November 7, 1973
Page 36143
PROCESS FOR RESOLVING OUR CONSTITUTIONAL CRISIS
Mr. HART. Mr. President, the events of recent days have focused sharply for most Americans the constitutional crisis that faces us: Whether the President can retain the confidence of the American people and the ability to govern, or whether he has violated his trust of office and must be removed.
My distinguished colleague from Maine, Senator EDMUND S. MUSKIE, recently delivered a speech containing a thorough and thoughtful analysis of this question. Senator MUSKIE concluded that the President's recent actions – including not only his failure at that time to have obeyed a final court order, but his dismissal of Special Prosecutor Cox – have thrust upon the American people a constitutional crisis which demands resolution. And impeachment, Senator MUSKIE explained, is the only process in the Constitution for resolving this crisis.
The escalating crisis in world affairs, and the developments in the Watergate case since Senator MUSKIE spoke, have not resolved the fundamental questions raised in Senator MUSKIE's speech or restored the credibility of the President. The continuing importance of those questions, and the gravity of the constitutional crisis that faces us, have been described in several thoughtful recent comments – editorials of the Washington Post and the New York Times, and a column by James Reston.
I commend Senator MUSKIE's speech to my colleagues and ask unanimous consent that it be printed in the RECORD, together with the editorials and column to which I have referred.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
SPEECH BY SENATOR EDMUND S. MUSKIE,
UNIVERSITY OF TOLEDO,
OCTOBER 23, 1973
Last Saturday night I made the following statement: I believe that these events are of such gravity and consequence to our form of government that the House of Representatives should consider holding hearings on the impeachment of the President. What the President has done threatens to destroy our system of laws. Unless Congress responds in the only way provided in the Constitution for resisting such a usurpation of authority, we endanger our country's future.
I want to expand today upon that statement.
The events of last week force us to consider seriously a course of action from which we instinctively shrink. As an officer elected by all the people to govern, the President commands a respect and carries a responsibility with which no one would lightly or maliciously interfere.
But, as the executor of the laws that cement our society, the President remains ultimately subject to the law and to the procedures for its enforcement. As the Court of Appeals observed ten days ago, "Though the President is elected by nationwide ballot, and is often said to represent all the people, he does not embody the nation's sovereignty. He is not above the law's commands."
A crisis the President himself has set in motion now requires us to determine what those commands are and whether or not the President has set himself above the law. To make that determination about the President's behavior in the conduct of the Watergate investigation, I believe we must now begin the hearings in the House of Representatives which are the first step toward the presentation of formal impeachment charges.
It is possible that before that process ever culminates in a Senate trial, we might find other means of resolving our crisis. But while we search for those avenues of accommodation, we should use the instruments the Constitution provides to set limits on the conduct of the President.
I
When ordinary standards of behavior governing the relationship of citizen to citizen
or of citizens to the state are violated, the offenses are investigated and, if proved, are punished. So when action by the President seems to offend our basic Constitutional standards, the other representatives of the people are obligated to examine that action, to weigh official conduct in a given case against accepted rules of conduct, and to pronounce a final judgment.
I view impeachment, then, as a means, not an end, and I speak today of the process, not of any foreordained outcome. We cannot, obviously, be committed to a verdict before knowing the charges. But we have come to a moment, in my judgment, when the mechanism of impeachment is the surest way in which we can examine the charges and determine their resolution.
The Constitution gives us but one process to enforce on a President the principle that the law is supreme. When the Executive ignores the commands of the courts and abuses the trust of the people, the impeachment process offers us the surest remedy.
By beginning that process now, the House of Representatives will have the opportunity to determine directly and openly whether there should be a trial on removing the President from office for violating the order of the courts, for dismissing the special prosecutor, or for other actions which James Madison defined as "contradiction of justice." If the House determines that a trial should be held, the Senate, with the Chief Justice of the United States presiding, undertakes to pass final judgment on the President's case.
II
In his study of the Presidency, Clinton Rossiter speaks of the political limits on the office. "The President," he wrote, "draws immense authority from the support of the American people, but only if he uses it in ways that they understand, and approve, which generally means ways that are fair, dignified, traditional and familiar ... If he knows anything of history or politics or administration, he knows that he can do great things only within 'the common range of expectation,' that is to say, in ways that honor or at least do not outrage the accepted dictates of Constitutionalism, democracy, personal liberty and ... morality."
In the dismissal of Archibald Cox as Special Watergate Prosecutor and the threatened abandonment of the independent investigation of the Watergate scandals, the President betrayed the expectations of many Americans and outraged those standards.
Those expectations were bolstered by the President's promise early in May that he would not claim executive privilege to prohibit testimony by White House officials concerning possible criminal conduct in the Watergate affair and the alleged cover-up. They were increased by his statement calling for a full resolution of the issues of wrongdoing in the courts, the corollary to his attack on the Senate Watergate hearings. And those expectations finally centered on the hope that the independent special prosecutor the President appointed, at the insistence of the Senate, would be free to pursue justice to final judgments of guilt or innocence and would, through that pursuit, allow us all to make a judgment on the President's conduct.
Now – in removing the special prosecutor – the President has undercut those hopes and the achievement of that objective.
III
No one denies the Chief authority to fire any insubordinate official in the Executive Branch. But the role Mr. Cox filled was an exceptional one. By eliminating that role – not just the man who undertook it – the President has broken his word and his contract to Mr. Cox, to the Congress and to the country.
The office of special prosecutor represented concrete proof of a proposition that had been and is now again in doubt – the ability of the Executive Branch to investigate itself and punish its own officials. Ever since former White House officials were charged with the burglary of the Democratic Party headquarters, the country has wondered how those charges – and all the others that have grown from them – could be fully and fairly prosecuted by close personal and political associates of the suspects themselves.
The old maxim that no man can be a judge in his own case required some outside, independent investigation and prosecution of the multiplying suspicions that the highest officers in the government had engaged in the lowest political practices. Finally, this spring, when Elliot Richardson was nominated Attorney General, the Senate made the confirmation of a new Attorney General conditional on the appointment of a special prosecutor with independent authority.
In the charter creating that office, Elliot Richardson, the President's nominee for Attorney General, committed himself and the President to give Mr. Cox complete freedom of action. "In particular," the order of the Attorney General declared, "the special prosecutor shall have full authority ... for ... determining whether or not to contest the assertion of 'executive privilege' or any other testimonial privilege ... the Attorney General will not countermand or interfere with the special prosecutor's decisions or actions ... the special prosecutor will not be removed from his duties except for extraordinary improprieties on his part." And the President himself promised, on May 9th, that "the special prosecutor ... will have the total cooperation of the executive branch of this government."
Last Friday, the President, in effect, revoked that charter which gave the special prosecutor independent status, and undertook to direct him, as an ordinary employee of the executive branch, "to make no further attempts by judicial process to obtain tapes, notes, or memoranda of presidential conversations."
The special prosecutor rejected that direction, and the President's substitute of a personal summary of the tapes, to be reviewed by Senator Stennis, for the following reasons:
"The instructions are in violation of the promises ... made to the Senate ... and my pledge to invoke judicial process to challenge exaggerated claims of executive privilege."
"Acceptance ... would defeat the fair administration of justice."
"It would deprive prosecutors of admissible evidence in prosecuting wrongdoers who abused high governmental office."
"It would also enable defendants to go free, by withholding material a judge ruled necessary to a fair trial."
IV
By changing the rules in the middle of the contest, the President revoked his pledge to the Senate.
And he thus cancelled the commitment he had made to the whole country that the Watergate investigation would be conducted without any further political interference.
By that act he has raised the basic issue of presidential power to restrict an investigation of paramount importance to the public. Let me just remind you what the public interest in this inquiry is.
We are not confronted by questions of petty criminality.
We are faced, instead, with charges – many of them already substantiated in convincing part – of an unparalleled conspiracy to defraud the people of their right to an honest election and of a further conspiracy to defraud the courts of their power to administer justice.
Charges that spies and saboteurs were paid to disrupt a political campaign.
Charges that officially authorized burglaries were committed against a private doctor's office and a political party's headquarters.
Charges that suspects and key witnesses were offered bribes to keep them silent or promises to encourage them to lie.
Charges that journalists and government officials illegally lost their privacy to official wiretappers, acting without court warrant.
Charges that independent government agencies were pressured to abandon their impartial responsibilities in order to harass and intimidate critics of the Administration and to show favoritism to friends.
Charges that the head of the F.B.I. was ordered to destroy evidence.
Charges that top officials of the C.I.A. were ordered to violate their agency's charter against interference in internal affairs.
Charges that a Federal judge was offered promotion while presiding over a crucial and controversial case.
And charges that a secret police agency was established in the White House with authority to break the law in order, supposedly to protect national security.
Some of these acts allegedly involved the direct participation and decisions of the President.
Most of them involved men in the White House acting with what they took to be presidential authority and approval. Much of their behavior appears grossly improper and some of it, in the preliminary judgment of grand juries, was illegal.
V
But the overriding concern about all these actual and suspected breaches of law is the degree to which they were proper or improper exercises of presidential authority. A clearly important if not crucial means of deciding that question depended on the impartial examination of evidence in the President's custody.
VI
The President now says he will not make all of that evidence available to outside scrutiny and those portions of it which he will release will appear only in a statement prepared by him personally and authenticated by Senator Stennis. In making that decision he relies on his claim to absolute discretion over what information in his possession will be disclosed to the Congress, the courts and the people. That claimed discretion – only since 1958 has it been called executive privilege – is the heart of the political question we face.
For the present, the October 13 ruling of the U.S. Court of Appeals on that claim is the binding legal standard. Based on that standard, the judges ordered the delivery of the tapes to Judge Sirica and said: "The President's privilege cannot ... be deemed absolute. ... [A]pplication of executive privilege depends upon a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case."
The central question of the limits of presidential discretion – including executive privilege – has become acute. And the impeachment process, as I suggested, appears now the best forum in which to seek an answer to that fundamental question.
VII
The primary concern of the men who wrote our Constitution was their fear of tyranny – by a monarch or by a mob. That fear explains the unique safeguards they built against abuse of power.
Their fundamental invention was the division of power among three separate branches of government under the rule of law. That structure gave each branch enough authority to carry out its own responsibilities, but it also denied any single branch the concentrated power to evade the control of the other two or, ultimately, the control of the people.
In practice, that ingenious and delicate balance has withstood severe tests. It has given us a government responsive both to the ordinary demands of overseeing the welfare of a continental nation and to the extraordinary demands of domestic and international crisis.
But as Justice Brandeis once observed, "The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental power among three departments, to save the people from autocracy."
VIII
In the Watergate affair, the President has laid claim to uncontrolled power. Some may challenge the claim from fear that it is made to block an inquiry that might deeply embarrass the President.
But, more importantly, we must challenge the power behind the claim, because such authority – uncontested – could undo the whole balance of power that has made the American experiment with democracy uniquely successful.
Centralized power, the Framers knew, was ultimately irresponsible. Power over information – over the knowledge which is synonymous with power – is the ultimate authority. For, as President Nixon himself said in 1972, "[W]hen information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and – eventually – incapable of determining their own destinies."
More than twenty-five years ago, when President Truman refused to give Congress information it sought about alleged Communist subversion in his Administration, a California Congressman named Richard Nixon said this on the floor of the House Representatives:
"The point has been made that the President of the United States has issued an order that none of this information can be released to the Congress and that therefore the Congress has no right to question the judgment of the President in making that decision.
"I say that proposition cannot stand from a constitutional standpoint or on the basis of the merits for this very good reason; that would mean that the President could have arbitrarily issued an executive order in ... the Teapot Dome case, or any other case denying the Congress of the United States information it needed to conduct an investigation of the executive department, and the Congress would have no right to question his decision."
I would use that judgment of Congressman Nixon to judge last Friday's actions by President Nixon.
IX
That process of judgment was going forward in the courts. Indeed, the courts may still find that the President is not in compliance with their orders. Such a finding would constitute a formal determination that the President is in contempt of court.
But that is a legal issue. Its outcome will weigh heavily on any action Congress might take as it proceeds to explore the grounds for impeachment. Congress, however, is charged with the political judgment of whether or not the President has acted in contempt of the Constitution and the people's will.
There are intermediate steps toward making that determination. For instance, Congress could by statute create another independent special prosecutor, an arm of the legislative branch, and not a subordinate of the President. And such a prosecutor could carry the argument Mr. Cox was forced to drop part way through another round of judicial contest.
Such a procedure would help preserve the integrity of the ongoing criminal investigation of those involved in Watergate and associated wrongdoing. But I have little confidence that such a course can advance a final resolution of the conflict between the President and the rule of law. So while I would favor all efforts to accommodate the dispute, I think we must prepare for a final judgment in the President's case. Impeachment is just that – no more and no less than a process for measuring his claims of authority against the limits our laws and our tradition impose on the conduct of the President.
The law, ultimately, is what the courts pronounce. The Congress, in an impeachment proceeding, is a court, and for questions of the President's fitness for office, it is the final court.
Since his actions in the Watergate affair have raised those questions of fitness to the highest level of public concern, those questions must now be resolved. I do not welcome the coming conflict. I would prefer to see it avoided by the President's voluntary reversal of his recent decision.
But with little expectation of that development, I urge now that we set in motion the Constitutional process for putting the Presidency under law.
It is not, ultimately, the men in office whom the people trust. It is the institutions of our democracy – the restraints of the law on those whom we put in authority – that inspire public confidence. To restore that confidence, we must now revive those institutions, which have become rusty through disuse.
The prospect of impeachment is awesome. But the prospect of government lawlessness is worse.
When only one sure remedy remains against intolerable abuse of the people's liberty, we must use that remedy or renounce our claim to the history of freedom and the legal order that protected it and us.
The process of impeachment offers us such a remedy. We must now initiate the process and, through its workings, seek a resolution of our crisis.
[From the New York Times, Oct. 24, 1973)
MR. NIXON's DECEPTIVE COMPROMISE
(By James Reston)
The one thing you have to say for Richard Nixon is that he knows when he is licked. Almost everything he always said he would never do – compromise with Moscow, recognize Peking, accept deficit financing, or be unfaithful to his promises – he has done. And he has done it again by releasing the Watergate tapes, which he said he would never release.
It was a clever move. He has retreated from one mess to another, but he has gained time. It will take weeks to get the tapes down on paper and to get a new team to take over the prosecution at the Justice Department, but meanwhile, he has got rid of Archibald Cox, the "independent" prosecutor, which was probably his objective, and he has postponed – though he has not avoided – a critical battle with both the courts and the Congress.
The President was in terrible trouble before he switched and agreed to let the tapes go to the courts. He judged Archibald Cox well enough. He gave Mr. Cox a dishonorable order he knew Cox wouldn't accept, and he was right. So Mr. Cox, for the moment, is going home.
But the President misjudged Attorney General Richardson and Deputy Attorney General Ruckelshaus. He appealed to Mr. Richardson to concentrate on the Middle East crisis and stay on even if Mr. Cox disappeared. He even had Richardson's old friend Henry Kissinger appeal to Richardson to stress the foreign crisis and avoid a resignation, but Mr. Richardson didn't agree.
The White House didn't even give Mr. Richardson time to respond to the President's order to fire Special Prosecutor Cox. Gen. Alexander Haig called Richardson at 7 o'clock last Saturday night and told him the President was sending him a message, which seemed to call for an answer from Richardson, but while the Attorney General was trying to draft a reply, the White House put out its announcement that Mr. Cox was fired.
Then the White House turned to Mr. Ruckelshaus to fire Mr. Cox, and General Haig not only told him this was an order from "the Commander in Chief" but appealed to him on patriotic grounds to carry out the order. Mr. Ruckelshaus, according to his associates, replied that patriotism was not the same as obedience, that in his mind it was sometimes the opposite, and that he would not comply. So he was fired.
Meanwhile, Mr. Richardson appealed to the President's aides and lawyers to consider what the reaction would be in Congress and in the country if they fired Mr. Cox for carrying out the independent prosecution he was promised by the President and the Attorney General; but his appeal was rejected, even after he implied that he would have to resign if they insisted.
It is interesting and significant that during those critical five days when Mr. Richardson was negotiating with the White House staff, and warning them not to fire Mr. Cox or force his own resignation, the President never discussed the problem personally with his own Attorney General, until the very end when it was clear that the President was determined to get rid of Mr. Cox. Only then, when Richardson said he would resign if Cox was fired, did the President agree to see him, and even then, he let him go and later ordered him to dismiss Mr. Cox.
It was a typical bold and desperate Nixon play, but this time it didn't work. Public reaction went against the President. Messrs. Cox, Richardson and Ruckelshaus went on television and stated their arguments; all of them, and particularly Mr. Richardson, with devastating effect.
Accordingly, the President was confronted with precisely the power struggle he had sought to avoid. The Congress was proceeding toward impeachment proceedings in the House. The unions were demanding his dismissal from the Presidency. More important, the old Republican Establishment, led by the leaders of the bar, were denouncing the dismissal of Mr. Cox and the resignation of Mr. Richardson, and indications were that Judge Sirica was going to hold the President in contempt of court.
Facing all this, and the prospect that the controversy would go back into the streets if he defied the courts and the Congress, the President agreed to hand over the tapes. This will avoid the clash for a time but not for long.
For once he has admitted the tapes into evidence in the courts, it will be hard for him to exclude other relevant documents, or to argue against another special prosecutor. He has got rid of Mr. Cox for the moment, but not of prosecution. He has saved his skin but not his honor.
Ironically, he chose to challenge in this latest of his political crises three men – Cox, Richardson and Ruckelshaus – who had become the most attractive and articulate symbols of objectivity and probity in his Administration. And in the process, he lost all three.
This has shocked Washington more than anything since the Watergate burglary, and while he now has time to try to sort things out, he has affronted his own most loyal supporters and even his own Cabinet, and raised the most serious questions about his moral authority to govern over the next three years.
[From the New York Times, Oct. 24, 19731
MR. NIXON RETREATS
President Nixon has capitulated to the explosion of public and Congressional outrage over his effort to evade Federal court orders to turn over to United States District Judge John J. Sirica the subpoenaed taped conversations touching on the Watergate affair. In announcing the dramatic reversal, Presidential lawyer Charles Alan Wright left no room for doubt that Mr. Nixon's move was in response to the refusal of the American people to allow the President to continue to place himself above and beyond the rule of law.
Mr. Nixon's aborted game plan seems clear. After floating the "compromise" proposal to make available an "authenticated" version of the tapes, the President issued orders to Special Prosecutor Archibald Cox to desist both from all future attempts to obtain the tapes themselves and from any further pursuit of other White House documents.
The President could have hardly expected Mr. Cox to obey such an order. The special prosecutor's inevitable defiance provided Mr. Nixon with the pretext to fire Mr. Cox and abolish his office. Had the maneuver succeeded, it would have given Mr. Nixon the double victory of an end-run around the courts and of getting rid of the special prosecutor. Regrettably, he has already managed to achieve half that goal; It is now up to Congress to repair the damage by re- establishing the post formerly held by Mr. Cox.
Referring to the President's effort to end the constitutional crisis, Mr. Wright conceded yesterday that "events over the weekend made it apparent it did not." The game plan failed because, as honorable men, former Attorney General Richardson and his deputy, William D. Ruckelshaus, chose to resign rather than to lend legitimacy to the White House coup. Their courageous rejection of the White House effort to destroy the independence of Mr. Cox did much to persuade the American people and Congress that the President had so far overstepped the bounds of his lawful powers that he now would have to be stopped by any constitutional means necessary.
With his cool and correct presentation at yesterday's news conference, entirely within the framework of loyalty to the Administration he had served so long, Mr. Richardson torpedoed efforts of the White House entourage – what is left of it – to discredit Mr. Cox as a partisan agent intent on "getting" the President. In unequivocal terms, Mr. Richardson said that had he been in Mr. Cox's position, "I would have done what he has done." Even more crucial to the future course of the investigation, Mr. Richardson made it clear that, while he had supported the compromise on the tapes, he had never accepted the White House proviso that Mr. Cox be barred from pursuing with court action other tapes and documents if they were to become essential to the case.
Mr. Nixon's retreat came amid ominous signs that he had embarked on a disastrous course. The House of Representatives had taken steps to determine whether the President's action warranted impeachment proceedings. The bar was in open revolt. Judge Sirica had told the two Watergate grand juries to continue their work and that he was prepared to appoint a special counsel to carry on the prosecutor's task.
The pending investigations, necessarily suspended by Mr. Cox's departure, should certainly be continued by a new and independent prosecutor, aided by Mr. Cox's former staff. It is clear that independence – and assurance that the job will be completed even in the face of Presidential displeasure – is unattainable so long as the prosecutor remains under the jurisdiction of the executive branch.
The first order of business is creation of a new special prosecutor through Congressional action, to function under the authority either of Congress or the grand jury. Now that the will of an aroused people has compelled Mr. Nixon to withdraw from his defiant position on the narrow matter of the tapes, the democratic process that has been set in motion must resume the long-term task of investigating Watergate in all its aspects, including the degree of responsibility – if any – of the President of the United States. What is at stake is nothing less than a return to government under law.
[From the Washington Post, Oct. 24, 19731
THE TAPES: WHAT HAS – AND HAS NOT – BEEN RESOLVED
Well, the President of the United States has finally let it be known that in one particular matter affecting an inquiry into allegations of criminal behavior in his government, he is prepared to respect a command of the federal courts. But look at what it took to bring about the President's compliance in this instance: the resignations, in protest, of the two top officials of the Department of Justice; the firing of the Watergate Special Prosecutor and the abolition of his office; the breaking of a solemn compact with the United States Senate; a call for the President's removal from office on the part of his erstwhile supporters in organized labor, including leaders of AFL-CIO unions representing 13.6 million workers; a virtual breakdown of the machinery of Western Union under the weight of an avalanche of telegrams to Congress calling for presidential impeachment; the formal beginnings of an impeachment process in the House; an outpouring of critical editorial opinion from around the country; and a raw warning from his own party's congressional leaders that they could not save him unless he changed course. When you add to all this upheaval the anguish, controversy, uncertainty and general demoralization and debilitation of both the government and the country over the last three months, you have to temper somewhat your applause for the ultimate and obvious rightness of yesterday's decision.
This is all the more so when you consider the relative importance of the tapes in the crisis of government that has grown out of the Watergate, and the criminal prosecutions themselves. For just as the public furor had its evident impact on Mr. Nixon's final decision, so the President's own prolonged intransigence concerning the release of the tapes, and the fierce attention he focused on the tapes alone, have given the public a distorted impression of their importance. The distortion is twofold. First, the contents of this relative handful of recordings have come to be seen as decisive in determining the President's own role in Watergate events, one way or the other. But the President himself has said that the tapes "would not finally settle the central issues" of the Watergate investigations, and Mr. Cox made no larger claims for their significance.
In addition to the probable inconclusive ness of these nine tapes by themselves, it should be remembered that they are only a fragment of a large body of potential evidence which Mr. Cox was seeking to obtain and related to only a single episode – the Watergate cover-up – in the great catalogue of crimes and improprieties which go under the name of Watergate. It is thus nonsense to claim, as the President did in his statement on Friday night, that their release would resolve "any lingering thought that the President himself might have been involved in a Watergate cover-up," and still more so to suppose that their release can, in any sense, close the larger Watergate case.
This leads us to a second distortion, which has to do not with the contents of the tapes but with the President's willingness or unwillingness to make them available pursuant to a court order.
Indeed, the whole question of Mr. Nixon's suitability to continue in office had come to rest a short time ago on whether he would or would not defy the federal courts. Defiance or nondefiance of the courts had become, in other words, for many people the exclusive test of the President's conduct of his office so far as the whole morass of Watergate and related matters is concerned. But to think this way is to fall into the same trap as to conclude that a President who is not found guilty of a criminal offense has thereby demonstrated his fitness for office, or to argue that the President was justified in his performance. last weekend by reason of his technical authority to fire Archibald Cox.
In fact, the long, tawdry history of the White House tapes issue makes it clear that these other tests offer only minimal and inadequate standards by which to judge a President's fitness and capacity to govern. Surely, the people require more of their President than the knowledge that under the most severe political duress he is prepared to obey a federal court order.
Surely we are obliged to examine the history of the President's handling of the tapes issue and to count the costs incurred along the way. That history isn't all that ancient, either. As recently as Friday night, judging from Elliot Richardson's account of his own role in the so-called bargaining with Mr. Cox, the President was grossly misleading the American people as to the sponsorship of and support for the arrangements he attempted to force upon the Special Prosecutor. He was suggesting that partisan exploitation of Watergate in general, and the tapes issue in particular, was – would you believe? – somehow responsible for the aggressive Soviet mood of the moment in the Mideast. And he was still wreaking an enormous amount of needless damage, wantonly inflicted in the name of a principle on which, within three days, he was to yield.
We have no doubt that as a consequence of so yielding Mr. Nixon will have managed to diminish the intensity of the highly emotional drive to oust him from office that was getting under way.
And should he go further and take such vital steps as reconstituting the office of Special Prosecutor and reinvigorating and cooperating with the investigations themselves, he would certainly lower the temperature even further. That is just as well. For the events of the past many months that have been and remain so profoundly troubling can not be appraised and dealt with in the kind of turmoil that Mr. Nixon's most recent actions had created. That they remain to be dealt with is, in our view, not open to question. The President said last Friday night that he wished to “bring the issue of Watergate tapes to an end to assure our full attention to more pressing business affecting the very security of the nation.” We share that aim. But we think there is no more "pressing business affecting the security of the United States" than the business of deciding whether Richard Nixon, by his performance across the whole range of Watergate-related matters, has not proved himself incapable of governing. And that issue, we would argue, has scarcely begun to be resolved by yesterday's decision to surrender the Watergate tapes to the court.