Written by: Stewart Lawrence
The Watergate scandal of 1974-1975 shocked the American public by exposing the degree of ethical misconduct at the highest levels of the US government (Bernstein & Woodward, 1974). President Richard Nixon not only appeared to authorize a criminal burglary to try to influence the outcome of his 1972 re-election bid but he also conspired with top White House aides to try to cover-up the act Despite calls for transparency and accountability from all segments of American public opinion, it took a full-scale Congressional investigation and a vote on impeachment in the House of Representatives to finally drive Nixon from office. In the wake of his resignation, and in the spirit of reform, Congress passed the Ethics in Government Act (EGA) in 1978.
The EGA had four main provisions. First, it established a limit on the level of private income of public officials while serving in office. Second, it eliminated the receipt of gifts and other financial contribution from outside parties to these officials. Third, it restricted the ability of officials to become private lobbyists once they left office (the so-called “revolving “door” syndrome). Fourth, it provided for an independent Special Prosecutor and an Office of Government Ethics to monitor and investigate compliance with the new law and to prevent the President, as Nixon had done, from impeding investigations of the White House.
This paper examines the EGA, its origins and impact on government practice, and on American political culture more broadly, to assess the implications of such an unprecedented high-profile ethics reform initiative. Critics suggest that such initiatives are largely window-dressing, designed largely to soothe an outraged public and to restore a semblance of government legitimacy during a time of crisis. However, supporters say the EGA and initiatives like it not only lead to effective ethics monitoring but also serve as a powerful deterrent to abuses, while stimulating further reform efforts. Though imperfect and incomplete, they are still well worth the investment, supporters say.
Can both of these propositions be true? This paper seeks to arrive at a balance sheet on EGA’s strengths and weaknesses and to raise broader concerns about ethics monitoring at the highest levels of government. The basic argument is that peculiarities of the American political system – most notably a strong semi-independent executive overseeing an ever-expanding federal bureaucracy with mushrooming global responsibilities to boot – has made it increasingly difficult to rein presidents in ethically. At the same time, and somewhat paradoxically, to legitimize the operations of the presidency with the public at large, efforts at high-level ethics reform persist and indeed, form an ongoing powerful part of the nation’s political discourse. Put simply, as the presidency grows stronger, so does the public’s insistence that it be bound ethically — even in the face of recurring evidence that such restraints on the chief executive will inevitably fail.
Government Corruption and Democracy
There are two main views of corruption and ethical abuse in political systems. One holds that corruption violates democratic processes by skewing policy outcomes fundamentally at odds with the popular will. Political regimes reward friends and cronies and punish their enemies with access to the spoils of power. Officials themselves may blur the line between public power and private interest by implementing policy decisions that benefit them directly. In the recent election, both Donald Trump and Hillary Clinton were accused of “influence-peddling” to foreign governments.[1] Officials might also shield themselves from scrutiny and possible prosecution by withholding documents or by conducting their dealings off the books. [2] They may refuse to comply with requests for disclosure and accountability, even from other public bodies including courts and legislature charged with that mission.
In the fields of American political science and public administration, it is often suggested that “corruption” of an egregious kind – extensive theft of a public treasury, for example — is largely foreign to Western democracies – at least well-established, i.e. European ones (Glaeser & Golden, 2005). Isolated scandals may occur but they are largely on the margins of a highly rationalized and routinized Weberian-style bureaucracy with clearly defined rules of behavior and administrative sanctions. Instead, discussions of corruption most often focus on Third World governments that are deemed to be especially vulnerable to “patrimonialism” and “clientelism” that are thought to lend themselves to graft and bribery and even organized systems of “kleptocracy” (Clapham, 1982) It is often suggested that these nations have their own “traditional” cultural norms that define relationships between the private and public spheres differently than in the West (Olivier de Sardan, 1999). Even well-intentioned incipient or emerging democracies that suffer from weak institutionalization, including a lack of government accountability mechanisms, can fall prey to corruption (Mohtadi & Roe, 2003). However, it is generally assumed that as these democracies mature, they will “naturally” become less prone to routine political and bureaucratic corruption (Kolstad & Wiig, 2012).
A diametrically opposed view has gained increasing currency in recent years. It holds that government corruption and ethic abuse is endemic to capitalism and to democratic systems, including those in the “advanced” countries of the West. For example, Girling (1997) argues that in capitalist democracies a structural contradiction exists between the demands of the economy and those of the political system. Private groups that lobby for their economic interests and seek favorable treatment from public officials often find that they cannot realize their interests without providing added “incentives” to induce government compliance. On the other hand, government officials may need to realize public ends that require private cooperation. Girling refers to ongoing “accommodation” or “collusion” between the public and private sectors to realize legitimate public interests. This collusion only becomes “corruption,” he argues, when private ends completely drive the process and when public officials succumb and they often do so, he suggests (p. ix).
According to the first school, America should be the least, or one of the least, corrupt political systems in the world. Indeed, established measures of corruption do rank the US near the top of “least corrupt” (Chappell, 2016). However, from the standpoint of the second school, America, as one of the world’s most advanced capitalist countries, the potential for ethical abuse should be unusually acute. Arguably, one should find a growing tendency toward corruption in public life with the growth of the American government and the increasing complexity of public administration. The fact that the United States has also become the pre-eminent world power with a vast diplomatic, commercial, and military apparatus extending to the far corners of the world – far removed from domestic purview — might also increase the sources of potential corruption.
The Perils of “Presidentialism”
Another prominent feature of the American system is “presidentialism.” The United States, virtually alone among the world’s nations, grants its chief executive unusual power to govern (Linz, 1990). This feature has enormous implications for ethical monitoring, control and accountability. The president is elected every four years and cannot be removed without a lengthy process of impeachment begun by the legislative branch. In parliamentary systems, the chief executive, the prime minister, represents the dominant party but may be forced out simply due to a “no-confidence” vote. The number of times a president has faced impeachment are few. Nixon, Andrew Johnson and Bill Clinton are the most prominent cases, and yet, because of partisan political differences primarily, none were formally impeached by the entire Congress. By contrast, prime ministers receive votes of “no-confidence” – and lose their leadership posts– on a regular basis.
Presidential systems have a paradoxical quality. On the one hand, the president enjoys a direct and unmediated relationship with voters and the public, and can use the presidency as a “bully pulpit” to sway voters.[3] He also functions as the nation’s symbolic “head of state,” much as a constitutional monarch does. At the same time, under the separation of powers principle, the American system also allows the legislature to serve as a check on the power of the president. The president may issue executive orders without consulting Congress that may have the sweep of actual legislation but they are not the same as royal edits or decrees. They can they be easily overturned by a subsequent president. Furthermore, the courts, the third power branch, can rule on the constitutionality of these executive orders, sometimes finding them unconstitutional.
Despite these limitations, the scope of federal power in the American system is vast (Marshall, 2007). Presidents exercise a near-exclusive authority over issues like protecting the nation’s borders and regulating immigration (Rodriguez, 2010). In addition, Congress grants considerable deference to the executive in other matters relating to national security and foreign policy, though consultation with high-level members of Congress is not only strongly advised, but typically utilized, if only to try to build a public consensus, especially on matters that might prove controversial (Howell, 2010) . However, efforts to limit executive discretion in war statutorily, for example, through the War Powers Act., have not proven consequential. Presidents still commit troops overseas as they see fit.
The upshot of this analysis is that the scope and purpose of presidential authority historically has created space within which presidents might be tempted to operate with relative impunity believing that they enjoy an “executive privilege” that shields them from strict ethical accountability to other branches of government. Put another way, executives, at least prior to Watergate, and even after, have frequently argued that they are not bound by the same standards that apply to public officials at lower levels of the federal government, to say nothing of officials at the state and local level. Their responsibilities are so important, and their authority so great, that, in some matters they are accountable only to themselves. As shown below, Watergate and subsequent reform efforts have tested that bold proposition, in part because it fails to conform to popular perceptions in America about how their government should function, regardless of what might be constitutionally “permissible,” at least in the narrow sense.
High-Level Corruption and Ethical Scandals
There is no doubt that corruption – and corruption-related scandal — has accompanied the growth of the American government and the rise of the United States as a world power. Most accounts of the growth of public corruption, especially at the federal level, cite the “Gilded Age,” the period after post-Civil War Reconstruction, and the administration of Ulysses S. Grant, a Civil War general and hero, as its crucible (White, 2003). A key feature of this period of U.S history was the growth of the transcontinental railroads, which engaged in massive private corruption to raise capital to finance rail construction (Bain, 1999). Two U.S. congressmen set up a dummy construction company to bilk investors out of enormous sums, and then bribed other congressmen and eventually the US vice-president, James Garfield to prevent them from investigating. Evidence against Garfield was overwhelming, in fact, but through political influence he managed to escape prosecution.
Other high-level government scandals during this period came to be known as Black Friday, the Whiskey Ring, and the Indian Ring. In the Whiskey Ring scandal, state and local politicians with the assistance of Grant’s own personal secretary, Orville Babcock, siphoned off liquor taxes for personal use, but Grant stood by Babcock and he escaped punishment. In the Indian Ring scandal, Grant’s Secretary of War, William W. Belknap, accepted bribes from companies with licenses to trade on the reservations of many Native American tribes. He, too, escaped all punishment.
During the “Progressive” Era of 1900-1920, a major attempt was made to clean up government and to eliminate corruption. Under three successive presidents — Theodore Roosevelt, Williams Howard Taft and Woodrow Wilson — America pursued a self-consciously idealistic vision of American democratic principles, both at home and abroad. However, the primary target of anti-corruption efforts during the Progressive era was the “spoils system” – the means by which many people acquired government jobs, by supporting candidates for office during their campaigns and continuing to do so once those candidates elected. In 1881 more than 50 percent of all federal jobs were patronage positions. As control of the presidency shifted from one major party to the other in 1885, 1889, 1893, and 1897, dramatic turnovers occurred in personnel.
Perhaps because of its overriding focus on the “spoils system,” the Progressive Era may have done little to expose or remedy the kind of high-level business-government corruption that typified the “Gilded Age.” In fact, it was in the immediate aftermath of the Progressive period that the Teapot Dome scandal – the greatest scandal of its time – occurred (Noggle, 1962). Teapot Dome was quite similar to earlier scandals – and would also foreshadow later ones. A top official of the administration of Warren Harding, Albert Fall, Secretary of Interior, secretly sold government land leases to three major oil companies – and took a $200,000 bribe in return. He was caught, forced out of government, and imprisoned. Harding was not directly implicated but the turmoil over the scandal took a toll on his health and is thought to be a primary cause of his early demise.
Not all high-level federal ethical controversies and scandals – even those involving the White House — necessarily become classified as “corruption.” Throughout American history, U.S. presidents have taken executive action that involved secrecy and deception –but for entirely “legitimate” purposes, especially in relation to war and peace and national security. Theodore Roosevelt, one of the avatars of Progressivism, who helped foster the cause of civil service reform, also launched the Spanish-American War, which was aided and abetted by exaggerated claims and pretexts to justify US intervention. Roosevelt ruled over the nation at a time when it was amassing greater global responsibility and seeking to displace the old colonial powers across the globe, but in this era, especially in the western hemisphere. Progressives Taft and Wilson inherited these interventions and oversaw US military occupations in countries such as the Philippines and Nicaragua that resulted in mass carnage and placed the United States in a quasi-colonial – some call it “neo-colonial” – role. The old Spanish (or Dutch and English) colonial administration systems were displaced but the emerging “free and democratic” nations were subject to enormous American influence and lacked the resources and power to operate with genuine political autonomy.
After World War II, the United States moved from being an absolute hemispheric power to becoming a genuinely global one. Throughout the 1950s, the United States expanded its diplomatic, economic, military and political presence worldwide; virtually no region or country remained untouched. During this period America also built up a clandestine intelligence collection and paramilitary warfare capability through the clandestine branch of the Pentagon, the CIA, or both. These capabilities gave the US government, and especially the executive branch, a “third option” between diplomacy and overt war (Shackley, 1981). However, they also gave the executive branch enormous autonomy to wage those wars as it saw fit. Covert political interventions in countries such as Iran, Guatemala and Indochina toppled anti-US regimes and allowed pro-US regimes to come to power. The United States also provided massive military and diplomatic assistance to protect those pro-US regimes from opposition and in some cases, to allow US military bases and other forms of American influence to prosper.
All of these operations involved a degree officially sanctioned malfeasance, including the bribing of foreign government officials, or the assassination of anti-American political figures; however none were considered “criminal” under US law, though presidents did their best to conceal them, and when caught, to justify them as “vital to national security.” Many such practices began coming to light in the 1970s in the same era as Watergate. The release of the Pentagon Papers – based on a leak to the New York Times from a former mid-level Pentagon official, Daniel Ellsberg – exposed an entire pattern of official misdirection by a succession of presidents over many decades regarding the government’s motives for intervention in the Vietnam War (Sheehan, 1971).[4] It was widely believed that had citizens known more of these deliberations, including many of the frank intelligence assessments that predicted an inability to win the war that they might not have approved of escalating American involvement and its disastrous consequences.
The flurry of public revelations about executive-level decision making in Vietnam and in a number of other foreign policy escapades led to congressional hearings and a sweeping shift in public opinion toward the need for executive level reform and for a recalibrating of the balance between the executive branch and Congress and the courts. However, none of these efforts would have taken off had it not been for the Watergate scandal and for Richard Nixon’s historic decision to resign the presidency in 1974, early in his second term. It was a watershed moment that seemed to highlight the limits of executive power and to reaffirm America’s democratic and constitutional principles. It also led directly to the Ethics in Government Act of 1978. However, was it as enduring in significance as it appeared at the time? And if not, why not?
Watergate: Toppling America’s Chief Executive
This is not the place to review the details of the burglary of the headquarters of the Democratic National Committee at the Watergate Hotel in Washington, DC in the months leading up to the 1972 presidential election. The idea for break-in has never been tied to President Nixon directly – but his involvement in the cover-up of his re-election campaign’s ties to the burglary and to other criminal activities – including a separate break-in at the office of Daniel Ellsberg’s psychiatrist, in search of incriminating information on the Vietnam War dissident—led to his downfall.
One of the great ironies of Watergate and Nixon’s re-election skullduggery generally was how unnecessary it was. Nixon had beaten former vice-president Hubert Humphrey by a narrow popular vote margin in 1968 but by mid-1972 was cruising to re-election. Many observers have interpreted Nixon’s involvement in Watergate as a reflection of his personal paranoia and a sense of injury and insult dating to his earliest years. He knew that Democrats had long hated him for his anticommunist politics, including his role in the defeat of Helen Gahagan Douglas for the Senate in 1952 (Johnson, 2013).
However, one can also argue, and some have, that Nixon’s paranoid style was, in part, the nation’s writ large, albeit in extremis perhaps. With the rise of the Cold War and Sen. Joseph McCarthy in the 1950s, much of the political mainstream was constantly on the look-out for Communist subversion at home. The Rosenberg and Hiss trials were perhaps intended as a warning against those that might challenge the emerging world order based on American global hegemony, especially in the ideological realm. A great battle was underway between “Democracy” and “Communism” and there was no room for equivocation – or dissent.
In this sense Watergate represented the apotheosis of an entire era of American government based on widespread fear and unquestioning loyalty to the American presidency. President Eisenhower, the hero of World War II, had served two terms and was enormously popular. However, when Nixon lost his bid for the presidency in 1960 to a younger charismatic Democrat, John Kennedy, America appeared to be adopting a freer cultural and political sensibility. Nixon did return, eight years later, but for many, he was already a symbol of a fading Cold War past. Democrats were already gunning for Nixon and he knew it. In this sense, his paranoia was justified, but it also made him a symbol of an executive-style that much of the country saw as dysfunctional. Nixon came to represent the “Imperial Presidency,” a chief executive above the law in a self-contained universe and no longer accountable to other branches of government or to the public at large.
Arguably, Nixon might have survived had he found a way to maneuver in the nimble way that his scandal-ridden predecessors had. Under fire from the press and their political opposition, Roosevelt, Harding and Truman all agreed to appoint a “special prosecutor” to investigate the corruption and crimes of which members of his own administration were accused. In each case the method worked: it neatly separated the president from suspicion of involvement in the controversy and seemed to ensure that justice would be done fairly and impartially. Nixon, under pressure, also agreed to appoint a special prosecutor, Archibald Cox, thinking that his authority president would allow him to limit Cox’s purview. However, the maneuver backfired. When Cox took his investigation to the doorstep of the White House, demanding that the president release his secretly recorded tapes of conversations with his top aides and with other White House visitors, possibly implicating Nixon in the Watergate cover-up, Nixon balked, and ordered his attorney general, Elliot Richardson, to fire Cox. Richardson refused and resigned and so did his deputy, William Ruckelshaus, who was appointed in his place.
Nixon also turned to the Supreme Court, which he hoped would support his argument that as president, he was not required to release the White House tapes. Nixon had already agreed to release his own more limited written summaries of the tapes, hoping to assuage Senate investigators. However, in a landmark decision, the Supreme Court unanimously ruled that Nixon was not protected by executive privilege and ordered him to release the tapes. Cox’s successor, Leon Jaworski, then subpoenaed the president for the tapes, which Nixon reluctantly released, exposing unmistakably his involvement in the Watergate cover-up. After the House Judiciary Committee voted to impeach him, Nixon realized that the end was near. On August 1974, he became the only US president in American history to resign,
Birth of the Ethics in Government Act
Even before the conclusion of the Watergate affair, Congress began considering proposals to limit the ability of the executive branch to shield itself from criminal investigation and prosecution. Much of the focus was on how to ensure that a special prosecutor could be independent of presidential control to avoid a repeat of the so-called “Saturday Night Massacre” that had resulted from Nixon’s determination to fire the Watergate special prosecutor. However, congress also was concerned to limit the ability of senior officials to benefit financially from their service in government, as had officials in previous executive level scandals. Deliberations proceeded through three successive legislative sessions. Numerous bills were introduced providing for various mechanisms. Finally, in 1978, Congress passed the Act with the proviso that a number of provisions – including those establishing a more independent special prosecutor — would “sunset” after five years unless specifically “reauthorized” by the Congress (Carroll, 1989).
Many members of Congress were less than enthusiastic about the Ethics Act. However, they felt compelled to pass it to assuage public demand (Drew, 1977). One source has argued that if the vote had been taken in secret, the Act would have failed by a 2-1 margin. Especially objectionable to many members were the onerous requirements for financial reporting and divestment. Under Title 2, persons serving in federal government could earn no more than 15% above their public salary level. Because stocks and bonds were exempt from this requirement, many observers felt the Act tended to favor those with inherited wealth against those that had earned it. They also worried more generally that the Act would discourage successful entrepreneurs and others with business and financial acumen from serving in government.[5]
Over time, critics of the Act succeeded in overturning key provisions – or simply allowed them to expire. By 1994, just 15 years after its passage, whatever dwindling consensus in Congress supporting the law had fallen apart. This shifting viewpoint was not a reflection of growing public trust in the federal government, which had climbed from a low of 25% after Watergate to over 40% in the late 1980s, before plummeting to below 20% — the lowest ever — by the mid-1990s (Pew Research Center, 2015). Declining public trust in government was a major factor in Bill Clinton’s election to the presidency in 1992. As part of his governing mandate the new president urged Congress to revive the EGA, which was passed back into law by a Democrat-controlled Congress in 1994. Once again, federal ethics reform, especially relating to the presidency, was back on the national agenda, if only as a means of restoring the public’s dwindling faith in government.
The Rise and fall of the Independent Counsel Law
No part of the EGA has inspired more attention and controversy than the provision for a special prosecutor, now constitutionally independent of the president. Supporters saw this provision more than any other as a demonstration of the popular will and as a reflection of America’s commitment to democratic self-government. And yet critics saw it in the opposite way: as an attack on the principle of the separation of powers and as a threat to the ability of presidents to execute the nation’s laws. That debate has raged ever more fiercely over the past four decades and continues to this day, without resolution.
Under the EGA, a special prosecutor would no longer be named by the President’s Attorney General, subject to the authority of the executive branch in the last instance. Instead, a three-person judicial panel comprised of members of the US District Court of Appeals would name the prosecutor, subject to its own authority alone. However, the law also empowered the Attorney general to determine whether such a prosecutor was first necessary, independent of the advice or judgment of the white House or any other body.
The Attorney general could receive a recommendation for naming such a prosecutor from any entity, and indeed, even from a private citizen. The law obliged the Attorney General to recommend the appointment of a special prosecutor whenever he or she received specific charges of misconduct, unless the charges were “so unsubstantiated” as to not warrant further investigation, a key proviso. Moreover, once the Attorney General issued a finding, there was no provision for review or appeal.
On its face, the EGA appears to preserve the principle of executive authority, but allows the Attorney General more autonomy from the president to determine whether the president may become the target of an investigation. By adding the Court of Appeals as the actual implementing body, with the power to name a far more independent prosecutor than in decades past, the law also gives the judicial branch more influence over the executive, and in theory emboldens society at large to hold the president accountable – and to deter presidential misbehavior.
Yet, by most accounts, this provision of the EGA has proven highly ineffective in practice – and has all but discredited the idea that creating such a new ethic enforcer-in-chief was wise. In fact, a minority of observers from the beginning suspected that the creation of an independent special prosecutor might well lead to prosecutorial abuse, because the person so designated would have substantial leeway to pursue a case beyond its merits, or at least beyond what was feasible to prove.
Iran-Contra and the Whitewater/Lewinsky Scandal
The two most notable high-profile cases in which a duly appointed independent counsel pursued possible criminal charges against the president – Ronald Reagan during the Iran-contra affair and Bill Clinton in the combined Whitewater and Monica Lewinsky scandals – ended up bearing out this criticism, at least in part. In the former case, Reagan and other top officials were accused of conspiring to circumvent the will of Congress by organizing a “private” supply line of weapons and supplies to the rebels fighting the Sandinistas government in Nicaragua (Mayer & McManus, 1988). Congress had cut off official US funding for the rebels, except for “humanitarian” aid. Top Reagan administration officials believed that the cut-off would limit pressure on the Sandinista government and leave the insurgency to wither on the vine. A member of the Reagan National Security Council, Col. Oliver North, with the concurrence of Reagan’s national security advisor, John Poindexter, organized an off-the-book supply line using the profits from secret US arms sales to Iran. When the scandal broke, critics suggested that Reagan and other top administration officials were likely implicated, just as Harding had been in Teapot Dome. It was the perfect test of whether the EGA, through its provisions for a special prosecutor, could find a more impartial way to hold a president and the White House accountable for breaches of the public trust with criminal implications.
At one level, the process was successful. Congress, under the control of the Democrats, held hearings on “Iran-contra” as it became known, which transformed the issue into a referendum on the Reagan administration. As in Watergate, aggressive news reporting also played a critical role, detailing how the rebel supply line operated and detailing the role of a host of former intelligence and military officials recruited by North to run it. Other top officials, including the CIA director, William Casey, and the vice-president, George H.W. Bush, who would succeed Reagan, were implicated. Pressure continued to grow, compelling the Attorney General to name an independent counsel, William Walsh, without any ties to the Reagan administration, to investigate the matter formally. In theory, it was precisely how the law was intended to work.
By most accounts, however, the practice fell far short of the ideal. The question is why. Some analysts have argued that Walsh pursued the investigation obsessively, spending an enormous sum of public money, only to secure fairly low-level indictments and prosecution against relatively low-level officials. This was the pattern seen earlier in Teapot Dome with Harding and with Truman’s alleged ethics violations. Walsh, himself a Republican, came under heavy attack from Republicans in Washington, DC who saw the investigation as partisan and one intended to force the indictment and impeachment of Reagan. Much of the mainstream media, which had supported the Walsh investigation initially, also began turning against it over time. Leading opinion makers like Chris Matthews of the NBC program “Hardball” as well as publishers and editors of leading organs like Time and Newsweek came to the conclusion that the investigation had over-reached and that Walsh had become obsessed with “getting” Reagan.
According to Robert Parry, the AP reporter and later Newsweek correspondent who “broke” the Iran-contra story and continued to pursue it aggressively even in the face of opposition from his own editors there was a dawning consensus among America’s intellectual and political elites that the country could not with stand “another” Watergate that ended up with a disgraced president and discredited political system (Parry, 2011). Even among many Democrats, Parry argued, there was a feeling that bringing down Reagan would so demoralize conservatives that it might create a dangerous political backlash that could poison the country’s discourse for decades. In this setting, informal signals were sent that with Reagan leaving office anyway Walsh’s criminal investigation should wind down and the country should focus on the larger institutional “lessons learned.”[6]
In fact, Walsh had done his job extremely well. As he wrote in his own account of his tenure as Independent Counsel — an account confirmed by Parry — Walsh had accumulated enough evidence of a high-level cover-up to indict the President, as well as the Vice-President George Bush and Secretary of Defense Caspar Weinberger, all of whom had concealed their diary notes which laid bare their complicity in the “official” story told by Reagan and his top aides about Poindexter and North conducting a “rogue” operation to support the Nicaraguan contras without the prior knowledge or approval of the president himself (Walsh, 1997). In fact, there was substantial evidence accumulated by Walsh and others that the senior aide to the vice president, Donald Gregg, had been actively involved in the contra re-supply effort, and not just the cover-up. However, when CBS correspondent Dan Rather confronted Bush about these revelations in a live-interview on national television, Bush turned the tables on Rather, questioning his own ethics as a news reporter. In the end, Walsh never even pursued charges against Gregg, let alone Bush.
In the Clinton Lewinsky affair, the process also worked as intended on the front-end, but with far more political theatrics and partisan contention (Gormley, 2010). It started with the naming of an independent counsel to investigate the financial dealings of the Clintons. That investigation came to a speedy end, finding no evidence against the Clintons, angering conservatives who demanded that the investigation continue (Lyons, 2010). However, the investigation was revived after a scandal erupted over Bill Clinton’s alleged affair with a White House intern, which inflamed the electorate. Clinton had largely escaped any penalty for his past alleged sexual relations with a number of women, including at least two that accused him of rape when he was still Governor of Arkansas. The Lewinsky matter revived those claims and added new ones, since Clinton had enjoyed a consensual sexual relationship with a woman in her 20s, and had engaged in sex in the Oval Office itself (Toobin, 2010).
As in past scandals, the issue of whether the President was accurate in public statements and in depositions about his knowledge and behavior became more important – and potentially more damaging — than the suspected behavior and wrongdoing, which might not be criminal. Would the president tell the truth under oath? Would the public’s right to know about what the president and other top officials did while serving in their public role be honored, and if not, would appropriate criminal penalties be administered, regardless of the consequences for a president’s ability to hold office? Could America hold its president fully accountable or was the president, in large measure, by virtue of his office, or by a perceived lack of incontrovertible evidence, “above the law”?
In the Clinton case, independent counsel Kenneth Starr took the extraordinary step of issuing a formal subpoena for the president to appear for a deposition and interviewed him under oath – an historic precedent. Starr asked Clinton about his relations with Lewinsky using a mutually agreed upon standard of sexual behavior. Clinton denied having “sexual relations” with Lewinsky which eventually turned out to be a lie. However, Clinton would cling to the argument that his relationship did not constitute “sex,” but referenced a standard used in an earlier phase of Starr’s investigation involving a Clinton sexual harassment accuser. Starr eventually concluded that Clinton had lied and was prepared to charge him with perjury, obstruction of justice, witness-tampering and abuse of power (Van Natta, 1998). The House of Representatives voted to impeach Clinton but the Senate, coalescing 45 Democrats and 10 Republicans, voted down a formal charge against Clinton.
As with Iran-contra, there was a strong sense among the two parties and the nation’s elites that the Clinton indictment, if pushed too far, might somehow damage the country – and specifically the presidency. Nevertheless, many conservatives were anxious to bring Clinton down in disgrace just as many liberals had wanted to see Reagan driven from office. However, there seemed to be a force operating within national politics – or the underlying culture – that resisted “killing the king.” Watergate had inspired the nation to rein in the “imperial” presidency, to reduce the president to a mere mortal. “America was a nation of laws not of men,” the saying went. In the end, we were all equal before the law. However, something would persist that said otherwise.
The Supreme Court Weighs In
The Supreme Court has also played a role in the debate over the EGA, most notably the independent counsel provision. It did not come about as a result of Iran-contra or the Lewinsky case, however. In 1988, at the height of the Iran-contra affair, a separate controversy erupted over allegations of false testimony by the assistant director of the Environmental Protection Agency before Congress. President Reagan had ordered the EPA official, Theodore Olson, to with hold documents from a House committee the substance of which turned out to conflict with his public testimony. The head of the congressional committee, Rep. Peter Rodino (D-NJ) asked the Attorney General to authorize the naming of an independent counsel, which he did. Consistent with the law, a three-member panel of the US Court of Appeals named an independent counsel, Alexia Morrison, to investigate the matter. However, Olson sued to have the matter set aside on the grounds that the Independent Counsel provisions of the EGA were unconstitutional.
The case, which became known as Morrison v. Olson, came before the US Supreme Court and provided an in-depth review of the constitutional issues at stake in the independent counsel provision of the EGA (Dangel, 1990). Olson argued that the law usurped the exclusive authority of the president to carry out the laws of the land, including the conduct of his own office, by giving the judiciary the power to name an independent counsel at the behest of the legislative branch, and to prevent the executive from firing or otherwise removing the counsel. Morrison, in defending her role, argued that the independent counsel was not beholden to the Courts or Congress, in fact. Because it was left to the Attorney General to decide whether a counsel would be named, the office was still, in effect, under the authority of the executive branch
In a 7-1 decision, the High Court agreed with Morrison. The lone dissenter was conservative Justice Antonin Scalia, who had long advocated that America’s political system favored a strong executive. By placing the prosecution of a president in the hands of a prosecutor named by a federal court, Scalia agreed with Olson that the Congress had usurped executive authority. The fact that the Attorney general was the one that decided whether a counsel would be named was irrelevant, Scalia argued. Once named, the president could not fire the independent counsel; only impeachment could remove the official. Therefore, the executive had lost the authority under the Constitution to execute the nation’s laws, he concluded. As such, the law should be overturned (Tushnet, 2008).
At the time Scalia’s views were seen by many as extreme and dangerous, because he appeared to be giving the government no independent ability to ferret out and punish wrongdoing by the executive branch, in effect, returning the country to its pre-Watergate days. Scalia, in a vigorous defense, argued that the threat of a breakdown of executive authority was worse. He also predicted, with great prescience, many believe, that the independent counsel law would be abused for partisan purposes (Cappuccio, 1998). Without any real institutional accountability, the independent counsel would be free to pursue “witch hunts” fueled by the media and the president’s political opposition, using enormous sums of public money. Rather than restraining the executive, punishing wrongdoing, or establishing new and stronger ethical standards, these actions would simply damage the institution of the presidency, Scalia believed.
Conclusion: Did Presidential Ethics Reform “Fail”?
The problems encountered with implementation of the Ethics in Government Act were widely acknowledged after the Starr investigation. There is little question that a law intended to restore confidence and trust in government and in the ability of the justice system to hold the chief executive accountable had failed. In fact, by 1999, there was a consensus that the law should be allowed to expire permanently, which indeed, occurred Some argue that it was the underlying premise of the law that doomed it (Miller & Elwood, 1999). By suggesting that the Justice Department, staffed with lawyers of many years long-standing, could never investigate a temporary sitting president, the law implied that the system itself was flawed, and not merely subject to extreme pressure and abuse. The fact is, Nixon’s efforts to thwart an investigation of presidential wrong-doing failed. After firing Cox, a new special prosecutor was named anyway, and he secured the tapes that doomed Nixon. The authority for the new counsel did not come from a special law, but from procedures already in place. In other words, arguably, the system “worked.”
Others argue that the law is needed and should be revived — but better grounded (Kelly & McAntee, 1993; Cook, 1999; Bruce, 2012). Rather than floating in a constitutional no-man’s-land, and subject to the exercise of too much investigatory discretion, the law should require the independent counsel to more closely follow existing Justice Department investigatory guidelines subject to formal approval by the Attorney general. If such approval were not forthcoming, the independent counsel could still appeal to the three-member panel of the U.S. Court of Appeals, and each party could present their respective cases and abide by the court’s ruling (Cook, pp. 1394-95).
The problem with both views – statutory dissolution vs. statutory reform — is that each tends to obscure the underlying structural and institutional dilemma. Since its founding, and during critical epochs since, America has promoted an ever-expanding chief executive with more federal bureaucracies and more organizational scope and responsibilities, both domestic and global. It is also bound by the constitutional requirement for a “separation of powers” that delimits what other branches of government can do to monitor and investigate the operations of the executive. While there is a clear trend toward a “sharing” of powers among all three branches that allows for each branch to delegate some of its authority to another, the underlying principle of separation remains. Delegation is voluntary, and proceeds from the prerogative of the branch that determines that sharing would improve its own operations (Wagner, 2003).
It could be the one or another type of reform effort will be undertaken, possibly in the wake of an investigation of the newly elected Trump administration. Potential conflicts of interest abound and with a GOP-controlled Congress averse to public investigation of their party’s president, and with an Attorney general so closely associated with the incumbent, this is the perfect setting within which the need for an independent counsel has been cited in the past. The weight of history suggests that such a counsel will likely be named. However, the same weight of history also suggests that justice is unlikely to be served, and that trust in government may be no better offer for it in the end.
The past failure of the Congress or the Courts to fully resolve the constitutional issues involved in the creation of an independent counsel is a clear illustration of the power of “presidentialism” in the American system of government which continues to set outer limits on how far society is willing to constrain the scope of operations and ethical culpability of the executive branch. It may be that the institutional demand for a strong and effective executive branch makes it too difficult for Congress or the public at large to keep presidents from overstepping their legitimate authority. And yet the fact that the country continues to demand scrutiny and accountability from the executive branch reflects a deeply-rooted culture of mistrust toward excessive centralization of power. These paradoxical impulses – reflected in the tortured history of the EGA — may well offer sufficient ethical restraint on the President to deter outright tyranny and to preserve the public’s perception of the government and its justice system as worthy of their trust.
In this sense, presidential “ethics reform” may be a chimera but a necessary one. Less a practical set of enforceable guidelines than an ideal, or an ethos, it establishes a discourse on public accountability the boundaries of which can never be firmly established but whose very existence serves as deterrent to executive excess. American presidents will always be tempted to push beyond the limits of their legal authority. At the same time, they know that other institutions of government, the media, and the voters are prepared to push back. No other means of presidential ethics management may be possible in a system with such conflicting principles and priorities, and it may well survive until another — perhaps inevitable — crisis places presidential ethics reform back on the national agenda.
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[1]
[1] In the wake of Trump’s victory, those accusations persist, and may well lead to a high-level ethics investigation of activities that at least one veteran of the Nixon years, former CBS reporter Dan Rather, has described as “worse than Watergate”(England, 2017).
[2]
[2] Many contemporary observers assume that this is a modern presidential conceit. It is not. George Washington set the precedent. When the Congress requested documents pertaining to the controversial Jay Treaty, he refused to turn them over, citing “executive privilege,” the same argument invoked by Nixon to withhold his secret White House recordings. See Dorf (2002).
[3]
[3] The idea of the presidency as “bully pulpit” dates to Theodore Roosevelt and the onset of the Progressive era. Progressives looked to the presidency to rally the nation to address not only corruption but also social reform, including anti-poverty programs. See Goodwin, 2013.
[4]
[4] Former Washington Post defense reporter Dana Priest, who has covered high-level White House scandals, argues that the Pentagon Papers did nothing to constrain the executive branch’s penchant for official secrecy and deception, due to the accumulated ingrained power of the American presidency. (Priest, 2016)
[5]
[5] Some would argue that anti-corruption efforts of this kind naturally tend to weaken of public administration, in part by establishing far too cumbersome regulations that hamper effective government. For the classic and still controversial argument in this vein, see Anerchiarico & Jacobs, 1996.
[6]
[6] There is some historical precedent for this fear. Prior to independence, impeachments of colonial officials were often highly destabilizing, which concerned the American framers as they established an impeachment provision in the new Constitution. They were especially concerned that impeachment should not be used as a weapon of partisan destruction (Turley, 1999).
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