BEFORE THE DELUGE

IN THE MATTER OF COX VS. NIXON, THE MILD PROFESSOR LOST -- AND WON

Author: By Martin F. Nolan, Globe Staff

Date: SUNDAY, November 16, 1997

Page: L1

Section: Books

Nixon did not survive. Cox did, his reputation as the ``Conscience of a Nation'' confirmed in a biography as topical as tomorrow's headlines. During his investigation, Cox twice answered an insistent caller who demanded, ``Why haven't you prosecuted any Democrats?'' Cox's reply was: ``Well, if you had any evidence, then of course we could.'' The caller was the chairman of the Republican National Committee, George Bush.

A showdown with Richard Nixon was a brass-knuckles event and Cox was prepared mostly by breeding and background. Had his subject's youth been more flamboyant, Ken Gormley would have had richer biographical fodder. Had Cox been a roustabout, a gandy dancer, or a bartender, he and history would have been different. Instead, Cox's early life was as quiet as a New England snowfall. He grew up in Plainfield, N.J., spent summers in Vermont, went to prep school in New Hampshire, then on to Harvard and Harvard Law School in the 1930s. He taught at Harvard Law School starting in 1945, becoming a full-time professor the following year. The Cox farm in Wayland seemed an oasis of sanity.

Much of this biography is genealogical. One ancestor, Roger Sherman, signed the Declaration of Independence, the Articles of Confederation, and the Constitution. Another, William M. Evarts, defended President Andrew Johnson in Congress's only impeachment trial. The resulting inheritance was a boatload of integrity. In his Watergate job, Cox was not much of a prosecutor, but he had integrity -- and in Washington in the 1970s, that quality mattered.

In his pre-Watergate life, Cox encountered Harold Ickes, Harry Truman, Earl Warren, John Kennedy, Robert Kennedy, and Erwin Griswold, yet Gormley gives readers little sense of what Cox was like as a lawyer. As a law professor who also handled criminal cases on appeal over several decades, he apparently prepared well and assumed nothing, but never indulged in courtroom histrionics. (He also served as US solicitor general in the Kennedy and Johnson administrations). The author does suggest one influence on Cox in an anecdote about famed federal judge Learned Hand. ``Sonny, to whom am I responsible? Nobody can fire me. Nobody can cut my pay,'' the famed jurist said to Cox, his young clerk at the time. Hand then pointed to the library shelves, saying, ``To those books about us. That's to whom I am responsible.''

Cox's bookishness and political naivete were drawbacks when his former student, Elliot Richardson, the new US attorney general, asked him in 1973 to be Watergate special prosecutor. Richardson's own staff rebelled. ``A stuffed shirt,'' said one. Robert Meserve, the Boston lawyer who headed the American Bar Association, called Cox ``a humorless man . . . not very perceptive in dealings with people.''

Many lawyers earned fame by working for Cox as special prosecutor, but a non-lawyer emerges as a hero. James S. Doyle, a former reporter for the Globe and the Washington Star, was ``an aggressive member of the Washington press corps,'' aggressive enough to be named to Nixon's enemies list. ``Although he was hired as a press adviser,'' Gormley writes, ``Doyle eventually became Cox's closest friend, confidant, and second conscience.'' One of several sidebar arguments about Watergate is whether the law or the press caught up with Nixon first. In Gormley's book, The Washingon Post's role is small. Carl Bernstein and Bob Woodward might as well have been covering bowling leagues in Prince Georges County.

Nixon had his own grudges, which he tried to elevate to issues of ``national security.'' In the hours before he would trigger the ``Saturday-night massacre,'' Nixon told Richardson that ``Brezhnev would never understand if I let Cox defy my instruction.'' Richardson writes in the foreword, ``Had Richard Nixon known Archie Cox as well as the readers of this biography will know him, Nixon would have realized that his only hope of salvation lay in full disclosure.''

On that October night, awaiting his dismissal notice, Cox waited at his rented house in a Virginia suburb for a messenger from the White House. A ``bedraggled'' young man showed up, apologized for getting lost, and handed him the letter. Cox's memory of this moment in history was: ``Couldn't they have sent a chap with a proper necktie?''

Deep in his memory was also the phrase about laws and men that John Adams had inserted in the Constitution of Massachusetts. Cox went to the telephone, called up Doyle, and dictated a statement: ``Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.'' When Thomas Jefferson wrote in 1787 that ``the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,'' he may not have had a clumsy tyrant like Richard Nixon in mind. He almost certainly anticipated a patriot like Archibald Cox.