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 meant to be in private practice. hc\h [Content_Types].xml
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