President on trial (1)

Where the 'Times' is wrong

Louis Claiborne

It is said increasingly — most recently on this side of the ocean in the Times leader of June

5 — that the President of the United States is not getting a fair trial. And this is laid at every possible door: the Washington grand jury investigating Watergate; the Senate Hearings, those chaired by Senator Ervin and others; and the Press, especially the Washing

ton Post and the New York Times. Why not also the British Press, including the London Times, which dutifully repeats every 'leak,'

innuendo, and accusation reported in America? It is a false charge. And sympathy misplaced.

The short answer is that no President is entitled to a fair trial and due process of law in the conventional sense — when the issue is his fitness for continuance in office, not whether he should be sent to jail. That is sim ply the consequence of holding an office of public trust. It applies to every such officer, executive, legislative, or judicial. You resign when you have lost the trust of the public; there ought to be no question of a trial or waiting for the law to take its course. Admittedly, the principle is better understood on this side of the Atlantic. But, certainly, it should govern the Presidency, the highest office in the world and one in which high standards might reasonably be expected.

Which is not to say that the President need be driven from office by mere calumny. But is that where we are? I had supposed it was no longer debatable that serious questions concerning Mr Nixon's involvementin the Watergate cover-up (if nothing else) do arise. Half the people of the United States believe him implicated; and he has half-confessed as much. If that were not enough, John Dean (who was very much there) has now accused the President of personally overseeing the cover-up. Surely, there is, at the least, a case to answer. Since the President has not resigned, the question is: How is the matter to be tried?

The Times objects to grand juries, both because they are too secret and too leaky. It castigates the Senate hearings, partly by invoking Mr Cox whose concern is simply that the witnesses may gain practical immunity from subsequent judicial trial by successfully claiming prejudicial publicity — in short, unfairness to the prosecution, not the Times's problem at all. And, finally, trial by the media is condemned as contempt of court (what says the Sunday Times?). All very well. But what does the Times suggest instead?

Is it impeachment proceedings? One wonders if that procedure would satisfy the Times's rigorous standards for a fair trial. Indeed, the voting of the Bill of Impeachment by the House of Representatives is very much like a public grand-jury session: it can be entirely one-sided, the Bill passed on unsworn, hearsay evidence, without offering the suspect any opportunity to appear, personally or by counsel, or to cross-examine his accusers. The so-called trial in the Senate is, admittedly, more like a court case. But it is not a criminal proceeding: there is no presumption of innocence, no strict rule as to evidence, no requirement proof beyond a reasonable doubt, no unbiased jury, no need for a unanimous verdict. Anyway, as Mr Louis Heren recently noted, impeachment is a last resort, to be used "with extreme caution and only in extreme cases." I assume the Times is not more impatient than those of us who think impeachment is still premature. Perchance, the Times favours having the President called before an ordinary court for an ordinary criminal trial. That would assure him the full panoply of due process: like any. accused, he would initially enjoy the presumption of innocence; he would be entitled to the assistance of counsel; he could call witnesses in his own defense and cross-examine his accusers; the trial would be public; and he could be convicted only upon the unanimous verdict of a jury of his peers. But the President claims constitutional immunity from , such ' ordinary' proceedings. Although he is probably wrong, criminal prosecution of the Chief Exeuctive would be novel. And a little too radical, I should have thought, for the Times.

What then? If impeachment proceedings are premature, a grand jury investigation too one-sided, a judicial inquiry impossible or inappropriate, congressional hearings too freewheeling, and trial by newspaper unfair, how is the case of the President to be determined? The only option left is no trial at all: a re.spectful silence instead. No doubt, that is what Mr Nixon wants. But it is inconceivable that the Times, should be urging such censorship.

Or is it? The Times loftily condemns the New York Times and the Washington Post

for abusing the " weight of their authority " by publishing Mr Dean's recent "preparatory statement" to the Senate Committee which directly implicates the President in the Watergate cover-tip. To be sure, this was a 'leak '(for all we know by Dean himself). The complaint is, rather, that it is unfair to the President to publish evidence which, on the one hand is "lethal" to the President's case, and, on the other, is " unsworn, unverified,' not cross-examined, contradicting, previous evidence, subject to none of the safeguards of due process, given by a man who may be bar gaining for his freedom." The very same charges could be made if Dean had himself read

his statement on television — in which event, of course, the New York Times could no more be criticised for reproducing it than the London Times now is for copying the American news-story on its own front page.

But, in that case, the Times might condemn Dean instead of the newspapers. Or would it?

It is difficult to appreciate why John Dean is not as free as the President to make an unsworn statement. After all, Mr Nixon (since seconded by Halderman and Erlichman) has in effect accused Dean of covering up from the President and from the public the in volvement of senior people in the Watergate affair. That charge was not made under oath; it was unverified; it was not subject to cross examination; it contradicted previous sta tements; there were no due process safeguards; and the author was a man fighting for his political life. Why is not John Dean entitled to reply in kind? He can be faulted for waiting so long. But it would ill-behove Mr

Nixon to make that point. Surely, the Times would not say that bad timing alone forecloses Mr Dean.

At all events, the Times worries too much about the supposed ' unfair' disadvantage of

the President in this controversy. Mr Nixon boasts of his ability to survive crisis. And he has shown how difficult it is to bring down a stubborn president.

Reading the Times, one would suppose that the President felt himself imprisoned by some convention that forbade his making answer

to the charges levelled against him — like e° impotent monarch to whom corresponding courtesy is due. But, in fact, Mr Nixon is en' tirely free to defend himself. And he has done so, ad nauseam.

From his privileged seat in the oval Office, with Lincoln at his side and the 11.1;," tional and presidential flags behind him,,YP Nixon has commanded prime television tifl to state his ,case. He will doubtless do 5° again. Recently — without benefit of oath,or cross-examination — he has given us 4,001 words of explanation. And, before and since: the White House has issued a dozen uniltere' pronouncements, some of them impliedly.ec. cusing others of perjury, obstruction of jos. tice and treason — not to mention the iese: majeste of disloyalty. In sum. the Presi011,' does not lack an equal platform from MU?: to put his side of the argument. Far from He may have used his advantage ineptly. Bul he certainly has used it, if not abused it.

Nor is the President disabled —

stitutionally or otherwise — from answerin, in other forums, if he wants to. He could COIO mumcate (orally or in writing) with the Pr°: secutors, the grand jury, and the Senate Committee. The fact is that he does not chose to do so. On the contrary, unlike everyone else accused, Mr Nixon claims, and thus fee has been conceded, special immunity fr0.°1 the compulsive process of both the judiclo and legislative branches. As President, he 1 is uniquely placed to decline to answer di!" cult questions on the ground that to do Or would impinge on "executive privilege' 0, imperil "the national security." And he he' not failed to invoke those prerogatives. In short, Mr Nixon has the best of hot]; worlds. He is free to say as much or as little he chooses, whenever and wherever he likes; to make all manner of accusations, with& oath or cross-examination, with full imporr, ity,. and from the still authoritative preside°, tial throne. He can withdraw previous n1,15, statements merely by labelling them "111„ operative." And, at the same time, Mr Nix?' can refuse to satisfy queries or to disclose et cuments with no more than a declaration tbs,, it would be "constitutionally inappropriate.,

What is more, as President, he can more t!', less get away with it. Perhaps this is all as!' should be. But do not tell me that Mr Nixon ii

the helpless victim of the Watergate Affair. , In the extraordinary circumstances, the is really no alternative to what is happen"t The whole business is most unseemly, to sure. But that is not because everyone being' unfair' to Mr Nixon. The embarrass„ mg spectacle has a single cause: a very ttil fished President exceptionally unable to sro preciate that, long since, it was his duty,t, resign, The London Times weeps to easily Pa.; a beleaguered Nixon. The New York Times Id right to save its tears for the presidency, an for the nation.