Abby Fennewald

As James Madison said, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” Although Nixon’s grand jury testimony in the Watergate case produced no real breakthroughs in our understanding of his involvement, it is still important to have access to these documents.

Stanley Kutler, the historian who requested the documents, recognized this. “The grand jury after that testimony had a chance to sit and indict but they did not…so I don’t expect it to be that important,” he said to the AP, adding that it was another victory for transparency in public life.

Nixon, of course, would have been furious. He believed more than anything that he should be able to keep his secrets, and that being president gave him the power to do that. There is no way that when he was giving his testimony he thought there was even the slightest chance that what he said would come to light, but even with that assumed protection, he didn’t let his guard down and tell the truth.

The kind of openness that the release of these documents represents is a vital part of our democracy. If Nixon had been forced to tell the truth about the bombing of Cambodia from the outset, the war in Vietnam would have had a completely different outcome. There are many stories like this in American history. Allowing for public discourse on government action can make politicians think about their decisions in a new light. The only way this can happen, however, is if we know what the government, especially the executive branch, is doing.

James Madison was an early champion of this kind of transparency. Today, FOIA (Freedom of Information Act) release all kinds of government documents to those willing to read them and look for valuable information. Every president can give new directives about how to interpret and enforce this law, as what documents are released has a direct impact on how the public views a president. Under President George W. Bush, Attorney General John Ashcroft recommended a very strict interpretation on what documents should be released. If one of the exceptions to FOIA applied, he wanted executive agencies to use it, even if releasing the documents wouldn’t harm any government operations.

When President Obama took office, he pledged more transparency from these agencies. The implementation of this, however, has seen limited results. Certainly we know more about how many agencies function within the executive branch than during Nixon’s administration, but there is still progress to be made. Nixon’s grand jury testimony might not have the answers we are looking for, but it is still important that they be available. There are many groups today that can help with online FOIA requests, and this is a very valuable service. Government transparency may not have been able to prevent Watergate from happening, but it could potentially have made the risk too great for Nixon to carry out some of his other “dirty tricks,” and would have changed his perspective on what information could potentially be made public.

Conor Daniels

Nixon’s Grand Jury Testimony

 The unsealing of Nixon’s Grand Jury testimony was a seminal moment not only in the saga of Watergate, but a fascinating window into the mind of a very complicated man. For eleven hours, the disgraced former president sparred with prosecutors in what could be described as classic Nixon fashion.  The tapes display a remarkable portrait of Nixon after he left office, bitter about his fall from grace and cynical about politics generally. He seems to present himself as a victim of governmental abuses by his enemies during his career in politics, and said that prosecutors were out to destroy him in order to validate their actions during the scandal’s early days.

At the same time he is arguing that his White House did nothing out of the ordinary, he simultaneously seems to compliment JFK’s administration asserting that it had directed the I.R.S. and other government agencies to discredit him as he ran for governor of California. He says:

“They were pretty smart, I guess,” he said. “Rather than using a group of amateur Watergate bugglers, burglars — well they were bunglers — they used the F.B.I….”

This is a great microcosm of the tension that existed within Nixon’s psyche. He had the propensity for law breaking, seeing it as a necessary component of the political game, and at the same time had convinced himself that he was not responsible for the actions he was taking.

Another interesting point raised by Professor Chris Edeldson was the implication of Nixon’s testifying only after he had resigned. It would have raised an interesting constitutional situation surrounding the separation of the executive branch. Had Nixon still been the sitting president, one could only imagine he might have refused to testify before the Grand Jury at all. Obviously U.S. v Nixon made clear that this viewpoint was flawed, as so many of Nixon’s were, however it would have been interesting to watch unfold.

Nixon even directed some humor at himself, as he recalled telling an advisor to look into the 18 ½-minute gap on the White House tapes. “I said to him, ‘Let’s find out how this damn thing happened,’ ” Nixon said. “I am sorry, I wasn’t supposed to use profanity. You have enough on the tapes.” This ability of Nixon to be self-deprecating is almost necessary in a man so profoundly awkward on the national stage. And from the pages of transcript I have read, his awkwardness and missed attempts at humor are present throughout. It made for a great read.

A Constitutional Crisis

Chris Edelson

Assistant Professor in the Department of Government

American University

The Watergate break-in and the Nixon administration’s actions after the break-in[1] presented a challenge to the basic structure of constitutional democracy in the United States.  Most centrally, these events raised questions about the rule of law itself.  Could President Nixon define the limits of executive power himself, as he argued in U.S. v. Nixon, or did the system of checks and balances created by the Framers set effective and enforceable limits on presidential power?

In refusing to produce tape recordings and other documents in response to a subpoena issued by the Watergate special prosecutor, President Nixon advanced a theory of executive power that threatened to subvert the constitutional structure of checks and balances.  Nixon’s lawyers argued before the Supreme Court that the principle of separation of powers meant that the President could independently define the scope of executive privilege under the Constitution.[2]  If the Court has accepted this argument, it would mean that the President would effectively have the ability to define the limits of presidential power when it comes to protecting presidential communications from review by a court: if the President independently concluded communications were confidential, for any reason, this decision could not be reviewed by a court.  The Supreme Court rejected this argument, citing Marbury v. Madison, and concluding that the President’s position “would upset the constitutional balance of a workable government” and gravely impair the role of the courts under Article III.”  Nixon’s position would prevent the courts from performing their constitutional function because he would be able to withhold, without sufficient justification, evidence relevant to criminal prosecutions.

President Nixon also argued that he could not be required to testify before the grand jury investigating the Watergate burglary. Nixon ultimately testified before the grand jury, but only after he resigned from office.  If Nixon had remained in office, deciding whether he could be required to testify before the grand jury would proceed along lines similar to those outlined in U.S. v. Nixon.  Nixon argued that requiring him to testify would undermine the independence of the executive branch, giving the courts impermissible power to control his actions.  However, in U.S. v. Nixon, the Court had made clear that Nixon’s view of the separation of powers was flawed.  The principle of separation of powers cannot “insulate” the President from interaction with the other branches of government.  In fact, the Framers’ notion of the separation of powers depended on the different branches of government having overlapping functions, rather than operating in hermetically sealed spheres.  In U.S. v. Nixon, the Court recognized that there are times when the President’s actions must be protected from review by the other branches of government[3]; however, this principle is not absolute.  In another case decided years after Nixon left office, the Court drew a line between official and unofficial conduct as president: the President is immune from legal process associated with official conduct in office only.[4]  Applying this standard to testimony sought by the Watergate grand jury, President Nixon’s testimony could have been required even while he was still in office.  This would not have been the first time that a sitting President testified in an ongoing case: President Grant provided testimony (though voluntarily) through a deposition in a criminal case (the prosecution of an official in his administration).

With the benefit of hindsight, I can also observe that several presidents have testified since Nixon left office: President Carter provided testimony in two criminal prosecutions and also gave depositions in two cases; President Ford gave a deposition while in office and, probably most prominently, President Clinton gave a deposition in the Paula Jones case after the Supreme Court ruled he was not immune from judicial process while in office.  The Court, in Clinton v. Jones, ruled that litigation involving “questions that relate entirely to the unofficial conduct” of the President may proceed while the President is in office.  This case was, of course, decided more than 20 years after Nixon left office, but helps provide support for the conclusion that Nixon could have been compelled to testify before the Watergate grand jury even if he had remained in office.

 

 


[1] Other actions taken by President Nixon and his administration presented similar constitutional challenges, but this discussion focuses on the Watergate break-in.

[2] Executive privilege is not expressly described in the Constitution, but has been recognized by the Supreme Court as an implicit constitutional principle.

[3] For instance, the Court suggested, when the President makes decisions involving matters of national security.  Critics, however, might view even this concession as opening a dangerous area of unilateral presidential authority.

[4] Nixon v. Fitzgerald (1982).

Introduction to Testimony

Introduction

Pages 1-15 of the Testimony

The start of Nixon’s 297-page grand jury consists of a discussion of procedural issues.  The prosecutors express their concerns, and outline the format for the ensuing deposition. Nixon clarifies that he is present in a voluntary capacity and says that it is his wish that “[his] testimony will be helpful in concluding the investigation.”  He goes on to reinforce his belief that presidential communications should be kept secret, and about the power of the American presidency.  He then says that if he receives a guarantee of the secrecy of his testimony he “will reveal for the first time information with regard to why wire taps were proposed, information which if it is made public, will be terribly damaging to the United States.”

The most substantive part of this early section comes from Nixon’s attempts to defend the gaps in his memory.  He argues that “while you all and those who will be questioning me have had two years to study these things … I, on the other hand, will be trying to remember things that have occurred not only two years ago, but four years ago.”  He sets up a framework in which he is the victim—this is an intellectual theme with Nixon, and opines that he has been severed from his papers and records, which places him at a further disadvantage with regards to questioning.  Mr. Ruth (one of the prosecutors) tells him that anything the prosecution will be referencing is available, at the request of counsel, from the DC courts, which suggests that Nixon purposefully constructed a situation in which he had deniability.  By refusing to prepare for the testimony (i.e. by requesting documents from the DC courts) Nixon attempts to establish a situation in which he can believably say that he did not remember what occurred.

“I will have to, at times, use the phrase, which I abhor … but if I say ‘to the best of my recollection,’” preempts Nixon, “it will be only because I have not had an opportunity to access my own records”—clearly false; as Mr. Ruth says “any document we are using here today your counsel has had access to through court procedures, at your request.” Hypocritically, Nixon “abhors” relying on any answer save yes or no—yet “yes” and “no” answers are virtually absent from the body of the testimony.

The transcript of the testimony can be found online in several locations. The United States Government Printing Office (GPO) has published Nixon’s grand jury records, including these transcripts, online. They can be accessed at http://www.gpo.gov/fdsys/pkg/GPO-NARA-WSPF-NIXON-GRAND-JURY-RECORDS/content-detail.html.

Background Information

The 297-page transcript of Nixon’s testimony promised to offer key insight into Nixon’s own role in and knowledge of the infamous Democratic National Committee Headquarters break-in and its subsequent cover up. The testimony focused on four specific points of interest: the 18 ½ minute gap on Tape 342; the extent to which Nixon used the Internal Revenue Service (IRS) to harass political enemies; illegal or suspect campaign contributions (including the $100,000 bribe from eccentric billionaire Howard Hughes to Nixon via Nixon’s close friend and associate Charles “Bebe” Rebozo); and the illegal wiretapping conducted by the administration.

Avi McClelland

First Thoughts on the Grand Jury Testimony:
A Case Study on Selective Memory Loss

There was not a single answer in the Nixon testimony that did not involve either the phrase “I do not recall” or extended ramblings about why he could not, despite the fact that the events in question took place only a few years prior. Nixon claimed to have been preoccupied with the Chinese initiative, Americans being killed in Vietnam, etc, etc, etc. Nothing much new, and no lies because, well, it’s impossible to prove that “I cannot recall” is a lie.

The blank pages left in place of “classified information” are the most intriguing parts of the testimony. If the public had access to the actual evidence—the lists of names and the notes kept by senior officials like Ehrlichman, for example—perhaps the full story of Watergate truly would emerge. The people on the lists or mentioned in the notes could be tracked down and asked what they know about what happened. This, of course, raises privacy concerns, but it would seem that someone accountable only to the public should be able to see the entirety of the evidence—not government officials who may have their own reasons for keeping the information secret (perhaps orders from above?), or grand jurors who saw the evidence before many of the Watergate players had been given the opportunity to tell their sides of the story and before many of the tapes had been reviewed and released. The people named in the classified pages were likely questioned at the time of the investigation, but evidence that has been exposed in the years since may shed a new light on the entire case.

The conspiracy theorist in me loves to speculate; the realist in me knows that even if the classified evidence was made public, it would likely be of little consequence to the scandal itself, as those who were going to go down for the crimes already have, and most relevant stones were turned during the highly publicized, widely observed investigation.

It would be quite the story if the Bilderberg Group had ordered Nixon to spy on the DNC, or if Jimmy Hoffa had erased the tapes and been aided in his disappearance four years later by Nixon himself. But Watergate, as it stands now, is still a gleaming monument to conspiracy theories proved true, a vindication for “conspiracy theorists” everywhere. Watergate provides a solid example of a situation in which an outrageous story—wrought with espionage, government malfeasance, courtroom drama, and celebrity, with plenty of Good Guys and Bad Guys to root for and against—turns out to be even more twisted and complex than first thought, with even more powerful players—and entirely true, to boot! Best of all, the bad guy goes down in the end (kind of).

So for Watergate, let us both mourn and give thanks: we mourn that Nixon was never truly brought to justice and that the tale cannot continue, but we give thanks that we had such an intriguing story, one that gave us the strength to continue believing that Jimmy Hoffa is buried at Giants Stadium and Elvis bought a popsicle in Central Park last week—or at least, to continue salivating at the rumor.

I avoided the news media while writing my initial analysis, but I must include an addendum. In reporting on the release of the Grand Jury testimony, Fox News stated that “On Watergate, Nixon reaffirmed what historians now generally believe: that he did not order the infamous break-in that triggered his fall from power, and did not have any advance knowledge that it would be carried out.”[1] I find it almost sad that Nixon is no longer around to see that his dubious version of the truth is not being ignored, but has in fact been adopted by a major media outlet—and, consequently, a section of the American public.

Mark Anthony Dunham

The release of these materials shows a very different side of the 37th President of the United States– Richard M. Nixon. As a president, he was a master of public manipulation and keen on utilizing his image as a means of keeping himself above the fray; however, in the Grand Jury testimony, this Nixon is very different. Sardonic, sarcastic, intellectually sharp-tongued, and combative – Nixon shows his unwillingness to have his reputation sullied by “the tragedy of Watergate.” The results of this surly figure who utilizes wit, passive aggressive speech, and head-on confrontation to make his point are some funny and uncomfortably awkward moments with people who are clearly still in tacit awe of the task of possibly indicting a president. To be a part of history is an interesting adventure; yet, they do still have moments of levity, even in the most serious of circumstances.