A Watergate Warrior’s View of Contragate

Archibald Cox, the man at the receiving end of Watergate’s Saturday Night Massacre, shot down by the man who is now President Reagan’s nominee to the Supreme Court, folded his long, lanky body into the tiny coach-class airline seat.

On his left, a woman sat engrossed in a salaciously titled romance novel. But across the Potomac River, official Washington was still transfixed by the last days of the televised Iran- contra hearings.

For a week, the man fired in 1973 as Watergate special prosecutor in one of the nation’s greatest constitutional crises, had kept an ear to the hearings between lectures and meetings in the capital. Now, as he headed back to his summer home in Maine, he ordered a Jack Daniels, settled for an Old Grand Dad instead and turned to a reporter seated on his right.

Watergate was bad, he concluded, but Contragate is worse.

Rupture of Public Trust

The current controversy has ruptured the public trust so severely, Cox maintained, that, “in many ways, Iran-contra is worse than Watergate.

“One of the most important ways in which it is worse is the damage done to the honor of the United States and the credibility of its secretary of state and other foreign representatives when events show that they have been misleading other countries.

“Maybe there is an argument for ‘privatization’ in the carriage of mails, collection of garbage,” he mused. “Conceivably, there is an argument for privatizing the operation of prisons. But you certainly cannot privatize the conduct of our government operations abroad.”

What America should be asking itself, said Cox, is the same question “the select committee ought to be asking”: How, again, could a small faction within the White House coterie have decided the laws did not apply to them?

“The predominant answer,” he said, “is that given the right conditions, given human frailty, there are times when power corrupts.”

But “if we Americans come to accept the proposition that people are free to play fast and loose with the law, to lie and cheat pursuant to the idea of higher authority, that will surely be the end of democracy, and equally, of freedom.”

To Cox, the comparisons with Watergate are inevitable. “I find one of the extraordinary ways of expressing (them) is by quoting Jeb Magruder’s explanation of Watergate,” he said, paraphrasing the Nixon White House aide:

“He said after it was all over: ‘We in the White House believed that the ordinary rules did not apply to us.’ ”

Cox was reminded of that as he watched National Security Council secretary Fawn Hall staring straight at the blue-suited legislators on the Iran-contra committee and calmly declaring: “Sometimes you have to go above the written law.”

In Watergate, Richard Nixon’s aides “thought they were engaged in a mission,” Cox said. “The mission was the thing that counted, not the rules.”

He shook his head. “Those very words might have been uttered by or about Adm. (John) Poindexter or Lt. Col. (Oliver) North.”

Subject to Law

President Reagan’s recent remark that he believed the Boland amendment banning U.S. government aid to the Nicaraguan rebels did not apply to him reminded Cox of Nixon’s assertion that “if the President does it, it can’t be against the law.”

“I think that was the most un-American observation Nixon could have made,” Cox said.

Reagan’s comment was “narrower,” Cox said, but “I would feel a lot happier if he coupled the statement with the recognition that the highest officials are just as subject to the rule of law as others.”

Cox is 75 now and Carl M. Loeb professor emeritus at Harvard Law School. His hair, still styled in the familiar crew cut, is snowy white. He has trouble hearing out of one ear.

As he remembers it, he was speaking at UC Berkeley in 1973 (delivering that school’s famed Jefferson Lectures) when he got a call from good friend and incoming Atty. Gen. Elliot Richardson in 1983. Richardson was asking him to head up the investigation of possible criminal misconduct within the Nixon White House.

Cox established the Watergate special prosecution force that May. By October he was out of a job, fired for his determination to go to the courts in his effort to obtain evidence. The man who fired him (after Richardson refused to) was Robert H. Bork, then solicitor general and now Reagan’s nominee to the Supreme Court.

While eager today to expound on the Watergate-Contragate connection, or to talk about his new book “The Courts and the Constitution” (Houghton Mifflin), Cox firmly declines to comment on Bork.

“I would disqualify myself,” he said with a smile when asked how he would vote on Bork’s nomination if he were a senator.

Cox said his office at Harvard has been besieged in recent weeks by journalists, former students, even jurists wanting to know his views on the controversial federal judge.

“The harder questions are when people ask something abstract,” he said, because “if someone asks me now whether I think ideology is a concern in making an appointment to the Supreme Court, nobody is going to treat that in the abstract.”

Swiftly, Cox guides the conversation back to the topic that although no more neutral, somehow seems less uncomfortable: political corruption.

Had to Think

The issues in the current scandal are complicated, so much so, said Cox, that “I think the reason it is taking time for the good sense of the American people to appraise Iran-contra in contrast to the way they reacted to Watergate is that in Watergate, the various elements in the grab-bag of wrongs were very simple: burglary, bugging of telephones, unlawful campaign contributions and then a cover-up. There are no two sides.

“In this,” he continued, “there are people who believe that what is embodied in our laws was wrong. They’ve had to think a little harder.”

But why, he wondered, have members of the Iran-contra congressional committees failed to think “in terms the founders did,” asking, “what there is, if anything, in the growth and spread of the White House staff that explains how this attitude that they are above the law springs up?”

Cox has his own theories.

“The White House staffers have the most extraordinary sense of power,” he said, and “with rare exception, they have all been people who in a political sense, a public sense, were nobodies, except for their positions on the White House staff.” Also, he added, “given that kind of context, secrecy becomes important because the rest of the world becomes enemies.”

“I ask myself these conditions (within the White House), these characteristics, are they a kind of soil in which it is very easy for the Howard Hunts or the Oliver Norths or the John Poindexters to dream up and conduct these ventures, believing that neither the king nor his courtiers can do any wrong?”

Remains Optimistic

Yet Cox remains optimistic. Fastening his seat belt as the plane dipped down toward Boston, he said he is heartened to hear political pundits tell him that “the key thing in elections has begun to be integrity.”

His “vanity is tickled,” Cox said, “when young people, students” approach him and talk about ideals, and values. And he refers again to the Founding Fathers in recalling that in drafting the Constitution, “the basic assumption was that most men most of the time would voluntarily comply with the law and that the people would repudiate those who did not.”

There’s an election coming up, Cox said as the plane headed toward the terminal. “Ultimately, the way we repudiate, the way we pass judgment, is when we vote.” In the future, he said, after the fray of Iran-contra, “it may be that we will find ways to form a little wiser, more thoughtful judgment about character when it comes to electing people.”

Again, Cox smiled. He was eager to head off to the tranquility of his summer sanctuary. While he is at the house in Maine, his secretary is instructed “not to call me unless the Republic falls.”

He was not expecting an interruption.