Many of the Supreme Court’s decisions as to state sovereign immunity are problematic, but there is an originalist basis for some of those decisions.
A half-century ago, President Richard M. Nixon was reelected in a historic landslide. He won 61 percent of the popular vote, 49 states, and 520 electoral votes to Senator George McGovern’s 17. Yet, just 21 months later, he was compelled to step down. The Watergate scandal so demolished the administration that Nixon’s Republican support vanished in a Congress that Democrats controlled by steep majorities.
Or perhaps it is accurate to say that nation’s 37th president became the only one in the nation’s history to resign the office because his opponents relentlessly exploited the opportunity he gave them to take him down, during an era when there was no meaningful counterweight to those opponents.
In 1972, the press was a progressive nigh-monopoly: the three television networks (CBS, NBC, and ABC), two major national newspapers (the New York Times and Washington Post), and two mainstream political magazines (Time and Newsweek) all spoke the language of the Democratic Party. For 28 of the 36 years prior to Nixon’s first inauguration in 1969, Democrats held the White House. They reigned over elite law schools and the legal profession. They dictated the ethos of the Justice Department. They shaped the composition of the federal courts. During the other eight years, moreover, the president was Dwight Eisenhower, only nominally a Republican, whose judicial appointments—including such icons of the Left as Chief Justice Earl Warren and Justice William Brennan—led to an era of unprecedented progressive judicial activism. In short, there was a “media-Democrat” complex that, unlike today, had iron-fisted control over what news was covered and how.
For this monolith, Nixon was a figure of contempt. It is ironic given that Nixon was not an ideological conservative. His administration expanded President Lyndon B. Johnson’s metastasizing administrative state: It pushed through extensive regulation of the economy, ended the gold standard, created the Occupational Health and Safety Administration and the Environmental Protection Agency, passed the Endangered Species Act and expanded the Clean Air Act; increased Social Security, Medicare, and Medicaid, in addition to establishing Supplemental Security Income for the elderly and disabled. Yet Nixon was a fierce anti-communist, making him the enemy of communist sympathizers and others who were prominent in progressive circles. He would thus never be forgiven for exposing progressive darling Alger Hiss as a Communist (thanks to the testimony of Whitaker Chambers). Though Nixon ended American involvement in the Vietnam War, his waging of it made him the figure most despised by the anti-war Left, particularly after the Ohio National Guard’s shooting of 13 students, four of whom died, in the 1970 Kent State University protest against his expansion of combat operations into Cambodia.
The D.C. ideal was “Camelot.” Nixon, an outsider alien to the Northeast and the Ivy League, would never be welcome in that world. He had come within a hair of beating Senator Jack Kennedy for the presidency in 1960; he won the 1968 election that Democrats thought rightfully belonged to the martyred Senator Bobby Kennedy; and he governed as Senator Ted Kennedy plotted a restoration of Camelot, hoping the glare of Watergate would obscure his Chappaquiddick scandal. The Kennedy dynasty and its acolytes led the charge to eviscerate Nixon’s presidency.
The Watergate scandal was an unintended consequence of the president’s ire over government leaks of classified intelligence. On June 13, 1971, the New York Times began publishing excerpts of the “Pentagon Papers,” disclosed by Daniel Ellsberg, a Rand Corporation analyst. This treachery, which made Ellsberg an anti-war hero, prompted Nixon to make the misjudgment that would implode his presidency: the establishment of a special-investigations unit within the White House itself to probe and prevent leaks.
For obvious reasons, the president’s staff and key advisers should never be operational in intelligence collection. It was not irrational for Nixon to conclude that if leaks were to be plugged, the White House itself would have to do it. He knew he’d get little or no cooperation from the entrenched Washington establishment that orchestrated the leaks when not cheering them on. Still, it was a foolhardy decision.
The rest is history—a history recently recounted in The Nixon Conspiracy: Watergate and the Plot to Remove the President, the memoir of Geoff Shepard, a former Nixon White House staffer and deputy counsel of his Watergate defense team. Bud Krogh, a top Nixon domestic policy adviser, chose G. Gordon Liddy, an eccentric and heedlessly aggressive former FBI agent and New York state prosecutor, to head up the so-called Plumbers Unit (i.e., the leak pluggers), where he partnered with the equally erratic Howard Hunt, a former CIA agent recruited for the job by Nixon’s aide, Chuck Colson.
The Plumbers undertook three botched schemes. On September 4, 1971, they broke into the Beverly Hills office of Ellsberg’s psychiatrist, Dr. Lewis Fielding, in an effort to obtain embarrassing information. Nixon’s top domestic affairs adviser John Ehrlichman authorized a “covert operation” in writing. Liddy and Hunt were instructed that they should not participate physically, leading to Hunt’s recruitment of a group of Cubans who, a decade earlier, had collaborated in the CIA’s Bay of Pigs debacle. Unable to pick the lock, the burglars forced their way in and made a mess, but failed to seize Fielding’s Ellsberg file.
Liddy was soon distanced from the White House, dispatched to Nixon’s 1972 campaign operation, the Committee for the Reelection of the President (CRP). Demarcations between the work of government and political campaigns were less clear in those days. The campaign became a landing spot for some, like Liddy, who had fallen out of favor with White House leadership, principally Nixon’s two top aides, the aforementioned John Ehrlichman and the no-nonsense chief-of-staff, H. R. (Bob) Haldeman. Another staffer dispatched to the 1972 Nixon campaign was Jeb Stuart Magruder, who was regarded as in over his head at the White House communications office yet was somehow named the campaign’s chief of staff. He would report to the campaign’s executive director, John Mitchell, Nixon’s close friend and former law partner. After running Nixon’s victorious 1968 campaign, Mitchell had been appointed attorney general. To be named the nation’s top law-enforcement official is the achievement of a professional lifetime for a lawyer, and Mitchell was naturally reluctant to abandon the AG post for a return to the rough-and-tumble of political campaigns. As a result of his foot-dragging, two fateful Watergate meetings with campaign operatives would occur in Mitchell’s Justice Department suite.
John Dean was a slick, ambitious young lawyer who became a White House staff counselor. He enjoyed the good graces of Krogh, who was highly regarded by Haldeman. Consequently, Haldeman was convinced to delegate to Dean the task of developing a campaign intelligence strategy. Never a workhorse, Dean recruited Liddy to do the heavy lifting of this assignment. Liddy formulated a dirty-tricks-laden opposition-research plan, codenamed “Gemstone.” Building on Dean’s promised financial support, Liddy anticipated that Gemstone would cost $1 million for starters, an expense Magruder said could only be green-lighted by Mitchell personally.
Magruder, Dean, and Liddy thus trooped over to Mitchell’s Justice Department office on January 27, 1972. There, Liddy unfolded his mind-boggling scheme: the abduction of protesters (sadly, not a Nixon-era innovation), the use of prostitutes to compromise Democratic operatives and learn their plans, and more political spying. Gemstone’s gory details were highlighted on charts the CIA had helpfully prepared at Liddy’s behest. A befuddled Mitchell would say only, “That’s not quite what we had in mind.” As Shepard observes, while he was undoubtedly taken aback by Liddy’s inanity, in Mitchell’s eyes, these were White House staffers who’d been assigned to develop a campaign “intelligence” plan by Haldeman himself. In point of fact, there is no evidence that Haldeman and Ehrlichman, let alone the president, knew what Liddy was hatching. Dean had roped him in despite his being persona non grata at the White House.
The plan was stripped down to the bugging of specified targets. Mitchell initially declined Magruder’s request for a second meeting with Liddy but relented when beseeched by Dean—who, again, worked for Haldeman. Though he heard out Liddy at the Justice Department on February 4, Mitchell denied ever approving the bugging plan. Magruder, who became a government cooperator to try to avoid imprisonment, testified that Mitchell seemed to approve it in vague terms at a later Florida meeting. On the contrary, Mitchell’s aid, Fred LaRue, also a government cooperator, maintained that Mitchell rejected it emphatically. Magruder, in any event, implemented the bugging plan as if Mitchell had blessed it.
This led to the two break-ins at the DNC’s headquarters in the Watergate complex. Liddy and Hunt directed the operation, which was executed by some of the same Cubans who’d been complicit in the Fielding escapade, as well as a new addition: James McCord, a retired CIA officer. On May 28, 1972, the team broke in and planted bugs in the phones of both DNC Chairman Larry O’Brien and Maxie Wells, the secretary of R. Spencer Oliver, who led the Association of State Democratic Chairmen. The tap on O’Brien’s phone did not work. At what Liddy later told Dean was Magruder’s insistence, the burglars went back to the DNC on June 17, 1972 to fix that problem. Police caught them in flagrante delicto.
A pause is necessary here to consider a new campaign finance law that went into effect on April 7, just a few weeks prior to the break-ins. For Shepard and other Nixon sympathizers, its ramifications have been tragically overlooked, to the president’s detriment in the verdict of history.
The law mandated disclosure of donor identities. As the disclosure deadline loomed, Nixon looked like a shoo-in to defeat McGovern. Consequently, business titans who had been reliable Democratic heavy hitters decided to hedge their bets and contribute to Nixon’s campaign. As a condition, they were promised strict confidentiality as to well over $100,000 in donations, much of it in cash and so close to the April 7 deadline that there was controversy over whether the new disclosure law applied.
The campaign turned to the irrepressible Liddy for his legal analysis. Naturally, he not only approved the donations under the old non-disclosure standards but undertook to make them harder to trace by laundering the money through various campaign accounts. He was assisted by Bernard Barker, one of the Cubans recruited for the Fielding and Watergate burglaries. After a deposit of $114,000 in checks at a Florida bank, Barker went for cash withdrawals in batches of $100 bills. The bank did not have enough cash on hand, so it requested an infusion from the Federal Reserve Bank in Miami, which duly transferred $50,000 in newly minted bills. Liddy brought a goodly chunk of this cash to CRP headquarters, to be kept in a safe for sundry expenditures. Some of it was used to pay the Watergate burglars. Upon their arrest, police seized nearly $5,000 in those fresh, consecutively numbered bills.
Between the arrests of McCord, the involvement of the Cubans, and the Fed-issued money, the FBI suspected it had stumbled upon some bizarre CIA operation. Meantime, the campaign worried that, if the FBI pressed ahead with interviews about how the cash came to be in the possession of the burglars, the unwinding of that thread would expose the Democratic donors who had been assured confidentiality.
This intrigue is relevant because of what has always been seen as the “smoking gun” proof of Nixon’s complicity in the Watergate cover-up. On June 23, just six days after the arrests and at Dean’s urging, Haldeman proposed that Nixon direct the FBI to refrain from interviewing two witnesses (a lawyer and a Fed official) who were not complicit in the Watergate burglary but were instrumental in the movement of funds between banks. The point, Shepard forcefully contends, was not to impede the investigation of the break-in; it was to protect the identities of the Democratic donors.
The June 23 meeting was in the Oval Office and thus captured on the president’s recording system. There is no evidence that, so soon after the burglary, Nixon knew of any White House participation in it. It seemed confined to a few bad actors, including one—McCord—who was somehow connected to the campaign. Nixon was unaware of Dean’s role in recruiting and scheming with Liddy. The president was communicating with Haldeman and Ehrlichman, but the evidence that they were aware of Dean’s approval of the break-in is scant and dependent on Dean’s self-serving and shifting account. Nixon also had contact with Mitchell, but the latter maintained that he never approved the Dean/Liddy “Gemstone” plan, and there’s no evidence that he’d said anything to Nixon about it. And in the president’s only personal conversation with FBI Director L. Patrick Gray regarding Watergate, over two weeks after the June 23 meeting, Nixon directed Gray to “just continue your aggressive and thorough investigation.” Nevertheless, the June 23 conversation is remembered as cinching Nixon’s guilt, no small thanks to his having preserved the recording but withheld it from his lawyers until he was on the verge of being impeached—assuring that its disclosure, after Nixon’s indignant public protestations of innocence, would be devastating.
The other bombshell evidence implicating Nixon was his recorded conversation with Dean and Haldeman on March 21, 1973—notorious for Dean’s “cancer on the presidency” soliloquy. By then, the burglars had been convicted and were facing harsh sentences by Judge John Sirica, an erratic publicity hound of dubious ethics, who had colluded with both prosecutors and congressional investigators in pressuring the burglars to roll on their presumed coconspirators at the White House. Though the campaign had already provided a great deal of financial support in exchange for the burglars’ silence—much of it approved by Dean—Hunt made a last-minute demand for $120,000, furtively threatening to expose the Fielding break-in, which had not been publicly connected to the campaign.
Minimizing his own participation, Dean related that he’d erred in recruiting Liddy, whose people had done the DNC break-in, and that Hunt was now demanding money in exchange for silence. The fact that he had to recount these details is indicative of how sparse Nixon’s knowledge was. To his eternal discredit, the president participated in the discussion of paying off Hunt, with the idea of “buying time.” Contrary to the Watergate prosecutors’ assertions, though, there is no proof that Nixon expressly ordered it to be done. What he conclusively said was that Mitchell, who was in New York, should be summoned to Washington to consult on how Hunt’s demands should be handled.
Meanwhile, Nixon rightly surmised that the only effective way to get out from under Hunt’s extortionate threat was to eviscerate his leverage by having the White House disclose the Fielding break-in first. Alas, he didn’t unambiguously order that to be done either.
Behind the Myths
This was the heart of the case against the president. There are other well-known Watergate chapters, but their substantive consequence pales against the torpedo effect of resulting media coverage while the ship of state was inexorably sinking. For example, how there came to be an eighteen-minute gap in a June 20, 1972, conversation between Nixon and Mitchell has never been explained. Rosemary Woods, the president’s secretary, forever maintained that it was accidental. Suspicious? Sure. But it happened at a point in time when the knowledge of the interlocutors about the campaign’s connection to the Watergate break-ins was nil, as later conversations underscored.
Even Dean regarded this June 20 conversation as insignificant. That’s a notable concession. In the early stages of plea negotiations, Dean’s portrayal of Nixon was benign—he was prepared to implicate Mitchell and Magruder based on their discussions at the Justice Department. Career federal prosecutors refused to give Dean the sweetheart deal he was seeking, recognizing the seriousness of his misconduct and the evolution of his account. As his straits became more dire, Dean’s depiction of Nixon became ever more corrupt and diabolical, making him attractive to the highly political Senate Watergate Committee chaired by Democratic Senator Sam Ervin and the hyper-political special prosecutors. Each saw Dean as the path to nailing Nixon, Haldeman, Ehrlichman, and Mitchell. As it happened, in 1970 anti-crime legislation, Congress had slipped in a provision empowering lawmakers to grant immunity even if the Justice Department objected. Dean was thus immunized by the Ervin Committee, taking his star turn at its Watergate hearings.
Another infamous episode, the “Saturday Night Massacre,” is misremembered as Nixon’s gambit to shut down the investigation. As usual, it’s more complicated than that. Nixon nominated Elliot Richardson to replace Mitchell as attorney general. To get confirmed by the Senate Judiciary Committee, on which Senator Ted Kennedy, not coincidentally, was a major player, Richardson made sweeping concessions about independence for a Watergate special prosecutor—such that the prosecutor, though nominally subordinate to the AG, would in effect be an unaccountable fourth branch of government, if not flat-out beholden to Kennedy’s Judiciary Committee. Richardson then tapped for this post Archibald Cox, a partisan Democrat and Kennedy insider who had served as Camelot’s solicitor general. Cox assembled a phalanx of like-minded prosecutors, who set about the dual strategy of establishing Nixon’s guilt and getting him impeached.
The existence of Nixon’s tapes had been exposed during the Ervin Committee hearings. This was hardly the shocking development the media-Democrat complex described it as; both of Nixon’s immediate predecessors, Presidents Kennedy and Johnson, had secretly recorded hundreds of hours of White House conversations. Obviously, Cox wanted Nixon’s tapes as evidence. Legally, it was no sure thing that the prosecutor was entitled to them: the tapes were the president’s property, they were presumed to be privileged, Nixon did not want to surrender them, and Cox—at least technically—was an executive official subject to the president’s direction. Cox first tried to bargain for the tapes rather than risk a loss in court, offering to settle for transcripts if their accuracy could be verified. When Nixon balked, Cox decided to subpoena the tapes (as did the Senate)—basically daring Nixon to fire him while confident of prevailing in the friendly confines of Sirica’s district court, and then the Democrat-heavy D.C. Circuit of Appeals. Rather than appeal to the Supreme Court, Nixon reverted back to Cox’s original proposal of providing verified transcripts.
This was known as the “Stennis compromise” because the well-respected Mississippi Democrat, Senator John Stennis, was to authenticate the transcripts. Richardson assured Nixon that this compromise was so reasonable that he would fire Cox if the prosecutor rejected it. After initially agreeing, as did Ervin, Cox reversed himself after the compromise was publicly announced. He then made a grandstanding speech accusing Nixon of defying the rule of law. In response, Nixon expected Richardson to make good on his commitment. But fearing for his reputation in the climate of the time, Richardson declined to fire Cox, instead submitting his own resignation on Saturday, October 20, 1973—and instantly transforming himself into a celebrity martyr. Richardson’s, deputy, William Ruckelshaus, also resigned, similarly rationalizing that he’d promised Kennedy’s Committee that Cox would have total independence. It thus fell to Robert Bork, then the solicitor general, to become acting AG and dismiss Cox, which he did.
It was indeed an earthquake politically, further eroding Nixon’s public support, making his resignation increasingly a matter of when, not if. Still, Nixon did not shut down the investigation, though he had the power to do so. In fact, as he had contemplated aloud in the March 21 meeting over Hunt’s demands, he directed his staff to testify under oath when called before Ervin’s Committee, granting no immunity and invoking no executive privilege. At the Justice Department’s recommendation, he cleaned house, firing those tainted by the scandal, including his longtime aides, Haldeman and Ehrlichman.
As Bork recounted in his posthumously published book, Saving Justice, though first inclined to resign, he remained as acting AG at the urging of Richardson and Ruckelshaus, stabilizing the Justice Department and preserving the investigation by appointing Leon Jaworski to succeed Cox. The special prosecutors marched aggressively forward. Though many suggested that he do so, Nixon was never going to obstruct justice by destroying the tapes; after all, he’d been willing to surrender verified transcripts. When the Supreme Court ruled in late July 1974 that he had to turn the tapes over to Sirica for review, he complied with the Court’s order, even though he had to know the June 21 tape would be his administration’s death knell—regardless of whether his apologists are correct that it has been misinterpreted.
Political, Not Legal, Crimes
In the final analysis, in 1972, the combination of the media and the political class was unbeatable. Nixon had no margin for error, and he made profound errors. A quarter-century later, though progressives were beginning to lose their steely grip on the media, the bottom line was the same: The media-Democrat complex that savaged Nixon into resignation circled the wagons around Clinton, saving his presidency. The organized bar and its Ivy League vanguard, which had lionized Cox and zealously staffed his team, abominated Clinton’s prosecutor, Ken Starr.
This is not to plead President Nixon’s innocence. His advocates stress the niceties of divisions of authority—the contentions that the political campaign operation and the White House governing administration are distinct, and that corruption in the former does not necessarily mean corruption in the latter, get them only so far.
Put aside that Nixon critics, heavily reliant on Dean, insist the White House abused its powers in ways that transcended the Watergate break-in, and abetted the campaign’s illegality. The remorseless fact is that it was Nixon’s campaign and the Nixon administration. He was responsible for the actions of his subordinates, including their lawlessness. The buck stopped with him. And while interfering in a criminal investigation to honor a legally questionable confidentiality promise to donors would not be egregious as interfering in a criminal investigation to conceal an administration’s connection to a felony break-in to facilitate political spying, it would still be obstruction of justice.
It is certainly true, as Nixon’s apologists posit, that the special prosecutors in Washington played fast and loose with due process rules in convicting the major participants. It is also true, that the Washington jury pool was predisposed against the president (the District of Columbia joined only Massachusetts in voting for McGovern over Nixon). That, however, would be a good reason to resist any urge to commit crimes in the district. It is not a defense.
All that said, though, let’s consider impeachment. That is the main issue, particularly when we consider Watergate’s institutional legacy, and its impact on relations between the two political branches of government. Impeachment is political, not legal. That being the case, political support is more consequential than legal guilt. The high crimes and misdemeanors that can trigger impeachment articles need not even be crimes, just the House’s judgment that executive power has been so gravely abused that the president is no longer fit to serve—a political determination, not a legal one. More to the point, the Constitution’s daunting two-thirds supermajority requirement for conviction and removal by the Senate ensures that no president will ever be stripped of power absent an overwhelming national consensus in support of expulsion. That’s why it has never happened . . . even though it would almost certainly have happened to Nixon had he not stepped down.
Richard Nixon was forced out of office because he lacked the media support to fight back. It is the media support that creates the minimal political support necessary to stave off impeachment. Bill Clinton had it in spades, which is why he overcame misconduct that would not have been survivable had it happened even a decade before, or if he had been a Republican.
President Donald Trump’s misconduct in stoking the Capitol riot was considerably worse than Nixon’s derelictions. By 2021, however, the conservative presence in both media and social media had become a viable competitor to the legacy media-Democrat complex. Without such a competitor, Trump would not have been elected in the first place; with it, he withstood the more partisan, Ukraine-based impeachment without breaking a sweat. The second impeachment was substantively meritorious but, practically speaking, a nonstarter given its lateness in Trump’s term. The majority of Senate Republicans rather dubiously claimed that the Constitution forbade impeachment of a non-incumbent, giving them a rationale to acquit regardless of the evidence. It is an interesting question whether Trump would have beaten an impeachment that was more competently investigated and pled by the House, and that the Senate had to weigh conscientiously.
The answer is probably yes. It’s not a matter of merits. It is that a half-century later, even an unpopular Republican president enjoyed a political support system of which Richard Nixon could only have dreamed.