his death on September 19, 1881, as a result of being shot by assassin Charles J. Guiteau on July 2, 1881. Only William Henry Harrison's presidency, of 31 days, was shorter. Garfield was the second of four United States Presidents who were assassinated.

An outstanding book about Garfield's assassination is Candice Millard's 2011 work Destiny of the Republic: A Tale of Madness, Medicine and the Murder of a President, a review of which was posted in this community here. In 2016 PBS aired an terrific documentary about Garfield called Murder of a President.