A Government of Laws and not of Men

by Kieran Healy on May 30, 2004

Archibald Cox, the Watergate special prosecutor whom Richard Nixon attempted to fire in the Saturday Night Massacre has died at the age of 92. I use a video about those events in my social theory class, when we read Weber, because it nicely illustrates Weber’s views about authority and bureaucracy.

As the video goes on, you can draw an organizational chart of the official relationships between the main players—Nixon, Agnew and Haig in the White House; Cox, Elliott Richardson, William Ruckleshaus and Robert Bork at the Justice Department—and see how Nixon’s efforts to fire Cox were, in effect, an effort to act like he was the King rather than the President. Nixon didn’t have the authority to fire Cox even though he had the authority to fire Cox’s superiors. After Attorney General Richardson and his deputy Ruckleshaus had refused Nixon’s demands and themselves been fired, Robert Bork—then Solicitor General and third in line at Justice—agreed to do the job. Weber’s analysis of office-holding is nicely illustrated in Richardson’s refusal: “Methodical provision is made for the regular and continuous fulfilment of these duties and for the execution of the corresponding rights … When the principle of jurisdictional ‘competency’ is fully carried through, hierarchical subordination—at least in public office—does not mean that the ‘higher’ authority is simply authorized to take over the business of the ‘lower.’ ” In the video, Bork is interviewed about his decision and in his defence says “Cox had done nothing wrong, but the President can’t be faced down in public by a subordinate official.” When paired with Cox’s famous statement that night—“Whether ours shall be a government of laws and not of men is now for Congress and ultimately the American people”—you get a perfect articulation of the difference between traditional and legal-rational authority in a democracy.

The interesting thing is that you don’t have to stop there. Because it’s clear from the video that Richardson’s great personal integrity (Nixon called him a “pious son of a bitch”) carried him through Nixon’s efforts to pressure him, and the following day Richardson got a standing ovation from the staff at Justice as he formally announces his resignation. So two other Weberian ideas—that office-holding is a vocation, and that charisma can persist in bureaucracies—are also relevant.

It’s an effective way to teach this bit of Weber, because he isn’t the most charismatic writer in the world himself, and although the students have heard of Watergate, the details of the constitutional crisis that culminated in the Saturday Night Massacre are new to them.

{ 12 comments }

1

Ophelia Benson 05.31.04 at 1:57 am

It’s funny, I kind of like Weber. At least, I was very taken with ‘Science as a Vocation’ when I read it a year or two ago. But maybe it was a charismatic translation.

2

David Locke 05.31.04 at 5:04 am

Cox was a civil servant with civil service protection. Now that we are striping civil servants of their civil service protections as was done in the Homeland Security Department and the DoD more recently, the subordinates can be fired if they don’t play ball politically. This in a policeman is bad. But, it is equally bad in the Treasury Department where economic data has been deliberately manipulated across the board.

Our current imperial president has no problem threatening and corrupting our formerly incorruptable civil service members.

3

fact checker 05.31.04 at 4:36 pm

Nixon didn’t have the authority to fire Cox even though he had the authority to fire Cox’s superiors.

Indeed, Nixon did have the authority to fire Cox. He didn’t have the authority to obstruct justice.

4

Thomas 05.31.04 at 5:25 pm

How a belief in a unitary executive branch or in the separation of powers translates to a belief in “traditional authority” or a belief that the president is king is left unexplained in this post.

A better example of “the president as king” would be the more recent case in which a president asserted an immunity from civil litigation. That, clearly, is a case in which the president asserted that he was above the law–that ours was a government of men. Thankfully, that view was rejected.

One can reject that view and still hold that a unitary executive is what our constitution provides for, properly interpreted, and hold that the legislative branch cannot control the executive.

But even that may be too abstract. One need only remember the history: Richardson was appointed on the condition he appoint a special prosecutor, and he did. The special prosecutor was needed to chase the elected president from office, using all the means at his disposal. Cox, sworn in in the presence of the president’s political opponents, proceeded to investigate everything the president had every touched. All this happened at a time that the US didn’t have a vice president, and thus the legislative branch would each see one of its own receive the presidency or it would choose a replacement. In other words, a legal coup, with legal doctrines twisted or abandoned as needed to reach the end result. How the perpetrators of that plot could ever claim to be on the side of “law” has yet to be explained.

5

Matt Weiner 05.31.04 at 6:11 pm

Thomas, that is utterly astonishing. Your world must be a fascinating place.

6

Thomas 05.31.04 at 9:39 pm

Matt, I’m guessing that you’re young enough to not be familiar with the events of Watergate. They are as I set forth in my concluding paragraph. Perhaps you’re not familiar with the legal doctrines I’ve mentioned. I recommend Myers v. United States (1926) and, on the other side, United States v. Nixon and Morrison v. Olson.

Or perhaps you’re just convinced that the fact that Nixon was guilty justified whatever tactics were used in removing him from office. I’d always thought that procedural justice was a liberal shibboleth, but I never knew it was just a shibboleth.

7

Matt 06.01.04 at 2:38 am

Thomas,

Please do note that what Clinton claimed, right or wrong, was not “immunity from civil litigation” full stop, but immunity _while in office_. This is, of course, a different thing, and it’s dishonest to slide over this. Now, it might well have been the right answer to say that he should not even have received that immunity, as the courts ruled. I don’t have a firm view on this. But, it’s dishonest to make it look as if he claimed he had full and continuing immunity.

8

Thomas 06.01.04 at 3:56 am

Matt, that’s exactly right. Clinton claimed to be like a king, but only while in office. But even the most uncharitable interpretation of Nixon’s acts–for example, Kieran’s–would be that he claimed to be like a king while he was president. There’s no assertion or suggestion that he intended to claim such rights after his term ended. I’m not sure what the point gains you, since the formulation I offered simply followed Kieran’s; perhaps we both should have offered more specifics, but so much of this is commonly known that it doesn’t seem worth the effort.

9

Sarek 06.01.04 at 4:42 am

Thomas,

As you are no doubt aware, the Constitution sets up a separation of powers, but not isolated branches of government. The executive branch we learn about in 9th grade civics class does not exist in the real world, nor has it ever. All three branches of government are intimately intertwined, so that the executive, through executive orders, makes laws, the legislative routinely enforces them, and the legislative is involved in executing the legislation it writes (courts have limited this bleeding from one branch to another, but not attempted to prevent it altogether).
Under the Constitution, presidents are not given the power to appoint a full branch of government at will. Presidential appointments must be confirmed by Congress, and cabinet secretaries then run their departments with a certain degree of autonomy. If the president does not like the direction a department is taking, he can replace the secretary (a fact not established in the Constitution but rather through Myers v. United States, to which Thomas referred earlier), but he cannot run the department himself, and he cannot fire underlings (who are not, under Myers, “officers of the United States”; see also Buckley v. Valeo).
There are other things I could argue with in Thomas’ post, but I have to work tomorrow.

10

Kieran Healy 06.01.04 at 5:27 am

All this happened at a time that the US didn’t have a vice president

I wonder why that was.

11

Matt Weiner 06.02.04 at 6:24 pm

Cox, sworn in in the presence of the president’s political opponents, proceeded to investigate everything the president had every touched.

Now, is this not a wonderful description of Kenneth Starr–except that Starr was actually selected by the President’s political opponents, rather than sworn in in their presence? (What the hell does that mean, anyway?) What astonishes me is not so much that you defend Nixon, but that you defend Nixon while saying that Clinton’s behavior was worse.

On your interpretation of the law, is there any legal way (or was there in the 1970s) for a President’s abuse of his office to be investigated if he does not wish it to be? Silvio Berlusconi’s Italy is not my model of procedural justice.

12

Matt Weiner 06.03.04 at 10:45 pm

Since I was in a library last time I posted, I thought I’d page through Stanley Kutler’s The Wars of Watergate in order to assess whether the events of Watergate are as he claims. In Q & A:

Was Richardson appointed on the condition he appoint a special prosecutor?
Of course, Richardson was appointed by Nixon, so the question is ill-phrased. What Thomas seems to mean is that Richardson promised during his confirmation hearings that he would appoint a special prosecutor. Indeed, he brought Cox to his confirmation hearings on May 21.

Who was pressuring Richardson to appoint a special prosecutor?
Democratic lawmakers had been calling for a special prosecutor for a while. On April 30, the Justice Department’s own prosecutors wrote Richardson urging a special prosecutor and saying that to have them reporting to the President would put them in an “impossible position.” On April 29, Nixon himself had told Richardson to “get to the bottom of this,” had conceded the need for a special prosecutor, and had suggested several names.

What was Cox’s political affiliation?
He was a Democrat and Kennedy loyalist; Ted Kennedy did indeed attend his swearing-in. During the hearings Strom Thurmond asked Cox about his affiliation–and thought that it would be good to have a Democratic prosecutor.

Why did Richardson appoint Cox?
His staff prepared a list of potential prosecutors. Many candidates declined; Richardson was ready to announce the selection of Judge Harold Tyler, but Tyler withdrew after Richardson took too long to prepare guidelines for his responsibilities and independence. Richardson then approached Cox, who accepted, insisting on his independence.

Was the selection of Cox a plot on the part of Nixon’s enemies?
Absolutely impossible. Richardson himself had been secretary of HEW and Defense before being picked as Attorney General; the idea that he was a tool of the Democrats is laughable.

Was it improper or illegal for the Senate to bring up the matter of a special prosecutor during Richardson’s confirmation hearings?
Do the words “advise and consent” mean anything? If the idea is that the Nixon Administration could have been trusted with investigating itself, that is laughable. If the idea is that the idea of a Special Prosecutor somehow violates the separation of powers, I am not a lawyer, but that doctrine seems more like what sarek refers to as “isolated branches of government.”

Was “the special prosecutor… needed to chase the elected president from office, using all the means at his disposal”?
Needed by whom? Cox was selected by Richardson, Nixon’s longtime cabinet secretary. The appointment process does not stretch back to anyone who might have wanted to chase Nixon from office. Contrast Starr; the panel that appointed him was headed by the far-right judge David Sentelle, who had been selected by conservative Chief Justice Rehnquist, and who had lunched with North Carolina’s Republican Senators just before Starr’s appointment, etc.

Did “all this happen[] at a time that the US didn’t have a vice president”?
Not if “all this” means what Thomas is talking about: the appointment of the special prosecutor. Agnew resigned Oct. 10, 1973 (the Saturday Night Massacre was Oct. 21). Indeed, Nixon first learned of Agnew’s legal troubles on April 14, and Richardson only learned of them on assuming office; if the President and Attorney General-designate did not know of them, it is safe to assume that most of the alleged coup plotters did not know of them either. The story only seems to have broken in public with a WSJ story August 6.

What does that mean for Thomas’s thesis?
It means that at the time of Cox’s appointment, no one could have anticipated that Cox’s inquiries would result in the replacement of the President with someone from the legislative branch. So Thomas’s main thesis has no basis in fact.

Was this “a legal coup, with legal doctrines twisted or abandoned as needed to reach the end result”?
Only someone absolutely unhinged by partisanship could think so. A criminal conspiracy had been discovered involving some White House staff; Cox’s investigations revealed that the President had participated in that very same conspiracy. That is why the President was removed. The arguments in Nixon’s defense are arguments against any prosecution of political misconduct on the part of the President; either that executive privilege extends to the right to deny access to evidence of criminality, or that, in Nixon’s words, “if the president does it it’s legal.”

The equivalent to Cox in the Clinton years is Robert Fiske. Fiske, a Republican, was appointed by Janet Reno as the Whitewater special counsel, the Independent Counsel Act having lapsed. He investigated Whitewater and discovered what criminality there was to discover–none on the part of the Clintons, although Joe Conason says that he would have indicted Webster Hubbell.

The Clinton-era figure who corresponds to Thomas’s ravings is, of course, Kenneth Starr. Starr was appointed by Clinton’s enemies and did investigate everything to do with Clinton–his office went some way toward shaping the events of the Lewinsky scandal, which bore no relation whatsoever to his original remit (and in fact took place after his appointment). His goal was to use any means whatsoever to depose an elected president.

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