October 20 marked the 40th anniversary of one of the most riveting political events in American history: the Saturday Night Massacre. In one dramatic convulsion, national attention focused on President Richard Nixon’s refusal to produce tape recordings subpoenaed by the grand jury investigating Watergate. So important was it to him for the tapes to remain secret that he was willing to sacrifice his newly minted attorney general to keep from divulging it.

Prior to the Saturday Night Massacre, even with the televised Senate hearings in which former White House counsel John Dean gave damaging testimony implicating the president and high administration and campaign officials in a wide-ranging conspiracy to obstruct justice, it seemed that most Americans were willing to give Nixon and his senior aides the benefit of the doubt. Nixon and his aides refuted Dean’s claims and said they had no knowledge of, much less involvement in, illegal activity.

Nixon later assured the nation, “I am not a crook.” He knew that the far more trusting Americans of 1973 wanted to believe him, and, without irrefutable evidence to the contrary, would believe their president. But the tapes proved to be his undoing, and he resigned in 1974 in the face of certain impeachment and conviction.

Had Nixon destroyed those tapes, I believe he would have survived — albeit gravely wounded — to serve out his term in office. Nixon could have defended destroying the tapes, arguing that they invaded the privacy of the individuals he was secretly recording (never mind that it was he who had betrayed their trust).

And though Nixon might have avoided ouster, it would have provoked a period of chaos with additional charges of obstruction of justice for destroying the tapes, but without the conclusive evidence of underlying criminality that the tapes supplied.

The crisis began when Nixon aide Alexander Butterfield revealed to Senate investigators the existence of a surreptitious voice-activated White House taping system that would have recorded Watergate-related conversations between Nixon and his staff. Watergate Special Prosecutor Archibald Cox issued a grand jury subpoena for the tapes of nine conversations.

Nixon ordered Cox to withdraw the subpoenas and, instead, to accept summaries of the conversations prepared by the White House. Further, Cox would have to promise not to subpoena any additional tapes or documents from the White House. Cox refused the ultimatum, and Nixon responded by ordering his attorney general, Elliot Richardson, to fire Cox. Richardson, who, during his Senate confirmation hearings, had promised to appoint an independent Watergate special prosecutor, which he believed he found in Cox, resigned rather than carry out the order, as did his deputy, William Ruckelshaus. The president eventually found someone willing to do his bidding in Solicitor General Robert Bork.

ENSUING FIRESTORM

The firestorm of public revulsion against Nixon’s use of sheer power was immediate and dramatic. Telegrams, letters and phone calls flooded into Washington in unprecedented numbers. As a result, Nixon quickly reversed course and promised to produce the subpoenaed tapes and authorize the appointment of a new special prosecutor with a written charter assuring independence. But in the process, the public and members of Congress in increasingly larger numbers began to ask, “What was Nixon hiding?”

A lot. The first tranche of tapes, even without the deliberately erased conversation between Nixon and then Chief of Staff H.R. Haldeman in the aftermath of the arrest of the burglars at the Watergate offices of the Democratic National Committee, contained evidence devastating to the president. In both tone and substance, the conversations repudiated a host of prior denials and protestations of ignorance about a broad conspiracy to obstruct justice and commit perjury. So much so that Leon Jaworski, the new special prosecutor hand-picked by Nixon to replace Cox, was convinced that Nixon would not be able to weather the storm that disclosure of the tapes would unleash.

Of course, Jaworski was right. No matter how Nixon would twist and turn, he could not shake free of the irrefutably damning tape-recorded statement. No discussion of obeying the law or holding the violators to account was considered. The only options centered on how to slip the noose slowly tightening around the conspirators as the plot began to unravel. So why didn’t Nixon destroy the tapes once their existence was revealed? Faced with contradictory sworn testimony from Dean and a handful of other former staffers and campaign officials on one side and at least an equal number of Nixon loyalists on the other, it is questionable whether the House could have mustered a vote for impeachment and unlikely that the Senate would have convicted by a two-thirds vote. The nation would have been put through years of paralyzing partisan combat that would make our present dysfunction look tame.

According to Al Haig, in an interview by Tim Naftali, then director of the Nixon Library in Yorba Linda, Calif., the president in fact had asked him to destroy the tape recordings. Haig, citing the personal risk he would face, instead said he advised Nixon to see if he could persuade the president’s devoted valet, Manolo Sanchez, to burn the tapes. Haig’s suggestion was not implemented and the tapes (except for an 18-minute gap) survived. Nixon had run out of time and options; the Saturday Night Massacre had backfired and the cover-up was over.

Richard Ben-Veniste served as a lead prosecutor on the Watergate Special Prosecution Force. He is a partner at Mayer Brown.