Can Nixon Afford to Resign?

“I will not resign,” said President Nixon in his State of the Union Message. Last autumn I. F. Stone predicted in these pages that Nixon would take this position because resigning would force him to face the prospect of criminal prosecution.^* This still holds true. But Stone did not mention that the President would also be forced to give up the enormously valuable free legal advice that he has been receiving during the past few months at the expense of the taxpayers.

To deal with his legal troubles President Nixon has assembled what is referred to around the White House as “The Law Firm.” While the office of the Counsel to the President apparently continues to handle the routine legal problems that reach the White House, Nixon’s other lawyers are rescuing, or trying to rescue, him from his criminal involvement in Watergate, its coverup, the destruction of a critical taped conversation with H. R. Haldeman, and now his own impeachment.

Recent correspondence between Senator Walter Mondale (D., Minn.) and White House Counsel J. Fred Buzhardt reveals only the tip of this legal iceberg. According to Buzhardt, the White House spent $290,418 in the last six months of 1973 on the President’s Watergate defense alone. This figure is supposed to include the salaries for lawyers and others assigned to the White House from other executive departments and agencies, as well as all the administrative expenses for providing this legal advice.

However, according to Buzhardt’s letter, this sum does not include work on the President’s personal finances and taxes, since in those matters he is represented by private counsel. To judge by the standard of completeness of previous White House accountings on subjects such as the amount spent on San Clemente and the President’s personal finances, this figure of $290,418, even for the limited time and subjects that it purports to cover, may soon be “inoperative.”

The savings to the President from his publicly financed defense fund should not be measured by what it costs the taxpayer, but more properly by what he would have had to pay these lawyers if he had hired them himself. Lawyers of the reputation and ability of Charles Alan Wright and James St. Clair do not normally work for salaries of $40,000 per year, which is about what they are being paid by the treasury. Since Mr. Nixon is a millionaire earning a $200,000 salary, lawyers like Wright and St. Clair would surely bill him at no less than $100 per hour. For a forty-hour week, this amounts to $4,000, which would mean that the annual bill would be in the neighborhood of $200,000, or five times what Mr. St. Clair is being paid. Of course, if the President resigned and faced a trial or series of trials, his costs would run much higher. Ellsberg and Russo, for example, spent about one million dollars defending one case.

Misuse of government lawyers for private purposes is not a recent practice at the White House. From the beginning of his first term, President Nixon has used lawyers on the White House staff to help him in such “presidential” matters as the purchase of his San Clemente estate, the gift of his pre-presidential papers to the National Archives, and the planning of his estate. Assigning government-paid attorneys to work on the gift and the estate plan represents one of the more flagrant misuses of the taxpayers’ money on record, since the main purpose of such legal advice is to find a way to minimize the taxes to be paid to the government, which is paying the salaries of these lawyers.

In view of this background, it was not surprising that when an opinion was needed on the effect of the 1972 campaign law on the finances of the Committee to Reelect the President, the Counsel to the President, i.e., John Dean and his staff, prepared extensive memorandums on what could and could not be done under the new law. No matter that CREEP had thousands if not millions of dollars to pay for legal advice. Why spend that money when the government will give you the answers for nothing? Was this a conflict of interest? An improper use of government employees for personal gain? The question never seems to have occurred to the White House.

Some comparisons with others in need of legal help are instructive. When Spiro Agnew was prosecuted by the Justice Department for his activities both before and after he became Vice President, he hired outside counsel and reportedly paid over $200,000 for his defense. Mr. Agnew’s lawyers were not on the federal payroll even when they were raising the constitutional defense that the Vice President, like the President, could not be indicted while in office. When the Special Prosecutor began calling on Rose Mary Woods to explain the erased tape, she too hired her own lawyer, as has every other member of the White House staff who needed legal advice.

To all of this we can expect the reply that the White House lawyers are there to defend the “Presidency,” and not the President. One could argue that protecting the “Presidency” required spending thousands of taxpayers’ dollars to prevent turning over White House tapes to a grand jury or a Senate committee, if you can convince yourself that the public should have been paying for those tapes in the first place. But Nixon’s White House lawyers are protecting much more than “presidential papers,” however broadly that term may be defined. No one has accused the “Presidency” of erasing any tapes or of being involved in the milk deal, the ITT scandal, or the Watergate coverup; activities of this kind are done only by people. And now that the White House legal team is getting ready for the fight over impeachment, it should be apparent to all that the Constitution does not provide for the impeachment and trial of the “Presidency,” but only of the current occupant of the office.

The misuse of government lawyers could be put to an end if the members of the appropriations committees of both houses of Congress are willing to accept their responsibilities. The Administration’s new budget asks for authority not only to continue the President’s public defense fund but to increase the current “Law Firm” by another thirty lawyers as well as the staff they will need. The time has come to cut back rather than expand the President’s use of government lawyers. The real question is whether the members of the appropriations committees and their colleagues in Congress are willing to plug this drain on the treasury. If they do, they will remove at least one of the incentives for Richard Nixon’s refusal to resign. On the other hand, there are those who might think it well worth the costs if Congress passed a bill guaranteeing Nixon’s legal fees if, and only if, he did resign.