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Profile: Philip Buchen
Philip Buchen was a participant or observer in the following events:
White House lawyer Fred Buzhardt, a Nixon loyalist who is retiring into private practice, orders Staff Secretary Jerry Jones to box up all the Watergate tapes and place the boxes on an Air Force truck outside the White House, joining boxes and crates of White House documents being shipped to Nixon’s home in San Clemente, California (see August 8, 1974). Ever since the now-infamous 18-and-one-half minute gap had been discovered on one of the tapes, Jones has been the only person authorized to enter the guarded vault in the EOB where the tapes are stored. Jones complies, believing that Buzhardt has authorization from President Ford’s personal lawyer, Philip Buchen. But two hours into the packing process, Buzhardt stops Jones from continuing. “I think what happened is Buchen changed his mind,” Jones later recalls, “and then Fred had a problem. I think we probably could have shipped them after Buchen told him not to. But Fred felt that being the case, we simply couldn’t do it.… It was a trust thing. We were all in the position that if we did the wrong thing, or if I relied on Fred and he did the wrong thing, or he relied on me and I did the wrong thing, or we both relied on [chief of staff Alexander] Haig and he did the wrong thing, we could go to jail.” By August 12, Jones recalls, “nobody knew what in the hell to do with these things.” [Werth, 2006, pp. 72-73]
Because reporters do not realize that President Ford has ordered his staff to prevent the Watergate tapes from being spirited out of the White House, they begin speculating that Ford may be part of the conspiracy to get the tapes out of Washington (see August 8, 1974). Ford realizes that he cannot take advice from Richard Nixon’s lawyers any longer. He immediately replaces Fred Buzhardt with his own lawyer, Philip Buchen. Buzhardt had been an invaluable “mole” for Nixon, and is a valuable, if unofficial, legal adviser to Nixon chief of staff Alexander Haig as well. His loss is damaging to both the former president and his former chief of staff. Ford also removes Haig from any responsibilities for dealing with Nixon, and gives over custody of the tapes and documents to Buchen. Haig knows his days are numbered, but he is determined to accomplish one more task. “I’ve lost the battle,” he tells an aide, “but I’ll stay long enough to get Nixon the pardon.” [Werth, 2006, pp. 79-83]
The White House announces that none of former President Richard Nixon’s documents and tapes will be released to him, but will instead remain in White House custody pending a resolution of the legal issues surrounding the materials. Nixon has correctly argued that all other presidents routinely receive their files and documents upon leaving office, but these are extraordinary circumstances and Nixon has no constitutional or legal right to those materials. President Ford’s counsel, Philip Buchen, speaking for Ford, notes that the decision to keep the files “in no way constitutes a denial” that they legally belong to Nixon. Another of Ford’s counselors, Robert Hartmann, later writes that the key to this question is not Nixon’s desire for the files or the Watergate prosecutors’ equal desire for them, but that “Ford wanted to get rid of them. He had no desire to be the daily arbiter of this no-win contest. Nixon’s files were a millstone hung around his fledgling presidency. He desperately wanted to cut himself free.” [Werth, 2006, pp. 83-84]
President Ford, with Attorney General William Saxbe and Ford’s counsel Philip Buchen, discuss what to do with the ever-accumulating boxes and crates of Richard Nixon’s presidential documents. Mostly stored on the third floor of the Executive Office Building, their weight is so heavy that the Secret Service worries the floor might cave in underneath them. No one is sure how many documents William Gulley, the director of the White House military office, managed to spirit out to the Nixon residence in California (see August 8, 1974), but the White House tape recordings and most of the important documents remain in White House custody. Ford wants to be rid of the documents once and for all, but he has so far yielded to the advice of his lawyers to keep them. Ford’s attorney Benton Becker will later write, “I suggested to President Ford, not too diplomatically… that American history would record his transmittal of the records and tapes to California as the final act of the Watergate cover-up—an act initiated and carried out by Gerald Ford.” Ford asks Saxbe to get a firm legal opinion on exactly who owns the Nixon files, Nixon or the government. [Werth, 2006, pp. 157-158]
President Ford tells chief of staff Alexander Haig and a small assemblage of his closest legal advisers that he is “very much inclined to grant [Richard] Nixon immunity from further prosecution.” He tells White House counsel Phil Buchen to begin researching how he can do it, but to “be discreet. I want no leaks.” Buchen will later recall that Ford has made up his mind, but wants to be exactly sure of the legal procedures and ramifications of a presidential pardon for Nixon. Buchen suggests a trade: Nixon receives the pardon, and in return, he grants full custody of his presidential documents and files to the federal government. Buchen is struggling with a subpoena of his own that requires him to turn over a selection of Nixon’s Oval Office tape recordings to an attorney for a former Democratic Party official whose phone was bugged during the Watergate break-in (see 2:30 a.m.June 17, 1972). [Werth, 2006, pp. 243] The assistant attorney general for the Justice Department’s Office of Legal Counsel, Antonin Scalia [US Supreme Court, 2008 ] , has written that Buchen has no authority to turn over the tapes because they belong to Nixon and not the government. Scalia’s opinion has not yet been released, but Buchen fears it will weaken the argument for retaining custody of the tapes and documents. Buchen wants the issue settled before it can explode into a huge, embarrassingly public legal debacle. In addition, Buchen wants a “statement of contrition” from Nixon in return for the pardon. Ford tells Buchen to work on both, but “for God’s sake don’t let either one stand in the way of my granting the pardon.” Buchen and other advisers, particularly another Ford lawyer, Robert Hartmann, argue against issuing a pardon at the particular moment; when Buchen finally says, “I can’t argue with what you feel is right, but is this the right time?” Ford replies, “Will there ever be a right time?” [Werth, 2006, pp. 243-246]
Richard Nixon’s lawyer, Jack Miller, has prepared a “deed of trust” for Nixon’s presidential documents and tapes. According to the proposal, Nixon and the government will share ownership, and the files will be available for court subpoenas for up to five years. Two keys will be necessary to access the material, with Nixon retaining one and the General Services Administration (GSA) retaining the second. Miller is not sure Nixon will accept the plan, but he presents it to President Ford’s lawyers Benton Becker and Philip Buchen. (Nixon has another reason for wanting to retain control of the documents; his agent, Irv “Swifty” Lazar, is peddling a proposal for his biography to publishers, with an asking price of over $2 million. The documents will be a necessary source for the biography.) Buchen tells Miller that Ford is considering pardoning Nixon (see August 30, 1974). Miller is not sure Nixon wants a pardon, with its implication of guilt (see September 2, 1974). Miller has had trouble discussing Watergate with Nixon, who does not want to discuss it and certainly does not want to admit any guilt or complicity in the conspiracy. Becker says that the entire issue of Nixon’s pardon, and the concurrent question of the Nixon files, has to be resolved quickly. [Werth, 2006, pp. 280-281]
Just hours after President Ford announces his pardon of Richard Nixon (see September 8, 1974), he sees evidence that the pardon is even more unpopular than he had feared. The White House switchboard is flooded with “angry calls, heavy and constant,” as Ford’s lawyer Philip Buchen will later recall. The response, says resigning press secretary Jerald terHorst (see September 8, 1974), is roughly 8-1 against. TerHorst’s admission to the press that he is resigning over the pardon adds even more fuel to the blaze of criticism. “I resigned,” terHorst tells reporters, “because I just couldn’t remain part of an act that I felt was ethically wrong.” Reporters almost uniformly side with terHorst against Ford; as author Barry Werth will later write, “the press concluded intrinsically that terHorst’s act of conscience trumped the president’s.” TerHorst’s resignation is inevitably compared to Nixon’s infamous “Saturday Night Massacre” (see October 19-20, 1973), and engenders a similar avalanche of press criticism and public outrage. The day after, protesters greet Ford in Pittsburgh with chants of “Jail Ford!” Conservative columnist George Will writes, “The lethal fact is that Mr. Ford has now demonstrated that… he doesn’t mean what he says.” The New York Times calls the pardon a “profoundly unwise, divisive, and unjust act.… This blundering intervention is a body blow to the president’s own credibility and to the public’s reviving confidence in the integrity of its government.” Ford’s popularity plunges almost overnight from 70 percent to 48 percent; fewer than one in five Americans identify themselves as Republicans. Ford’s biographer John Robert Greene will write that journalists begin “treating Ford as just another Nixon clone in the White House—deceitful, controlled by the leftover Nixonites, and in general no different than any of his immediate predecessors.” Werth will conclude that Ford’s “self-sacrific[e]” is the political equivalent of him “smothering a grenade.” Nixon’s refusal to atone in any fashion for his crimes placed the burden of handling Watergate squarely on Ford’s shoulders, and that burden will weigh on his presidency throughout his term, as well as damage his chances for election in 1976. Ford will later write: “I thought people would consider his resignation from the presidency as sufficient punishment and shame. I thought there would be greater forgiveness.” [Werth, 2006, pp. 328-332] Years later, Ford’s chief of staff, Dick Cheney, will reflect that the pardon should have “been delayed until after the 1974 elections because I think it did cost us seats [in Congress]. If you say that that is a political judgment, it’s true, but then, the presidency is a political office.” [Dubose and Bernstein, 2006, pp. 27]
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