Holding a President Accountable is Just too Difficult”: The Executive Unbound

When Vice President JD Vance spoke in June at the Richard Nixon Presidential Library, he said that “if Watergate happened tomorrow, it would be like, a 12-hour news story. The idea that it would have taken down a presidency is crazy.” Vance added that the “deep state” that took down Nixon, tried to do the same to President Donald Trump. “There’s a parallel,” he said.

Vance is part of the campaign to rehabilitate Nixon’s reputation, as a means of both sanitizing and diminishing the significance of Trump’s assault on the Constitution and, more broadly, loosening restraints on executive power to render the presidency less accountable to Congress, the rule of law and the American people.
The issue of executive accountability, a preeminent worry among delegates to the Constitutional Convention, has, more than once, presented challenges to our constitutional system, but it became an acute crisis with the Watergate Affair. It was Sen. George Aikin (R-Vt), who, in the throes of Watergate, captured the precise problem. He observed: “Many prominent Americans, who ought to know better, find the task of holding a President accountable as just too difficult . . .. To ask the President now to resign and thus relieve Congress of its clear congressional duty amounts to a declaration of incompetence on the part of Congress.”

Congress was more than a little reluctant to investigate Nixon, and his aides and advisors—their lies, lawlessness and coverup of the break in of the Watergate Hotel. The precipitating event that sparked congressional engagement was the Saturday Night Massacre on October 20, 1973, and millions of letters from ordinary citizens demanding the impeachment of President Nixon. The problem of congressional inertia in investigating Nixon represented a glaring weakness in our system in maintaining executive accountability, a profound problem that has reached an acute stage in the unwillingness of the Republicans in the Senate and House to hold President Trump accountable for his assault on the Constitution that exceeds Nixon’s abuses of power.

The crisis of executive accountability has been exacerbated by the US Supreme Court’s rulings that have expanded presidential power by vesting the presidency with sweeping authority to control independent agencies and, as readers know, granting the president immunity from criminal prosecution in all but a very few instances. This is systemic failure that will leave the Constitution in tatters.

At least Senate Republicans—led by Barry Goldwater (R-Az) — mustered the courage in late July of 1974, after the Court rendered its decision in United States v. Nixon, in which it ruled that Nixon was required to surrender the Watergate Tapes, which revealed that was, indeed, a crook, and engaged in the orchestration of the coverup of Watergate-related crimes, to tell Nixon that he needed to resign because he would be impeached and removed from the presidency. But there appears to be no Republican Senator or member of the House willing to issue such demands to Trump. Nor is the Court any longer interested in restraining the presidency in the name of accountability but rather committed to a career in erasing the mechanisms of accountability in our constitutional system.

Nixon escaped accountability, just as Trump evades it still. By resigning the presidency, Nixon essentially thwarted the process of accountability, which required his impeachment, followed by a Senate trial that would have convicted him of committing impeachable offenses and removing him from office. Further, President Gerald Ford’s pardon of Nixon on September 8, 1974, contributed to the miscarriage of justice, for it meant that Nixon’s acts, including obstruction of justice and bribery, spared him a criminal trial.

The lesson from Watergate was that a president who committed gross violations of the Constitution, as well as criminal acts, could escape accountability and justice if actors vested with the power and responsibility of maintaining accountability find it “too difficult” to perform their duties. The purported remedies of Watergate, including the enactment of a law creating a Special Counsel, has lapsed, and the idea of vigorous congressional oversight and investigation seems to have all but disappeared. Meanwhile, presidential power under President Trump has been expanded at an alarming rate, as he now enjoys an unprecedented concentration of power. What Sen. Aiken said during the Watergate crisis is demonstrably clear today. At this juncture, those pursuing elective office must confront these systemic failures and suggest serious solutions to holding the presidency accountable.