A Constitutional Crisis

Chris Edelson

Assistant Professor in the Department of Government

American University

The Watergate break-in and the Nixon administration’s actions after the break-in[1] presented a challenge to the basic structure of constitutional democracy in the United States.  Most centrally, these events raised questions about the rule of law itself.  Could President Nixon define the limits of executive power himself, as he argued in U.S. v. Nixon, or did the system of checks and balances created by the Framers set effective and enforceable limits on presidential power?

In refusing to produce tape recordings and other documents in response to a subpoena issued by the Watergate special prosecutor, President Nixon advanced a theory of executive power that threatened to subvert the constitutional structure of checks and balances.  Nixon’s lawyers argued before the Supreme Court that the principle of separation of powers meant that the President could independently define the scope of executive privilege under the Constitution.[2]  If the Court has accepted this argument, it would mean that the President would effectively have the ability to define the limits of presidential power when it comes to protecting presidential communications from review by a court: if the President independently concluded communications were confidential, for any reason, this decision could not be reviewed by a court.  The Supreme Court rejected this argument, citing Marbury v. Madison, and concluding that the President’s position “would upset the constitutional balance of a workable government” and gravely impair the role of the courts under Article III.”  Nixon’s position would prevent the courts from performing their constitutional function because he would be able to withhold, without sufficient justification, evidence relevant to criminal prosecutions.

President Nixon also argued that he could not be required to testify before the grand jury investigating the Watergate burglary. Nixon ultimately testified before the grand jury, but only after he resigned from office.  If Nixon had remained in office, deciding whether he could be required to testify before the grand jury would proceed along lines similar to those outlined in U.S. v. Nixon.  Nixon argued that requiring him to testify would undermine the independence of the executive branch, giving the courts impermissible power to control his actions.  However, in U.S. v. Nixon, the Court had made clear that Nixon’s view of the separation of powers was flawed.  The principle of separation of powers cannot “insulate” the President from interaction with the other branches of government.  In fact, the Framers’ notion of the separation of powers depended on the different branches of government having overlapping functions, rather than operating in hermetically sealed spheres.  In U.S. v. Nixon, the Court recognized that there are times when the President’s actions must be protected from review by the other branches of government[3]; however, this principle is not absolute.  In another case decided years after Nixon left office, the Court drew a line between official and unofficial conduct as president: the President is immune from legal process associated with official conduct in office only.[4]  Applying this standard to testimony sought by the Watergate grand jury, President Nixon’s testimony could have been required even while he was still in office.  This would not have been the first time that a sitting President testified in an ongoing case: President Grant provided testimony (though voluntarily) through a deposition in a criminal case (the prosecution of an official in his administration).

With the benefit of hindsight, I can also observe that several presidents have testified since Nixon left office: President Carter provided testimony in two criminal prosecutions and also gave depositions in two cases; President Ford gave a deposition while in office and, probably most prominently, President Clinton gave a deposition in the Paula Jones case after the Supreme Court ruled he was not immune from judicial process while in office.  The Court, in Clinton v. Jones, ruled that litigation involving “questions that relate entirely to the unofficial conduct” of the President may proceed while the President is in office.  This case was, of course, decided more than 20 years after Nixon left office, but helps provide support for the conclusion that Nixon could have been compelled to testify before the Watergate grand jury even if he had remained in office.

 

 


[1] Other actions taken by President Nixon and his administration presented similar constitutional challenges, but this discussion focuses on the Watergate break-in.

[2] Executive privilege is not expressly described in the Constitution, but has been recognized by the Supreme Court as an implicit constitutional principle.

[3] For instance, the Court suggested, when the President makes decisions involving matters of national security.  Critics, however, might view even this concession as opening a dangerous area of unilateral presidential authority.

[4] Nixon v. Fitzgerald (1982).

Introduction to Testimony

Introduction

Pages 1-15 of the Testimony

The start of Nixon’s 297-page grand jury consists of a discussion of procedural issues.  The prosecutors express their concerns, and outline the format for the ensuing deposition. Nixon clarifies that he is present in a voluntary capacity and says that it is his wish that “[his] testimony will be helpful in concluding the investigation.”  He goes on to reinforce his belief that presidential communications should be kept secret, and about the power of the American presidency.  He then says that if he receives a guarantee of the secrecy of his testimony he “will reveal for the first time information with regard to why wire taps were proposed, information which if it is made public, will be terribly damaging to the United States.”

The most substantive part of this early section comes from Nixon’s attempts to defend the gaps in his memory.  He argues that “while you all and those who will be questioning me have had two years to study these things … I, on the other hand, will be trying to remember things that have occurred not only two years ago, but four years ago.”  He sets up a framework in which he is the victim—this is an intellectual theme with Nixon, and opines that he has been severed from his papers and records, which places him at a further disadvantage with regards to questioning.  Mr. Ruth (one of the prosecutors) tells him that anything the prosecution will be referencing is available, at the request of counsel, from the DC courts, which suggests that Nixon purposefully constructed a situation in which he had deniability.  By refusing to prepare for the testimony (i.e. by requesting documents from the DC courts) Nixon attempts to establish a situation in which he can believably say that he did not remember what occurred.

“I will have to, at times, use the phrase, which I abhor … but if I say ‘to the best of my recollection,’” preempts Nixon, “it will be only because I have not had an opportunity to access my own records”—clearly false; as Mr. Ruth says “any document we are using here today your counsel has had access to through court procedures, at your request.” Hypocritically, Nixon “abhors” relying on any answer save yes or no—yet “yes” and “no” answers are virtually absent from the body of the testimony.

The transcript of the testimony can be found online in several locations. The United States Government Printing Office (GPO) has published Nixon’s grand jury records, including these transcripts, online. They can be accessed at http://www.gpo.gov/fdsys/pkg/GPO-NARA-WSPF-NIXON-GRAND-JURY-RECORDS/content-detail.html.

Background Information

The 297-page transcript of Nixon’s testimony promised to offer key insight into Nixon’s own role in and knowledge of the infamous Democratic National Committee Headquarters break-in and its subsequent cover up. The testimony focused on four specific points of interest: the 18 ½ minute gap on Tape 342; the extent to which Nixon used the Internal Revenue Service (IRS) to harass political enemies; illegal or suspect campaign contributions (including the $100,000 bribe from eccentric billionaire Howard Hughes to Nixon via Nixon’s close friend and associate Charles “Bebe” Rebozo); and the illegal wiretapping conducted by the administration.

Avi McClelland

First Thoughts on the Grand Jury Testimony:
A Case Study on Selective Memory Loss

There was not a single answer in the Nixon testimony that did not involve either the phrase “I do not recall” or extended ramblings about why he could not, despite the fact that the events in question took place only a few years prior. Nixon claimed to have been preoccupied with the Chinese initiative, Americans being killed in Vietnam, etc, etc, etc. Nothing much new, and no lies because, well, it’s impossible to prove that “I cannot recall” is a lie.

The blank pages left in place of “classified information” are the most intriguing parts of the testimony. If the public had access to the actual evidence—the lists of names and the notes kept by senior officials like Ehrlichman, for example—perhaps the full story of Watergate truly would emerge. The people on the lists or mentioned in the notes could be tracked down and asked what they know about what happened. This, of course, raises privacy concerns, but it would seem that someone accountable only to the public should be able to see the entirety of the evidence—not government officials who may have their own reasons for keeping the information secret (perhaps orders from above?), or grand jurors who saw the evidence before many of the Watergate players had been given the opportunity to tell their sides of the story and before many of the tapes had been reviewed and released. The people named in the classified pages were likely questioned at the time of the investigation, but evidence that has been exposed in the years since may shed a new light on the entire case.

The conspiracy theorist in me loves to speculate; the realist in me knows that even if the classified evidence was made public, it would likely be of little consequence to the scandal itself, as those who were going to go down for the crimes already have, and most relevant stones were turned during the highly publicized, widely observed investigation.

It would be quite the story if the Bilderberg Group had ordered Nixon to spy on the DNC, or if Jimmy Hoffa had erased the tapes and been aided in his disappearance four years later by Nixon himself. But Watergate, as it stands now, is still a gleaming monument to conspiracy theories proved true, a vindication for “conspiracy theorists” everywhere. Watergate provides a solid example of a situation in which an outrageous story—wrought with espionage, government malfeasance, courtroom drama, and celebrity, with plenty of Good Guys and Bad Guys to root for and against—turns out to be even more twisted and complex than first thought, with even more powerful players—and entirely true, to boot! Best of all, the bad guy goes down in the end (kind of).

So for Watergate, let us both mourn and give thanks: we mourn that Nixon was never truly brought to justice and that the tale cannot continue, but we give thanks that we had such an intriguing story, one that gave us the strength to continue believing that Jimmy Hoffa is buried at Giants Stadium and Elvis bought a popsicle in Central Park last week—or at least, to continue salivating at the rumor.

I avoided the news media while writing my initial analysis, but I must include an addendum. In reporting on the release of the Grand Jury testimony, Fox News stated that “On Watergate, Nixon reaffirmed what historians now generally believe: that he did not order the infamous break-in that triggered his fall from power, and did not have any advance knowledge that it would be carried out.”[1] I find it almost sad that Nixon is no longer around to see that his dubious version of the truth is not being ignored, but has in fact been adopted by a major media outlet—and, consequently, a section of the American public.

Mark Anthony Dunham

The release of these materials shows a very different side of the 37th President of the United States– Richard M. Nixon. As a president, he was a master of public manipulation and keen on utilizing his image as a means of keeping himself above the fray; however, in the Grand Jury testimony, this Nixon is very different. Sardonic, sarcastic, intellectually sharp-tongued, and combative – Nixon shows his unwillingness to have his reputation sullied by “the tragedy of Watergate.” The results of this surly figure who utilizes wit, passive aggressive speech, and head-on confrontation to make his point are some funny and uncomfortably awkward moments with people who are clearly still in tacit awe of the task of possibly indicting a president. To be a part of history is an interesting adventure; yet, they do still have moments of levity, even in the most serious of circumstances.

Joel Antwi

Nixon Grand Jury Review

The release of the Grand Jury Testimony of Richard Nixon is perhaps the most significant development in the history of the Watergate scandal. This testimony is made up of the sworn statements of the 37th President. More importantly, this testimony was the opportunity for Richard Nixon to tell the truth, and in so doing reclaim some honor as a former U.S. President.

The testimony is nothing short of remarkable. Not in the sense that it provides amazing new details of Watergate, but that it exhibits the final, and perhaps most obstructionist behavior of Nixon. When speaking to the Grand Jury, it was commonly assumed that Nixon may have told the truth, this credit to Nixon was displaced. The testimony showcases immense stonewalling. During these efforts, Nixon claims not to remember anything that happened during his administration. He discusses the general principals and processes used to make decisions, but not who those decisions involved, third parties involved or situations in which the protocol was broken – the key components of what the Grand Jury was looking for.

The second “Nixon tactic” used was to waste time. With each topic asked, Nixon attempted to burn through time by going on long tangents wherein he provides multitudes of irrelevant information and particularly unnecessary background. By providing much background information on each question, Nixon uses up multitudes of time on each question while never getting to real answers. Furthermore, while burning up time, he consistently says he knows that he is giving too long a response and wants to leave time for “other questions,” implying the questioner move on.

Nixon, amongst wasting time, and “forgetting” vital information, also burned time and avoided questions through twisting words and complaining of ambiguous ideas and definitions. One such example occurred during the questioning of Nixon about the appointment of Ambassador deRoulet to Jamaica. During this line of questioning, Nixon is asked how a deal was struck for Ambassador deRoulet’s appointment (a nomination that was made in exchange for $100,000 in campaign contributions). Nixon questioned the definition of the word “commitment”, and tried to re-define it in a political sense.

This brings to mind a statement by Stanley Kutler, who had voiced his greater amount of respect for Nixon’s handling of an investigation than Clinton’s handling of his. He had this opinion because of the mockery he felt that Clinton had made of the process. Such games played before the Grand Jury such as congregating the words “to be” are viewed by Kutler as a level of disrespect not shown by Nixon. However, the testimony brings to light games played by Nixon just as disrespectful of the grand jury. The same word games, and avoidance is obvious.

The Grand Jury testimony of Richard Nixon was the last opportunity of the shamed President to tell the truth to the American people, and show, through action, that the American justice system is just. However, Nixon chose to lie, stonewall and avoid questions by the Grand Jury in a last-ditch effort to avoid the truths of his administration and his failures to operate appropriately in the American form of government.

Samantha Cohen

The Release of the Grand Jury Testimony:

Nixon Uncovered

Over the course of the semester we have studied the presidency of Richard Nixon, with an emphasis on the notorious Watergate break-in that shocked the country to its core.  The story of Watergate will be told and retold again through books, movies, and academics who have devoted their lives to researching this singular event in American history; in truth, Watergate is addicting.

The timing of the release of the Grand Jury testimony could not have fit more perfectly into our course this semester.  The National Archives opened 26 files from its records of the Watergate Special Prosecution Force collection, including transcripts of the grand jury testimony.  The testimony gave us exposure to an otherwise unattainable host of conversations and documents that without question enriched my understanding of Watergate.  It is important to note that by the time Nixon appeared in front of the grand jury in June of 1975 President Ford had already pardoned him.

One of the most interesting elements of the testimony that we devoted time in class for discussion about the number of times Nixon used the phrase ‘I do not recollect’ or alluded to having no memory of a particular event or exchange of words.  I found Nixon’s insistence that he did not recollect one thing or another to be much more hurtful rather than helpful, as he appeared inconsistent and unaware rather than simply forgetful.  Nixon was very defensive throughout the testimony, constantly painting himself as the victim.  Nixon sounded uncomfortable and at times awkward, as he responded to questions with flat humor and sarcasm that were at times painful to read.  It was no secret that Nixon was extremely bitter and cynical by the time he left office, and the transcripts very clearly depict that sentiment.

Throughout the transcript there was no profound admission of guilt; Nixon continually asserted that he was innocent. As expected, he did not stray from the original story regarding the 18-½ minute gap that was mysteriously missing from the recorded tape conversations, insisting that his faithful assistant Rosemary Woods accidentally erased it.  Unfortunately, it looks like the public will never learn what was really said between Nixon and Haldeman in those 18-1/2 minutes in which they most likely discussed the break-in, the cover-up, and everything in between.

The break-in at the Democratic National Committee in the Watergate building in Washington in June 1972 ultimately culminated with President Nixon’s resignation and the subsequent trial, indictment, and conviction of numerous top administration officials.  Despite his greatest efforts, Nixon’s legacy would embody Watergate and Watergate alone.  The Watergate scandal fundamentally changed the public’s perception of Washington and their ability to trust the President of the United States.  This kind of distrust of government hadn’t been experienced since the 1940’s and 1950’s where paranoia ran rampant and thousands were accused in the McCarthyist flurry of being Communists.

The 297 pages worth of testimony were only made accessible to the public vis-à-vis the efforts and determination of Watergate historian Stanley Kutler, who was granted a petition by D.C. Federal District Judge Royce C. Lamberth III.  In the grand scheme of things, the release of the testimony will likely establish a precedent for gaining access to grand jury proceedings surrounding such important events in the future.