The Wars of Watergate (24 page)

Some twenty months later, in the summer of 1972, the pending case had moved to the Supreme Court. Ervin put in an appearance to argue against the government’s policy, describing the Army’s action as a “cancer on the body politic.” Chief Justice Burger led a five-man majority which specifically followed Rehnquist’s formulation that the mere existence of governmental surveillance activities was not a violation of First Amendment rights. Rehnquist, now an Associate Justice, refused to disqualify himself in the case, claiming—in the face of his public testimony—that he had no personal knowledge of the case itself. He also insisted that he had never acted in an advisory role for the government in the case. Rehnquist’s vote, of course, was crucial; a tie vote would have sustained the lower-court ruling against the government. Fourteen years later, in 1986, Rehnquist faced the issue again during hearings on his nomination to be Chief Justice of the United States Supreme Court. He reiterated that he had “no recollection” of participating in the formulation of Army surveillance or intelligence policies. But earlier testimony from the Army’s General Counsel clearly contradicted Rehnquist. The Senate Judiciary Committee also obtained a 1969 Rehnquist memo stating that the Army “may assist” in collecting intelligence on antiwar protesters. At the time, Rehnquist had engaged in extensive negotiations with the Army and had worked out an agreement that involved the Army,
the Justice Department, and the President. Rehnquist’s failure to recollect his work was the failure of a highly intelligent lawyer, concerning policy matters that directly involved his office, and about which he had been queried on three official occasions.
³³
Had the plaintiff’s lawyers in the
Tatum
case pursued discovery proceedings, William Rehnquist might well have been a defendant.

The Army’s domestic intelligence-gathering program was inherited, but the Nixon Administration had its own contributions to make in the area. Shortly after he assumed office, Attorney General John Mitchell authorized the FBI to engage in electronic surveillance of a black militant group, the Black Panthers, and of various campus antiwar dissidents, most notably the Students for a Democratic Society. Prevailing Supreme Court doctrine held that if a trial judge in any relevant case learned of illegal surveillance, he must then order the records turned over to the defense. In the Chicago Conspiracy trial in 1969, flowing from the disorders at the Democratic Convention the year before, the government had wiretap records obtained by former Attorney General Ramsey Clark. Mitchell, without acknowledging the existence of such records, submitted an affidavit contending that the President had the constitutional power to wiretap “to gather intelligence information concerning those organizations which are committed to the use of illegal methods to bring about changes in our form of government and which may be seeking to foment violent disorders.” The judge concluded that the taps had no relevance to evidence introduced in the trial.

Mitchell’s assertion was bold and sweeping, but the court did not pass on its validity. The Omnibus Crime Control Act of 1968, Title III, from which he claimed authority, only acknowledged presidential power to use electronic surveillance to protect the nation from foreign attack and spying and to prevent the overthrow of the government by force or other unlawful means. Nevertheless, Mitchell, according to a former Justice official, claimed an executive power independent of that granted by Congress.
³⁴

The same questions of presidential power arose the following year in a case in Michigan, where the government brought indictments against a group of “White Panthers” for a conspiracy to bomb a CIA office in Ann Arbor. On October 5, 1970, defense lawyers filed a routine motion to compel the government to disclose whether it had obtained wiretap information on the defendants. If it had, the defense motion requested a hearing to determine whether such evidence tainted the government’s case. More than two months later, the government lawyers responded with an affidavit from Mitchell, claiming that the wiretaps were “necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” In January 1971, District Court Judge Damon J. Keith
ruled for the defense and ordered the government to produce the wiretap transcripts. Government lawyers, joined by Assistant Attorney General Mardian, appealed to the Sixth Circuit Court of Appeals to overrule Keith, but the higher-court judges upheld their colleague. The Supreme Court granted certiorari in June. The case now took on the paradoxical title
United States v. United States Court for the Eastern District of Michigan
, but is more simply known as the Keith Case.

The government formulated its basic position in the Court of Appeals, contending essentially that the President had the responsibility to safeguard the nation’s security against subversion: “This power is the historical power of the sovereign to preserve itself.” A supplementary memorandum added: “The power at issue in this case is the inherent power of the President to safeguard the security of the nation.” The government cited no constitutional language in support of its position and alluded vaguely to a few cases that the Court of Appeals found inappropriate.

In the Keith Case, the government strikingly ignored the Steel Seizure Case of 1952, though this was the leading case on inherent presidential powers. There, the Supreme Court had rejected President Truman’s claims of inherent powers to nationalize the steel mills because of the Korean War emergency. The Court of Appeals in the Keith Case thought it odd that the President of the United States should claim the sovereign powers of George III, whose authorization of indiscriminate searches and seizures had been a vital issue in the Revolutionary Era.

When the Keith Case moved to the Supreme Court, the government’s brief avoided any broad construction of “inherent powers”; Solicitor General Griswold thought that opening that topic “would just irritate the Court.” Griswold appeared in the courtroom, but he was convinced the government would lose. Mardian presented the oral argument and maintained that the President’s power “may be gleaned from the Constitution as a whole,” which he was sworn to protect. The defense responded that the Constitution involved a “legal fabric woven by the founding fathers and by this Court to protect our fundamental liberties. One might think,” they added, “in reading the Government’s brief, that we had no pertinent history to help resolve this profound question.” Again, the defense compared the President’s position to that of George III.

The Supreme Court’s eight sitting justices affirmed the lower court in the Keith Case. Justice Lewis Powell, a recent Nixon appointee and a onetime public supporter of the Administration’s wiretap program, spoke for the Court. Chief Justice Burger concurred in the result, and Justice White in the judgment. Nixon’s other recent appointee, William Rehnquist, recused himself, apparently because he had helped draft the government’s earlier briefs.

The Keith ruling actually was quite narrow. Powell specifically avoided confronting the inherent-powers issue, relying instead on the proposition
that the government’s concerns did not justify departing “from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or seizure.” The Court acknowledged that the President had a constitutional role in maintaining domestic security but insisted that that role be exercised “in a manner compatible with the Fourth Amendment.” The case was a stunning rebuke to the Administration. Characteristically, the President complained in its aftermath that he was misunderstood: the Nixon Administration had reduced wiretaps by 50 percent from the all-time high under Robert Kennedy.
³⁵

The Supreme Court announced its decision in the Keith Case on June 19, 1972, only two days after the Nixon Administration’s buggers had proceeded to another operation on their agenda, one that would help to focus the issues more clearly—and fatefully for the President.

Richard Nixon’s assuming office marked the first time since Zachary Taylor’s election in 1848 that a first-term president failed to meet a Congress controlled by his own party. The Democratic majority, however, represented only part of the problem. Nixon confronted a Congress sympathetic to ideological and institutional forces increasingly resistant to presidential wishes.

In recent decades, Congress had assumed its own characteristic institutional identity, one that added a dimension to the concept of separation of powers. Committed to a large number of programs through its natural links to the bureaucracy that administered them, Congress eventually developed its own agenda, often at odds with presidential desires, whether the president was a Republican Eisenhower or a Democratic Kennedy. Presidents struggled with this ever-burgeoning congressional will. The Vietnam war magnified the conflict, as differences sharpened over both domestic and foreign priorities.

Richard Nixon’s first term focused and dramatized those conflicts. Issues that had been muted, or even stalemated, erupted into open, bruising conflict between 1969 and 1972. The President and Congress clashed over a variety of problems, including reorganization of the executive branch, impoundment of appropriated funds, Supreme Court appointments, and finally, the war in Southeast Asia. The President won some of these skirmishes and lost others; but by 1972, he and Congress viewed each other with mutual animosity. That feeling, and those skirmishes, poisoned the relationship of executive
and legislative branches and set the stage for the fateful war of the second term.

The task of accommodation between the branches of government is not easy, requiring tact, mutual respect, bargaining, and a willingness to share power. Manipulation is inevitable, to be sure, but generally occurs within the bounds of courtesy and compromise. Franklin D. Roosevelt’s “Hundred Days” in 1933 is often cited as a standard for demonstrating modern-day presidential leadership, but a close examination of the legislative process in this case reveals, as in so many others, that partnership between President and Congress which must prevail in American political life.

John F. Kennedy remarked after two years in office that “Congress looks more powerful sitting here than it did when I was there in the Congress.” Nixon apparently never shared that insight. During the interregnum between November 1968 and his inauguration the following January, he reportedly never discussed legislative strategy with the aides he had appointed to deal with Congress. He even refused to prepare a State of the Union message—in reality, his legislative program—just after taking office. From the start, then, Nixon and his White House staff followed the path he had laid out in a 1968 campaign talk: the magic of the President and the People, working together, would fulfill the nation’s needs. Richard Nixon’s experience in both the legislative and executive branches for fifteen years must have made him mindful of political reality. Nevertheless, he directed his staff toward a policy that alternated contempt for Congress with a belief that, through the borrowed techniques of advertising and public relations, the White House could sell its program directly to the public and so make Congress irrelevant.
¹

Nixon was determined to be an “activist President in domestic affairs.” He would not, he said, later be accused of having been too cautious. Confrontation with Congress was the order of the day; but contempt pervaded the President’s orders: “I thought it was absurd for members of Congress to complain that the executive branch had stolen power from them. On the contrary,” Nixon wrote, “modern Presidents had merely stepped into the vacuum created when Congress failed to discipline itself sufficiently to play a strong policy-making role.”
²

Nixon’s confrontational style invites comparison with the Administration he served as Vice President. Eisenhower had his share of conflicts with Congress, but a public veil of goodwill and cooperation shrouded their encounters. He governed during his first two years with a slim Republican majority in Congress; during the next six he faced ever-increasing Democratic majorities, often dominated by Lyndon Johnson, who had his own
insatiable ambitions. Recalling the slight Republican majority in Congress in 1953, Eisenhower said that “I knew from the beginning that noisy, strong-armed tactics would accomplish nothing, even if I were so inclined.” He cultivated numerous lines of communication with congressional leaders and urged his Cabinet members to develop friendly contacts in Congress. Nixon, in contrast, thought that such familiarity only made Cabinet secretaries subservient to congressional wishes.

Eisenhower proudly described his close working relationship with Senator Robert Taft, his erstwhile rival for the presidency. “Legislative leaders of both parties were my friends,” he wrote. Despite some acrimony and serious differences, Eisenhower never questioned the motives of the opposition. Nixon, on the other hand, thought that liberals had “deluded” themselves and acted “dishonorably” in opposing his Anti-Ballistic Missile program. The measure passed by one vote, but when it did, Nixon credited his staff for corraling votes rather than acknowledging congressional cooperation, especially from the conservative wing of his own party.
³
Fight
and
battle
again prevailed as Nixon’s leading metaphors.

In foreign-policy matters, Eisenhower respectfully regarded Congress’s role, whether consultative or formal. He carefully touched congressional bases during the tense moments surrounding the French collapse in Vietnam in 1954, the Formosan Straits crisis in 1955, the Suez invasion in 1956, and the civil war in Lebanon in 1957. Nixon, on the other hand, discussed his Cambodian invasion plans with Congress in 1970 only after the decision had been reached. His memoirs make no mention of congressional advice on SALT, the Indo-Pakistan War, or other major issues regarding his foreign policy.
⁴
The omission reflected the reality of a divisive condition between President and Congress that steadily worsened throughout the Nixon years.