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bjbj Naftali: The Statement of Information, what can you add to tell us to give us a sense
of how that format was selected as a way of presenting this information to the Committee.
Fiss: The last comment I made was to underscore his determination to avoid any form of partisanship.
You can tell from the title Statement of Information how that's consistent with the purpose. There's
never been a document before in the history of these proceedings called Statement of Information.
What he wanted was a statement of information not a brief or anything near a brief. He presented
it as a kind of dry, methodological, impeccable distillation of all the information that was
the tone that we kept throughout. If you will recall one of the members of the Judiciary
Committee, when John read it, remember he read it. He said John Doar could put us to
sleep even if he were reading the Happy ***. He was at his most Midwestern Republican qualities
of just dryly reading fact by fact without trying to give any sort of sense of drama
or mystery unfolding or any tinge of advocacy. One thing you have to understand, this is
how he ran the Civil Rights Division. The Civil Rights Division begins its operation
in the late 50 s, but really takes off overly the early 60 s. This is an extremely decisive,
explosive issue in American politics. He believed it was necessary if we're going to make any
progress on civil rights issues that he had to present this matter in a kind of elaborate,
factual presentation. That was his signature in the Civil Rights Division. Many of the
Judges who later became heroes of the civil rights began with great skepticism of these
civil rights. These people Judge Johnson, Judge Wisdom, Judge Brown were all parts of
the society that was being criticized and attacked during that period. John developed
a mode of operating which just consisted of the dry presentation of facts. You can't get
a grasp of John by looking, I don't think, at the Neshoba trial which is kind of dramatic
and [inaudible]. John's real contribution was the development of these facts in the
early voting cases before the Voting Rights Act of 65. School desegregation cases where
the presentation was just like these are the number of students, these are the school buildings,
these are when they were built, these are the teachers, their salaries, this is what
happened, these are the facts. His emphasis during the Civil Rights Division was almost
like treating these cases like anti-trust cases. Not as a kind of a criminal case with
a human interest story and he operated the division to always put the emphasis upon the
facts, facts, facts. When he became the Chief Counsel of the Impeachment Inquiry he had
the same model. I was not present when he chose the top title Statement of Information.
I wasn't in on that discussion. I don't know who on the staff made it or recommended it,
but when I came and saw that this is what it's going to be called, I smiled. This was
like so John. That's basically how it would evolve. Naftali: Do you think he was a little
disappointed that the Committee Members needed a little bit of tutoring. I understand that
*** Cates used to give them little seminars on how to I've read there were some complaints
from the Committee Members. They were having a hard time absorbing the Statements of Information.
Do you remember that at all? Fiss: I have a vague recollection of it. I mean, it's not
easy to be a Judge in an anti-trust case reading volumes of economic, volumes of information
on economic performances. This was the same thing just go on and on, but he didn't shake
from that. He didn't move from that. Naftali: At what point do you think he shifts from
being someone who's assembling material to actually being a prosecutor? When do you think
he made up his mind about impeachment, I guess that's a better way to put it. Fiss: I think
it was pretty late in the process, I think he had made up his mind. I'm not sure about
which Articles and all the rest, but I think by the time the he had been seeing drafts
of Statements of Information and I think as that began to sort of assemble, I think he
made up his mind at that point. I think it was late in the process. How late, I can't
recall specifically, but it did not come quickly or easily. I think also I remember keep in
mind Presidential politics are changing during this period. I mean, we're not sure of the
outcome at all. I remember, I think Nixon makes a trip abroad in what July and returns
home extremely popular and successful. It's not clear what's going to happen in terms
of what the Committee would do. I think what happened was he returned home very popular
and then the Impeachment Inquiry released the re-transcribed tapes and that sort of
pushed back on the public reaction to his trip abroad. Naftali: Why did the Committee
not wait for the Supreme Court decision on the other tapes because, of course, the smoking
gun tape doesn't come out until after the Judiciary Committee has voted on these Articles.
Was there any thought to waiting until Jaworski and Sirica's case had been adjudicated by
the Supreme Court to get it? Fiss: I don't remember any discussion about waiting at all.
I don't know if we knew what was on those 18 and a half minutes and stuff. Naftali:
Nobody does. Fiss: There must have been some consideration at some point, but I think once
the Committee, once the Impeachment Inquiry, was authorized, I just think there was a kind
of momentum that ran on an independent track and it wasn't about to be I don't remember
any discussions, although, I'm sure they must have had them. Naftali: Did he ever Fiss:
I mean the decision when it came down was an incredible historic moment and I remember
having dinner with him that night. Then going back to the office late at night and one or
two Congressmen were coming by to look at sort of information. I don't know why they
were. I mean it was an incredibly dramatic turning point in American history. This whole
proceeding. Sometimes, when a lawyer gets involved in a case or a prosecutor, or a plaintiff's
lawyer, defendant's lawyer, they get somewhat disappointed when there's a settlement. Like
why can't we go through? I'm all prepared to go. Why are you pleading guilty or something
like that, but there wasn't any feeling on John's part about that. I think when the news came down it was we
did our job and we did it well and this only confirms what we were doing, really. Naftali:
For people watching who are not experts in the whole issue of impeachment, since you
did not know that the story would end with the President resigning, was it anticipated
that the Statements of Information would actually go to the entire House after the Committee
voted and approved what Articles, in this case Fiss: It's very unclear what the trial
in the Senate would consist of. It's conceivable. It was conceivable that it would be based
on that, but I'm sure the President would want a kind of independent fact. I mean, we're
talking now about multiple levels of hearsay. The Senate would like probably to have something
independent, but it wasn't looking ahead to that. It was really I don't know our minds
never really turned to the Senate trial, really. Naftali: Well, I was also thinking Fiss: It
was such an extraordinary moment. Naftali: Look at the House, the House still had to
vote right? Fiss: Yeah, oh, I'm sorry. I thought Naftali: I was going to get to the Senate.
Fiss: I'm sorry. Naftali: That's okay. Fiss: I think they assumed that the House would
be acting on the basis of the Statement of Information and the action of the Committee.
That that would go that would be the factual predicate for the deliberations of the House
of Representatives. I mean that was an operative assumption. I don't recall any specific conversations,
but we all assumed that. Naftali: Now do you remember the discussions about what role the
President's counsel would play in toward rebutting these Statements before the Committee vote?
I'm still talking about the House Judiciary Committee. Of course, there was a bit of controversy
as to how much time would Sinclair have, would he be able to actually cross examine people,
that sort of thing. Do you recall the issues that arose? Fiss: No, I mean we discussed
it, but I don't have a very clear recollection. When you're writing something like this, you're
always imagining what they would say. I mean you can't write an effective legal document
or even political document in a kind of context like this unless I mean every time I worked
on it and I had like one iota of information. I tried to imagine what someone who would
be defending the President would say about it. I constantly imagined what it is, what
they would say, but I don't remember conversations about what should Sinclair be able to do before
the Committee, etc. I don't recall that. Naftali: I suspect you don't believe that they are
hermetically sealed, but how intertwined were legal and political issues here? You were
saying as you put it, it's both a legal and a political document. Was this a legal process?
Fiss: When the Statement of Information was released there was a column in the New Republic
saying this is the most powerful political document ever produced in America history.
I kind of smiled because I thought it was just pure law. There was nothing political
about it. John was always aware of the political milieu in which we operated or he operated
it was always there, but I think he really saw himself all the time as a lawyer. He certainly
didn't let the staff have much input. I would never talk to him about politics or any aspect
when I say politics, like what would this Congressman's reaction be or that Congressman.
I mean we'd have chit chat, but I had no intelligence about politics and I tried to just do it as
a lawyer. It had tremendously profound political implication I think that's what the New Republic
meant. Its become vulnerable to political dynamics after all the Congress people are
politicians and subject to that, but that was always kind of another world. Naftali:
I mean, as you say, you understood the implications of what you were doing. Fiss: Yeah, absolutely.
Naftali: You were still in your 20s? How old were you then? Fiss: I was in my early 30s.
Naftali: Early 30s, it must have been pretty heady. It must have been a heady time. Busy,
I know, but Fiss: It was heady and you needed to believe in what you were doing to work
two or three nights without sleep or something like that. It was very, very, very heady.
My own personal feeling was, gee, I'd like to be back in Washington or Chicago getting
ready for my classes or something like, what am I doing here? I'm sure I'm naive, but I
had a very technocratic aspect. I was being a lawyer. I was helping out in this inquiry.
I didn't have intelligence about the rest of the political setting and stuff like that.
I just put my head down and worked. Naftali: Just on a sort of technical, discuss a technical
issue, when you would work on a Statement of Information regarding, let's say, abuse
of power, would you then go and talk to Robert Sack, later Judge Sack because he compiled
a lot of the material that went into that. Would you have talked to him when you were
editing it or was it beyond him at that point? Fiss: It was really beyond him. I mean, I
would talk to him he was friendly and smart and all the rest. Some things I didn't understand,
but it was like beyond him. Now John, John would have conversations with him. See, it
wasn't like here's Judge Sack and here I am and here's John. I just worked for John and
John had doubts about what I did a lot of times, I'm sure. I mean it would go up to
John. It would go to John and then John would take it up with Bob Sack or someone else.
Believe me, my word was not the last word. John was the last word and he consulted and
he consulted even things, he might have discussed it with Burke Marshall. He might have discussed
it with Bob Owen or the official staff. I mean we were like sort of shadow people. We
were like his sort of special staff. They knew it. I'm sure a lot of them resented our
doing it, but I'm looking at that from Bob Sack, but John would go back to him. John
would be respectful of his position. John would go back to Bernie Nussbaum or something
like that. John was very respectful of the position, but it went not from me to them,
but Naftali: You were like a kitchen cabinet. So it was you and Burke Marshall, was there
anybody else who was sort of a special adviser to him? Fiss: Well, Burke, I mean Bob Owen
operated in that way. Dorothy operated in that way. The three of us were often in the
same room. Of course, you probably know about Renata Adler was a person that was involved
as a kitchen cabinet. Not on a daily basis, but she was involved. Naftali: She would write
quite a critical piece in the Atlantic afterwards. Fiss: Yes, well, that's Renata, but she played
a very important role. I think it was her. I hope I'm not speaking out of school on this,
but I think it was her intuition when the transcripts were released that there's something
funny about the transcription of these recordings. She's an extraordinary writer, but she felt
that this is not how people speak. There's something the cadence everything isn't making
sense. Naftali: You mean when the White House Fiss: When the White House released the transcript,
it was embraced by the public and sort of more or less accepted until the Impeachment
Inquiry reissued, re-transcribed, but I think it was basically her intuition that this is
not the way people ordinarily speak that there's more on these tapes than we get from this
transcript. Naftali: So that may be what prompted or help prompt Mr. Doar to go ahead and do
your own transcripts. Fiss: Yes, yes. Naftali: As you said, that was a very significant decision
and it was. Fiss: Incredibly significant, really, incredibly significant. As I told
you first, not just because of the impact on politics when the job was done and released,
but also in the writing of the Statement of Information. You had a clearer picture of
what was happening in these conversations. Naftali: How was the decision made to interview
I believe there were eight or nine people interviewed by the Committee Colson, Kalmbach,
a few others. How was that decision made to have them testify? Fiss: I don't know. I was
back in New Haven, Connecticut staying at a friend s house watching on TV. Naftali:
What other issues do you recall being very significant and being sort of a center of
your discussions with Mr. Doar as part of his kitchen cabinet that we might not have
touched on? Fiss: Nothing comes to mind. I think you touched on a lot. I don't remember.
I may recall later, but I don't. Naftali: What did you learn as a result of this process?
Fiss: I mean, of course, my admiration for John grew, but I would say the major thing
that I got from the process was we had to confront one of the awkwardness s of the Presidential
system of government. It was just too hard just to impeach we have the Presidential system
means that the President has an independent mandate from the populace as well as the Congress.
As opposed to a parliamentary system. I just felt that we just had too high a standard
for impeachment. I mean, I think it's integral to a Presidential system, but that you have
to prove high crimes and misdemeanors is a little bit too rigid and too inflexible. I
never perceived that it would be so hard to do. As I said, I don't believe to this day
that it requires proof of a crime. I mean in the sense of a violation of Title 18, but
it does have some crime like qualities to it and I did not believe that the bombing
of Cambodia was a ground of impeachment. I had doubts about that, but I'm not sure. It
shouldn't be a grounds for removing the President. I just think it's too rigid. When things get
that bad, you should be able to remove a President or have another election in the way that you
have in a Parliamentary system. Now there's many disadvantages to the Parliamentary, so
I'm not carrying a brief for it, but maybe you could have the Presidential system with
a lower threshold for grounds of impeachment than the Constitution gave us. That was the
major take away, I would say. Naftali: Then you would have these confidence motions, right,
if the President lost the confidence of Congress then they would be removed. Fiss: Well, I
would say that would take us to the Parliamentary system. I'm not recommending that, but I'm
wondering. I don't come away with a clear conviction, but I'm wondering whether you
could have a Presidential system with a lower standard than high crimes and misdemeanor
gave us Naftali: You think that partly this Fiss: You know it could be systematic deception
of the public that strikes me like a good crime of impeachment systematically just misleading
Congress and the public, lying or something like that. I don't think it's a crime and
I don't think it would be a high crime misdemeanor, but maybe that should be sufficient grounds
of what's going on. I mean the question what I came away from is whether you could have
a Presidential system with a lower standard for impeachment that would still keep us as
a Presidential system. Naftali: Well, as you know, the framers had that whole discussion
about it. Where were you and what do you recall of learning that President Nixon was resigning?
Where were you when you heard that? Fiss: I was in Washington. I was at the offices
of the impeachment inquiry. The Supreme Court s decision came out sometime on was it a Thursday
I don t remember. It came out then we had dinner together. Then I went back to the Division
I mean I went back to the offices that night and then the next morning. Then I think that
sometime during that day it was revealed to me. Naftali: I asked you about when the President
resigned. You've talked about the Supreme Court decision. There's actually a lag between
the Supreme Court decision and the President's resignation. He doesn't resign until after
the smoking gun transcript is released on the 5th of August and the he resigns on Fiss:
What's that date of the Supreme Court's decision? Naftali: July 29th. Fiss: I may have been
back in New Haven, Connecticut. I don't recall. I was not startled by his resignation. I mean,
as from that night that the Supreme Court decision and I was in the office the next
day, I mean I think there was contemplation that he would resign. It was not a traumatic
moment for me. It was not a utter surprise, but I think I was back in New Haven, Connecticut.
Naftali: Did you ever talk to Mr. Doar about the pardon? What he thought of the pardon?
Fiss: No, no. I had views about it, but I Naftali: What did you think of the pardon?
Fiss: I thought it was kind of a betrayal to our commitments about rule of law. President
Ford was invited by the Yale Law School to receive some honor, I think, in that November.
I think the pardon had already when was the pardon issued? Naftali: September Fiss: September,
came back in, I believe, early November or late October to receive some medal of something
and I decided not to go to that ceremony. I care too much about law and justice to have
that, but I never discussed it with him and I'm not sure. Naftali: After US v. Nixon was
decided, did you ever have occasion to talk to either Justice Marshall or Justice Brennan
about participating in that case and thinking about that case? Fiss: No, no. I was close
to both of them, very close to both of them and written a lot about them, but I would
very rarely I mean sometimes it would come up in our conversations when I would see each
over the years, but since I clerked, I never asked them about this decision, that decision.
Naftali: Did they ever mention to you after the fact anything about they knew you were
working on the impeachment inquiry, did they ever ask you about that experience? Fiss:
Naftali: Well, Professor Fiss, have I missed any anecdote or story you would like to preserve?
If not, then thank you very much for your time. You've been most gracious. Fiss: Thank
you, I hope it was helpful. Naftali: It was. Thank you, thank you. PAGE PAGE Owen Fiss
Oral History Richard Nixon Presidential Library and Museum PAGE Filename Speakers Names _____________________________________________________________________________________
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