The Tennessean from Nashville, Tennessee • Page 24

EDITORIALS CARTOONS OPINIONS POLITICS REPORTING IN DEPTH SUNDAY Oct. 28, 1973 Bffi TENNESSEAN "T1 ona Section A Time of Tension, Turbulence TUT days I 'Cool' President Survives the Crisis Week By JOHN SEIGENTHALER Tcnnessean Publisher YSTASIIINGTON History will record this was the week Richard Nixon struggled to keep his government from falling apart. The crisis began to build last Friday. At midnight time would expire for the President to appeal to the U.S. Supreme Court the decision by the lower courts that he give the controversial Watergate-White House tape recordings to Federal Judge John J.

Sirica. "Time is running out," anxious White House staff members told each other as Friday morning hours pushed toward noon. But something was in the wind. 9- Sen. John Stennis, the aging Mississippi Democrat, now recovering from a bullet wound received in a Washing, ton robbery, would listen to all the tapes the committee had tried to get, Nixon said.

The President would prepare a "summary" statement of what was on the tapes and Stennis would verify the truth of t'he President's "summary." The President who only a few weeks ago had flatly refused to see Baker, and who had written Ervin a letter taking back a verbal invitation to talk to him about the tapes now was cordial and friendly with the Senators. Wright, NiXon's courtroom lawyer, was a little taken aback by the President's offer. After all, Wright had been insisting in court that "constitutionl separation of powers" and the "theory of confidentiality" argued against either the Senators or Judge John Sirica hearing the tapes. Now, the Senators, were told he was going to give them full disclosure of any relevant information the tapes contained. Baker and Ervin both of whom know, admire and trust Stennis agreed to take the "summaries" and shook hands with the President on the deal.

Neither of the Watergate Senators pretended to speak for Judge Sirica, the stern-visaged federal jurist who would be demanding the actual tapes in Federal District Court as soon as the Veteran's Day weekend expired. Nor did Ervin and Baker pretend to speak for Archibald Cox, the strong-willed, soft-spoken special prosecutor, who would be demanding that Sirica listen to the tapes, then turn relevant parts of them over to the grand jury probing the whole Watergate scandal. "Our understanding," Baker said later, "had nothing to do with Judge Sirica or Mr. Cox. We were not asked to give up our own fight in court for the tapes.

We did not compromise anything from the standpoint of the committee. "We were simply saying that if the summaries were provided, verified by Senator Stennis, the committee would accept them." From the committee's point of view, the "deal" made President Nixon, seeming a somewhat lonely fig-ure against the background of turbulent Washington, mounts the step to his office. be illegal wiretaps placed at the orders of government officials. These taps included electronic surveillance newsmen and, Cox felt, had nothing to do with national security. On the other hand, if the "impartial third party" who listened to the tapes felt these wire taps had to do with some element of national security Cox, by accepting the agreemet, would be forced to give up the evidence in those instances.

But most of all Cox, as a lawyer, felt he had won his case in court and that the system of justice should determine what, if anything, the President should do about the tapes. As Baker and Ervin left the White House late Friday they were sure what they had gained for their committee. But they, like everyone in the White House, were unsure where that left President Nixon in his plea before Judge Sirica. They had no inkling of where that left the President, Attorney General Richardson and Special Prosecutor Cox. Within two hours after the senators had departed for their suburban homes in the outskirts of the nation's capital, President Nixon had clarified the situation from the Whits House point of view.

White House reporters received an official, formal Presidential statement which announced the agreement reached by the President and the two Watergate Committee Senators. But Nixon took the agree- when told the President wanted an immediate meeting with him and Ervin. By late afternoon Ervin and Baker were seated with Richard Nixon in the oval office. They were joined by Charles Alan Wright, the square-faced Texas lawyer who is the constitutional expert defending the President in court. Nixon had a proposal: II was now willing to make available to the Watergate committee a "summary" of the tape recordings the committee had gone to court and tried but failed to get.

During the late morning hours an urgent long distance telephone call was dispatched to Sen. Sam Ervin, the North Carolina Democrat who chairs the Watergate investigating committee. Ervin was reached at the airport In Lousiana where he had gone to makes a speech. "I'll come at once," said Ervin when told the President needed him immediately. In Chicago, Sen.

Howard Baker, of Tennessee, the Republican vice chairman of the Watergate committee, was called out of a symposium he was attending. The White House was on the line. It was an Important call. "I'll be there," said Baker 74 4 'tf A milling Impeachmenh 1 1 vJflttWMWM VKv't indeed include fairly and accurately anything that might be regarded as related to Watergate. "That man" was Senator Stennis, said the President.

The President's statement spoke of the agreement entered into by Baker and Ervin but suggested that it would automatically be acceptable to Sirica. Sirica, of course, knew nothing of the deal worked out with the committee. President Nixon then acknowledged in his statement that the "deal" was unacceptable to Cox. "To my regret," said the Nixon prepared statement, "the special prosecutor rejected this proposal. Up to this point the (Turn to Tage 3-B) but whether the President would defy the courts, whether the President would allow his administration to crumble, whether he would aggravate an already waning public confidence in government and the system of justice.

Sen. Howard Baker's aides arrived at the office Thursday morning to confront perhaps 2000 letters, most of them critical of Nixon. Rep. Richard Fulton's office said mail was running heavily for impeachment. "In fact, I got one telephone call last weekend from someone who was against impeachment." the Nashville congressman said.

Many members of Congress from both parties were echoing the sentiments of Rep. Robin Beard, a Republican (Turn to Page 2-B) 'Right From Middle America' A Sea of Criticism sense. While Cox had won his court fight before Sirica, and the Court of Appeals, the Watergate committee had lost out in its suit to get the actual tapes. Sirica had ruled that he had nj statutory authority to require that the tapes be over to the Senate committee in response to that body's subpoena. Thus, in accepting the "summary" of the transcripts the two Senators felt they were getting somthing for nothing.

It was exactly the sort of "compromise" Baker had urged on the White House for weeks. But this hour the President had turned deaf ears on Baker's pleas that an "impartial" third party review the tapes and report to the committee relevant parts. The two senators felt a natural sense of elation as photographers were summoned into the oval office to take pictures of them talking over their compromise with Nixon and his Texas lawyer, Charles Alan Wright. Of course there were no photographers to lake pictures of Nixon entering into an with Attorney General Elliot Richardson and special prosecutor Cox. Twice, earlier in that week, Richardson had talked with Cox about such a compromise.

Then the attorney general put his proposal in writing. Cox wrote out his objections to the idea of a third party as the "impartial" listener and verifier of what was on the tapes. Stennis was not identified to Cox as the person the President would designate as the impartial third party. Richardson simply told Cox the White House proposed "a person" of integrity and honor to confirm the accuracies of the summaries. Prim, precise-speaking Cox, unlike Ervin and Baker, had won his round in court.

Judge Sirica had sided with him. So had the Court of Appeals. He was perfectly willing for the U.S. Supreme Court to be the final arbiter of the question of whether the grand jury got the actual tapes. He told Richardson that among the several worries about a proposed compromise was this basic concern: trial courts, under long established legal rules, always require "the best evidence." In other words, if there are letters, memoranda, tapes or other documents the court demands these be presented in evidence, rather than have some third party testify that the letters, memoranda, tapes or other documents said one thing or another.

The reason for this rule Is clear: the memory of a witness may fail; he may honestly err; or, the witness may falsify. The document Itself speaks for itself. Cox thought the "summaries" would be acceptable, possibly, as grand jury evidence. But in open court he was sure a trial judge would demand the actual tapes. If he agreed to Nixon's compromise he would be giving up his chance to get these actual tapes or other tapes or documents that later might be needed.

When the trials came up he would thus be robbed of using the "summaries" because they simply were not "the best evidence." For another thing, Cox feared that under the terms of the agreement suggested by the White llo.use ard transmitted to him Richardson, the question of what was a "national security" maticr would not be clearly defined. Cox and jis staff were on the trail of what thev considered to By ELAINE SHANNON Washington Correspondent WASHINGTON John Dean portrayed Richard Nixon as a man who looked out of the White House one day, spotted a lone demonstrator standing in Lafayette Park and ordered him removed. ,11 i i crowd carries signs emanding impeachment of the ment beyond the Watergate Committee right up to the door of the court of Sirica. "As quickly as materials could be prepared," said the President's statement, "there would be submitted to Judge Sirica through a statement prepared by me personally from the subpoenaed tapes, a full disclosure of everything contained in those tapes that has any bearing on Watergate. "The authenticity of this summary would be assured by giving unlimited access to the tapes to a very distinguished, man highly respected by all elements of American life for his integrity, his fairness and i patriotism, so that that man could satisfy himself that the statement prepared by me did And when the alleged violations are obstruction of justice bribery, perjury, conspiracy? Kuykendall, who has waved a noose before horrified congressmen and warned them not to become "a legislative lynch mob," maintained that there was no evidence the tapes would link the President to these charges.

Other Issues But others thought the issue was no longer whether the President discussed the Watergate affair with his staff 1 1 -Ash 1, 1 Hit The Constitutional Background By PAUL H. SANDERS Professor of Law, Vandcrbilt University UNHAPPILY, recent events compel a painful probing into the fundamental structure and processes of our political order, including the subject of impeachment. The essential legal framework for the latter topic is expressed in the following provisions of the Constitution of the United States: "The House of Representatives shall have the sole power of Impeachment." (Article Section 2, Clause 5). "The Senate shall have the flf lwQ thirds of the mcmbers sole power try all impeach- Artice SecUon ments. When the President of the United States is tried uause the Chief Justice shall preside.

"Judgment in Cases of Im-And no person shall be con- peachment shall not extend victed without the concurrence further than two removal 1 1 President. parties more or less friendly or inimical to the accused "What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of national inquest into the conduct of public men? If this be the design of it, who can so properly be the inquisitors tor the nation as the representatives of the nation themselves?" In the same document (Federalist No. 65). Alexander Hamilton went on to emphasize the distinction between the trial of an impeachment and a regular criminal case in court: ''The necessity of a numerous court for the trial of impeachments is equally (Turn to Page 2-B) 4,. sax AxtiifP ,1.

ft- Alexander HamMton procedure on impeachment nsive i Aft to continue in public office, This was the emphasis of Alexander Hamilton in The Federalist Paper No. 65, published in 1783. Speaking of the Senate as a court for the trial of impeachment he said: "The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into President James Madison Their views helped shape tusk This story may or may not be true.

But it is well do cumented through the President's own statements, and the testimony and memoranda of aide after White House aide, that the Nixon White House was highly conscious of its critics. What, then, must Richard Nixon have felt when dozens of cars streamed past the White House last Sunday, noisily responding to the "honk of impeachment" signs posted outside? Or when the traditionally cautious House of Representatives took serious steps toward his impeachment Tuesday, or when GOP leaders urged him to reinstate a special Watergate prosecutor, or when even an American troop alert because of the Middle East crisis failed to stifle talk of ouster? On Tuesday, the day the House decided to investigate the President's case for impeachment, Gen. Alexander Haig, Nixon's chief of staff, spoke somehwat confusedly of the "firestorm" unleashed Saturday by the President's firing of Special Prosecutor Archibald Cox, the resignations of Attorney General Elliot Richardson and his deputy, William Ruckleshaus. and by Nixon's refusal, later rescinded, to supply under court order certain of his taped conversations. 'Wasn't Aware' "I think he (Nixon) wasn't aware of citizen reaction." said Rep.

Margaret Heckler, after the House debate. "This is serious," she said of the impeachment talk. "This House is right from Middle America." Rep. Dan Kuykendall, remarked with a certain bravado after the debate that the President had every right to keep his tapes and papers secret. "The President of the United Slates pem'e sv he's not above the law.

This is an nversimpli i ation. There are a lot of laws he's above." KJivkondjill i Jj 0 mm in from otnee, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to Indictment, Trial, judgment, and punishment according to law." (Article Section 3, Clause 7) "The President shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." (Article II, Section 4). Aqgravated Misconduct It appears on the face of the Constitution that the purpose of the impeachment processes is distinct from that of determining criminal liablity in the ordinary sense. The dominant concern, rather, is with responsibility for such aggravated misconduct a would indicate, to renrcsen- tatives of the people unfitness u'1 8tv. Prof.

Paul Sanders Studied law, precedent 4 Rep. Dan Kuykendall, Memphis Hepubliean, holds the noose hp hjald aloft when he warned the Hjjuse of Heprcsentatives against "lvnch law" tactics..