one-off experience. that was a fabulous experience. >> did you do -- >> no, that was done. bruce beresford directed that and that was done almost at the same time. it was done before gollipoli before actually. director bruce beresford. >> want to mention another film you did? >> no, that's it. >> this has been what? have i missed -- missed a story from theism peachment -- >> no. no i'm in so much trouble now with this story, with this tv -- thank god peter's dead. >> thank you very much for your time, francis. it's been wonderful. thank you. >> thank you, everybody. appreciate it. you're watching american history tv where every week we bring you eyewitness accounts of the people and events that have shaped our nation. saturdays at 8:00 a.m., sundays at three.

june 17th marks the 40th an verse of the watergate break-in that resulted in president nixon's resignation. watergate's lasting impact. over the next few weeks at this time, "american history tv" will air highlights of that symposium. now a two-hour discussion on president nixon's secret white house tapes and the historical significance of the watergate scandal. a object to the form nixon white house aide and senate watergate committee investigator discuss their roles and memories from that period. good morngment i'm tom campbell. it's my privilege to be the dean of the law school at chapman university. i'm now coming up on the completion of my first year as dean. i was first made a professor of law 28 years ago, and i entered law school in the autumn of

1973. as a result you can infer this seminar has huge important meaning to me personally as well as academically and professionally. that was the time, as i was graduating from college and entering law school that the senate watergate hearings were being held. professor archibald cox came back to the law school where i was studying. in the autumn of my first semester. and in the summer of my first year of law school i had a job in washington, d.c. at the old civil service commission and walked over to the white house the night president nixon resigned. i can actually say i was at the white house when president nixon resigned. i can also say it's not all that common that i was very privileged to be a member of the united states house of representatives as well. i was elected to five terms in united states congress, never giving up my tenure as a law professor because i'm not the dumbest politician you've ever seen, and knew a good thing, tenure being a good thing.

if you ever lose an election, you've got a job to fall back on. as a member of the house of representatives, i actually was called upon to cast a vote on the impeachment of judge walter nixon in 1989. accordingly to those who do not take careful notes, i'm able to say i was at the white house the night president nixon resigned and i voted as a congressman to impeach nixon. as standards of truth in politics go, that will pass. it's a tremendous honor to be dean of the chapman law school. our law school is now in its 16th year. we're 15 years old last autumn. we are in a university that's 150 years old, just finished celebrating its 150th. the university was founded on the day of president abraham lincoln's inaugural by design of the founders as a statement of solidarity with the principles of abraham lincoln, principle of individual freedom, abhorrence

of slavery and desire to keep the union together. we are rich in history at chapman although the law school is relatively young. as a tribute to our students and faculty that we have achieved so much in the time that we have had, and all of it before i came here. i'm particularly proud of the work the students did in putting on our seminar this morning. vial a few words at lunch about my colleague, professor ron rotunda. but i do wish to recognize history men douse contribution as well as in making this possible. in the remainder of my time this morning, i had a substantive point to make. let me proceed to try to do so. it draws upon the fact that i have been a law professor and a politician, a member of congress, and that has given me some perspective from the point of view of separation of powers. so i'll begin with this observation that united states verses nixon, the supreme court opinion, the 8-0 opinion that upheld the subpoena of the tapes

in the watergate case was very, very rare. it is very, very unusual for the judicial branch to come down so strongly against the executive branch. i have a couple of theories as to why that occurred. but i do want to emphasize its uniqueness, particularly vis-a-vis when congress has a conflict with the executive branch. the courts overwhelmingly take the side of the executive. by contrast, when the judicial branch has a conflict with the executive branch, the judicial branch takes the side of the judicial branch. that's at play near united states verses nixon. it's at play in a very strong way because of some salient facts beginning with judge ser rick ka's conducting the grand jury. his conducting of the grand jury as our experts will be

testifying today involved -- i say conducting. of course, watching over and receiving their recommendations, but particularly in the point when he gave provisional sentences. he was attempting to utilize the ability to hold out serious sentences to receive more information almost as though he were a grand jury member or a grand jury itself. the special prosecutor concept and the special prosecutor statute locates an executive branch function. the investigation and prosecution of cases, more in the judicial branch than in the executive. it's most unusual. we don't have it anymore. but at the time of these events and the subsequent playing out of the special prosecutor statute, the special prosecutors were not acting as employees of the president.

rather, they were acting, if one had to place them, more as an arm of the court. and particularly president nixon's own statement as i recall at the time, that he would abide by a definitive ruling of the supreme court. that was his adjective, that he would abide by a definitive ruling of the supreme court, suggested if it were not definitive, he wouldn't, or as our superb speaker, ms. wine banks pointed out to us last night, the possibility that the tapes might have been burned might have saved president nixon's job. and yet he chose not to. he was i think challenging the supreme court of the united states to come down his way as opposed to tapes burned, what are you going to do about it? a couple of months of bad press, but he was very, very popular.

and at least in my political judgment would have survived it. what he was asking and what he was seeking with that statement, i'll abide by a definitive ruling of the supreme court, was to say i'm right and i want to court to say i'm right, and unless they definitively say i'm not, i win. that itself was a challenge to the court. judge ser rica and the use of the special prosecutor as an arm of the judicial branch as opposed to a more traditional arm of the executive branch making this more of an executive verses judicial branch. then you have the direct challenge to the supreme court. lastly, i know in the history of the special prosecutors, we had the use of former federal judges was a common practice, at least the famous once. judge lawrence walsh and judge ken starr, once more blending this concept of the prosecutor into the judicial branch where traditionally it does not reside. one last point, and i may be the

only one outside of the specialists to remember this, but when president nixon said that he was going to ask senator stennis to review the tapes, he referred to him as judge stennis. that's of course an appropriate term of honor in the southern states, particularly for somebody who at one time had been a judge. but his reference was quite clear saying, judge stennis and judge ser rick ka, you know, it's all the same. at least that was my implication as a law student at the time hearing it. so in every important way it was president nixon challenging the judicial branch to support him, to embrace him, and the judicial branch looking at the prosecutorial function as closer to its own than it would if it were a united states attorney ap pointed by the president in the normal sort of fashion or the normal grand jury. as a member of congress, i had occasion to assert the powers of congress against encroachment by

the executive to no avail. and i went to the courts to attempt to do so to no avail. the district of columbia circuit prevailing precedent in the question of challenge to executive authority by congress is the case campbell verses clinton. and in that case t court struck down my attempt to obtain a declaratory judgment relative to the president's exercise of war power. but it was not unique for the court to rule against a member of congress challenging a president. indeed, the list is so extensive that it's a different topic and a different time. but may i just briefly recite chenoweth verses clinton, goldwater verses carter, regal verses federal open market committee. in each one of these, a member of congress had challenge. kenneth said president clinton was going beyond the authority he had under the clean water and clean air act, and the

amendments that would have given the power had been defeated, therefore, he couldn't exercise them. no says the congress, get somebody else withstanding. a congresswoman doesn't have standing. campbell verses clinton, i and 38 other members of the house of representatives said we did not vote to go to war, we did not vote to bomb kosovo. the president under the war powers act had to pull back. no said the d.c. circuit, we won't hear your case because you have the power to cut off money. you could have passed a bill to cut off appropriations. never mind that the president would have vetoed that bill. and hence my right as a member of a majority of one house to prevent war from beginning had been eviscerated. to be told the remedy is to get two-thirds of both houses is not much of a remedy at all reigns v bird, senator bird objected to temperature's line item veto. the court said denied standing, we're not going to hear it, wapt

for and actual instance of somebody who didn't get a benefit as a result. regal verses federal open market committee, senator regal said the federal reserve open market committee is determining monetary policy. and half of the members haven't been confirmed. i as a senator had my rights cut off. no said the court, you don't have to stand. time and time again when it was an issue of the assertion of legislative prerogative against executive prerogative, the court has denied standing. that makes the u.s. verses nixon case so very fascinating because it went the other way. my last case to cite in making this argument is ins verses chata where the supreme court struck down an attempt by congress to hold back delegated power to the president by the one house veto. students of this case i'm sure will remember that there was no case or controversy. the president did not want to

deport the individual. the individual didn't want to be deported, so ins verses chata was a suit between a person who felt he might be deported and the agency that said they weren't going to deport him. jumping over all of the issues of standing in order to reach the opportunity for the president, the court ruled in favor of the striking down the retained veto by the congress, and as a result, giving the the president substantial authority vis-a-vis congress which congress had given to the president only with the assumption that they would reserve the power of the veto in order to contain it. and by going ahead and striking down the retained veto, but not striking down the entire statute, the court overwhelmingly vindicated the executive branch when it was fighting the legislative branch. >> i noticed one commonality in dellums verses bush, where a challenge to president bush the

first war was brought by rondell lum. the judge said i will hear it as soon as the war starts. that was gulf war number one. perhaps i'm being a little unfair. i hope not. i notice the judges who were willing to stand up to a president when it wasn't directly a challenge to the judicial branch were all beyond the age where they would likely be appointed to the next highest court. it isn't a democratic or republican thing. dell let me verses bush, the judge is 68 years on. john sir rick ka, 69 years old at the time of his decision. john sir rick ka is republican, ap pointed republican. it was that at a certain age you're not likely to be considered. but whatever your age is, for a judge to rule against the executive in a fight of consequence to the executive is to make it highly unlikely any subsequent executive will

promote you, whereas there's no such risk if you offend the legislative branch. there's very little and nor good reason. congress cannot say we hereby cut judge green's salary. that is directly unconstitutional. so the commonality i come down do in my concluding remark is as a separation of powers notion, the watergate event brought to us a most unique occurrence, very rare, where the judicial branch stood up to the executive branch having in almost every other instance yielded to the executive branch when it had a fight with the legislative branch. for those students of criminal procedure, you might remember dicker sorn verses united states where chief justice rehnquist departed from his previous pattern of casting doubt on miranda when congress had entered into the debate and said that, you know, miranda is only

suggestive, it isn't compelled. we, congress, hereby pass an alternative to miranda. judge rehnquist said, well, this is a constitutional rule. it's not a constitutional requirement. it's a constitutional rule. having created it, we, the supreme court having created it, i will not broke the congress undoing it. my thesis is that water gate was special in that it was like the congress attempting to take the miranda power or undo what the court had done. it was here the president directly challenging the judicial power, precisely in the context of a grand jury which was more sdwru dishl branch than executive branch and in a direct challenge that president nixon i suspect regretted that he gave to the supreme court. i could have burned the tapes, i won't because you're going to uphold me by a definitive

ruling. consequences for our time, our manifest. president clinton appeared before the grand jury rather than asserting executive privilege. i think that's a direct consequence of the president of u.s. verses nixon whereas he did, indeed bomb kosovo without concern of getting a declaration of war. president obama has also waged war in libya without a declaration of war. in the areas where it was not a direct challenge to the judicial branch, the executive has continued, and that division i think is mirrored in what we are studying today. in u.s. verses nixon, the supreme court upheld the rule of law in the most important context possible, and this is my final thought of why. it could be because it was viewed as a challenge to the judicial branch, that is my theory, whereas the other instances were not. it could also be because, as my

common law professor once used, you want to preserve judicial power for the moment when the tanks roll down constitutional avenue. that was said in almost a cynical jest that if the court ob stains, it ob stains eventually so it can have the power when the tanks are rolling down constitutional avenue, so you should perhaps intervene sooner. but to me, that was watergate, that in its own way as brown verses the board, it was imperative for the court to speak unanimously. it was imperative for the court to speak in a voice of supremacy as to issues of constitutional prerogative. so in that instance perhaps over coming a natural bias to favor the executive which they surely could have done by a broad reading of executive privilege, could have said -- or taking a

leaf from the way they handled congressional complaints about war, they could have sarksd well, you can go and impeach president nixon, so you don't need to pursue this at the moment if at all. in other words, the alternative remedy -- think of political question doctrine. it's committed by text to another branch, you can go impeach them. they didn't. my explanation is either because it was a direct challenge to the judicial branch or perhaps also because the tanks would otherwise roll down constitutional avenue. it was that important. and so they went against their natural instinct. the consequences are with us today. i would have wished that the court had equalized the authority of both legislative and judicial branch to withstand encroachments by the executive, but we have an asymmetric set of interpretations today, the encroachments will be resisted

by the judicial. i see in in our law schools as well. a tendency of law professors, because, perhaps, we teach cases, to say that the judicial branch is the place you should go to seek redress and to achieve important social objectives whereas, knowing my background a little bit now, as you know, you might suspect, i think it is the legislative branch where you should go to achieve social objectives and the elected -- the will of the people who elect you will be most directly represented, but not if you'll lose every time you challenge an executive who encroaches upon your authority. the supreme court in u.s. verses nixon gave us a very important half of a loaf, and i'm thrilled and grateful for that. it is, however, not yet complete. with that i would like to

introduce the president of our law review, kevin grow co-who will introduce our morning panel. kevin. [ applause ] . . thank you, dean campbell for that warm welcome. before i start, i'd like to go ahead and thank you on behalf of the law review and the law school in general. over the last year you've been incredibly generous with your time and an incredible asset to the school and its students. i would like to thank you with that. i have no doubt that will continue many years into the future. i look forward to seeing that as a graduate of chapman law. one more housekeeping item. because of the interesting panel we have coming up for you this morning and in the interest of time, if i can ask everyone to limit themselves to one question at the end, we want to make sure we stay on schedule for the remainder of our events today. we should appreciate that greatly. as dean campbell mentioned, i'm

my name is kevin grow co-editor and cheech of the law review. it's my pleasure to introduce our keynote speaker and panelists, and moderator mr. jonl dean. he served as council to the president of the united states from 1970 to 1973. before becoming white house council, he was chief minority council to the judiciary committee of the u.s. house of the representatives, an associate deputy attorney general at the u.s. department of justice. his undergraduate studies were at colgate university with majors in english literature and political science followed by a graduate fleship at american university to study government and the presidency. he entered georgetown university law school where he received his gad with honors in 1965. mr. dean recounted his days at the nixon white house in two books "blind ambition" and "lost honor." after retiring, mr. dean retired to best-selling books and lecturing as well as a column

pift. he currently writes for justia.com. his books include the rehnquist choice, warren g. harding, worse than watergate. the secret presidency of george w bush, broken government, how republican rule destroyed the legislati legislative, executive and executive branches and pure goldwater. while working on his next book, he continues as a visiting scholar and lecturer at annenberg school of communications and regular contributor on "countdown with keith olbermann. he also examines the impact of the american bar associations model rules of professional conduct on select historic events like watergate. at this time i am privileged to introduce mr. john dean and our panelists alexander butterfield and scott armstrong. [ applause ] .

this is really a unique panel this morning. take a special delight in being able to moderate. i'm the guy who thought i was taped. scott's the guy who thought there might be taping. alex is the guy who knew there was taping.

they have been together once before almost 40 years ago where they sort of, one, brought this information to the public, but also realizing the importance n historical importance of what they were doing, they paused to make a record of it. that record was recorded many years later in the journal of american history which is a fairly detailed account. it tease march 1989 addition, if anybody is ever interested in going through every detail. what i thought would be interesting this morning is to reminisce about that where we can short of serve as your fact witnesses this morning. if you were in the audience last night, jill vulner did a wonderful job of providing a chronology of events, many of them touching on the tapes because the tapes will become the central issue in the watergate story and how it is

resolved and sorted out. i also -- whitney was kind enough to prepare a chronology which is on your table because we're not going to be able to get into everything in that chronology, but to keep things in perspective, particularly those of you for whom this is all new, as well as those of you who might have forgotten some of these events. and when we get into the q&a, if some of you want to get into the areas we haven't covered here, that's certainly all right by us. i thought since this program is being recorded appropriately by c-span that what i would do is somewhat adopt my favorite television questioner's approach, that of brian lamb band rather blunt and right to the point and let the program really evolve around the very

special guests we have this morning. so let me start with you, scott, and ask where did you go to school? that's a very brian lamb type question. >> yale university. >> alex, how about you, where did you go to school? >> i started at ucla and had two very bad years and then went into the air force and everyone said you'll never continue, having dropped out of school. i did, thanks to the university of maryland which is now worldwide. i went to the university of maryland at munich and then i went to eight other campuses in europe and lib yeah. i lived in libya for a while and eventually got to the point where you can go back to the -- you couldn't graduate in the field, you had to go back to silver spring, maryland, for your final semester, and i did that. that was my undergraduate. >> scott, what did you do when you got out of yale?

>> well, i went to law school for a brief time. i didn't like it. i thought it was an inferior way to catalog the world, second raeft ep pift molg. so i quit and got involved in correctional reform, reform of the criminal justice system and was running a program for men coming out of prison when i -- just before watergate. >> what we're going to do today also is, there will be stretches when it will be one series of questions that will be followed up by one of our guests, i noticed on the master sheet it kind of balances out. alex, tell us after the service -- as i recall in the service at one point, you're at the pentagon and you're having dealings in liaison with the johnson white house. so you later go to the nixon white house with some experience about the operations. tell us a little bit about how

you got the job for the johnson white house, what you did and what that might have educated you about dealing with the nixon white house. >> i'll try to be brief. i tend not to be -- when i came back from vietnam i went into war plans and the policy division of war plans in air force headquarters in the pentagon. and shortly thereafter, within about six months i was called down to the joint staff by the director of the joint staff, lieutenant general ber ch gnaw who told me about an opening in the office -- the immediate office of the secretary of defense. actually it was joe cal fan know's office. joe was then the special assistant to the secretary and the deputy secretary of dpens. a job which had been held for many years by a guy named adam yarm lynn ski. i knew adam quite well. adam eventually moved over to