As the evidence of the Nixon Administration’s unprecedented, wholesale assault on the United States Constitution continues to develop apace, an increasingly relevant and inevitable question arises: What are the permissible Constitutional responses to such an attempt to undermine the very foundations of Republican government? Impeachment, resignation and removal (including Clark Clifford's ingenious proposal that Spiro Agnew resign, that Nixon then appoint a replacement from a list of three names submitted by Congress, and that, in turn, the President resign to permit a government of “national unity” under the new Vice President) are, in essence, political (and, given Nixon’s psyche, personal) impossibilities. The American people may well be inclined (according to a recent poll) to favor impeachment or resignation if the President was involved in either the planning or the cover-up of Watergate, but their Congressional representatives (at least for the moment) clearly are not—perhaps because of the immense time that must necessarily be devoted to both impeachment and trial; it is also safe to assume that Richard Nixon will battle mightily to preserve his already shredded Presidency. If those Constitutional responses are inadequate, are there others?
Although the complexities of what is popularly called Watergate will eventually only be unraveled by a computer (or a bank of them), enough is already known to suggest that the American people need not sit by in frustration until the whole story is revealed. For one thing, that particular tale may never be uncovered in credible form, for the major figures concerned have contradicted each other and themselves with a vigor that may well defy criminal prosecution or even meaningful Ervin Committee findings. What has been established beyond doubt, however, is the fact that the Presidential election of 1972 was so permeated with fraud on a national level that its validity must be seriously questioned. We also know of the likelihood (though not the incontrovertible fact) that the President had knowledge of both the fraud and of criminal acts relating to such fraud (as well as other misconduct). The critical questions then become—who has the power and authority to question the validity of the election, what are the forums for such queries, and may the President be compelled to appear in such forums.? The last question—the amenability of the President to legal process—is the subject of much recondite speculation (much of it being negative), while the other two questions have not been publicly discussed, although two lawsuits have been filed seeking to void the election.
Many of the “fraudulent” acts contributing to the victory of the Republican candidate for President have already surfaced: the phony “Canucks” letter which led to the destruction of Edmund Muskie’s campaign during the New Hampshire primary, the phony letters of support for the 1970 Cambodian incursion, the attacks upon Hubert Humphrey's and Henry Jackson’s sex lives during the Florida primary (which probably were ineffectual), and the conduct of CREEP in the California Democratic primary. Doubtlessly, much more similar conduct will be documented as time goes on. It is apparent that the overriding goal of the President’s campaign effort was to systematically eliminate the strongest Democratic contenders (starting with Muskie in 1971, when the process began) and to insure the nomination of George McGovern as that party's standard-bearer. Apparently, very little of this form of fraud played a major role during the campaign itself, although continuing revelations of CREEP misconduct may soon make this statement “inoperative.”
Of course, to argue that George McGovern was the product not of the desires of those millions of Democrats who actively participated in pre-convention politics (many for the first time) but of a CREEP “master plan” is to argue the politically and emotionally unpalatable. But, if the terms of the argument be shifted somewhat—to the plane of what the Democratic nomination (whoever may have achieved it) meant after all the deceit and rancor of the pre-convention period—then the deception argument may be more acceptable, as well as more accurate. The bitter and divisive tactics of CREEP not only insured George McGovern's nomination but also created an atmosphere whereby, for instance, Edward Muskie would not accept the Vice Presidency after the Eagleton affair. This and other similar incidents demonstrate that the true evil lay not in McGovern’s selection, but in the sowing of confusion and disarray into the affairs of the Democratic party.
In addition to “traditional” fraud, the corruption of the political process in 1972 consisted in CREEP’s unauthorized and illegal campaign-fundraising and expenditures. Violations of two federal Corrupt Practices Acts have already been documented, and more may be forthcoming. No court has ever decided that such violations per se (or in combination with the aforementioned fraudulent practices) are grounds for questioning the validity of an election, but, then again, Watergate and 1972 are sui generis in terms of American political history.
Grounds for Action
There are numerous possible grounds for contesting the election; the question is whether a viable Constitutional theory can be construed to encompass and sustain those grounds. Thus, courts are familiar with the legal concept of electoral fraud and have, without great hesitancy, required new elections when fraud at the polls (ballot box stuffing, intimidation of voters, etc.) has been shown. Also, elections have been overthrown where classes of voters (most notably, of course, blacks under the 15th Amendment) have been denied the franchise. In most cases, no showing that the fraud (or franchise denials) changed the results of the election is necessary; the corruption of the political process is sufficient if there is any likelihood that the outcome would have been changed absent the fraud; where civil rights violations are concerned, even this much is not necessary. Watergate is unique in that the process of fraud and corruption started long before the election, continued through the vital pre-election period, and irrevocably affected the fortunes of the Democratic Party. The effect of the irregularities was cumulative, and it is impossible to determine at what point in time, such effect was (or might have been) decisive.
Who would sue? Is there a personal right to vote uninfluenced by fraud? Although the issue has never arisen in the Watergate context (since the event is unique, so must any legal or political analysis of it be), there are numerous Supreme Court rulings affirming in strong and sweeping language the existence of a right to vote. The most recent one, Powell v McCormack, in 1969, approved Alexander Hamilton’s statement to the New York Constitutional Convention in 1788, “[T]he true principle of a Republic is, that the people should choose those whom they please to govern them.” Also, the Court quoted a British Parliament's eventual vindication of John Wilkes’ right not to be excluded from that body, and its declaration that such action was “subversive of the rights of the whole body of electors of this kingdom” and “the right of the British electorate to be represented by men of their own choice.”
The right is not a peripheral one, for the Lowell decision, in restoring the Harlem representative to his seat in the House of Representatives, affirmed
That the right of the electors to be represented by men of their own choice, was so essential for the preservation of their other rights, that it ought to be considered as one of the most sacred parts of our Constitution... that the [voters] . . . had an indisputable right to return whom they thought proper....
The great (perhaps the Court’s greatest) decision in Reynolds v Sims in 1964 (the “one man, one vote” opinion) held that “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Lest anyone conclude that only the formal right to vote was involved, it should be noted that Reynolds involved the weight of the ballot rather than the ability to cast it, and that the Court quoted approvingly from a previous comment of Justice Douglas in another case, “Free and honest elections are the very foundation of our Republican form of government . . . .” and “[E]very citizen has an inalienable right to full and effective participation in the political processes. . . . ” (emphasis added).
Thus, it would appear that a viable case for invalidating the Presidential election of 1972 can be theoretically built. There is no question that a considerable number of voters were influenced to reject the Democratic candidate for President last year--especially since they were traditional Democrats who retained their loyalties in Congressional and Senatorial, as well as local, races. Indeed, the findings of political scientists about party loyalty are immeasurably relevant to document the extent of vote-switching in 1972, for, as one student of the subject put it.
No element of the political lives of Americans is more impressive than their party loyalties. . . . Current measurements of particular dispositions indicate that the Republicans could expect about 46 percent if the vote of the nation expressed only its fixed party loyalties at the polls.
Thus, it would not be too bizarre, politically speaking, for a voter normally Democratic to claim that he voted for President Nixon, largely if not solely, because of the now revealed Republican “dirty tricks”—or perhaps a proper plaintiff would be a traditional voter who comprised that 45 percent who did not even go to the polls because of Democratic disarray. Both could now argue that their conduct was induced by fraud.
Corruption of the Process
Another possible challenge by a voter, whether or not he claimed personal deception, might well involve an assertion that the election should be invalidated because of the massive corruption of the political process. The “standing” of such a voter to claim a generalized harm to the polity (which is freely admitted as an intellectual proposition by most), rather than a particular harm to himself, would be analogous to the ability of a corporate shareholder to bring a “derivative” lawsuit arguing that certain conduct of the corporation's managers constituted a direct harm to the corporation itself, rather than only an indirect one to himself. The advantage of this form of suit lies in the ability of the plaintiff to include the financial defalcations, as well as the “fraud,” as elements of his claim of political perversion; the difficulty is that federal courts (in distinction to state courts) rarely allow this form of ombudsman-private attorney-general suit.
It is likely that any lawsuit would be directed against the President (or Vice President who, whatever his involvement with the corruption, obtained a “free ride” from the scandal), for the technical difficulties of suing the state electors or the state officials who actually certified the credentials of the electors are insuperable. A tenable suit could be based, for instance, on the ancient Writ of Quo Warranto which asks “by what right do you hold this office” (a writ, incidentally often resorted to by dissident shareholders against corporate officers). The respondents named in such an action would be both the President and Vice President, and the remedy sought would be a declaration that the office is vacant. There are complex problems of whether the President could be sued—as I later suggest, the issue is not yet settled—and who would have the fight (again, what lawyers call “standing”) to bring the suit. That may depend upon the posture of the suit; is it based upon the private (Constitutional) fight to cast a vote unhampered by fraud or a “public right” to integrity in the electoral process? Since the issues in this context are unique—although many of them, in other formats, are not—the eventual legal (and moral and political) arguments, as well as the decision itself, will doubtlessly be “classical,” and the American people—and their courts—will have to await full development of such arguments before making a final judgment on the merits.
If the judiciary follows its traditional inclinations (witness the fate of suits during the Vietnam war arguing for its illegality, but then again, note that suits attacking the Cambodia bombing after the return of our prisoners of war have fared better—at least initially) and ducks the concrete issues involved in the pending (and doubtlessly forthcoming) lawsuits, are there any other remedies?
Congress declares the winner of the Presidential election in a most unusual manner, but, despite the peculiarities, it is the inherent right of any legislative body to reconsider its acts, if those acts were undertaken as the result of fraud perpetrated upon it. The election of the President becomes “official” when the tally clerks of the House and Senate total up the electoral votes cast by each state’s electors (after the states have certified them and then have met), and the results are announced by the president of the Senate. Very few disputes about the credentials of electors have ever arisen (the electors in our unique Constitutional system are considered “state” rather than “federal” officials) and certainly none has occurred after the certification of those electors by all concerned. Congress, however, did once, in 1876, appoint a commission to study the credentials of three states’ Presidential electors. The history of the decisions of that commission, while not a particularly happy one, at least presents a possible resolution of that particular dilemma. The resolution might be politically, as well as morally, palatable.
A commission of let us say fifteen eminent citizens could take testimony in the various states from those individuals who felt that their votes had been fraudulently induced. It could judge for itself whether the witnesses were representative of a class of voters, a significant class, and whether the election was so tainted with fraud and impropriety that some Congressional action should be taken. Perhaps no such action is Constitutionally possible. In 1887, a law was passed allowing the states to conclusively determine challenges; pursuant to that statute, any failure to do so required that disputed electoral votes not be counted unless a majority of both Houses of Congress agreed to count them. Perhaps recommendations about repeal of the 1887 law or adoption of new legislation could be made. In any event, as a public forum, as a body which could marshal the flagging energies of Congress and give voice to the people's frustrations, such a commission—even if only advisory-—could be invaluable. The original Hayes-Tilden Electoral Commission was the result of what one scholar has termed “a completely extra-Constitutional compromise”; a similar one now, under the circumstances of the Watergate scandal, may well be extra-Constitutional, but this does not mean that it is “unconstitutional.”
The Role of Nixon
Central to these and the other developing questions of Watergate is the role of Richard M. Nixon. Could he be called as a witness in a lawsuit such as that contemplated herein? Could he be made a defendant in such a lawsuit? Could he be questioned by a grand jury (with, of course, the right to plead any relevant Constitutional amendment, including the Fifth, in such a proceeding) about his involvement, let us say, in the Ellsberg psychiatrist's break-in affair? Could his role in that notorious plan for domestic intelligence-gathering in 1970 (the chilling text of which—including his approval—was printed in the New York Times on June 7, 1973) be investigated by a grand jury considering charges of conspiracy to violate the surveillance laws of the United States (after all, in 1972, the Supreme Court held that warrantless electronic surveillance of domestic radicals was unconstitutional and illegal)?
Much has recently been written about the susceptibility of a sitting President to legal processes. Most of the traditional scholarship in the field has argued, in accordance with William Howard Taft’s view, that the President “could not be detained as a witness in a case, because it would interfere with his public duties,” and the whole question has been derided as an example of Constitutional illusion. What, for instance, would happen if a President refused to honor a grand jury subpoena or service of process in a civil lawsuit? Could he be cited for contempt (if a witness) or lose the suit by default (if a defendant)?
The argument must be broken down into two parts, the Constitutional and the practical. Two specific instances in our history are usually cited to support the claim of Constitutional invulnerability for the President; they do not quite add up to such a sweeping conclusion. In June of 1807, Aaron Burr, in defending himself against a charge of treason, sought to subpoena Thomas Jefferson, then President, and John Marshall, sitting as trial judge, issued the command. Jefferson defied it, and Marshall did not press the matter to the point of either a contempt citation or a bodily attachment (meaning literally what it says). In 1867, the United States Supreme Court refused to permit the filing of a complaint against the President of the United States (by the State of Mississippi) seeking to enjoin him from enforcing certain reconstruction laws on the ground that they were unconstitutional. Since then, no President has been sued in his own name for acts done in his official capacity.
During the four-day argument over the right to subpoena the President in the Burr case, the government conceded that
Elevated as our illustrious President is, yet our principles are, that when life is in jeopardy, he may be summoned like any other individual, where he is able to disclose important facts, and when the national interests will admit of his attendance…. We admit that a subpoena may issue against him as well as against any other man....
The only issue was the propriety of requiring the President to answer a subpoena duces tecum (to produce documents), and the wrangle clearly involved an early historical version of “executive privilege” in respect to communications to the White House. Marshall's opinion cleverly seized upon the government's concession—“[T]he attorney for the United States avowed his opinion, that a general subpoena might issue to the President; but not a subpoena duces tecum”—and extended it to include all subpoenas; he noted that Jefferson could always contest the scope of the subpoena but that “The propriety of introducing any paper into a case, as testimony, must depend on the character of the paper, not on the character or the person who holds it.”
Before dismissing the Burr affair as a victory for Presidential prerogative, we should note that, despite the protests, Jefferson did turn over the requested documents, that they were of no use to Burr anyway (which everyone knew), and that the delicate legal minuet involved not the highest considerations of state but of bitter partisan politics between two noted enemies, the President and the Chief Justice. Of course, much valuable Constitutional law has been made in just such a context, and the heated political battles of one historical moment have a way of becoming the hallowed Constitutional principles of another, after the passions have faded. While it may be true that Jefferson's apparent concession to the jurisdiction of a general subpoena (contradicted by his correspondence on the subject) may have been purely pragmatic and that Marshall's concession that the President might not have to appear “because his duties as chief magistrate, demand his whole time for national objects” may have been his escape hatch in the event of Jefferson’s refusal, the principles underlying the debate may be quite relevant today.
The historical setting of Mississippi v Johnson, the disinclination of a weakened Supreme Court to take on a popular Congress during turbulent political times, is also relevant to an understanding of the claim of Presidential immunity. Indeed, the case is irrelevant to Watergate for the simple reason that the government argued therein that “It is manifest here that the case made against Andrew Johnson is not made against him as an individual, as a natural person, for any acts he intends to do as Andrew Johnson the man . . . .” The decision was expressly confined to the issue whether the President can “be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional" and it refused to express an opinion on whether the President “may be held amenable, in any case, otherwise than by impeachment for crime.”
The most startling implied affirmation of the right to compel the President’s appearance occurred last year in the “Caldwell case” (technically known as Branzburg v Hayes ) where the Supreme Court, while denying the existence of a First Amendment immunity for reporters attempting to cover up their sources, said
Citizens generally are not constitutionally immune from grand jury subpoenas. . . . The long standing principle that ‘the public . . . has a right to every man’s evidence’' . . . is particularly applicable to grand jury proceedings.
In an intriguing footnote (which some members of the Burger majority may now regret), the opinion referred to both Jeremy Bentham's old adage that even “the highest persons” must give evidence in a minor dispute which they had witnessed and to Marshall's subpoena of Jefferson. Clearly, the issue is not resolved, although the scholars are right in contending that, pragmatically, no judge has ever pushed it and that no President has been sued in his own name since 1867.
As the Watergate scandal cascades into the Oval Room itself, as Richard Nixon’s defenses become more strained, contradictory and pathetic, as the President retreats into a monastic silence and even refuses to hold news conferences (much less acknowledge any inclination to voluntarily submit himself to legal process), as our political times “boil over,” new Constitutional questions arise almost daily. The “unthinkable” becomes the norm, as Elliott Richardson notes that evidence of Presidential involvement in Watergate is “inconclusive” and Archibald Cox announces a routine inquiry into whether a sitting, unimpeached President can be criminally charged.
Can the Constitution deal with the massive corruption of the democratic political process, either by judicial cognizance of lawsuits or by recognition of Congress’ power to “investigate” (and perhaps “recall”) the electoral results of 19727 Our Constitution was inadequate to deal with the overriding political and moral issue of slavery in 1860; is it, even as interpreted by a Court which has been determined for the last century to make it work in times of national crisis, impotent in the face of a unique and major moral and political scandal? If so, then Richard Nixon may well “tough it out” not only against his political adversaries but also against the best instincts of the American people and of their revered charter of government.
