THE VICE PRESIDENCY: Agnew Takes on the Justice Department

Chin up, eyes level, voice resonant with righteous indignation, Spiro Agnew sent his tormentors a message last week: “I am innocent of the charges against me. I will not resign if indicted, I will not resign if indicted!” His audience, a national convention of Republican women in Los Angeles, erupted in wild applause, cheering and cries of “Right on!,” and some even danced on tables. The message, carried nationwide on TV, got across: any reports that the Vice President of the U.S. was about to quitunder fire were greatly exaggerated.

Fire Target. Far from quitting, Agnew was attacking more vigorously than ever, and his target was no less than the Justice Department of his own Administration and, by implication, Republican Attorney General Elliot Richardson and even Republican President Richard Nixon. The specific target of his fire was Henry Petersen, chief of the Justice Department’s criminal division, who is supervising the investigation of Agnew’s conduct while a Maryland official (see box following page). But Agnew, as part of the Nixon Administration, knows better than most that Petersen is hardly a sovereign agent, that Richardson by his own admission has been making the hard decisions on Agnew, and that Richardson reports to the man who put him in his job: Richard Nixon. It evoked the harrowing spectacle of the President and Vice President of the U.S., both under suspicion for different reasons, maneuvering against each other for survival.

“In the past several months,” said Agnew, “I’ve been living in purgatory. I have found myself the recipient of undefined, unclear, unattributed accusations that have surfaced in the largest and most widely circulated organs in our communications media.” The sources of those leaks, said the Vice President, were in the Justice Department and, specifically, in the person of Petersen: “The conduct of high individuals in the Department of Justice, particularly the conduct of the chief of the criminal-investigations division, is unprofessional and malicious and outrageous.”

Why should a Republican Department of Justice and Republican prosecutors be out to get him? Agnew gave this answer: “Individuals in the upper echelons of the Department of Justice have been severely stung by their ineptness in their prosecution of the Watergate case. They have been severely stung that the President and the Attorney General have found it necessary to appoint a special prosecutor, and they are trying to recoup their reputations at my expense. I’m a big trophy. Well, I’m not going to fall down and be his [Petersen’s] victim, I can assure you.” He added that Petersen had not only mishandled Watergate but, through “blunder,” had also prevented the successful prosecution of high crime figures because of wiretapping errors.

As for the charges that he was trying “to hide behind a constitutional shield,” Agnew maintained: “What I want is not a suppression of facts but the fullest possible hearing of them, widely publicized, before the people of the American nation. I’m not trying to hide anything.” For this reason, he said, he still hoped the House of Representatives would hear his case. It was a defiantly masterful performance, about as convincing as any man on a tightrope could be — and that is exactly where the Vice President finds himself.

Witness Parade. Agnew’s slashing counterattack against pretrial by leak climaxed a week in which, ironically enough, events finally did move out into the open. In almost dizzying succession after nearly two months of suspense and scenario weaving, surprise followed sur prise nearly faster than headlines could monitor. Richardson and Petersen, concluding that they could no longer delay, informed Nixon that the grand jury would begin hearing the evidence against the Vice President. Nixon so advised Agnew, who promptly went to the House of Representatives and pleaded that a House committee publicly hear the charges against him rather than the grand jury. Overnight the House Dem ocratic leadership rejected his appeal, the next day the grand jury began listening to the Government’s witnesses, and the day after, Agnew’s attorneys filed suit in federal court to halt the jury proceedings on constitutional grounds.

The judge promised an early ruling on the appeal, but in the meantime permitted the parade of witnesses to continue.

For all of the principals in the complex struggle, the stakes are enormous. Suspected of bribery, receiving kickbacks, illegal use of campaign funds and tax evasion, Agnew is fighting not only for his office and his political future but also to avoid jail.

Awash in Scandal. Richardson has in the balance not only his own integrity but also that of the Watergate-tainted Justice Department, as well as his own quiet ambitions to reach the White House some day. No sitting U.S. President or Vice President has ever been federally indicted; having concluded that the evidence admits no other course, Richardson had better be right.

The President has little to gain and much to lose from the protracted battle looming in the months ahead. Agnew was twice his personal choice for running mate, and a conviction or impeachment of Agnew would inevitably reflect on his patron and deepen the public perception of an Administration awash in scandal. Even if Agnew is ultimately vindicated, the process will obstruct and obfuscate the President’s efforts to focus his, his Government’s and the country’s attention on other matters. Nixon’s own legal problem, far from being resolved, could be undermined if the courts should ultimately rule that Agnew, despite his high office, is subject to ordinary judicial process.

For the nation, too, the stakes are high. Even before Agnew’s troubles burst into view, Watergate had sorely eroded public confidence in Government and enhanced cynicism about politics. If Agnew is finally adjudged guilty, that erosion and cynicism will be deepened, particularly in view of all his vehement protestations of innocence. Conversely, if he is found not guilty, the administration of justice, not to mention the press, will suffer yet another black eye for having needlessly — Agnew would argue perniciously — inflicted the ordeal on the Vice President and the country. Either outcome is likely to deepen the divisions and suspicions in the country. And how the multiple legal and constitutional tangles of his case are unsnarled may set precedents that will govern for decades or longer (see story on page 24).

Agnew began his longest week already persuaded that sooner or later he must try to get his case before the House of Representatives because, he claimed, the constant leaks from the Justice Department had made it hard for him to get a fair trial in the courts. In two press conferences since the investigation was announced Aug. 6, Agnew had lambasted the leaks, demanding that Richardson locate the culprits in his department and dismiss them. Richardson said that he could not trace the leaks; Agnew’s staff felt that he would not. When Peter Malatesta, one of Agnew’s aides, was asked what was new with his boss, Malatesta returned: “Don’t ask me — ask the Justice Department. That’s where the leaks come from. I’ve done my Christmas shopping for the Attorney General. I’m getting him two cases of Zerex stop-leaks.”

No sooner had Agnew showed up at his office on Monday morning than he heard that CBS-TV Correspondent Fred Graham had quoted Henry Petersen as saying of the Vice President: “We’ve got the evidence. We’ve got it cold.” An infuriated Agnew described the comment as “scandalous.” Later in the day Richardson announced that he was canceling a speaking engagement in Texas because “of the most pressing of national business.” Snapped Agnew: “A grandstand play.”

The business was, however, pressing.

The next morning Richardson and Petersen met with President Nixon in the Oval Office to report that they had been unable to work out a compromise settlement with Agnew’s lawyers. Exactly who had sought a compromise is still un clear. The Justice Department implies that the bargaining was proposed by Agnew’s attorneys. Agnew’s camp angrily insists that it was the department that offered a deal.

Constitutional Dilemma. Richardson had gone along with a search for an out-of-court settlement because, he explained, he wanted to avoid “a constitutional dilemma of potentially serious consequence to the nation”— the dilemma of whether or not Agnew, as a sitting Vice President, could be indicted before being impeached.

But Justice officials and Agnew’s lawyers had been unable to agree on a bargain under which the Vice President would resign and be charged with a lesser offense than the evidence warranted.

Thus, Richardson reported to the President, he was going ahead with the presentation of his evidence to the grand jury later in the week.

No sooner had Richardson and Petersen left than Nixon summoned the Vice President. According to Agnew, the two men talked freely and cordially for more than an hour. Nixon told the Vice President of Richardson’s plans, and Agnew revealed that he planned to take his case to the House of Representatives.

Nixon issued a statement on his talk with Agnew in which he said that Agnew had denied the charges against him, “as he had done in our previous meetings.” The President even found some words of praise for his beleaguered Vice President — praise that had been glaringly lacking the week before when Agnew had been rumored to be ready to quit. Lauding Agnew’s “dedication and distinction,” Nixon said: “I urge all Americans to accord the Vice President the basic, decent consideration and presumption of innocence that are both his right and due.” Agnew was so moved by the tribute that he telephoned his thanks to Nixon.

At 3:15 that afternoon, Agnew phoned Speaker of the House Carl Albert and asked if he could drop by the Speaker’s office. Albert readily agreed, although he had no idea what the Vice President wanted to talk about. At 4:15, Agnew walked in the door of the Speaker’s office at the back of the Capitol. “I have a letter,” he told the Speaker. “Would you read it?”

To his astonishment, Albert discovered that the Vice President was asking for “a full inquiry into the charges which have apparently been made against me” during the investigation in Baltimore. Agnew wrote that,he could not go into the courts to clear his name because, under the Constitution, he could not take part in criminal proceedings. Stated his letter: “In these circumstances, I believe, it is the right and duty of the Vice President to turn to the House.”

Albert perceived at once the gravity of the Vice President’s request, one that required consideration by the leadership of both parties in the House. He quickly sent word to House Parliamentarian Lewis Deschler, requesting him to join them and bring along Democratic Leader Thomas (“Tip”) O’Neill and Republican Leader Gerald Ford.

Speaking earnestly, his voice quiet and restrained, Agnew pleaded for a chance to defend his name and reputation. He badly wanted the investigation. He could not get a fair hearing before the Baltimore grand jury, he said:

he was being destroyed by the leaks coming from the prosecutors. He offered to testify in person, under oath, at open hearings, with or without television.

“You had to feel sorry for him,” one of those present said later.

By now it was after 5 o’clock, and a subtle change was occurring in the mood of the room. O’Neill in particular was growing wary. The Democrats had got a whiff of the idea that perhaps Agnew was trying to use the House primarily to head off the grand jury proceedings.

Agnew talked on. “They’re hounding me,” he said. “I’m the victim of an ambitious zealot who’s trying to make a record for himself [U.S. Attorney George Beall, the Baltimore prosecutor].

He thinks I’m a big fry and that I’ll help him along in his career. They’re taking [as witnesses] every individual they possibly can and giving every kind of immunity that they could possibly have — people I’ve never had any dealings with in my life.” Agnew said that Beall was out to make him the villain of current history. Said the Vice President: “I don’t want any part of writing this part of history.”

The group in the room kept growing: Albert asked in Peter Rodino and Edward Hutchinson, the Democratic chairman and the ranking Republican member of the House Judiciary Committee, which historically handles impeachment proceedings.

Extraordinary Session. Meanwhile a curious vigil was being mounted in Albert’s anteroom. In the Senate, Barry Goldwater and Minority Leader Hugh Scott had got wind of the extraordinary session, and came over to sit outside Albert’s office as a visible gesture of moral support for Agnew. They had to leave before the Vice President came out, but Agnew later phoned his thanks to Scott. “It was generous of you and Barry,” he said. “These are the kinds of things that don’t go unnoticed.”

That same afternoon, while the meeting went on in Albert’s office, Scott received a phone call from the President, who had some special advice to pass along. Nixon cautioned Scott to warn his Republican Senators against discussing the Agnew case in public. If Agnew was impeached, the Senators would sit as the jurors at his trial. As he talked to Scott, Nixon was sympathetic to Agnew. “How sad the whole thing is,” said the President.

Meanwhile, back in Albert’s office, the more Agnew talked, the more skeptical the Democrats became. As they saw it, Agnew’s arguments did not add up. The Vice President was claiming that a House committee controlled by Democrats would be fairer than a court — yet until lately he had been arguing that Senator Sam Ervin’s Watergate committee had been unfairly hounding the White House. Agnew was attacking the leaks of the prosecutors — yet the example of Ervin’s committee showed that leaks could also spring freely on the Hill.

Agnew would be much better protected by the strict rules of evidence in a courtroom than by the comparatively lax procedures of a House hearing.

As the Democrats began to turn more and more against the Agnew request, Jerry Ford and his fellow Republicans quickly picked up the danger signals. Ford tried to pin things down before they slipped away. Said he: “I think there ought to be a select committee and that we ought to act. He deserves an open, public hearing.” But that only made the Democrats more skittish.

“I think,” said Tip O’Neill, “that we ought to go our way and talk to our friends, and that you should go your way and talk to your friends.”

Precedents and Practices. After the meeting broke up at about 5:45, Peter Rodino and his staff on the Judiciary Committee set to work, at Albert’s direction, to think through the implications of Agnew’s request. The men worked late into the night, studying and restudying Agnew’s carefully drafted letter and reviewing the House’s precedents and practices. To support his request, Agnew had cited an 1827 investigation by a House committee that cleared Vice President John C. Calhoun of charges that he had illegally profited from a Government contract. But there was one key difference between his case and Agnew’s: the allegations against Calhoun had been made merely in a newspaper article. Rodino decided that Calhoun would not help Agnew.

As the night went on, Rodino and his staffers came to agree that Agnew was really asking to be tried by the House instead of a jury in Baltimore.

“The House does not conduct trials,” Rodino said later, “and this, in effect, would be a trial of a criminal proceeding.” At length the Democrats decided that there was at least a suspicion that Agnew was trying to “obstruct” justice rather than get “a fair trial.” If the House looked into the case, Agnew would have all the more reason to call for a halt to the grand jury’s actions.

The next morning Rodino met with Speaker Albert at 9 o’clock and went over the reasons why he felt the House should reject Agnew’s plea. Albert agreed, and promptly announced that the House was turning Agnew down, at least for the time being, since his case related to “matters before the courts.”

Indeed, as the week went on the Vice President drew sympathy from some unusual sources, including the Senate’s Wednesday Club, a group of liberal-to-moderate Republicans. Agnew had been on the outs with the club since early in the first term. In fact, for the past two years or so, he has had a standing but unused invitation from the club to come any Wednesday and join in its informal luncheons. Last week Senator Mark Hatfield, the host for the meeting, decided to reinvite Agnew. Said he: “It seemed to me, over the last few days, that the man was being victimized.”

Hatfield had never even phoned Agnew before, and had to inquire to get the Vice President’s number. But Agnew, when he came on the line, jumped at the chance, canceling a date and arriving at Hatfield’s office a full 15 minutes early. Munching halves of hot pastrami, roast beef and chicken salad sandwiches, Agnew listened politely as the ten Senators talked about their favorite bills. By custom, each man had two minutes, as measured by an hourglass. Then Hatfield gave the Vice President the floor.

Notable Exception. “I don’t think that I have any legislation to report,” said Agnew. That got an encouraging laugh, and the Vice President went on to talk earnestly about his crisis, pretty much repeating what he had told the House leaders — with one notable exception. He made no mention of his charge that U.S. Attorney George Beall was out to get him in Baltimore. Sitting in the room with the Vice President was George’s older brother — Maryland’s Senator J. Glenn Beall Jr.

The next day the younger Beall’s grand jury finally began to receive the evidence against Agnew that Justice had been patiently assembling for months.

The security was extraordinary. The chambers on the fifth floor of the U.S.

Courthouse in Baltimore were sealed off by deputy federal marshals, who coordinated their movements by walkie-talkie. Cooperative witnesses were given safe-conduct out of the building by a route that eluded reporters. But William Muth, 63, a Baltimore politician and former fund raiser for Agnew, met a different fate after he had cited the Fifth Amendment and refused to say anything at all. Muth was turned loose at the courthouse garage entrance where the newsmen were massed — a procedure similar to providing a Christian a path to freedom that led directly through the lions.

“Listen,” Muth told the newsmen who surged around him. “I believe in Ted Agnew. The day they make me stop believing, I’m going to take down my American flag and put it away.” He explained that his flag flies 24 hours a day, spotlit at night. As for all the hullabaloo about Agnew, Muth declared: “It’s bullshit. You may quote me.”

With the backing of Attorney Ger eral Richardson, Beall was pushing for a quick indictment of Agnew because the time during which the Vice President can be charged is rapidly running out. Under the federal statute of limitations, grand juries may indict a man for most noncapital offenses only within a five-year period following the crime.

In mid-January, Agnew will have been out of office in Maryland for five years.

Indeed, the statute may already be running out on some of the incidents under examination. There is, however, a six-year statute for willful income tax evasion or fraud — which would apply if Agnew had not reported any kickbacks on his returns. The grand jury is also investigating charges that Agnew was being paid off more recently while serving as Vice President.

So it seemed to Agnew’s advantage to try to delay the grand jury as much as possible. Last week his lawyers filed for a court order that, among other things, would quash the grand jury action on the grounds that “the Constitution forbids that the Vice President be indicted or tried in any criminal court.”

Federal Judge Walter Hoffman ruled that the jury could continue to hear evidence against the Vice President “pending final decision on the motion.”

The Justice Department will probably delay trying for an indictment until Hoffman makes his ruling, presumably in late October. Whichever way Hoffman decides, the case is certain to be appealed and to reach the Supreme Court, perhaps as early as December.

If the Supreme Court ruled that Agnew could be prosecuted despite his office, the trial could begin in late January. By ringingly asserting to the G.O.P. women last week that he would not resign if indicted, Agnew was going against the spirit of Nixon’s own promise, made at the outset of the Watergate investigations, that he would demand the resignation of anyone indicted. Since he, like Nixon, is elected, Agnew could theoretically get away with it, although regardless of his present pledge not to quit, the pressure on him to do so would be overwhelming. If he were convicted and still did not resign — an unlikely situation — the House would surely begin impeachment proceedings against him.

Hounded Cut. If, on the other hand, the Supreme Court ruled that the Constitution does indeed protect Agnew from prosecution, the Department of Justice would deliver its evidence to the House of Representatives. If the acts in the indictment occurred after Agnew became Vice President, the House would undoubtedly impeach him. But if they took place before he assumed office, the House might follow the Colfax precedent. In 1872 the House decided not to start impeachment proceedings against Vice President Schuyler Colfax for acts he bid allegedly committed before being elected, arguing that he could be impeached only for misdeeds committed while in office. In that event, Agnew would be neither indictable nor impeachable and, however guilty, could theoretically go scot-free. The theory strains credulity. By then the affair would have gone on so long, and Agnew would have appeared to the public to have eluded the law so flagrantly, that he most likely would be hounded out of office.

That, of course, is precisely what Agnew seems convinced the Justice Department is trying to do. At the same time that his attorneys asked Judge Hoffman to stop the grand jury proceedings, they also asked him to forbid Richardson, Beall and “all officials of the U.S. Department of Justice” from giving out any information on the case. If the Justice officials denied leaking material, the lawyers asked for a full hearing to “determine the truth.” The rationale of Agnew’s attorneys was that the department was involved in a plot “to drive the Vice President from office.”

Until those harsh accusations were filed with the judge, Richardson had kept his own counsel on charges from Agnew’s office that he was out to get the Vice President. The situation had its private delicacies as well as formal proprieties, since Agnew and Richard son are old antagonists. Agnew followers have never forgiven Richardson for using his voice in the Massachusetts delegation at the 1968 Republican Convention in order to prevent the Vice President’s unanimous nomination. But with the Agnew attack a matter of record, Richardson lashed back. Agnew’s charges, he said, were “patently ridiculous” and had “no basis in fact or common sense.” Declared Richardson: “The Department of Justice will continue to discharge its duties to enforce the laws of this land.”

It will, of course, never see light in any legal brief, but the suspicion festers among Agnew loyalists and even a good many neutral observers that somehow, some way the highest law officer in the land, Richard Nixon, must ultimately be the source of Agnew’s troubles. Their reasoning is that the furor over Agnew has been so helpful in eclipsing the President’s own difficulties over Watergate, drawing heat and attention away from the Oval Office, as to be in the category of unnatural coincidences. The President is, after all, self-storied in his love of adversity, joy in combat and accounting of crises. Belief in battle is a Nixonian article of faith, and the image of Nixon as a passive spectator in the midst of turbulence is almost impossible to conjure up.

Yet that is the stance, publicly and privately through his aides, that Nixon has adopted in the Spiro Agnew turmoil, a crisis that not only afflicts his Vice President but also threatens the already frayed stability of his Administration. He seems to be watching events unroll from a lofty perch of neutrality. In his several recent private sessions with Agnew, he is depicted as hearing Agnew out, talking sympathetically, but neither asking him to resign nor offering any positive counsel on what else he might do. When Richardson and Petersen came to Nixon to report that the grand jury must begin hearing the Agnew evidence, the President simply acquiesced in their judgment, according to his press spokesman, Gerald Warren. Nixon neither approved of nor concurred in the decision because he did not wish “to inject himself into the procedure.

Latent Threat. Such benign neutrality seems out of character, in fact distinctly fishy, some of Agnew’s supporters feel. They may be right, but not necessarily. Agnew is a liability to Nixon now. But in their differing adversities, they share the same hard core of supporters in the country, many of whom find Spiro more to their liking than Nixon. The President can ill afford to alienate them by rudely trying to oust Agnew before he is indicted. The nature of this problem does require a sense of propriety and restraint. One of the President’s first orders to his staff in the Agnew affair wisely was: “Make sure nobody around here is talking about something he knows nothing about.”

Finally, one of the immediate legacies of Watergate is that not only must justice be done, it must be seen to have been done without White House interference. Elliot Richardson and a good many other employees of Richard Nixon have far more autonomy than presidential appointees have had in years, an autonomy vested in the latent threat to quit on a matter of principle and tell the world why. Nixon’s authority has been sharply diminished by Watergate. A preWatergate Nixon might well have forced Agnew out of office by now; as it is, even if he wanted to, Nixon perhaps cannot either help or hurt Spiro Agnew as much as both the Vice President’s friends and foes would like to believe.