The Wars of Watergate (114 page)

Two Carter Administration officials became the first targets of the Ethics in Government Act, as a result of allegations of drug use and conflicts of interest. The lengthy, predictably sensational investigations resulted in no charges. Doubtless, their ordeals impaired the reputations and undermined the effectiveness of both men. When Congress reviewed the operation of the law in 1981, disenchantment was apparent. There were, especially, complaints that the special-prosecutor provisions were too easily triggered. Former Attorney General Benjamin Civiletti, who had served under Carter, warned that “we have selected a weapon which must be used with greater care.” He argued that the Justice Department could have conducted the necessary investigations of Carter’s men, and that applying the law against 480 executive-branch officials was simply too broad and expensive.

The Reagan Administration opposed the Ethics in Government Act, as well, and focused on constitutional and cost objections. Judicial appointments of prosecutors, the Justice Department contended, involved executive
functions but did not allow executive control, an unconstitutional arrangement. But the need for a special prosecutor to provide the “appearance of justice” still had a powerful appeal. The Administration eventually dropped its opposition, although it proposed a wider latitude for removal of the prosecutor. (Interestingly, the Justice Department suggested adding the President’s friends and family as objects of attention of a special prosecutor.) Two years of wrangling produced a series of amendments to the Ethics Act in 1983. The changes renamed the Special Prosecutor an “Independent Counsel” (a less “inflammatory” title, one Senator suggested), gave the Attorney General more discretion in the decision to name a counsel, reduced the list of officials who might be investigated, provided for reimbursement of attorney’s fees for the subject of an investigation if no indictment were brought, and allowed the Attorney General to remove the counsel for “good cause.”
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Four years later, the legislation again had to be revised. By then more than half a dozen independent-counsel investigations had been launched. Now the Reagan Administration openly battled continuation of the office. William French Smith, Reagan’s first Attorney General, assailed the independent-counsel process as “probably unconstitutional.” He believed it negated the ends of justice and that it was “cruel and devastating in its application to individuals—falsely destroying reputations and requiring the incurring of great personal costs.” The investigations, he contended, resulted in media circuses and had yielded little at high cost to the taxpayers. Democratic senators accused the Administration of “re-interpreting” and weakening the law when it refused to apply the act on several occasions. For its part, the Administration stressed the unconstitutionality of the system. But pending investigations only strengthened the opposition to changes. Meanwhile, the Administration offered regular Justice Department appointments to the then-acting independent counsels on a dual basis, pending the settlement of court challenges to the constitutionality of the position.

Watergate reverberated as Congress debated extending the Ethics Act in 1987. The bill’s chief Senate sponsor, Carl Levin (D–MI), had no illusions about the Reagan Administration’s real attitudes. The Reagan Justice Department, he complained, “would have us return to the days of Watergate and Nixon’s ‘Saturday night massacre’ when public trust in our criminal justice system hung in the balance. We don’t want to go to the brink again.” On June 17—the fifteenth anniversary of the Watergate break-in—the Justice Department reiterated its opinion that all prosecutors must be responsible to the President. During the Senate debate in October, Levin reminded his colleagues that Watergate had raised doubts about the integrity and independence of criminal investigations directed at the President and his entourage. Since then, the statutory arrangements for an independent counsel, Levin insisted, had won wide acceptance from the American people. The ready
support for an independent counsel in the pending Iran-Contra affair contrasted sharply with the “public’s consternation over the Watergate investigation,” demonstrating that the arrangement had restored “public confidence in the integrity” of the criminal-justice system. “That is an invaluable achievement,” Levin concluded.

The renewal measure passed overwhelmingly—by a margin making it veto-proof—and Reagan signed it on December 15, despite Justice Department opposition. Given four pending investigations of the President’s actions as well as those of his advisers, the “appearance of justice” compelled him to sign the bill. Coincidentally, one day later, an independent counsel secured the first conviction under the Ethics Act when a jury found guilty of perjury Michael Deaver, a former White House aide who had close personal ties to President Reagan and his wife. After Deaver’s conviction, Independent Counsel Whitney North Seymour complained that the Ethics in Government Act had too many loopholes and exemptions. Whatever its inadequacies, the law nevertheless remained imperative, he said, because there was “too much loose money and too little concern in Washington about ethics in government.” Seymour struck particularly at the Reagan Administration’s failure to instill an ethical sense throughout the government. Critics from another direction used the occasion to chastise Congress again for having immunized its members from outside investigations for violations of ethical standards.
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With the open support of the Reagan Administration, individuals under investigation pursued a constitutional challenge to the office of independent counsel. Three former Attorneys General and the Solicitor General lent their considerable prestige to the campaign. The issue boiled down to differences over the power of the executive branch to conduct all criminal prosecutions, on the one hand, and on the other the significance of constitutional language authorizing Congress to vest in the judiciary the appointment of “inferior officers.” Left largely unspoken in the formal briefs was any recognition of the importance of the “appearance of justice.”

In January 1988 the Court of Appeals, dividing two-to-one, invalidated the independent-counsel provision as an unwarranted intrusion on executive authority. Speaking for the majority, Judge Lawrence Silberman articulated a strict construction of separation of powers. The decision came down amid growing doubts whether the independent-counsel statute was workable. Critics charged that the counsels’ investigations had become at times outright harassment of public officials. Predictably, former Nixon aides assailed what one called an “orgy of investigation” and “prosecutorial politics.” But even former members of the Cox and Jaworski staffs noted that the independent-counsel operations had become elephantine, given the large expenditures and resources required for investigations, maintenance, and security. Still, public support for the probe of the Iran-Contra affair remained strong. And in the meantime, independent counsels secured convictions of two more former
Reagan aides, lending some weight to the idea that only a disinterested prosecutor could proceed against the executive branch.

The Supreme Court put its imprimatur on the independent-counsel statute in a surprisingly firm and broad decision. Reversing the appellate court, Chief Justice William Rehnquist led the Court in rebuffing the Administration. The Justices found no violation of separation-of-powers doctrine. The Court held that the Ethics Act in no way inhibited the President from performing his constitutionally assigned duties. Further, unlike the lower court, Rehnquist rejected any notion that the law constituted “Congressional usurpation” of executive functions. In a lone dissent, Justice Antonin Scalia bitingly referred to “our former constitutional system,” as he lamented the Court’s refusal to uphold what he believed to be a proper and absolute scheme of separation of powers.
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The charges that President Nixon had abused his office by improperly using such powerful executive agencies as the FBI, the CIA, and the IRS produced a sharp reaction in Congress and in the nation. Loosening presidential controls, however, conceivably could enlarge the independence of those same groups, a prospect that gave pause to those who had watched the practically unbridled power of the bureaucracies.

The Watergate years brought into sharp relief the practices and behavior of almost sacrosanct institutions. Questions and challenges to authority invariably raised the issue of accountability. In the years following Nixon’s resignation, Congress periodically wrestled with that problem, but it often backed away from fundamental reforms affecting the structure or the role of the FBI, CIA, and IRS. That reluctance reflected the prevailing views, either that the abuses discovered in the Watergate years were mere aberrations, or that later transgressions were so minor that reform might do more harm than good.

Clarence Kelley, who became FBI Director following the Gray fiasco, thought that the Watergate “nightmare” had served “as a much needed cleansing agent for the Bureau,” one that enabled him to initiate “long overdue reforms.” Responding to criticisms of the FBI counterintelligence program of the late 1960s and early 1970s, as well as to other allegations of misconduct often sanctioned by J. Edgar Hoover, Kelley supposedly reduced the Bureau’s role in domestic intelligence probes and instituted wide-ranging organizational changes. Kelley and the Carter Administration also sought a posthumous verdict against the practices of the previous era when they brought criminal indictments for unauthorized burglaries against two high-ranking Hoover aides. The FBI officials were convicted and fined in December 1980, but they appealed the decision, and Reagan pardoned them. The President contended that the officials had acted in the belief that their actions
had been authorized at “the highest levels of government,” and cited Carter’s “unconditional pardon” of those who had violated the Selective Service laws during the Vietnam war.

Congress, in its fashion, sought to retaliate against Hoover when in 1976 it established a ten-year term for future FBI directors. The impetus for the limitation came from congressional concern both over Hoover’s excessive independence, developed over his nearly fifty-year reign, and over the cooperation which Gray had given to Nixon’s blatant political manipulation of the Bureau. The conflicting motives for imposing the limited term passed almost unnoticed.
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Congressional investigations in 1975 had dramatically illustrated the extent of FBI abuses of power and had demonstrated Hoover’s willingness to serve the political goals of different presidents, to ingratiate himself, and to augment his power. But Congress failed to develop a legislative charter defining proper FBI activities. Instead, in March 1976, Attorney General Edward Levi established a series of guidelines to restrain FBI domestic security investigations and prevent questionable activities.

Less than a decade later, the nation learned that the more things changed, the more they remained the same. Attorney General William French Smith announced that he had relaxed rules governing domestic spying by the Bureau and claimed that the changes had enabled the government to successfully combat domestic terrorism. A special American Bar Association committee, composed of lawyers who had served various intelligence agencies, praised Smith’s revisions of the Levi guidelines for their “healthy degree of balance” between First Amendment rights and the demands of domestic security. Yet it recommended some changes in Smith’s rules to “ensure that while the security goals … are met, the civil liberties of all of our citizens are protected.” In a pointed eulogy, the report praised Levi’s work. Smith brushed off any implied criticism, claiming that the ABA report merely reflected “issues of policy and style rather than fundamental disagreements on matters of law.” His assessment probably was correct. The American Civil Liberties Union, however, thought that the Administration’s interpretation of the guidelines granted “overly broad authority” to the FBI.
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In December 1974, Seymour Hersh’s
New York Times
articles accused the CIA of wholesale violations of its charter and of the law, as a result of its massive involvement in domestic political-intelligence activities. Hersh based his disclosures on the CIA’s internal inquiry into some questionable operations, an inquiry ordered by Director James Schlesinger in 1973. Those activities, subsequently dubbed the “Family Jewels,” included not only domestic intelligence activities, but also such questionable legal and moral policies as the assassination of foreign leaders.

The Hersh revelations were eagerly seized upon by the newly elected members of the Ninety-fourth Congress, who felt they were committed to restoring an ethical compass to governmental affairs in the wake of Watergate. Many of the new congressional members, as well as the veterans, had campaigned against abuses of official power and had promised a new direction. William Colby, Schlesinger’s successor, perceived that the “radically altered nature of the Congress” gave focus to increasing demands to harness and control his agency. President Ford attempted to pre-empt Congress when he appointed a commission, chaired by Vice President Rockefeller, to investigate CIA activities. But three weeks later, the Senate and the House each authorized a select committee to conduct an investigation of CIA operations.

“The Year of Intelligence had begun,” a Senate staffer wrote, and the long, cozy relationship between Congress and the CIA came to a halt. “All the tensions and suspicions and hostilities that had been building about the CIA since the Bay of Pigs, and had risen to a combustible level during the Vietnam and Watergate years, now exploded,” Colby remarked.
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Years later, in seeming innocence, Nixon praised Richard Helms, the CIA Director he had so summarily sacked. He deplored Helms’s subsequent criminal conviction for lying to Congress—a “great injustice,” Nixon called it—for Helms, he said, simply had been carrying out a presidential assignment. Nixon went on to denounce the “attempt to castrate the C.I.A. in the mid-seventies [as] a national tragedy.” But Helms dismissed Nixon’s lament as hypocritical and misguided, for he had “no doubt that the whole Watergate business fueled” the CIA’s difficulty with Congress. Nixon’s attempt to entangle the CIA in Watergate, Helms contended, had been “the battering ram” for the subsequent congressional inquiry.
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