Watergate and the Constitution
Philip B. Kurland is the William R. Kenan, Jr., Distinguished Service Professor at the University of Chicago, where he has been Professor of Law since 1956. In this collection of essays he rejects the easy explanation that Watergate was the result of Richard Nixon and the kind of people he chose to serve him, and examines the constitutional structure of government for its causes. He does not deny the importance of the personality and character of former President Nixon and his aides as a factor in the series of events that has come to be known popularly as Watergate, but his thesis is that over a long period of time a series of changes in the basic structure and operation of the government concentrated too much power in the hands of the President. Kurland views Watergate as the unfortunate conjunction of the man and the times.
The constitutional alteration was not limited to the presidency. The increased power of the presidency was accompanied by and to some extent caused by a massive outflow of the power of Congress. Also, there was a continuing expanse of the power of the judiciary. Even in Watergate itself the judiciary gained power partly from the highly visible role it played in the proceedings which culminated in the resignation of President Nixon and partly from the content of decisions in specific cases.
In addition to examining the causes of Watergate, Professor Kurland analyzes the reforms considered or enacted and presents his own recommendations for change. His most specific recommendation is for the creation of an office of Congressional Legal Counsel. This recommendation expresses Kurland’s view that a better balance of power among the three branches of government can be achieved only by strengthening Congress. He prefers a Congressional Legal Counsel to, or in addition to, the creation of a Special Prosecutor; he believes that Congress must be made stronger and that there are constitutional difficulties which exist in the establishment of a Special Prosecutor. His basic premise is that separation of powers, with a stronger Congress, is vital for protection from abuse of power.
In his opinion, the express intent of the Constitutional Convention was to form a government which relied mainly upon the legislative branch in a scheme of separation of powers; but from the beginning the heavy reliance upon Madison’s writings about the Constitution rather than the actual debates and decisions of the convention started the long decline of the legislative branch. Over a period of years, the gradual delegation to the President of the responsibility to develop rules, regulations, and guidelines in order to execute the general laws passed by Congress, has shifted great power to the executive. Consequently, the burden on the President became more than he could carry, and in 1939 the Executive Office of the President was created to assist him in carrying out his responsibilities. In this manner, the President became the presidency. The shift of power continued as the members of the White House Office, who first assisted the President, came finally to issue orders and make decisions ostensibly in his name.
It is strange that Kurland is eloquent in his praise of President Nixon’s decision to resign rather than submit to impeachment and then laments that we will never know the extent to which H. R. Haldeman, John Ehrlichman, and other White House aides were acting on their own or under the direction of the President. This is the kind of information that might have come forth in impeachment or in a later trial of Nixon. Kurland concludes that we no longer have a separation of powers and questions the capacity of Congress to make meaningful changes. He analyzes some of the recent changes that Congress has made but rejects them as largely insignificant at least as far as restoring the Congress to a powerful position relative to the other branches of government is concerned.
Since Professor Kurland favors a stronger legislative branch, it might be expected that he would praise the Congress for its investigation of Watergate. However, he views the failure of the Senate Select Committee to secure the tapes on its own authority as further evidence of the serious weakness of Congress. He views the entire procedure by which this committee attempted to get the tapes as illustrative of the impotence of the Congress. The committee issued subpoenas to the President for the tapes, but he refused to honor them. The members of the committee were doubtful whether the Senate would support a contempt citation against the President, and even if they did, whether it could be enforced against a President. It was likewise unclear whether the Attorney General would bring criminal proceedings against the President. There was also the question of whether the President was subject to...
(The entire section is 1969 words.)