MayerBlog: The Web Log of
David N. Mayer

The Legacy of Watergate

                Eight years ago, in June 1997, I had the good fortune of participating in a local radio program commemorating the 25^th anniversary of the break-in at the Watergate office building in Washington, D.C.:  June 17, 1972, the famously- (and aptly-) characterized “third-rate burglary” that eventually brought down Richard M. Nixon’s presidency.  I appeared on the program with John (Jack) Chester, one of the deans of the Columbus, Ohio legal community, who sat next to me in the studio, and with Len Colodny, co-author (with Robert Gettlin) of the book Silent Coup: The Removal of a President (1991), who appeared via telephone.  We discussed a number of unanswered questions about the Watergate break-in and the subsequent investigation of it, leading up to Nixon’s eventual resignation.  We also talked about the legacy of Watergate and compared it to the then-emerging stories about corruption in Bill Clinton’s presidency. 

One of the many unanswered questions about the Watergate affair – the identity of “Deep Throat,” the anonymous source cited by Washington Post reporters Carl Bernstein and Bob Woodward in their investigative journalism – was finally answered at the end of May when “Deep Throat” revealed himself:  he was W. Mark Felt, now age 91, the former associate director of (and hence No. 2 man at) the FBI during the Nixon administration.  Over the past several weeks, since Felt’s revelation in an article in Vanity Fair magazine, the media has been filled with stories about Felt:  the mystery of Deep Throat’s identity has been replaced by a debate over the ethics of Felt’s actions.  People on the left side of the political spectrum (including most of Big Media, which has used the occasion to engage in a veritable orgy of self-congratulation over its role in Watergate and in Nixon’s downfall) generally have characterized Felt as a whistle-blowing hero.  Conservative commentators, including many Nixon admirers, on the other hand have characterized Felt as a bitter man, disappointed at not being named FBI director, who betrayed his president and violated the ethical standards of his office by revealing to the press confidential information about an ongoing criminal investigation.  Patrick Buchanan told Matt Lauer on NBC’s Today show, “There’s nothing heroic about breaking faith with your people, breaking the law, sneaking around in garages, putting stuff from an investigation out to a Nixon-hating Washington Post.”  According to Ben Stein, in a column in The American Spectator Online, Felt “broke the law, broke his code of ethics, broke his oath,” and helped depose Nixon, whose early exit from office made possible both South Vietnam’s fall to communism and the bloody genocide of the Khmer Rouge in Cambodia.  According to Buchanan, all Felt did was “help destroy an enormously popular president and, partly as a consequence of that, what 58,000 Americans die for in Vietnam was poured down the sewer.” 

The hyperbole of Felt’s detractors (and Nixon’s defenders) is easy to ridicule, so it’s not surprising that left-leaning (and Nixon-hating) mainstream journalists have joined the debate to do just that – and to engage in more than a bit of hyperbole of their own.  One of these left-leaning commentators, the Washington Post’s David Broder, wrote in a recent column that from comments like Buchanan’s, “Americans born in the ‘70s, ‘80s, and ‘90s can learn everything they need to know about the dangerous delusions of the Nixon era.  The mindset that created enemies lists, the blind loyalty to a deeply flawed individual, the twisting of historical fact to turn villains into heroes and heroes into villains – they are all there” (“’Deep Throat’ detractors are all wet,” June 5).  Well, from that paragraph in Broder’s column, younger Americans also can learn “everything they need to know” about the myth of the Watergate era, a myth being perpetrated by people on the political left (Democratic politicians, journalists, and academics) who’ve distorted the facts about the Nixon presidency and Watergate, masking its true legacy, and hypocritically ignoring the many parallels to the Clinton presidency that make Watergate quite pale in comparison. 

Among the key myths about Watergate that left-liberals keep perpetuating is the notion that, by eventually forcing President Nixon’s resignation, the investigations (both by journalists and by Congress) helped “preserve the Constitution” from Nixon’s abuses of power.  Broder concludes in his column that, thanks to Felt’s whistleblowing, “The Republic was saved and the public well served.”  The Republic was saved – FROM WHAT, exactly?  What were the alleged abuses of power by President Nixon and his administration that, according to these left-liberal bromides, so threatened our constitutional system? 

The basic crime at the root of the Watergate affair – the June 25, 1972 break-in at the Democratic National Committee’s offices in the Watergate office building – was indeed a “third-rate burglary,” as many commentators have characterized it.  That characterization does not detract from its essential nature as a serious crime – it was a violation of property rights (although most left-liberals today do not regard property rights as serious as all, compared with other so-called “human rights” that they prefer) – but the burglary itself was a sloppy, third-rate job, perpetrated by the “Plumbers,” a secret unit of President’s Nixon’s Committee to Re-Elect the President (CREEP – the acronymn says it all!), headed by that intriguing patriot/villain G. Gordon Liddy.  As Liddy himself has admitted, the Plumbers botched it by forgetting to remove some duct tape holding open a door latch; discovery of the taped door led Watergate security personnel to contact D.C. police and begin the criminal investigation, which was mentioned in a brief news item in the next day’s Washington Post.   Exactly what were the Plumbers doing in the DNC offices?  They were installing electronic eavesdropping devices – “bugs” – but where?  Not in the chairman’s office, but in the secretarial area.  Why there?  The exact reason is among the many unanswered questions we still have about the Watergate affair.  One answer, claimed both by Liddy in his book Will and by the authors of Silent Coup, was that the Plumbers sought to spy on a prostitution ring being run out of the DNC offices – in other words, that it was information about political “dirty tricks” (literally dirty tricks) that the Republicans sought about the Democrats.  All this espionage seems rather silly, in retrospect, given Nixon’s overwhelming victory over the Democratic presidential candidate, George McGovern, in the fall 1972 election.  The mere fact that the President’s re-election committee resorted to political espionage shows how far out of touch they were with political reality – in this case, the reality being both the weakness of the McGovern campaign and the President’s continuing popularity with the “silent majority” of Americans, who elected him to a second term. 

Of course, the real wrongdoing by President Nixon and his subordinates – the real abuse of power associated with the Watergate affair – was not the underlying crime, the Watergate break-in itself, but its cover-up, which involved abuse of governmental powers and obstruction of justice, going all the way up the chain of command to the President himself.  It wasn’t the break-in itself – with which, as far as we know, President Nixon was not involved (indeed, the authors of Silent Coup assert that it was presidential adviser John Dean, the man whose testimony to the Senate Watergate Committee helped bring Nixon down, who himself had ordered the break-in, without Nixon’s prior knowledge) – but rather it was his participation in the cover-up, that was Nixon’s personal undoing.  The so-called “smoking gun” – the piece of evidence that essentially was the final straw in the case for Nixon’s impeachment – was the audiotape of an Oval Office conversation in which Nixon said that a large sum of money could be obtained to buy someone’s silence.  This evidence was significant (and explains why Nixon’s secret White House tapes, ironically, were the effective cause of his own undoing) because they showed Nixon involved directly and personally in a criminal act – obstruction of justice – and thus fitted the narrow definition of impeachable “high crimes and misdemeanors,” offered by those constitutional scholars who argued that a president could not be removed for mere political malfeasance but only for actual, indictable crimes. 

In 1974 the House Judiciary Committee adopted a far looser standard of impeachment – one that considered all sorts of abuses of power as “high crimes and misdemeanors,” and one that held the President responsible for all acts done by his subordinates – when it voted to approve three articles of impeachment.  Article I, the strongest, focused on the Watergate cover-up:  it accused President Nixon of “using the powers of his high office, engaged personally and through his subordinates and agents,” of obstructing justice by impeding investigation into the Watergate break-in, and “to conceal the existence and scope of other unlawful covert activities.”  Article I alleged a variety of means used to carry out the cover-up; among them, making false or misleading statements to government investigators, withholding information from them, counseling witnesses to give false or misleading statements, and “approving, condoning, or acquiescing in the surreptitious payment of  substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses” or other individuals (the “hush money” Nixon alluded to in his “smoking gun” conversation).  The latter allegation was really the only specific charge in the articles of Nixon’s impeachment that could be tied directly to him, and his actions, personally.  Article II alleged a variety of serious offenses (potentially far more serious than the cover-up alleged in Article I) involving the abuse of executive powers – including the IRS, the FBI, and the CIA – but none of these allegations were tied directly to Nixon himself.  Finally, Article III, the weakest of the articles, alleged that President Nixon failed to produce certain papers and things as directed by the House Judiciary Committee – which really involved a dispute between Nixon and Congress over the scope of the so-called “executive privilege” that he had asserted – a political dispute that hardly rose to the level of an impeachable offense, by anyone’s measure.  Notice that none of the allegations in the Nixon impeachment articles concerned any so-called “enemies list”:  the list that people like Broder refer to was mythical; there was a list, facetiously referred to by some in the Nixon White House as a list of its “enemies,” but its purpose was only social – it was a list of people who were not to be invited to White House social events – hardly an abuse of power, for it was within the legitimate discretionary authority of the President and his staff.   

President Nixon resigned from office after he was told by Republican leaders in Congress that he would be impeached by the House and then probably convicted in the Senate.  That political reality did not make the allegations in the House Judiciary Committee’s articles of impeachment true:  evidence in support of them would have had to be presented to the Senate during its trial of Nixon; and whether such evidence existed, and how strongly it supported the allegations made in the articles, are among the remaining unanswered questions about Nixon’s presidency.  Assuming, however, that all the specifics alleged in the articles of impeachment were proved, do they constitute “high crimes and misdemeanors,” sufficient grounds to remove a President from office?  Probably so, because the Constitution’s standard is deliberately broad, or vague, to include all sorts of abuse of power.  The strongest evidence against Nixon personally, however, again was his participation in obstruction of justice, in covering up the Watergate break-in.  That’s an illegal act, but it’s hardly as “subversive of constitutional government” as the articles generally alleged. 

President Nixon did greater damage to the Constitution by signing into law the bill creating the Environmental Protection Agency than he did with any actions he took (or failed to take) concerning the Watergate matter.  (By what constitutional authority does Congress create a regulatory agency like the EPA – one that dangerously blends legislative, executive, and judicial powers – to control pollution?  It’s not within the enumerated powers the Constitution grants to Congress; it’s certainly not a “regulation of commerce,” legitimately considered.)  Indeed, President Nixon’s “moderate” domestic policies – which also included the imposition of wage and price controls, the effective start of the national “war on drugs,” and the expansion of welfare-state “entitlement” programs – by expanding the powers of the federal government far beyond those enumerated in the Constitution, really did damage the document, but no more (nor less) than the damage done by Nixon’s predecessors and successors in the White House, of both major parties.   

Returning to this month’s debate over Mark Felt’s role as Deep Throat – was he a hero or a villain? – George Neumayr, executive editor of the conservative journal The American Spectator, has written how this new revelation about the Watergate affair has breathed new life into the “radical chic culture” of the political left, exposing its hypocrisy.  “Mark Felt’s emergence as Deep Throat has occasioned a prolonged Old Timer’s Day of the American left, allowing various aging fakers to take one last, long victory lap.  With relish they have renewed their intense moralizing about Richard Nixon even though their own ethics evaporated a long time ago.  We overthrew a corrupt order, they in effect say by puffing themselves us – an arrogance that would be more comprehensible if they hadn’t proceeded to create a new corrupt order.  The champions of Deep Throat built atop the ruins of Richard Nixon not a better culture but a base culture that would culminate in the Deep Throat presidency of Bill Clinton.” 

The left’s “feverish, self-justifying nostalgia” that Neumayr so astutely describes has created a myth about the Watergate affair, its role in bringing about the end of Richard Nixon’s presidency, and its legacy.  And because most history textbooks are written by leftists these days, the left’s Watergate myths have become the new orthodoxy.  Under this orthodoxy, the Nixon administration was “corrupt,” a real threat to the constitutional order; Nixon was forced to resign under public pressure as more and more details about his administration’s crimes were exposed by a news media interested only in good government; and “reform” legislation passed by Congress in the wake of Watergate helped “clean up” American politics and ensure there’d never be another Watergate.  All these claims are false. 

First, let’s consider the assertions that Nixon was “a crook” (as he himself famously denied), that his administration was “corrupt,” and that the Watergate wrongdoings threatened the American constitutional order.  As noted above, these claims are egregious exaggerations:  to be sure, Nixon apparently was guilty of the crime of obstruction of justice, in attempting to cover up the Watergate break-in.  Did he abuse the powers of his office, violating the rights of American citizens?  Yes.  Did these abuses of power do serious and lasting damage to the Constitution?  The only rational answer is an emphatic “No”:  the Watergate affair – which essentially involved covering up a third-rate burglary to avoid the political embarrassment that would follow from public exposure of the president’s political operatives’ dirty tricks – was, relatively speaking, small potatoes in the history of American presidents’ abuses of the powers of their office.  Everything Nixon and his lieutenants did in regard to Watergate, surreptitiously, over the course of two and a half years, did less damage to the Constitution than did, say, Franklin D. Roosevelt, openly, on any average day during his thirteen-plus years as president.  And as noted below, the wrongdoings of the Nixon administration pale in comparison to those of Bill Clinton’s. 

Second, let’s consider the claim that it was the news media – and in particularly, the Washington Post and its “investigative journalist” golden boys, Woodward and Bernstein – who ultimately forced Nixon out of office, by exposing the Watergate affair out of a disinterested desire to serve the public interest.   The notion that the news media was disinterested is ludicrous, considering the deep-rooted hatred most journalists had for Richard Nixon.  The left-wing political bias of the news media, after all, is not a new phenomenon:  although it has been well-documented (and publicized) only relatively recently (see Bernard Goldberg’s excellent exposes in his books Bias and Arrogance), it has been present in American journalism for at least several decades, since the 1930s, I’d guess.  (Consider, for example, how leftist journalists sympathetic with FDR’s New Deal programs joined him in ridiculing Supreme Court justices who ruled those programs unconstitutional as “the Four Horsemen,” an unflattering nickname – to put it mildly.  Or how star-eyed journalists in the early 1960s glorified the mediocre Kennedy administration, creating the “Camelot” myth, and covered up JFK’s personal indiscretions?  As George Neumayr notes in his American Spectator piece, the Washington Post’s Ben Bradlee “is hardly a credible scourge of corruption in the presidency.  He was John F. Kennedy’s see-no-evil boon companion. . . . Why did Ben Bradlee give two cub reporters investigative carte blanche against the Nixon White House? . . . Just as Bradley covered for Kennedy out of personal support, so he exposed Nixon out of personal hatred.”  What should we expect from a profession whose members overwhelmingly vote in favor of left-liberal Democrats, who think socialism is chic and capitalism passé, and who look with equal disdain on Republicans and businessmen?) 

Well before the Watergate affair, the left-liberal mainstream press was out to get Nixon.  The irony is that Nixon, although a Republican, wasn’t a conservative; he was a moderate – someone who, as president, expanded government – as I’ve noted, his administration created the EPA, imposed wage and price controls, and expanded the welfare state much beyond LBJ’s touted “Great Society” programs – but, in politics and in other things, everything’s relative.  Sure, Nixon expanded government – but he didn’t expand it as much or as fast as 1970s leftists, still caught up in the heady spirit of the Sixties, wanted.  Many on the political left in both journalism and academia were looking for a reason – any reason – to push Nixon out of office.  In March 1973 – just before Watergate became a big story – the New York Times published a series of articles warning that Nixon was “fighting for the strongest presidency since FDR” and decrying not only Nixon’s military actions in Southeast Asia but also the exercise of his discretionary powers as chief executive by spending less money than Congress appropriated (his controversial policy of “impounding” funds) and his “New Federalism” policies that sought to turn more authority back to state and local governments.  One of the articles in the series had the ominous headline, “Is the Congress Helpless Against Nixon Power Grab?” and quoted historian Henry Steele Commager arguing, “One answer would be impeachment if the Congress had any guts, but it doesn’t.”  He was talking about Nixon’s impoundment of funds appropriated by Congress. 

After news of the Watergate affair broke, Nixon’s enemies did not have to resort to such dubious constitutional theories.  Watergate conveniently gave them the pretext to bring down Nixon’s presidency – but through his involvement in Watergate, Nixon gave his enemies the rope with which they’d hang him (metaphorically speaking, of course). 

In the end, the media played an important role in bringing about the end of the Nixon presidency, but it would be wrong to credit the media for playing the critical role.  All that Woodward, Bernstein, and their “Deep Throat” inside informant Mr. Felt did, in telling the Watergate story, was but a prelude to the real investigation, which was done not by journalists but by Congress, special prosecutors, and the judiciary.   The Senate’s special Watergate committee, chaired by Sen. Sam Ervin (D.-N.C.) kept the matter in the headlines with the live television coverage of its hearings in the spring and early summer of 1973 – hearings that, among other things, revealed the existence of the secret taping system in the Oval Office.  Watergate stayed in the news, thanks to the diligent efforts of special prosecutor Archibald Cox, the drama of his firing (or Nixon’s “Cox sacking,” as some pundits put it) in the so-called “Saturday Night Massacre” in October 1973, the subsequent shake-up in the Nixon Justice Department, and eventually the continued diligence of the new special prosecutor, Leon Jaworski, whose efforts to get the federal courts to subpoena the White House tapes led to the critical Supreme Court decision in United States v. Nixon (1974).  When the Court rejected Nixon’s claims of “executive privilege” and ordered that he turn over the tapes to the federal court, the “smoking gun” conversation finally was revealed.  Within a few weeks, the House Judiciary Committee held its hearings and voted its articles of impeachment. 

President Nixon resigned from office, as noted above, when he was faced with the political reality of Congressional votes he was not likely to win:  a House vote in favor of his impeachment, and a Senate vote finding him guilty and removing him from office.   These votes would have been truly bipartisan, he was warned by the Republican leaders of Congress, who put the good of their country above their loyalty to their party and their president.  Nixon, to his own credit, resigned to spare the nation the ordeal of the impeachment process.  In other words, he was a true patriot, for he put the good of the country above his own political fortunes, even his own honor – in stark contrast with what Bill Clinton would do in 1998-99, as noted below – and thereby, Nixon redeemed his honor. 

Thus, as so-called “constitutional crises” go, the Watergate affair was pretty tame.  All in all, it showed our constitutional and legal system as not in “crisis” at all but rather working exactly as it should – and exactly as the Founders intended it, to curb abuses of power at even the highest levels of our national government.  Everyone involved did their jobs commendably well – and not just Congress, law-enforcement officers, and the courts – but also the President himself.  

Finally, there’s the myth about Watergate’s “legacy.”  Contrary to what most people believe, we did not learn any important lessons from the Watergate affair.  The basic problem that made it possible is still unresolved and indeed has become worse in the years since 1974:  a federal government with far too many powers, exceeding those delegated to the national government under the Constitution, and concentrated in the office of the president, which has grown dangerously in power far beyond what the Founders feared in their wildest imaginations.   

Congress did not help with the post-1974 “reform” legislation it passed in the wake of the Watergate affair:  its misguided reactions to Watergate actually increased rather than lessened the potential for genuine corruption and abuse of power.  For example, in 1974 Congress added sweeping amendments to the Federal Election Campaign Act of 1971, which established the current regime of campaign finance regulation, to be enforced by a new independent administrative agency, the Federal Election Commission (FEC).  The new campaign finance laws, among other things, sought to limit the size of contributions to all candidates for all elected federal offices as well as to limit total spending on House and Senate races to ridiculously inadequate amounts; the Supreme Court, in its finite wisdom, in its decision in Buckley v. Valeo (1976), upheld the former (limits on contributions) but struck down the latter (limits on spending), recognizing that both kinds of limitations do infringe on the First Amendment right to free speech but maintaining that such infringement could be justified, up to a point, by merely the potential of “corruption” or “the appearance of corruption.” 

One might ask, with good reason, What the hell did these new federal regulations of campaign financing have to do with the Watergate affair?  The connection was quite tenuous – for, as noted above, among the allegations of wrongdoing against Nixon was the possible use of  campaign funds to pay “hush money” to facilitate the cover-up – but from this dubious connection to the Watergate matter, and under the cloak of fighting against “corruption” (never mind exactly what that means), Congress passed legislation controlling federal campaign contributions and regulating expenditures in such a way that, among other things, helps guarantee the re-election of incumbents.  In other words, Congress responded to a potential  danger to the Constitution with legislation that actually abridged constitutional liberties – namely, the freedom of political speech.  As my friend and colleague (and outgoing FEC commissioner) Brad Smith shows in his splendid book Unfree Speech: The Folly of Campaign Finance Reform (2001), the so-called “reforms” of 1974 and thereafter have effectively entrenched incumbents and have stifled grassroots political participation.  As Commissioner Smith observed in his June 14 resignation letter to President Bush, “Political activity is more heavily regulated [today] than at any time in our nation’s history. . . . [D]uring my tenure the FEC has assessed penalties against parents for contributing too much to the campaigns of children; against children for contributing to the campaigns of parents; and against husbands for contributing to the campaigns of their wives.  We have required citizens to respond to complaints for the display of homemade signs supporting a candidate.  These are just a few examples:  the Commission’s regulations take up nearly 400 pages of fine print.” 

            One more example of Congress’s misguided reaction to the Watergate affair ought to be cited.  Because the Nixon allegations included possible misuse of law enforcement agencies such as the FBI and CIA, Congress also passed legislation in the wake of  Watergate, the Foreign Intelligence Surveillance Act (FISA) of 1978, that mandated a “wall” between the FBI and CIA intelligence-gathering operations, presumably to help maintain the distinction between the agencies, in their domestic and foreign operations, respectively, and thus help prevent either from abusing its power.  One unforeseen consequence of this, unfortunately, were the security lapses that made possible the September 11, 2001 terrorist attacks on the U.S.  Now, with the creation of yet another new government agency to oversee intelligence operations, Congress supposedly “corrected” the problem that it itself had created, through its overreaction to Watergate.  Again, out of fear of a potential abuse of power, Congress mandated a “solution” that actually made the United States more vulnerable to terrorist attacks.  So much for the “legacy” of Watergate, in terms of Congress’s reaction. 

To see how Americans – and particularly their representatives in Congress – learned so little from the Watergate affair, we need only to consider the record of Bill Clinton’s presidency and the failure of the effort to remove Clinton from office in 1998-99.   Well before the Monica Lewinsky matter became public – indeed, prior to the 1996 presidential election – Clinton’s administration had become the most corrupt in American history.  Virtually every single allegation of wrongdoing against Nixon in the 1974 articles of impeachment had a counterpart – using a far more serious counterpart – in the allegations against Clinton that emerged, largely in the conservative press.   What Hillary Clinton (and other apologists for her and her husband’s wrongdoing) dismissed as partisan attacks by a “vast right-wing conspiracy” were, in fact, serious allegations of abuse of power that, if true, would make the Watergate allegations pale in comparison.  As I observed in a 1996 essay, “Clinton Presidency: The Most Corrupt in American History,” the record of the Clinton presidency after only his first term in office read like a textbook of presidential corruption, with abuses of power comparable not only to the Nixon administration’s but also to other presumably corrupt presidencies, such as Warren G. Harding’s (the so-called Teapot Dome scandal).  These abuses included the Whitewater affair (which involved both Hillary and Bill Clinton in a fraudulent land scheme for which their co-conspirators, Susan and Jim McDougal were convicted and sent to prison), “Travelgate” (which involved misuse of the FBI to trump up false charges against White House travel office personnel, to make room for Clinton cronies), and “Filegate” (which involved White House officials in the misuse of hundreds of FBI files for purposes of political dirty tricks – the kind of offense for which a Watergate conspirator, Charles Colson, was convicted and sentenced to a prison term, for misuse of just one FBI file!). 

When Congress finally considered the wrongdoing of the Clinton administration, however, it focused not on these serious allegations but rather on the more limited (and also more salacious) allegations concerning Clinton’s sexual affair with the White House intern Monica Lewinsky.  Notwithstanding Clinton’s continued unjustified attacks on Kenneth Starr, the special prosecutor who investigated these allegations – whom Clinton and his apologists continue to try to paint as a “right-wing” ideologue who was “out to get” Clinton – Starr actually did Clinton a huge favor by taking a narrow view of impeachable offenses.   (Yet another real political legacy of Watergate – the federal special-prosecutor law – thus, paradoxically, actually might have helped shield the president and his administration from responsibility for their wrongdoing.  Recognizing this, Congress subsequently has repealed the law.) 

Rather than holding Clinton responsible for all the illegal acts done by his subordinates – the broad standard followed by the House Judiciary Committee in 1974 (and, in one of those delicious ironies of history, recommended by then-Judiciary Committee staffer Hillary Rodham) – Starr took the view that Clinton could be impeached only for indictable crimes he personally committed.  That’s the principal reason why the impeachment focused on the Lewinsky affair.  As I have told my students, it’s analogous to the Feds going after Al Capone for income-tax evasion in the 1930s:  tax-evasion was the least of Capone’s crimes, but it was the one at which he could be caught red-handed; just as the Lewinsky matter was but the tip of the iceberg of Clinton’s wrongdoing, but the one offense at which he could be caught red-handed (or shall I say, open-zippered?)  Clinton abused the powers of his office for purposes of mere sexual gratification, but his sexual harassment of Ms. Lewinsky was not the subject of his impeachment – like the third-rate burglary at the Watergate, it was the underlying act of wrongdoing – but rather, it was his cover-up of the affair that constituted the criminal acts for which he was impeached.  Why did he cover it up?  Not to avoid personal embarrassment (Clinton seems to be the kind of man who feels no shame for his wrongful acts), but rather to avoid civil liability in the sexual-harassment lawsuit brought against him, for his acts while governor of Arkansas, by Paula Jones.  When the Supreme Court rejected Clinton’s extraordinary claim of executive immunity from civil action – a claim that exceeded Nixon’s executive privilege doctrine, and which was rejected by the Court in a decision comparable to its 1974 decision in U.S. v. Nixon – Clinton’s potential liability to Ms. Jones led him to try to cover up his affair with Ms. Lewinsky by the same means that Nixon was alleged to have used in the Watergate cover-up:  among other things, making false or misleading statements to investigators and to the public, counseling witnesses to give false testimony, and obstructing investigations. 

Clinton was impeached by the House of Representatives for offenses that were just as serious crimes – perjury and obstruction of justice – as those for which Nixon was almost impeached.  And the evidence shows Clinton was guilty of these offenses.  Nevertheless, the Senate failed to find him guilty – the Senators voted 45-55 to convict on the perjury charge and 50-50 to convict on the obstruction of justice charge, far short of the two-thirds vote needed for conviction – largely for political reasons, Clinton’s continued popularity with the American people.  In contrast with the events of 1974, when Congress held Nixon accountable for his wrongful acts in a truly bipartisan fashion, the Democrats in Congress in 1998-99 rallied to Clinton’s support – in effect, prostituting their own integrity and the integrity of their political party, for partisan purposes – and thus portrayed the impeachment effort as a partisan Republican attack on Clinton, notwithstanding the facts of his wrongdoing.  The Senate failed to do its duty, to act as the Founders intended it – a body more insulated from public opinion than the House, and which in trying cases of impeachment was meant to follow the evidence impartially, just as jury ought to do in an ordinary criminal trial – and instead acquitted Clinton, for political reasons.  Sadly, the failed attempt to remove Clinton from office might mean that no future president – at least if he’s sufficiently popular – can be held accountable for his wrongdoing, as David P. Schippers has argued in his insightful book Sell-Out: The Inside Story of Clinton’s Impeachment (2000). 

Clinton’s presidency not only damaged the Constitution in ways that make the Nixon administration’s Watergate-related crimes pale in comparison, but also undermined the general principle of the rule of law.  A partial catalog of the various ways in which this importance principle in Anglo-American constitutionalism was seriously damaged by the Clinton administration can be read in the book The Rule of Law in the Wake of Clinton (Roger Pilon ed., 2000).  To mention just a few:  abuse of the power to issue “executive orders” and thereby usurping the legislative powers of Congress, increased domestic surveillance that undermined citizens’ right to privacy, expansion of the “war on drugs” to further undermine other constitutional rights, additional restrictions on property rights and economic liberty, improper campaign fundraising activities, undermining basic principles of tort law in the government’s “war on tobacco” as well as basic principles of fairness (and citizens’ rights) in the antitrust action against Microsoft, abridging citizens’ Second Amendment rights (and further expanding federal powers) in the administration’s “war on guns,” and politicization of executive agencies, including FEMA, the INS, and the Justice Department – the latter, to cover-up wrongdoing by Clinton administration officials.  (Indeed, the Clinton Justice Department under Janet Reno not only thwarted justice, when it came to holding administration officials accountable, but also actively committed acts of injustice, in pursuit of Ms. Reno’s personal political agendas – such as the mass murders committed by federal law-enforcement officers at the Branch Davidian community in Waco, Texas, or the return of the little boy, Elian Gonzales, to Cuban communist tyranny.)    

At least two other seriously important abuses of power by the Clinton administration came to light after publication of this book:  revelations about the possible sale of missile technology secrets to Communist China in exchange for campaign contributions to the Democratic Party (allegations which, if proven, would amount to treason, which of course is another impeachable offense) and abuse of the presidential pardoning power, through Bill Clinton’s “midnight pardons” at the end of his presidency – including his pardon of his co-conspirator in the Whitewater crimes, Susan McDougal, to reward her for her silence in refusing to implicate him or Hillary.  (I noted in my 1996 essay that Clinton’s possible pardon of McDougal was raised as an issue that year, and that Clinton’s response was equivocal.  I also noted that potential abuse of the pardoning power was among the reasons that some Antifederalists, such as George Mason, cited in their opposition to ratification of the Constitution.  Mason’s concern – that a president might use his pardoning power “to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt” – had been dismissed as paranoid, by generations of American political historians, until Bill Clinton’s presidency made this potentiality an actual historical fact.) 

The real legacy of the Watergate affair is the proof it provided of the truth of Lord Acton’s famous maxim, “Power corrupts, and absolute power corrupts absolutely.”  The lesson to be drawn from this truth is the need for Americans to be ever-vigilant in defense of their liberties – and always skeptical of government and of the individuals whom they have entrusted with political power.  The more power we cede to politicians, the more likely they are to abuse it:  that’s a truth rooted in the realities of human nature.   

The Watergate affair also helped prove the importance of maintaining constitutional safeguards:   the elaborate system devised by the framers of the Constitution to help ensure against the abuse of power by such structural devices as federalism, the separation of powers, and checks and balances.  To be effective, these safeguards must be respected and enforced by all branches of government – and overseen by a vigilant American people.  As Thomas Jefferson observed, “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”  As American citizens, we ought to constantly demand that all persons who hold political office – not only the president, but the members of Congress, all federal agencies, the judiciary, as well as all their counterparts in state and local government – be “bound down from mischief” by the “chains” of the Constitution, and that those chains remain strong and in good working order. 

Finally, the Watergate affair helped prove the importance of maintaining the rule of law -- the general principle that law ought to operate impartially, according to objective rules equally applied to everyone, “the rule of law rather than the rule of men” – and one of its more important corollary principles, that no one – regardless of high political office, or popularity – is “above the law.”  We failed to follow the rule of law – and to enforce the “chains of the Constitution” – during Clinton’s presidency.  The fact that Slick Willy was not removed from office in disgrace but still makes headlines as a celebrity ex-president (and also makes millions of dollars in royalties from sales of his “autobiography”) shows that the American people have not yet fully learned all the lessons of Watergate.

      | Link to this Entry | Posted Friday, June 17, 2005 | Copyright David N. Mayer