The Supreme Court and Executive Privilege in the Watergate Scandal
By Chad A. B. Wilson
Published December 28, 2006, 9:02 am in News, Ethics, Morality, & Justice.
With the death of Gerald Ford on December 26, I have to have some kind of remembrance of him, but summaries of his Presidency can be found nearly anywhere. It seems appropriate to revisit one of our nation's most desperate times, but I don't necessarily want to talk about the Watergate scandal, for that news is definitely in the past, especially since Ford's pardon of Nixon in 1974. Instead, I want to apprach the the time from the perspective of the Supreme Court, who played a decisive role in the entire scandal with its single decision.
Nixon claimed "executive privilege," which is best defined by his own statement that "when the President does it, that means that it is not illegal." He expands on this in the 1974 interview: "it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution."
(Incidentally, this is the same kind of executive privilege G.W. Bush has asserted in several instances with the war on terror.)
The privilege makes sense in a limited way. The argument is this: the President has to make decisions quickly, and the office cannot constantly look over its shoulder to determine whether Congress will uphold it's decisions. This privilege is generally argued in times of war, but that's loose. It can be used to protect the nation against internal crises, as well.
But isn't the entire idea of our government the protection of checks and balances? Yep, that's the ideal: the three branches of government keep an eye on one another, and they protect the national interest, making everything work. So executive privilege is a dangerous doctrine because it bypasses these checks. But Nixon insists that the President is still bound by at least two checks: the electorate and appropriations by Congress. In other words, the President still has to be elected, so if the public elects a President who does certain things that may not be allowed in the Constitution, then that's okay because they still elect him or her. And Congress has to provide the money for what the President wants to do.
And executive privilege is also based on the idea of the separation of powers. Even though the branches of government check each other, they still have separate powers, and they should keep track of one another. They have different purposes, and they should not have to reveal every single thing they do to each of the other two branches. Does executive privilege allow the President to do whatever he wants?
But lets examine the 1974 Supreme Court decision of the United States vs. Nixon. Congress was investigating the Watergate scandal and the basic questions were about what Nixon knew and when he knew it. In other words, they needed to know if he tried to cover up the burglary and/or impede the investigation. When it was revealed that he kept tapes of his White House conversations, the problem was solved. No more questions becuase the answer could come straight from the horse's mouth, so to speak.
But Nixon didn't want to give up the tapes, obviously. They would reveal the cover-up and would probably lead to impeachment proceedings. So the special prosecutor in the case sued for the tapes, and it went to the Supreme Court very quickly. Interestingly enough, Nixon had the special prosecutor fired becuase he wanted to sue for the tapes, but that didn't stop it: the next prosecutor just pursued the matter even more strongly, and it was rushed through the courts.
Basically, Congress was suing the President to relinquish the tapes. So the Supreme Court was caught in the middle between the two branches. The problem is the axiom that the Supreme Court doesn't have an army. In other words, they could rule that the President should give up the tapes, but they could't force the President to do so.
Here was the worst case scenario: the Supreme Court could rule that the President was to give up the tapes, and the President could basically refuse, saying that the separation of powers kept him from being subject to the Supreme Court. The Congress could then order the seizure of the tapes from the White House, even sending in the police to get them. But then the Commander in Chief could order the army to protect the tapes.
Now that's what I call a crisis. Forget any other scandal. When the powers are pitted against one another using everything they got, Watergate seems silly. The Iran-Contra affair is child's play. What we're talking about here verges on revolution.
Praise God Nixon gave up, though. Who knows what would have happened otherwise.
But that wasn't really the end of it. As Ford said, the country was still preoccupied with Watergate, and his pardon was an attempt to put the issue to rest. With Nixon's pardon, there was no need to continue the investigation. All questions were settled, then, becuase nothing could happen to Nixon.
The question of presidential pardon may be another matter altogether, but I'll leave you with this: Nixon didn't admit his guilt; he didn't confess to his crime. But by pardoning him, and him accepting the pardon of crimes, he was tacitly admitting that he had done something worthy of punishment.
And that seems like enough. The nation did need to put the issue behind them. They did need to move on. Punishing Nixon by putting him in jail probably wouldn't help anything, anyway; the guy had actually been forced to give up the Presidency, after all. That seems like punishment enough.
So consider this my eulogy. Ford did well and right. It wasn't an easy decision, and he made the right one.
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