Evan Davis Discusses the House Committee on the Judiciary Impeachent Inquiry, Part 1
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Evan Davis Discusses the House Committee on the Judiciary Impeachent Inquiry, Part 1

November 30, 2019


bjbj Naftali: Hi, I m Tim Naftali. I m Director
of the Richard Nixon Presidential Library and Museum in Yorba Linda, California. It
s September 29, 2011, and I have the great honor and privilege to be interviewing Evan
Davis for the Richard Nixon Oral History Program. Evan, thank you for doing this. Davis: My
pleasure. Naftali: Give us a little bit of your prehistory before you joined the inquiry
staff. Davis: I was born in Manhattan, so I m a real New Yorker, but when I was very
young, about a year old, I was yelling and screaming so much as a kid in this small Manhattan
apartment that my parents felt it was really important to move to the suburbs. So we moved
to Connecticut when the suburbs were really quite rural, and I grew up in Riverside, Connecticut.
I went to public schools in Riverside through junior high school. And then the high school
in Riverside was this building that had six or seven stories with three-minute or four-minute
passing periods between classes, and while at that time I was quite good at going up
and down stairs on crutches, I was not going to be able to do that in three or four minutes
with crowds of high school students. So my parents thought I should go to a prep school,
and I went to Exeter. I was at Exeter for three years, and I had to climb stairs there,
too, but the schedules extends through the day and it was easier to organize. I enjoyed
Exeter a lot. I often think today most of what I know really comes from Exeter because
I actually worked hard at Exeter. Law school, too. Harvard, not so much. Then I went to
Harvard and graduated in 66. I went to Columbia Law School, and I enjoyed law school a lot,
and I became Editor in Chief of the Law Review and did well at Columbia. And I first went
to clerk for a judge on the D.C. circuit who was a former Columbia student, also had been
Editor in Chief of the Law Review. Every year took a Columbia clerk. Harold Leventhal. Harold
Leventhal was an interesting judge. He d been involved in Democratic politics, had been
the lawyer handling the Fannie Lou Hamer issues of the seating in the Democratic Convention.
He d been an oil and gas regulatory lawyer, Federal Power Commission lawyer in Washington,
and became a wonderful Circuit Court judge with a specialty in administrative law. So
I clerked for him for a year, then I clerked for a year for Potter Stewart. Potter Stewart
had been involved in Republican politics. His father had been mayor of Cincinnati. He
himself had run for the Cincinnati Council. He d practiced law in New York City. So Harold
Leventhal from the Democratic side and Potter Stewart from the Republican side were both
similar in their approach to issues, in their love of writing, for example, and crafting
opinions. So it taught me that there is a little bit of difference between judging and
politics since these people came from two very different political backgrounds. Getting
a clerkship on the Supreme Court is a total lottery. There are many, many, many, many
people qualified to do it, and you re just luck, and I had the luck to get to clerk for
Potter Stewart. After that I went to work Naftali: ve actually had an opportunity to
ask somebody else, Professor Fisk, for what term did you clerk? Davis: I clerked the October
1970 term. We had some very important cases. We had the Pentagon Papers case. We had the
Cassius Clay case. We had some federalism cases of importance, Younger v. Harris. We
had a very important segregation, school-busing case, Swann v. Charlotte and Mecklenburg.
We had a very important gender discrimination case, Griggs v. Duke Power. We had very important
First Amendment cases. I happened to be there during a very interesting year on the Court.
They re all quite interesting but mine was especially interesting. Naftali: Would you
like to preserve some of your recollections about the Pentagon Papers case? Davis: s a
little bit off topic, but I know the justices did not feel comfortable with at least Potter
Stewart did not feel comfortable with meshing the demands, the legitimate demands of national
security, with the open transparency of the judicial process. I think as the case progressed
to higher and higher levels the government was willing to provide more information about
what it saw as securities concerns, and this information of necessity has to be provided
in a very secret way. So for example the law clerks were not allowed to look at this evidence.
The justices had to view it individually. And I think that raised discomfort. And I
think it helped move Justice Stewart and some of the other judges to the conclusion that
the government should be cautious in designating things classified, but when they designated
them classified should take every conceivable step on their own, because once the cat was
out of the bag it was gonna be very hard for the judiciary to solve the problem for them.
So that was a basic attitude, I think, that the justice had. I think it s reflected in
some of the concurring opinions. Everyone wrote their own opinion. It was in that sense
a difficult case because it didn t really fit the typical judicial process. Naftali:
Given its importance in the history of civil rights, could you just comment a little bit
on the Mecklenburg case? Davis: That was a case where I think the, the judges were more
than usually inclined to defer to the judgment of the trial judge, the District Court judge.
Because the district judge was there courageously defending the Constitution in a difficult
circumstance, and I think they maybe bent over backwards to support him in the courage
of his defense of the Constitution. Naftali: What comes next for you? Davis: So then I
went to work for the New York City government. I started out in the budget division where
I was the first person to be General Counsel of the New York City Budget Bureau as it was
then called, now called the Office of Management and Budget. And after a year there the corporation
council brought me up to be the Chief of the Consumer Protection Division in the law department.
So when I went to work on the impeachment inquiry I left being Chief of the Consumer
Protection Division to go to work on the impeachment inquiry. Naftali: Tell us how that happens.
Who calls you? Davis: So I had had this job through the Lindsay administration, Norman
Reddick was Corporation Counsel, a guy I admired a lot and enjoyed working for, and Lindsay,
his term was over. Abe Beame had become mayor, and I wasn t, you know, violently opposed
to Abe Beame in any way, but it just didn t seem it was gonna be quite so exciting.
I did not have a political job. I served at the pleasure of the Corporation Counsel, Adrian
Burke, a former Court of Appeals judge had become Corporation Counsel, a fine guy, and
there was never any sense that he wanted me to leave, but I thought maybe there d be something
more exciting. Particularly I had some friends who had started working on impeachment. Jan
Orloff, married to my law school roommate, was working on impeachment. A classmate from
Columbia Law School, David Hanes, was working on impeachment. So I just decided to send
in a letter, and I wrote, sent my resume, put it in an envelope and mailed it to the
House Judiciary Committee. And about four or five days later I got a phone call saying
that Bob Sack was going to come to talk to me. So there in my office in the municipal
building Bob Sack appears. We chat, and he must have given a fairly good report because
the next thing was to talk to John Doar. Went down to Washington, talked to John Doar, then
I was hired. And I started I remember shortly after my birthday. My birthday was January
18, so a little bit after January 18th I started in Washington. Naftali: What do you remember
of your interview with John Doar? Davis: Not anything too specific. He wanted to know about
my background. He asked the kind of questions that you ve just asked about my life story
and how I d gotten to where I was. I believe he asked if I had any preconceived notions,
and I said I did not. He asked about, you know, my job and the kind of cases I had as
I recall. I don t recall it being a very long interview, 20 minutes, something like that,
and I don t recall more beyond that. Naftali: So you get the job, you move to Washington.
What s your first assignment? Davis: So the first assignment after I get moved in, I move
into a little room at the Congressional Annex, Congressional Arms apartment, a sort of furnished
apartment kind of thing, and stock up the refrigerator with food thinking I might cook
something in the kitchen there. The food was never touched. At the end of the time I was
there the food was still in the refrigerator because there was no time to cook anything.
So I get there and I think my first assignments I don t remember particularly, but I think
it they were organizing a group that was going to pour over the record as it existed, the
various hearings that had been held, particularly the Senate Select Committee hearings, and
to digest and absorb and learn very well this record. And there were five or six younger
lawyers who were gonna be doing this. We were going to be putting into a chronology, making
lists of things, thinking about the testimony, and I was put in charge and I think it happened
fairly early on of this group of young lawyers digesting the current record and putting it
together. And that process continued for three, two, three months, something like that, getting
all of those papers together. And then we started writing memos about this material
and what it showed. And we started thinking about additional information that would be
required. And we started thinking about witnesses that we might want to interview. But the start
was definitely particularly I remember the Senate Select Committee hearings. Green volumes,
and there were I don t remember the exact number, maybe ten, each about this thick.
Naftali: How did you know what you were looking for? Davis: Well, I wasn t so much looking
for any particular thing but wanted to fully understand what everyone had said, and then
I would see what emerged from that as relevant information relating to the President s conduct
in those instances. So I think I read the testimony of some of the key people like Haldeman
and Ehrlichman and John Dean, you know, a number of times, and we also were working
at the same time thinking about what was an impeachable offense. And Joe Woods did a lot
of work on that topic. There was a memo written, I don t remember the name of it but it was
a fairly elaborate memo about what was a reason for impeachment. And so that sort of meshed
into what I was doing. Naftali: May I stop you there? Bill Weld and Hilary Rodham worked
on that. Did you participate at all in that process? Davis: I participated in the discussions.
I did not participate in the research. I remember discussions about, for example, whether we
were talking about obviously what high crimes and misdemeanors means in the Constitution,
that phrase. I remember talking about, and my having a view which I think others shared,
of the need to read that phrase in connection with what the Constitution says about the
duties of the President, particularly to take care that the laws be faithfully executed.
And so that high crime or misdemeanor, I recall thinking personally and discussing with others,
could well be something that a President was uniquely able to commit. A Constitutional
crime that the President was uniquely able to commit because others didn t have the obligations
or the power that the President had to essentially subvert the Constitution; and that therefore
defining the Constitutional crime of high crime and misdemeanor would take into account
the functions, roles, duties and powers of the President. I remember personally feeling
that we should set the bar high because I felt that remembering back to my government
courses and all that kind of thing that the President needed substantial room for independence
of action, so that it had to be something very, very serious of the same kind of seriousness
that a statutory crime would be, but that it couldn t be defined simply as a statutory
crime because it was a Constitutional crime given the role. So I remember talking about
it having to be serious; it having to be to some degree persistent; it having to have
not a public purpose, the subversion of Constitution, but some kind of private purpose would compound
it. And I remember us talking about the standard of evidence and thinking that it should be
a high standard of evidence, of proof because, well for the same reasons that, to use a very
parochial example, when lawyers are disciplined for misconduct because you lose your job and
your livelihood and everything, you get disbarred, it s clear and convincing evidence that s
required. And it s not protecting the lawyer unduly, but it s just recognizing that the
lawyer has to have room for zealousness in the advocacy of a client, President needs
room, so it should be a high bar. Those are the kinds of discussions I remember. But I
did not do the research, others did, and I did not draft the memos. But I did participate
in those kinds of talks. Naftali: For us to get a sense of the staff, because there were
over 100 of you, these kinds of conversations, were they, did you have there was a senior
leadership, and did they include others? I mean it wasn t all 100 of you or I was thinking
you had about 40 lawyers. It wasn t all 40 lawyers. These groups were these informal
groups over lunch, or was there, did John Doar put together a group of lawyers that
would discuss this kind of thing? Davis: I think some of it was at the level of kibitzing.
There was not an anti-kibitzing rule, and of course with all these interesting topics
all around you, you do want to kibitz. Secondly, the work that everyone was doing was interrelated.
Knowing what you were looking for in the factual record was obviously tied to how you were
going to think about what might be an impeachable offense, so you could see whether evidence
existed of that kind of offense. So there was a need for everyone to be I don t recall
it being meetings in John Doar s office particularly or anything like that. I recall more informal
meetings but people would get together to talk about these issues. I remember attending
meetings at which Owen Fiss and Hilary and others were present, even though that wasn
t my area, to some extent to listen but also to volunteer my own thoughts. Naftali: When
did you start to focus primarily on the Watergate side of the issue as opposed to abuse of power,
agency abuse? Davis: Very early on. My assignment and the assignment of this task force that
I headed up was Watergate and the cover-up. That was my assignment. And I was not another
person who was very active in the same area was Dick Cates. And Dick had a broader role,
and Dick did a lot more over the period. You know, we re talking in total about six months
that this was. It seemed like in many ways two years, but it was only six months. And
during that six-month period Dick did a lot more conferring with members and going over
information with them and answering their questions, members being members of the committee.
I did not do that. I worked with this group within the staff on the Watergate and the
cover-up, so I looked at the evidence, I participated in talking to relevant witnesses, I participated
in drafting Articles of Impeachment related to that topic. But that was my topic. Naftali:
What did you know about it starting out? Davis: Well, the thing I you mean before I came?
Obviously, you know, I read the newspapers. I particularly remember s one of those not
on the level of, you know, the assassination of President Kennedy or the Challenger crash,
but at a level not too far below that, the firing of Archie Cox. I remember listening
to television, watching on the radio and feeling that there needed to be a continuing process,
whatever it was going to be. And you remember that incident when first one and then another
Attorney General resigned. It indicated a serious problem. So that s what I remember
mostly. I was by no means a buff of Watergate facts. I was a consumer advocate. I was one
of the, probably the youngest division chief in the history of the law department so I
was on a learning curve in that job that was stressful. And I was arguing consumer cases,
doing anti-trust cases for the city and learning a tremendous amount, so I didn t have time.
But I think one of the things that when I decided that impeachment would be an interesting
thing I thought about, at least subconsciously, helping to fill the gap created by the firing
of Cox to have a process that would provide the public with some kind of resolution. Naftali:
The viewers of the Senate Watergate Committee were faced with this dilemma: were you going
to believe John Dean or Richard Nixon, which is a very tough challenge. When you started
out, because you didn t have any tapes when you started, as a lawyer how to make the case
that or at least to figure it out, because you weren t quite yet making a case how were
you going to think through the process of finding the President or John Dean the more
credible witness? Davis: So a lot of what was done in the beginning is to look at the
testimony of all of these witnesses and find the points of intersection or contradiction,
corroboration or contradiction. And particularly focus on points of corroboration. And those
would be pretty hard factual elements because they were corroborated. And to see what picture
was painted by the corroborated points, where Haldeman s testimony or Ehrlichman s testimony
or Dean s testimony was consistent. And we did have certain things before the tapes came
along. We had logs, we had meetings, we had public statements, we had the like. And my
recollection, too, is the tapes came along fairly early in the process. I can t give
you the exact date, but it was fairly early. And in terms of watching the Senate Select
Committee the December before, I had occasionally watched it. I don t think I I don t remember
watching John Dean s testimony. I do remember the news flashes about Butterfield s testimony
because that was very dramatic. I didn t happen to be watching it, but it was on the news
and it was certainly and the headline in the Daily News, you know, Nixon Bugs Himself.
You know, that s a I noticed that headline as a lot of people did. But when I got there
I was trying to grasp these facts focusing on where people agreed and where they disagreed,
and if they disagreed how you could resolve it, but where they agreed what kind of picture
did it paint? What did all these factual data points add up to in terms of the kinds of
inferences they would support. Obviously absent the tapes, you know, there was a lot of circumstantial
evidence, but if you add up all the circumstantial evidence and one circumstance after another
points in the same direction, then it becomes weighty evidence. It can become clear and
convincing evidence. So I did that, and we all worked very hard on it, and then we at
one point I was able to talk to John Dean and interview John Dean, and I felt he was
I felt he was truthful but looking out for himself was the way I felt about John Dean.
And, of course, his performance giving that account from memory and then when it was compared
to the tape being so accurate was rather my memory is not like that at all. I could not
have done that. I just have but the tapes did corroborate what he said, but still medium
I felt that he was focusing on his own interests, but his own interests coincided with his accurately
recalling the meetings he had been in. Naftali: How helpful were the materials from the Watergate
Special Prosecution Force? Davis: They were somewhat helpful, but the Special Prosecutor
had a slightly different take on things than John did. John was very good friends with
Hank Ruth, who was a very important person on the Special Prosecutor staff. And they
d gone back to civil rights days I think it was, maybe even to the Neshoba County case
together, but they knew each other well, and John had a lot of confidence in Ruth, and
I think Ruth liked John. But Hank Ruth, as I heard it I did not participate in these
discussions, but I recall John saying that Hank Ruth felt that the thing was to prove
airtight a criminal obstruction of justice, one incident of clearly obstructing justice
in an airtight way, and that the Special Prosecutor people felt they had done that with regard
to the money on March 21st, the Howard Hunt, the Howard Hunt s gonna blow if he doesn t
get the money thing. And they felt they d built a very strong case, including against
the President I think they may have referred to him as an unindicted co conspirator or
something like that on that. And John didn t agree with that on two counts. First of
all he was not infatuated, and this comes across in some of the reports and so on, with
the notion that a President is a co-conspirator. Because a President has so much power that
really the, in a conspiracy it s just the one person agrees with another to do a wrongful
act and then does something to further their agreement. Well that s not the way John thought
the White House or a President worked. The President was the person in charge, these
people were his agents, and he didn t see criminal conspiracy law as relevant. The other
thing, though, was that he did feel, too, that impeachment, because of his feeling that
it was a constitutional crime but had to have the seriousness and persistence of a it had
to be something more than just one event, because taking a President from office is
such a major event and potential blow to the country and everyone would agree not to be
done lightly at least at the time no one thought it should be done lightly that there had to
be something of a persistent problem that went over time, that didn t show an error
that was transitory, but something that went on. So John felt that there had to be a pattern
or picture, I don t recall the word he used. And I agreed with this, too, myself that there
had to be some kind of pattern. So the Special Prosecutor, being prosecutors, you know, you
prove someone committed a crime. On March 21st you said this and that and forward it
went, and that we felt our task was different, to see whether there was this kind of pattern
of persistence. So that s one reason why we kept the focus not just on March 21st, which
was certainly a factor and as you know we cited to the Committee the difference between
the way the President ruminated in his nightly recording about what he had learned on March
21st and what he told Henry Peterson the next day about the situation; and that if he had
told Peterson what he had learned, Peterson could have prosecuted people. So that was
not irrelevant. But we looked back and we looked back hard, and I looked back hard at
what happened in June, July. The break-in was in June, and the President was in Florida,
and he came back to Washington and there were a series of meetings, and various things happened.
And there was a lot of agreement about what happened in the Senate Select Committee testimony
that created
a picture of, albeit at that time circumstantial, the direct evidence more being in March, but
circumstantial as to what went on. And I recall, too, that there was also in the musings that
went on later the President reflected back on what had happened earlier and had referred
to the plan of containment as having been the right plan. And so the word containment
is just a fancy word for or a more, not fancy word, a more negative word for cover-up, because
containment means you re protecting certain people. And so we view those reflections as
evidence that combined with the circumstantial evidence ultimately we thought created a picture
all the way going back to June. And my big thing that I remember, the one, you know,
in six and a half months when the amount of work we did was so great, that it does cloud
your memory a bit because your memory becomes selective. With so much happening around you,
you just select things to remember, and there s a lot of things that you can t keep in your
head. But one of the things that I ve always remembered is how firm I was that we had to
get that tape, that tape of the conversation between Haldeman and the President. There
was one on June 20, I think it was, where the 18 1/2-minute gap occurred, so you know,
whether no matter what you prove about the 18 1/2-minute gap, there was a missing piece.
But then there was another meeting shortly thereafter, and we had to get that tape because
that tape would indicate whether the, would be direct evidence to either support or refute
this reminiscence evidence and the circumstantial evidence. And so ultimately that tape was
ordered by the Supreme Court, the Special Prosecutor case, and it said just what I thought
it was gonna say. I thought that the circumstantial evidence was clear and convincing and that
therefore, you know, it s like the old story they tell the jury. If someone comes in with
a wet umbrella, you can infer that it s raining outside. And this was the equivalent. Naftali:
s help the viewer. The challenge for you was that you knew from General Walters that the
CIA had been asked to tell the FBI not to touch, not to investigate the Mexican money
and Kenneth Dahlberg. And you knew that the President s Chief of Staff, H. R. Haldeman
had asked the CIA to do this. And you knew that Haldeman and Ehrlichman and the President
had met to discuss this. But you couldn t prove Davis: What was said. Naftali: That
the President had actually said to them, Do this. Davis: And there was other circumstantial
evidence going on and then the reminiscence of how the right plan had been what they did
and to contain it, but you didn t know the exact words. You had, I would have said you
had enough to be quite clearly and certainly sure myself, but you didn t have what s called
direct evidence. Naftali: But again to probe, because it s important, this is because you
and Mr. Doar you weren t alone in this felt that someone of Haldeman s stature would not
be asking an agency to do this unless he had the support of the President. Davis: Right,
and more than just that one fact, that the follow-up facts supported the notion of a
policy and plan of containment of this problem directed by the White House over these following
months, and that that evidence suggested that at such an early-on meeting this plan would
be formulated and that the President would be in meetings with the people who implemented
a containment plan, would be aware of or direct the formulation of the plan of containment.
Naftali: Because the assumption was that this kind of plan of containment could not have
happened without the President s involvement. Davis: Particularly since there were these
meetings right at this time, and then immediately after various things began to happen and then
other things happened. So again it s a picture I remember one of the things I did towards
the end was I prepared a list of 50 events between June and the following four or five
months that were I thought only explicable in the context of Presidential involvement.
And I couldn t find any events that could only be explicable in the context of no involvement.
So 50 items I felt was strong and justified finding, justified going ahead and drafting
Articles of Impeachment based on Watergate and the cover-up; finding that the President
subverted the Constitution by orchestrating, approving and condoning the plan of containment
for his personal benefit. Naftali: The President would later point to a conversation he had
with L. Patrick Gray on July 6, 1972 as evidence that he wanted the investigation to go ahead.
I guess this is the conversation where he says, where Gray warns him that there are
people in the White House that are trying to set the CIA against the FBI. What was it
that led you to see this particular conversation as not dispositive, as not evidence of the
President s interest in the investigation going forward? Davis: Well we knew I don t
recall whether it was that discussion with Gray or a later one, but we did know in connection
with one instance where the President had called up the Director of the FBI and told
him to press forward with all vigor, that the President had a lot of information that
we knew he knew that would have helped the Director of the FBI press forward with all
vigor, and he did not convey that information. So that raised the question of whether these
were words that he just wanted to be able to quote, because if he really wanted the
investigation to go forward, he could have provided information that would be very helpful.
Naftali: Do you remember when you listened to the tapes the first time? Davis: I did
not do a whole lot of obviously I listened to the tapes. How could you not listen to
the tapes? But we had a very careful process for listening to the tapes that I was not
involved in. And basically we felt that since the members were going to come over individually,
and they did come over individually to listen to the tapes after they received our transcripts
of the tapes, that it was very important that when they listened to the tape and looked
at our transcript, our transcript would be accurate. They would say, Yes, this transcript
is accurate. And that was important because we prepared at some point a comparison of
our transcripts with the transcripts produced by the President, and there were very material
differences, very important differences. So the importance evidentially of our transcripts
being correct was key. So the first idea was that people who had a good ear for music would
somehow be able to listen carefully. Well that really didn t bear out. So what we did
is we had a system as I recall, we had three people who would listen to the tape, and all
three had to agree. I believe one was on the Republican staff, too. I don t remember their
names. But in any event all three had to agree that that is what the tape said before it
would go in the transcript. So that was the process, so I obviously read the transcripts
that were produced, and I think we were involved in a little bit of doing this comparison between
the White House transcripts and our transcripts. And, of course, you notice funny little things.
When President Nixon went on television to say that he was releasing these transcripts
he had all these volumes piled up behind him on a credenza, and it looked like it was thousands
and thousands and thousands of pages. But when you get the notebook, some notebooks
would just have a few pages in it. And I also recall that in some of the transcripts they
produced there were aside remarks that someone had made that got transcribed that were sort
of, you questioned because it would say something like, Take that out, or, you know, whatever.
But that could, of course, just have been because it was felt to be nonresponsive or
irrelevant then, but it was sort of funny that that got transcribed as well. But the
main thing was the differences, the substantive differences, between our transcripts and their
transcripts. So given that this issue was going to be important and would be influential
likely with the members, we did a lot of work on the accuracy of these transcripts, and
my recollection is that members came over and listened and felt that what we had transcribed
was correct. Naftali: Now was the transcript or the tape the record? I mean if you were
trying a case, which is the record? Davis: So the tape is the official thing, and that
s why the members came over to listen to it as they should. But if they feel that the
transcript is validated, it then becomes easier for them to use the transcript. So of this
interview we re doing, the tape will be the official thing, but if someone ever does a
transcript, if it is valid and people look at it and it seems to conform to what is said,
it s a substitute. So we worked very hard to be sure the transcripts were accurate.
And it was just another aspect, and a very important theme was the members did not want
the staff to take over the fact finding and the investigation. They felt that was their
job. That s one reason they would come over to listen to the tapes rather than just take
our word for what they said. And that is also why we used this phrase as I recall it, Summary
of Information. We gave them these books with Summaries of Information, and it would have
a statement of fact, and it would have evidence that was confirmatory of the fact stated.
And so a lawyer would normally call these statements of undisputed facts because we
tried to keep them undisputed in that they were corroborated by many sources, but the
members felt it was their job to find the facts. And so by using a more neutral phrase,
Statement of Information, it would be respectful of their right to go and look at the sources
that were listed, the record as you put it, and make their own conclusion on whether this
was a fact or not a fact. So that phrase and these books I know came out to some extent
in the way John had done cases in the civil rights division, but that phrase Summary of
Information I recall as being deferential to the members. And that was an important
thing from the staff point of view, that we were to provide them with materials and they
were to draw conclusions, and then we were to provide them with a way to implement their
conclusions in terms of drafting Articles and all. Naftali: Do you remember some dismay
on the part of the staff when the members didn t quite embrace the concept of Statement
of Information, when they thought this is a little complicated? Davis: I remember their
thinking it was quite boring. One of the things I did was to be the reader of the Statement
of Information. So we started the hearings, you know, with these books, and they all had
the book, everyone there. And I remember there was this picture on the front page of the
New York Times with the Committee up here and this table, the staff members here taken
with a little bit of a wide-angle lens so it s all sort of bent around. And there s
John. And there s me sitting next to John as the reader of the Statements of Information.
So, and I would read it. On June 17th, you know, 1972 there was a meeting between. And
this was discussed. And the statement that such and such was discussed would be based
on various participants in the meeting, not just one, not just John Dean. All agreeing
in one way or another this had been the topic. We didn t have exact words in a lot of cases,
but. And the members did get impatient. John s biggest challenge he has told me was the
pressure to do it fast. We ended up taking, as I said, about six months. And there are
a lot of people who would want it to be done much shorter than that, but John felt that
it had to be done right, that it had to be a thorough look at what the record showed,
that it and I remember our feeling strongly that whatever conclusion we came to, it was
important, important that it be solid enough so that it would attract bipartisan support.
And even before the smoking gun tape we did get significant bipartisan support in the
committee for the cover-up Article, and for some of the other Articles, too, although
I don t remember them as well. It wasn t what happened after the smoking gun tape came out
and basically all the members were supportive of the Articles, but we wanted this to be,
and John wanted this to be as I recall a Constitutional process so that you could say at the end of
it the Constitution has a mechanism to deal with abuse of power and subversion of the
Constitution in a serious way. And it has a mechanism that works. And the mechanism
obviously has a political component in that the public s feeling about how serious this
is is a relevant factor, and the members know how the public feels. That s their job, to
be in touch with the public. So it has that component but it has a component of fact objectivity
to preserve the power of the President, which is equally important to preventing the abuse
of the power of the President. So we felt that was really, really critical. And I say
we. It doesn t mean all 100. I don t know all 100, but I know that it seemed to be a
consensus among the staff that we wanted to do that kind of job that would be bi-partisan.
And so just a vignette that comes to mind is after the impeachment I had had friends
who traveled around the world giving talks for the United States Information Service.
And at that time the United States Information Service had a program of people, Americans,
businessmen, whatever, you know, would go and give talks at American embassies in various
places around the world. They wouldn t pay your travel, but when you got there they would
arrange for you to give the talk. So you paid the airfare and the hotel, and they arranged
for you to talk, except in India where the United States had accumulated all these rupee
balances under the Food hor Peace program, so there they would use that to pay your hotel
bill. But you still had to get to India. And so I had these friends who went around the
world giving a talk. They were experts on devising modern waste collection mechanisms
in big urban areas. The routing of garbage trucks was their specialty, the efficient
routing of garbage trucks. And they were very popular because all these cities have big
problems with the routing of garbage trucks. So after the impeachment I wanted to take
a trip, and so I contacted the Information Service, and they sent me to, they arranged
for me to give talks in the places I wanted to go. And the places I wanted to go, I wanted
to go to Iran and India and the United Kingdom, and England. Those were the three places.
My friends had been to Iran, they told me it was beautiful, Isfahan, you know. So those
were the places I went. And the Information Service said, re very sorry. No one wants
to have you talk in Iran. It conflicts with the program our embassy is putting on on the
American Wild West. And of course I d forgotten, you know, you can be so na ve. That our ambassador
to Iran was Helms, Richard Helms. The last thing he wanted was people talking about,
as you said, that the President had told the CIA to so that wasn t his favorite topic.
So no speaking in Iran, the American Wild West. But in India they booked me into parts
of India that were quite anti-American in their traditional Kerala state in the south
is communist state. And my message was the system works, the system works. And it was
they couldn t dispute it. They couldn t touch it. So there the embassy loved this because
it was such a positive message about our constitutional system and how it works. The only problem
I had in India is that sometimes after my talks I d be approached by a group who was
interested in impeaching Indira Gandhi, and they would come up and say, Well, maybe we
could talk, which of course I wouldn t do. But it was basically that the system worked,
that it was not seen as just a political thing that basically a serious inquiry had been
made and a determination had been made about what was necessary to properly sanction with
impeachment, should it had gone forward through the Senate, someone who had subverted the
Constitution for their own purposes. Naftali: s go back to the period just before the Committee
votes. You spent six weeks reading the Statements of Information. Davis: Is that how long it
was? Was it six weeks? Naftali: Six weeks. Six weeks. Davis: Oh, that was longer than
I thought, right? Naftali: By the way, why was it decided to read it? Why do do you know
why John Doar decided? Davis: I don t know why we read them. I think it was just to get
the sense that this record had been put before the Committee in a way where they could read
it and study it and confirm it. And if you just handed them the books that would be totally
satisfactory because they might not read them. This way this is like introducing evidence
in a trial. When you introduce evidence in a trial you have a document or a piece of
information. You do either read it to the jury you do what s called publish it to the
jury. That s the technical phrase, which can either be reading it or handing it to them
and a pause is taken in the court proceeding while they read it. And so I don t recall
the specific reason, but I think it was sort of this idea that we should publish this information
to the Committee. Naftali: Did you read this, the documents? Davis: No. Naftali: So they
were Davis: So the notebook, you d have the Statement of Information, then behind it would
be the documents. So you would read the thing, and there would be time for them to be flipping
through and looking at the documents, and each document was marked with a big black
bracket to show the part that was relevant to look at to corroborate the statement made
in the Statement of Information. But beyond that I can t remember why we read it. Naftali:
Do you remember Mr. Doar s reaction to the fact that this was gonna happen on television?
Davis: No. I m sure it wasn t the world s most exciting television. There did come a
point where the Committee members started to discuss that was very I mean we all remember
Barbara Jordan s impassioned and her voice of almost like the Grand Canyon as a metaphor
for time. Her voice had that, and a number of other people, you know, on all sides. That
was a very good debate. And I was there obviously listening to it. I remember that. But the
other, I don t remember thinking about whether it was good television or Naftali: Do you
remember Dick Cates s role in giving seminars to help the members absorb this information?
Davis: Right. I did not participate in any of those. Dick Cates s office was right near
mine, and we were, he was aware of what we were doing and what we were working on and,
you know, memos that we would write and all that kind of stuff. But my group, we did not
have contact with the Committee the way Dick did, and Dick played a really important role
in helping the members work through the information. I know that John has referred recent, you
know, when I talked to him obviously I ve talked to him recently, and he has referred
to Dick Cates as a hero in what he did of helping the members come to an understanding
of, their own understanding of what the facts were, but helping them grapple with them.
Because it was, you know, a complex factual story. Also Dick, I don t know the details
of this either but I believe some of the permanent staff for Rodino were unhappy with the pace
and so on by John, and Dick I think helped immensely in calming down that. I don t know
the personal element of it, but I think he helped immensely. He had been hired I think
independently, not by John but by the Committee, and so he had this slightly independent role
that made him a very constructive force. Naftali: And he got along well with John Doar. Davis:
He did. He did get along very well with John, and they were both Midwestern litigators,
and Dick I remember used to love to tell war stories about his cases, so we did find the
time to hear a fair number of Dick s war stories, of things he d won that, you know, were hard
to win. And from all these guys, Dick Cates, but particularly from John I learned so much
about how to litigate cases in the sense that from John particularly what I learned was
that it s not for the lawyer to be the star, it s for the witness to be the star. s for
the people with the factual knowledge to be the ones who convey their convictions and
their of what the facts were. I think Dick had the same kind of attitude; not the flamboyant
lawyer but the guy who works with people to ferret out the facts. I remember Dick told
me when you re trying to find out what happened you ve gotta go and sit in somebody s kitchen
and talk to them. In their kitchen, you know, with a cup of coffee, about what went on.
And not just bring them to their office and put them in a chair and you ve got to really
and you ve got to make them the subject. And the other thing so I learned that, and John
agreed with that totally, that was his approach as well, to be the lawyer in the background.
And I ve found in my career that sometimes the lawyer who gets congratulated for being
the great lawyer by the jury is the one who s just lost. The other thing that John taught
me and that impeachment taught me is the merit of close attention to facts and testimony
such that you find things, either points of agreement or disagreement or sometimes things
not said, like when Nixon did not tell Gray, President Nixon did not tell Gray what he
knew. And that requires close attention to records and documents and testimony. And in
today s litigation world it s hard to do that because of e-mails. mails just generate such
a mass of information that it s too much. If we had had e-mails can you imagine if we
had had e mails? It would have been, six months wouldn t have been enough time. You can t
digest. But you have to do them today because they often contain critical evidence. But
it s just that attention to detail. And that s why I think John felt it was important to
take the time. Because you can t do this in a month to do this right. If you re gonna
really look hard and see. Another thing John taught me as a litigator is that you have
to be very careful not to create an expectation that something is going to be resolved through
some topic where it s not going to happen. So everyone was interested in the 18 1/2-minute
gap, and I remember I said, Well why don t we send people over to Germany. Maybe I wanted
to visit Germany. I can t remember. And meet with the manufacturer of the tape recorder
to understand, you know, exactly what it would take to erase. And John was not in favor of
doing that, and I remember he said, Because you re gonna create an expectation that they
ll be an answer, and it s just not gonna happen. You re gonna go over there, and there s not
gonna be anything, and then you ll have created an expectation and people will be drawing
inferences one way or another from what you didn t find rather than focusing on the evidence
that really exists. So expectation is important. Obviously it s important in the political
realm, too, of not creating political but he was talking more about evidentiary expectations.
Naftali: When do you think you shifted, because it s an important pivot, from being an inquiry
to I mean you say litigating? At a certain point he s becoming a litigator. Davis: At
a certain point we are presenting a case. Certainly when we re drafting Articles of
Impeachment. John as you know was reluctant. Certainly the staff never got to take any
position, and John was reluctant to take a position, and he did not really do so until
just before the vote where he clearly did take a position. But I think it s not an appointed
time. It is as the process goes forward the question is, is there a case for impeachment
under the [inaudible]. You start out, you don t know. Is there a case? Is there not
a case? You don t know. As time goes by there s more and more evidence that might be a case,
but if you re adopting this approach that John had of needing to see a whole pattern,
a picture? So as time goes by the needle, you know, is creeping up in a sense of is
there a case for impeachment, and it creeps up and up. So as time goes by you became more
certain that there s a case. But then it s when do you get to the point where you feel
clearly and convincingly that there is going to be such a case? I can t remember a specific
point. I think it may be about the time I did this list of 50 things. I can t remember
the exact date of that list. It was certainly after that we reviewed all the evidence, talking
to some of the witnesses, listening to tapes. I can t remember the exact moment, but that
was a moment, too, of the needle having gone beyond that there is a case. I would say I
arrived with an expectation, sort of like the Committee s expectation, that it would
be a quick process to decide whether there was a case; that I wouldn t be down there
for maybe a couple months, three months. That it would be a quick process. You d look at
things and case, no case, da da da. But it really did take this time to do that, both
because we had a process for the comprehensive evaluation of the evidence and because we
had to do other things that meant you couldn t spend all your time just thinking about
the ultimate issues. So for example I remember one week when I just thought my head was going
to explode. There was just so many things going on. I felt that brain pain. Everyone
I m sure has felt it. You have actual pain in your brain from too much, you know, that
somewhere there s another needle in your brain that s over on the red side, and it was because
we were trying to get our information ready, trying to think about what it all added up
to, and at the same time we had to draft justifications for the information requests. We had made
information requests that arguable were sort of self-justifying. You read them and that
make sense, but the Committee wanted detailed essays about why this information was needed.
So we were doing all of these things in an incredibly compressed period of time, and
it caused brain pain. And that obviously meant it was more time than so I don t see that
we could have done it any quicker. I know that six months was a long time to have the
country dangling, but we couldn t have done it quicker I don t think and done it in the
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