The Wars of Watergate

by Stanley I. Kutler

  The same questions of presidential power arose the following year in a case in Michigan, where the government brought indictments against a group of “White Panthers” for a conspiracy to bomb a CIA office in Ann Arbor. On October 5, 1970, defense lawyers filed a routine motion to compel the government to disclose whether it had obtained wiretap information on the defendants. If it had, the defense motion requested a hearing to determine whether such evidence tainted the government’s case. More than two months later, the government lawyers responded with an affidavit from Mitchell, claiming that the wiretaps were “necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” In January 1971, District Court Judge Damon J. Keith ruled for the defense and ordered the government to produce the wiretap transcripts. Government lawyers, joined by Assistant Attorney General Mardian, appealed to the Sixth Circuit Court of Appeals to overrule Keith, but the higher-court judges upheld their colleague. The Supreme Court granted certiorari in June. The case now took on the paradoxical title United States v. United States Court for the Eastern District of Michigan, but is more simply known as the Keith Case.

  The government formulated its basic position in the Court of Appeals, contending essentially that the President had the responsibility to safeguard the nation’s security against subversion: “This power is the historical power of the sovereign to preserve itself.” A supplementary memorandum added: “The power at issue in this case is the inherent power of the President to safeguard the security of the nation.” The government cited no constitutional language in support of its position and alluded vaguely to a few cases that the Court of Appeals found inappropriate.

  In the Keith Case, the government strikingly ignored the Steel Seizure Case of 1952, though this was the leading case on inherent presidential powers. There, the Supreme Court had rejected President Truman’s claims of inherent powers to nationalize the steel mills because of the Korean War emergency. The Court of Appeals in the Keith Case thought it odd that the President of the United States should claim the sovereign powers of George III, whose authorization of indiscriminate searches and seizures had been a vital issue in the Revolutionary Era.

  When the Keith Case moved to the Supreme Court, the government’s brief avoided any broad construction of “inherent powers”; Solicitor General Griswold thought that opening that topic “would just irritate the Court.” Griswold appeared in the courtroom, but he was convinced the government would lose. Mardian presented the oral argument and maintained that the President’s power “may be gleaned from the Constitution as a whole,” which he was sworn to protect. The defense responded that the Constitution involved a “legal fabric woven by the founding fathers and by this Court to protect our fundamental liberties. One might think,” they added, “in reading the Government’s brief, that we had no pertinent history to help resolve this profound question.” Again, the defense compared the President’s position to that of George III.

  The Supreme Court’s eight sitting justices affirmed the lower court in the Keith Case. Justice Lewis Powell, a recent Nixon appointee and a onetime public supporter of the Administration’s wiretap program, spoke for the Court. Chief Justice Burger concurred in the result, and Justice White in the judgment. Nixon’s other recent appointee, William Rehnquist, recused himself, apparently because he had helped draft the government’s earlier briefs.

  The Keith ruling actually was quite narrow. Powell specifically avoided confronting the inherent-powers issue, relying instead on the proposition that the government’s concerns did not justify departing “from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or seizure.” The Court acknowledged that the President had a constitutional role in maintaining domestic security but insisted that that role be exercised “in a manner compatible with the Fourth Amendment.” The case was a stunning rebuke to the Administration. Characteristically, the President complained in its aftermath that he was misunderstood: the Nixon Administration had reduced wiretaps by 50 percent from the all-time high under Robert Kennedy.35

  The Supreme Court announced its decision in the Keith Case on June 19, 1972, only two days after the Nixon Administration’s buggers had proceeded to another operation on their agenda, one that would help to focus the issues more clearly—and fatefully for the President.

  VI

  THE POLITICS OF DEADLOCK

  NIXON AND CONGRESS

  Richard Nixon’s assuming office marked the first time since Zachary Taylor’s election in 1848 that a first-term president failed to meet a Congress controlled by his own party. The Democratic majority, however, represented only part of the problem. Nixon confronted a Congress sympathetic to ideological and institutional forces increasingly resistant to presidential wishes.

  In recent decades, Congress had assumed its own characteristic institutional identity, one that added a dimension to the concept of separation of powers. Committed to a large number of programs through its natural links to the bureaucracy that administered them, Congress eventually developed its own agenda, often at odds with presidential desires, whether the president was a Republican Eisenhower or a Democratic Kennedy. Presidents struggled with this ever-burgeoning congressional will. The Vietnam war magnified the conflict, as differences sharpened over both domestic and foreign priorities.

  Richard Nixon’s first term focused and dramatized those conflicts. Issues that had been muted, or even stalemated, erupted into open, bruising conflict between 1969 and 1972. The President and Congress clashed over a variety of problems, including reorganization of the executive branch, impoundment of appropriated funds, Supreme Court appointments, and finally, the war in Southeast Asia. The President won some of these skirmishes and lost others; but by 1972, he and Congress viewed each other with mutual animosity. That feeling, and those skirmishes, poisoned the relationship of executive and legislative branches and set the stage for the fateful war of the second term.

  The task of accommodation between the branches of government is not easy, requiring tact, mutual respect, bargaining, and a willingness to share power. Manipulation is inevitable, to be sure, but generally occurs within the bounds of courtesy and compromise. Franklin D. Roosevelt’s “Hundred Days” in 1933 is often cited as a standard for demonstrating modern-day presidential leadership, but a close examination of the legislative process in this case reveals, as in so many others, that partnership between President and Congress which must prevail in American political life.

  John F. Kennedy remarked after two years in office that “Congress looks more powerful sitting here than it did when I was there in the Congress.” Nixon apparently never shared that insight. During the interregnum between November 1968 and his inauguration the following January, he reportedly never discussed legislative strategy with the aides he had appointed to deal with Congress. He even refused to prepare a State of the Union message—in reality, his legislative program—just after taking office. From the start, then, Nixon and his White House staff followed the path he had laid out in a 1968 campaign talk: the magic of the President and the People, working together, would fulfill the nation’s needs. Richard Nixon’s experience in both the legislative and executive branches for fifteen years must have made him mindful of political reality. Nevertheless, he directed his staff toward a policy that alternated contempt for Congress with a belief that, through the borrowed techniques of advertising and public relations, the White House could sell its program directly to the public and so make Congress irrelevant.1

  Nixon was determined to be an “activist President in domestic affairs.” He would not, he said, later be accused of having been too cautious. Confrontation with Congress was the order of the day; but contempt pervaded the President’s orders: “I thought it was absurd for members of Congress to complain that the executive branch had stolen power from them. On the contrary,” Nixon wrote, “modern Presidents had merely stepped into the vacuum created when Cong
ress failed to discipline itself sufficiently to play a strong policy-making role.”2

  Nixon’s confrontational style invites comparison with the Administration he served as Vice President. Eisenhower had his share of conflicts with Congress, but a public veil of goodwill and cooperation shrouded their encounters. He governed during his first two years with a slim Republican majority in Congress; during the next six he faced ever-increasing Democratic majorities, often dominated by Lyndon Johnson, who had his own insatiable ambitions. Recalling the slight Republican majority in Congress in 1953, Eisenhower said that “I knew from the beginning that noisy, strong-armed tactics would accomplish nothing, even if I were so inclined.” He cultivated numerous lines of communication with congressional leaders and urged his Cabinet members to develop friendly contacts in Congress. Nixon, in contrast, thought that such familiarity only made Cabinet secretaries subservient to congressional wishes.

  Eisenhower proudly described his close working relationship with Senator Robert Taft, his erstwhile rival for the presidency. “Legislative leaders of both parties were my friends,” he wrote. Despite some acrimony and serious differences, Eisenhower never questioned the motives of the opposition. Nixon, on the other hand, thought that liberals had “deluded” themselves and acted “dishonorably” in opposing his Anti-Ballistic Missile program. The measure passed by one vote, but when it did, Nixon credited his staff for corraling votes rather than acknowledging congressional cooperation, especially from the conservative wing of his own party.3 Fight and battle again prevailed as Nixon’s leading metaphors.

  In foreign-policy matters, Eisenhower respectfully regarded Congress’s role, whether consultative or formal. He carefully touched congressional bases during the tense moments surrounding the French collapse in Vietnam in 1954, the Formosan Straits crisis in 1955, the Suez invasion in 1956, and the civil war in Lebanon in 1957. Nixon, on the other hand, discussed his Cambodian invasion plans with Congress in 1970 only after the decision had been reached. His memoirs make no mention of congressional advice on SALT, the Indo-Pakistan War, or other major issues regarding his foreign policy.4 The omission reflected the reality of a divisive condition between President and Congress that steadily worsened throughout the Nixon years.

  As he prepared for the campaign of 1972, President Nixon told his aides to instruct friendly congressmen to make daily speeches noting the number of days that had passed without congressional action on his programs. Nixon thought doing so would be an “effective needle in the Democratic leadership” and that it would provide the “groundwork for our major attack” on Congress. Cynicism alternated with contempt. “I don’t think Congress is supposed to work with the White House—it is a different organization, and under the Constitution I don’t think we should expect agreement,” H. R. Haldeman told a reporter.5 Such was the monumental ignorance of the governmental and political processes that pervaded the Nixon Administration’s five-year relationship with Congress.

  We cannot calibrate precisely the relative strength of the presidency when Lyndon Johnson stepped down in January 1969. He had squandered a fortune in goodwill and trust in the years since his landslide victory in 1964. Presidents had left office before in disgrace or in low esteem, but the prestige of the office itself had quickly revived. Special combinations of man and times—a Franklin D. Roosevelt or a Dwight D. Eisenhower—followed the unpopular tenures of Herbert Hoover and Harry Truman. The nation waited in 1969 to see what it had chosen.

  It soon became clear that the election had not stilled any of the nation’s civil strife; most significantly, Nixon’s installation as President only widened the chasm and conflict between the executive branch and Congress. Moreover, that conflict had taken on a new character in recent years.

  The constitutional separation of powers has always had a special appeal for those wary of unbridled power. Some have also found virtue in the partisan (and sometimes ideological) division between the presidency and the legislature which, when Nixon took office, had been commonplace since the end of the Roosevelt era. This tension served as an informal extension of constitutional checks and balances. The philosophical split between President and Congress had its modern origins in the formation of an ideological alliance between conservative Democrats and Republicans as a counterweight to what they regarded as the excesses of Roosevelt and the New Dealers. That coalition blossomed with almost concurrent-veto power in the Truman Administration. Yet the alliance was mostly negative, simply serving to block or hamper presidential initiatives. Curiously, the reverse situation prevailed in the 1950s. Liberals from both parties united and used their influence in the bureaucracy and Congress to prevent rollbacks from the gains of the New Deal era. And despite the Eisenhower landslide in 1956, Democrats retained control of Congress.

  Liberal presidents seemed most victimized by the opposition of Congress—which by the 1960s had a fashionable tag: “The Deadlock of Democracy.” The longstanding conservative congressional coalition maintained control of such traditional levers of congressional power as committee chairmanships, and from such bases often dictated the course of events. Liberal activists and scholars deplored the situation, particularly as John F. Kennedy’s tax-reform and civil rights proposals stalled in Congress. For liberals, the conservative ideological alliance had little virtue, and the resulting stalemate menaced both the general welfare and national security.

  A distinguished political scientist, James MacGregor Burns, summarized the deadlock-of-democracy notion in a book by that title in 1963. Burns had impeccable liberal credentials. The Lion and the Fox, his scholarly account of Franklin D. Roosevelt’s presidency, presented Roosevelt as a classic model of the forceful activist leader, confirming and amplifying the view of him held by generations of admirers. In a 1959 campaign biography, Burns anointed Kennedy as the designated heir to the Roosevelt tradition, offering him in sharp contrast to Eisenhower’s supposedly passive rule. But the promising young candidate had not responded to the challenge as Burns had hoped. In The Deadlock of Democracy, Burns chided Kennedy for his failures in leadership, but he concluded that the President’s shortcomings derived as much from structural, constitutional traditions as from personal qualities and style.6

  Burns’s essential theme was that the furious pace of modern social change and the imperative demands of foreign and military situations required timely, effective governmental action. He believed that we had allowed the Madisonian system of checks and balances to thwart and fragment “leadership instead of allowing it free play within the boundaries of the democratic process.” The result was a political system divided along both partisan and institutional lines—and, all too often, a paralysis of governmental will and power.

  Concern with the executive/legislative deadlock evoked different concepts of representative government. For the proponents of an activist presidency—or the “plebiscitary” presidency—Congress was antediluvian, or at best obsolete. No one dared to advocate its abolition, but the activist argument worked hard to square the circle, calling for congressional recognition of the national will as embodied and expressed in the presidential program. Traditional beliefs in a conglomeration of individual constituencies, representing a myriad of interests chosen throughout the nation, now were eclipsed by a unitary vision of a President who could divine and then represent the true national will.

  Johnson’s mobilization of power and his activist leadership of diverse congressional groups followed the liberal prescription. The results provided liberals with some measure of satisfaction: provisions for tax reform, civil rights, Medicare, and other items in the litany of the liberal platform. Despite those victories, however, Johnson’s regime did not work out as promised. The Vietnam war dampened the spirits of many liberals, and the Great Society seemed much less great by 1966. Liberals needed the healing balm of older articles of liberal faith, such as Lord Acton’s dictum: “Power tends to corrupt, and absolute power tends to corrupt absolutely.” Some even began to think small and retreate
d to the Jeffersonian maxim that the government governs best that governs least. Liberals seemed confused and at sea. Some believed that Lyndon Johnson had corrupted the faith only momentarily; others began to question the established wisdom of the need for a strong presidency.

  Richard Nixon never seemed cut out for conformity to the traditional Republican concept of a limited, passive president, despite his reflexive assaults on Roosevelt and on Truman’s exercise of power. As he campaigned for the White House in 1968, his antidote for the battered presidency and the paralysis of national will was a more activist presidency. In a radio address on September 19, Nixon promised to revitalize the presidency—in short, to lead. He went so far as to criticize Johnson, of all people, as too passive. “Let me be very clear about this: The next President must take an activist view of his office,” Nixon declared. “He must articulate the nation’s values, define its goals and marshal its will.” He promised to be what Americans had been accustomed to: a personal president, one who would have a “special relationship, a special trust” with the people, who would not “paper over disunity,” and who would have “an open, candid dialogue with people” so as to “maintain his trust and leadership.” Nixon went on to add another dimension, promising to “bring dissenters into policy discussions,” to “invite constructive criticism not only because the critics have a right to be heard, but also because they often have something worth hearing.” Keeping that promise would have been unprecedented for the kind of activist president Nixon described—but it was, of course, good rhetoric in the divided political scene of 1968.

  The Nixon speech sounded as if it had been crafted by speechwriter Theodore Sorensen in the Kennedy style. Nixon spoke of presidential involvement in the “intellectual ferment” of the time. He recognized that “the lamps of enlightenment are lit by the spark of controversy.” The President, Nixon noted, was both “a user of thought” and a “catalyst of thought.” He talked of attracting “the ablest men” to his Cabinet, and he promised “a reorganized” executive and “a stronger White House than any yet put together.” Finally, there was a Kennedyesque call for elevation of the crusade: “Our cause today is not a nation, but a planet—for never have the fates of all the people of the earth been so bound up together.”