The Runaway Presidency

Yet Presidents chosen as open and modest men are not sure to remain so amid the intoxications of the office; and the office has grown steadily more intoxicating in recent years. A wise President, having read George Reedy and observed the fates of Johnson and Nixon, will take care to provide himself, while there still is time, with antidotes to intoxication. Presidents in the last quarter of the twentieth century might, as a beginning, plan to rehabilitate (I use the word in almost the Soviet sense) the executive branch of government. This does not mean the capitulation of the presidency to the permanent government; nor should anyone forget that it was the unresponsiveness of the permanent government that gave rise to the aggressive White House of the twentieth century. But it does mean a reduction in the size and power of the White House staff and the restoration of the access and prestige of the executive departments. The President will always need a small and alert personal staff to serve as his eyes and ears and one lobe of his brain, but he must avoid a vast and possessive staff ambitious to make all the decisions of government. Above all, he must not make himself the prisoner of a single information system. No sensible President will give one man control of all the channels of communication; any man sufficiently wise to exercise such control properly ought to be President himself.

As for the Cabinet, while no President in American history has found it a very satisfactory instrument of government, it has served Presidents best when it has contained men strong and independent in their own right, strong enough to make the permanent government responsive to presidential policy and independent enough to carry honest dissents into the Oval Office. Franklin Roosevelt, who is fashionably regarded these days as the cause of it all, is really a model of how a strong President can operate within the constitutional order. While no President wants to create the impression that his Administration is out of control, FDR showed how a masterful President could maintain the most divergent range of contacts, surround himself with the most articulate and positive colleagues, and use debate within the executive branch as a means of clarifying issues and trying out people and policies. Or perhaps FDR is in a way the cause of it all, because he alone had the vitality, flair, and cunning to be clearly on top without repressing everything underneath. In a joke that Henry Wallace, not usually a humorous man, told in my hearing in 1943, FDR could keep all the balls in the air without losing his own. Some of his successors tried to imitate his mastery without understanding the sources of his strength.

But not every President is an FDR, and FDR himself, though his better instincts generally won out in the end, was a flawed, willful, and, with time, increasingly arbitrary man. When Presidents begin to succumb to delusions of grandeur, when the checks and balances inside themselves stop operating, external checks and balances may well become necessary to save the republic. The nature of an activist President in any case, in Samuel Lubell's phrase, is to run with the ball until he is tackled. As conditions abroad and at home have nourished the imperial presidency, tacklers have had to be more than usually sturdy and intrepid.

How to make external checks effective? Congress can tie the presidency down by a thousand small legal strings; but, like Gulliver, the President can always break loose. The effective means of controlling the presidency lie not in law but in politics. For the American President rules by influence; and the withdrawal of consent, by Congress, by the press, by public opinion, can bring any President down. The great Presidents have understood this. The President, said Andrew Jackson, must be "accountable at the bar of public opinion for every act of his Administration." "I have a very definite philosophy about the Presidency," said Theodore Roosevelt. "I think it should be a very powerful office, and I think the President should be a very strong man who uses without hesitation every power that the position yields; but because of this fact I believe that he should be sharply watched by the people [and] held to a strict accountability by them."

Holding a President to strict accountability requires, first of all, a new attitude on the part of the American people toward their Presidents, or rather a return to the more skeptical attitude of earlier times: it requires, specifically, a decline in reverence. An insistent theme in Nixon's public discourse is the necessity of maintaining due respect for the presidency. The possibility that such respect might be achieved simply by being a good President evidently does not reassure him. He is preoccupied with "respect for the office" as an entity in itself. Can one imagine Washington or Lincoln or the Roosevelts or Truman or Kennedy going on in public, as Nixon repeatedly does, about how important it is to do this or that in order to maintain "respect for the office"? But the age of the imperial presidency has produced the idea that run-of-the-mill politicians, brought by fortuity to the White House, must be treated thereafter as if they have become superior and perhaps godlike beings.

The Nixon theoreticians even try to transform reverence into an ideology, propagating' the doctrine, rather novel in the United States, that institutions 'of authority are entitled to respect per se, whether or not they have done anything to earn respect. If authority is denied respect, the syllogism ran, the whole social order will be in danger. "Your task, then, is clear," Pat Moynihan charged his President in 1969: "To restore the authority of American institutions." But should institutions expect obedience that they do not, on their record of performance, deserve? To this question the Nixon ideologues apparently answer yes. An older American tradition would say no, incredulous that anyone would see this as a question. In that spirit I would argue that what the country needs today is a little serious disrespect for the office of the presidency; a refusal to give any more weight to a President's words than the intelligence of the utterance, if spoken by anyone else, would command; an understanding of the point made so aptly by Montaigne: "Sits he on never so high a throne, a man still sits on his bottom."

But what if men not open and modest, even the start, but from the start ambitious of power and contemptuous of law, reach the place once occupied by Washington and Lincoln? What if neither personal character, nor the play of politics, nor the Constitution itself avail to hold a President to strict accountability? In the end, the way to control the presidency may have to be not in many little ways but in one large way. In the end, there remains, as Madison said, the decisive engine of impeachment.

VIII

This is, of course, the instrument provided by the Constitution. But it is an exceedingly blunt instrument. Only once has a President been impeached, and there is no great national desire to go through the experience again. Yet, for the first time in a century, Americans in the 1970s have to think hard about impeachment, which means that, because most of us flinch from the prospect, we begin to think hard about alternatives to impeachment.

One alternative is the censure of the President by the Congress. That was tried once in American history—in 1834, when the Senate censured Andrew Jackson on the ground that, in removing the government deposits from the Second Bank of the United States, he had "assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both." Jackson's "protest" to the Senate was eloquent and conclusive. The Senate resolution, he said, charged him with having committed a "high crime." It was therefore "in substance an impeachment of the President." If Congress really meant this, Jackson said, let it be serious about it: let the House impeach him and the Senate try him. Jackson was plainly right. The slap-on-the-wrist approach to presidential delinquency makes little sense, constitutional or otherwise. There is no halfway house in censure. If a President has committed high crimes and misdemeanors, he should not stay in office. This does not mean, of course, that a fainthearted Congress may not pass a resolution of censure and claim to have done its duty. But, unless the terms of the resolution make it clear why the President is merely censurable and not impeachable, the action is a cop-out and a betrayal of Congress' constitutional responsibility.

Are there other halfway houses? Another proposal seems worth consideration: that is, the removal of an offending President by some means short of impeachment. A resolution calling on the President to resign and passed by an overwhelming vote in each house could have a powerful effect on a President who cares about the Constitution and the country. If either the President or the Vice President then resigned, the President, old or new, could, under the Twenty-fifth Amendment, nominate a new Vice President, who would take office upon confirmation by both houses of Congress. "Admirable," said Cardinal Fleury after he read the Abbé de Saint-Pierre's Projet de Paix Perpétuelle, "save for one omission: I find no provision for sending missionaries to convert the hearts of princes." Alas, Presidents who succeed in provoking a long-suffering Congress into a resolution calling for their resignation are not likely to be deeply moved by congressional disapproval nor inclined to cooperate in their own liquidation.

If Presidents will not resign of their own volition, can they be forced out without the personal and national ordeal of impeachment and conviction?

A proposal advanced in various forms by leading members of the House of Representatives this year contemplates giving Congress authority by constitutional amendment to call for a new presidential election when it finds that the President can no longer perform the functions of his office (Representative Bingham) or that the President has violated the Constitution (Representatives Edith Green and Morris Udall).

The possibility of dissolution and new elections at times of hopeless stalemate or blasted confidence has serious appeal. Dissolution would give a rigid electoral system flexibility and responsiveness. It would permit, in Bagehot's phrase, the timely replacement of the pilot of the calm by the pilot of the storm. It would remind intractable Congresses that they cannot block Presidents with immunity, as it would remind high-flying Presidents that there are other ways of being shot down besides impeachment. But my instinct is somehow against it. One congressman observes of the Green-Udall amendment that it "would, in effect, take one-half of the parliamentary process and not the entire parliamentary process." This is certainly the direction and logic of dissolution. The result might well be to alter the balance of the Constitution in unforeseeable and perilous ways. It might, in particular, strengthen the movement against the separation of powers and toward a plebiscitary presidency. "The republican principle," said the 71st Federalist, "demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs: but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests."

I think that the possibility of inserting dissolution into the American system is worth careful examination. But digging into the foundations of the state, as Burke said, is always a dangerous adventure.

IX

Impeachment, on the other hand, is part of the original foundation of the American state. The Founding Fathers placed the blunt instrument in the Constitution with the expectation that it would be used, and used most especially against Presidents. "No point is of more importance," George Mason told the Convention, "than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who [as President] can commit the most extensive injustice?" Benjamin Franklin pointed out that, if there were no provision for impeachment, the only recourse would be assassination, in which case a President would be "not only deprived of his life but of the opportunity of vindicating his character." Corruption or loss of capacity in a President, said Madison, was "within the compass of probable events . . . . Either of them might be fatal to the Republic."

The genius of impeachment lies in the fact that it can punish the man without punishing the office. For, in the presidency, as elsewhere, power is ambiguous: the power, to do good means also the power to do harm, the power to serve the republic also the power to demean and defile it. The trick is to preserve presidential power but to deter Presidents from abusing that power. Shall any man be above justice? George Mason asked. Obviously not; not even a President of the United States. But bringing Presidents to justice is not all, that simple.

History has turned impeachment into a weapon of last resort—more so probably than the Founding Fathers anticipated; Still, it is possible to exaggerate its impact on the country. It took less than three months to impeach and try Andrew Johnson, and the nation—in a favorite apprehension of 1868 as well as of 1973—was not torn apart in the process. Three months of surgery might be better than three years of paralysis. Yet impeachment presents legal as well as political problems. There is broad agreement, among scholars at least, on doctrine. Impeachment is a proceeding of a political nature, by no means restricted to indictable crimes. On the other hand, it plainly is not to be applied to cases of honest disagreement over national policy or over constitutional interpretation, especially when a President refuses to obey a law that he believes strikes directly at the presidential prerogative. Impeachment is to be reserved, in Mason's phrase at the Constitutional Convention, for "great and dangerous offenses."

The Senate, in trying impeachment cases, is better equipped to be the judge of the law than of the facts. When Andrew Johnson was impeached, there had been no dispute about the fact that he had removed Stanton. When Andrew Jackson was censured, there had been no dispute about the fact that he had removed the deposits. The issue was not whether they had done something but whether what they had done constituted a transgression of the laws and the Constitution: But in the Nixon case the facts themselves remain at issue—the facts, that is, of presidential complicity—and the effort of a hundred senators to determine those facts might well lead to chaos. The record here may be one of negligence, irresponsibility, and even deception, but it is not necessarily one of knowing violation of the Constitution or of knowing involvement in. the obstruction of justice. While impeachment is in the Constitution to be used, there is no point in lowering the threshold so that it will be used casually. All this argues for the determination of facts before the consideration of impeachment. There are two obvious ways to determine the facts. One is through the House of Representatives, which has the sole power to initiate impeachment. The House could, for example, instruct the Judiciary Committee to ascertain whether there were grounds for impeachment, or it could establish a select committee to conduct such an inquiry. The other road is through the courts. If the Special Prosecutor establishes incriminating facts, these can serve as the basis for impeachment.

But what if a President himself withholds evidence—for example, Nixon's tapes—deemed essential to the ascertainment of facts? If a President says "the time has come to turn Watergate over to the courts, where the questions of guilt and innocence belong," and then denies the courts the evidence they need to decide on innocence or guilt, what recourse remains to the republic except impeachment? Apart from the courts, President Polk said quite explicitly that the House, if it were looking into impeachment, could command testimony and papers, public and private official or unofficial, of every agent of the government. If a President declines for whatever reason to yield material evidence in his possession, whether to the courts or to the House, this itself might provide clear grounds for impeachment.

All these things are obscure in the early autumn of 1973. It is possible that Nixon may conclude that the Watergate problems are not after all (as he told the Prime Minister of Japan) "murky, small, unimportant, vicious little things," but are, rather, evidence of a profound and grievous imbalance between the presidency and the Constitution. Perhaps he may, by an honest display of candor and contrition, regain a measure of popular confidence, re-establish constitutional comity and recover presidential effectiveness. But full recovery seems unlikely unless the President himself recognizes why his presidency has fallen into such difficulties. Nixon's continued invocation, after Watergate, of national security as the excuse for presidential excess, his defense to the end of unreviewable executive privilege, his defiant assertion that, if he had it to do over again, he would still deceive Congress and the people about the secret air war in Cambodia—such unrepentant reactions suggest that he still has no clue as to what his trouble was, still fails to understand that the sickness of his presidency is caused not by the overzealousness of his friends or by the malice of his enemies, but by the expansion and abuse of presidential power itself.

X

For the issue is more than whether Congress and the people wish to deal with the particular iniquities of the Nixon Administration. It is whether they wish to rein in the runaway presidency. Nixon's presidency is not an aberration but a culmination. It carries to reckless extremes a compulsion toward presidential power rising out of deep-running changes in the foundations of society. In a time of the acceleration of history and the decay of traditional institutions and values, a strong presidency is both a greater necessity than ever before and a greater risk—necessary to hold a spinning and distracted society together, necessary to make the separation of powers work, risky because of the awful temptation held out to override the separation of powers and burst the bonds of the Constitution. The nation requires both a strong presidency for leadership and the separation of powers for liberty. It may well be that, if continuing structural compulsions are likely to propel future Presidents in the direction of government by decree, the rehabilitation of impeachment Will be essential to contain the presidency and preserve the Constitution.

Watergate is potentially the best thing to have happened to the presidency in a long time. If the trails are followed to their end, many, many years will pass before another White House staff dares take the liberties with the Constitution and the laws the Nixon White House has taken. If the nation wants to work its way back to a constitutional presidency, there is only one way to begin. That is by showing Presidents that, when their closest associates place themselves above the law and the Constitution, such transgressions will be not forgiven or forgotten for the sake of the presidency, but exposed and punished for the sake of the presidency.

If the Nixon White House escapes the legal consequences of its illegal behavior, why will future Presidents and their associates not suppose themselves entitled to do what the Nixon White House has done? Only condign punishment will restore popular faith in the presidency and deter future Presidents from illegal conduct—so long, at least, as Watergate remains a vivid memory. Corruption appears to visit the White House in fifty-year cycles. This suggests that exposure and retribution inoculate the presidency against its latent criminal impulses for about half a century. Around the year 2023 the American people will be well advised to go on the alert and start nailing down everything in sight.

A constitutional presidency, as the great Presidents have shown, can be a very strong presidency indeed. But what keeps a strong President constitutional, in addition to checks and balances incorporated within his own breast, is the vigilance of the people. The Constitution cannot hold the nation to ideals it is determined to betray. The reinvigoration of the written checks in the American Constitution depends on the re-invigoration of the unwritten checks in American society. The great institutions—Congress, the courts, the executive establishment, the press, the universities, public opinion—have to reclaim their own dignity and meet their own responsibilities. As Madison said long ago, the country cannot trust to "parchment barriers" to halt the encroaching spirit of power. In the end, the Constitution will live only if it embodies the spirit of the American people.

"There is no week nor day nor hour," wrote Walt Whitman, "when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves,—and lose their roughness and spirit of defiance—Tyranny may always enter—there is no charm, no bar against it—the only bar against it is a large resolute breed of men."