We are marking this week the 40th anniversary of Richard Nixon’s resignation, with the helicopter lifting him away from the White House and out of Washington. In one of those ever-recurring anniversaries of Watergate, Tom Brokaw delivered himself of the judgment that the scandal and the impeachment of Richard Nixon vindicated “the rule of law.” The truth that apparently dare not speak its name is that the lesson has been quite the reverse. For the telling, formal mark of a rule of law is that those who lay down the laws governing others should be willing to regard those same laws as binding on themselves. When the matter is cast as a “precedent” for legislators or judges, the question is whether people are willing to respect the principle they invoked in their earlier decision, even when it cuts against the side they favor now.
During the argument over the impeachment of President Clinton, William Bennett and I raised the question in the Wall Street Journal of whether the grounds put forth to justify the impeachment of Nixon would be honored now. Among the list of accusations, Mr. Nixon was charged with suborning perjury: “condoning . . . counseling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers” and “misleading testimony in duly instituted judicial and congressional proceedings.” In the sweep of accusation, Nixon was charged also with misleading the public, interfering with the conduct of investigations, and obtaining from the IRS “confidential information contained in income tax returns for purposes not authorized by law.” Those charges, of course, could have been made with even more force against FDR, and against presidents who have come well after Nixon. But the point was that the charges, if proven true, were offered seriously as grounds for removing a president from office.
But was it a just judgment, nevertheless, at the time? If we look again at the laundry list of charges, what springs out is the recognition that these charges could have been made against many presidents before and since Nixon. And this can be said even by people who do not think — as the late Jude Wanniski put it — that the main fault in the Nixon administration was that the Watergate burglars put the tape inside the door horizontally (where it was spotted by the guard) instead of vertically (where it could have gone unseen).
It will never be out of season, in that respect, to look again at Victor Lasky’s classic, It Didn’t Start with Watergate. For we were reminded there of the egregious cases of wiretapping and surveillance on the part of Nixon’s predecessors. The most inexcusable, the hardest to justify, were the recordings of the private life of Martin Luther King Jr., ordered and sustained by John and Robert Kennedy, and savored by Lyndon Johnson. But a clearer political motive for wiretaps came when Johnson had the FBI tap the phones of potential adversaries during the Democratic Convention of 1964. He would go on to tap people involved in the Goldwater campaign, followed four years later by surveillance of the Nixon campaign. Tom Wicker would later offer the backhanded compliment that Nixon, as a Republican, at least used a private operation to do the burgling and tapping rather than “perverting the FBI” — i.e., rather than annexing to his political purposes the policing arms of the government. The editors of the New York Times were finally candid enough to make the connection: The wiretapping by LBJ in 1964 could constitute, they thought, an “even graver offense than the original Watergate break-in, for it represented the turning of a police instrument of Government to illegal activities for political purposes.”
As General Melvin Zais testified at the time, the papers contained two major operational plans for deploying troops in Southeast Asia and dealing with the prospect of Chinese intervention. There was also material on the use of airbases in Thailand, bases that the government there did not wish to advertise.
But apart from the precise revelations, the publication was itself the damage. For as the Nixon administration went to court, it demonstrated that the American Executive did not have control of its own papers. Claire Sterling would later report that, since Watergate and the Pentagon Papers, the French intelligence services were “markedly reluctant to share [information] with the CIA . . . lest it ‘show up in the next day’s New York Times.’”
And that led to the final irony that does not seem even yet to have broken through: Let us assume that the burglars at Watergate had indeed uncovered information of a personal and sensitive nature, information that it would have been indecent to reveal outside that private enclave. As a result of the holding in the Pentagon Papers case, that information could have been conveyed to the Washington Times or any other newspaper, and there would have been no way to get an injunction to stop the publication of those details, which were thought to mark a scandal just in the way they were ferreted out through an invasion of privacy. But after the Pentagon Papers, it would have been as wrong to block their publication as to block the revealing of information that could imperil American lives. What Watergate reveals, then, more surely 40 years later, is the character of a political class on the Left that could give no account of the principled ground on which it would seek and exercise power over others.
— Hadley Arkes is the Ney Professor at Amherst College, and the founder and director of the new James Wilson Institute on Natural Rights & the American Founding.