The years immediately following President Richard Nixon’s resignation in 1974 are often seen today as an era of good government, reform, and transparency. Stung by the Watergate scandal and other perceived presidential excesses, both Congress and the White House put in place novel laws and norms aimed at curbing future crimes and abuses of power, some inspired by the break-in and coverup and many others not. In a flurry of lawmaking, legislators in a few short years approved a host of new statutes with important sounding names like the Ethics in Government Act. And both Presidents Gerald Ford and Jimmy Carter implemented a series of executive branch reforms, ranging from increasing the Justice Department’s independence from the White House to the annual public release of presidential tax returns.
Fifty years after the Watergate break-in on June 17, 1972, Harvard Law Today asked Professor Jack Goldsmith via email to weigh in on the many government reforms implemented after Watergate, their legacy, and what changes are still needed today. An expert on the executive branch and national security law, Goldsmith is the Learned Hand Professor of Law at Harvard Law School and former assistant attorney general in the Office of Legal Counsel. He is also the author, with former White House Counsel Bob Bauer, of “After Trump: Reconstructing the Presidency.”
Harvard Law Today: Congress passed a series of laws in the late 1970s designed to reform the presidency. What do you think were among the most important or durable reforms they made?
Jack Goldsmith: There were many, but at the top of the list I would include: Some of the anti-corruption elements of the Ethics in Government Act (but not its independent counsel provisions); amendments to the Federal Election Campaign Act; the Presidential Records Act, the Foreign Intelligence Surveillance Act, and the Hughes-Ryan Amendment to the Foreign Assistance Act (which reformed covert action); and various executive branch reforms — embodied most clearly in the White House contacts policy followed by every administration since Ford — to ensure Justice Department independence from the White House, especially concerning alleged executive branch corruption.
HLT: How about changes made by Presidents Ford and Carter?
Goldsmith: Both of these presidents contributed to the creation of norms through their attitudes and behavior in office. Perhaps most importantly, they appointed Edward Levi and Griffin Bell, respectively, as attorney general. Both men through actions and executive branch policy reforms contributed to the norms that governed the executive branch, largely efficaciously, until [President Donald] Trump.
HLT: Were congressional reforms all designed to stop future Nixonian abuses of power, or were they also intended to claw back some authority for Congress?
Goldsmith: Some aimed to do both. The War Powers Resolution sought to respond to some of Nixon’s (and prior presidents’) uses of force without congressional authorization through the mechanism of enhancing congressional control over war powers. This reform largely failed.
HLT: After Watergate and the “Saturday Night Massacre” — when Nixon fired Special Prosecutor Archibald Cox [LL.B. ’37], leading to the resignation of the attorney general and deputy attorney general — Congress approved an independent counsel statute, which eventually expired in 1999 and was replaced by Department of Justice regulations enabling a special counsel. You’ve argued this approach hasn’t succeeded. How so?
Goldsmith: There was a general consensus in the late 1990s that the independent counsel statute failed because it went too far in the direction of prosecutorial independence at the expense of prosecutorial accountability. The regulations that replaced the statute in 1999 have really only been tested once — in the Mueller investigation. Whatever one thinks of the outcome of that investigation, the regulations themselves worked decently well in negotiating the tricky tradeoffs between independence and accountability. Bob Bauer and I propose reforms to the regulations to better protect the special counsel’s factfinding function while at the same time enhancing the attorney general’s control over legal issues.
HLT: How have reforms from the late 1970s generally fared over the years? Are we stronger for them?
Goldsmith: On the whole they were remarkably successful. There were some notable failures—the War Powers Resolution and the Independent Counsel Statute, for example. But on most issues the reforms succeeded for almost five decades in reducing executive branch corruption, enhancing the rule of law as applied to the executive branch, and enhancing executive branch transparency.
HLT: In your recent book, you and your coauthor also highlighted a series of new reforms that you believe are needed in the wake of the Donald Trump presidency. Can you share just a few that might build on the 1970s changes?
Goldsmith: The 1970s reforms had a great run and are still important, but their deficiencies, weaknesses, and lacunae — which had been growing prior to the election of 2016 — became very apparent during the presidency of Donald Trump. Bauer and I propose dozens of reforms. The ones that build directly on the 1970s laws include new laws to require the president to account publicly for his income, holdings, and management of assets and investments; mandated presidential and presidential candidate tax disclosure; clarification that the president can violate federal criminal law if he obstructs justice in specified ways; amendments to the War Powers Resolution and related war powers authorizations; adjustments to inspector general laws; and numerous internal executive branch reforms to buck up Justice Department norms of independence and non-political decision-making.
HLT: The independence of the Justice Department has come under particular scrutiny in recent years. Can it ever be truly independent while part of the executive branch reporting to the president?
Goldsmith: This is the hardest of issues because the Constitution charges the president with enforcing the law. So, the DOJ can never be fully legally independent, and indeed, we wouldn’t want it to be, since the president’s law enforcement priorities are an important element of democratic governance. What one wants to avoid is corruption and politicization in law enforcement. The solution in the 1970s, and the reform solution going forward, is to make crystal clear where the lines of independence lie; to back up those lines where possible with criminal prohibitions, which is tricky but doable; and to ensure that the lines of independence are articulated clearly throughout the executive branch.
HLT: What progress have President Biden and Congress made in shoring up the system since they took office 18 months ago?
Goldsmith: Practically none. The Biden administration — both the White House and the Justice Department — have said and done practically nothing in public on this issue, which is disappointing. Congress has placed in various bills most of our reform proposals, but none has made it into a law to date.
HLT: Can norms ever be enforced? To put it another way, will presidents (and other leaders) always push the limits of the law?
Goldsmith: Norms are enforced all the time, and indeed, they worked better than appreciated during the Trump years in ensuring that executive branch agencies often did not bow to Trump’s norm- and law-defying wishes or commands. Presidents are often inclined to test the limits of legal or norm-based power, some more than others. Norms can check these impulses — they have for at least fifty years. The question is whether they will continue to do so. We propose legal and policy changes that we think can help. But as we wrote in the book, ultimately, the efficacy of checks on the presidency depends on the identity of the man or woman whom the American people choose to elect, and the types of pressure that the American people place on members of Congress and other government actors to resist executive branch abuse.