Judging Nixon: The Impeachment Session

Quite by coincidence, the second session of the 93rd U.S. Congress began last week on the eve of the Chinese New Year, the Year of the Tiger. But there were very few tigers in evidence among the returning 431 Congressmen and 100 Senators. Their sojourn among the voters back home during the 29-day holiday recess exposed them to an American public that was angry, suspicious, impatient and sour, and one, moreover, that was sharply divided on how to solve the nation's problems. Energy shortages, exploding prices, dwindling jobs, all conspired to make 1974, for most legislators, loom as their Year of the Nervous Stomach.

Beyond pipeline and purse-string issues, what weighs upon Congress is the judgment it must pass upon Richard Nixon in this session. It is a cup that the Congress, almost to a man and woman, would rather let pass from its lips. No U.S. President has ever been found guilty of the Constitution's "high Crimes and Misdemeanors" and turned out of office before his time. Only once has a President been impeached by the House and stood trial in the Senate, and Andrew Johnson's ordeal took place a full century ago (see TIME ESSAY page 30). Yet unless Nixon resigns, and he insists that he will not, the 93rd Congress will surely find its place in history as the "impeachment Congress." The rubric will stand whatever the outcome, even should the House ultimately vote that there are insufficient grounds to support impeachment and let the matter end there. The processes already well begun will ensure the niche.

For the moment, the historic burden rests most heavily on the House of Representatives, and with special force on Congressman Thomas P. ('Tip') O'Neill Jr., 61, the floor leader of the Democratic majority in the House and the man responsible for ensuring the fairness of the impeachment process. "The main thing is getting the show on the road," says O'Neill. "The American people want some action--and they want it on a nonpartisan basis."

The House must play the role of grand jury, deciding whether the evidence of presidential abuse warrants sending articles of impeachment to the Senate. The House duty, as Republican Congressman John B. Anderson phrases it, is to conduct "the grand inquest of the nation." Since October, the House Judiciary Committee has been at work assembling evidence and defining the modern meaning of high crimes and misdemeanors; it hopes to finish its work by April or May. If the 38-member committee then votes to recommend impeachment, the House as a whole cannot escape voting yea or nay on the President. A simple majority of yeas would put Nixon on trial by the Senate, with Supreme Court Chief Justice Warren Burger presiding. At that point, Nixon might well choose to fight no further and resign.

Nixon Knew. Few members of the House have any illusions that they will be permitted to escape that momentous roll call in late spring or early summer. It is accepted as a virtual certainty that the Judiciary Committee will vote an impeachment. Indeed, House Minority Leader John Rhodes felt that he had no choice last week but to go to Nixon and flatly warn him of the worst. Says Rhodes: "I told him why it [the articles of impeachment] would be voted out. All you have to do is look at the numbers of Democrats on that committee who put in resolutions of impeachment or said they favor impeachment." Nixon, who can count votes too, did not really need to be told. The President, reports Rhodes, "didn't seem overwhelmed or surprised."

In fact, Nixon's new game plan of an all-out fight against impeachment, coupled with White House efforts to depict the House process as a political vendetta rather than a judicial inquiry, is doubtless aimed at the vote of the House on the committee's finding. The President knows that the members of the House are caught on the horns of a cruel dilemma, indeed several dilemmas. They have been sent back to Washington with contradictory messages from the folks at home. Most Americans think that the President is guilty of one charge or another in the Watergate scandals; they would like to see him out of office. But they do not yet want him to be impeached. Most Americans, sick to death of Watergate, want Congress to act quickly on the impeachment question. This feeling is summed up by what amounts to a new political cliche: "Impeach him or get off his back." Yet the people also want the impeachment handled fairly and judiciously.

Saving Skins. Trying to make sense of these conflicting impulses, a good many Congressmen have come to a terrifying conclusion: that the people want Congress to do what it thinks best. That is not, by and large, what the House of Representatives does best in the best of times, and in this election year most Congressmen shrink from such a mandate like the plague. It heaps too much responsibility on their shoulders, forces them to step out ahead of the people and commit themselves to a position that could later prove disastrously unpopular. What they would like to do is wait until public opinion crystallizes and they have unequivocal marching orders. The production of fresh evidence in the months ahead before the vote could provide those orders. In the meantime, no one wants to act precipitately on impeachment. Polls of House members show only a few dozen willing to declare firmly for or against impeachment now. The vast majority of Republicans and Democrats are staying carefully uncommitted. Their re-election may well depend on it.

'What many members of the House would really like, of course, is for Nixon to resign, taking the House off the hook. That, too, is true on both sides of the aisle, though no House Republican has thus far dared publicly voice the feeling. (On the Senate side, the only Republican to call for resignation so far has been Massachusetts' Edward Brooke.) Democrat Frank Thompson Jr. of New Jersey puts it bluntly: "Most guys hope and pray for a resignation. I can think of 25 Republicans I know who will have to vote for impeachment to save their skins."

Part of Nixon's strategy is to deny any hope of that prayer's being answered. He invited Speaker of the House Carl Albert to breakfast with him at the White House and declared flatly: "I'm not going to resign. I'm going to serve out my term." In his chat with Rhodes, the President reported what Senator Barry Gold water had told him: "Barry was in here the other day and he said to me, 'Resignation? Anybody who had the guts to support me in 1964 has more guts than to resign from this job.' "

Adding that message to those from the voters, the House has no choice but reluctantly, warily to continue to move down the impeachment road. It is a dangerous road not only for Congressmen but for the nation as well. Whatever the outcome for Nixon, millions of Americans are going to be at the very least dissatisfied and unhappy. And if the process is not seen to be orderly, just and reasonably nonpartisan, the effect could divide the nation and embitter U.S. politics for years to come.

The man who is charged with guaranteeing the probity of the impeachment steps in the House is hardly a household name. Congressman Tip O'Neill, the majority leader, has always preferred to work behind the scenes during his 21 years on the Hill. Although he is now beginning to play more of a public role in this affair, O'Neill intends to continue to do most of his work out of sight in the weeks ahead.

How the question of impeaching the President reaches the floor of the House this session, when, in what form and with what support, are all his duties. They are the sort best executed in the back offices and cloakrooms of the House, where the bargains are struck, the power sharded and melded, where persuasion can take root. It is a process that O'Neill knows well. "I have an ability to read the sense of the House," he says frankly. "I've never had a problem that I could not put the thing together."

O'Neill is a gregarious, backslapping, poker-playing Boston Irish politician out of a renowned tradition (see box), a great, shaggy bear of a man (6 ft. 2 in., 268 lbs.) who is equally at home bellowing Irish ditties or talking history with Harvard professors.

Bone and Steel. O'Neill's role as the political architect of what he hopes to keep an essentially unpolitical effort is an odd one. On any other issue, his job as party floor leader is to be the cutting edge of the Democratic program in the House. But he is keenly aware that the validity of the impeachment process would be destroyed by partisanship, by permitting Nixon's charge that it is a Democratic effort to undo the Nixon mandate of 1972 to become true--or even seem to be true. He is determined that the issue of Nixon's guilt or innocence of presidential wrongdoing shall, so far as possible, be the only issue.

Though he has said that Nixon should resign, he insists that he has not made up his mind on impeachment. Says he: "I'm still taking the position that I'm a grand juror. I want the Judiciary Committee to report, and then I'll study the report and make my own decision. This is a matter for every man's conscience. I'd never try to persuade anybody to vote one way or the other on this. The best interest of the country must come first."

A particular weight falls on O'Neill by default of the other two key Democrats in the drama. Many House Republicans believe that New Jersey Congressman Peter W. Rodino, the dapper Judiciary Committee chairman, has already prejudged Nixon's guilt and is determined to impeach him. The Republicans' respect for O'Neill, and their knowledge that Rodino leans heavily on the floor leader for advice, helps offset those suspicions. House Speaker Albert, who tends to shrink from the enormity of impeachment, also looks to O'Neill. Says one senior member of the House: "Tip's put some backbone and steel in the Speaker and Rodino." Says Albert of O'Neill: "Tip is a rare individual. He has all the instincts of a good rough-and-tumble Irish politician, and he also has a terrific amount of courage and common savvy."

Part of O'Neill's own steel in presiding over the impeachment procedure is his absolute control of his district, built up in a lifetime of old-fashioned service and cultivation of his constituents. His voters, by his soundings, have, predictably in liberal Massachusetts, long since decided in favor of impeachment. But O'Neill continues at every opportunity to hear them out when he is home from Washington on weekends.

Recently TIME Correspondent Neil MacNeil followed Congressman O'Neill as he took what he calls his "ethnic walk" through home-town Cambridge, sampling opinion while simultaneously wooing votes. As he has every Saturday for years, he stopped at his Chinese laundryman's to pick up the shirts that his wife Millie had left earlier in the week, visited his Italian shoemaker, his barber, and half a dozen other shopkeepers.

Top Start. Lunging into Red's grocery, his huge hand outstretched, O'Neill greeted Vicki, the cashier. "How's everything going?" he boomed. "What do people think of Nixon?" Replied Vicki: "Most people think he should be impeached."

And so it went all up and down Massachusetts Avenue. "Dominick," O'Neill hailed an Italian tailor, "how's everything?" Dominick responded that the inflation was terrible; bread was up to 47-c- a loaf. "Tell me," asked O'Neill, "what kind of shape is the President in? Should he be impeached?" Answered Dominick: "You bet he should--I'm surprised you don't do it yet."

Back on the sidewalk again, O'Neill was spotted by a bearded, middle-aged driver who slowed down to yell, "You better get that important resolution out of the Judiciary Committee. We're watching you!"

In the delicate weeks and months ahead, O'Neill will indeed be watched as never before, particularly by his peers in the House. He will need all the acumen gathered in his lifetime in politics. But he started learning at the top almost from the beginning, and had the best tutors in the business along the way.

He first entered Congress in 1953 with the immense advantage of being the protege of Democratic Whip John McCormack, a fellow Boston Irishman who was later to become Speaker of the House. McCormack got O'Neill to look at issues not just from the point of view of Boston, as he had been raised to do, but from a broad national perspective. In O'Neill's second term, McCormack got him a place on the powerful Rules Committee, a rare honor for a new man since the committee controlled the flow of legislation to the floor.

With McCormack as his patron, O'Neill soon entered the inner circle of the House, where his blarney and good fellowship made him a quick favorite. O'Neill regularly attended the select meetings of Sam Rayburn's "board of education," afterhours sessions in the Speaker's office where the likes of Lyndon Johnson, Albert and McCormack met over bourbon to discuss the business of Congress.

O'Neill was also invited to take part in another congressional rite reserved for the elite--the late-night poker games involving some of the top leaders on the Hill. O'Neill more than held his own; he had helped earn his way through Boston College by playing poker. In one night of good hands, recalls O'Neill, a man could win $400. "Nobody ever got hurt," says O'Neill.

Reforming Pol. At the card table O'Neill met and for a while became friends with another poker player of repute--Richard Nixon, then the Vice President. But for all Nixon's reputation --he had won a bundle in the Navy during the war--O'Neill found him lacking. "Nixon was one of the lousiest players I ever played with," Tip remembers. "He didn't follow the cards. He talked too much. But he was an affable and likable guy in that friendly atmosphere, and the other players were nice to him because he was Vice President."

In the crunch of politics since then, the President and the Congressman have ceased to be friends, but O'Neill knew him long enough to offer an insight into his personality that he feels may partially explain Watergate. Because he is such a loner, suggests O'Neill, the President does not do enough personal assessing of the men being considered for his staff, taking them on the judgment of others. What is more, says O'Neill, "Nixon is well briefed--but he's briefed the way his people think he wants to be briefed. He's not briefed on the other side of the question."

For all his easy manner, O'Neill is a deeply ambitious man, a man completely confident of his ability to lead after his long years of experience in the House. In his early days, the Rules Committee was stalemated by a split between conservatives and liberals. To get any legislation he supported moving, O'Neill had to learn the House technique of bargaining, bluffing, pleading and bargaining again. Years later, O'Neill was able to use his position on the committee to drive a key bargain with President Johnson. When Johnson phoned to ask him to vote for a bill that he wanted badly, O'Neill replied: "Gee, I don't know if I can be there. I'm so busy trying to save the Boston Navy Yard." Said Johnson: "Let me worry about the Boston Navy Yard. You be at that committee. I need your vote."

When he became party campaign chairman in 1970, O'Neill won the respect of his fellow Democrats by distributing funds fairly, whatever the candidate's state or political philosophy. Old Pol O'Neill also earned points in the House by supporting the reforms of the Legislative Reorganization Act of 1970, which made public for the first time votes taken in committees and made on amendments offered on the floor. By steadily playing his own cards right, he rose to become party whip in 1971. Then, in October 1972, an airplane carrying Majority Leader Hale Boggs disappeared while flying across Alaska. In November, with Boggs presumed dead, the Democrats prepared to elect his successor. Before he became a candidate, O'Neill asked permission of Boggs' wife to go ahead, to be sure that she had given up hope that her husband would ever be found. Working the telephone, O'Neill lined up the support of 121 Democrats in three days and 190 by Thanksgiving. His only rival was Sam Gibbons of Florida, who quickly withdrew when he saw that the struggle was hopeless. Said Gibbons: "I know better than anyone that Tip doesn't have an enemy in the House."

In January 1973, the new majority leader was responsible for the adoption of a party reform weakening the traditional seniority system that automatically kept committee chairmen in power year after year. Now the chairmen must be approved at the start of every Congress by a vote of the entire Democratic caucus.

Agnew Rejected. As majority leader, O'Neill admits, "I'm a terrifically Democratic partisan." He has shown himself to be a skilled and salty battler with the White House, a role that Speaker Albert has never been able to fulfill because of his natural tendency to avoid controversy. When the President called for cooperation last summer between the Administration and the Congress--and then threatened to use some vetoes --O'Neill cracked: "It was hard to tell whether the President was calling for teamwork--or a scrimmage."

But O'Neill said he was willing to try to work with the White House--especially with former Congressman Melvin Laird, who was then on Nixon's staff. When the two old acquaintances met, O'Neill told Laird: "We've got the votes to pass legislation. You've got the votes to sustain vetoes. Let's talk." Talk they did, and what emerged from the conference was compromises that led to the passage of such bills as the act reforming manpower training.

O'Neill showed his influence--and political sensitivity--last September when Spiro Agnew sought to have the House of Representatives investigate reports that he had accepted bribes from Maryland contractors. During the meeting between the Vice President and the Democratic leadership, O'Neill immediately sensed that Agnew was desperately trying to keep the case out of the courts. When there was some indecision about how the matter should be handled, O'Neill was the man mainly responsible for convincing Speaker Albert that he should reject the plea out of hand.

After the Watergate affair broke open last spring, O'Neill became deeply involved in the House's reaction. He and Albert squelched as "premature" a move by Congressman John Moss to have the House start impeachment hearings after Senator Sam Ervin's committee began its work. O'Neill knew that there were insufficient grounds at that point to justify the step, which could jeopardize future efforts if the evidence came to warrant impeachment.

Then John Dean testified in June and O'Neill really moved into action. He told Chairman Rodino: "You've got to get ready. This thing is going to hit us, and you've got to be prepared for it. And keep it from becoming political."

As Rodino set up a special staff to study the question of impeachment, O'Neill kept badgering him regularly: "How do you think it's going? Are we moving?" When Rodino delayed too long in naming a special counsel, O'Neill delivered an ultimatum: "You've got to have your man before we go home for Christmas." In December Rodino named John Doar, who had O'Neill's approval because he was a Republican and thus could not be attacked for partisanship.

A House Divided? Prodded by O'Neill, Rodino has shown an increasing sensitivity about maintaining not only a nonpartisan approach but also the appearance of nonpartisanship. Last October, Rodino made the mistake of proposing that only he have the right to subpoena materials. When the committee voted on the motion, the Democrats predictably won by a straight party vote, 21 to 17. The Republicans then charged, not without some reason, that it appeared the Democrats were out to get the President by collecting only anti-Nixon evidence.

Last week Rodino corrected his mistake by offering to share the right of subpoena with Edward Hutchinson of Michigan, the ranking Republican on the committee. Rodino will soon ask the House to vote to grant subpoena power to the committee. That seems certain to be given, since Republicans are in the vanguard of those urging the committee to get on with its assignment. The effect will be to put the full weight of the House behind the inquiry.

Meanwhile, Counsel Doar and his staff of 40 are trying to lay hands on the documents, tapes and testimony that Special Prosecutor Leon Jaworski has been accumulating on all phases of Watergate. Without the files, warns Rodino, his hearings could drag on until next year--a prospect appalling to everyone. But Jaworski, who has to worry about charges of partisanship himself, has been carefully insisting that he does not now have the legal right to turn over his files to Rodino.

Jaworski has, however, been hinting broadly that he would gladly turn over his files to Rodino if so ordered by John J. Sirica, the federal judge who convened the Watergate grand juries. Rodino is expected to ask Sirica to solve the impasse. If Sirica refuses, Rodino can try to subpoena the materials. Assuming that he can get Jaworski's files, Rodino has promised O'Neill that he will push for a committee vote on impeachment by April or May.

"At the moment," says one G.O.P. leader, "there are not more than one or two Republicans on that committee who are inclined to support an impeachment resolution." One or two are not enough. It is generally agreed that at least six of the 17 Republicans on the committee must endorse the resolution before the Democrats dare risk sending it to the floor. Otherwise, unless one or more charges are clear-cut and proved, the Democrats would leave themselves open to the accusation of partisanship. In that case, not enough Republicans would support impeachment in the final vote --though the Democrats could force it through by simple majority--to convince the American people that the Democrats were not simply voting to oust a Republican nemesis.

And if a badly divided House sent charges against the President to the Senate, the leadership there might not be able to get the necessary support--two-thirds of the members present at the time of voting--to find Nixon guilty. As matters now stand, Republican leaders feel that no more than 44 Senators would favor conviction on the weight of the evidence available thus far.

While the House has been struggling with impeachment, the Senate has adopted an attitude of watchful waiting on the issue. Neither Majority Leader Mike Mansfield nor Minority Leader Hugh Scott has even allowed any time for an impeachment trial in their advance planning for the year. "I don't think the House will impeach," says Scott flatly. In an effort to keep wavering Republicans in line, Scott has warned: "History does not deal gently with regicides." For his part, Mansfield hopes that the House will not impeach "because politically it will help no one, and it will hurt the country."

But even Senate Republicans admit that chances for impeachment would vastly increase if another Watergate bombshell burst over Nixon's head. Says one key Republican: "If, for example, it were shown that the President had anything to do with the 18-minute erasure, or that he was directly involved in any other aspect of the coverup, all bets against impeachment would be off."

O'Neill is not waiting for a bombshell to remove the problem. And as he harries along the impeachment proceedings, he has other problems to worry about. A long agenda of important legislation looms. Congress has yet to pass an emergency energy bill to give the President broad powers to cope with the fuel shortage. In the wake of Watergate, there are bills to tighten the income tax laws and to provide federal financing for political campaigns. A trade bill is pending to give the President the power to negotiate worldwide agreements easing the flow of goods. There is rising sentiment for national health insurance. And up ahead is another fight over the size and shape of the military budget.

On the Prowl. As the Congressmen returned to the House last week, they came under pressure from lobbyists on both sides of the issue of impeachment, the most powerful by far being AFL-CIO President George Meany, who is now dead set against the President he helped elect in 1972. If Nixon does not resign, Meany wants him impeached and tried. The American people, he says, "have a right to know whether or not their President is a liar."

To check on the mood of the reassembling Congressmen, O'Neill was prowling the floor, the Speaker's lobby. cloakrooms, back offices, even the gym.

In all, he talked to more than 200 of the 431 Representatives. He detected that some Republicans who had been considering impeachment before the holidays were drawing back. "Their leaders are talking to them about their sense of loyalty," he said.

On the other hand, O'Neill's sensitive antenna picked up a slight change in attitude by some Southerners, who had formed a solid bloc against impeachment before the holidays. The main cause apparently was the call for the President's resignation two weeks ago by Arkansas' Wilbur Mills, who is not only one of the most powerful men on the Hill but also the chairman of the committee that is examining Nixon's tax returns. Reports O'Neill: "The Southerners came back wanting to see the evidence. If the evidence comes out that the President has lied or obstructed justice, that's going to solve the whole thing."

History Repeated? O'Neill also believes that more and more Republicans, caught in the crosscurrents of the impeachment process, will in the end go along with the recommendations of the Judiciary Committee--provided that they are fairly drawn on the basis of available evidence. The Republicans could then argue that they were only doing the honorable and intelligent thing: endorsing the views of the men and women who had studied the issue the hardest and turning the matter over to the Senate for final judgment as the Constitution provides. On quite another level, they could also argue that not to vote impeachment would play into the hands of those Democrats who would like to see the Republican Party still snarled in Nixon's problems come the November elections. Predicts O'Neill: "There's going to have to be an awful lot of arm twisting to hold them in line."

At his last estimate, O'Neill calculated that some 50 of the 188 Republicans were leaning toward impeachment, a solid start toward gaining the kind of bipartisan support that the House leadership has been hoping to achieve should impeachment seem warranted. Holding these and winning over others may well depend as much upon how the evidence is handled by the Democrats as the evidence itself. And O'Neill, as he well knows, cannot afford to make a mistake in the days ahead. Privately, he believes that in the end the process will not run full course, that at some point Nixon will "step aside for the good of country." But perhaps, barring new evidence, only when the President recognizes that the process otherwise will indeed run its full course.

The day of Gerald Ford's swearing in as Vice President, O'Neill was stopped by a friend in mid-dash to the ceremony. Asked why the urgency, O'Neill replied: "This is a historic event. The founding fathers never had this in mind. You may not see it happen again --for four or five months."

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