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In an address to the nation on April 29, 1974, President Richard Nixon explains why he will not be turning over additional subpoenaed tapes in the Watergate trial but will instead provide transcripts of the recordings.
Inside the Supreme Court ruling that made Nixon turn over his Watergate tapes
The Supreme Court case hinged on to what extent a president could withhold information from other government branches in the name of privacy, and the stakes for then-President Richard M. Nixon were high.
Seven of Nixon’s closest confidants had been indicted in the Watergate scandal, and the special prosecutor investigating the matter wanted audio recordings of some of the president’s phone conversations from the Oval Office. Nixon claimed executive privilege protected him, and he refused to release the tapes.
“Many people assume that the tapes must incriminate the president, or that otherwise, he would not insist on their privacy,” Nixon said in a speech in April 1974. “But the problem I confronted was this: Unless a president can protect the privacy of the advice he gets, he cannot get the advice he needs.”
The nation’s highest court found that argument inadequate. Speaking to a packed and hushed courtroom on July 24, 1974, Chief Justice Warren E. Burger delivered a 16-minute judgment that Nixon must comply with a trial subpoena for the recordings “forthwith,” The Washington Post reported at the time.
The historic judgment that U.S. presidents do not hold unchecked power to declare executive privilege set a precedent that courts would consider in evaluating whether President Trump could shield his own communications from external scrutiny amid an impeachment inquiry.
Although White House phone calls like the now-famous one between Trump and the Ukrainian president are no longer recorded, House Democrats said Wednesday they planned to subpoena documents related to the conversation. Rep. Elijah E. Cummings (D-Md.) wrote in a memo that the “White House’s flagrant disregard of multiple voluntary requests for documents” made it necessary for him to issue a subpoena. Trump has called the impeachment inquiry a “scam” and wrote that he is “coming to the conclusion that what is taking place is not an impeachment, it is a COUP.”
Texts of House Panel Memorandums on Subpoena to Nixon on Watergate Data
WASHINGTON, April 11—Following is the text of a memorandum presented today to the House Judiciary Committee by counsel outlining the legal and historical precedents for the subpoena to President Nixon for documents in the Watergate case:
The Constittion vests in the House of Representatives the sole power of impeachment(1). Implicit in the power to impeach are the power to inquire and the power to compel the giving of evidence. The full investigative power of the House has been delegated to the Committee on the Judiciary by H. Res. 803, adopted Feb. 6, 1974.
Because the impeachment power of the House is “the most undebatable express power from which to deduce an implied investigatory power,” the House's authority to make impeachment inquiries “has been asserted from the first, and . has never been judicially questioned”(2). Indeed, the Supreme Court has contrasted the broad scope of the inquiry power of the House in impeachment proceedings with its more confined scope in legislative investigations(3). From the beginning of the Federal Government, Presidents have stated that in an impeachment inquiry the Executive Branch could be required to produce papers that it might with‐hold in a legislative investigation(4).
The power to inquire necessarily implies the further power to compel the production of testimonial and other evidence, to enforce compliance with a subpoena, and to punish noncompliance.(5) This memorandum discusses the alternative methods that are available to the House for this purpose.
Each of these methods presents problems, especially in the case of a subpoena duces tecum directed to the President. If the President refuses to comply, the practical difficulties of enforcing the subpoena may well be insurmountable, and for this reason this memorandum also raises the possibility that factual inferences may be drawn from presidential noncompliance with a subpoena or that noncompliance may itself be a ground for impeachment.
At the outset, it should be noted that the question of whether a subpoena duces tecum should issue to the President is separate from the question of the method of enforcement or the effect of noncompliance. The principle was stated early in our history, and reaffirmed only recently, that the lack of physical power to enforce process against a President is no reason why the process should not issue.(6)
It should not be presumed that rejection of a request for the production of evidence will be followed by disobedience of a subpoena, should one be issued. The President's legal position would be altered by service of a subpoena. Although the committee's request letters to the President's counsel specifically identified the materials to be produced and clearly expressed the will of the House acting through the committee, they do not have the legal effect of a subpoena. There is every reason to assume that the President would comply with a subpoena, lawfully issued by the committee for the purpose of its inquiry.(7)
From the outset the goal of the committee and its staff has been to obtain the materials it has requested. If the President complies with a subpoena and produces the materials the committee seeks, the committee and the House will be in a better position to evaluate fully and on the merits whether or not grounds for impeachment exist. Such an evaluation is preferable to one based on incomplete evidence or partly on the President's refusal to produce further evidence the committee considers necessary for its inquiry.
II. DIRECT ENFORCEMENT THROUGH THE PROCESSES OF THE HOUSE
The House has the power to hold in contempt a person who has disobeyed its subpoena. (1) The usual practice is for the committee that issued the subpoena to report the disobedience to the House, setting forth the circumstances of the refusal and recommending the adoption of a contempt resolution or order. (2) The full House votes to require the arraignment of the contumacious witness before the bar of the House. If he does not satisfy the House that his refusal to testify or to produce papers was justified, or that by compliance he has purged himself of his contempt, he may be adjudged in contempt of the House, and by order or resolution of the House he may be incarcerated for a period not lasting beyond the term of the House of Representatives that imprisoned him. (3) Alternatively, it would appear that the House may merely reprimand or censure him without directing his further imprisonment. (4)
In the exceptional circumstances of a President's failure to comply with subpoena, the House may prefer to request the President to appear in person or through counsel at the bar of the House to show cause why he should not be found in contempt, rather than pursuing the more usual arrest and arraignment procedure.
The House has a considerable degree of discretion in the procedures by which it chooses to conduct a contempt proceeding. Not all the procedures used in a court trial are required, (5) although fundamental fairness is, and the courts will presume the regularity of Congressional proceedings unless there is a manifest abuse of discretion. (6)
The courts have been reluctant to intervene to quash a Congressional investigative subpoena at the insistence of the subpoenaed party. (7) A fortiori, that should be true respecting a subpoena issued in an impeachment inquiry. (8) However, an arrested witness may file a petition for a writ of habeas corpus in the appropriate Federal court. The function of a court in such a case is limited to determining whether the action of the House of Congress was within its jurisdiction, and does not extend to adjudicating the guilt or innocence of the contemnor. (9)
III. ENFORCEMENT THROUGH THE JUDICIAL PROCESS
Because the powers of impeaching and removing Federal officers are vested by the Constitution exclusively in the Congress, it may be thought inappropriate to seek the aid of the judicial branch in exercising these powers.(1) Moreover, as a practical matter, the courts have no means to enforce compliance with process in a Presidential impeachment inquiry that are not also available to the House itself through its own procedures.
The usual mode of enforcement of Congressional subpoenas is fir Congress to refer contempts to the appropriate U.S. Attorney for criminal prosecution under 2 U.S.C. §§ 192 and 194. Those statutes provide for a fine of from $100 to $1000 and imprisonment of from to 12 months upon conviction.
The advantages of this statutory procedure are that it does not require contempt hearing on the floor of the House and that the penalty of imprisonment may extend beyond confinement during the term of the present House. Criminal proceedings, however, would pose a number of problems for this inquiry, including delay, the uncertainty of relying upon the executive branch to prosecute the Chief Executive, and doubt whether an incumbent President may be prosecuted for a criminal offense before his impeachment and removal from office.
A civil proceeding to compel compliance by the President might lie under 28 U.S.C. Sec. 1361, conferring jurisdiction on the Federal district courts to hear “any action in the nature of mandamus, to compel an officer or employe of the United States or any agency thereof to perform a duty owed to the plaintiff.”(2) Under the mandamus statute, however, the concept of “duty” is quite limited and technical. It might be argued that the obligation to obey, a subpoena does not fall within the statutory definition,(3) leading to delay while that threshold jurisdictional issue was litigated.
While civil proceedings might be brought under other existing statutes, they may also raise jurisdictional issues.(4) Legislation was recently enacted expressly vesting jurisdiction in the district court, to hear an action brought by the Senate Select Committee on Presidential Campaign Activities to compel compliance with its subpoenas.(5) Similarly, new legislation probably could resolve other litigation difficulties. Consideration should be given, however, to the time required for the passage of legislation, the possibility of a Presidential veto and consequent necessity for a vote to override,(6) as well as to potential delays encountered routinely in litigation and enforcement problems once a court order is obtained.
IV. NONCOMPLIANCE AND THE IMPEACHMENT INQUIRY
Realistically, the President probably cannot be compelled to Comply with a subpoena duces tecum by use of the processes of either the House or the courts. Rather than being considered solely in terms of the availability of coercive means of enforcement, however, noncompliance may also be addressed in terms of its effect in the impeachment proceeding itself. This question is one of first impression. There is no direct precedent, and what little material exists from past impeachment inquiries is of limited usefulness.(1)
In determining what effect should be given to noncompliance, the committee would have to consider the degree of noncompliance and any stated reasons for it, including any claims of privilege. Noncompliance by the President with a subpoena issued by the committee could be taken into account in the impeachment inquiry in two ways:
First, under some circumstances an inference negative to the President might be drawn from his refusal to produce materials sought by the committee. In litigation generally, an unjustified refusal to produce evidence within the control of a party “permits the inference that its tenor is unfavorable to the party's cause.”(2) and the same principle might be deemed applicable in an impeachment proceeding.
Second, unjustified noncompliance might be considered independently in determining whether sufficient grounds exist for impeachment of the President. For example, contempt of the House arising from such noncompliance is prosecutable as a federal crime. And unjustified disobedience of a subpoena issued by a committee exercising the sole power of impeachment would be an action in derogation of the authority explicitly vested by the Constitution in the House of Representatives.
Following is the text of a memorandum by the House Judiciary Committee staff stating the relevance of the material subpoenaed for the impeachment inquiry:
Memorandum to Committee on the Judiciary Respecting Conversations Requested on Feb. 25, 1974
The following sets forth the facts and bases underlying the requests for the conversations specified in the letter of Feb. 25, 1974, from Mr. Doar to Mr. St. Clair:
Conversations between the President and Mr. Haldeman on or about Feb. 20, 1973, that concern the possible appointment of Mr. Magruder to a Government position.
Jeb Magruder was deputy director of the Committee to Re‐elect the President and participated in meetings at which ??
Mr. Haldeman testified that at the time he received the agenda he had already told Magruder that a White House job would not be possible “but I think the point here was to check that decision with the President to be sure he concurred.” (Haldeman, 7 SSC p. 2891). In March, 1973, Mr. Magruder was appointed to a $36,000 a year government post which did not require Senate confirmation (Magruder, 2 SSC p. 831 Haldeman, 7 SSC p. 2887).
Conversations between the President, Mr. Haldeman and Mr. Ehrlichman on or about Feb. 27, 1973, that concern the assignment of Mr. Dean to work directly with the President on Watergate and Watergate‐related matters.
Both Mr. Haldeman and Mr. Ehrlichman have testified that the President decided toward the end of February, 1973, that Mr. Dean would work directly with the President on Watergate‐related matters and that his decision was discussed with them (Ehrlichman, 7 SSC p. 2739 Haldeman, 7 SSC p. 2891). Mr. Dean has testified that when he met with the President on Feb. 27, 1973, the President told him that Watergate “was taking too much time from Haldeman's and Ehrlichman's normal duties and . they were principals in the matter, and I, therefore, could be more objective than they. (Dean, 3 SSC p. 991)
Conversations between the President and Mr. Dean on March 17, 1973, from 125 to 2:10 P.M. and March 20, 1973, from 7:29 to 7:43 P.M.
The president has stated that he first learned at this meeting of the break‐in of the office of Daniel Ellsberg's psychiatrist which the White House Special Investigation Unit committed in September, 1971 (President's Statement Aug, 15, 1973, Pres. Doc. p. 993).
The White House has also stated that Mr. Dean told the President on this date that no White House aides were involved in the Watergate burglary except possibly Mr. Strachan and that the President suggested that Mr. Dean, Mr. Haldeman and Mr. Ehrlichman testify before the Senate Select Committee (Exhibit 70‐A, 4 SSC p. 1798—Memorandum of Substance of Dean's Calls and Meetings With the President).
The White House has said that in the course of this phone call from the President to Mr. Dean, Mr. Dean stated that there was not a “scintilla of evidence of White House involvement” in Watergate (Exhibit 70‐A, 4 SSC. p. 1798 —Memorandum of Substance of Dean's Calls and Meetings with the President). President Nixon confirmed this statement (President's News Conference Aug. 22, 1972, Pres. Doc. p. 1019). Mr. Dean has testified that during this call he scheduled a meeting with the President to discuss the facts of Watergate and the obstruction of the Watergate investigation (Dean, 3 SSC p. 997‐98).
Conversations between the President and Mr. Ehrlichman on March 27, 1973, from 11:10 A.M. to 1:30 P.M. and on March 30, 1973 from 12:02 to 12:18 P.M.
Mr. Ehrlichman has testified that on March 27, 1973, he met with the President and discussed White House involvement in the break‐in at the Democratic National Committee Headquarters (Ehrlichman, 7 SSC p. 2747). Mr. Ehrlichman has testified that the President instructed him to inform Attorney General Kleindienst that the President had no information that Mr. Ehrlichman, Mr. Colson, Mr. Dean, Mr. Haldeman or any other White House staff had any prior knowledge of the Watergate burglary (Ehrlichman, 7 SSC p. 2740‐49 Exhibit 99 p. 2944‐45). Mr. Ehrlichman has also testified that the President asked him to inquire of the Attorney General about the procedures for granting immunity (Ehrlichman 7 SSC p. 2750)
The President has said that after Mr. Dean's disclosures of March 21 he ordered new investigations. (President's Statements April 17, 1973, Pres. Doc. p. 387 President's Statement April 30, 1973, Pres. Doc. p. 434 President's Statement Aug. 15, 1973, Pres. Doc. p. 993). The President has stated that on this date the President asked Mr. Ehrlichman to take over that investigation from Mr. Dean (President's Statement Aug. 15, 1973, Pres. Doc. p. 993 Ehrlichman, 7 SSC p. 2747).
All conversations between the President and Mr. Haldeman and the President and Mr. Ehrlichman from April 14 through 17, 1973, inclusive.
All conversations between the President and Mr. Kleindienst and the President and Mr. Peterson from April 15 through 18, 1973, inclusive.
(a) April 14, 1973
The President's records indicate that the following, meetings and telephone conversations took place between the President and Mr. Haldeman and the President and Mr: Ehrlichman on April 14, 1973:
8:55–11:31 A.M. Meeting between the President and Mr. Ehrlichran in the President's EOB office. (The President's daily diary shows that Mr. Haldeman was present from 9:00 to 11:30 A.M.)
1:55–2:131 P.M. Meeting between the President and Mr. Haldeman.
2:24–3:55 P.M. Meeting among the President, Mr. Ehrlichman and Mr. Haldeman in the Oval Office.
5:15–6:45 P.M. Meeting among the President, Mr. Ehrlichman and Mr. Haldeman in the President's EOB office.
11:02–11:15 P.M. Telephone conversation between the President and Mr. Haldeman.
11:22–11:53 P.M. Telephone conversation between the President and Mr. Ehrlichman.
The President has stated that it was on April 14 that Mr. Ehrlichman reported to him the results of the inquiry of the Watergate matter which the President, on March 30, 1973, ordered Mr. Ehrlichman to conduct (President's Statement Aug. 15, 1973, Pres. Doc. p. 993). Mr. Ehrlichman testified that he informed the President that Messrs. Dean, Magruder and Mitchell were involved in the planning of the Watergate break‐in (Ehrlichman, 7 SSC p. 2755, 2757–58, 2737 SSC Ex. 98 at p. 2915–43). The President, according to Mr. Ehrlichman, ordered that the information be turned over to Mr. Kleindienst (Ehrlichman, 7 SSC p. 2758).
It was on April 14 that Mr. Magruder informed Mr. Ehrlichman that he was giving the prosecutors new information with respect to the Watergate break‐in and its aftermath. (Magruder, 2 SSC p. 808 Ehrlichman, 7 SSC p. 2765–66). Mr. Ehrlichman and Mr. Haldeman knew that Mr. Dean already had been talking to the prosecutors and on April 14 Mr. Dean told them that Mr. Ehrlichman and Mr. Haldeman were targets of the grand jury investigation (Dean, 3 SSC p. 1014). Thus, when Mr. Ehrlichman telephoned Mr. Kleindienst on the evening of April 14 and was advised by the Attorney General to turn over all information to the Department of Justice to avoid being charged with obstruction of justice, Mr. Ehrlichman stated that “it doesn't really make any difference anymore” since Mr. Dean and Mr. Magruder were talking to the prosecutors (Kleindienst, 9 SSC p. 3577).
(b) April 15, 1973
The President's records indicate that the following meetings and telephone conversations took place among the President, Mr. Haldeman, Mr. Ehrlichman, Mr. Kleindienst and Mr. Petersen:
10:13–10:15 A.M. Telephone conversa tion between the President and Mr. Kleindienst.
10:35–11:15 A.M. Meeting between the President and Mr. Ehrlichman.
1:17–2:22 P.M. Meeting between the President and Mr. Kleindienst.
2:24–3:30 P.M. Meeting between the President and Mr. Ehrlichman.
3:27–3:44 P.M. Telephone conversation between the President and Mr. Haldeman.
3:48–3:49 P.M. Telephone conversation between the President and Mr. Kleindienst.
4:00–5:15 P.M. Meeting among the Président, Mr. Kleindienst and Mr. Petersen.
7:50–9:15 P.M. Meeting among the President, Mr. Haldeman and Mr. Ehrlichman.
8:14–8:18 P.M. Telephone conversation between the President and Mr. Petersen.
8:25–8:26 P.M. Telephone conversation between the President and Mr. Petersen.
9:39–9:41 P.M. Telephone conversation between the President and Mr. Petersen.
10:16–11:15 P.M. Meeting among the President, Mr. Ehrlichman and Mr. Haldeman.
11:45–11:53 P.M. Telephone conversation between the President and Mr. Petersen.
It was on April 15 that Mr. Kleindienst and Mr. Petersen directly brought to the attention of the President the new information which was being conveyed in the prosecution of Mr. Dean and Mr. Mugruder. (President's Statement Aug. 15, 1973. Pres. Doc. p. 993). April 15 was also the date on which the President, beginning at 9:17 P.M., had an important conversation with Mr. Dean that the President has stated was not recorded because the tape had run out (President's Statement Nov. 12, 1973, Pres. Doc. p. 1330 President's News Conference Nov. 17, 1973, Pres. Doc. p. 1346–47). According to Mr. Dean the President stated at that conversation that he was joking when he said earlier that it would be no problem to raise $1,000,000 (Dean, 3 SSC p. 1016). Following the conversation with Mr. Dean the President had a meeting with Mr. Ehrlichman and Mr. Haldeman at which Mr. Ehrlichman called Mr. Gray with respect to what happened to documents from Mr. Hunt's safe which were given to Mr. Gray in June, 1972. Mr. Gray informed Mr. Ehrlichman that the documents were destroyed (Ehrlichman, 7 SSC p. 2675–76).
As the listing of conversations indicates, immediately following each of his various conversations with Mr. Kleindienst or Mr. Petersen, the President had conversations, some of which were quite lengthy, with Mr. Haldeman or Mr. Ehrlichman or both. It was on April 15 that Mr. Petersen suggested to the President that Mr. Haldeman and Mr. Ehrlichman be fired (Petersen, 9 SSC p. 1628–29). The President stated that he owed an obligation of fairness to Mr. Haldeman and Mr. Ehrlichman (Petersen, 9 SSC p. 3628).
(c) April 16, 1973
The President's records indicate that the following meetings and telephone conversations took place among the President, Mr. Haldeman, Mr. Ehrlichman, Mr. Kleindienst and Mr. Petersen: 12:08–12:23 A.M. Telephone conversation between the President and Mr. HaIdeman.
8:18–8:22 A.M. Telephone conversation between the President and Mr. Ehrlichman.
9:50–9:59 A.M. Meeting among the President, Mr. Haldeman and Mr. Ehrlichman.
10:50–11:04 A.M. Meeting among the President, Mr. Haldeman and Mr. Ehrlichman.
12:00–12:31 P.M. Meeting among the President, Mr. Ehrlichman and Mr. Haldeman.
1:39–3:25 P.M. Meeting between the President and Mr. Petersen (Mr. Ziegler present from 2:25–2:52 P.M.)
3:27–4:02 P.M. Meeting between the President and Mr. Ehrlichman (Mr. Ziegler present from 3:35–4:04 P.M.)
8:58–9:14 P.M. Telephone conversation between the President and Mr. Petersen.
9:27–9:49 P.M. Telephone conversation between the President and Mr. Ehrlichman.
On April 16, according to Mr. Dean's testimony, the President asked Mr. Dean to sign a letter of resignation, but Mr. Dean said he would not resign unless Mr. Ehrlichman and Mr. Haldeman also resigned (Dean, 3 SSC p. 1017–1018). The President had further discussions with Mr. Petersen about the prosecutor's evidence of Mr. Haldeman and Mr. Ehrlich.. man's possible involvement in the Watergate matter and the possibility of granting immunity to Mr. Dean (Petersen, 9 SSC p. 3634 President's Statement April 17, 1973 Pres. Doc p. 387). Again, prior to and subsequent to his conversations with Mr. Dean and Mr. Petersen the President had a number of conversations with Mr. Ehrlichman and Mr. Haldeman.
(d) April 17, 1973
The President's records indicate that the following meetings and telephone conversations took place among the President, Mr. Haldeman, Mr. Ehrlichman, Mr. Kleh lienst and Mr. Petersen:
9:47–9:59 A.M. Meeting between the President and Mr. Haldeman
12:35–2:30 P.M, Meeting among the President, Mr. Haldeman and Mr. Ehrlichman (Mr. Ziegler present from 2:10 to 2:17 P.M.)
2:39–2:40 P.M. Telephone conversation between the President and Mr. Ehrlichman
2:46–3:49 P.M. Meeting between the President and Mr. Petersen
3:50–4:35 P.M. Meeting among the President, Mr. Haldeman and Mr. Ehrlichman
5:50–7:14 P.M. Meeting among the President, Mr. Haldeman and Mr. Ehrlichman (Mr. Rogers present from 5:20—6:19 P.M.)
On April 17 the President issued statement that there were “major developments” in the Watergate case and that “real progress has been made on finding the truth.” The President also stated that “no individual holding, in the past or at present, a position of major importance in the Administration should be given immunity from prosecution.” (Pres. Doc. p. 387) Mr. Dean has testified that by the “no immunity” provision in the April 17 statement, the President was “quite obviously trying to affect any discussion I was having with the Government regarding my testimony.” Mr. Dean has stated that Mr. Garment, another Presidential Assistant, believed that the “no immunity” provision was inserted into the President's statement by Mr. Ehrlichman (Dean, SSC p. 1020).
Also, on April 17, the pattern of the previous few days is repeated in that prior to and subsequent to conversations between the President and Mr. Petersen there are numerous conversations between the President and Mr. Haldeman and the President and Mr. Ehrlichman.
(e) April 18, 1973
The President's records indicate that the following meetings and telephone conversations took place between the President and Mr. Petersen:
2:50–2:56 P.M. Telephone conversation between the President and Mr. Petersen.
6:20–6:37 P.M. Telephone conversation between the President and Mr. Petersen.
On April 18, the President learned from Mr. Peterson that Mr. Dean had informed the prosecutors of the breakin by Messrs. Hunt and Liddy of the office of Dr. Fielding, Daniel Ellsberg's psychiatrist. (President's News Conference, Aug. 22, 1973, Pres. Doc. p. 1020 Petersen, 9 SSC p. 3631). There was also a continuation of the discussion respecting possible immunity for Mr. Dean during which the President said he had a tape to prove that Mr. Dean had Void the President he had received immunity (Petersen, 9 SSC p. 3630. 3654–56). With respect to the Fielding break‐in the President has stated that he first learned of it on March 17, 1973, and that on April 18 he instructed Mr. Petersen to stay out of the matter because it involved national security.
In calling for the above conversations the committee is seeking to determine:
Whether any of the conversations in any way bear upon the knowledge or lack of knowledge of, or action or inaction by the President and/or any of his senior Administration officials with respect to, the investigation of the Watergate break‐in by the Department of Justice, the Senate Select Committee, or any other Iegislative, judicial, executive or administrative body, including members of the White House staff
Whether any of the conversations in any way bear upon the President's knowledge or lack of knowledge of, or participation or lack of participation in, the acts of obstruction of justice and conspiracy charged or otherwise referred to in the indictments returned on March 1 in the District Court of Columbia in the case of U.S. v. Haldeman, et al. and
Whether any of the conversations in any way bear upon the President's knowledge or lack of knowledge of, or participation or lack of participation in, the acts charged or otherwise referred to in the informations or indictments returned in the District Court for the District of Columbia in the cases of U. S. v. Magruder, U. S. v. Dean, U. S. v. Chapin and U. S. v. Ehrlichman, or other acts which may constitute illegal activities.
(2) Dimock, “Congressional Investigating or Committees” 98, 120 (1929).
(3) Kilbourn V. Thompson, 103 U.S. 168, 193 (1883). “If, indeed, any purpose had been avowed to impeach the Secretary” of the Navy, the Court said, “the whole aspect of the case would have been changed.” See also Barry v. U.S. ex rel Cunningham, 279 U.S. 587, 616 (existence of broad Inquiry power applicable “a fortiori” when House or Senate exercising special, functions, as in impeaching, judging qualifications of Members, etc.).
In Senate Select Committee on Presidential Campaign Activities v. Nixon. F.Supp. . (D.D.C., 1974), the District Court for the District of Columbia declined to order President Nixon to produce materials in response to a Congressional subpoem in aid of a legislative investigation, but stated that “Congressional demands, if they be forthcoming, for tapes in furtherante of the more juridical constitutional process of impeachment would present wholly different considerations.” (Slip Opinion, Feb. 8, 1974, at 5).
(4) To cite a few examples of Presidential statements, in 1796 the House requested President Washington to furnish his secret Instructions to John Jay concerning the negotiations of a treaty with England, apparently basing its request on the theory that it would be necessary for the House to appropriate funds to implement the treaty. Although he gave the Senate the papers a because of its constitutional duty to ratify or reject treaties, Washington refused the House request on the ground that “the inspection of the papers asked for” could not “be relative to any purpose under the cognizance of the House . except that of impeachment, which [purpose] the resolution [of the House] has not expressed.” The plain implication was that if the House request had been made pursuant to an impeachment inquiry, Washington would have honored it. I. J. Richardson, “Messages and Papers of the Presidents” 187 (1897).
Similarly, President Polk, while resisting disclosure of certain information, said that in an impeachment inquiry “all the archives and papers of the Executive Department, public or private, would be subject to inspection and control of a committee of [the House] and every facility in the power of the Executive be afforded to enable them to prosecute the investigation.” He “cheerfully admitted” that the House, in an impeachment proceeding, could “investigate the conduct of all public officers under the government” and that the power of the House in the pursuit of this object would penetrate into themost secret recesses of the Executive Departments. It could command the attendance of any and every agent of the government, and compel them to produce all papers, public or private, official or unofficial, and to testify on oath to tell all facts within their knowledge. [4 Id., 434–435]
John Quincy Adams, while a member of the House after his term as President, was of the opinion that the House's inquiry power was broader in an impeachment investigation than otherwise. See Landis, “Constitutional Limitations on the Congressional Power of Investigation,” 40 Harv. L. Rev. 155, 180 (1926).
(5) McCrain v. Daugherty, 273 U.S. 135, 167 (1927) Jurney v MacCracken, 294 U.S. 125, 151 (1935).
(6) See United States v. Burr, 25 Fed. Cas. 30 and 190 (1807) (Chief Justice Marshall sitting on circuit) Nixon v. Silica, 487 F.2d 700, (D.C. Cir. 1973) NTEU'v. Nixon, . F.2d . (D.C. Cir. Jan. 1974) cf. Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952) Kendall v. United States, 37 U.S. (12 Pet.) 524 (1838). In Nixon v. Sirica the Court of Appeals stated that “[i]t is clear that the want of physical power to enforce its judgments does not prevent a court from deciding an otherwise justiciable case.”
(7) The President's ultimate response to the subpoena issued by the District Court for the District of Columbia on behalf of the “Watergate” grand jury would lead to the conclusion that the President will obey a lawful subpoena. Following the decision of the Court of Appeals that the President had a legal duly to comply with the grand jury, subpoena, he did so. The President's counsel at the time said in an interview following his appearance in court:
Now, the President, I am certain, has never at any time had in mind any thought of defying the courts. [A]s the President has always done, he obeys the law he will abide by a definitive decision. [I]f the thought were abroad in the land that the President was not complying with court orders, if a constitutional crisis persisted, then a wound that has hurt the American country deeply would have continued to drain. We wanted to cure that, and so the President this morning, about noon . authorized us to make the announcement that we did [that the subpoenaed materials would be delivered to the court].
We will comply in every particular with the order of the District Court as it was modified by the Court of Appeals.
“Weekly Compilation of Presidential Documents,” Oct. 29, 1973. Vol. 9, No. 43, at 1278.
Only a few days ago the President announced he had complied with another subpoena issued at the request of the special prosecutor, without challenging it in court.
II. DIRECT ENFORCEMENT THROUGH THE PROCESSES OF THE HOUSE
(1) The House also presumably has the power, through its sergeant‐at‐arms, to seize the evidence requested by its subpoena for production at the bar of the House. See Barry v. United States ex rel Cunningham, 279 U.S. 597, 610 (1929). The practical difficulties of this procedure are obvious.
(2) See Rules of the House of Representatives, Rule XI(1) 3 Hinds, “Precedents of the House of Representatives” 11 1667, 1669, 1670, 1671, 1695, 1696, 1701.
(3) In Kilbourn v. Thompson, 103 U.S. 168, 190 (1880), the Supreme Court intimated that the House might also impose other civil sanctions (such as a fine) to compel obedience to its subpoena.
(4) See 3 Hinds 11 1606, 1625.
(5) Groppi v. Leslie, 404 U.S. 496, 500‐502 (1972).
(6) Barry v. United States ex rel Cunningham, 279 U.S. 597, 611, 619‐620 (1929) Marshall v. Gordon, 243 U.S. 521, 545 (1917).
(7) See Mins v. McCarthy, 209 F.2d 307 (D.C. Cir., 1953) Fischler v. McCarthy, 117 F. Supp. 643 (S.D. N.Y.). But see United States Servicemen's Fund v. Eastland, 488 F.2d 1252 (D.C. Cir. 1973).
(8) See Part 1, note 3 supra.
(9) Jurney v. McCracken, 294 U.S. 125,152 (1935) Stewart v. Blaine 1 MacArthur 457 (D.C. Sup. Ct., 1873), 3 Hinds § 1713.
III. ENFORCEMENT THROUGH THE JUDICIAL PROCESS
(1) C f. Kilbourn v. Thompson, 103 U.S. 168, 190 (1880). The framers of the Constitution explicitly denied the judiciary a role in impeachment, vesting the totality of the impeachment power in the legislative branch alone. 2 The Records of the Federal Convention, 551‐553 (M. Farrand ed. 1911). See also Ritter v. United States, 84 Ct. Cl. 293 (1936), cert. denied 300 U.S. 668 (1937) (conviction by the Senate after impeachment not subject to judicial review).
(2) In NTEU v. Nixon, F. 2d (1974), the Court of Appeals held that it had jurisdiction under the mandamus statute to order the President to put into effect a statutory civil service pay increase. It withheld issuance of the writ of mandamus, however, and directed the district court to issue a declaratory judgment instead, in the expectation the President would comply. The White House thereafter announced it would comply and would not seek further review.
(3) Compare Senate Select Committee v. Nixon, F. Supp. (D.D.C. 1973), remanded for reconsideration F. 2d (D.C. Cir. 1973), with NTEU v. Nixon, F. 2d (D.C. Cir. 1974). should be noted, however, that the Senate Select Committee decision respecting whether the President had a “duty” (as that term is used in the mandamus statute) to honor a Senate subpoena might well be inapplicable to a subpoena issued by this Committee in an impeachment proceeding.
(4) A suit to compel production of evidence might also be brought under the “Federal question” jurisdictional statute, 28 U.S.C. Sec. 1331. However, a serious problem might be encountered in satisfying the $10,000 minimum “amount in Controversy” required under that section.
Other potential civil remedies include petition for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and a proceeding under the Administrative Procedure Act, 5 U.S.C. §§ 701–706. However, it is doubtful whether the Declaratory Judgment Act creates anything more than an additional remedy for a claim for relief derived from some other source, and it is clear that it does not expand the subject matter jurisdiction of the district courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937) compare Senate Select Committee v. Sirica, supra.
The same jurisdictional problem may he presented in an action based on the Administrative Procedure Act, and there may be other questions as well concerning the substantive applicability of that Act to this situation. Compare Senate Select Committee v. Nixon, supra.
(6) It should be noted, however, that the President permitted the Senate Select Committee bill to become law.
IV. NONCOMPLIANCE AND THE IMPEACHMENT INQUIRY
(1) Article X of the articles of impeachment voted by the House against Andrew Johnson alleged that, by making speeches highly critical of Congress, Johnson “did attempt to bring into disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States and the several branches thereof,” charging this to be a high misdemeanor. Cong. Globe, 40th Cong., 2d Sess. 1638‐39 (1868). It may be doubted, however, whether this charge (which was never voted upon by the Senate) involved a true contempt. See Marshall v. Gordon, 243 U.S. 521 (1917).
In 1879, the Committee on Expenditures in the State Department reported articles of impeachment against George Seward, former consul‐general at Shanghai, including charge that Seward had concealed and refused to deliver up certain records. H.R. Rep. No. 134, 45th Cong., 3d Sess., at (1879). The House adjourned without voting on the Seward impeachment the Judiciary Committee, to which was referred the question of whether Seward should be held in contempt for his refusal to produce books and papers, recommended against contempt primarily on the ground that Seward had validly claimed his Fifth Amendment privilege against self‐incrimination. H.R. Rep. No. 141, 45th Cong., 3d Sess. (1879).
One policy issue suggested by these two cases—though not directly addressed by them—is whether the officer should be formally adjudged in contempt of the House before consideration of his conduct in the impeachment proceedings.
When Congress won the American people’s respect: Watergate
Those of us who make our livings trying to improve the state of American politics must constantly strike a balance between realism and hopefulness. There are a lot of good reasons to get discouraged, and there is no honor in shutting them out by sticking your head in the sand. At the same time, I instinctively rebel against pieces that declare that nothing that can be done will make any important difference (e.g., Dylan Matthews’ most recent piece at Vox  ). An above-it-all fatalism that resigns itself to more of the same seems sophisticated, but history shows us that our institutions have found ways to shake themselves out of moments of weakness before, renewing themselves and reestablishing their legitimacy with the American public. To ready ourselves for such opportunities, we ought to draw some detailed lessons from those times when things went right in the past.
To that end, I made my way through historian Stanley Kutler’s massive tome, The Wars of Watergate  (1990), with an eye on what Congress did right during its long confrontation with President Richard Nixon, which for a time in the mid-1970s made Congress America’s preeminent political institution. Back in 2016, I speculated  that maybe a presidential scandal leading to a major confrontation with Congress could be just what our legislature needs to find its mojo. For such a scenario to do any good, I argued, the conflict would have to be framed in terms of important constitutional principles, citing the Watergate clash as one moment when Congress did a fair job of that. Here I offer a more detailed (if very far from comprehensive) overview of Congress’s actions.
Legislative-executive tensions before Watergate
By the time of Nixon’s first inauguration, in January 1969, tensions between Congress and the White House were already high. President Lyndon Johnson had alienated Congress through his bullying ways, his lack of candor surrounding the Gulf of Tonkin incident, and a spate of broken promises about the course of war in Vietnam. Nixon immediately renewed the conflict in his first term, clashing with Congress over executive branch reorganization, budget impoundment, Supreme Court appointments (with two failed nominations), and again over war in southeast Asia. Before the Watergate break-in ever took place, then, Nixon and Congress had developed a mutual contempt for each other. For Nixon this was personal, but he could also cast it as a matter of high constitutional theory: as the nation’s only nationally elected officer, Nixon argued that he had an ability to connect to the public (and especially its “silent majority”) better than anyone else. He took the Wilsonian understanding of the presidency and ran with it.
Congress did not take this passively. The Senate Judiciary Committee organized a dedicated subcommittee on the Separation of Powers in 1971, and its Subcommittee on Constitutional Rights made waves with a major investigation  into army spying in 1970-1971. Congress repealed the Gulf of Tonkin Resolution in June 1970, and in its June 1971 defense reauthorization bill it called for a termination of military operations in Indochina. All this set the stage for members of Congress to use the Watergate crisis as a means of constitutionally rehabilitating their branch, especially in terms of foreign policy powers.
Congress as Watergate investigator
On September 3, 1971, the White House “Plumbers” unit (so-named because they “plugged leaks”) broke into the office of Daniel Ellsberg’s psychiatrist, looking for material to discredit the leaker of the Pentagon Papers. On June 17, 1972, members of the plumbers were arrested breaking into the Democratic National Committee’s offices at the Watergate. The former action was unknown to the public, and the latter received less media attention than we might imagine when it first occurred, it was portrayed as low-grade political hijinks without any surpassing importance. Much as Nixon hated the press, national media were overwhelmingly supportive of his reelection campaign against George McGovern in 1972.
Congress first began investigating Watergate almost immediately after the break-in. Convinced that possible illegal bank transfers related to the burglary made the matter fair game for his House Banking and Currency Committee, Chairman Wright Patman (D-TX) initiated an inquiry that aggressively sought answers from the Committee to Reelect the President (CREEP). Republicans on the committee were uniformly hostile, as were some southern Democrats who disliked McGovern, emboldening CREEP’s finance chairman to reject the committee’s questions. Patman’s attempt to seek a subpoena issued by the full committee in October 1972 ended in failure, with a 15-20 vote. House minority leader Gerald Ford (R-MI) dismissed the committee’s attempts as “last-minute smear tactics.” Despite Patman’s best efforts, then, Watergate-as-scandal had little discernible impact in the 1972 election to the public, it appeared as so much partisan bickering. Still, Kutler argues that Patman’s efforts were an important beginning: “Patman’s pressure required that the cover-up be intensified and expanded, thus widening the chances for error and eventual exposure.” The materials gathered gave later investigators a running start.
Once the election passed, further investigations were not long in coming. On January 6, 1973, Senate Majority Leader Mike Mansfield (D-MT) called for the creation of a Senate Select Committee on Watergate. In hopes of avoiding the impression that this was some kind of liberal witch-hunt, he named Senator Sam Ervin (D-NC) as the committee’s chair. Ervin was known as a staunch conservative, and when he was first appointed he averred that it was “simply inconceivable” that Nixon had been personally involved with Watergate at all.
The seven-member committee (four Democrats and three Republicans) quickly established itself. Behind the scenes, it was territorial, developing rather prickly relationships with the U.S. Attorneys working on Watergate and, later, the staff of the special prosecutor’s office. Publicly, its staff was quite skilled at public relations, using television coverage to its advantage as it began to call its witnesses. It won some easy PR victories as it tangled with Nixon’s staffers and their attorneys. In one notable episode  , committee member Daniel Inouye (D-HI) responded to some of John Ehrlichman’s testimony by muttering “what a liar” into a hot mic, only to have Ehrlichman’s lawyer call him “that little Jap” during a recess a week later. Not surprisingly, the committee closed ranks, praising Inouye’s contributions on the committee (and as a decorated World War II veteran). Overall, the committee was perceived by the public as fact-oriented and as clearly more credible than the dissembling members of the administration.
That put Ervin in a good position to go toe-to-toe with Nixon over the question of how much could be withheld from the committee on grounds of executive privilege. Obviously, Ervin had practical and lawyerly reasons to engage that fight, needing access to files and testimony in order to establish the case that high-level members of the administration were directly responsible for the Watergate break-in and other “dirty tricks.” But Ervin also had a reputation as a stalwart champion of the Constitution, which allowed him to frame the debate in terms of high principles of democratic accountability and coequal branches of government. This man, who had been known as one of the ablest defenders of Jim Crow, was soon lionized in the New York Times  (recommended) and elsewhere as “the symbol of a wounded institution trying to recover its strength and its self-respect,” whose “native wit and accumulated hill-country charm have captivated the media, helped turn Ervin into a campus folk figure and caused all of Washington to listen for his antiphons every time the White House sings a new tune.”
Ervin was hardly the only one to highlight the constitutional stakes of Watergate, though. Senators William Fulbright (D-AR) and Robert Byrd (D-WV), neither on the Select Committee, took it upon themselves to become the Special Prosecutor’s protectors as the president’s ire grew. And Mansfield himself, generally mild-mannered in public, delivered a dramatic response to Nixon’s state of the union address in 1974 in which he warned  of “an ominous shift to one-branch government” and declared, “To excise Watergate and what it implies before it becomes fatal to liberty is a fundamental responsibility of this government.”
Members of the administration assumed, throughout, that staunch partisan Republicans would defend and protect them, painting the inquiry as a partisan affair and thereby limiting its political power. But two of the Republican members of the Select Committee turned out to be far from universally sympathetic Lowell Weicker (R-CT) came to be known as a loose cannon, and Howard Baker (R-TN) often seemed to be playing both sides. (Kutler clearly resents the widespread idea that Baker acted as a fair-minded truth-seeker, and portrays him as mostly out to run interference for the administration—but as having some limits in his willingness to do so.) In 1974, conservative Republicans would desert Nixon, making it clear he had little hope of somehow riding out the storm.
Congress’s unusual leverage: replacing the Vice President
Congress found itself in an unusually powerful position because President Nixon was forced to invoke Section 2 of the 25th Amendment, which reads in full: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” Vice President Spiro Agnew found himself embroiled in corruption charges alongside his two-time running mate, a legacy from his tenure as governor of Maryland. The combative Agnew was eager to turn his own problems into a public fight, but the administration strongly discouraged him from doing so, eager to dissociate the administration from corruption. On October 10, 1973, Agnew resigned the Vice Presidency and pleaded nolo contendere to income-tax evasion, receiving a suspended sentence and a $10,000 fine.
That left the Democratic Congress with the effective power to dictate who would be an acceptable replacement. Speaker of the House Carl Albert (D-OK) made it clear to the administration that Congress would not confirm Nixon’s first choice, ex-Democrat John Connally, who had been his Treasury Secretary from 1971 to 1972. Instead, members of Congress communicated that they would accept one of their own, House Minority Leader Gerald Ford (R-MI), and so Nixon picked him, in spite of holding him in fairly low regard. Ford was easily confirmed, 92-3 in the Senate and 387-35 in the House. Obviously, Ford’s ascension to the Vice Presidency changed the calculus for any future impeachment. Whereas the cantankerous Agnew had been a kind of insurance policy for Nixon, Ford was a far more palatable chief executive now waiting in the wings.
Congress’s fight for access to the tapes
When, during its July 1973 questioning  of Haldeman aide Alexander Butterfield, the Senate Select Committee uncovered the existence of secret tapes of key conversations, that changed the fundamental dynamic of the confrontation between the branches. Now there was a chance for Congress to get directly at the heart of the matter, and a tangible focal point in the clash between the public’s representatives’ right to seek the truth and the executive branch’s desire to conduct its business without public scrutiny. As Congress increased the pressure on the administration, the clash would become even more dramatically staged for the benefit of the public.
Ervin’s Select Committee voted unanimously on July 23, 1973 to issue a subpoena for the tapes Special Prosecutor Archibald Cox issued a subpoena as well. Nixon rejected them three days later, creating significant internal tensions within the administration. Attorney General Elliott Richardson, in particular, felt that some kind of accommodation needed to be made. Showing the power of Congress at this point, the Nixon administration made an unusual offer in October. It would provide summaries of the tapes for use in court and by the congressional committees, rather than the full recordings or transcripts, and allow verification of the summaries’ accuracy by Senator John Stennis (D-MS). The White House publicly announced committee acceptance of this plan, though it is not clear that they ever actually had it, but in any case Cox rejected it outright as inadequate. That led directly to the Saturday Night Massacre  on October 20, 1973, which yet again escalated the conflict and damaged Nixon’s credibility in the eyes of the public. Especially disastrous for the president were the images of FBI agents barring the Special Prosecutor’s office, which seemed reminiscent of a police state.
In large part because of Congress’s pressure, by the end of 1973 Nixon was badly damaged, with 73 percent of respondents in a December Harris poll agreeing that he had lost the credibility to function as president. Wounded as he was, Nixon found it impossible to protect himself. A new special prosecutor, Leon Jaworski, was quickly appointed, with stronger protections for his independence than Cox had had. Congress used confirmation hearings, such as for new Deputy Attorney General Lawrence Silberman, to extract promises that the investigation would be allowed to proceed unmolested.
Congress presses on toward impeachment
Congress further escalated its ambitions in light of Nixon’s struggles. It ordered a cutoff of bombings in Cambodia effective August 1973, and then passed the War Powers Act in November 1973—with the override of Nixon’s veto receiving 33 more votes in the House than the original vote. With prospects of impeachment now looking strong, the House Judiciary Committee moved to significantly expand and upgrade its senior legal staff.
When it came to the various Watergate crimes committed by functionaries, it could be argued that Congress’s involvement was supplemental to prosecutions pursued in Article III courts. But, for Nixon himself, Congress was stronger than the judiciary by far. In part, this stems from genuine confusion about whether a president can or should ever be indicted while in office—eventually, Jaworski would decide that it was better for him to treat Richard Nixon as an unindicted co-conspirator than to seek to make a criminal defendant of the chief executive. As the president’s constitutional equal and the branch clearly given the power to decide on impeachment (in the House) and conviction (in the Senate), Congress confronted no such difficulty. It also had the advantage of politically positioning itself as the proper repository for the American people’s trust. Pressed by a Congress declaring that withholding of evidence constituted an impeachable offense, Nixon acceded and released most of the tapes at the end of April 1974. (The Supreme Court would, in July 1974, unanimously hold  that all the tapes must be released to the courts.) When transcripts were made public, they generated widespread outrage, including from high-ranking Republicans.
On May 9, 1974, the House Judiciary Committee began hearings to consider articles of impeachment. A number of Republicans on the committee saw supporting the president as a simple, straightforward decision, “like voting for the Speaker.” But a “fragile coalition” of seven members from districts extremely supportive of Nixon in 1972 seemed to hold the balance of power. That lent the proceedings a feeling of genuine suspense, which meant the American people were riveted. Nielsen ratings indicated that a remarkable 35-40 million Americans tuned in to watch as the committee made its way to a 27-11 vote on the first article of impeachment and a 28-10 vote on the second. The public was overwhelmingly supportive of impeachment by early August, with 66 percent favoring it in a Harris poll.
Senator Barry Goldwater (R-AZ) and other Republican leaders met with Nixon in early August, telling him he had, at most, 10 supporters in the Senate who would stand firm against conviction. Having lost his base of support, Nixon finally resigned on August 8, 1974.
Post-impeachment changes to the rules of the game
With a new, unelected president in place, Congress pushed forward to ensure that Watergate-like abuses would be harder to conceal in the future. They first passed the Presidential Recordings and Materials Preservation Act of 1974, which ensured that all of Nixon’s tapes would be held and eventually become public records through the National Archives. That was later generalized and expanded in the Presidential Records Act of 1978.
Congress strongly opposed pardons for the Watergate participants, which was probably responsible for Ford’s not granting them, in spite of the logical inconsistency of pardoning Nixon but punishing his loyal subordinates.
Congress sought to restructure campaign finance and ethics rules, including with the Ethics in Government Act of 1978. These reforms had a decidedly mixed record, with many critics contending that they multiplied unnecessary investigations. Amendments followed in 1983 and 1987.
Congress continued to reshape the nation’s war-making and intelligence operations, especially with the Rockefeller Commission, Church Committee, and Pike Committee, all of which attempted to create a more accountable CIA. With the creation of a new House and Senate Select Committees on Intelligence and the passage of the Foreign Intelligence Surveillance Act (FISA), the practices of wiretapping and domestic investigations acquired a higher degree of legal scrutiny. The Privacy Act of 1974 permitted citizens to see and correct information about themselves in federal agency files, and the Financial Privacy Act of 1978 barred secret government access of individuals’ bank records in nearly all cases.
Congress also strongly confronted President Ford as to whether he had arranged for his selection as Vice President through a quid pro quo promise of pardoning Nixon. Ford skillfully defused this threat—but the manner of his doing so is revealing. Although Congress had only expected to receive the testimony of Ford’s close associates, the president himself arranged to testify on Capitol Hill before the House Judiciary Committee in October 1974, making him just the second president  ever to do so after Abraham Lincoln. By directly denying any allegations of a corrupt bargain, Ford put the question behind him, at least with Congress. But he had to humble himself and his office in order to do so, emblematic of where the political balance of power had settled after the nation’s first presidential hounding-from-office.
Finally, through the 1970s Congress sought to increase its own capacity, creating two new support agencies (the Office of Technology Assessment, in 1972, and the Congressional Budget Office, in 1974) and expanding both personal office and committee staff. It sought policy prowess appropriate to its newly demonstrated constitutional gravitas.
Lessons for 2018 and beyond?
For my purposes here, the main lesson of Watergate is that Congress gradually learned to assert itself against the president, with historic consequences for our institutional development. (Perhaps not nearly historic enough—I do not consider here what missed opportunities there may have been in 1970s.) I submit that this could happen again in the years to come.
Having gone on quite long enough, I will mostly resist the temptation to compare and contrast other features of Watergate with the present administration’s struggles with its investigators, congressional and otherwise. I will just make two points. First, one of the major objectives of Kutler’s book is to show that Nixon himself was “the master in his house,” such that the actions of his subordinates clearly represented an emanation of his own conscious will. He portrays Nixon’s chief of staff as only an implementer, not a decision-maker in his own right. Even with the help of the tapes, this is laborious work—though I ultimately found it convincing enough. But if blame could be affixed on Nixon in part because of the regimented and orderly flow of communications in his White House, that surely stands in stark contrast to reports of internal dynamics today. Second, as long as investigations into Watergate could be portrayed as merely partisan, their potency was limited. To really empower Congress, these investigations required at least the cautious support of members of both parties, and to topple the president, they required widespread buy-in from members in both parties (though far from every member). It thus makes a great deal of sense to focus on members known as fairly stalwart Republicans who nevertheless back stronger investigations into White House behavior. However noisy current news coverage may be, this particular  focus  seems quite justified.
How Republican Patriots Saved America During Watergate
In November 1972, Richard Nixon won a blowout victory, with 60.7% of the popular vote and a 520-to-17 Electoral College landslide.
But Nixon’s term ended prematurely, a mere 19 months after inauguration. In August 1974, he resigned to avoid impeachment for his role in supporting and then covering up a break-in of the Democratic National Committee headquarters.
Profiles in Cowardice and Profiles in Courage
American democracy barely survived. By September 1973, the consensus was that Nixon would withstand the Watergate controversy. Put bluntly, Nixon almost got away with crimes that included FBI collusion and electoral tampering and that, in hindsight, were far worse than the public knew at the time. A Republican congressional staffer who later became a Senator and presidential candidate, Fred Thompson of Tennessee, later reflected on how close American democracy came to failing. Among other things, Thompson noted that America was saved by those Republicans in Congress and the administration who put country before party.
Maryland Congressman Lawrence Hogan, father of the state’s current governor, was outraged that Nixon tried to cover up the scandal, and voted for all three articles of impeachment in the House Judiciary Committee. Congressman M. Caldwell Butler of Roanoke helped lead the charge for impeachment. Senator Howard Baker of Tennessee famously cut through the noise of the Watergate hearings by asking what the President knew and when he knew it. All three of these men receive regular mention as profiles in courage.
Even among this group of patriots, Elliot Richardson stands out. In May 1973, as Nixon’s Attorney General, Richardson appointed a special prosecutor named Archibald Cox to investigate the Watergate matter. In July, Cox issued a subpoena demanding tape recordings Nixon had made in the White House. On Saturday, October 20, Nixon ordered Richardson to fire Cox. Richardson resigned rather than carry out the order. The public outcry over this “Saturday Night Massacre” turned the tide against Nixon. Decades later, Richardson won the nation’s highest civilian honor, the Presidential Medal of Freedom.
Watergate’s Heroes Simply Followed The Facts
Hogan, Butler, Baker, and Richardson did not initially believe the Watergate accusations.
On the contrary, when the Watergate crisis first began to unfold, all of them were partisan Republicans and Nixon loyalists. Butler publicly credited his own election to Congress to Nixon’s 1972 landslide. Baker campaigned in 1972 as a close friend of Nixon. Richardson had been previously appointed to two other cabinet positions by Nixon before becoming Attorney General. Hogan questioned whether the proceedings might be politically motivated (with good reason, as Democrats such as William Fitts Ryan of New York had introduced articles of impeachment even before the Watergate break-in took place).
In other words, they did not rush to judgment against Nixon. Rather, they simply supported investigations into the facts. They supported the appointment and power of a special prosecutor. They conducted hearings. They asked questions.
Lessons for this Election’s DNC Break-In
Those examples give ample cover for Republican leaders today to be skeptical and judicious in investigating President-Elect Donald Trump. We do not know if Trump’s campaign aided, abetted, or obstructed justice with regards to the election-season break-in of Democratic National Committee servers. We do not know if or how Trump and his campaign coordinated with groups in Russia or groups within the FBI.
Such appropriate skepticism, however, does not justify the craven approach on display from Paul Ryan and Reince Priebus. During the campaign, these Republicans proclaimed that America’s system of checks and balances reduced the risks associated with a candidate such as Trump. Unlike during Nixon’s second term, they control both chambers of Congress. Now that they are in power, they are violating their public duty to ensure those checks and balances work.
The known facts create a possibility that Trump and his campaign violated the law. Investigators must use their power to subpoena financial and other information to determine if American democracy was deliberately undermined.
America should not be surprised if a majority of Republicans follow the shameful path that Ryan and Priebus are charting. Even in Watergate, that was the case: as late as July 1974, House Judiciary Committee Republicans split 10-7 against recommending any articles of impeachment.
Some Republicans, however, will step up.
Unsurprisingly, Arizona Senator and war hero John McCain is talking straight, telling the public that “it’s clear the Russians interfered” and that “facts are stubborn things [and the Russians] did hack into this campaign.” McCain is calling for a special, bipartisan investigative committee made up of members from the Senate’s Intelligence Committee, Foreign Relations Committee, and the Armed Services Committee.
McCain has received public support for this stance from Republican Senators Lindsey Graham of South Carolina and James Lankford of Oklahoma.
On the House side, Texas Republican Michael McCaul is cutting his own lonely profile in courage, calling for a forceful public investigation despite his long allegiance to Trump and his personal career opportunity to obtain a Cabinet position in the Trump Administration.
Other Republicans are still exploring. Senators Mitch McConnell (KY), Rand Paul (KY), Bob Corker (TN), and Cory Gardner (CO) have called for thorough investigations, while stopping short of endorsing McCain’s special committee recommendation.
These are the times that reveal character. All patriotic Americans should support these Republicans of character as they search for the truth about whether our democracy was attacked.
Nixon to Rodino
HOUSE, 410–4, GIVES SUBPOENA POWER IN NIXON INQUIRY
WASHINGTON, Feb. 6—The House of Representatives voted 410 to 4 today to grant the Judiciary Committee broad constitutional power to investigate President Nixon's conduct. The House thus formally ratified the impeachment inquiry begun by the committee last October and empowered the panel to subpoena anyone, including the President, with evidence pertinent to the investigation.
It was only the second time in the nation's history that such a step, directed at a President, had been taken in the House. But the roll‐call vote was not a test of impeachment sentiment.
The vote followed an hour of debate in which no one rose to defend Mr. Nixon, but Democrats and Republicans quarreled over the best method to guarantee that the inquiry would not become partisan.
‘No Other Way’
The tone was struck by the Judiciary Committee chairman, Representative Peter W. Rodino Jr., Democrat of New Jersey, when he told an unusually attentive House:
“Whatever the result, whatever we learn or conclude, let us now proceed with such care and decency and thoroughness and honor that the vast majority of the American people, and their children after them, will say: This was the right course. There was no other way.”
The four members who opposed the resolution, all Republicans, were Ben B. Blackburn of Georgia, Earl F. Landgrebe of Indiana, Carlos J. Moorhead of California and David C. Treen of Louisiana.
Mr. Moorhead, a member of the Judiciary Committee, objected that the resolution gave the panel such unrestricted subpoena power that it “can only precipitate a constitutional confrontation and further divide the people of our country.”
The significance of the House action was illustrated by Mr. Rodino's statement that the power to issue and enforce a subpoena would be drawn directly from the Constitution, and would “not depend upon any statutory provisions or require judicial enforcement.”
He said that a subpoena would be issued to Mr. Nixon only if the committee thought it necessary to reach a “fair” judgment whether there were grounds for impeachment.
“The gentleman from New Hampshire hopes that will not be necessary,” Representative Louis C. Wyman, Republican of New Hampshire, said as he stared across the quiet chamber at Mr. Rodino.
“The gentleman from New Jersey does also,” Mr, Rodinoi replied.
He told newsmen later that no decisions would be made within the next few days on requests for evidence to either the White House or to the Watergate special prosecutor, Leon Jaworski.
The resolution was adopted after the House rejected, 342 to 70, a parliamentary effort to open the measure to amendments that would have set an April 30 deadline for completion of the inquiry and allowed the committee's senior Republican to issue subpoenas indeppendently. Today's approval of the resolution had been expected.
Representative John J. Rhodes of Arizona, the House Republican leader, signaled the fate of the parliamentary maneuvers when he declared that Mr. Rodino's pledge to conduct the inquiry fairly and expeditiously was “good with me.”
Only 67 of 178 Republicans voting on the issue and 3 of 234 Democrats disagreed and sought unsuccessfully adoption of the restrictions.
As approved, the measure provides no termination date for the investigation. It authorized Mr. Rodino and the ranking Republican, Representative Edward Hutchinson of Michigan, to issue subpoenas jointly. If either declines, the full committee, composed of 21 Democrats and 17 Republicans, must decide whether to issue a subpoena.
Representative Robert McClory, Republican of Illinois, asserted that a fixed deadline would assure a troubled nation that the Watergate turmoil would soon end.
“Imagine!” he protested, his voice and arms rising and falling together. “Imagine this important resolution, historic in its impact, being presented here without an opportunity for amendment.”
Representative William L. Hungate, Democrat of Missouri, retorted dryly that it would be irresponsible to set an “arbitrary” deadline that might put the committee in “the position of the skydiver whose chute failed to open and found he had jumped to a conclusion.”
Several Republicans warned that the inquiry could degenerate into partisanship without a guarantee that the Democratis maiority would not suppress a subpoena written by the senior Republican.
“Suppose we wanted to call [Senator] Hubert Humphrey or tobby Baker?” asked Representative David W. Dennis. Republican of Indiana. Mr. Baker was convicted in 1967 of larceny, fraud and income tax evasion after an inquiry into his activities as the secretary to Senate Democrats.
Republicans apparently took their cue, however, from Mr. Rhodes, who said that the minority would be able to “look at its options” later if the inquiry became partisan.
Despite the seriousness of the House action, there was no indication of influence having been exerted either by the White House or by groups lobbying on behalf of the impeachment of Mr. Nixon.
The President had breakfast at the White House this morning with 37 Republican Senators and Representatives who are members of two informal Capitol Hill groups, the Chowdev and Marching Society and the S.O.S. Club. Only four of Mr. Nixon's House guests supported the effort to amend the resolution, and none of them opposed its final approval.
The House has taken formal impeachment action only a dozen times before. The only instance in which a President's conduct was investigated was in 1867, when the House adopted a similar resolution directing the Judiciary Committee to inquire into the possible impeachment of Andrew Johnson.
The House rejected the committee's articles of impeachment in December, 1867, but voted two months later to impeach President Johnson after he dismissed Secretary of War Edward M. Stanton. The Senate subsequently acquitted Johnson.
Referring to the Johnson impeachment, Mr. Rhodes described the House proceeding today as an equally “solemn occasion.”
What the House concludes in Mr. Nixon's case, said Representative Elizabeth Holtzman, Democrat of Brooklyn, “will stand for all time. We will act expeditiously, but we will act soundly.”
Mr. Rodino also referred to the need for sensitivity and caution.
“For almost 200 years,” he said, “Americans have undergone the stress of preserving their freedom and the Constitution that protects it. It is our turn now.”
With new campaign financing regulations scheduled to go into effect in April 1972, the CRP focused in the late winter of 1972 on raising as much money as possible. Campaign contributions would have to be reported after April 7, but money received before then could be laundered and thus be untraceable when it came time to report donations. Herbert Kalmbach collected secret donations, much of it in cash, under the explicit instructions of Richard Nixon, who made it known that the reward of an ambassadorship would require a donation of a quarter of a million dollars.
Most of the money (but not all, to have no money to report on April 7 would have been an obvious falsehood) was laundered through banks in Mexico and Venezuela, some of it by the White House Plumbers. Cash was placed in safes in the White House and the offices of the CRP, run by former Attorney General Mitchell, who was leading the President&rsquos re-election campaign. More cash was hidden in safe deposit boxes around the country. Some of the money was routed by E. Howard Hunt to hire young volunteers for the Democratic Party, to report back to the CRP as spies.
CRP Finance director Maurice Stans began a fund raising drive across the country, focused on the South, and helped donors set up laundering systems so that their donations could not be traced. On this funding drive Stans used the velvet glove and the iron fist. Promises of easy access to the White House and threats of government investigation if donations weren&rsquot forthcoming were used as necessary. By law corporations were not allowed to make direct donations to political campaigns, but the means of transferring funds via banks in Mexico and Venezuela, which did not allow the subpoena of bank records, allowed for these illegal contributions to be made.
The illegally acquired campaign funds were to be used by the CRP and the White House Plumbers to fund the so-called White House Dirty Tricks which were already being employed to discredit Democratic candidates, certain reporters, newspapers, and other news outlets. They were also used for travel and other expenses, and the other illegal activities which would mark the remainder of Richard Nixon&rsquos time in office. The campaign funds were also diverted, illegally, to cover the legal fees of the men caught in the offices of the Democratic National Committee. CRP funds were used to send thousands of telegrams to the White House claiming to support the mining of Haiphong Harbor in North Vietnam, prepared by campaign operatives under false names.
Nixon&rsquos defenders have long claimed that these operations were all done without his approval or even knowledge, and that they were deliberately kept from the President. The papers and tapes held in the Nixon Presidential library and the later testimony of thousands of individuals inside the administration and outside of government provides overwhelming evidence that Nixon was not only aware of the fund raising and its illicit use, in many instances he directed where some of the money was to be spent. Following the arrest of the Watergate burglars for example, Nixon called Haldeman and suggested that he have Bebe Rebozo start a fund for their defense in Miami. The slush fund money could then be deposited in the defense fund.
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Nixon tapes reveal his cutthroat personality
But conflicting stories have been given over the years about precisely what that desired information actually was. Hunt said the break-in occurred to establish that the Castro regime in Cuba was bankrolling Democratic campaigns -- but that sounds like a cover story to recruit four burglars who were anti-Castro activists. (Hunt knew them from his participation in the failed Bay of Pigs invasion). Liddy, who for years refused to discuss it, eventually said it was to retrieve compromising photographs of White House counsel John Dean’s wife, whom Liddy said was thought to be part of a call-girl ring. That wild allegation had no apparent basis in fact and was clearly motivated by Liddy’s profound hatred of Dean for cooperating with prosecutors. (Dean filed a $5.1 million defamation lawsuit against Liddy over the allegation, in the course of which Liddy testified, “I wouldn’t consider [Dean] worth the quarter it would cost to buy the cartridge that would propel the bullet to kill him with.” The case ended in a mistrial.)
The most plausible explanation is that the burglars were looking for compromising information about the DNC and its chairman, Lawrence O’Brien. In his new book, "The Nixon Defense: What He Knew and When He Knew It," Dean draws on transcripts he made of Nixon’s secret White House audiotapes, many of which had either not been transcribed before or had been transcribed incompletely. In the book, Dean observes that the tapes showed Nixon’s chief of staff, H.R. Haldeman, repeatedly telling Nixon that the break-in “related to Larry O’Brien and the Democratic convention.”
Who ordered it? “There is no evidence,” Dean writes, “in all the Nixon-Watergate-related conversations that anyone in the White House had advance knowledge that Liddy was going into the Watergate.” By “evidence” Dean must mean “definitive evidence,” because he quotes Haldeman saying that setting up the espionage team for Nixon’s re-election had been the idea of campaign chief and former attorney general John Mitchell. “Mitchell,” Haldeman told Nixon several months later, “was pushing” for “[s]ecret papers, and financial data that O’Brien had, that he was going to get.” That, too, is straight out of Dean’s book.
(In the Watergate tapes, Nixon repeatedly asks why and how the break-in occurred, but of course he alone knew that future generations were listening in. It’s also possible he couldn’t remember whether he’d ordered the break-in or not. Dean thinks Nixon was haunted by the possibility that he might have and then forgotten about it. Nixon was, after all, already in the break-ins business, having previously ordered the firebombing of the liberal Brookings Institution to steal some files -- a yarn too rococo to detail here. Happily, that order was never carried out.)
"Dean thinks Nixon was haunted by the possibility that he might have [ordered the Watergate break-in] and then forgotten about it."'
The information sought regarding the forthcoming Democratic convention is a little hard to identify. Dean quotes White House officials saying at one point that it involved planned disruptions of the Nixon campaign and at another point that it was to verify a rumor that Democratic Florida Gov. Reubin Askew was financing the convention illegally. But the information sought regarding O’Brien pretty clearly involved O’Brien’s lobbying for the reclusive billionaire Howard Hughes.
O’Brien’s Hughes connection worried not only Mitchell but Nixon himself, because Nixon had previously engaged in some questionable financial dealings with Hughes, including accepting a gift of $100,000. Nixon didn’t want that to become public. Indeed, Nixon believed that an earlier Hughes loan of $205,000 to his brother Donald, which became pubic during the 1960 presidential campaign, had cost him that election. (If Nixon believed that, why did he subsequently accept $100,000 from Hughes? Search me.)
Did O’Brien know about Hughes’s gift to Nixon? The Watergate tapes show Nixon repeatedly asking about O’Brien. The late journalist J. Anthony Lukas, who wrote a book about Watergate, was convinced that the Watergate burglary took place in order to find out what O’Brien knew about Nixon’s Hughes connection. So is the journalist Ron Rosenbaum, who covered Watergate at the time for the Village Voice. So is Terry Lenzner, who was chief investigator for the Senate Watergate committee. Haldeman thought the break-in had occurred “to get the goods on O’Brien’s connection with Hughes,” and Dean himself, though he found no corroboration for this, writes that he finds that motive plausible, and that, more broadly, “Nixon’s demands for information were clearly the catalyst that resulted in seeking information at the DNC offices.”
But the most important believer in the Hughes motive is Jeb Stuart Magruder. Magruder, who died this past May, was Mitchell’s deputy at Nixon’s re-election campaign. Magruder didn’t merely speculate that the Hughes transactions were the reason for the break-in he affirmatively stated it. His source, assuming he was speaking truthfully, was impeccable. In a 2003 interview Magruder said for the first time that he’d heard Nixon tell Mitchell, “John, we we need to get the information on Larry O'Brien, and the only way we can do that is through Liddy's plan. And you need to do that.” Previously, Magruder had never identified anyone higher than Mitchell to have known about the break-in in advance. Now he was saying that Nixon ordered it.
To be sure, Magruder did jail time for committing perjury with respect to his own role in Watergate. And in a 1974 memoir Magruder wrote, “I know nothing to indicate that Nixon was aware in advance of the plan to break into the Democratic headquarters.” But Nixon was still president when Magruder wrote that -- the book came out seven months before Nixon’s resignation -- and it’s easy to imagine that Magruder feared tangling with him. By 2003 Nixon was nine years in the grave and Magruder had no obvious reason to lie about Nixon’s role.
A final consideration is this. Put yourself in the shoes of Mitchell and Magruder. Would you give Liddy a green light on burgling the DNC if you didn’t know for sure that your ultimate boss wanted it done? On the Watergate tapes, Nixon never admits knowing how the break-in came about, and he questions its wisdom. But he never expresses the slightest shock that anybody in his employ would commit such a crime.