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With his own Justice Department on the verge of indicting him, Vice President Spiro Agnew attempts a last-ditch effort to survive. A Constitutional crisis-inducing argument that even if prosecutors have evidence of his crimes, he can't be indicted anyway... the power of the White House protects him. With President Nixon himself about to go down in Watergate, it's now on one man's shoulders-- the Attorney General-- to come up with a way to remove a criminal Vice President... before he ascends to the Presidency.

For a list of sources and references for this episode, see here.

MADDOW: Democratic Congressman Carl Albert of Oklahoma was not a big man.He said that he was 5-foot-4, but that was widely acknowledged to be a stretch.

One reporter-- who himself was 5’5”-- wrote a story once estimating that Carl Albert’s true height was probably more like 4’11.”

But when House Speaker Sam Rayburn hand-picked Carl Albert to be his successor, he said about Albert, "I can tell big timber from small brush." And so, in 1973, small in stature Carl Albert was the biggest that Congress got, he was Speaker of the House.

REP. CARL ALBERT (D-OK, SPEAKER OF THE HOUSE): I hope we can get together and work for the country and not work for the two political parties...

Carl Albert was a Democrat. The Republicans might have held the White House, but after the President and the Vice President, it was House Speaker Carl Albert who was next in the line of succession, so he was second in line to the Presidency.

And it was that last part-- “second in line to the Presidency”-- that started weighing on Carl Albert that Summer of Watergate, in 1973.

SENATOR SAM ERVIN (D-NC, SENATE WATERGATE COMMITTEE CHAIRMAN): The Committee will come to order. And I would like to reiterate what I stated yesterday...

If you’re the House Speaker in normal times, the idea that you might one day actually have to assume the Presidency, I mean, it’s technically true, but it’s pretty inconceivable. It’s never gonna happen.

But if you were House Speaker in 1973-- with a President in Richard Nixon who was crippled by Watergate, and a Vice President in Spiro Agnew who was the subject of a major criminal bribery-and-extortion investigation-- the idea that you, as Speaker, might one day have to become President… that was starting to feel less and less theoretical all the time!

And so, House Speaker Carl Albert decided he needed to cover his bases, he needed to get prepared.

In secret, he reached out to one of the great wise men of Washington, a man who had been one of President John F. Kennedy’s closest advisers Ted Sorensen.

REPORTER: I once heard somebody say that when Mr. Kennedy is wounded, Sorensen bleeds. Is that so?

PRESIDENT KENNEDY: Well, we’ve been very close and he’s been extremely...

In 1973, House Speaker Carl Albert asked Ted Sorensen to draft him a confidential memo... a memo that would basically give Carl Albert a step-by-step manual for how to be President, in a pinch:

-How much time he should give the outgoing President to clear his stuff out of the White House-Where-and-when Carl Albert would take the Presidential oath-What he should say to the nation in his first public address

Ted Sorensen advised the Speaker that this memo should probably be destroyed if it ever became unnecessary. But there was good reason at the time to expect that it might well be necessary! Because Carl Albert really might end up becoming President. All in a hurry, because of what was going on with Nixon and Agnew.

And Carl Albert was not the only one thinking that.

Inside the White House that Summer, Richard Nixon’s inner circle started seeing their scandals and their troubles in a new, conspiratorial light. What if the Democratic Congress, led by little Carl Albert, what if they were quietly planning to wage a coup?

The sudden ousting of President Nixon and Vice President Agnew. The installation of Democrat Carl Albert as the brand new President.

Nixon’s Chief-of-Staff at the time Al Haig was a little freaked out by that possibility.

And that’s, in part, because he knew what kind of trouble Nixon was in. By that Summer of 1973, Al Haig had become a nightly sounding-board for President Nixon’s sometimes drunken... often paranoid.... late-night phone calls about Watergate:

PRES. NIXON: You see, the real problem, though, is me, because the God-damn thing has gotten to me, you see, you know, because of the personal factors. And you get to the point, you know that, well, if you can’t do the God-damn job you better put somebody in there that can.

AL HAIG (NIXON CHIEF OF STAFF): There’s no one that can!

Al Haig was already concerned about Nixon’s ability to survive Watergate. And Haig knew about Agnew’s troubles, too. He had been in on White House conversations about that trouble from the beginning.

And then, in the Summer of 1973, Haig got a visit from Attorney General Elliot Richardson who told him, in no uncertain terms, that Agnew was staring down the barrel of a 40-count federal indictment on bribery and extortion charges.

Haig later wrote about that conversation with Attorney General Richardson. He said: “In my own mind, two words formed: double impeachment. I am not subject to visions, but as Richardson left my office, a vivid picture grew in my mind of the President and [the] Vice President of the United States-- both charged with high crimes and misdemeanors-- side by side, on trial together before the Senate.”

What happens when you have a criminal occupant of the White House-- make that two criminals in the White House-- both implicated in serious crimes, but also protected by the offices that they hold? What are your options for saving the country from that?

You’re listening to “Bag Man.” I’m your host Rachel Maddow.

**********

Episode 5: “Double-Header.”

NBC REPORTER: Vice President Agnew appeared suddenly in the office of House Speaker Carl Albert at late afternoon with a letter to the Speaker. The letter asked that he be investigated by the House. Here’s what the letter says...

It’s not often that a politician wants to be impeached.

But in September of 1973, the Vice President of the United States desperately wanted that.

JOHN CHANCELLOR: What the Vice President seems to be doing is chartering a course which could lead close to impeachment.

The reason impeachment looked pretty good to the Vice President that fall was because he and his lawyers thought him getting impeached would actually be a better bet than the Justice Department criminal indictment that they were pretty sure was otherwise coming his way.

MARTIN LONDON (VICE PRESIDENT SPIRO AGNEW’S DEFENSE ATTORNEY): Every criminal lawyer knows that the first thing you do, if you can, is to avoid an indictment.

Marty London was a criminal defense lawyer, and a good one. He made a career out of keeping his sometimes very famous clients from being indicted. But that Fall in 1973, Marty London had a lawyer’s dream! He had a client who was maybe unindictable by virtue of the job that he held:

LONDON: We took the position that you couldn’t indict Agnew because he was a sitting Vice President.

If other Presidents and Vice Presidents ever need a checklist of things to do to try to survive a big White House scandal, Spiro Agnew wrote them a pretty good first draft in 1973:

-Deny everything.-Denounce the investigators.-Mess with the investigators.-Build yourself an army of supporters.-Threaten the press and work them as hard as you can.

But the final item on his checklist, his last ditch effort to survive, was this argument. That even if the Justice Department had cold hard evidence of his crimes, even if… he still couldn’t be indicted anyway… simply because he was Vice President.

And that was a live issue back in 1973. It’s still a live issue today.

NBC REPORTER: Mr. Agnew’s lawyers are expected to argue that the Constitution prohibits the indictment of a Vice President before he is impeached and removed from office. He will try to use his office as a shield against indictment.

What Spiro Agnew started arguing that Fall of 1973 was bold.

He basically demanded that the Congress-- the Democratic led Congress-- must investigate him. His argument was that if anyone had the power to remove him from office, it wasn’t the Justice Department. It was only Congress. So they could go ahead and try that. Bring it on.

Agnew’s top political aide at the time was David Keene.

DAVID KEENE (SPECIAL ASSISTANT TO VICE PRESIDENT AGNEW): He sort of famously wanted to be impeached! Because, first of all, he said, “All of those guys up there have done the same thing and I just want them to look me in the face”, you know. So they could hear the charges and then he could have, as he said, “a jury of my peers” decide on it.

At the height of the controversy, at the height of the fight, Spiro Agnew personally went to Congress and asked the Democrats in control at the time-- including House Speaker Carl Albert and Judiciary Committee Chairman Peter Rodino-- to please start hearings investigating him:

KEENE: I forget who had to deliver the letter to Peter Rodino, who read the letter and then said, “Go tell your client to fuck himself.” That was a clue Ted, they weren’t gonna go with this.

Spiro Agnew was trying to set up a lifeline.

If he could get the Congress to try to impeach him: (a) that could brushback the Justice Department to forget about trying to indict him... since Congress was handling it. And (b) impeachment was a process he might just survive! In fact, he was pretty sure he would survive it!

For exactly those reasons, the impeachment option was a problem for Attorney General Elliot Richardson. It did offer an avenue for Agnew to potentially survive and stay in office. As an active extortionist and a crook. That was not going to be okay.

But it was an even bigger problem… for President Richard Nixon.

This was the Fall of 1973! Nixon’s White House Counsel, John Dean, had flipped. Nixon had lost two Attorneys General, and a White House Chief of Staff, he was being investigated not only in Congress-- in those blockbuster televised hearings!-- but also by an aggressive special counsel too. By then, the Congress had learned there were tapes of all of his Oval Office discussions and phone calls, he had already, at that point, been ordered to hand over those tapes.

And still, with all of that, Congress wasn’t even moving to impeach Nixon yet. In the Fall of 1973, that was still months away. And here was Nixon’s own Vice President begging to get impeached? Trying to get the gears of impeachment moving in Congress? That was a disastrous prospect for Nixon.

Richard Nixon-- up until that point-- had been supporting his Vice President.He’d been complicit, frankly, in what looks very much like a criminal effort to obstruct the Agnew investigation behind the scenes.

When he was asked about his Vice President in public, he was nothing but supportive:

NIXON: My confidence in his integrity has not been shaken and, in fact, it has been strengthened by his courageous conduct and his abilities.

But when Spiro Agnew started calling around trying to get himself impeached instead of indicted, Nixon started to realize that these efforts to save the Vice President posed an existential threat to the President, to himself.

And so, Richard Nixon… in that moment... turned on Spiro Agnew.

His chief of staff Al Haig-- who was worried about a coup by the Democrats-- Nixon sent him to tell Agnew to resign. Agnew says he resisted multiple efforts from various Nixon aides trying to force his resignation. He wanted Nixon to ask for it himself. He later wrote that Nixon “resisted dealing with any personal crisis on a man-to-man basis.”

The relationship between Nixon and Agnew broke down. Agnew, at one point, actually considered vacating the office-space that he had in the White House and instead moving into his ceremonial office down the street at the Senate.

The President and the Vice President… they were now effectively at war with each other:

JOHN CHANCELLOR: The relationship between Mr. Agnew and his President seems to be in grave disrepair. In truth, both men are in bad trouble tonight because their problems are becoming entwined, legally and politically ... we’re in for what only can be called a nasty chapter in the history of this country.

This was the sort of crisis the country had never really seen before… a criminal President and a criminal Vice President-- both on the verge of going down, both clinging to power desperately-- and now turning against each other to try to do so.

And it was all on one man’s shoulders to try to resolve this crisis in a way that didn’t throw the country and the government into utter chaos. That’s next.

**********

How exactly do you remove from office a criminal in the White House?

It’s one of those things that, in theory, shouldn’t be all that difficult, right? We all know no one’s above the law. That’s the cliché, and it’s supposed to be true.

But when you have someone in the White House – a President and/or a Vice President -- implicated in crimes, what’s the mechanism to get ‘em out?

That was the question facing Attorney General Elliot Richardson in the Fall of 1973.

Watergate, of course, was threatening to take down the President, but Elliot Richardson now had cold hard evidence that the Vice President was implicated in crimes as well and there really was no sure way to get him out.

Spiro Agnew had been attacking the investigation into him as a witch hunt. He was arguing that he couldn’t be indicted even if the Justice Department wanted to indict him and there was a reasonable-though-not-exactly-sure argument that he might have been right about that.

The other remedy was the one that Agnew actually wanted, an effort at impeachment. But relying on Congress to do that job was also taking a chance.

And so, Elliot Richardson had to decide what to do with this criminal in the White House, who was not going to leave willingly. And who was now just one bad Watergate development away from becoming President himself. Here’s prosecutor Ron Liebman:

RON LIEBMAN (FMR. FEDERAL PROSECUTOR): It was only a matter of time before Spiro Agnew became President of the United States. It was a period of months, maybe weeks.

Elliot Richardson, with some urgency, needed to come up with a way to get the Vice President out before the President went down.

What Elliot Richardson decided to do that Fall... was controversial. To say the least.

He would call Agnew’s bluff about whether a sitting President or Vice President could be indicted. He would go ahead and threaten the Vice President with the weight of the criminal law. But then he would offer him a way out: they could negotiate -- behind closed doors -- to trade the one thing Agnew most wanted... for the one thing the Attorney General most wanted.

Elliott Richardson would offer Agnew a one-time-only golden opportunity to save his own skin in exchange for Agnew getting out of the White House.

Now, there was no guarantee this would work.

Agnew and his lawyers were crowing that the Justice Department had no power over a Vice President at all, they couldn’t indict him if they wanted to. But did Agnew really trust in that? Did he and his lawyers want to test the Justice Department on that by seeing them try it?

The Attorney General quietly brought Agnew’s legal team into his own office at the Justice Department to start secret negotiations.

And it turned out that whatever Agnew’s lawyers were selling publicly about Agnew not needing to fear any criminal charges... when they got behind closed doors, they were willing to deal. They clearly did fear the prospect of charges against Agnew-- and conviction and sentencing-- and they had a trade in mind to avoid all of that. Here’s Marty London again, one of Agnew’s lawyers.

LONDON: The Vice President’s condition was: he would resign only if he could do so with no possibility of confinement and he could resign with dignity. Those were the two conditions: dignity and no confinement. We were not willing to agree to anything that involved a prison term. And that was a rock principle.

For Attorney General Elliot Richardson, the overriding objective here was to get Agnew out of the line of succession as swiftly as possible. Agnew’s lawyers were now offering that he would resign. But their insistence on no jail time -- no confinement -- that was a hard sell to Richardson’s own side.

The Attorney General’s own team of these young Baltimore prosecutors who had built a truly slam dunk case against Agnew, they didn’t want to let Agnew off the hook. Here’s prosecutor Barney Skolnik.

BARNEY SKOLNIK (FMR. FEDERAL PROSECUTOR): What applied for me was what I saw as the very detrimental message that emanates from his not going to jail. People who do this shit go to jail. So why doesn't he? There's no good answer to that. The message if he doesn't go to jail is that if you're big enough, if you're powerful enough, you don't get treated like everybody else. And to me it was all about, you know, equal treatment: People who pay bribes to public officials or public officials who take them should go to jail. They do go to jail. So there's no good reason why he shouldn't.

These prosecutors could see the national interest in getting Agnew out of the White House.

But they were also standing on principle… that bedrock American principle that no one’s above the law. As prosecutors, they pursued public corruption cases specifically to expose and end corruption in American governance, to throw corrupt public officials in jail. And they didn’t think that Spiro Agnew should be treated any differently just because he was a very high ranking public official. Here’s prosecutor Tim Baker with producer Mike Yarvitz:

TIM BAKER (FMR. FEDERAL PROSECUTOR): Everybody seemed to want different things.

MIKE YARVITZ (PRODUCER): And what did you want?BAKER: I wanted jail. Barney wanted admissions. Barney wanted the son of a bitch to admit it.

YARVITZ: But you wanted, you wanted jail.

BAKER: You bet I did. Really.

YARVITZ: For what reason?

BAKER: Well, that's what he deserved! It was egregious conduct.

YARVITZ: Was it something like a symbolic day in jail?

BAKER: No, no, no, no, no, no. A couple of years. This is terrible conduct. I thought he was a really bad man and he shouldn't have ever been Vice President.

Elliot Richardson had these prosecutors on one side who were pushing hard for jail. And they had brought the hard evidence before a grand jury to justify that stance.

On the other side, he had lawyers for the Vice President, standing firm, that jail was off the table. And then there were still other issues that remained unresolved, including what Agnew would actually have to plead guilty to if he was going to plead guilty as part of a deal to make the other charges go away.

And while those negotiations were going on, they all knew that, at any moment, Spiro Agnew could become President of the United States if they didn’t figure this out fast.

SKOLNIK: We're all sitting around talking together about how to handle this grave constitutional crisis thing. So, it's this one guy in his 50s and a bunch of 30-year-olds, you know, sitting around talking about what to do for the country. I mean, it was, it was, you know, that’s why I get sort of emotional about it. It was, without question, the most intense professional experience of my life. And I had, you know, a few of them.

The secret negotiations between the Attorney General and the Vice President, at this point, leaked to the press. Elliot Richardson was up against the clock.

He sent his head of the Criminal Division at the Justice Department -- a man named Henry Petersen -- to go meet with Agnew’s lawyers one more time. This time, in the presence of the federal judge who had been assigned to the case.

To try to avoid the press, the group assembled in secret at a location chosen by the judge specifically to avoid press scrutiny. It was a spot they figured reporters would never suspect… it was a single room, in a random motel, in suburban Virginia. Agnew’s attorney Marty London was instructed by the judge to meet there and tell no one.

LONDON: He says, “Nobody in the press knows about this, this is a secret!” And we were given specific instructions: “if when you get to this motel and you see the press, you don’t go in, you call me! Here’s the number of my motel room.” Well, we didn’t have cell phones, so we drive there, man the parking lot’s full of cameras! Reporters, it’s a mob scene! We tell the taxi cab driver, “don’t turn in, keep going, take us to the nearest gas station,” where we go to a pay station and we call the judge and say, “Your parking lot is chock a block full of reporters.” And he is pissed. He said, “I know, I know all about it. It’s too late to do anything about it, come ahead.” We go ahead and we go into this motel room. Now, he didn’t reserve a conference room, this was an inexpensive motel bedroom! And the room is twin beds! And we’re sitting on the inside of one bed, and Henry Petersen and George Beall and another Assistant are sitting on the other bed, they’re looking at each other, and down at the end-- between the two beds-- is sitting the judge in a desk chair. And we’re negotiating what we can. It was a very awkward circumstance when we wanted to caucus, the judge said, “well, why don’t you guys go in the bathroom?” So, we went into the bathroom, but the bathroom had no phone! I mean, this wasn’t a high end place. So, he said, “go next door, my wife’s room, she’s in the movies.” We went next door, we caucused, I don’t remember whether we made a phone call or not. And we resolved what we could, we were getting there.

They were getting there, but they weren’t there yet.

After all of the meetings in Elliot Richardson’s office, after the secret motel meeting in Virginia, the key sticking point remained whether the Vice President of the United States would be locked up for the crimes that he had committed.

Agnew’s defense team was holding the Vice Presidency as a bargaining chip over that one remaining issue:

LONDON: You’re talking about the Vice President of the United States. We really gave no thought to negotiating the issue of confinement, it wasn’t, I mean not a minute. It was not, as far as we were concerned, it was not on the table.

It was the first week of October 1973. President Nixon was under enormous strain, teetering not just on the edge of criminal liability in the Watergate crisis, but some of the people closest to him believed he was teetering in terms of his own sanity.

Attorney General Elliot Richardson decided that what mattered most to the country was that Vice President Spiro Agnew had to be removed from the line of succession before it was too late.

And because of that simple, singular priority Elliot Richardson… in that moment... he gave in.

He gave in on the issue of jail time over the objections of these prosecutors who worked for him and who had built this bulletproof case against the Vice President. He traded away the prospect of jail time for Agnew in exchange for the Vice President’s immediate resignation from office:

BAKER: Gotta get this guy out of the Vice Presidency. He always thought that was the most important thing to get. That had to be done. Other things were important, but they didn't have to be done: jail, guilty plea? What absolutely had to be done: he had to be gotten out of, out of the line of succession.

LIEBMAN: He was as disgusted as we were, that “here's another crook,” you know, it happens to be the Vice President this time. He was disgusted by that. But he also knew-- more so because of his experience and his age than we did, I think-- that resignation was more important in the context of the time than any of the other considerations.

SKOLNIK: It had to do with the country. It had to do with the top priority importance to the country of getting him out of the Vice Presidency. That the country must have him out of the Vice Presidency.

Ever feel like you have the weight of the world on your shoulders? Think about Elliot Richardson in this moment.

Nixon and Agnew had been re-elected in a landslide less than a year earlier. Elliot Richardson alone was making a decision to effectively reverse the overwhelming will of the voters. The Vice President would not get his day in court, he would not even get his day in front of Congress, he would be forced from office by the Attorney General.In exchange for that resignation, Richardson knew he was letting Agnew off the hook in a big way.

Years and years of brazen corruption as a public official-- including taking bribes and shaking people down from inside the White House-- it was all going to be overlooked. Agnew would get away with it. No jail... he’d just walk away. He wouldn’t even have to pay back the money!

That’s a heck of a controversial decision for one person to make.

But Elliot Richardson made that call, in opposition to his own prosecutors like Barney Skolnik who wanted jail.

SKOLNIK: I had been the the vocal out front and with the-- “arrogance,” I like to think is too strong a word-- but something close to the arrogance of a 32 year old prosecutor. I had been, I had sat around that table on four or five separate occasions over a period of a couple of months. And I had waxed eloquent about equal treatment under the law and how as a matter of grand principal, I was standing in opposition to us sending a message that if you do this kind of stuff, you go to jail unless you're big and powerful. Because I had this, you know, role in all of that, it was very hard for me to uh, to ultimately say “I think he's right.” But there came a point at which I thought he was right.

How do you remove a criminal from the White House? By giving him a deal to just walk away.

The Vice President would not be hung in the public square with a major bribery and extortion trial. He would be prosecuted – ever so briefly -- on a minor count of tax evasion to which he would plead no contest, but he would be removed from office because that was the national imperative. That was the deal.

And now, it was just a matter of making that happen.

And not in like a few weeks or a month, but tomorrow... literally within 24 hours of that deal being reached.

LONDON: You know, you don’t wait. Just because you have a deal now doesn’t mean you’re gonna have a deal in three days. You let three days go by, man the leaks come in and the boat gets lower and lower in the water and then it turns turtle. So, if you have a deal now, you make your deal and you do it, and he was very clear about that. Once we had a deal, he said-- those are his words-- “the Agnew case is over, we’ll do it tomorrow.”

This would have to happen with lightning speed. Because they couldn’t risk anything happening to upend the deal. In the end, it wouldn’t be clear until the actual last minute-- the last 60 seconds! -- that it definitely was going to happen.

LONDON: It’s now 2 o’clock and I am sweating because somebody from this play is missing!

LIEBMAN: I think what we were concerned was he, you know, he gets into court and he says, “Well, wait a minute, I changed my mind. I'm immune from prosecution. Marshal, could you unlock that door please? I got to go.”

That part of the story is next time.I’m Rachel Maddow, and this is “Bag Man.”

“Bag Man” is a production of MSNBC and NBC Universal. This series is executive produced by Mike Yarvitz. It was written by myself and Mike Yarvitz. Editorial and production support from Jonathan Hirsch and Marissa Schneiderman from Neon Hum Media. And you can find much more about this story on our website: msnbc.com/bagman.