WATERGATE AND THE CONSTITUTION

The Watergate scandal, starting with an illegal break-in at Democratic National Committee headquarters in June 1972 and ending with President gerald r. ford pardoning richard m. nixon in September 1974, produced one of the most significant constitutional crises in modern times. It raised a number of unsettling issues central to the constitutional structure of separation of powers.

The two major constitutional issues Watergate brought into focus were executive privilege and the scope of the impeachment power. In September 1972 a grand jury indicted the Watergate burglars but the Justice Department closed the investigation despite evidence of a wider conspiracy. Following the November election, the Watergate burglary trial began. In it defendants claimed they had been pressured to remain silent and plead guilty; that perjury was committed; and that "others" were involved. Such allegations led to the creation of a Senate Watergate Committee, headed by sam ervin, which began taking testimony, revealing a White House program of political espionage that included Watergate. Witnesses suggested that the President was participating in a coverup and that the President had made tape recordings of conversations in his office. The Ervin Committee attempted to subpoena such tapes, but the President refused to surrender them, claiming executive privilege. The committee then went to the courts, which in two cases (Nixon v. Sirica, 1973, and Senate Select Committee on Presidential Campaign Activities v. Nixon, 1974) attempted to define the line between a committee's power to compel testimony in order to perform its functions and the need for privacy in presidential communications. A third case, united states v. nixon (1974), arose out of a criminal prosecution of the President's aides. Both the prosecutor and the defense sought to subpoena the tapes, and the President again resisted. Chief Justice warren e. burger, for a unanimous Supreme Court, conceded a "presumptive privilege" for executive communications, but ruled that respect of the integrity of the judicial process required the courts to weigh any such claim against the importance of assuring the production in court of relevant evidence and ultimately of protecting the system of criminal justice. The Court thus ordered certain tapes produced. Their disclosures, which came at the height of the House of Representatives' impeachment process, demonstrated the President's active complicity in the coverup conspiracy from the first moment. This led Nixon to resign to avoid impeachment for "high crimes and misdemeanors."

The impeachment process was fraught with constitutional difficulties. Nixon's firing of a Senate-approved special prosecutor, given sweeping powers to investigate the Watergate scandal, had produced the initial demands for his impeachment. In October the House Judiciary Committee launched an impeachment inquiry. Questions promptly arose as to what constituted an impeachable offense, and what "other high crimes and misdemeanors" might include. Must these be criminal in nature and intent, or might they be quasi-political, involving gross breach of public trust? Was maladministration impeachable, or must a statutory offense or a serious crime be demonstrated? The President's attorneys argued the latter. The committee staff indicated a President might be removed for "substantial misconduct," not necessarily of specific criminal nature. This controversy was mooted by the revelations of the disputed tapes and by the resignation, but not before the House committee recommended three articles of impeachment to the House at large. Rejecting two articles dealing with income tax violations and the secret bombing of Cambodia, which raised the question of the extent of presidential emergency power in foreign affairs, the Committee contended that "Richard M. Nixon warrants impeachment and trial and removal from office" for other charges. These were: that he prevented, obstructed, and impeded the administration of justice; that he repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies; and that he failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives. Included as substantiating detail were fourteen examples of interfering or endeavoring to interfere with conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the Watergate special prosecutor, and congressional committees; endeavoring to misuse the Central Intelligence Agency; the electronic surveillance of private citizens; the break-in of a psychiatrist's office; and the unlawful campaign financing practices of the Committee to Re-elect the President.

An unresolved constitutional issue arose in September 1974: whether a subsequent President can issue a pardon in the absence of either a conviction or an indictment. A final question will trouble historians for years: did the Constitution work in Watergate, or did the crisis demonstrate fundamental failures in the governmental system?

Paul L. Murphy
(1986)

Bibliography

Kurland, Phillip 1978 Watergate and the Constitution. Chicago: University of Chicago Press.

Miller, Arthur S. 1979 Social Change and Fundamental Law. Westport, Conn.: Greenwood Press.

Murphy, Paul L. 1979 Misgovernment by Judiciary? Watergate and the Constitution. Harvard Civil RightsCivil Liberties Law Review 14:783–799.