- Historic Sites
I. The Hour Of The Founders
In which a President fails to fulfill his constitutional duty to “take care that the laws be faithfully executed.” And a reluctant Congress acts.
June/july 1984 | Volume 35, Issue 4
Back on July 16, 1973, a former White House aide named Alexander Butterfield had told the Ervin committee that President Nixon secretly tape-recorded his most intimate political conversations. On two solemn occasions that spring the President had sworn to the American people that he knew nothing of the Watergate cover-up until his counsel John Dean had told him about it on March 21, 1973. From that day forward, Nixon had said, “I began intensive new inquiries into this whole matter. ” Now we learned that the President had kept evidence secret that would exonerate him completely—if he were telling the truth. Worse yet, he wanted it kept secret. Before Butterfield had revealed the existence of the tapes, the President had grandly announced that “executive privilege will not be invoked as to any testimony [by my aides] con- cerning possible criminal conduct, in the matters under investigation. I want the public to learn the truth about Watergate. …” After the existence of the tapes was revealed, however, the President showed the most ferocious resistance to disclosing the “truth about Watergate.” He now claimed that executive privilege—hitherto a somewhat shadowy presidential prerogative—gave a President “absolute power” to withhold any taped conversation he chose, even those urgently needed in the ongoing criminal investigation then being conducted by a special Watergate prosecutor. Nixon even claimed, through his lawyers, that the judicial branch of the federal government was “absolutely without power to reweigh that choice or to make a different resolution of it. ”
By March 1974 some twenty-eight presidential aides or election officials had been indicted for crimes carried out in the President’s interest.
In the U.S. Court of Appeals the special prosecutor, a Harvard Law School professor named Archibald Cox, called the President’s claim “intolerable.” Millions of Americans found it infuriating. The court found it groundless. On October 12, 1973, it ordered the President to surrender nine taped conversations that Cox had been fighting to obtain for nearly three months.
Determined to evade the court order, the President on October 19 announced that he had devised a “compromise.” Instead of handing over the recorded conversations to the court, he would submit only edited summaries. To verify their truthfulness, the President would allow Sen. John Stennis of Mississippi to listen to the tapes. As an independent verifier, the elderly senator was distinguished by his devotion to the President’s own overblown conception of a “strong” Presidency. When Nixon had ordered the secret bombing of Cambodia, he had vouchsafed the fact to Senator Stennis, who thought that concealing the President’s secret war from his fellow senators was a higher duty than preserving the Senate’s constitutional role in the formation of United States foreign policy.
On Saturday afternoon, October 20, I and millions of other Americans sat by our television sets while the special prosecutor explained why he could not accept “what seems to me to be non-compliance with the court’s order. ” Then the President flashed the dagger sheathed within his “compromise.” At 8:31 P.M. television viewers across the country learned that he had fired the special prosecutor; that attorney general Elliot Richardson had resigned rather than issue that order to Cox; that the deputy attorney general, William Ruckelshaus, also had refused to do so and had been fired for refusing; that it was a third acting attorney general who had finally issued the order. With trembling voices, television newscasters reported that the President had abolished the office of special prosecutor and that the FBI was standing guard over its files. Never before in our history had a President, setting law at defiance, made our government seem so tawdry and gimcrack. “It’s like living in a banana republic,” a friend of mine remarked.
Now the question before the country was clear. “Whether ours shall continue to be a government of laws and not of men,” the ex-special prosecutor said that evening, “is now for the Congress and ultimately the American people to decide.”
Within ten days of the “Saturday night massacre,” one million letters and telegrams rained down on Congress, almost every one of them demanding the President’s impeachment. But congressional leaders dragged their feet. The House Judiciary Committee would begin an inquiry into whether to begin an inquiry into possible grounds for recommending impeachment to the House. With the obvious intent, it seemed to me, of waiting until the impeachment fervor had abated, the Democratic-controlled committee would consider whether to consider making a recommendation about making an accusation.
Republicans hoped to avoid upholding the rule of law by persuading the President to resign. This attempt to supply a lawless remedy for lawless power earned Republicans a memorable rebuke from one of the most venerated members of their party: eighty-one-year-old Sen. George Aiken of Vermont. The demand for Nixon’s resignation, he said, “suggests that many prominent Americans, who ought to know better, find the task of holding a President accountable as just too difficult. … To ask the President now to resign and thus relieve Congress of its clear congressional duty amounts to a declaration of incompetence on the part of Congress.”