Evan Davis Discusses the House Committee on the Judiciary Impeachent Inquiry, Part 2


bjbj Naftali: I was going to ask you about
Bert Jenner. Davis: Bert Jenner was a litigator of a very different style than John. John,
as I mentioned, was fade into the background, let the witnesses be the focus of the jury’s
attention. Both tried a lot of jury cases. I had not tried jury cases, but they had tried
jury cases. Bert Jenner, one of his trademarks was very brightly colored socks and John had
told me at one point he used to get John slightly aggravated because Bert would turn to Bernie
Nussbaum with John in the room and say, Now, Bernie, you and I are litigators, sort of
inferentially that John wasn’t a litigator. Bert was
an absolute straight arrow kind of guy, not
for distorting process. He was for letting the cards fall where they did and let that
needle end up wherever it ended up. He didn’t work as hard as the rest of us because his
life, that’s the way he was. He lived in the Madison Hotel and we all lived in these you
know little hovelled furnished apartments. I forget where John lived, but John did not
live in the Madison Hotel. Bert was larger than life. Bert was extremely likable, very
friendly would invite you over, very nice guy and no doubt a giant of the bar, no doubt.
Just a founder of a really great law firm. So I can see why he would turn to Bernie and
say, You and I are litigators. John from Wisconsin, it was a little bit different. That was Bert.
I wanted to mention one thing that as this needle is progressing to where is there a
case or not for impeachment. One thing, two things that were important for me and I think
for others as well, one is the misuse of
the concept of national security, which is very important and legitimate. I can accept
doing extreme things whose legality might otherwise be questionable in the name of national
security. National security is a real thing that’s important to the country and, obviously,
it was important then. It’s totally important today with all the threats we’re under. Therefore,
to use falsely national security as a cover seemed to me a compounding problem, compounding
reason to find subversion of the Constitution. I’m not sure that we ever focused on it too
much, but I think we did. I think we certainly pointed to the and the staff was all totally
we had this thing where when we were initially listening to one of the tapes, somebody had
written down, Earl Nash. They had heard Earl Nash. It was in fact, the President was saying
national security. National security was always this thing that was being used and it was
a problem that you would use national security as a cover for things that didn’t have anything
to do with national security. The other is, again, this is a big picture item, but overall
indifference to the legality, overall indifference to the legality. One thing we concluded, we
not only concluded there was a cover up. John ultimately stated that he had concluded that
there was circumstantial evidence that the President had authorized an illegal surveillance
program of which the Watergate itself was a part. Not that the President knew the particulars
of who was hired and this and that, what night they were going in, but he had authorized
an intelligence gathering, inferential, circumstantial evidence of the kind you described, but part
of one piece of the circumstantial evidence was this indifference we found in other areas
to what the law was to whether it was legal or not legal, whether it was obstruction of
justice or not obstruction of justice, whether it was proper or not proper from a legal point
of view. That, obviously, it’s a compounding fact for finding a constitutional high crime
misdemeanor because it relates directly to the duty to take care that the law has been
faithfully executed. It’s one of those and some people might say, Well, that’s a higher
standard for a President and will be applied in a criminal court, but indifference to legality
is a particular problem for a President in terms of his role under the Constitution.
Those were some things, in my mind, you don’t push the needle forward. Naftali: Did the
information from the White House prove useful in pushing the needle forward? Davis: Yes,
because of the differences in their transcripts from what was really on the transcripts. Naftali:
I was also going to mention the political matters memoranda that Gordon Strachan wrote.
Davis: I did not use those as much as those working in areas like
the Plumbers, Ellsberg, Dick Kelso. I don’t
recall pouring over those memoranda at all. I don’t recall using them in a significant
way. I think others may have, but I don’t recall them being a factor for me. Naftali:
In the final report, the staff I suspect and it may have been you, the staff makes a point.
I’m not a lawyer so I’m probably going to get this wrong, but the President kept making
case for protecting something because it was not relevant to Watergate in the tapes, in
the transcripts he released. Then when you listened to the tapes, you recognized that
there were sections that he’d said were not relevant that turned out to be relevant. It
wasn’t just an issue of their transcriptions being perhaps questionable, but it was also
the deletions themselves seem indicative of a continuing cover up. Davis: Right. Naftali:
In the footnotes, at least in your report, you refer to this over and over again as part
of a pattern. Davis: What I remember, the report was more of a Committee product because
it was the last thing that was written and the Committee was heavily involved whereas
the Statements of Information, John’s statement to the Committee at the end of the presentation
of information, was more of the staff product. I remember a book of focusing on eight transcripts
that the staff prepared and put out. My recollection, I’ve not read it recently, but for many years
I haven’t read it. I don’t think I have a copy of it. To my recollection, it had both
elements that you’re talking about. Things that were deleted, but it also had phraseology
changes that were important and material that were wrong and I also recall our having some
reason to think I don’t recall now what the details were, but that this was not just the
lawyers putting together these transcripts, but the President himself being actively involved
in the process of revising, reviewing, revising the transcripts, deciding what would be presented
and I can’t recall why we thought that, but I remember that so that it was not just a
lawyers call, but that he had been involved. I think it was a powerful piece of information
for the public, for the Committee and what’s persuasive to the public is relevant. That’s
the part of the thing, right, that the political process because it has to be something where
the public feels that this extraordinary step is justified. That’s where the Committee is
making a judgment about what the public, how the public will react. Naftali: Do you remember
the pressure on Mr. Doar to express his opinion? Davis: It’s something that I’ve been reminded
of recently by talking to John because I have talked to John. In thinking about this and
he reminded me that he had been pressured to express his opinion and he told me that
he understands Francis O’Brien, said that he was part of doing that and John didn’t
deny that was the case and that John should express an opinion. In preparing for this,
I did re-read his statement at the end there and it certainly expresses an opinion. Naftali:
But he didn’t want to do that initially. Davis: He felt that the Committee was really strong,
that all this was their decision. You notice when he starts to express his opinion, there’s
some Committee Members who start to interrupt a little bit and where’s the citation for
this and for that. It was not totally, I gather I didn’t go back and look at Sinclair, but
from the comments that are made objecting to the objectors that when Sinclair spoke,
nobody interrupted him. I think John felt strongly the Committee did not want the staff
or John or anybody reaching a conclusion for them, but he, ultimately, during the process
he did not express opinions. We had this putting a record before the Committee approach. Then
he expressed an opinion and then he obviously supported the Articles that were drafted to
put before the Committee, which they voted on. Naftali: Bill Wells said he knows that
there was an attempt to put Republicans in most of the task force to keep a sense of
bipartisanship, but he wasn’t sure if there were any Republicans who worked on the issue
of the cover up and the obstruction of justice. Were there any? Davis: There were and, as
I say, my recollection is that there was also a Republican on this tape group, but in the
group that I was working with there were a couple of Republican members. It wasn’t always
that obvious who was Republican and who was Democrat, but I think Gerard Stamble was Republican,
I think. I think there was another guy, blond hair what was his name? It’s hard to remember
all these names. Naftali: Were you their supervisor? Davis: Yes. Naftali: And who did you report
to? Davis: I would say I reported to a combination of Dick Cates and John and Joe, maybe Joe
Woods, although, Joe was very heavily involved with the reporting. Lines were not very clear
on the impeachment inquiry. I remember Bernie being involved in most everything. I certainly
talked to Bernie. The official senior lawyers were Bernie, Joe Woods and I think Dick Cates.
Is that per your records Dick Cates, Bernie, Joe Woods. John, Bert Jenner and then the
next level down to senior associate counsels. Bernie, Joe and I can remember meetings involving
all of them. Not really too clear who I reported to. I think I was a provider of information
analysis and Fred Altshuler you’re going to talk to him at some point, I hope, out in
California. He was very instrumental in writing up Statements of Information and using some
of the stuff that we developed. I didn’t view him as a subordinate or anything like that.
The thing I supervised was a group of quite younger people although, Bob Trainer was one
of them and he wasn’t that young who were really working through the materials. This
process of filling out chronology cards and chronology cards, they had the advantage of
forcing you to really focus and read carefully. To read it and make a card about a meeting.
You had to have a card then for each participant in the meeting about what they said happened
at the meeting. It was very good to focus. I can’t say that I remember taking a lot of
time and going back and using the cards as an original resource because by that time
I knew the key meetings, thirty key meetings something like that. I knew everyone who had
been at the thirty key meetings. I knew from my memory what they had said and where I could
find what they said, but having everyone do the cards was a very good sort of thing. Just
like the tapes, another good advantage of this is that everything gets checked by so
many different eyes that overstatement or misstatement is eliminated and we did not
want overstatement. It’s something I continue to do litigating today because an overstatement
just gets you into trouble. We wanted an objective view. So I do today and lawyers do today a
lot of internal investigations. We’re hired by companies to find out what happened and
then to report to them on what happened. This is somewhat similar in that, typically, we
would start by looking at documents, looking at prior testimony for their internal investigation.
We would then go on to ask witnesses about the documents and about prior testimony. We
did that and it generally involves a big team of lawyers doing it. One of the reasons for
the big is there’s some duplication in it, but it leads to the multiple eyes coming up
with both accuracy and things that otherwise might be missed. Naftali: When you helped
decide what the Committee would request, the subpoenas, how confident were you that you’d
get anything? Davis: Well, I can’t remember exactly what I thought and I don’t think I
necessarily thought we were going to get a whole lot. I think we thought we would get
something, but we didn’t get everything we asked for by any stretch. There was an Article
of Impeachment based on refusing to honor the subpoenas. I can tell you one story though
about the subpoenas. Very early on John and the Committee and I think the Chairman I did
not deal with the Chairman the way John did with Rodino. I think it was early on decided
there would be no effort to seek judicial enforcement of our subpoenas by the Special
Prosecutor, so we never went to court to enforce the subpoenas. People said, Why don’t you
go before Judge Scirica? He will definitely enforce the subpoenas, but we didn’t do that.
One day I got a call and Potter Stewart invited me to lunch. He also invited one of my court
clerks at the time, Tom Rowe. That was really nice. I was in Washington and the Supreme
Court was not far away from where we were and so it was very nice to have lunch. Potter,
in most of the lunch was just but I do remember at some point during the lunch he made a statement
about the unwisdom of asking the court, any court, to become involved. That s my recollection
is the way he put it. Once you ask the court to enforce something, they decide the rules.
They decide what they re going to enforce. They decide this and that and so as if to
say impairment of the prerogatives of Congress under the Constitution with respect to impeachment
because the courts will not just blindly sign a blank check for what you want they want
even more justification than we gave the Committee. We had already decided not to do that, but
I thought it was interesting. This was before Nixon, the Special Prosecutor case, The United
States vs. Nixon. That, of course, was different in that enforcement of the law in a criminal
context is a high priority for a court. A higher priority for them then a Congressional
Impeachment and so the Special Prosecutor got the benefit of the being in the Executive
Branch himself and enforcing the law. Of course, they were the ones who came up with the June
23rd tape. Naftali: Two questions one, what was Mr. Doar s response when you told him
about your lunch with Potter Stewart? Davis: I never told him because we had already decided
not to do that. Naftali: But the Supreme Court didn’t know that. Davis: The Supreme Court
didn’t know that, but John didn’t need to know because he wasn’t going to do anything.
Naftali: But what I’m saying is that Potter Stewart, he didn’t know. Davis: He didn’t
know that we might go to Judge Scirica and Naftali: Because at this point the subpoenas
had already been issued, correct? Davis: The subpoenas had already been issued and I believe
if my memory is correct, there had been issues about compliance. Naftali: That’s fascinating.
The second question I have to ask you about is Garrison. Did you ever interact with Sam
Garrison? Davis: Obviously and we would interact a little bit. I don’t think he viewed me as
a big central I was this worker bee down there doing this little task force of people, assembling
materials. I didn’t interact with Sam a lot. I remember in general people became unhappy
with Bert Jenner and Sam’s role increased. Naftali: People became I thought it was just
the Davis: Republican, right, Republican Committee members became unhappy with Bert and thought
he was not sufficiently telling the other side of the story, I think. I remember Sam’s
role increased. I don’t remember any particulars, though, of what that involved. Naftali: Back
to the Supreme Court issue for a minute. Was there ever any consideration of waiting for
the Supreme Court to rule because you knew that one of the things they were going to
rule on was that June 23, 1972 tape? Davis: There was no option to wait any longer. We
had just worn out, so when John spoke, as I mentioned, I did re-read that and it was
nice because he talks about a hundred of us and how this is the product of all hundred,
which is true. Maybe not all one hundred, but it is a very he talks about six and a
half months that we’ve been doing it and six and a half months was what we were going to
get. Naftali: What was the feeling before the vote on Article One? Was there a sense
that there would be a bipartisan majority? Davis: Yes, I think that either from discussions
that people had had with various members there was a sense. I think the members were quite
active in the drafting of the Articles and I have the recollection that you could tell
from who was participating and helping to draft which Article, who was going to vote
for it. I remember feeling at that point that there would be because of the people participating
there was going to be bipartisan support. Naftali: How do you remember feeling after
three Articles were approved by the Committee? Davis: The strongest feeling throughout this
process is the feeling that isn’t it amazing that you’re involved in this historic process,
but you can’t work up a sense of total momentousness because you re so busy dealing with the day
to day details of a historic process, but definitely, it was awesome to be involved
in a historic process. It was awesome to be a Supreme Court Law Clerk with all these big
cases. So I remember the feeling that this was a moment in history very strongly, but
I don’t remember being able to appreciate that feeling because there was much to do,
to dwell on it or to enjoy it. Naftali: Where were you and do you remember when you heard
the President Nixon was resigning? Davis: Yes, I had taken a vacation with my girlfriend.
We’d gone to a hotel resort kind of thing in West Virginia and we’re driving back to
Washington. It was on the highway and I heard that he had resigned and I didn’t have any
expectation that I recall about how it came out, but I recall distinctly saying that I
thought that was a good decision to give him a pardon. Naftali: I was talking about resigned.
Davis: That I don’t recall. I was talking about pardon. Resigned, I was not surprised.
The tapes had come out. He had no support. It just seemed inevitable. I don’t recall
feeling a sense of relief or elation, but it just seemed to be like I would feel now
if the Articles of Impeachment had been voted on a bipartisan basis and further evidence
come out and the Judge signs the Order officially making it a done deal. I felt that way. I
was not thinking about having a trial in the Senate or anything like that. I think it was
because I felt that he was going to resign that it was just not going to be sustainable
particularly after the Supreme Court decision and then the content of the tapes. Naftali:
Had the President not resigned that summer, at least what were you planning to do? Were
you going to stay with the inquiry or was the staff actually dissolving? Davis: I would
have stayed. I would have to stay. You can’t build up all that knowledge and say, oops,
thunder, that the country doesn’t need you. I mean it’s sort of an obligation to stay,
but again, I don’t recall thinking that was really going to happen after the point of
the tapes and the Committee becoming unanimous and that the Articles of Impeachment would
be voted. We’d done so much work on all the facts and all the information that we I don’t
feel we would have been scrambling to present a case had it come to that, but Naftali: What
was it no, go ahead. Davis: When I’ve done cases here when I was a younger lawyer suddenly
I would notice that the Senior Partner would lose interest in the case because they would
know how it was going to come out at that point. This wasn’t quite that, but it really
became, as I recall, fairly clear. Naftali: Did your Senior Partner lose interest? Did
he think it was going to end? I’m talking about John. Davis: You mean John Doar? I don’t
know the answer. I don’t know the answer, but I think I did. Naftali: So you didn’t
because was the staff’s intended to continue? Davis: We were all intact at the time of the
resignation. I was in the building in my office at the time of the resignation. At the time
of the pardon is different. That’s what I was telling about. I’d gone away, but at the
time of the resignation, I was there and I think everybody else was there. Then the resignation
was like August. Naftali: August 8th effective the next day. Davis: August 8th and I stayed
until towards the end of September something like that and in the period after August 8th,
the staff did unwind pretty quickly. Naftali: He resigned on TV August 8th left midday August
9th was the pickup and departure. Have we missed any anecdotes? Davis: I told you about
the pardon. I remember thinking in my mind that it made no sense and was not dignified
for a former President to be making mattresses in some penitentiary. It just seemed to be
wrong. Naftali: It’s striking how close many of the members of the staff remained. What
was it about the climate of 1970 for Washington that annealed the staff together that brought
you together so strongly? Davis: Isolation, couldn’t talk to the press, friends. We wouldn’t
talk about what was going on. Judges become very close to their law clerks because of
the same isolation. We all became very close to one another. We all ate together all the
time. No one had any social life. A unique experience that we all shared this whole process
that really no one else knew about or could easily be explained. I think that I changed
my attitudes about certain things ultimately unrelated to the topic of the impeachment.
For instance, I had worked in a Wall Street law firm and hadn’t really liked it because
it seemed very dull, but on the other hand, at the impeachment, I met these Wall Street
type lawyers who are not a bit dull like Bernie and Bob. Then other characters like Dick and
Fred and the others and it gave me a new respect for the private practice of law, which I had
not been. I was sort of on the road to being a permanent consumer protection division,
kind of guy, but I decided to see if I could find a way to be both do things in government
and part of the private practice of law because these people changed my mind about what it
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