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I picked up a box-full of used books for peanuts recently and something of import became very clear while reading one of them. The book is by H.R. Haldeman, titled The Ends of Power. It’s his view of Watergate.

I’ve got to give the guy some credit. Watergate was weird, and Haldeman’s got a whole section about how weird it was. Haldeman was White House Chief of Staff during the time of the scandal.

Haldeman makes the most interesting aside. He describes how powerless the President is in the American system. That’s right, powerless. Well, in a way of speaking. He describes how impossible it is to get mid-level bureaucrats to go along with President’s policies (for instance, on not appealing certain losing judgments in divestiture cases – a pet peeve of mine, as in non-criminal cases I really think this is overreaching and tantamount to an abuse of power on the part of the government: Nixon wanted a rule enforced: no appeals if the government loses in trial court, and I agree with him).

This (the powerlessness of the chief executive) struck me especially when I thought of the contrast with communist ideology – and the way organizations, including universities, continue to act in present-day Lithuania. The contrast could not be greater.

Under a doctrine called ‘democratic centralism,’ in a communist – and post-communist – system power is unitary. There is no place in the system for a second, third, or any other decision-maker. The top has and uses this power to make a decision at any level, including the lowest; and also to change any decision that has already been made. Indeed, this power was so developed that decisions in court cases used to be re-written prior to filing by people in power. (For more on this, see John Hazard’s book: Communists and Their Law).

The contrast between unitary power and the non-unitary nature of power in the American system can only be attributed to an unwritten convention. Yet it is an essential one. I think it is of great importance, and indeed I have written in support of the idea previously.

Yet it is also amazing to consider the implications. I mean, well, the President is the chief executive, right? The buck stops there and so forth. He is responsible for the actions of the executive branch, as he should be. But there are independent power centers and in truth it seems he can’t control them. And he probably shouldn’t be able to, either. But then again, shouldn’t he? Don’t we think of him as the boss?

I should interject here or somewhere that in today’s Russia the concept of unitary power is still firmly in place, and, indeed, they can’t imagine anything else! This would mean that the boss is not the boss! I can tell you from personal experience this fixed-idea constantly manifested itself in Lithuania.

Back to Watergate. Probably the main count against President Nixon was that he was accused of seeking to influence the CIA to influence a criminal investigation. The special prosecutor said that this was obstruction of justice, a criminal offense in itself.

Firstly, it is clear that in a Soviet or perhaps even a post-Soviet society, a president would simply have ordered the investigators to pull back on their investigation. No need to have gone through another agency.

Secondly, it is clear that if the U.S. president cannot do so, it is because of the (unwritten) conventions which support a diffused system of power (that is so different from the unitary system described above).

Here, it seems necessary to posit that in principle there could arise a situation wherein a U.S. president should have the power to order (or otherwise influence) an agency of the executive branch to desist from (or engage in) some activity in order to avert some true and palpable danger to the United States (to its national security). This is, one would think, especially true in wartime.

This is what, I now think, Nixon meant when he said, “When the President does it, that means it’s not illegal.”

Are we at war at present? With whom? Drones have killed thousands in recent years, and most certainly not just in Afghanistan.

Who should judge this? I do believe there is nothing illegal per se, and so, I guess, to be honest I can’t say my position differs from that of Nixon (as I understand it).

But what is really at issue is the paradigm. It seems that the correct paradigm is not a legal/illegal one. It is precisely for that reason that judgement of the matter is given over to the Congress. It is a very involved question of legitimacy.

And here is the rub. Most people, it seems, believe strongly that Nixon’s actions were illegitimate. Illegitimate is an interesting word, and it is perfect for this idea: it connotes an improper use, something unsanctioned, unjustifiable. Not necessarily criminal, but as I said, that is a different paradigm.

Were they? Among all the crazy business that is/was Watergate, the “Smoking gun tape” and the attempt to influence the CIA presents perhaps the clearest set of facts.

Was this a legitimate use of (or attempt to use) presidential power? The tapes do not, it seems to me, show an attempt to stop ongoing criminal investigations (so that their subjects could be freely prosecuted), but to contain them so as not to create embarrassment. Ostensibly things would become public that would be embarassing. A modern-day example would be, let us say, the extent of NSA phone surveillance, which arguably is not illegal but certainly was embarrassing.

Haldeman was to go to the CIA to tell them the President thought that unless they told the investigators to pull back that the “Bay of Pigs” would resurface.

Sounds weird? You bet.

But Haldeman says that when he mentioned the Bay of Pigs,

“Turmoil in the room. [CIA director] Helms gripping the arms of his chair leaning forward and shouting, ‘The Bay of Pigs had nothing to do with this. I have no concern about the Bay of Pigs.’ Silence. I just sat there. I was absolutely shocked by Helms’ violent reaction. Again I wondered, what was such dynamite in the Bay of Pigs story?” [p. 39] Haldeman eventually comes to believe it involved the Kennedy assassination. [p. 40]

Thus, a defense attorney would argue that, hey, Nixon’s actions were legitimate: there was a bombshell there that reasonably could be expected to be a danger to national security at at time of war.

Me, I do not pretend to know enough about Watergate to be able to come up with a comprehensive case against or in defense of Richard Nixon. I tend to side with those who believe his actions were illegitimate.

Yet I have my doubts. These questions were of the first impression. The fact of the tapes (and of a President using mild profanity) were strikingly new and therefore shocking. The country was at war, and in a most unpopular one. Nixon was uncool and the epitome of uncoolness.

Watergate recedes. As all things do. But the ideas, motifs, and problematics of the situation demand our attention. The area they inhabit is a crucial one for us. They haven’t been worked out yet. I wrote this piece to contribute a bit towards the solution.


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