Fords pardoning of nixon. They moved their Classes Online due to the coronavirus pandemic. Video of the class is courtesy of the school. We are ready to. Thank you for logging into class remotely during this unpleasant coronavirus situation, which will hopefully pass soon. Im glad to see you are all well and have safely moved out of the dorms. I took a little walk through campus today. Since we are social distancing here, dr. Kristin kuby isnt here with me in the room, but she is on zoom video. Say hello. There she is. She can answer any questions about your papers afterward or online. Today, we get into one of my favorite chapters in the whole year, and that is the chapter on Richard Nixon, followed by gerald ford in this president s in constitution book. The nixon chapter was written by the late stanley cutler. He was a professor of history at the university of madison, wisconsin. One of the great scholars of the watergate era. This chapter was one of the last things that he wrote before he passed away in 2015. As you can see from the introduction, Richard Nixon was a man of many paradoxes, born in a modest home in yorba linda, california that his father built, he said, using a sears kit. His mother was a devout quaker and tried to instill in him a set of moral values. His father spent his life, pretty much, as you can see, as an argumentative unhappy man. Those were the qualities also passed along to young Richard Nixon. After attending whittier college, a Quaker College about 17 miles from his home, he went to duke law school, failed to get jobs at the fbi and a new york law firm, which were his top choices, and reluctantly returned to california to practice law. There, he married selma pat ryan. He worked in the office of Price Administration in washington as world war ii broke out. He eventually secured a Navy Commission in the south pacific, but he didnt see any combat. That was to his regret, because people like john f. Kennedy became a war heroes and he did not. He returned to california after the war. Won a close battle for congress for the house of representatives in 1946, where he gained National Prominence as a tough congressman who supported the House Committee on unamerican activities, which im sure you have read about, investigating alleged disloyalty and subversive misconduct by those suspected of having communist ties. After two terms, he won a seat in the u. S. Senate, then became Dwight Eisenhowers vp, lost the battle for presidency against john f. Kennedy in 1960, ran for governor of california and lost, moved to new york city to practice law, and jumped back into the political arena in 1968. He called it the great game, and he beat democrat Hubert Humphrey in a tight election that year. As you can see, nixon was almost pugilistic as a president. He viewed himself as someone who needed to fight to stay on top. He battled constantly with congress as he sought to expand his executive power. A great example in the book is nixons aggressive attempt to a pound funds in order to thwart pieces of legislation tapped by congress that he didnt like. For example, in october of 1972, congress was forced to override nixons veto of amendments to the clean water act. The water was becoming extremely important in the country. Nixon refused to spend this money, he didnt agree with it. He defied congress, so ultimately, congress was forced to pass the impoundment control act of 1964 to control these sorts of abuses by nixon and his administration. Similarly, in 1973, something we see a lot in the later chapters after Congress Learned that nixon had secretly bombed sites in cambodia without notifying congress, they passed the war powers resolution and clipped nixons wings by requiring the president to notify congress about any Armed Conflict within 48 hours, and if they didnt give approval within 60 days, he had to withdraw military forces. That war powers act is really hung around the neck of every president since nixon, constraining their powers. Nixon wins a smashing reelection victory in 1972 by wide margins. But before long, he is engulfed in the watergate scandal. White house operatives are arrested carrying out a burglary inside the Democratic National headquarters in the Watergate Hotel in washington. Now, nixon is implicated in covering it up and offering to pay 1 million in hush money to keep the perpetrators quiet. As we discussed in class last time, i was privileged to write the biography of watergates special prosecutor, Archibald Cox. He was my constitutional law professor when i was at Harvard Law School. By the time i got to harvard in 1977, he had become a National Hero for standing up to Richard Nixon during the watergate crisis, subpoenaing the secret white house tapes that would prove or disprove nixons complicity in the watergate coverup. Ive done a lot of work on this era of american political history, and thats why its one of my favorite topics of all. I know most of your parents werent even alive at the time of watergate in 1973, 1974, when this was taking place. I thought i would set the stage today and take you back to october of 1973, during the darkest months of the nixon presidency, when at this time, the wounds of watergate are fresh, the wounds of the vietnam war are just receding, and the country is being consumed by a growing scandal called watergate. So we are going to show this video. [video clip] october 1973, the senate has begun hearings investigating possible white house involvement and a burglary at the Watergate Hotel and a subsequent cover up. The big question, what did the president know, and when did he know it . Investigators learned president nixon has made secret tapes of every conversation in his executive offices. Special prosecutor Archibald Cox has subpoenaed the watergate tapes. On october 20, 1973, the stage is set for a political showdown unlike any in our history. One week earlier, october 12, 1973, Archibald Cox wins a court order demanding the president surrender the watergate tapes. Nixon has one week to comply or appeal to the Supreme Court. Monday, october 15, nixon and his chief of staff come up with a scheme. Cox cant have the tapes, but he can have an edited transcript to be prepared by 72yearold senator john stennis, and he can ask for no further evidence. Cox cannot accept the proposal, as fridays 5 00 deadline draws near, a showdown seems inevitable. 5 00 comes and goes with no word from the white house. Finally, cox gets a call at home from nixons attorney general. Cox cannot have the tapes, and he must not seek any further information from the white house. Saturday, october 20, fearing the president will get away with an obstruction of justice, cox makes a difficult decision. He will hold a press conference and explain the implications of the case to america. Making his point, he uses a prophetic example. A president can always work as well, you remember when Andrew Jackson wanted to take the deposits from the bank of the u. S. And the secretary of treasury wouldnt do it, he fired him. Then he found a new secretary of treasury who wouldnt do it, and he fired him. Finally he got a third who would. At the white house, nixon and haig had been trying to persuade attorney general richardson to fire cox. They want him out of their hair. Richardson insists he has no legal grounds. Richardson is adamant. Nixon gets tough. Because of his refusal to carry out the president s policies, the attorney general Elliott Lee Richardson has resigned. Nixon has discharged Archibald Cox, the special watergate prosecutor, and abolished his office. The Deputy Attorney general has been fired. [end of video clip] i spent seven years writing the cox book and studying this man. I can tell you that cox was an extraordinary figure in american law. Not just as Watergate Special prosecutor, as you just saw, but on a much broader scale. He was a direct descendent of roger sherman, signer of the declaration of independence and the constitution. He was an early law clerk to the famous judge hand. An advisor to young senator john f. Kennedy. And then solicitor general in the kennedy administration. We talked about that last class while we talked about the johnson and kennedy civil rights cases. He argued many of those famous cases in the Supreme Court. And after watergate, he became chairman of common cause and fought to craft the ethics and Government Act of 1978 to try to reverse some of the abuses of watergate. You can hopefully get a little bit of a glimpse from that film clip that coxs performance in watergate was the culmination of a lifetime commitment to the rule of law. I did hundreds of interviews working on this book with major figures he had interacted with. This integrity and principle thing he was known for was not a fake at all. It was how he had lived his whole life. It was especially on display in the way he interacted with attorney general elliot richardson, who was another one of these boston brahmins, a very kind of stayed fellow. Cox taught him at Harvard Law School after world war ii. When you see how they navigated these difficult times, its really remarkable, richardson told me that when he picked cox, it was because of the basic integrity of the man rather than any political calculation or any prosecutorial experience, he had none. The two men relied primarily on their instincts about each other in deciding how to deal with this growing watergate crisis instead of political calculations and maneuverings going on in most of washington at the time. Nowhere was that more evident than in the dramatic battle for the white house case. As you probably know from history books, cox subpoenaed those tapes to prove or disprove nixons complicity in the watergate coverup. They were essential to all of the defendants, including john dean, his white House Counsel, who said listen to the tapes. Nixon was talking about paying hush money. Elliot richardson told me he met with nixon multiple times to calm his fears about cox, and he said, archie cox or just soon cut off his arm been do anything improper or politically motivated. Nixon scowled at him from across the desk, because he assumed political motive in everything. Cox really didnt want a constitutional showdown. He knew there was a legitimate question here, based on this notion of executive privilege, as to whether he did have the power to subpoena those tapes from the chief executive. I can tell you most people dont realize this, but scholars at that time would have put their money on nixon in this battle. He had just won a major reelection victory. The argument was why should a special prosecutor who is unelected, or the courts, tell a president what he has to disclose from the inner sanctum of the white house . So it was very much an open question at this time. Incidentally, one of you guys asked me why nixon didnt just burn the tapes, thats what his speechwriter had advocated. It wasnt so easy, who would do it . If you burned the tapes, the act itself could be a crime, or, for nixon, an impeachable offense. They remained in a closet in the white house as the watergate drama unfolded. As tensions mounted, there really was a constitutional crisis looming here. The Vice President , as you see in stanley cutlers chapter, abruptly resigned, pleading no contender to tax evading charges after he was caught accepting bribes in little white envelopes, both as Vice President and governor of maryland. The person next in line was speaker of the house carl albert. He had recently been drunk and in an Automobile Accident in front of a bar in washington. So he had no interest in being in the limelight. So nixon appointed gerald ford to be his Vice President. Why did he do it . I think it was a very conscious, calculated decision by president nixon. Ford, any impeachment proceedings over watergate would go to the house of representatives. Ford was highly respected as the House Republican leader. He was also a very long time friend and stalwart supporter of Richard Nixon. Ford is appointed Vice President. As the battle over the tapes escalates, a federal judge john circa orders nixon to hand over the tapes. The court of appeals agrees with that, saying the judge, at a minimum, is allowed to listen to them in the privacy of his chambers to determine if there really are any National Security issues involved with them. The white house counters with what they called the stennis proposal, which is mentioned in the video. Senator stennis at this time was a 71yearold senator from mississippi who had hearing aids, he had hearing problems, he had recently been shot in a burglary attempt. The plan was he was the only person who was going to be allowed to listen to the tapes. Cox would then get summaries of the tapes, nothing else. It was a bold move. Nixon was basically going for broke here. I interviewed stennis doctor. He told me the senator was on heavy doses of codeine at this time because of the shooting and the burglary. He didnt want to do it, but felt there was no way he could say no to nixon. I also learned nixon had a plan to take stennis to camp david using one of his white house aides, who was a political operative. They were going to give him select pieces of the tapes to listen to, and that would be it, no one would ever see the tapes again. These summaries would go to the special prosecutor. In the midst of all of this, nixon orders everything that flies to go to the middle east to assist israel in the yom kippur war. This was a classic wag the dog moment. Nixon was taken the ultimate gamble. One of his aides said he was riding a wave, and he almost rode it all the way into shore. This gamble he took reached a crescendo with the saturday night massacre. After the famous press conference that you just saw, where cox refused to back down in seeking the tapes. Incidentally, it wasnt a total surprise that this was coming. Cox gave the example of Andrew Jackson and said a president can always work his will and talk about the situation with the national banks. We talked about that in the Andrew Jackson chapter. Nixon took the gamble, but there were political consequences for him that he didnt bank on. His firing of Archibald Cox, because he was viewed as so honest and a man of integrity, backfired and unleashed a firestorm of public protest. Nixon was forced to hire a new special prosecutor, who subpoenaed even more tapes. Then the Supreme Court agreed to hear the case of u. S. V. Nixon to decide this monumental constitutional question once and for all. What exactly was the legal claim nixon was making regarding the tapes . Why did he say these tapes were constitutionally protected . The president should be held to a different constitutional standard because there are charges. So many important issues that they should not be held to [inaudible] he was talking about this notion of executive privilege and suggesting there was an absolute privilege. What does the Supreme Court say . Do they agree there is such a thing as executive privilege . They recognized executive privilege as a power, but they didnt say it was absolute. That is the key part, and a lot of people dont realize it. There was an indictment that there is such a thing as executive privilege. However, they say that is not an absolute power as nixon had argued. And here, these tapes, the need for president ial secrecy was outweighed for the need of the tapes for the good of the criminal Justice System to determine if criminal conduct had taken place here, by nixon or anyone else. It was essential in any other of the watergate trials, too. I had a chance to interview chief Justice Warren burger, who wrote the opinion in u. S. V. Nixon. He was appointed by nixon, so it was interesting to find out how difficult it was for him to write the opinion that he knew was probably going to bring down the president , because he says no person is above the law. That famous statement in u. S. V nixon. Not even the president. So im sitting in his chambers with him, and he had one of his law clerks take down a painting on the wall and bring it over to me. It had a picture of two law books and a candle. The books were one red, one brown. He said those law books represented the impeachment of Andrew Johnson and the trial of aaron burr. When he was a young law student studying at William Mitchell college of law, he was in this smokers club and they would take turn arguing famous cases. The cases he was in charge of arguing were the impeachment of Andrew Johnson and the trial of smokers club and they would take andrew burr. Chief Justice Burger said to me i wrote that opinion 40 years ago. He was a great artist and a sculptor, he painted that picture when he was in law school because those cases were so important to him. He said it was a very easy matter, because those cases stood for the proposition that no person, not even the president , is abov