By Philip Wallach
Those of us who make our livings trying to improve the state of American politics must constantly strike a balance between realism and hopefulness. There are a lot of good reasons to get discouraged, and there is no honor in shutting them out by sticking your head in the sand. At the same time, I instinctively rebel against pieces that declare that nothing that can be done will make any important difference (e.g., Dylan Matthews’ most recent piece at Vox). An above-it-all fatalism that resigns itself to more of the same seems sophisticated, but history shows us that our institutions have found ways to shake themselves out of moments of weakness before, renewing themselves and reestablishing their legitimacy with the American public. To ready ourselves for such opportunities, we ought to draw some detailed lessons from those times when things went right in the past.
To that end, I made my way through historian Stanley Kutler’s massive tome, The Wars of Watergate (1990), with an eye on what Congress did right during its long confrontation with President Richard Nixon, which for a time in the mid-1970s made Congress America’s preeminent political institution. Back in 2016, I speculated that maybe a presidential scandal leading to a major confrontation with Congress could be just what our legislature needs to find its mojo. For such a scenario to do any good, I argued, the conflict would have to be framed in terms of important constitutional principles, citing the Watergate clash as one moment when Congress did a fair job of that. Here I offer a more detailed (if very far from comprehensive) overview of Congress’s actions.
Legislative-executive tensions before Watergate
By the time of Nixon’s first inauguration, in January 1969, tensions between Congress and the White House were already high. President Lyndon Johnson had alienated Congress through his bullying ways, his lack of candor surrounding the Gulf of Tonkin incident, and a spate of broken promises about the course of war in Vietnam. Nixon immediately renewed the conflict in his first term, clashing with Congress over executive branch reorganization, budget impoundment, Supreme Court appointments (with two failed nominations), and again over war in southeast Asia. Before the Watergate break-in ever took place, then, Nixon and Congress had developed a mutual contempt for each other. For Nixon this was personal, but he could also cast it as a matter of high constitutional theory: as the nation’s only nationally elected officer, Nixon argued that he had an ability to connect to the public (and especially its “silent majority”) better than anyone else. He took the Wilsonian understanding of the presidency and ran with it.
Congress did not take this passively. The Senate Judiciary Committee organized a dedicated subcommittee on the Separation of Powers in 1971, and its Subcommittee on Constitutional Rights made waves with a major investigation into army spying in 1970-1971. Congress repealed the Gulf of Tonkin Resolution in June 1970, and in its June 1971 defense reauthorization bill it called for a termination of military operations in Indochina. All this set the stage for members of Congress to use the Watergate crisis as a means of constitutionally rehabilitating their branch, especially in terms of foreign policy powers.
Congress as Watergate investigator
On September 3, 1971, the White House “Plumbers” unit (so-named because they “plugged leaks”) broke into the office of Daniel Ellsberg’s psychiatrist, looking for material to discredit the leaker of the Pentagon Papers. On June 17, 1972, members of the plumbers were arrested breaking into the Democratic National Committee’s offices at the Watergate. The former action was unknown to the public, and the latter received less media attention than we might imagine; when it first occurred, it was portrayed as low-grade political hijinks without any surpassing importance. Much as Nixon hated the press, national media were overwhelmingly supportive of his reelection campaign against George McGovern in 1972.
Congress first began investigating Watergate almost immediately after the break-in. Convinced that possible illegal bank transfers related to the burglary made the matter fair game for his House Banking and Currency Committee, Chairman Wright Patman (D-TX) initiated an inquiry that aggressively sought answers from the Committee to Reelect the President (CREEP). Republicans on the committee were uniformly hostile, as were some southern Democrats who disliked McGovern, emboldening CREEP’s finance chairman to reject the committee’s questions. Patman’s attempt to seek a subpoena issued by the full committee in October 1972 ended in failure, with a 15-20 vote. House minority leader Gerald Ford (R-MI) dismissed the committee’s attempts as “last-minute smear tactics.” Despite Patman’s best efforts, then, Watergate-as-scandal had little discernible impact in the 1972 election; to the public, it appeared as so much partisan bickering. Still, Kutler argues that Patman’s efforts were an important beginning: “Patman’s pressure required that the cover-up be intensified and expanded, thus widening the chances for error and eventual exposure.” The materials gathered gave later investigators a running start.
Once the election passed, further investigations were not long in coming. On January 6, 1973, Senate Majority Leader Mike Mansfield (D-MT) called for the creation of a Senate Select Committee on Watergate. In hopes of avoiding the impression that this was some kind of liberal witch-hunt, he named Senator Sam Ervin (D-NC) as the committee’s chair. Ervin was known as a staunch conservative, and when he was first appointed he averred that it was “simply inconceivable” that Nixon had been personally involved with Watergate at all.
The seven-member committee (four Democrats and three Republicans) quickly established itself. Behind the scenes, it was territorial, developing rather prickly relationships with the U.S. Attorneys working on Watergate and, later, the staff of the special prosecutor’s office. Publicly, its staff was quite skilled at public relations, using television coverage to its advantage as it began to call its witnesses. It won some easy PR victories as it tangled with Nixon’s staffers and their attorneys. In one notable episode, committee member Daniel Inouye (D-HI) responded to some of John Ehrlichman’s testimony by muttering “what a liar” into a hot mic, only to have Ehrlichman’s lawyer call him “that little Jap” during a recess a week later. Not surprisingly, the committee closed ranks, praising Inouye’s contributions on the committee (and as a decorated World War II veteran). Overall, the committee was perceived by the public as fact-oriented and as clearly more credible than the dissembling members of the administration.
That put Ervin in a good position to go toe-to-toe with Nixon over the question of how much could be withheld from the committee on grounds of executive privilege. Obviously, Ervin had practical and lawyerly reasons to engage that fight, needing access to files and testimony in order to establish the case that high-level members of the administration were directly responsible for the Watergate break-in and other “dirty tricks.” But Ervin also had a reputation as a stalwart champion of the Constitution, which allowed him to frame the debate in terms of high principles of democratic accountability and coequal branches of government. This man, who had been known as one of the ablest defenders of Jim Crow, was soon lionized in the New York Times (recommended) and elsewhere as “the symbol of a wounded institution trying to recover its strength and its self-respect,” whose “native wit and accumulated hill-country charm have captivated the media, helped turn Ervin into a campus folk figure and caused all of Washington to listen for his antiphons every time the White House sings a new tune.”
Ervin was hardly the only one to highlight the constitutional stakes of Watergate, though. Senators William Fulbright (D-AR) and Robert Byrd (D-WV), neither on the Select Committee, took it upon themselves to become the Special Prosecutor’s protectors as the president’s ire grew. And Mansfield himself, generally mild-mannered in public, delivered a dramatic response to Nixon’s state of the union address in 1974 in which he warned of “an ominous shift to one-branch government” and declared, “To excise Watergate and what it implies before it becomes fatal to liberty is a fundamental responsibility of this government.”
Members of the administration assumed, throughout, that staunch partisan Republicans would defend and protect them, painting the inquiry as a partisan affair and thereby limiting its political power. But two of the Republican members of the Select Committee turned out to be far from universally sympathetic; Lowell Weicker (R-CT) came to be known as a loose cannon, and Howard Baker (R-TN) often seemed to be playing both sides. (Kutler clearly resents the widespread idea that Baker acted as a fair-minded truth-seeker, and portrays him as mostly out to run interference for the administration—but as having some limits in his willingness to do so.) In 1974, conservative Republicans would desert Nixon, making it clear he had little hope of somehow riding out the storm.
Congress’s unusual leverage: replacing the Vice President
Congress found itself in an unusually powerful position because President Nixon was forced to invoke Section 2 of the 25th Amendment, which reads in full: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” Vice President Spiro Agnew found himself embroiled in corruption charges alongside his two-time running mate, a legacy from his tenure as governor of Maryland. The combative Agnew was eager to turn his own problems into a public fight, but the administration strongly discouraged him from doing so, eager to dissociate the administration from corruption. On October 10, 1973, Agnew resigned the Vice Presidency and pleaded nolo contendere to income-tax evasion, receiving a suspended sentence and a $10,000 fine.
That left the Democratic Congress with the effective power to dictate who would be an acceptable replacement. Speaker of the House Carl Albert (D-OK) made it clear to the administration that Congress would not confirm Nixon’s first choice, ex-Democrat John Connally, who had been his Treasury Secretary from 1971 to 1972. Instead, members of Congress communicated that they would accept one of their own, House Minority Leader Gerald Ford (R-MI), and so Nixon picked him, in spite of holding him in fairly low regard. Ford was easily confirmed, 92-3 in the Senate and 387-35 in the House. Obviously, Ford’s ascension to the Vice Presidency changed the calculus for any future impeachment. Whereas the cantankerous Agnew had been a kind of insurance policy for Nixon, Ford was a far more palatable chief executive now waiting in the wings.
Congress’s fight for access to the tapes
When, during its July 1973 questioning of Haldeman aide Alexander Butterfield, the Senate Select Committee uncovered the existence of secret tapes of key conversations, that changed the fundamental dynamic of the confrontation between the branches. Now there was a chance for Congress to get directly at the heart of the matter, and a tangible focal point in the clash between the public’s representatives’ right to seek the truth and the executive branch’s desire to conduct its business without public scrutiny. As Congress increased the pressure on the administration, the clash would become even more dramatically staged for the benefit of the public.
Ervin’s Select Committee voted unanimously on July 23, 1973 to issue a subpoena for the tapes; Special Prosecutor Archibald Cox issued a subpoena as well. Nixon rejected them three days later, creating significant internal tensions within the administration. Attorney General Elliott Richardson, in particular, felt that some kind of accommodation needed to be made. Showing the power of Congress at this point, the Nixon administration made an unusual offer in October. It would provide summaries of the tapes for use in court and by the congressional committees, rather than the full recordings or transcripts, and allow verification of the summaries’ accuracy by Senator John Stennis (D-MS). The White House publicly announced committee acceptance of this plan, though it is not clear that they ever actually had it, but in any case Cox rejected it outright as inadequate. That led directly to the Saturday Night Massacre on October 20, 1973, which yet again escalated the conflict and damaged Nixon’s credibility in the eyes of the public. Especially disastrous for the president were the images of FBI agents barring the Special Prosecutor’s office, which seemed reminiscent of a police state.
In large part because of Congress’s pressure, by the end of 1973 Nixon was badly damaged, with 73 percent of respondents in a December Harris poll agreeing that he had lost the credibility to function as president. Wounded as he was, Nixon found it impossible to protect himself. A new special prosecutor, Leon Jaworski, was quickly appointed, with stronger protections for his independence than Cox had had. Congress used confirmation hearings, such as for new Deputy Attorney General Lawrence Silberman, to extract promises that the investigation would be allowed to proceed unmolested.
Congress presses on toward impeachment
Congress further escalated its ambitions in light of Nixon’s struggles. It ordered a cutoff of bombings in Cambodia effective August 1973, and then passed the War Powers Act in November 1973—with the override of Nixon’s veto receiving 33 more votes in the House than the original vote. With prospects of impeachment now looking strong, the House Judiciary Committee moved to significantly expand and upgrade its senior legal staff.
When it came to the various Watergate crimes committed by functionaries, it could be argued that Congress’s involvement was supplemental to prosecutions pursued in Article III courts. But, for Nixon himself, Congress was stronger than the judiciary by far. In part, this stems from genuine confusion about whether a president can or should ever be indicted while in office—eventually, Jaworski would decide that it was better for him to treat Richard Nixon as an unindicted co-conspirator than to seek to make a criminal defendant of the chief executive. As the president’s constitutional equal and the branch clearly given the power to decide on impeachment (in the House) and conviction (in the Senate), Congress confronted no such difficulty. It also had the advantage of politically positioning itself as the proper repository for the American people’s trust. Pressed by a Congress declaring that withholding of evidence constituted an impeachable offense, Nixon acceded and released most of the tapes at the end of April 1974. (The Supreme Court would, in July 1974, unanimously hold that all the tapes must be released to the courts.) When transcripts were made public, they generated widespread outrage, including from high-ranking Republicans.
On May 9, 1974, the House Judiciary Committee began hearings to consider articles of impeachment. A number of Republicans on the committee saw supporting the president as a simple, straightforward decision, “like voting for the Speaker.” But a “fragile coalition” of seven members from districts extremely supportive of Nixon in 1972 seemed to hold the balance of power. That lent the proceedings a feeling of genuine suspense, which meant the American people were riveted. Nielsen ratings indicated that a remarkable 35-40 million Americans tuned in to watch as the committee made its way to a 27-11 vote on the first article of impeachment and a 28-10 vote on the second. The public was overwhelmingly supportive of impeachment by early August, with 66 percent favoring it in a Harris poll.
Senator Barry Goldwater (R-AZ) and other Republican leaders met with Nixon in early August, telling him he had, at most, 10 supporters in the Senate who would stand firm against conviction. Having lost his base of support, Nixon finally resigned on August 8, 1974.
Post-impeachment changes to the rules of the game
With a new, unelected president in place, Congress pushed forward to ensure that Watergate-like abuses would be harder to conceal in the future. They first passed the Presidential Recordings and Materials Preservation Act of 1974, which ensured that all of Nixon’s tapes would be held and eventually become public records through the National Archives. That was later generalized and expanded in the Presidential Records Act of 1978.
Congress strongly opposed pardons for the Watergate participants, which was probably responsible for Ford’s not granting them, in spite of the logical inconsistency of pardoning Nixon but punishing his loyal subordinates.
Congress sought to restructure campaign finance and ethics rules, including with the Ethics in Government Act of 1978. These reforms had a decidedly mixed record, with many critics contending that they multiplied unnecessary investigations. Amendments followed in 1983 and 1987.
Congress continued to reshape the nation’s war-making and intelligence operations, especially with the Rockefeller Commission, Church Committee, and Pike Committee, all of which attempted to create a more accountable CIA. With the creation of a new House and Senate Select Committees on Intelligence and the passage of the Foreign Intelligence Surveillance Act (FISA), the practices of wiretapping and domestic investigations acquired a higher degree of legal scrutiny. The Privacy Act of 1974 permitted citizens to see and correct information about themselves in federal agency files, and the Financial Privacy Act of 1978 barred secret government access of individuals’ bank records in nearly all cases.
Congress also strongly confronted President Ford as to whether he had arranged for his selection as Vice President through a quid pro quo promise of pardoning Nixon. Ford skillfully defused this threat—but the manner of his doing so is revealing. Although Congress had only expected to receive the testimony of Ford’s close associates, the president himself arranged to testify on Capitol Hill before the House Judiciary Committee in October 1974, making him just the second president ever to do so after Abraham Lincoln. By directly denying any allegations of a corrupt bargain, Ford put the question behind him, at least with Congress. But he had to humble himself and his office in order to do so, emblematic of where the political balance of power had settled after the nation’s first presidential hounding-from-office.
Finally, through the 1970s Congress sought to increase its own capacity, creating two new support agencies (the Office of Technology Assessment, in 1972, and the Congressional Budget Office, in 1974) and expanding both personal office and committee staff. It sought policy prowess appropriate to its newly demonstrated constitutional gravitas.
Lessons for 2018 and beyond?
For my purposes here, the main lesson of Watergate is that Congress gradually learned to assert itself against the president, with historic consequences for our institutional development. (Perhaps not nearly historic enough—I do not consider here what missed opportunities there may have been in 1970s.) I submit that this could happen again in the years to come.
Having gone on quite long enough, I will mostly resist the temptation to compare and contrast other features of Watergate with the present administration’s struggles with its investigators, congressional and otherwise. I will just make two points. First, one of the major objectives of Kutler’s book is to show that Nixon himself was “the master in his house,” such that the actions of his subordinates clearly represented an emanation of his own conscious will. He portrays Nixon’s chief of staff as only an implementer, not a decision-maker in his own right. Even with the help of the tapes, this is laborious work—though I ultimately found it convincing enough. But if blame could be affixed on Nixon in part because of the regimented and orderly flow of communications in his White House, that surely stands in stark contrast to reports of internal dynamics today. Second, as long as investigations into Watergate could be portrayed as merely partisan, their potency was limited. To really empower Congress, these investigations required at least the cautious support of members of both parties, and to topple the president, they required widespread buy-in from members in both parties (though far from every member). It thus makes a great deal of sense to focus on members known as fairly stalwart Republicans who nevertheless back stronger investigations into White House behavior. However noisy current news coverage may be, this particular focus seems quite justified.
Philip Wallach is a senior fellow in governance at the R Street Institute.