Washington Straight Talk; Will, William Saxbe

William B. Saxby, Attorney General of the United States. Tonight, on Washington Strait Talk, Attorney General William Saxby, former Republican Senator from Ohio, and the fourth Attorney General in the Nixon administrations. Attorney General Saxby answers questions from syndicated colonists and Washington Senator for the National Review. George Will. Attorney General Saxby, we're now celebrating if that's the word, the second anniversary of the Watergate break-in. Yesterday, former Acting Director of the FBI, William Ruckel's House, suggested that there would be more surprises coming regarding Watergate. Do you know any of those? I don't think I do. As you know, this has been turned over to the Special Prosecutor in the Justice Department. I don't follow it as closely as I might, because with the other press of duties and having no responsibility in this, I leave it up to the Special Prosecutor.

And then, of course, we have the Judiciary Committee in the House now. But the surprises that keep coming are, I think, going to continue. I agree with him on that. You wouldn't be surprised at surprises in other words. No. No. You do have, however, a lot to do with one of the continuing issues that was involved in Watergate. And that's the whole subject of wiretapping, Secretary of State Kissinger's now, being touched by this. You recently said, no American citizen can be wiretapped without approval from me. What does it take to get Attorney General Saxby's approval for wiretapping? There are two types of wiretaps. Well, there are really three. One is a consensual where you agree to be tapped, and this is not illegal or in any way. The second is a criminal wiretapped where they go into a judge. We apply and receive authority just as you receive a warrant to search a house. This is a more customary type than we do this when the situation indicates.

This is for domestic wiretaps, and this applies to all Americans because under the Keith decision of 1971, there is no way, or 1972, there is no way that you can tap an American citizen domestically without going to a judge and getting a warrant. And this is what's done. Now, this only leaves the foreign security wiretaps. These are warrantless. If I understand you correctly, then, the 1971 decision, and perhaps subsequent decisions, mean that the wiretaps that the President wither without Secretary Kissinger's consent or whatever, ordered on the 13 government officials and the four newspaper men would not now be legal. They would not now be legal. Well, that isn't

exactly true because this was for insecurity. That is, this was the reason for it. However, the conditions that I impose on this, they would not meet the standard, and I have to sign these. And the standard that I imply is that the activity first must be controlled directed paid for by a foreign power. It must be genuine national security, not something that we would guess might be, but a reason to believe because of certain circumstances. Now, I read the other day where a telephone company said they had 10,000 people call up and said that they thought they'd been wiretapped. 2% of these people had, mostly, as I could discern from the piece illegally. In other words, a husband taps a wife's phone for a domestic problem. A car dealer taps a waiting room so we can hear what people are saying about buying their car. There are some of these, or business secrets. But all

of our domestic taps with the exception of definitely tied foreign security are run through a court and reported annually as the number. So if General Hague called up today with asking the same wiretaps that the White House got in 1969, Attorney General Saxby would turn him down. That's great. I see. On about January 15th of this year, when you just been in office about a week, you reported that you had authorized three national security wiretaps. How many have you authorized since becoming Attorney General? I can't give you the number, although we have given the number to Senate and we'll give it to House committees. This is the only restricted part of it. However, in 1972, it was leaked out, I think, by certain senators. It was authentic that we had about 90 in a year. What public purposes served by keeping the number of wiretaps secret?

Well, I think the big problem is the scarcity of them. In other words, the people are foreign people involved in this wouldn't believe us anyway because they just couldn't believe that this great country didn't have more resources in trying to determine what they're doing in the way of intelligence. First, this is not mere snooping. This is trying to counteract organized, espionaged, being carried on in this country by foreign powers. Not necessarily hostile in this country, but certainly trying to get espionage on us. There are covers over people in this country who are spies. Now, we go through a period like the McCarthy period when we're greatly alarmed about spies and it's turned full circle now and where we say, well, we shouldn't have any secrets if they want to find out anything about our nuclear installations, about our security for our warheads, give it to them. Well, I don't think that's right either. I think that

we have to have secrets because in this world, there are people who are hostile to this country. The concentrating just on domestic wiretaps. I believe you said among a few days ago, not long ago, that you could live with a ban if Congress wanted to ban wiretapping. The reason for this is that they were trying to put me on the defensive up in Congress that I was the one that was wanting to keep these secrets and that I was the one that wanted to snoop around the world for no reason. I simply told them that we have a job laid on us in the Justice Department and the FBI to do this. If you don't want us to do it, all you have to do is pass a law. Well, how would we can live with it, but I wouldn't advise it. How would law enforcement be seriously compromised if there were a ban on domestic wiretapping for domestic purposes unrelated to force?

Well, now you're talking about on the national security. No, I'm talking about not national security. Oh, you're talking about, well, for instance, on your domestic, this is all organized crime. It's gambling. It's extortion in a kidnapping. It's essential to be able to tap in on suspects or on the victim's phone. We have to have this to deprive law enforcement people of the right to use this instrument would be hurting ourselves. And the damage that results, we don't think is that great. Right now, there's a great fear of it, but do you see that fear is exaggerated to the Americans? Well, I think that fear is exaggerated because unless they're in some criminal activity, they're never going to be tapped anyway. We don't tap citizens occasionally. It's only done after you fill out a warrant. You take it into a judge. The judge looks at over and says, yes, here's a warrant should be issued and this bookie operation that is working

down here and organized crime should have surveillance because those people should be arrested. They're violating the law. Have you used warrant jumping in the first kidnapping case? No. Now, this is one of the instances that is complicated and there's something that new legislation is necessary. This is because unless we are working towards a definite arrest, you can't go in and make an allegation. The Fourth Amendment protects you from any kind of wiretapping unless there is proximate cause. And if you don't have the cause, you can't go in and ask for a warrant. And that's one of the reasons that we are unprotected against domestic terrorist organizations in this country because if all we want is information

on their operation, we can't go in and get it because it's not for the purpose of making an arrest. All of these others are only reason is to have this to make an arrest and prosecution. Now, this is a little bit confusing to the average person, but I think if you just realize it on domestic wiretaps, it must be tied in to making an arrest and a prosecution. It's not for intelligence. It's not for any reason, but trying to prosecute somebody. General Sankhabi, you've been making a lot of very forceful speeches around the country. In a recent speech, you said that there have been men of finely distilled evil in public life. And you spoke of would-be tyrants and Brooks Brothers suits. Who do you have in mind? Well, I think that it's easy for us to think that criminals are the muggers and the sneak thieves and the bank robbers and so on. There's a lot of ripoffs in this country by big business, by a bunker artist, by swimsuits. I just read the day of an allegation on another

Ponzi deal. We have these all the time. What is a Ponzi deal? A Ponzi deal is a con game whereby I tell you I'll pay you 50 percent on your investment. It is a month, maybe, a year. It's insignificant. Then I tell another chap that I'll pay him. I take his money and pay you. It's a pure-mitting thing and was started by a man in Boston, I guess, over 50 years ago. Well, what you're talking about then is white collar. White collar crime. That really bothers you, I gather, reading your speeches. It bothers me because I don't want people to think that only the poor, the black, those people are the criminals that we're after. In another speech on this subject, you said that you thought we were moving toward two systems of justice in this country, one for the affluent and one for the poor. You quoted with approval a tough sentencing done by a judge in a price-fixing case and the judge

emphasized that the men involved knew the illegality of their actions. They were neither cold nor hungry and they had had the best educational and material benefits of American life and therefore a tough sentence seemed to meet with your approval. With that in mind, in returning to topic A, do you think that the sentences imposed in the Watergate case, done by men who were educated, enjoyed material benefits of American life and were neither cold nor hungry? Do you believe these men have been treated too leniently as some people are saying? I can't second guess a judge on the reasons for his sentencing. But I do know this, that Richard Harris wrote a piece that was in the New Yorker a week ago. And in his comment on this, I thought he did a pretty good job in saying that we are running the danger at the present time of cutting the cloths to fit on these cases and that we're using extra legal means, the threat of disbarment, the threat of exposure. But these are not legal

and have no part in the proceedings and justice. We're using these to smoke people out and that we're using light sentences and we're using all kinds of inducements to make cases and that we're walking the narrow line between really running a justice department or a justice system in this country and running a kind of a kangaroo court where any ends, any means justify the end. Well, Mr. Harris, that was an interesting article. Mr. Harris focused on the clientean's case. The justice to be done must be seen to be done and to the average American, that didn't look like justice. A former Attorney General of the United States lied to a Senate. And the first one ever convicted of criminal charge? Do you think that sentence is suspended? Well, again, for me to try to second guess the judge on and judge Hart is a respected and honored judge and the senior judge, for me to second guess him on his reasons would

serve no useful purpose. But what I do say is that we must be aware that we don't fall into the trap of using all kind of gimmicks, copying pleas, plea bargaining of getting people to rat on each other, all of these means, because we're going to wreck our system of justice. Do you think there's too much plea bargaining in the United States? Well, let me give a statistic, 90 percent of the criminal convictions result from guilty pleas and a substantial portion of those guilty pleas result from plea bargaining. Do you think that this is covering up some net normal Washington sense, but that that covers a kind of violation, perhaps of constitutional rights to a fair trial? I think that we walk that narrow line. And I have mentioned before that this idea of

circumventing the Fifth Amendment by offering immunity and then trying to make them testify and then to prosecute them and they don't is a device that we should re-examine. Now, I think that we have adopted a rather pragmatic approach on the plea bargaining simply because of our overloaded courts and the system that we had. If every case that we had went to trial was the lengthy trial that we have today. And the ridiculous time spent on picking juries and which we could correct, we never got to them. We couldn't hold them indefinitely. They'd be out on the streets on bond for maybe three, four or five years. Now, at the same time that the Congress is belly aching about plea bargaining and all of these devices that are used by U.S. attorneys and others down at this state and county level, at the

same time they refuse to increase the number of federal judges. And as a result, we're loaded up and forced into what I think is a damn bad situation. That is having to dispose of cases other than before a magistrate. Now, on the jury, there's no reason that we shouldn't select and see the jury within three or four hours. They do it every day in Britain. And yet we have permitted highest 30 or 40 preemptory challenges. That's for no reason at all. Unlimited challenges for cause. We've got situations where defense and prosecution make a study of sociological and psychological names. On the subject of jury, I know it raises different issues, but recently the White House has made much of the fact that the grand jury that heard the evidence concerning Mr. Nixon and named

him an unundited co-conspirator was predominantly Democrat, contained more blacks than our representative of the American population, contained only one Republican, and therefore the White House seems to be implying was inherently an unfair device. Do you think that is evidence that it was an unfair device this grand jury? No. This is often raised. And I don't think that you could ever get a jury that would satisfy both the defendant and the prosecution. And especially after the fact, I think that the jury system being limited in what it determines, which is a matter of the questions of fact, and especially a grand jury being extremely limited as to what the prosecution puts before it, I don't think that you can tailor a jury to exactly duplicate the community. I think you just have to take it with its disabilities as well as its advantages. General Saxby on January 27th of this year right

after you came into your current position, you said that you did not think the House would impeach the president on the basis of the evidence it had then. Since then, it has received the transcripts and it has the evidence such as it is of the president's noncompliance with various subpoenas. Would you still make that assessment? No, I wouldn't. I wouldn't make any assessment now because I'm not close to what they are hearing. I haven't heard one transcript. I don't know what they've received. And I hope that I've learned since January 27th to keep my mouth shut a little more. Not to make sense, yes. Have you read the transcripts? No. Oh yes, I've read them. Not in their entirety, but I read the parts that I was interested in. Some people reading them have said that the transcripts calling to question the role played by Assistant Attorney General Henry Peterson who was during April, particularly of 1973, was in close contact with the president.

What do you want to say about that? Do you think they compromised Mr. Peterson at all? Well, I am sure that if Mr. Peterson knew that his conversations with the president were being relayed, he would not have made them. But Peterson's only boss at that time was the president of the United States. And he had to look to someone if you'll recall during General Klein deans that that time had recused himself from this investigation. It was proceeding in an orderly manner. Mr. Peterson was assured that the president was interested in following through on saying that the guilty were prosecuted. And so Peterson as he does it now with me look to the president as his superior. And the man to report to, which he did. What you think had he known he was being taped, he would have done something differently.

What would he do? Well, I don't think the taping was important. I think what taping and that subsequently released. Well, that is what's important. What would have been important to Mr. Peterson would have been had he known that what he was talking to the president in the privacy of the room and the secrecy that befits the grand jury prosecution. If he'd known that, that would have turned him off. That it was there after immediately discussed with numerous people and leaked all over. Who was then discussing it? Who was doing something wrong? Well, the president in discussing this grand jury material was Mr. Hallerman, Mr. Erlichman or whoever came in the office. So your reading of the transcripts is that they call into question not the behavior of Mr. Peterson, but the behavior of Mr. Nixon. That's right. Mr. Peterson is a pro. And yet in working with a grand jury, he knows that he is not to discuss those matters except with his group of lawyers. And as he can in the

Justice Department, those people working on the case with him, he presumed that the president was working on the case with him. He was his only superior. There was no attorney general in this matter. Well, you discussed it with him and said to this, I'll never go outside the room, but it did. So the president lied to him? I don't know whether he lied to him or not. All I know is that after the discussions, there were further discussions within that room on matters that Mr. Peterson had brought in about what was happening before the grand jury. And this was wrong. Does this, do you think, reflect a kind of casual attitude toward seeing that the laws are enforced on the part of the president? Either that or like a knowledge about a grand jury proceeding. General Sanxby, you said that it not only is Watergate the greatest cloud on our country in its history, but that it must be resolved and not with a cosmetic process, as the phrase you used.

Well, what were you afraid of when you mentioned the Cosmetic? Here it could be swept under the rug. Congress will get tired of it and people will get tired of it. And it'll be business as usual. And we'll be back in a campaign and money will be floating around all of these things. I think that if we don't want just to cosmetic effect, we're going to have to have tough campaigning laws. I believe that we're going to have to make people realize that you just can't get away with things that they were doing. I don't mean just this administration. I don't mean Nixon administration. I mean previous practices that had grown up over the years. Now one thing that I don't want to see happen is that we get so wrought up over this that we make institutional changes. And you'll notice I talked about this. In other words that if we would set up a permanent special prosecutor beyond the reach of the electorate, if we would have an elective attorney general if we would so weaken the presidency, or we

just said, well, this system is working and we'll go to a parliamentary system where we can have a vote of confidence. I think we'd be wrong because if there's a failure in this, it's a failure of men. It's not of our system. And the one thing that I'm interested in in this is that I can operate the Justice Department in my state there to show people that the Justice Department can operate fairly firmly. And without falling into these traps of institutional change and to follow false trails. Well, you mentioned the special prosecutor. Now that's an example of patching something onto our normal system. And it seems to me it puts you in a curious position. Let me explain why. St. Clair says, President's lawyer says that Choworsky is an employee of the President and therefore should not go to court to sue him. Judge Siricca says that that looks like an attempt to compromise the independence of the special prosecutor that is guaranteed

him in his charter. During Attorney General Saxby's confirmation, he swears that he will fight for Choworsky's right to proceed as he sees fit. All right. Now, do you have a job to do now to fight for Choworsky's right to proceed as he sees fit, which is suing the President in court? What are you doing for Choworsky's? What a mess. All right. I'm doing this. I'm telling Mr. Choworsky that nobody can fire him but me. And take it easy and cool it because I'm not going to fire him. He's going to stay there and do his job. Now the question of whether there is a conflict between the executive department itself is something that Mr. Choworsky very alarmed about because he says that this will knock him out of the ballgame and it very well could. But there's nothing that we can do about that because it's a question to be determined in the Supreme Court. And the Supreme Court has this before it. Now, I think that having been raised, it will be backed away from.

I don't think that we're going to push the Supreme Court to make this decision. I don't think it was raised in bad faith but at the same time, I think it was raised rather casually. I don't think there was any great plan that we were going to knock him out of the box with this plan because the special prosecutor was recognized by the president, by the attorney general, by the Congress as coming in for a specific purpose. We all knew this and that's why I say I can help Mr. Choworsky by saying to him, relax. Nobody can fire you but me and I'm not going to. And I assure you, as the president wanted to get rid of him so bad that he'd fire me, he'd have to go pretty far down the line in the Justice Department. Would you have fired Archibald Cox? No. Why not? I don't think there was good cause

to fire Archibald Cox. And I was frankly disappointed that Mr. Richardson saw fit to fire him or to resign. He could have, seems to me, he could have stood his ground and say Mr. Cox stays. Did Mr. Bork then do something wrong in firing special prosecutor Cox? No. I think Mr. Bork performed a service in that it had to stop someplace and he was a genuine guy interested in the Justice Department and he was determined to see that it continued operate. Have a son of a way he could see to do it. General Sanctuary, we're out of time. Thanks for coming. Yes, sir. From Washington, N. Pack has brought you Washington Straight Talk with Attorney General William Saxby and syndicated columnist George Will. Next week on Washington Straight Talk, Senate Majority Leader Mike Mansfield with N. Pack correspondent Paul Duke. This program has

been made possible by a grant from the Ford Foundation. This has been a production of N. Packed, a division of GWETA.