The Constiutional Ordeal of Richard Nixon

THE CONSTITUTIONAL ORDEAL OF RICHARD M. NIXON

R. B. Bernstein

Distinguished Adjunct Professor of Law, New York Law School

Richard M. Nixon died on 22 April 1994, nearly twenty years after he was forced to resign as president of the United States. Between his resignation and his death, he waged a determined campaign to seek at least some forgiveness and redemption – and he succeeded, achieving the status of an American senior statesman. His partial victory has combined with the passing of time to obscure his presidency’s lessons. Nixon’s presidency was a unique ordeal – a constitutional ordeal – for himself and for the nation. He and his administration collided with the

U.S. Constitution on such issues as presidential war powers, freedom versus secrecy, separation of powers, checks and balances, criminal justice, pornography, civil rights, and the agonizing issue of abortion. Nixon brought to boiling point a cauldron of problems that afflicted the

American constitutional system for decades and remain troubling to this day.

One reason why we may not have addressed those problems is that we may have mistakenly seen them as peculiar to Nixon’s presidency. Nixon’s successor, Gerald R. Ford, proclaimed in his inaugural address, “My fellow Americans, our long national nightmare is over.

Our Constitution works; our great Republic is a government of laws and not of men.” Ford acknowledged that, under Nixon, the system had not worked, triggering a “long national nightmare,” and suggested that Nixon’s departure ended that nightmare, helped to restore the constitutional system to working order. Ford meant well, but what he took as a conclusion remains an open question, as later controversies over presidential power and misconduct have shown. And yet the American people have treated the Nixon era as they would treat any other

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nightmare – as an unreal, traumatic experience that is best forgotten. The lessons that we should have learned are in danger of dissolving into limbo.

The leading example is the ”imperial presidency,” a pejorative codeword denoting a conception of the presidency as possessing vast powers beyond the bounds set by the

Constitution. Although the imperial presidency was controversial during and just after Nixon’s

Presidency, it has faded from view. Its successor is the theory of the “unitary chief executive,” which its advocates trace to the first sentence of Article II, section 1: “The Executive power shall be vested in a President of the United States.” In their view, this provision gives the president the full range of executive power, at least equaling those held by King George III. They dismiss contrary evidence from the Constitution’s origins; further, they pass over the dire consequences that an untrammeled presidency can have for the constitutional system, as dramatized by Nixon’s truncated presidency and by his chilling comment in a 1977 interview with David Frost: “When the President does it, that means that it is not illegal.”

Nixon’s presidency is an unnerving illustration of the clichéd truth (clichés start as truths) that we should not forget the past lest we be condemned to repeat it. It also casts a bleak light on uncritical veneration of the presidency – by citizens, politicians, and scholars – in the decades preceding Nixon’s election. For these reasons, I revisit with you today Richard M. Nixon’s constitutional ordeal, to sketch its central themes and to assess its lessons.

I. NIXON BEFORE THE PRESIDENCY

Born in Whittier, California, on 9 January 1913, one of four children of Frank Nixon and

Hannah Milhous Nixon, Richard Milhous Nixon grew up in a family beset by economic hardship and illness. Two of his brothers died young, leaving Nixon with a burden of survivor guilt.

Despite his keen intelligence and determination to succeed, he felt that he confronted


overwhelming odds and unfair opposition. Even apparent strokes of good luck did not pan out.

For example, though he won a scholarship to Harvard College with the backing of the Harvard

Club of Whittier, that scholarship covered only his tuition, so he could not afford to accept it.

Instead, he was graduated from Whittier College and Duke University Law School. After abortive forays into business and law enforcement, he began the private practice of law; he later proudly noted that he was the only modern president to have worked his way up from law practice. In 1940, he married Thelma (Pat) Ryan; they had two daughters, Julie and Tricia.

In 1942, after becoming a staff attorney in the Office of Price Administration, Nixon left

OPA to enlist in the Navy, where he was graduated from Officer Candidate School. His superiors gave him assignments drawing on his legal training. He left the Navy in January 1946 as a lieutenant commander, with two service stars and several commendations, but he never saw combat during World War II.

In January 1946, a committee of Republican businessmen in Nixon’s home town recruited him to run against Democratic Representative Jerry Voorhis, and he gladly accepted.

Campaigning intensively as a hard-working veteran, Nixon attacked Voorhis for being “soft” on

Communism and an ineffective Representative, winning by 15,000 votes. Nixon was a member of the “class of 1946,” the newly-elected Senators and Representatives who were the first political harvest of “the greatest generation.” Another member of that group was Representative

John F. Kennedy (D-MA). Though they were friendly, Nixon saw Kennedy as a handsome, wealthy dilettante with an elite background, whereas he saw himself as having had to fight for everything he had ever achieved.

Toward the end of his first term in the House, Nixon found an issue that catapulted him into national prominence. A member of the House Un-American Activities Committee, he


mounted an investigation of a man symbolizing the elite Eastern political establishment: Alger

Hiss, president of the Carnegie Endowment for International Peace. A former New Deal official,

Hiss had served on President Franklin D. Roosevelt’s staff at the controversial 1945 Yalta talks.

Nixon’s prize witness, the journalist Whittaker Chambers, revealed that Hiss had passed him confidential government documents to be sent to the U.S.S.R. Despite Hiss’s denials, he was prosecuted for and convicted of perjury in 1950.

Citing the Hiss case, Nixon defined himself as an energetic anti-Communist, using the issue to advance his career. Though he was often linked with Senator Joseph R. McCarthy (R-

WI), the difference between them was that, as one adviser said, Nixon used a rifle whereas

McCarthy used a shotgun. Nixon made few charges against alleged Communists, and he made those charges stick. After winning re-election in 1948, in 1950 he ran for the Senate against

Democratic incumbent Helen Gahagan Douglas. Though he won by stressing her alleged softness on Communism, his campaign tainted his image. Charges of dishonesty and the question, “Would you buy a used car from this man?” followed him for the rest of his life,

In 1952, the Republicans nominated Nixon for Vice President on a ticket led by former

General Dwight David Eisenhower. Nixon’s advantages were his youth (39 to Eisenhower’s

62), his anti-Communist record, and his ties to the Republican right wing. He also owed his nomination to a set of deals. Nixon had undercut California’s Governor Earl Warren, a favoriteson candidate, by delivering the state’s delegates to Eisenhower, enabling him to defeat the rightwing Senator Robert A. Taft of Ohio. Warren had to accept Eisenhower’s pledge to name him to the first vacancy on the Supreme Court after Eisenhower’s inauguration.

That fall, Nixon faced charges that he benefited from a slush fund founded by his supporters. He gave a live televised address defending his conduct and itemizing his finances, in


a humiliating ordeal for himself and his wife, who sat by him through the broadcast. The

“Checkers speech” (taking its name from a cocker spaniel given to Nixon’s children by an admirer) generated a tidal wave of support for Nixon and preserved his candidacy. Nixon won the battle of wills with Eisenhower, who had decided that he should leave the ticket but changed his mind after Nixon won in the court of public opinion. Even so, his victory was costly;

Eisenhower, angered by his defeat at Nixon’s hands, never fully trusted him afterward.

Despite their strained relations, Eisenhower and Nixon increased the vice presidency’s importance and Nixon’s standing as a member of the administration and a potential president.

Eisenhower’s health problems thrust Nixon into the spotlight. The two men ensured that, if

Nixon had to take over for the ailing President, the transition would be smooth and easy. Thus,

Eisenhower had Nixon informed of all major policy initiatives, and Nixon presided over Cabinet meetings in Eisenhower’s absence, conducting himself with dignity and tact. He also undertook foreign missions for Eisenhower, and “carried water” for the president in domestic controversies.

For example, he used his authority as president of the Senate to break the power of Senator

McCarthy, who had targeted members of Eisenhower’s administration in his anti-Communist crusade. When a resolution censuring McCarthy came before the Senate, Nixon named a committee of “hanging judges” to push it through.

In 1960, Nixon won the Republican presidential nomination, facing Kennedy as his

Democratic opponent. As an experienced vice president seeking to succeed a popular incumbent, Nixon should have had the advantage, but his reputation for dishonesty trailed him.

In his landmark televised debates with Kennedy, he seemed nervous, haggard, and untrustworthy, whereas Kennedy looked confident, vigorous, and believable. The debates confirmed Nixon’s distrust of television and the news media, which, he believed, had favored


Kennedy. He also felt that Eisenhower had not given him the full support that he deserved.

Finally, his loss of a cliffhanger election, with rumors of voter fraud in Illinois and Texas favoring Kennedy, left him with the fear that he might not have lost the election “fair and square” and confirmed his belief that his foes would do anything to defeat him.

Nixon sought to revive his political career in 1962 by running for governor of California, but he lost to Democratic incumbent Edmund “Pat” Brown. Though conceding defeat, he lashed out at the press: “Think of what you’ll be missing. You won’t have Nixon to kick around anymore – because, gentlemen, this is my last press conference….” The incident, baring his resentments to public view, apparently wrote his political obituary.

Retiring from public life, Nixon moved to New York, where he became the head partner of a Wall Street law firm. In the 1930s, he had sought an entry-level job with such firms, to no avail. In 1963, by contrast, he discovered that he was much in demand and treated with flattering respect. He became a “rainmaker” partner – a senior partner whose national reputation generates business and attracts clients. Astonished by how easily he could earn a great deal of money,

Nixon settled into his post-political life. And yet he still wanted to return to the political arena.

In 1964, he waged a muted, behind-the-scenes campaign for the Republican presidential nomination, but failed to defeat the right-wing favorite, Senator Barry Goldwater of Arizona, who lost in a landslide to Democrat Lyndon B. Johnson. In 1966, Nixon campaigned for

Republican congressional and gubernatorial candidates across the nation. Commentators awarded him major credit for the Republicans’ improved performance in the 1966 midterm elections, and he collected a rich harvest of political debts.

In 1968, Nixon again ran for the Presidency. The Republicans’ chances that year were bright. President Johnson was bogged down in an endless war in Vietnam. Having inherited the


conflict from Eisenhower and Kennedy, Johnson expanded it into a full-scale war, dreading the idea that he might “lose” Vietnam to the Communists.

More and more Americans rejected the war as pointless and doomed. The war’s unpopularity sparked many anti-war demonstrations, which merged with waves of student unrest and racially-charged rioting. The assassinations in 1968 of Rev. Dr. Martin Luther King, Jr., and

Senator Robert F. Kennedy, and the violent riots at the Democratic National Convention in

Chicago that August suggested that the nation was tearing itself apart. The American future seemed so perilous that the pundit Walter Lippmann announced that he would vote for Nixon for

President because he feared that America seemed to require a politics of repression; Nixon seemed to Lippmann the most suitable candidate to preside over repression.

Nixon defined himself as a moderate conservative between New York’s liberal Governor

Nelson A. Rockefeller and California’s right-wing Governor Ronald Reagan. Winning the

Republican nomination, he presented himself as a “new Nixon” who in private life had matured into a statesman. He promised to end the Vietnam war (igniting controversy over his supposed

“secret plan” to do so – a phrase that he never used himself). He also promised a new toughness in the nation’s war on crime, reform of federal-state relations to reduce the federal government’s role, and revitalization of the flagging economy. While denouncing student demonstrators and urban rioters, he pledged to bring the country together.

The results of one deal from 1952 became crucial to Nixon’s 1968 candidacy for

President. Earl Warren held Eisenhower to his promise to name him to the first vacancy on the

Supreme Court after Eisenhower took office, becoming Chief Justice of the United States in

1953. Warren’s appointment and the Court’s decisions under his leadership transformed constitutional law – but the “Warren Revolution” plunged the Court into heated controversy,


raising issues about judicial review, the Justices’ liberal views of pornography and the rights of criminal suspects and defendants, and the Court’s enforcement of desegregation, legislative reapportionment, and voting rights. Seizing on these issues, Nixon crafted a winning electoral strategy for 1968, one that would help to define his constitutional agenda as President.

Nixon’s drive for the Presidency benefited from divisions within the Democratic Party plaguing the campaign of the Democratic nominee, Vice President Hubert H. Humphrey. Even without Humphrey’s difficulties, Nixon was confident of victory, based on an electoral strategy that he had devised with John N. Mitchell, his campaign manager and former law partner. This

“Southern strategy” targeted white Southern voters who, alienated by the civil rights revolution, the Warren Revolution, and racial and anti-war unrest, had soured on the Democrats. The

Southern strategy shaped Nixon’s choice of his running-mate, Governor Spiro T. Agnew of

Maryland, whose career paralleled Nixon’s in ways that appealed to him. Coming from modest origins and working his way through college and law school to become Baltimore County executive, Agnew defeated a racist Democratic incumbent to become governor. Though at first he seemed liberal, he reacted with anger to racial unrest, and he denounced civil rights protestors as lawless and prone to violence. Agnew reinforced Nixon’s appeal to Southern voters ready to desert Democratic ranks.

At the same time, Governor George C. Wallace of Alabama threatened Nixon’s Southern strategy when he ran for president on a third-party ticket. Denouncing leftist demonstrators, civil rights protestors, federal judges, and “pointy-headed intellectuals who don’t know how to park a bicycle straight,” Wallace said openly what Nixon implied. In the campaign’s last weeks, some feared that no candidate would receive a majority of electoral votes, requiring the House of

Representatives to pick the President. Wallace hoped for such a result, seeing himself as a


kingmaker who could dictate policy by striking the right deal with Nixon or Humphrey.

Ultimately, however, Nixon eked out a narrow victory, with 43% of the popular vote and a solid majority in the Electoral College.

At 55, Richard M. Nixon achieved his dream of becoming President of the United States.

Though few have been as well-prepared for the presidency, as qualified to assume the office, or as intelligent and intellectually curious as Nixon was, few presidential aspirants have so divided the electorate. Nixon was one of the most polarizing figures in American public life; despite the note of conciliation that he struck in his victory speech, he took office facing deep suspicion from nearly half of the nation that he hoped to govern – and he knew it. This knowledge was crucial to his approach to the Presidency.

II. NIXON AS PRESIDENT

A.

Context

Nixon inherited a presidency that, under pressure from crises foreign and domestic, had grown in power for over thirty years. Presidents push their powers as far as they can, limited only by resistance offered by the other branches of government. That pattern of challenge and resistance reigned from 1789 through the late 1930s.

Beginning during World War II, however, a tendency to defer to the president in times of national urgency slowly emerged and began to grow. Some scholars identify the invention of nuclear weapons and their terrifying power as a spur to the growth of presidential power. Other commentators stress the development of communications technologies, which enable the

President to define the national political agenda, to create public policy, and to speak as the clear voice of the United States. Further, the increased speed of events at home and abroad


correspondingly increased the need for responsiveness by the federal government, whether to an economic slump, domestic unrest, or a foreign threat.

These developments gave added weight to the arguments of those who, during the

Constitution’s framing and adoption in 1787-1788, argued for vigorous executive power wielded by a President of the United States. As Alexander Hamilton wrote in The Federalist No. 70 , making the case for a one-man chief executive, “That unity [in the executive] is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” And yet the growth of presidential power by the 1960s outstripped even Hamilton’s expectations.

Both actual events such as the 1962 Cuban missile crisis and fictitious imaginings of the

President as sole defender of the nation (such as the novels and movies Fail-Safe and Seven Days in May ) taught that the President had to have as much power as possible to guard against threats of whatever kind and from whatever source.

The consequences for the President – holder of an office enshrined as almost an elective monarchy, guaranteed to ennoble any man chosen to fill the job – were potentially disastrous.

As President Lyndon B. Johnson’s first press secretary, George Reedy, warned in his prescient study The Twilight of the Presidency , the President had become sealed in a bubble isolated from ordinary human experience, which could persuade him and his advisors that they were omniscient and omnipotent. Reedy noted, “No one speaks to [the President] unless spoken to first. No one ever invites him to ‘go soak your head’ when his demands become petulant and unreasonable.” A President so insulated could mistake his own preferences for the general good, and his prejudices and insecurities for real threats to the nation.


B.

Nixon’s View of the Presidency

Into this office stepped Richard M. Nixon, who prided himself on his grasp of foreign affairs and who brought with him the conviction that only the President, using information available only to him, could make the best calls on whether, when, and how to use his powers.

In this conviction, Nixon differed little from such predecessors as Eisenhower, Kennedy, and

Johnson. Yet Nixon united to his acknowledged expertise and his certitude less salutary traits that the Presidency’s isolation and secrecy were destined to exacerbate.

First, Nixon craved to establish himself as a world leader, on the model of such of his heroes as Woodrow Wilson, Winston S. Churchill, and Charles De Gaulle.

Second, Nixon’s preferences for secrecy and behind-the-scenes negotiations turned the

Presidency into a “black box,” shielding policy-making from view. Nixon turned presidential governance into a process churning out neatly-packaged results as if pulled from a magician’s hat, giving the public no chance to see how policies were made or what factors policy-makers considered or ignored. Feeding Nixon’s approach to presidential governance was what one aide,

John D. Ehrlichman, later described as Nixon’s penchant for intrigue.

Third, throughout his presidency Nixon faced a Congress with both houses controlled by the opposing party – a situation that no president had faced since Zachary Taylor in 1849.

Finding this “divided government” a source of constant frustration; Nixon tried, without success, to carry Congress for the Republicans, and then to work around Congress.

Fourth, Nixon had persistent, gnawing suspicions of his adversaries, whether in

Congress, in the Democratic Party, in the federal bureaucracy, among interest groups he saw as hostile, or among the news media. Convinced that all those enemies were working to frustrate his goals, impede his policies, and undermine him, he sought to move against them first. To be


fair, his worries about those ranged against him were not altogether creatures of his own mind.

Liberal intellectuals, leading Democrats, and key figures in the news media had long viewed him with wary distaste. Exercises of presidential power that they might have accepted or welcomed from a President of their own party or philosophy seemed far less acceptable from a President whom they had grown to distrust even before he was elected.

Nixon brought to the Presidency two agendas, one public, the other covert. The public agenda was, as he put it in his victory speech, “to lower our voices” – to promote a politics of conciliation and consensus. The covert agenda was to establish presidential authority over policy-making, whether by taking control of the agencies of the executive branch or by working around them. At first, for example, Nixon announced that he planned to make his Cabinet the center of his Presidency, giving his department secretaries pivotal roles in making policy.

Within months he abandoned this plan. Instead, he concentrated in the White House authority to devise and supervise policy. Heads of Cabinet departments realized that they were losing power to the White House staff. This tendency’s most obvious victim was Nixon’s first Secretary of

State, William P. Rogers, who discovered not only that the President’s National Security

Advisor, Dr. Henry A. Kissinger, was far more powerful than he was but also that Nixon was determined to be his own Secretary of State, with Kissinger as his junior partner.

Nixon’s approach to governing also had two bases – one principled, the other partisan and personal. The principled basis was his vision of the Presidency as the nation’s central political institution. By reorganizing the federal government and focusing decision-making within the Presidency, Nixon argued, he was bringing order and efficiency to public policy, building on the labors of earlier Presidents. The partisan and personal basis was Nixon’s visceral distrust of career officials in Cabinet departments and administrative agencies. Certain that they


were loyal to liberalism and the Democratic Party rather than to him and convinced that they would try to undermine or derail his policy initiatives, Nixon was determined to prevent them from crippling his Presidency – whether they wanted to or not.

C.

National Security: Vietnam

The most agonizing problem that Nixon inherited was the war in Vietnam. In retrospect, it was no surprise that he applied to the Vietnam conflict his penchants for secrecy, concentration of power, and suspicion of dissent. The President waged secret war in Indochina, expanding beyond Vietnam to order secret bombing raids in Laos and incursions into Cambodia to destroy supposed Vietcong bases, supply dumps, and command centers. Even as Nixon insisted that he wanted to end the war, he sought to do so by widening the scope of American military operations. Nixon and Kissinger pursued a strategy blending secret diplomacy and public negotiations with use of military power to coerce North Vietnam and indigenous Viet Cong insurgents to make peace. At the same time, Nixon, Kissinger, and Defense Secretary Melvin

Laird pursued a policy of “Vietnamization” – shifting fighting from American forces to the army of South Vietnam. This policy, too, had mixed results at best, as the South Vietnamese government and military were too corrupt, fragile, and unpopular to maintain a united front against the Communist North and its Viet Cong allies.

In 1972, while campaigning for a second term, Nixon continued Vietnamization, shifting

American forces from combat to training and bringing American units home. At the same time, however, between May and October, he ordered massive bombing raids on the North. In the weeks following his re-election, Nixon, losing patience with what he saw as North Vietnam’s intransigence, ordered further American bombing raids against the North Vietnamese capital,

Hanoi, and its chief port, Haiphong. Nixon and Kissinger insisted that these “Christmas


bombings,” the heaviest bombing raids carried out by American forces since World War II, forced the leaders of North Vietnam to accept the Paris Peace Accords. Agreed to in January

1973, this agreement ended direct American military involvement in Vietnam and imposed a short-lived peace between North Vietnam and South Vietnam.

The Vietnam conflict spurred disputes between the executive and legislative branches about presidential war powers. Congress tried several times to rein Nixon in, including the

1970-1971 Cooper-Church amendment (cutting off funding of American operations outside

Vietnam and ending congressional authorization for such operations) to no avail. Finally, in

1973, Congress enacted the War Powers Resolution; Nixon vetoed it on 24 October but Congress overrode his veto on 7 November. This resolution requires the President to inform Congress within 48 hours of committing American armed forces to military action; it also forbids those forces from remaining for more than 60 days, setting a further 30-day period for withdrawal, unless Congress has first authorized use of military force or adopted a declaration of war. This resolution’s advocates insisted that it was needed to rein in the President’s power to engage the

United States in war without a congressional declaration of war; Nixon insisted that it was an unwise measure that would tie the hands of all future Presidents in responding to threats to the national security.

D.

Nixon’s Response to Anti-War Dissent

While seeking what he called “an honorable exit” from Vietnam, Nixon resented opposition to his policies, within and outside his administration. He took increasingly harsh measures against administration insiders who leaked their dissenting views to the news media.

In his first year in office, with Kissinger’s connivance, he even ordered intelligence agencies to wiretap dissenting staff members of the National Security Council.


Growing opposition to the Vietnam war among ordinary Americans also aroused suspicion and distrust among Nixon and his advisors. Vice President Agnew was the administration’s point man in attacking the news media for alleged bias and hostility to the administration’s defense and foreign policies; Agnew thus played a role in Nixon’s presidency akin to the role that Nixon had played for Eisenhower, and both Nixon and Agnew were pleased by the media’s apparent bowing to the pressure exerted by Agnew’s rhetoric.

Other efforts to combat dissent were covert and ominous. In 1970, a White House lawyer, Tom Charles Huston, drew up a plan to coordinate the domestic intelligence agencies’ efforts against anti-war activists and organizations as well as against dissident groups on the far left. Huston’s plan advocated such illegal means as burglaries and warrantless domestic wiretapping and mail-cover operations. Only FBI director J. Edgar Hoover blocked Huston’s plan from going into effect. Opposing the proposal not out of concern for civil liberties but rather because he did not want to risk the FBI’s authority, Hoover persuaded Attorney General

Mitchell to reject the plan, though some of its elements survived in later Nixon administration efforts to undermine the anti-war movement and sabotage political dissent.

In 1971, the Pentagon Papers controversy persuaded Nixon of the need for greater effort against breaches of the government’s wall of secrecy. The Pentagon Papers were a study of

American decision-making in Vietnam, commissioned in the 1960s by then-Secretary of Defense

Robert McNamara. On the study’s completion in 1967, McNamara ordered it classified. One of its authors, Daniel J. Ellsberg, turned against the war that he had supported as a Marine, a RAND

Corporation analyst, and a Defense Department advisor. Consumed by guilt over the war’s human cost and determined to do what he could to end the killing, Ellsberg photocopied the history and tried to leak 43 of its 47 volumes to the news media, keeping back four volumes on


secret diplomatic efforts that he deemed too sensitive for disclosure. On 13 June 1971, The New

York Times began publishing a series of articles based on the secret history and quoting extensive documentation from its pages. These articles exposed, first, how Presidents Eisenhower,

Kennedy, and Johnson and their administrations had misled the people about what the United

States was doing in Indochina and, second, how American decision-making often was based on unrealistic or distorted assessments of facts on the ground, resulting in self-defeating policies prolonging the war and misleading the people and their government.

Obsessed with secrecy, Nixon, Mitchell, and others in the administration saw the leak as an unforgivable breach of national security. Mitchell demanded that the Times cease publication of its series of articles and return the Pentagon Papers, but the Times refused. As the Justice

Department sued to enjoin the Times , Ellsberg leaked copies to the Washington Post and other newspapers. The case soon reached the U.S. Supreme Court, which handed down its decision on

30 June 1971. Six Justices backed a per curiam opinion rejecting the government’s arguments for “prior restraint” of publication. Justices Hugo L. Black, William O. Douglas, and William J.

Brennan, Jr., rejected on First Amendment grounds any government attempt to suppress publication. Justices Potter Stewart, Byron R. White, and Thurgood Marshall held that, although in rare cases the government might be able to enjoin publication, it had not met the heavy burden required to justify an injunction in this case. Three dissenting Justices – Chief Justice Warren E.

Burger (a Nixon appointee) and Associate Justices John Marshall Harlan II and Harry A.

Blackmun (another Nixon appointee) – argued that the government had met its burden and should be allowed to prevent publications endangering national security.

Nixon’s efforts in the Pentagon Papers case helped to sow the seeds of his own destruction; his anger that the Court had refused to enjoin publication of the Pentagon Papers led


him to urge his aides to pursue ever-more aggressive efforts to preserve government secrecy and to punish individuals who (as he saw it) acted to endanger national security.

E.

Domestic Initiatives

Recent work on the Nixon Presidency has rediscovered Nixon’s surprisingly liberal domestic agenda, though one with conflicted motives and uncertain results.

The first and perhaps most influential area of rediscovery is environmental protection.

Previous administrations had addressed environmental concerns by enacting isolated statutes.

Nixon followed a more coherent approach; he backed the 1970 Clean Air Act Extension, a measure crafted to extend the mandate of the original 1963 Clean Air Act, and the statute creating the Environmental Protection Agency, which he signed into law in 1970 as part of his proposed government reorganization. More controversially, in 1972 Congress enacted the Clean

Water Act, but Nixon vetoed it because it would cost too much money. When Congress overrode his veto, he impounded the appropriated funds, claiming that as president he had authority to limit federal spending. (In 1974, Congress enacted a new statute governing such cases of impoundment. Under it, a president may seek authority to impound appropriated funds but that request will fail unless approved by both houses of Congress within 45 days.) Nixon was not a fervent environmentalist; if he had to choose between protecting the environment and protecting jobs, he would protect jobs. Even so, his record, mixed as it is, is remarkable in and of itself and in establishing the environment as a focus of public policy.

Nixon also launched a creative though unsuccessful effort at welfare reform. The Family

Assistance Plan (F.A.P.), devised in 1969 by his domestic advisor Daniel Patrick Moynihan, would pay each eligible family a minimum income, which state or local governments could augment, and which would encourage recipients of F.A.P. payments to seek work with minimal


impact on their payments. Unfortunately for F.A.P., an unlikely alliance of left and right opposed the bill, and Nixon ultimately abandoned it.

Nixon also reworked federalism by backing revenue-sharing. Under this 1972 program, his most popular domestic initiative, the federal government transferred a share of its tax revenues to state and local governments, with few strings attached, on the assumption that state and local governments could best assess their own needs and therefore best decide where and how to spend the money. Revenue sharing continued until the mid-1980s, when President

Ronald W. Reagan replaced the program with block grants – achieving the same goals under a different label. Revenue-sharing was a core component of Nixon’s “new federalism” initiative, a policy intended to reverse concentration of power in the federal government.

Nixon’s domestic initiatives grew out of partisan and political as well as public-spirited purposes. Both revenue-sharing and F.A.P. challenged domestic policies formulated during the

Kennedy and Johnson administrations, and in some cases going back to the days of Roosevelt.

In Nixon’s view (which had some basis in fact), those existing policies were designed to achieve public-policy goals and to bolster Democratic political power in the communities benefiting from the policies and the institutions administering and enforcing them. Nixon thus sought to sap the political power of his Democratic opponents.

F.

Nixon and the Judiciary

Nixon long recognized the President’s power to shape the federal judiciary and its development of American law by appointing judges. Building on his campaign criticisms of the

Warren Court, Nixon pledged to appoint federal judges who would practice what he called “strict construction” of the Constitution – interpreting the document narrowly so as not to identify new rights or new remedies lurking within the Constitution’s text.


Even before taking office, Nixon knew that he would make at least one appointment to the Supreme Court. In 1968, Chief Justice Warren announced his retirement. President

Johnson’s hope to appoint his successor derailed, for his nominee, Associate Justice Abe Fortas, withdrew his name amid charges that he had violated canons of judicial ethics. In April 1969,

Fortas resigned from the Court under fire, due to further charges of judicial impropriety that his foes (quietly abetted by the Nixon administration) invoked as reason to threaten him with impeachment. Warren’s retirement and Fortas’s resignation gave Nixon two chances to nominate strict constructionist judges to the nation’s highest court.

To succeed Warren, Nixon named the Minnesota-born Judge Warren E. Burger of the

U.S. Court of Appeals for the D.C. Circuit; Burger had made his reputation as a critic of liberal views of the insanity defense in criminal law. Burger won confirmation by the Senate with relative ease. To succeed the disgraced Abe Fortas, Nixon sought to reward his conservative supporters in the South by naming a Southern Justice – but this effort resulted in a pair of backto-back political defeats.

Nixon’s first nominee was a respected South Carolina conservative, Judge Clement

Haynsworth of the U.S. Court of Appeals for the Fourth Circuit. His nomination provoked severe controversy, as Democrats denounced his record of opposition to civil rights and labor and rallied in the Senate to defeat his nomination.

Nixon then nominated a Floridian, Judge G. Harrold Carswell of the U.S. Court of

Appeals for the Fifth Circuit. Carswell had far shakier qualifications than Haynsworth’s, such as a high reversal rate of his opinions as a federal district judge and a record of open support for segregation. Senator Roman Hruska (R-NE), trying to argue away Carswell’s meager qualifications, said that he should be confirmed because mediocre people were entitled to be


represented on the Court – but his argument probably damaged Carswell’s chances. Nixon’s indifference to Carswell’s weaknesses as a nominee implied that he wanted to beat the Senate even at the expense of making a lackluster appointee to the Court; he assumed that the Senate would not reject two nominees in a row. His assumption was a serious error; the Senate stunned him and the nation by rejecting Carswell. Nixon announced bitterly, “After the Senate’s action yesterday in rejecting Judge Carswell, I have reluctantly concluded that it is not possible to get confirmation for the judge on the Supreme Court of any man who believes in the strict construction of the constitution as I do, if he happens to come from the South.”

After consulting with Chief Justice Burger, Nixon tried a third time to name Fortas’s successor, nominating Judge Harry A. Blackmun of the U.S. Court of Appeals for the Eighth

Circuit. A quiet, shy appellate judge from Minnesota who had been friends with Burger since childhood, Blackmun easily won confirmation. When asked whether he was a strict constructionist, he answered, “I don’t know what that means.” Blackmun began as a conservative jurist who often voted with Burger; journalists dubbed them “the Minnesota

Twins.” Over time, however, he struck out on his own, including his still-controversial opinion for the Court in the abortion case Roe v. Wade (1973).

In 1971, two distinguished Justices retired from the Court and died soon afterward – the

Alabaman New Deal liberal Hugo L. Black and the patrician New York conservative John

Marshall Harlan II. Nixon now had two chances to bolster Burger and Blackmun. Both of his nominees won confirmation, though one had an easy time and the other did not. Lewis F.

Powell, Jr., a distinguished Virginia lawyer, was confirmed with relative speed to succeed Black; with this appointment, Nixon finally managed to name a Southerner to the Court. Assistant

Attorney General William H. Rehnquist, a young nominee and a prominent conservative from


Arizona, was Nixon’s choice to succeed Harlan; he was confirmed after acrimonious debate.

Powell became one of the Court’s swing Justices, whereas Rehnquist became the Court’s most reliably conservative member. Nixon’s lower-court appointments tracked his efforts to shift the

Supreme Court rightward, with similarly mixed results.

III. THE UNRAVELING OF NIXON’S PRESIDENCY

Between June 1972 and August 1974, the Nixon presidency unraveled. After winning a second term, Nixon and his administration faced growing charges of corruption, “dirty tricks,” political espionage, and efforts to cover up these and other illegal activities. Nixon and the country lurched from exposure to exposure and confrontation to confrontation; the worsening crisis forced him from office, in the process threatening severe damage to the Constitution.

As noted, Nixon’s presidency had two faces. Its public face was defined by such foreignpolicy initiatives as opening relations with the People’s Republic of China, establishing détente and negotiating a strategic-arms limitation treaty with the U.S.S.R., and giving emergency aid to

Israel during the 1973 Yom Kippur War, and by such domestic initiatives as reshaping federalism and defining environmental policy. Its private face was defined by the aborted

Huston plan for illegal domestic surveillance; by the creation of the “plumbers” investigative unit with the mandate of preventing leaks of secret information; by the compiling of a list of political “enemies” who would face reprisals drawing on the full powers available to the

Presidency; and by the “dirty tricks” squad organized and funded by Nixon’s re-election campaign. The exposure of the private face of Nixon’s presidency brought him down.

Still infuriated by the Pentagon Papers case, Nixon was determined that Ellsberg and those who helped him leak the papers be prosecuted to the fullest extent of the law. He ordered investigations of Ellsberg to secure information that would discredit him in his trial and in the


court of public opinion. At Nixon’s behest, White House aide Charles W. Colson created the plumbers, a secret intelligence unit including former CIA agent E. Howard Hunt. The plumbers attempted a break-in at the office of Ellsberg’s psychiatrist, hoping to secure his notes of

Ellsberg’s therapy sessions, but they could not find the notes, and a proposed second burglary targeting the doctor’s home was aborted. These secret, illegal attempts by the Nixon White

House to bolster the case against Ellsberg ultimately backfired. In the spring of 1973, during

Ellsberg’s trial for leaking the Pentagon Papers, Nixon advisors met with the trial judge and offered to name him head of the FBI. Citing their attempt to influence the trial, as well as disclosures of illegal activities by the plumbers and the FBI targeting Ellsberg, Judge William

Matthew Byrne, Jr. (a Nixon appointee), declared a mistrial.

Suspicion and distrust also shaped the efforts of Nixon and his aides as they planned the president’s campaign for a second term. Nixon was favored to win re-election in 1972. He had no serious challengers for the Republican nomination, and his foreign-policy triumphs, especially in China and the U.S.S.R., confirmed him as a world statesman. Issues arising from

Vietnam persisted, but they were not so controversial as to threaten Nixon’s chances. Even the relatively sluggish economy seemed to be responding to the administration’s efforts to combat the combination of inflation and recession.

Nixon did not see it that way, nor did his campaign organization, the Committee for the

Re-Election of the President (CREEP). Even before stepping down in June 1972, Nixon’s 1968 campaign manager, Attorney General Mitchell, worked with CREEP staffers to plan an aggressive fund-raising effort to build a war-chest for an invincible re-election campaign.

Surveying the Democratic candidates, CREEP operatives sought to sabotage the strongest candidates so that Nixon would face the weakest opponent possible.


Having launched an undercover campaign of sabotage and slander, Nixon’s aides and

CREEP staffers fretted about what Democrats might have in store for him. Most scholars conclude that such fears prompted CREEP operatives to stage break-ins at the headquarters of the Democratic National Committee at the Watergate apartment complex in Washington, D.C.

On this view, the break-ins were preventative measures to identify and disarm Democratic efforts to sabotage Nixon. The break-ins were organized by a former CIA agent, James W. McCord, Jr.,

CREEP’s head of security; McCord recruited a quartet of Cuban-Americans, veterans of CIA efforts against the Communist regime of Cuban dictator Fidel Castro. The McCord team staged their second break-in at the DNC on the night of 17 June 1972. A security guard, Frank Wills, discovered the break-in and phoned the police, who arrested McCord and the other burglars; they were tried for and convicted of conspiracy, burglary, and wire-tapping, as were former CIA agent and “plunbers” supervisor E. Howard Hunt and G. Gordon Liddy, CREEP’s liaison with the White House.

There is no evidence that Nixon had advance knowledge of the Watergate break-ins, of the details of clandestine CREEP activities, or of the plumbers’ illegal activities. However, within days of the break-in, Nixon worked with his chief of staff, H. R. Haldeman, and his domestic policy advisor, John D. Ehrlichman, to orchestrate a cover-up to conceal White House links to these illegal activities and to pay “hush money”.to McCord, the other four burglars, and

Hunt. (Liddy, a true-believer, was determined to keep silent.)

Dismissed by Presidential press secretary Ronald Ziegler as “a third-rate burglary attempt,” the Watergate scandal only gradually developed as a news story. The campaign of

Democratic nominee Senator George S. McGovern (D-SD) floundered, and Nixon continued to woo Democrats away from a party that, he argued, had gone too far to the left. Though reports


of campaign-finance irregularities and “dirty tricks” continued to surface, they had little effect on the campaign. On Election Day, Nixon decisively defeated McGovern, with 60% of the popular vote and 521 of a possible 535 electoral votes; McGovern carried only Massachusetts and the

District of Columbia. For a man who had been elected with a narrow plurality of votes in 1968, it was a heady triumph.

Barely two months after Nixon’s inauguration in 1973, however, the Watergate story burst open; McCord wrote a letter to U.S. District Judge John J. Sirica (who had presided over his trial) charging that the burglars had pleaded guilty under pressure from CREEP and that perjury had tainted the trial. McCord’s letter helped to launch two investigations of Watergate – a federal grand-jury probe supervised by Judge Sirica and a Senate select committee on presidential campaign activities chaired by Senator Samuel J. Ervin, Jr. (D-NC). Nixon announced a third investigation by his White House counsel, John W. Dean III, which, he promised, would root out corruption and clear the White House.

By the end of April 1973, the grand-jury and Senate investigations and journalistic inquiries revealed a wide-spanning web of criminal activity with links to the White House.

Nixon was forced to accept the resignations of Haldeman and Ehrlichman, and that of Attorney

General Richard Kleindienst, who had become entangled in the cover-up. Nixon also fired

Dean, who became a government witness and delivered a day of dramatic and highly damaging testimony before the Senate committee. Dean revealed, among other things, that Nixon and his aides had prepared an “enemies list” of politicians, journalists, and celebrities and were ready to use the government’s powers to “screw [their] political enemies.” Dean added that he had warned Nixon that “a cancer was growing on the Presidency,” implying that Nixon was implicated in the cover-up and might have committed the felony of obstruction of justice.


Nixon appointed a new attorney general, Elliot Richardson, who pledged to the Senate that he would name a special prosecutor and guarantee his independence. Richardson’s choice was Harvard law professor Archibald Cox – an appointment that angered Nixon, who did not believe that Cox could be fair or impartial, given his long association with the Kennedys (he had been Solicitor General in the Kennedy administration).

The accidental revelation to the Senate committee’s staff by White House aide Alexander

Butterfield that Nixon had installed a taping system in the White House to record his conversations shifted the Watergate inquiries’ focus to these tapes and what they might reveal about Nixon’s role. Special Prosecutor Cox issued a subpoena for the tapes, which Nixon rejected, citing executive privilege. This evidentiary rule holds that, because of the need to protect confidential consultations between the President and his advisors, records of or testimony about such consultations could not be sought as evidence. Executive privilege was analogous to the clergy-penitent privilege or spousal privilege. None of these privileges, however, has been held to be absolute in all cases.

Nixon ordered Cox to cease and desist, but Cox refused to do so. On 19 October 1973,

Nixon proposed a compromise negotiated with Senate leaders, under which Senator John C.

Stennis (D-MS) would review the tapes and decide which to turn over and which to retain; Cox declined the compromise (because Stennis was aged, hard of hearing, and an ally of Nixon).

On the afternoon of Saturday, 20 October, Cox held a televised press conference to explain why he was persisting in his inquiry. That night, Nixon ordered Richardson to fire Cox.

Richardson refused, because that action would break his word to the Senate, the price of his confirmation as Attorney General. He therefore resigned in protest. His deputy, William

Ruckelshaus, also refused to fire Cox and also resigned in protest. The third highest official of


the Justice Department, Solicitor General Robert H. Bork, reluctantly agreed to fire Cox, as he felt that somebody had to carry out a presidential order. At the order of Nixon and his new chief of staff, General Alexander Haig, the Justice Department closed the offices of the Watergate

Special Prosecution Force. The “Saturday Night Massacre” and the firestorm of public opinion unleashed by it stunned Nixon and his advisors. Backing down, Nixon consented to Acting

Attorney General Bork’s appointment of a new special prosecutor, the prominent Texas litigator

Leon Jaworski (who had twice voted for Nixon for President). Jaworski reopened the Special

Prosecution Force and revived the inquiry.

In the weeks preceding the Saturday Night Massacre, an unrelated scandal engulfed not

Nixon, but his Vice President. During a probe of political corruption in Maryland, the U.S.

Attorney for the District of Maryland informed Vice President Agnew that he was at risk of indictment for having sought and received bribes during and after his political career in

Maryland, including receiving bribes while he was Vice President. Agnew fought these charges, at first claiming immunity from prosecution (a claim rejected by the prosecutor) and then asking the House of Representatives to launch an impeachment inquiry against him to delay his indictment. (This the House leadership refused to do, because it was not appropriate and because it would interfere with any impeachment inquiry into Nixon’s conduct as President.) Finally,

Agnew accepted a plea bargain under which he pleaded nolo contendere (no contest) to the indictment and resigned his office. Agnew’s fall had indirect significance for Nixon, for Agnew was Nixon’s “impeachment insurance,” meaning that impeaching Nixon was highly unlikely if

Agnew were to succeed him. After Agnew’s fall, Nixon used the Twenty-Fifth Amendment to name House minority leader Gerald R. Ford (R-MI) to replace Agnew as Vice President.


Because Ford was well-liked on Capitol Hill, his confirmation as Vice President meant that

Nixon was one step closer to the risk of impeachment.

On 30 April 1974, Nixon tried an end-run around demands for the White House tapes, announcing on nationwide television his release of transcripts of the tapes. This attempt to appear compliant while preserving the tapes’ confidentiality did not work. Also, the transcripts’ revelations of Nixon’s occasional use of profane and obscene language and his comments about his real and perceived political enemies damaged his reputation.

Nixon continued to fight Jaworski’s subpoenas in the courts, insisting that he was doing so to preserve the Presidency’s integrity and the confidentiality of Presidential consultations.

Judge Sirica upheld Jaworski’s subpoena, holding that executive privilege was not absolute but allowed a judge to review the subpoenaed material and determine whether the damage to confidentiality outweighed the need to receive the material as evidence in a criminal inquiry by a grand jury. On appeal, Judge Sirica’s decision went directly to the Supreme Court.

Against the backdrop of the legal battles over the White House tapes, the House

Democratic leadership agreed to launch an inquiry into whether Nixon should be impeached; the leadership referred the issue to the House Committee on the Judiciary, chaired by Peter W.

Rodino, Jr. (D-NJ). In nationally-televised hearings, the committee’s members impressed the nation with the seriousness with which they approached their responsibility and the cogency with which they explored the arguments for and against impeachment.

One central issue facing the committee was defining an impeachable offense. Article II, section 4 of the Constitution defines impeachable offenses as “treason, bribery, or other high

Crimes and misdemeanors.” Treason and bribery have clear meanings, but two competing theories arose in the committee’s debates about the meaning of “high Crimes and


misdemeanors,” reflecting traditional divisions on the issue going back to the impeachment and trial of President Andrew Johnson in 1868. The narrow theory was that impeachable offenses must be indictable offenses against criminal law; the broad theory was that impeachable offenses include great crimes against central principles of the constitutional system, such as abuse of power. Both theories covered impeachment on the grounds of obstruction of justice, the primary focus of the committee’s inquiry.

On 24 July 1974, the U.S. Supreme Court announced its decision of United States v.

Nixon

, upholding Judge Sirica’s decision. The Justices ruled, eight to one, with Rehnquist abstaining (as Assistant Attorney General, he had helped to formulate the pre-Watergate version of the Nixon administration’s views on executive privilege), that Nixon had to turn over the subpoenaed tape recordings to Jaworski and the Watergate grand jury. In an opinion for the

Court signed by Chief Justice Burger (but the work of all eight participating Justices), the Court rejected Nixon’s claim of “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The Justices accepted Judge Sirica’s ruling that the tapes be subject to in camera review by the judge to decide which tapes could go to the grand jury and which had to be kept confidential.

Three days after the Court’s decision, on 27 July, the House Judiciary Committee adopted the first of three articles of impeachment, citing obstruction of justice; it adopted the second article of impeachment, citing abuse of power, on 29 July; and it adopted the third article, citing contempt of Congress, on 30 July. The first two resolutions were adopted by bipartisan majorities; the third was adopted on a party-line vote.

The convergence of these actions by the Supreme Court and the House Judiciary

Committee made clear that Nixon’s presidency was imperiled. On 5 August 1974, Nixon


released three more transcripts, including one of a previously-unknown recording of a 23 June

1972 meeting in which Nixon discussed with Haldeman how they could get the CIA to give false assurances to the FBI and the Justice Department that they should suspend their inquiries into the

Watergate matter because national security matters were at stake. The purpose of this cover-up tactic was to prevent the discovery that money from CREEP had been used to pay for the

Watergate burglaries and to provide “hush money” to the convicted defendants. This “smoking gun” transcript persuaded Nixon’s diehard supporters in Congress and his own attorneys that he had committed impeachable offenses. All ten dissenters on the House committee on the first article of impeachment switched their votes.

Even now, Nixon insisted to his Cabinet that he would not resign – but within a day he had to change his mind. On 7 August, three senior Republican lawmakers – Representative John

Rhodes (R-AZ), the House minority leader, and Senators Barry Goldwater (R-AZ) and Hugh

Scott (R-PA), the Senate minority leader – met with the President. They told him that his impeachment by the House and his conviction by the Senate were inevitable. Goldwater told

Nixon that he could expect to get only ten to twelve votes in the Senate; when Nixon pressed him about how he would vote, Goldwater told him that he too would vote to convict. The meeting showed Nixon that further defiance was hopeless.

On 8 August 1974, Nixon delivered a nationwide televised address. Announcing that he had lost his political base and that he wanted to avoid putting the nation through a needless ordeal, he declared that he would resign the presidency at noon on 9 August. On that day, after a final speech to his staff, he left Washington and returned to his home in San Clemente,

California; Vice President Ford took the oath of office as President.


In the weeks following Nixon’s resignation, controversy swirled around him. Would he be indicted? His health was fragile, including a case of phlebitis that almost proved fatal; his family worried that further legal proceedings might kill him. Behind the scenes, former chief of staff Alexander Haig tried to persuade Ford to pardon Nixon and to make sure that Nixon’s tapes and papers were turned over to him, as had been the practice with all previous presidents. Ford and his aides mulled over the question, uncertain how to proceed.

On 8 September 1974, after returning from church services, Ford announced that he had decided to issue Nixon “a full, free, and absolute pardon … for all offenses against the United

States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.” In his proclamation, Ford explained,

“It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the

United States.”

Accepted the pardon, Nixon declared, “No words can describe the depth of my regret and pain at the anguish my mistakes over Watergate have caused the Nation and the Presidency – a

Nation I so deeply love, and an institution I so greatly respect. I know that many fair-minded people believe that my motivations and actions in the Watergate affair were intentionally selfserving and illegal. I now understand how my own mistakes and misjudgments have contributed to that belief and seemed to support it. This burden is the heaviest one of all to bear. That the


way I tried to deal with Watergate was the wrong way is a burden I shall bear for every day of the life that is left to me.”

Ford’s pardon of Nixon may have been the most controversial pardon in the history of the

United States. For the rest of his days, Ford insisted that he had acted with no concern for any alleged deal inducing Nixon to resign, and that, by accepting the pardon, Nixon had admitted his guilt, a principle of law governing the pardoning power. (Ford also allowed Nixon to retain his papers and the tapes, but Congress overrode this decision by statute, though Nixon litigated on the issue for the rest of his life.)

At the time, many saw the pardon as a self-inflicted wound on Ford’s Presidency; by contrast, in ensuing years, Ford’s action was hailed as an exemplary moment of political courage, and in 2001 a former critic of the pardon, Senator Edward M. Kennedy, presented Ford with the Profiles in Courage Award, awarded by the John F. Kennedy Foundation.

IV. THE CONSTITUTIONAL LEGACIES OF RICHARD M. NIXON

One reason why Nixon always will remain one of the most controversial figures in

American history is that we still have trouble assessing his significance, and interpreting his presidency’s meaning for the American constitutional experiment.

One irony of Nixon’s constitutional legacies is that later Presidents did not shun them but echoed them, illustrating the tendency of presidents to resist efforts to push back the bounds of executive power once asserted. For example, executive privilege, though modified by United

States v. Nixon , did not go away. Rather, every president after Nixon has asserted the privilege.

So, too, the President’s war powers remain controversial. Again, every President after Nixon has resisted the War Powers Resolution, questioned its constitutionality, and fought to preserve and


even to extend presidential war-making authority. Nixon’s legacy is one of many streams feeding a conflict as old as the Republic.

Another of Nixon’s constitutional legacies is the ancient philosophical question: Who guards the guardians? How do we call the President or members of the executive branch to account? After Nixon’s fall, Congress enacted a statute authorizing a panel of federal judges to name an independent counsel to probe charges against the President or executive-branch officials. Again, all Presidents after Nixon complained about the statute and the independent counsels named under it, charging that they harassed the executive branch without cause, often damaging reputations beyond salvage. In 1986 the Court upheld the statute as constitutional

(over a splenetic originalist dissent by Justice Antonin Scalia), but Congress terminated the statute in 1999, replacing it with the Office of Special Counsel in the Department of Justice.

As to presidential impeachment, Nixon’s legacy was honored in the breach the next time a President became vulnerable to impeachment. The bitter controversy over impeaching

President Bill Clinton in 1998-1999 led to the first presidential impeachment trial in over 130 years, but in the House and Senate debates, only dissenting Democrats defending the President addressed the definition of impeachable offenses, a focus of the Nixon impeachment debates.

Turning from the constitutional dimension of Nixon’s significance to the more general question of how we should remember him, we find three strands of revisionist scholarship:

The first strand argues, with more heat than substance, that Nixon was an innocent victim set up by an array of villains – usually within the federal intelligence agencies, but sometimes including John Dean, as well as his traditional enemies among the liberal elites.

The second strand argues, with slightly more substance, that Nixon was wrongly singled out for vilification, as many of his predecessors in the Presidency (both Democrats and


Republicans) did many of the same things that he did without having to answer for them. On this theory, their previous misdeeds excuse Nixon’s. Most historians would answer that no other president did so many of these things and that no other president’s misdeeds formed so clear a pattern of presidential misconduct distorting constitutional governance.

The third strand is by far the most interesting. The historian Joan Hoff distills this strand in one sentence from her challenging study Nixon Reconsidered

: “There is more to Nixon than

Watergate and there is more to Watergate than Nixon.” Hoff argues that we must understand

Nixon’s presidency by reference to its domestic and foreign policies as well as his misdeeds, and further that we must understand those misdeeds in the context of the acts of previous and subsequent Presidents. Hoff’s point is not to excuse Nixon but rather to highlight that his offenses fit within a larger story of executive abuse of power that has largely escaped exposure and punishment. Instead of excusing Nixon, we should cast a more critical eye on his predecessors and successors. In this context, Hoff suggests, those claiming that Nixon’s fall from power proved that the system worked misled themselves and the people into believing that

Nixon’s resignation ended the threat to constitutional government and the rule of law.

With regard to Hoff’s arguments, one ironical political consequence of Nixon’s presidency is that, although his contemporaries saw him as a conservative Republican, in retrospect he and his successor, Gerald R. Ford, were the last moderate Republican Presidents.

Nixon may have helped to discredit liberal and moderate Republicanism and thus to pave the way for the hard-right conservatism launched by Ronald Reagan and continued by George H. W.

Bush and George W. Bush. The Republican Party recovered from the debacle of Watergate by embracing a mixed political and constitutional philosophy at once consistent with Nixon’s (in its


favoring of executive authority when held by Republican presidents) and at odds with it (by radically downsizing the federal government).

The final words on Nixon’s presidency ought to come from Nixon himself. In his last interview with David Frost, he said, “I gave 'em a sword. And they stuck it in, and they twisted it with relish. And I guess if I had been in their position, I'd have done the same thing.” He added,

“I let down my friends. I let down the country. I let down our system of government, and the dreams of all those young people that ought to get into government, but now think it too corrupt.

Yep. I let the American people down, and I have to carry that burden with me the rest of my life.” Even before that remarkable admission, the closest thing to an apology that he ever gave,

Nixon said something even more revealing of himself and of his perception of why his presidency imploded. On his last morning as president, he addressed a farewell gathering of his staff in the White House. He concluded his emotional speech by exhorting them not to give up on public service and warning them of a danger that he himself did not escape: “Always give your best, never get discouraged, never be petty; always remember, others may hate you, but those who hate you don't win unless you hate them. And then you destroy yourself.”


The Constiutional Ordeal of Richard Nixon

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