Archibald Cox, “Watergate and the US Constitution”

Please remember that Cox is the famous fired Special Prosecutor. He was as close to the investigation of the Nixon WH as anybody could be, for a long time.

Should “Executive Privilege” be accepted as a Constitutional doctrine? What arguments did Nixon lawyers have?

Sup Ct agrees with presidential confidentiality of communications, but says that privilege must give way in a criminal prosecution.

(foreshadow Clinton’s body guards decision by SC)

p. 11 “The long range effect of Watergate upon the balance of power between the WH and Capitol Hill is harder to predict; it is still more difficult to formulate specific measures giving substantially greater assurance against recurrence of the abuse of Presidential Power”

p.12 Problem not so general as excess power. Rather “At the core of theevil were the growth of teh power to act monarchically consulting only the White Houses courtiers, the increase in secrecy, and the drift into or consccui9os adoption of a philosophy that looked to the manipulation of the people.”

How to fix?

1. Reduce size and authority of WH staff.

2. Reduce secrecy. “In the long run, however, if the Executive is left to itself, the claims of executive privilege will surely increase. Secrecy, if sanctified by a plausible claim of constitutional privilege, is the easiest way of hiding inefficiency, maladministration, breach of trust or corruption, and also a variety of potentially controversial executive practices not authorized by Congress.”

The best approach: change law so President must respond to legislative subpoenas.

PJ: note how he predicts the problems that have occurred since Nixon. The clash between Reagan’s EPA and Congress over the toxic waste superfund and later Iran-Contra.

About pauljohn

Paul E. Johnson is a Professor of Political Science at the University of Kansas. He is an avid Linux User, an adequate system administrator and C programmer, and humility is one of his greatest strengths.
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