On The Imperial Presidency

June 17, 1971

Haldeman: You maybe can blackmail [Lyndon] Johnson on this stuff.
Nixon: What?
Haldeman: You can blackmail Johnson on this stuff and it might be worth doing [...]
Nixon: Do we have it?  I've asked for it.  You said you didn't have it.
Haldeman: We can't find it.
Kissinger: We have nothing here, Mr. President.
Nixon: Well, damnit, I asked for that because I need it.[...]
Haldeman: Huston swears to God there's a file on it and it's at Brookings.

Nixon [to Haldeman]: Bob?  Bob?  Now do you remember Huston's plan?  Implement it.
Kissinger: ...Now Brookings has no right to have classified documents
Nixon: ...I want it implemented...Goddamnit, get in and get those files.  Blow the safe and get it.

---
March 21, 1973

Dean [to Nixon]: ...Now, where, where are the soft spots on this?  Well, first of all, there's the, there's the problem of the continued blackmail...which will not only go on now, it'll go on when these people are in prison, and it will compound the obstruction-of-justice situation.  It'll cost money.  It's dangerous.  Nobody, nothing -- people around here are not pros at this sort of thing.  This is the sort of thing Mafia people can do: washing money, getting clean money, and things like that uh, -- we're -- we just don't know about those things, because we're not use to, you know -- we are not criminals.

Nixon: That's right....How much money do you need?
Dean: I would say these people are going to cost, uh, a million dollars over the next, oh, two years.
[Pause]
Nixon: We could get that...if you need the money...you could get the money....What I mean is, you could, you could get a million dollars.  And you could get in in cash.  I, I know where it could be gotten.

Okay, it's time for me to finally write about the flipside of the problem of presidential weakness: the imperial presidency.

The problem is as follows.  Richard Neustadt said, back at the end of the Eisenhower administration, that the presidency was constitutionally a very limited (or "weak") position.  Presidents are not absolute rulers of the government; they're not, Neustadt explains, even absolute rulers of the executive branch.  They can only give orders to executive branch departments and agencies and hope to have those orders carried out in relatively rare and strictly limited situations -- and even then, operating by giving orders turns out to be terribly costly for presidents who try.  (Note: this is also true of Members of Congress, governors, foreign prime ministers, party and interest group leaders, and others who presidents need things from, but it's the exec branch that's important here).

So Neustadt believed.  But Watergate and other episodes (especially but certainly not limited to the Johnson, Nixon, Reagan, and W. Bush administrations) raise the question of: what if the president doesn't take "no" for an answer?  What if the president finds a way around the bureaucracy?  What if he does what he wants done, essentially, by himself -- or by people he hires who are loyal to the president, not to their agencies?  If the normal functioning of American politics is full of built-in checks and balances, what if presidents find a way to cheat that system, and to find ways to govern unchecked and unbalanced?

My answer is going to be: yes, presidents have tried to do that.  They generally do it through the "Presidential Branch" of government -- the White House Office, and the larger Executive Office of the President.  They have, in limited ways and for short periods of time, apparently succeeded.  But in the cases for which we have information, what these presidents have found is that the system is stronger than they thought, and that going rogue has all sorts of dangers to the president.  On the whole, I am convinced that this kind of thing -- that is, using the Presidential Branch to get things done that the president wants but that the normal processes of government stymie -- doesn't "work" in the sense of allowing a president to have unlimited dictatorial powers.  It doesn't work at all; it backfires, and destroys those who would try it.  I'm an optimist, in other words, about this problem.  It is, nevertheless, even from my optimistic position, a real danger to be aware of.  And there's no question that presidents do have the capacity to attempt it, and can create all sorts of damage in the process. 

And remember: the key here is presidents.  It is surely true, and will be true in any government, that some officials will have the option of abusing their power.  That's important to know, and it's at least somewhat important to make sure that measures are taken to prevent that sort of thing, whether it's by a vindictive IRS agent, a petty municipal health and safety inspector, a nasty police officer, or a power-crazed staffer at the National Security Council.  But what we're talking about here is a much bigger deal -- we're talking about whether presidents can become, essentially, elected dictators.  So yes, it's important that people working for the president may do illegal things, but it's a lot more important if he can with impunity order them to do those things and have his orders carried out.  There are also very important questions of what the government as a whole can do, and should be able to do, under the law.  I don't want to in any way discount that set of questions (such as whether the law should allow the government should be able to spy on citizens, or what sorts of protections should be required against holding people without charges).  But, again, they are not about presidential abuse of power; they're about democratic choices about laws.  The problem of the Imperial Presidency isn't about which laws should be passed.  It's about the possibility that the law might not be able to constrain a president at all.



OK, now to the stories. 

I'm going to have two lines of argument: first, that even White House staff don't necessarily follow presidential orders; and second, that doing things this way rapidly yields policy disasters.

Go back up to the top and read the first sequence (Nixon, Haldeman, Kissinger).  Haldeman is the president's chief-of-staff, the position that Rahm Emanuel holds today.  Kissinger is National Security Adviser.  Huston is Tom Huston, who Nixon had put in charge of formulating a plan for spying on and disrupting domestic opponents of the administration.  The plan, which included explicitly illegal actions by the government, was halted by the objections of the J. Edgar Hoover, still at the FBI.  As a result, and after the Pentagon Papers leaked in June 1971, Nixon and the top staff of the White House decided to implement the plan themselves, forming a unit within the White House staff -- the Plumbers -- to do it.  (You'll note too that while there really were violent and dangerous domestic dissidents, it took almost no time for the president's focus to shift to non-violent people such as Pentagon Papers leaker Daniel Ellsberg,

Now, the Plumbers did do plenty, but here's the thing: the relationship between the things they actually did and the things the president wanted turned out to be quite loose.  Sometimes, there was a clear cause-and-effect.  Nixon wanted Ellsberg smeared.   To do so, the Plumbers asked the CIA to prepare a psychological profile of Ellsberg (no, I don't know why they thought that was the way to go about it).  The CIA, however, refused to help the president's men smear a US citizen who the government was already prosecuting for a crime.  So, the Plumbers instead decided to break into Ellsberg's psychiatrist's office to steal his file.  Stupid (see below), but sort of what the president wanted.  In other cases, however, the cause-and-effect doesn't seem to be there.  As far as we know, Nixon never ordered anyone to break into Democratic Headquarters, which of course is what started the whole thing unraveling.  On the other hand, as seen above, Nixon was eager to stage a break-in at Brookings, but that never happened, although Liddy did come up with a few wild plots that he never implemented.   There are plenty of other examples, but perhaps the most dramatic is that after the burglars were caught, they (Hunt, particularly) promptly blackmailed the president in order to stay out of jail.   Or if you like, maybe John Dean's betrayal of the president -- Dean pretended to still be loyally coordinating the cover-up in spring 1973 even after he was already ratting everyone out to prosecutors.  So point #1: even within the Presidential Branch, even within the circle in which the president seems to be most able to get his way, it appears that presidents often don't get what they demand. 


Now, go back and read the second sequence above, with John Dean and Nixon.  Dean is White House Counsel, and in that role his main job by this point is to coordinate the cover-up of various illegal activities (that is, his job is obstruction of justice).  The key phrase to focus on here is what I put in bold: "people around here are not pros at this sort of thing."

Why is that important?  The history of the Imperial Presidency, of the president trying to bully his way through the bureaucracy by bypassing the normal departments and agencies and having the Presidential Branch undertake operations, is a history of clown shows and bad jokes.  Let's see...we have Ollie North showing up in Tehran with a cake and a Bible; we have the much less funny but equally disastrous policy of torture during the Bush presidency; and we have Watergate.  There are so many examples of incompetency during Watergate...I guess my favorite is that Plumbers Hunt and Liddy, after putting together elaborate disguises for themselves in order to travel to Ellsberg's psychiatrists office (to "case the joint," as it were), took (recognizable) pictures of themselves in front of the office.   Pictures that they then left in the White House, to be discovered by FBI agents after the Watergate break-in (although they didn't know what it was for some time).  They were, like Ollie North and David Addington, "not pros at this sort of thing."

Now, it's possible that it's just random bad luck for all involved, but I don't think that's right.  I think it's systematic.  The White House isn't set up to run government operations; it's set up to advise the president, to produce independent information for the president, and to assist the president in various other ways.  When you're hired by the CIA, you get trained in the proper procedures, you have the full support of others who know the proper procedures, and you have all sorts of rules and regulations to make sure you do your job correctly.  Obviously, that doesn't always prevent foolish mistakes, but at least there are likely to be regular procedures intended to ensure competence.  On Day One in the White House, there's nothing.  No rules, no procedures, no support, and depending on who gets hired only the dimmest of institutional memory.  And so if a president tries to operate the government out of the White House, the odds of things going drastically wrong are fairly high.  That's the logic of the situation...and I think the evidence is exactly what the logic suggests.

So what the argument suggests so far is that while presidents can try to run things themselves, in fact there are good reasons to expect that it won't work out very well.  On the one hand, even within the White House giving orders doesn't work out very well; on the other, to the extent it does work, those orders aren't likely to be well-executed.

That's the argument from within the presidency.  But there's also good reason to believe that presidential attempts to bypass the regular mechanisms of constitutional government cause problems outside of the White House.  Nixon, again, is a good example.  Each breach of regular constitutional order produces another agency, another interest group, another committee chair, with less of a stake in the man or woman in the Oval Office.  I think Nelson W. Polsby's analysis is the most useful one.  Polsby asks: why didn't Nixon at some point purge the White House, confess (some) of the crimes that had taken place, take the hit, and move on?  Because

Nixon obviously feared more than anything placing himself at the mercy of the goodwill of the people in charge of the various arenas in which disclosure was demanded: the courts, the press, the special Senate Watergate Investigating Committee, the House Judiciary Committee.  He must have felt that in each of these arenas he had no political credit, no goodwill to call on.

That's because:

[In Nixon's] view, his election conferred not only an extraordinary measure of legitimacy upon him, but also a kind of illegitimacy upon many of the very people with whom a President ordinarily does business: the bureaucrats, interest group leaders, journalists, Congressmen, and party leaders of official Washington...To most of these groups in the course of his Presidency Nixon gave intentional offense, and in each case it was offense of a character that carried with it a clear threat of a very basic kind...Nixon's policies...consisted of a systematic trampling of his political fences, a direct assertion that the legitimacy of the Presidency entailed the illegitimacy of those other political elites to whom a President normally is accountable (see below for citation, pp. 44-45).

In other words, yes, Nixon was (almost) impeached and would have been convicted for Watergate.  But the reason that everyone, Republicans included, were willing to take that step, the reason that people saw individual acts they had tolerated in the context of other presidencies in a larger context that demanded he be removed from office, was because of impoundment, and enemies lists, counting the Jews at BLS, a secret war in Cambodia, and on and on.

Seen from this angle, Nixon's gamble is basically that he doesn't need anyone else -- with the Presidential Branch created and enlarged from Truman on, it's no longer necessary for presidents to play by the (constitutional) rules, even knowing the costs it would have in the normal way that the presidency and the constitutional system are supposed to work.  The reason the two stories above (that presidents cannot actually run the White House as dictators, and that doing so risks incompetent government) are so important, in my view, is because if it turns out that one cannot actually run the nation out of the White House, if it just doesn't really work, then the president cannot afford to alienate everyone else in the system, and so we need not overly fear the Imperial Presidency. 

That's my reading of the evidence.  On the other hand...well, I'm not absolutely certain.  Maybe Nixon's White House has problems because of his personality; maybe Reagan's WH problems stem from his, er, management style; maybe George W. Bush's problems were a result of his inexperience.  I'm uncomfortable enough with the potential of presidential abuse that I tend to support the two-term limit on the presidency, even though I do think it has significant costs -- at least there's no chance for a president to perpetuate abuse beyond eight years.  Overall, however, my judgment is that presidents who attempt to govern by themselves, without constraints and against the constitutional grain, are only buying trouble for themselves.  That is, the constitutional system (and thus the rule of law) is in fact stronger than the presidential urge to overcome it.  Even if sometimes it seems a very close thing.



Long, long post, and here are the works cited.  The quotations at the top are found in Stanley I. Kutler, ed., Abuse of Power: The New Nixon Tapes.  The first sequence is from page 3; the other is found on page 254.

My best source for the Nixon stories is still Fred Emory's Watergate. 

And I quoted from Nelson W. Polsby, Congress and the Presidency.