The Wars of Watergate (116 page)

The PRMPA specifically addressed itself to the problem of Watergate. It noted that the Archives regulations should recognize “the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term ‘Watergate.’ ”

Nixon challenged the new law, contending that the delegation of authority to archivists violated his constitutional right of executive privilege. Past practice, however, showed that presidential-library archivists long had exercised discretion over access to materials, and in 1977, the Supreme Court decisively repudiated Nixon’s extravagant claims. The Court contended that Nixon “constituted a legitimate class of one” and could be singled out for
special treatment in the disposition of his records. Furthermore, the Justices noted that “the expectation of the confidentiality of executive communications … has always been limited and subject to erosion” after a president left office. Nixon must yield, the Court concluded, to the legitimate and desirable congressional purpose of “preserving the materials and maintaining access to them for lawful governmental and historical purposes.” In a concurring opinion, Justice John Paul Stevens argued that Nixon’s behavior properly placed him in a different class from all other presidents; that behavior, he said, justified the 1974 law that “implicitly condemns [Nixon] as an unreliable custodian of his papers.” The decision marked the first in a steady line over the next decade that continually frustrated Nixon’s demands for total control over his presidential papers and for their treatment as his private property.

The Presidential Records Act of 1978 reversed what Saxbe had declared to be settled historical practice and stipulated that presidential records became public property at the end of a presidential term. The new law exempted personal diaries, private political materials, and materials connected with presidential elections—substantial exemptions, to be sure. Foreign and defense matters, confidential advice from aides or executive officers, personnel files, and trade secrets, would be restricted for twelve years after a president left office.

Following the mandate of the 1974 law regarding Watergate, the National Archives processed more than two million Watergate documents. By 1986, the Archives had, pursuant to the PRMPA, promulgated five sets of regulations governing the use of the documents, each challenged by Nixon or his aides, or by Congress, or by the courts.
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The National Archives prepared new regulations in 1986, similar to the previous ones, minus the one-house congressional veto proviso, which violated constitutional standards. But in February, the office of Legal Counsel in the Justice Department attached an “understanding” to the regulations, allowing former President Nixon to invoke executive privilege and prevent disclosure of documents. The unspoken purpose was to protect Reagan and his aides, apparently in the expectation that future presidents would extend the same courtesy to them. In 1988, the Circuit Court of Appeals ruled (in an opinion written by Judge Lawrence Silberman, formerly Nixon’s Deputy Attorney General) that executive privilege belongs only to incumbents; no maps chart the doctrine for those in retirement, forced or otherwise. “Ronald Reagan, not Richard Nixon, is the constitutional superior of the Archivist,” Silberman wrote. “Ronald Reagan has the constitutional power to direct the Archivist, not Richard Nixon.” Just prior to leaving office, however, Reagan revealed his self-concern by issuing an executive order that ignored Silberman’s ruling and passed executive privilege on to former presidents.
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Despite the controversy over executive privilege, the National Archives opened the Nixon Papers in 1987, first with assorted materials pertaining to policy matters, and then with successive releases of the Watergate “Special Files.” The 1974 law had provided that the Archives do so “at the earliest reasonable date.” By 1978, the archivists had complied with that dictate, but Nixon’s resistance prevented public access to these files for nearly a decade. Meanwhile, Ford and Carter cooperated with the Archives, followed the 1978 law (although it did not apply to either of them), and encouraged a liberal release policy for their own papers. Former presidents retained access to their materials (as Nixon did) in order to write memoirs, but the law upheld the public’s interest in those materials, thus preventing any exclusive control of the historical record.

Richard Nixon always realized the stakes, knowing that the documentary and audiotaped record would shape history’s final judgments of him and his presidency. Perhaps, too, he knew the Orwellian dictum: “To control the present is to control the past. To control the past is to control the future.”

Watergate nourished and mobilized the drive of Congress to expand its activities. The assault against presidential power that erupted with the Vietnam war eventually resulted in various attempts to limit executive authority and, at the same time, it expanded congressional power. Congressional oversight required more eyes and hands: committee staff personnel increased threefold between 1957 and 1975, and the Congressional Research Service and the General Accounting Office grew enormously during the same period. Such important new offices as the Office of Technology Assessment (1972) and the Congressional Budget Office (1974) added both numbers and a new layer of congressional authority. These new entities, along with the expanded staff system, moved Congress toward inevitable alliance to the permanent bureaucracy, thus compounding presidential frustration over inability to secure bureaucratic compliance with policy.
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The sense of drift and inertia in the Carter Administration stemmed in part from that frustration and arose from a bureaucratic gridlock that had nothing to do with government divided along partisan lines, as in the Nixon Administration or the second Reagan term.

The Budget and Impoundment Act of 1974 represented an attempt of Congress to assert its rightful powers, and at the same time to respond to perceived excesses of the Nixon Administration. The law reflected in equal measures the Democrats’ concern that Nixon had excessively impounded appropriated funds, especially as an instrument of his own policy preferences, and the concerns of Republicans to reform the budget process in order to get spending under control, and so lessen the need for impoundment. The act established budget committees in both houses, a Congressional Budget
Office with experts to analyze the budget, and authority to enact a budget resolution to guide, yet not bind, the appropriations process.

The impoundment features of the Budget Act included a proviso forcing the president to release funds if either house passed a resolution requiring him to do so, a proviso later invalidated when the Supreme Court struck down the one-house legislative veto. The act also provided that, for any impoundment that cut total spending or abolished programs, a president might be forced to spend the money unless both houses passed a rescission bill within forty-five days. If he ignored the action, the Comptroller General might obtain a court order requiring that the funds be spent. Apparently, the legislators thought they would curb executive impoundments. Nonetheless, Ford requested 330 spending deferrals and 150 rescissions. Carter continued the practice, albeit on a reduced scale. After nine years, Congress had passed, under the Budget Act, eighty-three resolutions disapproving presidential attempts to defer spending allocations.

In signing the legislation on July 12, 1974, Richard Nixon proclaimed it the “most significant reform of budget procedures” in the nation’s history; in his memoirs, he strangely called the law “a personal and national triumph.” But, given his preoccupation at the time, it is unlikely that he involved himself in the legislation. Nixon always insisted that impoundment was his means of fighting lavish congressional spending; his critics, however, viewed his actions as further proof of an imperious rule. Earlier, he had been forced to accept the principle of Senate confirmation for future OMB directors, a measure clearly reflecting a general desire for greater congressional influence on the budgetary process.

Whatever the institutional and political drives behind the Budget Act, the consensus a decade later was that the legislation had neither substantially facilitated the budget process nor reduced spending. The consistent executive/legislative impasses of the Reagan years reflected differing institutional and partisan agendas, as well as growing intra-institutional conflicts, both among congressional committees and within components of the executive branch. The resultant compromises were derided as “blue smoke and mirrors,” and budget deficits continued to mount, with a corresponding crescendo of partisan and institutional recrimination. Still, the impoundment features of the 1974 legislation were used, subject to congressional will, it is true, but apparently effectively enough to stifle the constitutional controversies that characterized the clashes between Nixon and Congress.
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Domestic considerations invariably affect foreign policy. The unrest generated by the Vietnam war unquestionably influenced the nature and extent of American involvement. Watergate also influenced the conduct of Richard Nixon’s foreign policy, particularly in regard to America’s role in Southeast
Asia and relations with the Soviet Union. As Watergate moved from a public perception of a political “dirty trick” to a crisis involving the integrity of the presidency and the tenure of Nixon himself, it inevitably preoccupied the President. Whether that preoccupation distracted him, or emboldened adversaries, so as to alter what would have been the President’s course in policy, is a subject of some controversy over the Nixon Administration’s reputation for achievements abroad.

Vietnam and Watergate intersected in many ways, especially during those delicate years when the U.S. was winding down its involvement in South Vietnam, and that nation was assuming increasing responsibility for its own defense. The two events played on one another. In 1968 Richard Nixon had promised a “secret plan” to end the war, but his actions in his first term only confirmed for his critics the familiar image of a trickster. Others, of course, believed that his policies fulfilled his promises of “peace with honor.” Whatever the perception, protests and congressional criticism of the war escalated as the President entered his second term. Antiwar sentiment existed apart from Watergate; yet Nixon’s ruinous involvement in Watergate, with the consequent diversion of his attention and erosion of power, emboldened his critics at home, as well as his adversaries abroad.

To say that the war and the domestic crisis fed each other is a very different thing from saying that one determined the other. But Richard Nixon and Henry Kissinger made exactly that judgment, in order to justify their policies and to belittle the Watergate affair. “We won the war in Vietnam, but lost the peace. All that we had achieved in twelve years of fighting was thrown away in a spasm of congressional irresponsibility,” the former President wrote, as he linked Watergate and the collapse of South Vietnam. “As a matter of fact, the Congress lost it,” he said in a television interview, implying that Congress proved to be irresponsible in using the power newly gained at executive expense. On occasion, too, Nixon turned the argument around, blaming his preoccupation with the war for the negligence that allowed Watergate to happen.

For Henry Kissinger, the historical stakes were equally great, for as a result of Watergate, he said, “I, a foreign-born American, wound up in the extraordinary position of holding together our foreign policy and reassuring our public.” Even some Kissinger critics acknowledged that he was “nearly the sole figure who legitimized or redeemed the government.” But Kissinger offered his own maze of contradictions, as he admitted that Nixon resented his Nobel Prize and the adulation of the media for his role in the peace process. “Had Watergate not soon overwhelmed [Nixon], I doubt whether I could have maintained my position in his Administration,” Kissinger wrote, taking a position opposite to his usual disdain toward Watergate.

“The debacle of Watergate,” Kissinger said, “finally sealed the fate of South Vietnam by the erosion of Executive authority, strangulation of South
Vietnam by wholesale reductions of aid, and [by] legislated prohibitions against enforcing the peace agreement in the face of unprovoked North Vietnamese violations.” Ten years after the fall of Saigon, Kissinger suggested that Nixon’s “peace with honor” goals fell afoul of “liberal critics” and the “peace movement.” Watergate, he added, had destroyed executive power and prevented Nixon and Ford from protecting South Vietnam. Finally, in 1987, Kissinger stated that “Southeast Asia” would be “free” had it not been for Watergate.
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Such arguments usefully condemned Watergate, exonerated the President and his foreign-policy adviser from any blame for the “loss” of Indochina, and discredited any notion that the Paris Peace Accords merely had provided the United States with a “decent interval” for withdrawal and eventual abandonment of the area to the Communists. Nixon and Kissinger alike argued that Watergate thwarted both the presidential and national resolve to achieve “freedom and democracy” in South Vietnam and to protect American national interests. But in fact the options that might have brought the war to a successful conclusion—such as an invasion or blockade of the North—had been foreclosed long before by Lyndon Johnson, whose refusal to take such steps was confirmed by Nixon. In March 1968 Nixon privately acknowledged that the war was not “winnable,” and whatever plan he had for ending it underlined American disengagement as the
sine qua non
of any “peace” arrangement. Neither Johnson nor Nixon had the will to press any plan for “victory” on the American people.

U.S. participation in Vietnam and the fate of South Vietnam eventually confronted glaring realities: the American people had lost faith in the adventure; more important, the United States confronted a determined fighting force, conditioned by a thirty-year struggle, a time span that dwarfed America’s longest war. The Nixon-Kissinger search for a scapegoat in the loss of Vietnam had a sinister resemblance to the Nazi revisionism that blamed Germany’s defeat in 1918 on a “stab in the back” delivered by domestic subversives. Most of all, their argument had the convenient virtue of writing off the President’s responsibility for Watergate. Both men scored the climate of dissent, confrontation, and disunity that prevailed during the Watergate affair; but they offered no accounting for the official misdeeds or misdirected policies that had created the poisoned environment they so deplored.