Comments on: A Government of Laws and not of Men

By: Matt Weiner

Matt Weiner — Thu, 03 Jun 2004 22:45:01 +0000

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.

By: Matt Weiner

Matt Weiner — Wed, 02 Jun 2004 18:24:58 +0000

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.

By: Kieran Healy

Kieran Healy — Tue, 01 Jun 2004 05:27:15 +0000

All this happened at a time that the US didn’t have a vice president I wonder why that was.

By: Sarek

Sarek — Tue, 01 Jun 2004 04:42:45 +0000

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.

By: Thomas

Thomas — Tue, 01 Jun 2004 03:56:20 +0000

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.

By: Matt

Matt — Tue, 01 Jun 2004 02:38:08 +0000

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.

By: Thomas

Thomas — Mon, 31 May 2004 21:39:46 +0000

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.

By: Matt Weiner

Matt Weiner — Mon, 31 May 2004 18:11:04 +0000

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

By: Thomas

Thomas — Mon, 31 May 2004 17:25:32 +0000

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.

By: fact checker

fact checker — Mon, 31 May 2004 16:36:33 +0000

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.

By: David Locke

David Locke — Mon, 31 May 2004 05:04:03 +0000

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.

By: Ophelia Benson

Ophelia Benson — Mon, 31 May 2004 01:57:11 +0000

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.