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THE OTHER SIDE OF LAW AND ORDER: NIXON AND THE CONSTRAINTS OF LAW

The Example of Watergate

President Nixon's emphasis on law and order often clashed with the way the Nixon administration operated. The administration often acted as if it were not subject to the limits of constitutional and statutory restrictions, particularly in its political-campaign activities. The conduct of the Watergate affair and cover-up provides the clearest example of this attitude. The Watergate affair started with the arrest of Nixon campaign operatives for attempting to burglarize the Democratic National Committee headquarters. Several officials, including Nixon, then became involved in an illegal cover-up. Their actions included destroying evidence, paying the Watergate burglars to keep silent, and refusing to obey court orders to provide evidence. The cover-up conspiracy failed only when one of the convicted burglars revealed the payoffs and prosecutors were able to persuade White House officials to cooperate. White House and campaign officials were convicted and served time in prison for their actions. Nixon himself would have stood trial if President Gerald Ford had not pardoned him.

Political Enemies and Security Targets

After the Watergate affair was revealed, it became clear that the Nixon administration's conduct was typical of its approach to politics. Presidential operatives connected to the White House or the reelection campaign undertook many illegal activities against those they considered political enemies. They broke into the office of former Pentagon official Daniel Ellsberg's psychiatrist hoping to find embarrassing information after Ellsberg helped release the secret Department of Defense study of the Vietnam War, commonly referred to as the Pentagon Papers. They constructed an "enemies list" and then directed the FBI, IRS, and other federal agencies to target those individuals and groups for harrassment. They approved the "Huston plan," which authorized the CIA, FBI, and Department of Defense to commit burglaries and other illegal acts against persons identified as "internal security targets." They organized a group of aides called the Plumbers to probe and plug leaks of government and political information to the press. These and other illegal actions by the Nixon administration and reelection campaign made it clear that they believed that they should be free from the provisions of the criminal law that they argued should be strictly applied to others.

Executive Privilege

Nixon's resistance to the Watergate investigations also raised important constitutional questions about the relative powers of the presidency, Congress, and the courts. Most important was the issue of executive privilege. The issue came up in the fight over tape recordings that Nixon regularly made of his meetings in the White House. Archibald Cox, the special prosecutor appointed to investigate the Watergate coverup, requested those tapes. He wanted to know what White House officials knew of Watergate and whether they discussed a cover-up. President Nixon refused to turn over the tapes. He argued that to do their jobs all presidents need to conduct free and open exchanges with aides and staff in an environment protected from public scrutiny; thus it would be against the public interest to produce the tapes. President Nixon claimed that all presidents have an "executive privilege," meaning that they do not have to comply with requests for information from Congress or the courts.

United States v. Nixon

The Supreme Court finally addressed the question of executive privilege in United States v. Nixon on 24 July 1974. The Court faced a dilemma. Certainly free and open discussion between the president and his aides was desirable. But if that meant presidents never had to comply with court orders, the Court would be agreeing that the president was completely above the law. That approach was not compatible with a constitutional system. The Supreme Court unanimously decided that President Nixon had to turn over the tapes. However, they also agreed that there was some limited form of executive privilege. They restricted executive privilege to national security considerations.

Aftermath

The Supreme Court decision marked the end of Nixon's resistance. He turned over the tapes as ordered. The House of Representatives Judiciary Committee soon approved three articles of impeachment. On 9 August 1974 President Nixon resigned, and Vice-president Gerald R. Ford became president. The Watergate affair raised questions about the role of the president in American democracy. Americans since have been concerned about abuses of power in the presidency. The legacy of Watergate includes the creation of special prosecutors, who have been used several times to investi-gate possible wrongdoing.