Considering History: The End of Watergate and the Question of Presidential Immunity

This series by American studies professor Ben Railton explores the connections between America’s past and present.

This week marks the 50^th anniversary of one of the most shocking and important weeks in American political history. On August 5^th, 1974, the release of a number of new Watergate-related recordings, including the infamous “smoking gun” tape of an Oval Office conversation, directly implicated President Richard Nixon for the first time in the cover-up of that June 1972 break-in at the Democratic National Committee headquarters. By August 7^th, Nixon had apparently decided to resign the office, which he did first with a televised address to the nation on the evening of August 8^th, and then with a cursory formal resignation letter on the morning of August 9^th.

Those 1974 events not only provided a conclusion to years of hearings and debates around the Watergate scandal and the Nixon administration, but also reaffirmed multiple layers of checks on presidential power, from Constitutional ones like the federal government’s judicial and legislative branches, to informal yet equally crucial ones like the media. But Nixon’s resignation left open the question of presidential immunity from criminal prosecution, a question that the new President Gerald Ford would quickly answer with his own controversial pardon of Nixon.

By the summer of 1974, Watergate hearings had dominated the news for more than a year. From May through November of 1973, the Senate Watergate Committee (known officially as the Select Committee on Presidential Campaign Activities) had held continual hearings on the break-in and the cover-up, with roughly 320 hours of coverage broadcast on network TV over those months; the Committee would release a 1250-page Report on Presidential Campaign Activities on June 27^th, 1974. By that time, in response to the scandal overall but also to Nixon’s October 1973 firing of special prosecutor Archibald Cox, the House Judiciary Committee had been holding impeachment hearings for nearly two months. Those impeachment hearings had begun in May 1974 and would culminate with the adoption of three articles of impeachment in late July, just a week before the release of the new tapes.

The release of those Oval Office recordings was made possible by a monumental Supreme Court decision that overtly limited claims of presidential power and immunity. In April 1974, special prosecutor Leon Jaworski subpoenaed Nixon for tapes and other materials pertinent to the Watergate investigation; Nixon sought to provide only partial and edited evidence. A U.S. District Court ordered him to honor the full subpoena, and both Jaworski and Nixon then appealed to the Supreme Court. With Justice William Rehnquist recusing himself due to his relationship with a number of Nixon officials, the remaining eight Justices heard oral arguments in United States v. Nixon on July 8^th. On July 24^th, less than three weeks later, the Court ruled unanimously that Nixon must adhere to the subpoena in full. The decision, authored by Chief Justice Warren Burger, rejected Nixon’s claims of both immunity and confidentiality, arguing that “the fundamental demands of due process of law in the fair administration of criminal justice” were paramount.

Compelled by the Court’s decision, Nixon turned over to Jaworski the full recordings of 42 additional White House conversations. Among them was the “smoking gun” recording from June 23^rd, 1972, a conversation in which Nixon and his Chief of State H.R. “Bob” Haldeman discussed contacting CIA officials to pressure the FBI’s acting director to end the Watergate investigation. Jaworski would certainly have been able to make substantial use of that recording and all this additional evidence in his ongoing investigation, but the recording’s far more immediate influence was due to an informal but vital check on Nixon’s power from the so-called “fourth branch” of the government, the independent media. National TV and radio news programs covered the release and contents of the recording that night, and print periodicals featured full transcripts, giving the public the chance to read and judge Nixon’s words and actions alongside prosecutors and Congressional committees. Public opinion immediately and decisively turned against Nixon, a key factor in his decisions in this historic week.

The audio of the “smoking gun” tape (Uploaded to YouTube by Richard Nixon Presidential Library)

Another factor in Nixon’s resignation was the erosion of Congressional support for Nixon in the aftermath of these events. While the Senate Watergate Committee’s investigations had been genuinely bipartisan, Nixon had maintained a significant overall level of Republican support, particularly in the House impeachment hearings. But on August 7^th, three senior GOP Congressional leaders — Senator Barry Goldwater (AZ), Senator Hugh Scott (PA), and Representative John Rhodes (AZ) — visited Nixon at the White House and informed him that he no longer had the votes to withstand impeachment. The change was undoubtedly influenced by practical considerations, but it nonetheless reflected a genuinely independent legislative branch, one that represented a separate and equal perspective and check on any presidential claims of unqualified support and immunity.

Checked on all these official and unofficial fronts, Nixon made the decision to resign the office, announcing his plan in an Oval Office address broadcast live on the evening of August 8^th. He begins that speech by foregrounding the practical realities of the changing political landscape, noting that he “might not have the support of the Congress that [he] would consider necessary.” He concludes it by focusing at length on what he saw as his administration’s accomplishments, seeking to cement his legacy. But in between, Nixon acknowledges the moment’s national and Constitutional significance, recognizing that “the Constitutional purpose [of impeachment proceedings] has been served,” and that “the interest of the nation must always come before any personal considerations.” He calls his choice to resign part of “the first essential” in such a moment: “to begin healing the wounds of this Nation, to put the bitterness and divisions of the recent past behind us, and to rediscover those shared ideals that lie at the heart of our strength and unity as a great and as a free people.”

High on the list of those shared Constitutional and American ideals are checks and balances on the power and immunity of the president. As Tom Paine put it in Common Sense (1776), “for as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” While Nixon’s resignation seemed to embody that spirit, just a month later his successor took a very different action: On September 8^th, 1974, President Gerald Ford “granted a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed.” In contrast to the moment’s other checks and balances, Ford’s use of presidential power to grant immunity for Nixon’s abuses of it left open the overarching questions of presidential power and immunity — questions we continue to debate to this day.