It has been a privilege to participate in Law & Liberty’s forum on the half-century anniversary of Watergate. Tho-ugh no study of a consequential historical episo-de is ever idle, the scrutiny of President Richard M. Nixon’s downfall is especially edifying beca-use of the light it sheds on contemporary events.
I’ve maintained for many months that the ongoing House select January 6 Committee investigating the Capitol riot is, in essence, the impeachment investigation that Congress failed to do when House Democrats rushed through a politicized impeachment article a year-and-a-half ago. As a result, at the very moment my interlocutors and I have addressed the lessons of Watergate here, the need to assimilate them becomes ever clearer: The Justice Department is currently leveraging its comparatively muted investigation of former President Donald Trump with the work of a high-profile, intensely political congressional committee. It is riding roughshod over constitutional protections and other due process guardr-ails that federal prosecutors would otherwise have to honor. The same thing happened in Watergate.
To profit from insights into this essential historical chapter by three analysts whose work I deeply admire is a coup. I am thus grateful to Professors Glenn Harlan Reynolds, Joseph Postell, and Mike Rappaport for their thoughtful comments on my opening essay, and even more for their reflections on attendant, contemporary challenges that I may have shortchanged—my objective having been to provide a faithful rendition of what actually happened in Watergate, since I am convinced that it has been misunderstood.
Degrees of Culpability
On that score, I respectfully suggest that Professor Rappaport has conflated the importantly discrete matters of guilt and degree of culpability. Contrary to his suggestion, and quite different from the posture of Geoff Shephard, whose bo-ok on Watergate is stellar but who actually was Nix-on’s lawyer (which I most certainly am not), my essay is not a defense of Nixon. I undertook, instead, to show that his malevolence has been overstated; that the political establishment that shrieked in condemnation of his behavior turned a blind eye to analogous antics by Democratic presidents (before and after Nixon); and that when impeachment is implicated, an offender’s degree of culpability is the dispositive issue, which is not the case in criminal prosecution.
For what it’s worth, I am a longtime proponent of the unitary executive theory. As I observed in the opening essay, Nixon’s modern defenders stress the divisions of authority in his administration and the resulting compartmentalization of the Watergate crimes, in terms of which officials participated and to what degree of guilty knowledge. Nevertheless, I countered, these were still the Nixon administration’s crimes, which made Nixon ultimately responsible for them.
Moreover, an argument in mitigation is not an exculpatory argument. It concedes guilt and seeks to place conduct in the more benign light of context. Oddly, Rappaport concedes that I am correct, for example, that Nixon was trying to cover up not the Watergate break-ins (of which his knowledge was scant at the time of the “smoking gun” recording), but contributions from donors (Democrat heavy hitters) whose identities had been withheld in arguable violation of a then-new campaign-finance law. Yet he then insists this is a distinction without a difference because Nixon “was still breaking the law for political purposes.” But that is exactly what I said:
The remorseless fact is that it was Nixon’s campaign and the Nixon administration. He was responsible for the actions of his subordinates, including their lawlessness. The buck stopped with him. And while interfering in a criminal investigation to honor a legally questionable confidentiality promise to donors would not be egregious as interfering in a criminal investigation to conceal an administration’s connection to a felony break-in to facilitate political spying, it would still be obstruction of justice.
The point was not to claim that Nixon was innocent. It was to lay the groundwork for demonstrating that Nixon would not have been impeached in the modern partisan and media environment. The Framers intentionally made impeachment and removal hard to do. The two-thirds’ supermajority requirement for Senate conviction ensures that no president can be removed (and disqualified from future office) absent a national consensus in support of that outcome, cutting across partisan and ideological lines. Ergo, defenses that would get nowhere in criminal court (where the dispositive question is guilty or not guilty) gain traction in impeachment. In the latter, the dispositive question is not whether there was misconduct, but whether the misconduct was so egregious that it warrants the Constitution’s nuclear option of ousting the chief executive, with all the political and societal tumult that entails.
A Different Media Ecosystem
On this score, I believe Professor Reynolds ably diagnoses the next historical phase of political combat. My argument was that Nixon could not survive, while Trump did survive, largely because of a sea change in the media landscape during the ensuing 50 years. (To the extent Professor Rappaport has convinced himself that salient aspects of the 1970s progressive media monolith “helped Nixon,” we’ll just have to agree to disagree.) Reynolds cautions that the media landscape is transforming today, in some ways more drastically than it did between Watergate and the Obama era. What he calls today’s “progressive apparatus,” progeny of what I’ve labeled “the media-Democrat complex,” is a daunting challenge.
Many Americans no longer get their news (to the extent they engage at all—which is a different frightening problem) from the legacy press or the alternative media (including its significant conservative precincts). They get it from giant social media platforms controlled by private corporate interests that are dominated by progressives. The tech giants can suppress relevant news—for example, the burying of reports about Hunter Biden’s scandalous laptop during the 2020 campaign stretch run—without fear of liability.
The First Amendment outlaws news suppression by government, not private media. Plus, Big Tech has statutory immunity. I do not regard as salutary such proposals as a new regulatory bureaucracy or the stripping of private actors’ imm-unity; I believe they’d res-ult in even more suppression of conservative spee-ch. Like Reynolds, then, I am heartened by the possibility that Elon Musk, who appears to be a free-speech devotee, may buy Twitter. Advocacy of market solutions may make populist conservatives bristle, but history teaches us that tech moves faster than our ca-pacity to regulate it efficiently.
The Administrative State
Finally, I am very sympathetic to Professor Postell’s critique of the administrative state. Still, as it pertains to Watergate, while the bureaucracy’s hostility to Nixon provided after-the-fact momentum for his downfall, it was not the cause of the crisis.
It is no doubt true, as Postell contends, that Nix-on hoped to shift responsibilities for some Great Society domestic programs to the states, and that this provoked fierce opposition from progressives who’d labored for decades to centralize ever more control in Washington. Nixon, however, was hardly Leviat-han’s implacable enemy; he spearheaded some of its most important growth (as I noted in the opening essay, OSHA, EPA, the Endan-gered Species Act, and expansions of the Clean Air Act, Social Security, Me-dicare, and Medicaid). Mo-re to the point, though, the Watergate crisis was triggered by the burglaries, and more foundationally by Nixon’s tragic misjudgment in trying to run a special-investigations unit within the White House to combat government intelligence leaks.
To be sure, these leaks came from within government agencies. Neverthe-less, the leaks were instances of political opportunism (e.g., the Pentagon Papers), not schemes to provoke the Nixon administration’s self-destructive misstep. Once the scandal gained media traction, government leaks intensified it; but again, this seems to have been political opportunism. Progressive Democrats took Nixon out because they could, not specifically because he was bent on dismantling the administrative state.
Interestingly, a closer fit to what Professor Postell portrays was Trump’s 2019-20 impeachment over dealings with Ukraine. Contrary to Trump’s Capitol riot-based impeachment, which resulted from serious executive misconduct, the Ukraine episode was a trifle. The claim was that Trump abused his foreign-policy power by withholding military aid to pressure Ukraine to investigate possible corruption of Joe Biden, his political rival. But in the end, Trump gave Ukraine the aid, Ukraine never investigated the Bidens, and there were sound reasons to suspect corruption (Joe Biden’s son Hunter having been given a lucrative sinecure by a regime-tied energy company while the then-vice president was point-man for Obama’s Ukraine policy).
Trump’s impeachment over this kerfuffle was the result of collaboration between congressional Democrats and bureaucrats in the sprawl of U.S. foreign-policy agencies. It was a straight-line partisan exercise by Democrats disappointed that the Mueller probe had not succeeded in generating Trump’s impeachment and prosecution. It stands further as a renewed demonstration of the administrative state’s raw power and transnational-progressive orientation.
In sum, the Ukraine impeachment manifested the very perils of political factionalism that caused the Framers’ trepidation about potential abuses of legislative power. In crafting the Constitution, they took pains to arm the executive to resist congressional control, vesting the president with independent and competing powers, and hampering Congress’s impeachment check by the aforementioned supermajority requirement for conviction in a Senate trial. Watergate still has much to teach us. The detachment of history gives us a more accurate understanding of what happened, and the press of the now reminds us that history’s blunders recur if we fail to learn from them.