Bruce Schulman & Julian Zelizer: Senator Sam's Challenge to Presidential Power





[Bruce Schulman, Boston University, and Julian E. Zelizer, Princeton University, are the editors of Rightward Bound: Making America Conservative in the Seventies (Harvard University Press).]

During the past month, there has been some rumbling on Capitol Hill about reinvigorating investigations into the Bush administration. House Judiciary Committee Chairman John Conyers warned that Karl Rove would face contempt of Congress if he did not appear before his colleagues to talk about the investigation into the decision by the Justice Department to fire a number of U.S. attorneys in 2006. Henry Waxman has requested more documents related to the CIA probe following revelations by Lewis Libby. The growing chorus calling for congressional investigation has become louder because of the claims made by former Bush Press Secretary Scott McLellan.

If Congress needs a model to demonstrate just how congressional oversight can benefit the nation, they should recall what happened thirty-five years ago when a special select committee of the U.S. Senate investigated Watergate. Chaired by the 76-year old Sam Ervin, the venerable conservative southern Democrat whose background as a constitutional lawyer lent gravity to the proceedings, the committee started its hearings in March when they first met in closed session with the former security coordinator of the Committee to Re-Elect the President, James McCord. During a grueling four-hour meeting, McCord admitted that Attorney General John Mitchell had agreed to the plot to bug Democratic offices at the Watergate complex. Resuming in May, the committee reconvened in nationally televised hearings that riveted the nation. The shady dealings that Ervin's committee uncovered and the existence of the secret White House tapes ultimately led to resignation of President Richard Nixon.

The Watergate hearings reshaped the relationships between Congress and the executive branch. The Ervin committee fueled structural changes in the American government, including congressional oversight of federal intelligence agencies, the War Powers resolution, campaign finance reform, and independent counsel investigations of executive branch malfeasance.

As Congress once again tangles with a White House that has vastly expanded presidential authority -- refusing to cooperate with investigations, invoking executive privilege to secret its decisions on issues ranging from torture to energy policy, deploying "signing statements" to evade enforcing laws the president has formally approved -- Americans confront the problem of whether and how to check presidential power. With a new administration set to take office less than a year from now, the Watergate hearings offer crucial lessons on how to recalibrate the balance of power in Washington.

Current disputes about the Bush administration's wartime expansion of executive authority recall the early 1970s when Congress attempted to reassert its influence in national affairs. Democrats had become frustrated with the executive power that they helped to create. The Senate twice rejected Nixon's nominations to the Supreme Court. Congress tangled with the White House over the federal budget and Nixon's impoundments -- his refusal to release funds appropriated by Congress. In a dispute foreshadowing the Bush administration's use of signing statements to evade enforcement of acts of Congress, Representative Wright Patman (D-TX), the chairman the House Banking and Currency Committee, denounced the president's refusal to release funds the Congress had earmarked for liberal programs as "a grab for power such as we have never seen before."

At the same time, Capitol Hill demanded more substantial oversight of the war in Southeast Asia and the conduct of United States foreign policy in general. Nixon's expansion of the war in Indochina, particularly the secret bombing and invasion of Cambodia, convinced many members of Congress that they had granted the executive too much leeway in matters of national defense.

Televised live on all major networks for almost 319 hours, the Ervin Committee hearings fascinated the nation. According to one poll, 85 percent of American households saw some part of the proceedings. Before the 1980s, when CSPAN began to broadcast from the Capitol, Americans had rarely witnessed Congress in action. Almost every day, Ervin delivered classic statements about the situation, such as "divine right went out with the American Revolution and doesn't belong to White House aides ... What meat do they eat that makes them grow so great?"

The star witness, John Dean, admitted his role in the Watergate affair and fingered Nixon's closest aids. Dean testified that Nixon himself participated in the cover-up and that that the two men had discussed hush money for the burglars. But the ambitious young lawyer had received partial immunity in return for his testimony so his credibility remained suspect. Cross-examining Dean, the committee's ranking Republican, Tennessee Senator Howard Baker, posed what would become the defining question of the investigation: "What did the President know and when did he know it?"

Two weeks later, presidential assistant Alexander Butterfield let slip the existence of the secret Oval Office tapes. The struggle ended in July 1974, when the U.S. Supreme Court ruled unanimously in U.S. v. Richard M. Nixon that the president must turn over the tapes. The recordings demonstrated Nixon's complicity in the Watergate conspiracies from the day after the break-in at the Washington offices of Democratic National Committee Chairman Lawrence O'Brien.

The unprecedented public investigation not only documented the president's involvement in the Watergate cover-up, it also untangled the complex web of secret operations within the Nixon White House -- a veritable rogue government dedicated to criminal activities. The Committee exposed among other unsavory operations the illegal activities of the White House "plumbers." Designed to plug leaks to the press, the plumbers ransacked the offices of the psychologist treating Daniel Ellsberg, the former Defense Department employee who had leaked the Pentagon papers to the New York Times, in search of damaging material on Ellsberg in the therapist's records. The Ervin Committee also questioned Donald Segretti, leader of the dirty tricks squad that the Nixon campaign committee assembled to sabotage the campaigns of Nixon's Democratic rivals during the 1972 primary elections.

These revelations forced American policymakers, particularly members of Congress, to rethink the balance of power among the branches of government. In November 1973, Congress adopted the War Powers Act by joint resolution. In the absence of explicit Congressional authorization, the president could only commit American troops in defensive operations. In such situations, the president was obligated to report deployments within forty-eight hours and withdraw the troops within 60 days unless Congress approved the mission. Nixon rejected this explicit restriction on the president's authority as commander-in-chief of the armed forces, but it passed over his veto.

The legislature also established formal procedures for investigations of unlawful and unethical activity within the executive branch; the independent counsel statute became law as Title VI of the 1978 Ethics in Government Act. At the request of the Attorney General, a panel of judges would appoint and supervise investigators (and potential prosecutors) of high-ranking executive branch officials. Such independent counsel would no longer serve at the pleasure of the president. The Whitewater investigations that led to the impeachment of President Bill Clinton took place under the aegis of this statute. The Congress allowed it to lapse in June 1999.

Prior to Watergate, the White House had also enjoyed unchecked supervision of federal intelligence-gathering agencies. President Nixon had abused this power, using the Central Intelligence Agency (CIA) to obstruct the FBI investigation of the Watergate burglary and interfering with the FBI's operations for political purposes. Senator Frank Church's hearings into the CIA in 1975 and 1976 built on Ervin's work and exposed how intelligence-operations often violated democratic principles. In response, Congress established standing intelligence committees with broad oversight powers.

The Ervin Committee also shed light on corrupt practices in political fundraising and prompted campaign finance reform on Capitol Hill. In 1974, Congress enacted amendments to the Federal Election Campaign Act, amounting to the most far-reaching campaign finance legislation ever adopted.

Today's legislators might also remember that the Ervin Committee hearings boosted the reputation of Congress. Sam Ervin himself became something of a hero in an institution often derided as corrupt and incompetent. Many Americans wore "Senator Sam" t-shirts and buttons.

Now we seem to be back to the summer of 1973, although in some respects the extension of executive power has been much more dramatic than anything in that period. After Democrats took over Congress in 2006, they conducted extensive oversight. But thus far none of the hearings have captured the public imagination like Ervin's did and none have produced the kind of legislative activity of those months.

Whichever party holds the White House after November 2008, the relationship between the Executive and Legislative Braches will be front and center on the public agenda. Congress whether under divided or unified government must grapple with the power of the White House. Legislators must look back at what Ervin, a southern conservative, accomplished in response to Nixon's abuses and how far he was able to transform the politics of the era.


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