The Runaway Presidency

I

"The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come," Jefferson wrote Madison six weeks before Washington's first inauguration. "The tyranny of the executive power will come in its turn, but at a more distant period." On the eve of the second centennial of independence, Jefferson's prophecy appears almost on the verge of fulfillment. The imperial presidency, created by wars abroad, has made a bold bid for power at home. The belief of the Nixon Administration in its own mandate and its own virtue, compounded by its conviction that the republic has been in mortal danger from internal enemies, has produced an unprecedented concentration of power in the White House and an unprecedented attempt to transform the presidency of the Constitution into a plebiscitary presidency. If this transformation is carried through, the President, instead of being accountable every day to Congress and public opinion, will be accountable every four years to the electorate. Between elections, the President will be accountable only through impeachment and will govern, as much as he can, by decree. The expansion and abuse of presidential power constitute the underlying issue, the issue that Watergate has raised to the surface, dramatized, and made politically accessible.

In giving great power to Presidents, Americans have declared their faith in the winnowing processes of politics. They have assumed that these processes, whether operating through the electoral college or later through the congressional caucus or still later through the party conventions, will eliminate aspirants to the presidency who reject the written restraints of the Constitution and the unwritten restraints of the republican ethos.

Through most of American history that assumption has been justified. "Not many Presidents have been brilliant," James Bryce observed in 1921, "some have not risen to the full moral height of the position. But none has been base or unfaithful to his trust, none has tarnished the honour of the nation." Even as Bryce wrote, however, his observation was falling out of date—Warren G. Harding had just been inaugurated—and half a century later his optimism appears as much the function of luck as of any necessity in the constitutional order. Today the pessimism of the Supreme Court in an 1866 decision, ex parte Milligan, seems a good deal more prescient. The nation, as Justice Davis wrote for the Court then, has "no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power. with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln."

The presidency has been in crisis before; but the constitutional offense that led to the impeachment of Andrew Johnson was trivial compared to the charges now accumulating around the Nixon Administration. There are, indeed, constitutional offenses here too—the abuse of impoundment and executive privilege, for example; or the secret air war against Cambodia in 1969-1970, unauthorized by and unknown to Congress; or the prosecution of the war in Vietnam after the repeal of the Tonkin Gulf Resolution; or the air war against Cambodia after the total withdrawal of American troops from Vietnam. But these, like Andrew Johnson's far less consequential defiance of the Tenure of Office Act, are questions that a President may more or less plausibly insist lie within a range of executive discretion. The Johnson case has discredited impeachment as a means of resolving arguable disagreements over the interpretation of the Constitution in advance of final judgment by the Supreme Court.

What is unique in the history of the presidency is the long list of potential criminal charges against the Nixon Administration. The investigations in process suggest that Nixon's appointees were engaged in a multitude of indictable activities: at the very least, in burglary; in forgery; in illegal wiretapping; in illegal electronic surveillance; in perjury; in subornation of perjury; in obstruction of justice; in destruction of evidence; in tampering with witnesses; in misprision of felony; in bribery (of the Watergate defendants); in acceptance of bribes (from Vesco and ITT); in conspiracy to involve government agencies (the FBI, the CIA, the Secret Service, the IRS, the Securities and Exchange Commission) in illegal action.

As for the President himself, he has denied that he knew either about the warfare of espionage and sabotage waged by his agents against his opponents or about the subsequent cover-up. If Nixon knew about these things, he obviously conspired against the basic processes of democracy. If he really did not know and for nine months did not bother to find out, he is surely an irresponsible and incompetent executive. For, if he did not know, it can only be because he did not want to know. He had all the facilities in the world for discovering the facts. The courts and posterity will have to decide whether the Spectator of London is right in its harsh judgment that in two centuries American history has come full circle "from George Washington, who could not tell a lie, to Richard Nixon, who cannot tell the truth."

Whether Nixon himself was witting or unwitting, what is clearly beyond dispute is his responsibility for the moral atmosphere within his official family. White House aides do not often do things they know their principal would not wish them to do—a proposition which I and dozens of other former White House aides can certify from experience. It is the President who both sets the example and picks the men. What standards did Nixon establish for his White House? He himself has admitted that in 1970, till J. Edgar Hoover forced him to change his mind, he authorized a series of criminal actions in knowing violation of the laws and the Constitution—authorization that would appear to be in transgression both of his presidential oath to preserve the Constitution and of his constitutional duty to see that the laws are faithfully executed. In 1971, as he has also admitted, he commissioned the White House plumbers, who set out so soon thereafter on their career of burglary, wiretapping, and forgery. ."From the time when the break-in occurred," he said of the Watergate affair in August, 1973, "I pressed repeatedly to know the facts, and particularly whether there was any involvement of anyone in the White House"; but two obvious sources—John Mitchell, his intimate friend, former law partner, former Attorney General, head of the Committee for the Re-Election of the President, and Patrick Gray, acting director of the FBI itself—have both testified under oath that he never got around to pressing them. He even, through John Ehrlichman, asked the Ellsberg judge in the midst of the trial whether he would not like to be head of the FBI. And he continues to hold up Ehrlichman and Haldeman as models to the nation—"two of the finest public servants it has been my privilege to know."

Nixon, in short, created the Nixon White House. "There was no independent sense of morality there," said Hugh Sloan, who served in the Nixon White House for two years. ". . . If you worked for someone, he was God, and whatever the orders were, you did it . . . . It was all so narrow, so closed. . . . There emerged some kind of separate morality about things." "Because of a certain atmosphere that had developed in my working at the White House," said Jeb Stuart Magruder, "I was not as concerned about its illegality as I should have been." "The White House is another world," said John Dean. "Expediency is everything." "No one who had been in the White House," said Tom Charles Huston, "could help but feel he was in a state of siege." "On my first or second day in the White House." said Herbert Porter, "Dwight Chapin [the President's appointments secretary] said to me, "One thing you should realize early on, we are practically an island here. That was the way the world was viewed." The "original sin," Porter felt, was the "misuse" of young people "through the whole White House system. They were not criminals by birth or design. Left to their own devices, they wouldn't engage in this sort of thing. Someone had to be telling them to do it." Gordon Strachan told of his excitement at "being twenty-seven years old and walking into the White House and seeing the President"; but, when asked what word he had for other young men who wanted to come to Washington and enter the public service, he said grimly, "My advice would be to stay away."

This is not the White House we have known—those of us, Democrats or Republicans, who served other Presidents in other years. Appointment to the White House of Roosevelt or Truman or Eisenhower or Kennedy or Johnson seemed the highest responsibility one could expect and therefore required higher standards of behavior than most of us had recognized before. And most of us look back at our White House experience, not with shame and incredulity, as the Nixon young men do, but as the most exhilarating time in our lives. Government, as Clark Clifford says, is a chameleon, taking its color from the character and personality of the President.

Moreover, Nixon's responsibility for the White House ethos goes beyond strictly moral considerations. In the First Congress, Madison, arguing that the power to remove government officials must belong to the President, added, "We have in him the security for the good behavior of the officer." This makes "the President responsible to the public for the conduct of the person he has nominated and appointed." If the President suffers executive officials to perpetrate crimes or neglects to superintend their conduct so as to check excesses, he himself, Madison said, is subject to "the decisive engine of impeachment."

II

The crisis of the presidency has led some critics to advocate a reconstruction of the institution itself. For a long time people have felt that the job was becoming too much for one man to handle. "Men of ordinary physique and discretion," Woodrow Wilson wrote as long ago as 1908, "cannot be Presidents and live, if the strain be not somehow relieved. We shall be obliged always to be picking our chief magistrate from among wise and prudent athletes,—a small class."

But what was seen until the late 1950s as too exhausting physically is now seen, after Vietnam and Watergate, as too dizzying psychologically. In 1968 Eugene McCarthy, the first liberal presidential aspirant in the century to run against the presidency, called for the depersonalization and decentralization of the office. The White House, he thought, should be turned into a museum. Instead of trying to lead the nation, the President should become "a kind of channel" for popular desires and aspirations. Watergate has made the point irresistible. "The office has become too complex and its reach too extended," writes Barbara Tuchman, "to be trusted to the fallible judgment of any one individual." "A man with poor judgment, an impetuous man, a sick man, a power-mad man," adds Max Lerner, "each would be dangerous in the post. Even an able, sensitive man needs stronger safeguards around him than exist today."

The result is a new wave of proposals to transform the presidency into a collegial institution. Mrs. Tuchman suggests a six-man directorate with a rotating chairman, each member to serve for a year, as in Switzerland. Lerner wants to give the President a Council of State, a body that he would be bound by law to consult and that, because half its members would be from Congress and some from the opposite party, would presumably give him independent advice. Both proposals were, in fact, considered and rejected at the Constitutional Convention.

Hamilton and Jefferson disagreed on many things, but they agreed that the convention had been right in deciding on a one-man presidency. A plural executive, Hamilton contended, if divided within itself, would lead the country into factionalism and anarchy and, if united, could lead it into tyranny. When power was placed in the hands of a group small enough to admit "of their interests and views being easily combined in a common enterprise, by an artful leader," Hamilton thought, "it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man, who, from the very circumstances of his being alone, will be more narrowly watched and more readily suspected." With a single executive it was possible to fix accountability. But a directorate "would serve to destroy or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself."

Jefferson had favored a plural executive under the Articles of Confederation and as an American in Paris, he watched with sympathy the Directoire of the French Revolution. But these experiments left him no doubt that plurality was a mistake. As he later observed, if Washington's Cabinet, in which he had served with Hamilton, had been a directorate, "the opposing wills would have balanced each other and produced a state of absolute inaction." But Washington, after listening to both sides, acted on his own, providing the "regulating power which would keep the machine in steady movement." History, moreover, furnished "as many examples of a single usurper arising out of a government by a plurality, as of temporary trusts of power in a single hand rendered permanent by usurpation."

The question remains whether the world has changed enough in two centuries to make these objections obsolete. There is, of course, the burden-of-the-presidency argument. But is the presidential burden so much heavier than ever before? The scope of the national government has expanded beyond imagination, but so too have the facilities for presidential management. The only President who clearly died of overwork was Polk, and that was a long time ago. Hoover, who worked intensely and humorlessly as President, lived for more than thirty years after the White House; Truman, who worked intensely and gaily, lived for twenty. The contemporary President is really not all that overworked. Eisenhower managed more golf than most corporation officials or college presidents; Kennedy always seemed unhurried and relaxed; Nixon spends almost as much time in Florida and California as in Washington, or so it appears. Johnson's former press secretary, George Reedy, has dealt with the myth of the presidential workload in terms that rejoice anyone who has ever served in the White House. "There is far less to the presidency, in terms of essential activity," Reedy correctly says, "than meets the eye." The President can fill his hours with as much motion as he desires but he also can delegate as much "work" as he desires. "A president moves through his days surrounded by literally hundreds of people whose relationship to him is that of a doting mother to a spoiled child. Whatever he wants is brought to him immediately—food, drink, helicopters, airplanes, people, in fact, everything but relief from his political problems."

As for the moral and psychological weight of these political problems, this is real enough. All major presidential decisions are taken in conditions of what General Marshall, speaking of battle, used to call "chronic obscurity"—that is, on the basis of incomplete and probably inaccurate intelligence, with no sure knowledge where the enemy is or even where one's own men are. This can be profoundly anguishing for reasonably sensitive Presidents, especially when decisions determine people's livelihoods or end their lives. It was this, and not the workload, that did in Wilson and the second Roosevelt. But is the sheer moral weight of decision greater today than ever before? Greater for Johnson and Nixon than for Washington and Lincoln or Wilson or FDR? I doubt it very much.

If there is an argument for a plural executive, it is not the alleged burden of the presidency. The serious argument is simply to keep one man from wielding too much power. But here the points of Hamilton and Jefferson still have validity. The Council of Ten in Venice was surely as cruel as any doge. One wonders whether a six-man presidency would have prevented the war in Vietnam. It might well, however, have prevented the New Deal. The single-man presidency, with the right man as President, has its uses; and historically Americans have as often as not chosen the right man.

The idea of a Council of State has more plausibility. But it works better for foreign than for domestic policy. A prudent President is well advised to convoke ad hoc Councils of State on issues of war and peace. Kennedy added outsiders to his Executive Committee during the Cuban missile crisis; and it was an ad hoc Council of State in March, 1968, that persuaded Johnson to cease and desist in Vietnam. But, as an institutionalized body, with membership the ex officio perquisite of the senior leadership of House and Senate—that is, of the men in Congress who in the past have always been inclined to go along with Presidents—it could easily become simply one more weapon for a strong President. As Gouverneur Morris said at the Constitutional Convention, the President "by persuading his Council . . . to concur in his wrong measures would acquire their protection for them."

Above all, both the plural executive and the Council of State are open to the objection that most concerned the Founding Fathers—the problem of fixing accountability. In the case of high crimes and misdemeanors, who, to put it bluntly, is to be impeached? The solution surely lies not in blurring responsibility for the actions of the executive but in making that responsibility categorical and in finding ways of holding Presidents to it.

III

The other change in the institution of the presidency under discussion runs in the opposite direction. The idea of a single six-year presidential term is obviously designed not to reduce but to increase the independence of the presidency. This idea naturally appeals to the imperial ethos. Lyndon Johnson advocated it; Nixon has commended it to his Commission on Federal Election Reform for particular study. What is more puzzling is that it also has the support of two eminent senators, both unsympathetic to the imperial presidency, Mike Mansfield of Montana and George Aiken of Vermont—support that gives it a hearing it would not otherwise have had.

It is not a new idea. Andrew Jackson recommended to Congress an amendment limiting Presidents to a single term of four to six years; Andrew Johnson did the same; the Confederate Constitution provided for a single six-year term. Mansfield and Aiken now press their version on the ground, as Mansfield says, that a six-year term would "place the Office of the Presidency in a position that transcends as much as possible partisan political considerations." The amendment, says Aiken, "would allow a President to devote himself entirely to the problems of the Nation and would free him from the millstone of partisan politics."

This argument has a certain old-fashioned good-government plausibility. How nice it would be if Presidents could be liberated from politics for six years and set free to do only what is best for the country! But the argument assumes that Presidents know better than anyone else what is best for the country and that the democratic process is an obstacle to wise decisions. It assumes that Presidents are so generally right, and the people so generally wrong that the President has to be protected against political pressures. It is, in short, a profoundly antidemocratic position. It is also profoundly unrealistic to think that any constitutional amendment could transport a President to some higher and more immaculate realm and still leave the United States a democracy. As Thomas Corcoran told the Senate Judiciary Committee' during hearings on the Mansfield-Aiken amendment, "It is impossible to take politics out of politics."

But, even if it were possible to take the presidency out of politics, is there reason to suppose this desirable? The electorate often knows things that Presidents do not know; and the nation has already paid a considerable price for presidential isolation and ignorance. Few things are more likely to make Presidents sensitive to public opinion than worrying about their own political future. Moreover, if public opinion is at times a baneful influence, what else is democracy all about? The need to persuade the nation of the soundness of a proposed policy is the heart of democracy. "A President immunized from political considerations." Clark Clifford told the Senate Judiciary Committee, "is a President who need not listen to the people, respond to majority sentiment, or pay attention to views that may be diverse, intense and perhaps at variance with his own."

The Mansfield-Aiken amendment expresses distrust of the democratic process in still another way—by its bar against re-eligibility. If anything is of the essence of democracy, it is surely that the voters should have an unconstrained choice of their leaders. "I can see no propriety," George Washington wrote the year after the adoption of the Constitution, "in precluding ourselves from the service of any man, who on some great emergency shall be deemed universally most capable of serving the public."

IV

0ddly, the crisis of the imperial presidency has not elicited much support for what at other times has been a favored theory of constitutional reform: movement in the direction of the British parliamentary system. This is particularly odd because, whatever the general balance of advantage between the parliamentary and presidential modes, the parliamentary system has one feature the presidential system badly needs now—the requirement that the head of government be compelled at regular intervals to explain and defend his policies in face-to-face sessions with the political opposition. Few devices, it would seem, are better calculated both to break down the real isolation of the latter-day presidency and to dispel the spurious reverence that has come to envelop the office.

In a diminished version, applying only to members of the Cabinet, the idea is nearly as old as the republic itself. The proposal that Cabinet members should go on to the floor of Congress to answer questions and take part in debate, "far from raising any constitutional difficulties," as F. S. Corwin once observed, "has the countenance of early practice under the Constitution." The Confederate Constitution authorized Congress to grant the head of each executive department "a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department," and Congressman George H. Pendleton of Ohio, with the support of Congressman James A. Garfield, argued for a similar proposal in the Union Congress in 1864. In his last annual message, President William Howard Taft suggested that Cabinet members be given access to the floor in order, as he later put it, "to introduce measures, to advocate their passage, to answer questions, and to enter into debate as if they were members, without of course the right to vote...The time lost in Congress over useless discussion of issues that might be disposed of by a single statement from the head of a department, no one can appreciate unless he has filled such a place."

In the meantime, the young Woodrow Wilson carried the idea a good deal further toward the British model, arguing that Cabinet members should not just sit voteless in Congress but should be actually chosen "from the ranks of the legislative majority." Instead of the chaotic and irresponsible system of government by congressional committees, the republic would then have Cabinet government and ministerial responsibility. Though Wilson did not renew this specific proposal in later years, it very likely lingered in the back of his mind. On the eve of his first inauguration he noted that the position of the presidency was "quite abnormal, and must lead eventually to something very different." "Sooner or later," the President must be made "answerable to opinion in a somewhat more informal and intimate fashion—answerable, it may be, to the Houses whom he seeks to lead, either personally or through a cabinet, as well as to the people for whom they speak. But that is a matter to be worked out."

Wilson never found time to work it out. Today there appears to be little interest in reforms that squint at parliamentarianism. This may be in part because the parliamentary regimes best known in America—the British and French—have themselves moved in the direction of prime-ministerial or presidential government and offer few guarantees against the Vietnam-Watergate effect.

V

The problem of reining in the runaway presidency centers a good deal more at the moment on substantive than on structural solutions. Congress, in other words, has decided it can best restrain the presidency by enacting specific legislation in the conspicuous fields of presidential abuse. The main author of this comprehensive congressional attack on presidential supremacy, well before he assumed the chairmanship of the Senate Select Committee investigating Watergate, has been Senator Sam Ervin of North Carolina.

The republic owes a great deal to Sam Ervin. No one for a long time has done so much to educate the American people in the meaning and majesty of the Constitution (though his Constitution seems to stop with the tell amendments adopted in 1791: at least he does not show the same fervor about the Fourteenth and Fifteenth Amendments as he does about the First and Fourth). For most Americans the Constitution has become a hazy document, cited like the Bible on ceremonial occasions but forgotten in the daily transactions of life. For Ervin the Constitution, like the Bible, is superbly alive and fresh. He quotes it as if it had been written the day before; the Founding Fathers seem his contemporaries; it is almost as if he has ambled over from the Convention at Philadelphia. He is a true believer who endows his faith with abundant charm, decency, sagacity, and toughness. The old-fashioned Constitution—"the very finest document ever to come from the mind of men"–could have no more fitting champion in the battle against the imperial presidency.

But Ervin is concerned with more than the vindication of the Constitution. His larger design is to establish a new balance of constitutional power. Congress itself, Ervin thinks, has negligently become "the chief aggrandizer of the Executive." The restoration of the Constitution, he believes, requires the systematic recovery by Congress of powers appropriated by the presidency. The bills designed to constrain presidential war powers are, in his view, a confused and sloppy application of this strategy; he has little use for them. His own approach, direct and unequivocal, is expressed in the bill in which he proposes to give Congress absolute authority to veto executive agreements within sixty days. Congress never had, or even seriously sought, such authority before. While the provocation is real enough, the bill, if enacted, would give Congress unprecedented control over the presidential conduct of foreign affairs.

A leading item on Ervin's domestic agenda is executive privilege. This question has been historically one of conflicting and unresolved constitutional claims. In the nineteenth century, while insisting on a general congressional right to executive information, Congress acknowledged a right, or at least a power, of presidential denial in specific areas. It acquiesced in these reservations because they seemed reasonable and because responsible opinion saw them as reasonable. But what Congress saw as an expression of constitutional comity, Presidents in the later twentieth century—Nixon above all—have come to see as their inherent and unreviewable constitutional right.

Ervin, in response, has introduced a bill requiring members of the executive branch summoned by a committee of Congress to appear in person, even if the intend to claim executive privilege. Only a personal letter from the President could warrant the claim: and the bill gives the committee the power to decide whether the presidential plea is justified, In the words of Senator William Fulbright, it places "the final responsibility for judging the validity of a claim of executive privilege in the Congress, where it belongs."

A presidential thesis in violation of the traditional comity between the two branches has thus produced a congressional answer that would itself do away with what has been not only a historic but a healthy ambiguity. For one hundred and eighty years the arbiter in this question has been neither Congress nor the President nor the courts but the political context and process, with responsible opinion considering each case more or less on merit and turning against whichever side appears to be overreaching itself. The system is not tidy, but it encourages a measure of restraint on both sides and has avoided a constitutional showdown. Now absolute presidential claims have provoked an absolute congressional response. Would this really be an improvement? Would Ervin and Fulbright themselves twenty years earlier have wanted to give Joe McCarthy and his committee "the final responsibility" to judge whether executive testimony could be properly withheld?