Reevaluating the Saturday Night Massacre

The 50th Anniversary of the Saturday Night Massacre passed last month, with C-SPAN’s American History TV hosting a panel featuring prominent figures from that era, all happily reminiscing how the event “set off a chain of political and legal events that left [Nixon’s] presidency hanging in the balance.”

SNM’s conventional narrative has remained unchallenged. Nixon adamantly refused to turn over White House tapes of nine conversations that had been subpoenaed by the grand jury, even after that demand had been upheld by Washington D.C.’s Circuit court. Instead, he announced what became known as the “Stennis Compromise”, whereby Sen. John Stennis of Mississippi would verify White House-prepared transcripts in lieu of the actual tapes. Special Prosecutor Archibald Cox rejected this alternative out of hand at an emotional press conference, saying that to accept anything less than the tapes themselves would undermine his mission of upholding the rule of law. Nixon ordered him fired, with both Attorney General Elliot Richardson, and Deputy Attorney General William Ruckelshaus, refusing to do so and choosing to resign instead. (READ MORE: Gaza: What Nixon Would Do)

A “firestorm of protest” followed, and the media portrayed Cox’s firing as a dictatorial coup that proved Nixon considered himself to be “above the law.” Nixon quickly folded, agreeing to turn over the nine tapes, but the firing triggered the launching of House impeachment proceedings.

Retelling the Story

Neither Cox nor Richardson authored books describing their role in these events in any detail, so most of the backstory has been derived from a minute-by-minute retelling by the special prosecutors’ press officer, James Doyle, in his 1977 book, Not Above the Law. It was not until Alexander Haig’s own memoir, Inner Circles, was published in 1992, that the White House version emerged. Haig’s retelling (in a chapter entitled “Blindman’s Buff”), as well as internal prosecutorial documents that surfaced decades later, suggest that President Nixon had entirely different motivations and Cox and Richardson exhibited less-than-honorable conduct.

According to Haig, Nixon was coming off two huge political victories, saving Israel from the Arab’s Oct. 6 surprise attack in the Yom Kippur War and orchestrating Spiro Agnew’s Oct. 10 resignation, followed by his nomination of Gerald Ford on Oct. 12 to be his successor as vice president. Nixon’s next move, as he saw it, was to address pending Watergate issues by firing Cox as special prosecutor and moving his Watergate Special Prosecution Force back into the Department of Justice. There, while the unit would remain intact, it would report to the career head of DOJ’s criminal division, the highly respected Henry Petersen, who had impressed Nixon in their many meetings leading up to the April resignations of two top lieutenants, H.R. Haldeman, and John Ehrlichman, and the firing of his counsel, John Dean. Kennedy Democrats on the Senate Judiciary Committee had taken Nixon’s idea of a special supervising prosecutor on Watergate and expanded it into what became known as Cox’s Army: 100 specially recruited partisan prosecution staff of Nixon-hating Ivy Leaguers, operating totally independent of the Department of Justice, which had promised investigations into every allegation of wrongdoing lodged against the Nixon administration since its 1969 inauguration. Watergate investigations were one thing where Nixon himself had called for a renewed investigation, but investigating every aspect of his administration by a group whose top 17 attorneys had all worked in the Kennedy-Johnson Administration, was simply unacceptable.

The plan, again according to Haig, was first to fire Cox and move the prosecution unit into the DOJ, and then to announce the Stennis Compromise, which would resolve the issue over access to the nine tapes subpoenaed by the grand jury. Richardson, however, urged reversing the timing of these two initiatives, with the idea that Cox could be maneuvered into resigning — or being fired if need be — if he refused to accept the Stennis Compromise.

The compromise was the key, which sounds absurd today, except for one thing: It was virtually an exact copy of the proposal submitted by Cox on Sept. 20. Cox’s central concept was “third-party authentication.” Nixon was adamant about not turning over the tapes themselves. What about producing word-for-word verified transcripts of relevant portions of those tapes and summaries of non-relevant portions, but not the actual tapes themselves? That way, the grand jury’s demand could be satisfied, while Nixon could still claim he had maintained the confidentiality of virtually all Oval Office conversations.

Cox’s Secret Proposal

Of course, the six-page Cox proposal was never made public and remained hidden from public view for decades. While the idea that Cox had suggested a compromise was mentioned in passing during the recent C-SPAN panel, it was obvious none of the panelists had ever seen the actual document. 

Here are quotes from relevant portions, interspersed with appropriate commentary.

Proposal submitted to White House

by Archibald Cox, September 20, 1973

1. TAPES
2. Step One
3. The President … may “omit” any continuous portion of substantial duration which is clearly and in its entirety unrelated to any matter within the jurisdiction of the Special Prosecutor.
4. Any portion omitted is to be described, in writing to the Special Prosecutor in terms of —

(a) subject matter,

(b) participants, and

(c) duration.

Cox announced at his press conference that only access to all the tapes would satisfy his prosecutorial obligations even though he had been more than willing to accept summaries of unrelated portions of the subpoenaed tapes earlier — as long as they were verified as not being germane. 

5. The President will appoint Honorable J. Lee Rankin [or some other mutually acceptable person] as special consultant upon the handling of presidential recordings and papers sought by the prosecutors in the criminal investigation or prosecution. Mr. Rankin … will listen independently to each tape covering a requested conversation and determine whether in his independent judgement the guidelines have been accurately applied.

Cox expressed doubts as to whether verification could be done by a single individual and that Sen. Stennis was too old and too respectful of the presidency to act alone. Yet, he had earlier suggested appointing J. Lee Rankin, his DOJ predecessor, as a special consultant for this precise purpose. Rankin had served as solicitor general throughout Eisenhower’s second term, was a life-long Republican, and was then 66 years of age. Had Cox’s own suggestion been known at the time, it would have been much harder for Cox and his defenders to voice objections to the choice of Sen. Stennis. 

6. The Special prosecutor will be furnished an exact re-recording and a typed transcript of the remaining portions of the tapes.

Cox’s proposal was to summarize the unrelated portions, but receive exact reproductions of the rest, from which he and Nixon’s defense team could then determine which portions were appropriate for sharing with the grand jury.

III. Scope

Because the above procedures are not entirely appropriate to evidence to be used at the trial of an indictment, they can apply only to the grand jury phase. It is agreed, however, that an effort must be made to work out acceptable adaptations.

Cox’s apologists argued then — and today — that certified transcripts would never be admissible in a court of law, so Nixon’s proposed compromise was fatally flawed from its very inception. Perhaps, but it is clear that Cox’s written proposal was designed solely and specifically to address the pending litigation over the grand jury’s nine-tape subpoena, leaving unresolved issues about additional tapes or their use at trial. 

They also assert, entirely without basis, that Nixon had ordered the dissolution of the Watergate Special Prosecution Force — which is what was breathlessly (but mistakenly) reported by the media. Yet, the record is undeniable that Nixon never directed dissolution. He wanted it moved back under DOJ’s Criminal Division, where he and Bob Bork felt it should have been established in the first place. (READ MORE: The Airlift That Saved Israel)

In subsequent oral histories done by the National Archives between 2007-2009, both Deputy Special Prosecutor, Henry Ruth, and Watergate Task Force head, Richard Ben-Veniste, admit that they had informed Cox at the time that he had erred in suggesting verified transcripts might be acceptable, thus putting Cox in the unenviable position of having to disown his own idea — without admitting that was precisely what he was doing. That is why he kept raising new issues, arguing for delays, and wanting a “universal settlement” — all to postpone the resolution of the immediate issue along the terms he originally had suggested, but which were now unacceptable to his own staff of prosecutors.

The action-forcing event was the grand jury subpoena for nine tapes. That was the issue being litigated and that was what the White House sought to address with the Stennis Compromise. The objective, as with Cox’s proposal, was to settle the immediate issue at hand, leaving possible resolution over access to other documents, including other tapes, for another day.

So much for Cox, self-righteously disowning his own proposal before an adoring media, knowing its existence was safely sealed from public disclosure. 

Haig’s real bitterness was reserved for Richardson, who had not only granted the special prosecution force full, unreviewed independence from any oversight by the Department of Justice but had initially indicated his willingness to remove Cox if he rejected his own proposal. Yet — having made a real mess of things by urging the Stennis Compromise be announced in advance of firing Cox — Richardson decided his own political future would be better served by resigning instead. Richardson’s self-centered actions came as a total surprise to Haig and left Nixon completely exposed and subject to the political condemnations that followed. Haig later told Bob Woodward in an interview in the 1990s that Nixon was so upset with the developments of that weekend that he didn’t speak to Haig for a month.

Geoff Shepard came to Washington in 1969 as a White House Fellow, after graduating from Harvard Law School. He served on President Nixon’s White House staff for five years, including a year as deputy counsel on the President’s Watergate defense team. He has written three books about the internal prosecutorial documents he’s uncovered, many of which are posted on his website: www.shepardonwatergate.com

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