PART ONE
PART TWO
PART THREE
PART FOUR
PART FIVE
PART SIX
PART SEVEN
PART EIGHT

 

 

 

 

PART II: THE POLITICS OF LAW AND ORDER
THE BETE-NOIRE STRATEGY

It proved far easier to find the rhetoric to excite public fears over lawlessness than the controls for reducing crime and disorder. During the 1968 campaign Nixon had persistently attacked the "permissiveness" of the Democratic attorney general, Ramsey Clark, and pledged that the first step in his war on crime would be to replace him with a more determined and tougher chief law officer. "Ramsey Clark had been symbolic of the laissez-faire liberal approach to crime control," Egil Krogh, then deputy assistant to the president for law enforcement recalled. "The promise of a new attorney general was all part of the same idea that crime had gotten so much out of control that he was going to take stringent measures." Nixon chose as a replacement for Ramsey Clark his law partner and campaign manager, John Newton Mitchell. Like Nixon, Mitchell was indeed a determined man: he worked his way through college and played semipro ice hockey, one of the more violent sports available. In World War II he sought the most dangerous service available in the Navy, and was a commander of the PT boat squadron in which John F. Kennedy served as a lieutenant. As one of the leading municipal-bond lawyers in New York City, he dealt constantly with local politicians across the country interested in gaining a favorable opinion for a tax-free bond issue. He joined Nixon's law firm as a senior partner in 1967 and made an immediate impression on Nixon. Little more than a year later, he agreed to be the campaign manager for Nixon's presidential effort, and seemed to many in the campaign to be the only person to whom Nixon deferred. Mitchell, a self-made man who enjoyed his wealth, wanted to return to his law practice, but reluctantly agreed to serve his new friend as attorney general.

In January, 1969, only a few days after he had assumed office, President Nixon convened a meeting in the White House on possible law-and-order initiatives. The small inner circle of advisors who attended that meeting included John Mitchell, who in those early days acted as a "prime minister" to the president; John Ehrlichman, a Seattle land-use lawyer who had served as tour director in the 1968 campaign and was now counsel to the president; Egil Krogh, the young deputy to Ehrlichman; Daniel Patrick Moynihan, a former advisor to Presidents Kennedy and Johnson who was then the counsel for domestic affairs, and Donald Santarelli, a twenty-nine-year-old lawyer who had drafted many of the position papers on crime for the 1968 Nixon campaign, and who was in the process of joining the Justice Department as a strategist for the crime-control program.

The meeting began with President Nixon's defining law and order as his "principal domestic issue." In the extensive interviews that Egil Krogh had with me over a two-month period in 1974 he recalled that in that January meeting the president used general terminology such as "we are a tough, law-and-order administration, and we are going to crack down on crime." Since the rhetoric used during the campaign in 1968 was basically "get tough," Krogh explained, "there was a clear motivation to be able to deliver to the electorate In 1972 a record of improvement in crime control." Nixon stated that the two categories of crime that would be most useful to diminish were armed robbery and burglary, since they "instill the greatest fear" in the electorate. As Nixon continued to describe his objectives for crime control, John Mitchell began slowly shaking his head in a negative manner, and pulling on his pipe as if it were some sort of semaphore signal. Asked whether he thought there was any problem, Mitchell leaned back and explained that most of the crimes that the president was interested in controlling did not fall under the jurisdiction or powers of the federal government. Except for Washington, D.C.. where the federal government did have direct Jurisdiction, crimes such as homicide, assault, mugging, robbery, and burglary were not violations of federal law but of state or local law, and even the federal government found an indirect way of intervening in the problem, the local government would get the credit for diminishing those classes of crimes. Moreover, John Ehrlichman pointed out, the established agencies of the federal government, such as the FBI, the IRS, the Bureau of Narcotics and Dangerous Drugs (BNDD), and the Treasury Department, had traditionally been reluctant to involve themselves in any sort of offensive against such local crimes. In all, there were only a few thousand federal agents (not including the CIA or the Department of Defense) and they could not realistically be expected to have much effect on street crimes in the urban centers of America. Such crimes were committed, according to the best police estimates, by teenage youth acting on spur-of-the-moment inspirations or on targets of opportunity. Nixon quickly comprehended, Krogh said, that "the reach of the federal government's power in law enforcement did not penetrate to the state or local level ... where most of the street crime people were afraid of existed." Donald Santarelli was called upon to sum up the situation. He later recounted, in an interview with me:

In the light of many promises made in the 1968 campaign, and the unerring belief that the Nixon administration had to do something dramatic in the area of law enforcement, it was necessary for me to put the actual ability of the federal government in perspective for the president and top advisors....

I told them that the federal government simply did not have the machinery or authority to deal with crime in America outside the District of Columbia.... The only thing we could do was to exercise vigorous symbolic leadership.... With the president and attorney general as spokesmen, we could elevate the issue of crime to the level of the president.

The new strategy thus emerged. Ehrlichman suggested to Krogh that since "there were clear limits on what the federal government could do," the alternative was to "jawbone ... to stimulate action at the state and local level simply by making the issue [verbally]." Though the administration lacked the "tools" actually to reduce crime, it could wage a symbolic war on crime. In 1974 Krogh explained to me that during the first year of Nixon's administration, a whole range of "symbolic strategies" were discussed. Harsh-sounding legislation could be proposed to Congress which would have little effect on law enforcement but would greatly enhance the administration's public reputation for toughness (and if Congress failed to enact these laws, it could be blamed for "softness" toward crime). Repressive-sounding words such as "preventive detention" could be bandied about by administration officials, thus provoking an outcry in the "liberal press" which would add to the appearance of the relentless war on crime by the administration. A presidential spokesman could also directly attack judges in the courts for being sympathetic to criminals in order to make the administration seem, by contrast, hardline. The Nixon strategists thus decided early on that though they could not directly reduce street crime in America, they could gain enormous publicity for their crime offensive by calling attention to their repressive-sounding plans and ideas for law enforcement, and thereby create a bete noire for the liberal press to focus on.

Since President Nixon was by 1969 cultivating a new image for himself as a reasonable and moderate man (and allowing Vice President Agnew to make the more provocative speeches), John Mitchell was chosen for the role of Mr. Law and Order. Krogh later explained, "The president felt that Mitchell would represent the law and-order image that had been developed" by the "speech-writing staff" and would effectively use their "language of crime control" to stir public reactions. Mitchell's public role was to identify himself with a remorseless, hard-line attitude toward crime and criminals. In both public appearances and private briefings for the press he was to stress the urgent need for isolating criminals from the rest of society through strict application of the laws and long prison sentences. When, for example, H. R. Haldeman, the president's chief of staff, was planning a presidential briefing on drugs for television writers in April, 1970, he decided on a strategy whereby the president would "tie in the attorney general in such a way as to position him in the minds of TV writers and producers as the spearhead of the anti-drug movement within the administration," according to a White House memorandum. John Mitchell's criticism of the supposed laxity of criminal judges was also "part of the speech rhetoric land] part of the political needs at the time," according to Krogh's later explanation to me of the 1969 strategy. As for the "political law-and-order bills" that Mitchell exhorted Congress to pass, Krogh then explained, "It was my view that while these bills would suggest a tough law-and-order demeanor by the administration, the legislation itself did not provide an enhanced ability to the police department or to the courts to reduce crime as such. The no-knock legislation struck me, and also Mr. Ehrlichman, as almost inherently repressive in tone." Indeed, Jerry Wolfson, then police chief of Washington, D.C., specifically told Ehrlichman and Krogh that the no-knock legislation was unnecessary since the police had "adequate authority to enter a dwelling" where there was a probable cause, and the police chief viewed the no-knock bill as "law-and-order window dressing rather than as initiatives that would strike at the core of the problem." Such technical advice was disregarded, however, since the act of proposing draconian-sounding law-and-order bills was intended to serve "a political purpose," as Krogh put it, "rather than really being directed at curbing the real problem." Thus, tough-sounding law-and-order bills were proposed. An internal memorandum in the files of President Nixon's Domestic Council (circa July, 1970), entitled "Crime Control and Law Enforcement, Current Status-Political Position for the 1970 Election," commented, "The administration's position in the crime field depends on our ability to shift blame for crime bill inaction to Congress." To their surprise, however, the Democratic-controlled Congress rapidly passed even the most repressive-sounding crime bills by lopsided margins (since not even Democratic congressmen wanted to appear to their constituents as voting against a law-and-order bill).

To be sure, the private views and unpublicized actions of the attorney general did not always fit the public image being projected - Mr. Law and Order. For example, during one cabinet meeting that Krogh recalled, Mitchell strongly objected to President Nixon's demand for mandatory rather than flexible sentences for drug offenders. Even though the President replied, "That's my position, and I cannot have it look as if I am weak or receding from a hard-line position," Mitchell argued that the mandatory sentences would be "irrational" and "counterproductive." Ultimately, the president adopted Mitchell's more moderate view (although Mitchell's position was not made public). Although Mitchell asked the more sophisticated public to watch "the deeds, not the words" of the administration, the bete-noire strategy frightened and provoked the more liberal audience. Numerous political commentators in the press interpreted Mitchell's bombast quite literally as a call for a national police crackdown. Such negative publicity was intentionally not repudiated by the White House or the attorney general, since there existed in fact a curious coincidence of interests between the Nixon strategists, who wanted to depict a hard-line attorney general, and their political opponents, who wanted to depict a repressive attorney general.

Journalistic attacks, such as Richard Harris's book Justice, which emphasized the dramatic differences between Attorneys General Ramsey Clark and John Mitchell in their administration of justice, played willy-nilly into the bete-noire strategy by heightening the repressive image of the new attorney general.

This convergence of political imagery strongly reinforced the notion that the country was entering a period of political repression-much to the chagrin of some members of the Nixon administration. For example, Krogh's young staff assistant Jeffrey Donfeld complained to Attorney General Mitchell in 1970 that some of his statements were being misinterpreted by the public as calls for political repression, and suggested that the administration's rhetoric on law enforcement could be toned down so as to avoid any confusion. By the time that Donfeld walked back from the Department of Justice to the White House, word had reached his superior, Egil Krogh, who summoned him to his office and explained good-naturedly, "Fool ... don't you think those guys know what they're saying! Don't you think it is all calculated for a specific purpose?" At that moment Donfeld realized that "they weren't trying to correct the charge of repression ... it was all a matter of perspective and from their perspective, a tough image was exactly what they wanted." Daniel Patrick Moynihan, a Democrat with a liberal constituency, was unwilling to be part of a bete-noire strategy and fought for nearly six months to have the Justice Department respond to the charges being made in the press that the administration was committing genocide or otherwise attempting to murder the leaders of the Black Panther party in the United States. Though the charges were demonstrably false in a number of cases-most of the alleged shooting incidents occurred before Nixon assumed office (and while John Mitchell was still a bond lawyer)-the image-makers in the Department of Justice were not completely adverse to publicity that identified the attorney general as someone who was battling black militants, and Moynihan's protests fell on deaf ears.

Though the bete-noire campaign achieved success in some quarters-notably, the media-in identifying John Mitchell and the Nixon administration with the image of a hard-line, law-and-order offensive, it failed to impress the public at large. The Domestic Council crime control memorandum quoted earlier began by noting, "According to the polls, the public is not yet persuaded that the administration has succeeded with the anti-crime drive." Moreover, crime statistics, which the memorandum termed "the major indicator for success or failure," showed a large increase in all the categories of street crime against which Nixon had pledged an offensive, and newspapers, especially the Washington Post, were now citing this failure with great concern, and sometimes with hidden glee. The administration's record of prosecutions and convictions also turned out, upon evaluation, to be much less drastic than its rhetoric-prosecution of federal drug cases actually dropped by almost 10 percent between fiscal 1969 and 1970. Even in the District of Columbia, where the administration had direct influence over the policies of the police department, crime had increased markedly. As the 1970 mid-term election approached, the Nixon strategists realized that new and more dramatic efforts would be necessary. They thus suggested, in another crime-control memorandum, that the attorney general develop "certain highly visible efforts in the crime area" such as "organized crime crackdowns ... to clearly demonstrate-in the public mind-totality of the administration commitment." The Domestic Council memorandum noted that although "organized crime is being attacked through eleven strike forces soon to be increased to twenty-one strike forces . ... this program needs more publicity." And to that end it asked that Mitchell specifically consider the "apprehension of top-level hoodlums involved in organized crime on a regular basis." The law-enforcement planners in the White House believed that the continuous arrests of suspects with Italian-American or "racketeer" names would be reported by the press as a major crackdown on the Mafia (even if the suspects were released immediately), according to Krogh's interpretation of the memorandum. He explained to me that the White House was concerned with "visibility," which was understood by the Nixon White House to mean simply getting the president's efforts in the headlines, and the most direct means of achieving such coverage of the crime issue was simply for the attorney general to make a series of spectacular arrests.

Mitchell, of course, was aware that previous administrations had established their reputations by making a few highly publicized arrests of men suspected of belonging to the Mafia or other organized crime groups. In 1962, for example, Attorney General Robert F. Kennedy dispatched one hundred FBI agents (and a large number of sympathetic journalists) to Reading, Pennsylvania, to raid an otherwise quiet dice game. As Victor Navasky pointed out in his account of the Justice Department under Kennedy, this proved to be "a brilliant publicity coup-since it advertised the new Kennedy anti-crime legislation. . . ." In such raids Attorney General Kennedy pioneered the development of strike forces, or groups of federal agents detached from their normal duties and chains of command. These strike forces quite commonly made illegal break-ins (or "surreptitious entries," as they called them) in order to plant concealed microphones in the homes of suspected gamblers or racketeers. Even though such illegally obtained information could not be used to prosecute criminals, the disclosures were leaked to magazines and newspapers to keep the campaign in the headlines. Until 1967, this was the traditional way of waging war against the Mafia. However, when J. Edgar Hoover became embroiled in a damaging controversy after it was revealed in court cases that the FBI had illegally broken into residences on behalf of the strike forces, and the new attorney general, Ramsey Clark, refused to give authorizations for such activities, the situation changed radically. Even though Mitchell may well have been willing to authorize the renewal of such activity, J. Edgar Hoover was understandably reluctant to again endanger the reputation of his agency. (Attorney General Kennedy, although he had also authorized such activity, later publicly denied it, leaving Hoover out on a precarious limb.) Moreover, in 1970, Mitchell himself was under a drumfire of attack in the press and in the courts about the authorization of wiretaps, and this made disclosure of electronic surveillance for national-security purposes much riskier-at least as far as the FBI was concerned. Although Mitchell could increase the 'number of strike forces, as the memorandum recommended, they were far less effective instruments for generating publicity without the potential for disclosing ' embarrassing information from wiretaps and electronic surveillance.

Suggestion in 1970 of rounding up Italian-American gamblers and racketeers also presented a political problem for Mitchell. An Italian antidefamation league, with such notable sponsors as Frank Sinatra, was claiming with some justification that the use of terms like "Mafia," "Mafiosa," and "Cosa Nostra" was creating the false impression that Italian-American citizens were behind all organized crime in America. Since Italian Americans were a group that the Nixon strategists hoped to appeal to in the 1972 election, Mitchell acceded to these protests by prohibiting the Department of Justice from using such epithets to describe organized crime. Under these conditions there seemed little profit in image-making to be gained from the traditional Mafia hunt.

As became increasingly clear from privately commissioned public opinion polls, the attempts of the Nixon strategists at image manipulation had by and large failed. Although John Mitchell had been successfully projected as a repressive attorney general and bete noire by the liberal community, the more conservative constituency on which Nixon depended for reelection was not made fully aware of the war on crime. Nixon's speech writers blamed the media for suddenly changing the issue from repression of criminals to "repression of dissent," as Patrick Buchanan explained to me. In any case, the Nixon strategists demanded, in their "Prognosis for the 1972 Election," that the Nixon administration be in a position by 1972 to claim that it "has mounted the most massive effort to control crime in the nation's history." Apparently they still hoped that "statistical results [would] come from the District of Columbia, where the administration has direct control over the number of police and the comprehensiveness of the drug fight." Nixon himself demanded "substantive" results, which meant to Ehrlichman and Krogh that they would have to produce statistics and numbers on arrests and convictions. Mr. Law and Order reminded Ehrlichman and Krogh that there was only one area in which the federal police could produce such results on demand-and that was narcotics. The program for narcotics control, which Krogh himself had quietly developed, now turned out to be the only alternative for realizing the law-and-order results which Nixon demanded.


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