Forty years ago later this week — on Aug. 9, 1974 — President Richard M. Nixon saluted and flew off in a green helicopter, becoming the first president in American history to resign in disgrace.
Politically decimated by the Watergate scandal, prominent members of his own party, including Sens. Barry Goldwater, R-Ariz., and Hugh Scott, R-Pa., had visited the White House to tell the embattled president that they could no longer support him. Indeed, the drumbeat for impeachment had become deafening.
After Nixon's firing of Watergate special prosecutor Archibald Cox in the infamous Saturday Night Massacre, a firestorm of public protest had erupted. This ushered in a new special prosecutor, Leon Jaworski, who forced Nixon to hand over dozens of damning tape recordings created by his secret White House taping system.
Among these was the “smoking gun” tape of July 23, 1972, in which Nixon had suggested that his aides convince the FBI to halt its investigation into the Watergate break-in, an egregious obstruction of justice. Another key tape, recorded shortly after the break-in, contained a mysterious 18 1⁄2 minute gap; experts said that it had been caused by a deliberate erasure.
As the House Judiciary Committee, in a sober bipartisan vote, adopted three articles of impeachment, a physically and emotionally drained Nixon decided to surrender the presidency.
Like most decisions made by Richard Nixon, it almost certainly included a healthy dose of self-interest. Nixon was a shrewd and careful politician and lawyer. He certainly understood that the Constitution created a path for his successor — newly appointed Vice President Gerald R. Ford — to pardon him. Yet he also knew that Article II, Section 2, of the Constitution gave the president power to grant reprieves and pardons “except in Cases of Impeachment.”
Thus, Richard Nixon's agonizing decision to resign, while he continued to deny any wrongdoing in the Watergate affair, was likely driven by the calculation that it might be the only way to keep himself from going to federal prison.
The final straw for Nixon was the landmark ruling of the U.S. Supreme Court in U.S. v. Nixon. In that unanimous 8-0 decision, handed down during the final hot weeks of July, the Supreme Court held that no person, not even the president, was above the law.
The court acknowledged that the notion of executive privilege permitted presidents to keep certain documents off limits. But when a court or grand jury directed the president to turn over evidence in a pending criminal case, the chief executive's limited privilege had to yield to the interests of America's justice system.
It was a particular blow to Richard Nixon that the opinion was authored by Chief Justice Warren Burger, a solid conservative whom Nixon had appointed to the high court.
Several years before he died, I interviewed Burger in connection with my work on the biography of Watergate special prosecutor Archibald Cox. The chief justice pointed to a painting on the wall of his chamber; it depicted two law books — one red and one brown — with a candle to the side. The books, Burger said, were volumes containing the trial of Aaron Burr (1807) and the impeachment of President Andrew Johnson (1868), two cases that he had argued during moot court exercises as a law student in Minnesota.
Both cases were vitally important, Burger stated, because they suggested that presidential power sometimes had to yield to the good of the system of government and the nation.
It turned out that Burger, an accomplished artist, had painted that painting himself as a young man; it was hanging over his desk when he wrote U.S. v. Nixon, and he had stared at it for guidance. Those cases were crucial, he said, because they endorsed the necessity of maintaining the rule of law in our system of government, even when this collided with the ambitions of a single president.
“I had written that opinion 40 years ago,” Burger told me in a deep voice.
Dozens of government officials were ultimately convicted and/or jailed for criminal conduct in the Watergate affair. Nixon himself received a full and complete pardon from President Gerald R. Ford, on Sept. 8, 1974, as Ford tried to put the nightmare of Watergate behind himself and the country.
Yet the lesson of Watergate and Nixon's resignation remains one of the most poignant ones in the history of our nation. One colleague, who was giving a lecture in a foreign country, told me that a political leader pulled him aside and stated that he admired the American legal system mostly because of its decision in the Nixon case. “Most countries would never have the courage to hold their president accountable like other citizens,” the foreign leader said.
The fact that Richard M. Nixon surrendered the presidency of the United States — the most powerful position in the world, to which he had aspired most of his life — and flew off in a helicopter is the ultimate testament to the fact that in this democratic republic, the power and might and even reckless actions of a single chief executive, in the end, do not trump our laws and Constitution.
Ken Gormley is dean of the Duquesne University School of Law and a constitutional law professor there. The author of “Archibald Cox: Conscience of a Nation,” the biography of the Watergate special prosecutor, he currently is completing a new book, “American Presidents and the Constitution.” This article first appeared in the Pittsburgh Tribune-Review.
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