The Undoing of the Justice Department: After the “Saturday Night Massacre”

“Iwould like to put myself to sleep for fifty or sixty years,” said a young assistant to Elliot L. Richardson, “and then wake up and see what history says about all this.” It was the first working day after the “Saturday night massacre” (also known as the Justice Department’s “night of the long knives”)—Saturday, October 20, 1973—when Attorney General Richardson, Deputy Attorney General William D. Ruckelshaus, and Special Watergate Prosecutor Archibald Cox went down the drain for disobeying the President. The victims and bystanders of this spectacular were still shaking their heads in amazement and trying to reason out what had happened. Another aide, an older man whose service had begun before the Nixon Administration took office and continued throughout it, thought it unnecessary to await history’s verdict. “I am in the theater of the absurd,” he declared with a smile, “but it’s no longer complete fantasy.”

This particular scenario was, after all, a bit bizarre. Angry one autumn evening over the special prosecutor’s unrelenting quest for evidence, President Richard Nixon, the man elected on his promise to restore decency and safety, brings the country to the brink of a complete, if temporary, breakdown of law and order. For a few moments, it seems as if there will be no Attorney General at all. General Alexander M. Haig, Jr., the President’s new chief of staff, is on the phone, the sound of drums in his voice as he speaks of orders from the “Commander-in-Chief.” A crucial decision falls to one man, virtually unknown to the public. Robert Heron Bork, the Solicitor General. Bork. who has barely five minutes to think things over, resolves the immediate problem by agreeing to fire Cox. Haig orders FBI agents to seal off the offices of Richardson, Ruckelshaus, and Cox.

A Houston attorney, Leon Jaworski, is selected to succeed Cox; the appointment receives mixed notices. In November, a federal judge declares that the firing of Cox was illegal. The Justice Department, having made a brief but impressive recovery from earlier adversity, becomes the newest casualty of the continuing Watergate crisis.

Hardly anyone could have been less well prepared for the historic summons to the telephone that evening than Bork, whose power as Solicitor General is, under normal circumstances, largely symbolic and advisory. His contact with the Watergate cases had been minimal, and at the crucial moment he was in his office reviewing proposed appeals of lawsuits by the federal government and writing a letter to a third-grade class on “the importance of Bill of Rights Day.” Haig apparently did little research before throwing down the gauntlet; there was no sign that he was aware of an essential fact that troubled Richardson, Ruckelshaus, and Bork: if the Solicitor General also resisted the White House command and resigned rather than take over as Acting Attorney General, there would then have been no chief law enforcement officer of the United States. (The chain of succession, as spelled out in the law and departmental regulations, went no further than the Solicitor General, who ranks third on the table of organization; it was not a problem that had arisen often since the Justice Department was established in 1870.) No federal antitrust complaints could be issued, because the law requires that they be signed by the Attorney General. The authority for any criminal prosecution brought in the name of the United States might be questioned. And surely large numbers of lawyers and other employees would quit the ranks of the Justice Department.

Bork later justified his decision on the grounds that he, unlike Richardson and Ruckelshaus, did not consider himself bound by a pledge of independence for Cox and that he, a Yale Law School professor, believes that “the President has the right to discharge any member of the Executive Branch he chooses to discharge.” Even then, Bork considered resigning after taking care of Cox. (“I did not want to be perceived as a man who did the President’s bidding to save his job,” he said.) But Richardson and Ruckelshaus talked him out of leaving. Bork, in turn, persuaded Assistant Attorney General Henry E. Petersen, chief of the Department’s Criminal Division, and others to stay on, at least temporarily, because “the Department deserved continuity.”

The loyalty that was evinced was to neither a man nor an Administration but to an institution. It is difficult to imagine such loyalty in time of crisis toward, say, the Department of Agriculture or Commerce or the Federal Power Commission. But the Department of Justice is an uncommon institution, a peculiar mix of legal responsibilities and political discretion which “derives its strength.”as one thirty-year veteran puts it, “from the fact that it is an agency which has never really been managed.” It has survived the best and the worst of leaders. A number of attorneys general have gone on to the Supreme Court and a few into disgrace. Meanwhile, a corps of professionals has been built up who actually think of themselves as conducting the public’s business. But the Justice Department was rarely, if ever, distinguished from other departments or agencies by the Nixon White House when it was in the mood for absolute political responsiveness from the bureaucracy, and so the Saturday night massacre did not totally shock those

who had watched the relationship carefully from early 1969. The Administration’s lack of awe—some would say lack of understanding or appreciation— for the Department had produced an extraordinary number of ups and downs for it.

In many respects, after the Supreme Court, the Justice Department was the most important target of Mr. Nixon’s emotional law and order campaign in 1968. Ramsey Clark, President Johnson’s last Attorney General, was vilified by the Republicans as much as anyone was that year for his refusal to use the wiretapping provisions of the Omnibus Crime Control and Safe Streets Act and for his alleged failure to take a tough enough stand against growing antiwar militance. Upon election, Nixon sent the man who orchestrated much of that vilification, campaign manager John N. Mitchell, to Justice as Clark’s replacement.

Clark was probably respected among the Department’s rank and file as much as any other Attorney General had been in decades, contrary to the implications of the remarks about him that would continue for several years (for example, Richard Kleindienst’s often-repeated remark that Clark “would have made a good social worker in a welfare department”). But Mitchell’s arrival was greeted with enthusiasm by some of the professionals. Although he was from a Wall Street law firm that specialized in municipal bond issues and he knew little about public administration, Mitchell gave the hard-nosed prosecutors in the Department the feeling that he had come to unleash and encourage them. He signed on an Antitrust Division chief who believed that conglomerate mergers could be attacked under existing law; he authorized wiretaps right and left; and he eventually beefed up the Internal Security Division to a strength it had not had in about fifteen years.

Mitchell had another attribute that had been matched only by Robert F. Kennedy eight years earlier: he was the President’s closest confidant, a position that led him to run the Justice Department with one hand while he dabbled in additional affairs of state with the other. Dissimilarities aside, the two men became our most political attorneys general in recent years.

“Mitchell gave us a great deal of autonomy,” says one man who served as an assistant attorney general under him. “We only went to him with unusual problems. He saw his own role mostly as that of adviser to the President, and they were on the phone together constantly.” That closeness to the White House had two valuable dividends: since nobody messed with Mitchell, the Justice Department was initially spared the interference of White House political aides, notorious elsewhere in the government. And even in times of austerity and budget-cutting, Mitchell was able to get the Justice Department whatever it wanted. Indeed, the Department’s budget mushroomed dramatically, with the annual appropriation request more than tripling between fiscal years 1969 and 1974 from half a billion dollars to over $1.8 billion. Notable increases in funding went to the Federal Bureau of Investigation. United States Attorneys’ offices around the country, and efforts to enforce narcotics laws, which were increasingly concentrated at Justice.

The most striking growth, and the basis for many of the Administration’s boasts about escalation of the war on crime, was in the Law Enforcement Assistance Administration. Originally a small operation focusing on training, research, and other “software,” LEAA was converted into a clearinghouse for block grants to the states, where local police and state house officials, only casually monitored from Washington, spent their money on such items as elaborate crowd-control equipment and, in one instance, a submarine. Because of the prospect for high visibility of the appropriations back home, congressmen were especially generous with LEAA funds; by the start of the second Nixon Administration the unit accounted for $891 million, or nearly half of the Justice Department’s fiscal 1974 budget.

To the extent that it must reflect electoral pressures and shifts in public opinion and priorities, law enforcement is inevitably political. It is a truism that both Democrats and Republicans, on any level of government, would sooner exercise their prosecutorial discretion against each other than against their own friends and allies. Court deals have long been struck and favors done for political benefactors, and it may just be that, since the Nixon Justice Department was relatively inexperienced politically, it was more visibly overt than is customary about this unsavory, usually unspoken side of its business. In any event, the press and the public began to notice transactions which they had previously ignored. For example, in the months leading up to the 1972 presidential election, a close associate of Alabama Governor George C. Wallace was permitted to plead guilty to minor charges and to resign his commission in the Air National Guard rather than face trial on an indictment for raising illegal political contributions among the troops on Wallace’s behalf. (That, after all, is in substance the same kind of arrangement that was later worked out for the mightily fallen Spiro T. Agnew, justified in that instance as a means of sparing the nation the “agony” of a long court trial and possible impeachment proceedings.)

What bothered some Justice Department professionals more than such old-fashioned political considerations was what seemed to be the ideological politicization of law enforcement under Mitchell’s leadership. Among the signs was an antitrust suit against the television networks-long in the works but considered unwise and unwinnable by a succession of antitrust policy managers—launched just in the midst of the Administration’s bitter effort to discredit the news media and still pending. Mitchell devoted unprecedented resources to the prosecution of volatile political cases against the radical Left (diverting the chief of the Criminal Division’s Organized Crime Section from his usual tasks, for example, so he could prosecute the Harrisburg, Pennsylvania, conspiracy case against the Reverend Philip Berrigan and other Catholic militants), cases which veteran prosecutors considered hopeless from the start, a judgment that was usually confirmed by juries or appeal. At the same time, despite what was said to be overwhelming evidence in an FBI report. Mitchell refused to convene a federal grand jury investigation into the responsibility of members of the Ohio National Guard in the shooting deaths of four Kent State University students during a May, 1970, antiwar demonstration there.

The prestige and invulnerability of the Department within the Nixon Administration lasted only as long as did Mitchell. When Mitchell left to run the President’s second campaign, the nomination of Richard G. Kleindienst to be Attorney General meant the beginning of a steep decline in the Department’s standing in the Nixonian pecking order.

Kleindienst was popular inside the Justice Department. Since he had been delegated an unusual amount of operational responsibility as Deputy Attorney General under Mitchell, he was familiar with the procedures and practices of various divisions. He was personally acquainted with every one of the ninety-one regional U.S. Attorneys. And he actually made it a practice to consult with section chiefs and those working directly on cases rather than adhere strictly to the chain of command. Yet, despite Kleindienst’s unflinching and outspoken political loyalty, he was regarded at the White House as an unreliable hip-shooter not to be trusted on the development of policy or recruitment of personnel, and he became a favorite object of abuse from Nixon aides John D. Ehrlichman and H. R. Haldeman. during their famous tenure as palace guards.

The White House reacted with fury when only a few days before his anticipated confirmation by the Senate, Kleindienst, confronted with allegations that he had improperly influenced the settlement of antitrust suits against the International Telephone and Telegraph Corporation and that the settlement was tied to ITT’s pledge of funds for the 1972 Republican National Convention, took it upon himself to request that his confirmation hearings be reopened by the Senate Judiciary Committee. (The fury came into proper focus only later, when it was learned, in the midst of the controversy over the firing of Cox, that Mr. Nixon had once telephoned Kleindienst and, calling the then Deputy Attorney General a “son of a bitch,” ordered him to suspend the government’s appeal of one aspect of the ITT antitrust case.) Only Kleindienst’s powerful allies in Congress, including Republican Senator Barry Goldwater of Arizona, saved him from being dropped altogether by the White House during the hearings, and they had to intervene again to help him keep his job after the President’s reelection.

On three separate occasions, Kleindienst sought to obtain White House clearance for the appointment of Ruckelshaus, a former Assistant Attorney General in charge of the Justice Department’s Civil Division and then administrator of the Environmental Protection Agency, as his Deputy Attorney General, but each time he was refused. The third time, after Ralph Erickson, a Los Angeles lawyer, had been fired from that job by the White House, Kleindienst was forced to accept as his deputy a man he had never met before, Duke University Law School Dean Joseph T. Sneed. The President, a Duke Law School alumnus, had apparently been impressed with Sneed at a cocktail party, and the dean thus became the White House’s choice for successor to Kleindienst as soon as the latter could be forced out.

Kleindienst lost Erickson and a number of other valued associates after Nixon’s reelection in brutal sessions with his White House straw bosses during which the Attorney General was required to justify or abandon each person in the Department’s top echelon. One Assistant Attorney General, law professor Roger Cramton, who had fought some tough battles on Capitol Hill on the Administration’s behalf during six months as head of the Office of Legal Counsel, was dropped, allegedly because Ehrlichman and others in the White House considered him too “arrogant and outspoken.” In each instance, the White House fabricated public reasons for an official’s departure, asserting, for example, that Cramton was eager to return immediately to teaching although it was the middle of the school year.

In the words of one official who worked closely with him, Kleindienst “was expected to call over there for permission every time he went to the bathroom.” Last spring, when Kleindienst submitted his own resignation—on the basis of his close relationship to men who were then under investigation, Mitchell and former Assistant Attorney General Robert C. Mardian of the Internal Security Division—the President delivered a final indignity. Although Kleindienst had then in no way been implicated in the burgeoning scandals, the President announced his departure at the same time as those of three men who had been seriously implicated: Ehrlichman, Haldeman, and White House counsel John W. Dean III.

Then, with evidence mounting that both the Department and its largest component unit, the FBI, had been abused and compromised during the original Watergate investigation, it was only natural to conclude, as the Senate Judiciary Committee did last spring, that a special prosecutor from outside the Department would have to be named to investigate and prosecute the cases. The White House, in a weak bargaining position by that time, gave in and accepted such an appointment as a condition of the confirmation of Elliot Richardson to succeed Kleindienst.

Nothing could have been worse for the Department’s morale. It was, in effect, a declaration that Justice could no longer be trusted to do the job. Many officials, old-timers and new recruits alike, considered leaving, but worried that the timing of their moves would be misinterpreted as indicating complicity in the Watergate scandal or other misconduct. The month-long interval between Kleindienst’s resignation and the arrival of Richardson over the Memorial Day weekend was described by one lawyer as the “nadir” in his more than thirty years at the Department. Kleindienst was the lamest of ducks, with nothing to do but autograph pictures and answer letters; Richardson was an unknown quantity; the Department was in utter disarray.

If anything inspired hope among the weary and disenchanted legions, it was the terms and circumstances of Richardson’s appointment. He swore that the special prosecutor’s independence would not be compromised and drew up a charter stating that Cox could be fired only on the basis of “extraordinary improprieties.” Richardson himself seemed to have an unusual guarantee of independence from the White House. He made no secret of his view that there was a need to restore “the confidence in our legal system,” so thoroughly eroded by the Watergate affair; at his first press conference as Attorney General, he declared that should the President and Cox clash on any aspects of the Watergate probe, he would necessarily side with the prosecutor.

Still, some careerists at the Justice Department were suspicious. They had seen Richardson defend and implement Nixon Administration policies with which he had privately disagreed—as Secretary of Health, Education, and Welfare (the anti-busing drive) and as Secretary of Defense (the Southeast Asian bombing strategy)—and they wondered how far he would now feel compelled to go out of loyalty and devotion to a President whom he had served for more than four years.

Richardson moved into the Justice Department in the fashion of a man who intended to stay a while and to leave his managerial mark as perhaps no one had since Homer Cummings, President Franklin D. Roosevelt’s first Attorney General, who organized the Department into litigating divisions (tax, criminal, antitrust, and so on) and delineated the stages of litigation within each (investigation, trial, appeal, and so on) or Herbert Brownell, President Eisenhower’s first Attorney General, who launched a program to recruit top law students into Justice Department service. Once Richardson had Deputy Attorney General Sneed safely tucked away with a federal appellate court judgeship on the West Coast, he chose Ruckelshaus— in this instance, without resistance—as his deputy. Ruckelshaus, who was respected within the Department, had just run the FBI for seventy days as a stand-in after Acting Bureau Director L. Patrick Gray III resigned under fire. Among the personal aides Richardson had accumulated at HEW and Defense (and before that as Attorney General of Massachusetts and Undersecretary of State) were some nonlawyers. He brought them with him and encouraged them to look at the problems handled by the Justice Department from a social and organizational, rather than strictly legal, point of view.

Considering the accelerating crises (the investigation and eventual resignation of Agnew, the White House’s growing unhappiness over Cox), it was remarkable that Richardson moved so quickly to shake up the Department. In apparent recognition that confidence in the administration of justice is as much a matter of appearance as of reality, he used an address to the American Bar Association to issue a new regulation requiring that all contacts from outside the Department on any pending case, including those from the White House and other federal agencies, be listed and ultimately made available for public scrutiny. After dismissing the case against a Boston Globe reporter arrested and indicted while covering militant Indian demonstrations at Wounded Knee, South Dakota, he issued stiff new rules to prohibit even the informal questioning of newsmen without the prior approval of the Attorney General. Together, Richardson and Ruckelshaus helped the White House select Clarence M. Kelley, police chief of Kansas City, Missouri, as the new permanent Director of the FBI, and then embarked with Kelley on an unprecedented review of FBI investigative standards and policies. In a speech planned for late October, but never delivered because of his resignation, Richardson was intending to announce a plan for taking the appointment of U.S. Attorneys and U.S. Marshals out of the political patronage system. He was also studying a proposal to do the same with federal judgeship appointees.

Some of the steps taken by Richardson and Ruckelshaus seemed like simple matters that one would have expected years earlier in a department responsible for leadership of the legal policy of the federal government. Last summer, for the first time that anyone could remember in recent Department history, they invited the general counsels of all other Cabinet departments to meet with them in the Attorney General’s conference room. Ordinarily confined to sporadic and sometimes tense contacts with lower-level attorneys in Justice’s Civil Division, the general counsels were encouraged to discuss their own problems and help formulate overall policy.

For all the charm of the Department’s casual management and the strength of its professionalism. Richardson and Ruckelshaus found that no significant organizational changes had really been made since Cummings’ day, and that policy often evolved on a case-by-case basis, with one division of the Justice Department advancing a course of action that was utter anathema to another unit. As a case in point, they discovered that Henry Petersen’s Criminal Division had decided in 1971, for reasons of economy and resource allocation, that it would no longer prosecute interstate car-theft cases under the Dyer Act if they involved youthful “joy-riding” but would leave those to the states and concentrate instead on major stolen-car rings with possible ties to organized crime. As a result, the number of successful federal prosecutions under the act was halved, from about 4200 to 2100, between 1971 and 1972—a fact that infuriated the statistics-conscious FBI, which complained of “selective law enforcement” and of having to send agents into less efficient state courts on the same cases.

On the other side, however, was the report from the Federal Bureau of Prisons that because of the Criminal Division policy, youthful car thieves now made up only 12 percent of the federal prison population, instead of twice that figure — considered a salutary development, since many young men learn new criminal techniques in prison. Richardson and Ruckelshaus convened an unusual meeting with Petersen, Kelley, and Prisons Director Norman Carlson to discuss the problem. Kelley argued that the policy might be a mistake on other than statistical grounds, since he had found that the best way to prevent a life of crime is to arrest someone after the first offense. No one knew what the experience of the states had been with the cases passed along by the Criminal Division, but all agreed to submit the issue for research and study by the Department’s Office of Criminal Justice.

Despite improved morale and a freshly polished public image for the Department, many of Justice’s career employees were skeptical of Richardson’s regime. They suspected him of advancing his own political ambitions and resented the group of “whiz kids” in his circle (all white males and almost all, like him, Harvard graduates), who effectively isolated him from almost everyone below the rank of assistant attorney general. He, like Kleindienst, was accused of being subservient to the men at the White House, tolerating, for example, an unusual and ambiguous intervention in the Agnew case by presidential counsel J. Fred Buzhardt. Some mocked Richardson for spending an enormous amount of time on a paper “reorganization” of the Department, changing some lines of authority and introducing new planning capacity. They sympathized with his desire to make the 47,000-strong Department less “the world’s largest law firm” and more a “ministry of justice,” but predicted that the effort, like many similar ones in the past (including one attempted under Ramsey Clark), would fall flat. “Even in four years it would be hard to remake the Department,” said one who has seen attorneys general come and go. “You just can’t get away from the crises and the cases,” he insisted, by formulating comprehensive standards and intricate organizational charts.

Still others, young lawyers who hoped that Richardson would take advantage of his presumed independence to renounce some of the Nixon Administration’s law enforcement shibboleths and to challenge some of the baronies within the Department, criticized him for certain discretionary decisions, for example, going forward with the Gainesville, Florida, trial of the Vietnam Veterans Against the War charged with planning riots at the 1972 national political conventions (the jury ultimately acquitted them.) At the same time, Richardson was widely respected for endorsing the desire of J. Stanley Pottinger. Assistant Attorney General for the Civil Rights Division, to reopen the Kent State investigation, one of many decisions by Mitchell subject to reconsideration after his indictment on charges of perjury and obstruction of justice (and one that the President’s proposed new Attorney General, Senator William Saxbe, himself an officer in the Ohio National Guard, said he would like to turn right around again).

A number of officials who were close to the Watergate investigation also blame Richardson for trying to compromise too long and too far with the White House over Cox’s demands for evidence. The Saturday night massacre might have been avoided altogether, they suggest, had Richardson laid down the law sooner with the President. And Richardson might possibly have helped prevent the demise of the original special prosecutor by pointing out what Cox was apparently too naïve or proud to see himself: that a staff made up almost entirely of liberal Democrats would inevitably give the White House fuel for charges of partisanship in the investigation.

The Justice Department has been caught in the swirl of government scandals before, notably when President Harding’s Attorney General, Harry M. Daugherty, was implicated in the Teapot Dome oil-lease scandal and when President Truman fired Attorney General J. Howard McGrath for dismissing a special prosecutor looking into corruption in that Administration. T. Lamar Caudle, Assistant Attorney General for the Tax Division under McGrath, went to jail for fixing federal tax cases. Rarely, however, has the Department been so thoroughly abused and shaken that its capacity to coordinate federal law enforcement efforts, and to lead the states by example, is called into question.

Some basic functions do continue, regardless of the crisis. As one Department lawyer puts it, “Yes, the mail is still delivered in the midst of the holocaust.” Reforms that have been launched but never implemented are meaningless, and supporters of Richardson and Ruckelshaus in the Department fear that some of their most important plans, such as the review of FBI policy, may now go by the board. The October massacre kept some major vacancies open—Richardson had not yet acted on plans to fill them—and gave some of the unsatisfactory officials he intended to dismiss new leases on their jobs. Others plan to leave in protest, but would just as soon have the badge of honor that now comes with being dismissed by the Nixon White House.

Although there are important exceptions (in Chicago, for example, where U.S. Attorney James R. Thompson has built an independent reputation with his crusade against corruption among public officials and is hardly tied in the public mind with the Justice Department), indications are that federal prosecutors in the field are also being affected. As one U.S. Attorney from the West candidly put it, “Courts and juries are a little less likely to believe federal agents now.” What is more, he explained, the federal government is in the unusual and unfortunate position of having thousands of legal representatives who have lost their respect for the Chief Executive because he has been “fooling around with the court processes.”

The walls in the Attorney General’s suite on the fifth floor of the Justice Department building are pockmarked from the recent frequent changes of pictures and diplomas, and the word “transition" has come to mean business as usual. As the President’s nominee to succeed Richardson, Senator Saxbe, put it. “We have a real crisis in proving to the people that our system of government can work.”

In the meantime, Mr. Bork—attempting to handle three jobs at once—has issued a regulation establishing the order in which six assistant attorneys general will succeed him if necessary. There’s no telling when General Haig will be on the phone again. □