Before Congress approves Agnew’s successor, it ought to find out what commitments he may have made to protect Mr. Nixon from the law when the latter leaves office.
Everybody has been asking whether, in choosing a successor, Mr. Nixon would be swayed by the good of the country or the good of the Republican party. An altogether different consideration may outweigh either, and that is the good of Richard Nixon as the central figure in several ongoing criminal investigations, among them Watergate, the Ellsberg break-in, and the ITT affair.
The good of the country called for a caretaker nomination of unimpeachable character—how the phrase has changed overnight from a cliché to a painful need! The good of the Republican party called for an appointee who could be built up into a winning candidate by 1976. But Mr. Nixon’s own interest is in a successor he can count on to use all the powers of the Presidency to protect him in any litigation or prosecution after Nixon leaves office. To put it plainly, Mr. Nixon needs to make sure that his successor will not treat him as he treated Agnew—as expendable.
There are at least three spheres in which the presidential powers of his successor can be exercised to Mr. Nixon’s benefit. One is that of the tapes.
Let us suppose that the Supreme Court eventually upholds the subpoenas of Special Prosecutor Cox or the Ervin Committee, or both, and that Mr. Nixon refuses to hand the tapes over on the excuse that the decision is not “definitive,” a word for which the Chief Executive refuses to supply a “definitive” definition.
These tapes are the property not of Mr. Nixon personally but of the White House. Their confidentiality, if any, is a function of the office and not of the man. When he leaves the White House, will his successor keep the tapes in custody or turn them over?
Mr. Nixon can decline to hand over the tapes even on trial by impeachment. Should he be removed by impeachment or resign or serve out his term he might still be prosecuted afterward for conspiracy to obstruct justice or for some other crime. Such prosecution might be facilitated if his successor decided that the Supreme Court had to be obeyed, and handed over the tapes.
The two other areas in which the new appointee could protect Mr. Nixon when he leaves office lie in the President’s power as the country’s chief law-enforcement officer and in his power of pardon. The former includes his control not only over the Department of Justice but also over the Internal Revenue Service. The latter is important because of the unexplained questions about Mr. Nixon’s income taxes and the public funds expended on his private homes.
Mr. Nixon’s view of these extensive powers can only be described as crass. This has just come to light in the Memorandum of Law which his solicitor general filed on October 5 with Judge Hoffman. This…
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