do, he didn't give us his conclusion, you know, this is the object we're going to seek to impeach the president and we take -- going to take all necessary steps to achieve that. he just said we got to put the facts, gather the facts, coalesce the facts and present them to the committee and maybe we'll present some conclusions at that point but that'll be much later on. he didn't -- he wasn't a fire brand prosecutor. he wasn't a forceful figure. he was a very strong figure. but -- and i think that's why from time to time, you know, i butted heads with him a little. i wanted to be more aggressive and do more from time to time. as i said earlier in the conversation i think think ultimately his approach was corrected. he just wanted to gather the facts, present them to committee, and we'll also present some conclusions.

then the committee will have to make the determination what it wants to do. i know what he heard on the tapes also. for me it did affect him. >> did he tell you it affected him? >> no, but i knew. this is march. this was -- when did we start working? then we met our ultimate presentations in july. we had three months. >> i was just wondering if you -- since i don't know whether we were talking to mr. dore, and i know his approach was always the same, but whether his thinking -- >> it became -- yeah. whenever they came in in, ma, and then it was clear where we thought we should head. it was a gradual thing. it wasn't a eureka thing, and it

was true for me also. i didn't know where we were in december or january or february. i just wanted to -- let's get everything done. >> yeah. so -- but the thinking, i think was evolutionary. you know, partisans on the other side say we always intended this from day one, but that's not how i remember it, and i really don't. >> were there any surprises for you when you started collecting the evidence? >> not really. i think by the time the tapes came, as i said earlier, we -- we sort of had put enough together to know what happened here. the tapes were just a dramatic confirmation of that fact, and the dramatic increase in our

ability to bring it home. that's what happened. there were no real surprises. >> but without the tapes, it might have been impossible to bring it. >> without the tapes i think it would have been impossible. i think the president made a bad mistake for himself. i'm not saying for the country. i think the president should destroy the tapes. >> and you later counselled president clinton not to have tapes? >> yes. president clinton, i don't think ever intended to tape himself, but i told him there should be no taping, and at least of conversations. president clinton ultimately did tape his memories of each day with a historian taylor branch who has written a book now called "the clinton tapes," but there was no taping to my knowledge of white house conversations. i wish for history there was. you could hear all my arguments against the independent counsel. >> you didn't know about the taylor branch tape? >> no, i didn't know about that. he did that on his own. i didn't -- maybe other people

knew, but he did that on his own. and, you know, it produced a book, and whatever the book says, the book says. >> what did you think of the pardon? >> oh, that's a good question. i was in favor of the pardon. i -- you know, it was interesting. i shouldn't say -- i wasn't upset by the pardon. that's a better way of putting it. i don't know if i would have pardoned richard nixon if i was president of the united states, but i was not at all upset. i really mood the pardon. our marshall nightmare is now over. pursuing president clinton for criminal charges after the impeachment, after his rez iing

nation, it would have just kept this thing alive, and i think it would have been destructive for the country, and i think president ford did the right thing in pardon president nixon. it help put the thing to rest. the fact that he accepted a pardon -- this is one of the problems -- was some acknowledgment of improper conduct on his part. i don't think he goes on favorably in history having gotten a pardon. you don't have to accept a pardon. you can say you refuse the pardon. you know, do whatever you want to do, but don't pardon me. i'm not accepting a pardon. so i thought it was a wise thing to do. obviously, it had consequences for president ford, probably, and may have -- it was a close election. ultimately against jimmy carter in 1976. i remember thinking when he was pardoned, i wasn't angry. people say you're angry, you spent all this time. i said i'm not angry.

i'm not angry. it worked. the house -- or the committee voted to impeach. there was ultimately support for that resolution. both in the committee and as there would have been in the house. there was support in the senate because the nat is the one who -- the senators asked him to resign. it's accomplished, and he is no longer president. what's the point of pursuing a criminal case against the president with respect to this? so i thought the pardon was the correct thing to do. a lot of friends of mine disagree with this and say he should be punished if he violated the law, if he committed crimes, but i didn't believe that in this circumstance. i was happy with the pardon. happy, that's too strong a term. i understood the pardon, and as time went on, i more and more thought it was the right thing for president ford to do. i don't know about the other people who discussed this about the pardon, but -- >> would hillary have helped you had you tried the case?

was she going to be one of those that you brought? >> yeah, yeah, sure. hillary was a star on the staff. >> what did she do that -- i mean, what -- >> she was a very -- she was very smart, very aggressive. she was a key researcher. dore looked to her and i looked to her. other people looked to her. she was young. 26, 27 years old. she was just out of law school, but she had a very powerful personality, and she was very able. >> do you remember her playing a role in any debate or any -- >> no, not off here. i remember -- i think she worked some on the impeachment, the grounds for impeachment memorandum. she was -- you know, whatever she had to do, you know, she was clearly one of the -- i understand she's famous now and obviously it's so important in our history itself, but even then, even when you move her then, and i think the other staff members would say this too. i don't remember every

26-year-old on the staff, but i remember hillary, and i would have remembered hillary whether her husband became president or not, you know? she was just very good. she's a very good lawyer. a very tough, smart lawyer. whatever assignment she hilary clintons she would perform and would have been relied on, and she would have participated. dore looked to her, and he was good about that. it was comfortable with younger people a little bit. good younger people. she was one. we had a very good staff. >> are there any stories i haven't elicited from you that you would like to record? >> no. i think this is -- no. i haven't thought about it in a long time, so i really didn't sit down and prepare for this and look back at documents, but it was -- it's an event, and i'm very proud to be a part of, and i say history i think has looked upon it favorably. i think we -- on balance we reacted the way we should have acted.

dore did a great job. peter adino did a great job. we had a good staff. the staff is still senior people that certainly still see each other a lot. nobody leaked. nobody wrote books. think of that. think of that. >> 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 3:00 p.m., and mondays at 4:00 a.m. eastern on c-span 3. >> this is c-span 3 with politics and public affairs programming throughout the week and every weekend 48 hours of people and events telling the american story on american history tv. get our schedules and see past programs at our web sites, and you can join in the conversation on social media sites. june 17th marked the 48th anniversary of the watergate break in that remd resulted in

president nixon's resignation. to commemorate the anniversary the chapman university school of law held a symposium about its lasting impact. all this month we're airing highlights. now a 90 minute discussion on watergate's constitutional impact and legacy in the context of recent presidential administrations and subsequent political scandals. >> our second panel is the constitutional significance of watergate, new perspectives, and we are joibd -- we're luckily joined here today by four panelists. our first panelist jay richard is the professor of -- is a professor of law at university of detroit mercy school of law. professor jonathan l.emton also associate dean at case western reserve university. steven m. griffin is a professor at tulane law school, and sierra -- is professor at stetson university college of law. we are joined by professor ronald rotumda from chapman law school. i know dean -- i know dean

campbell has already introduced professor rotunda so for the sake of those that haven't heard his accolades and accomplishments, i will stick to the significant ones which still fit an entire page. ronald rotunda is the d. henry chair and professor of juris prudence here at chapman law school. before teemping he serbed as assistant majority counsel for the watergate committee before joining the chapman faculty, he was professor of law at george mason university and prior to that position he was the albert e. jenner producer at the university of illinois. professor rotunda is a making in a cumlaude at harvard law school where he was a member of the harvard law review. he also clerked for judge walter r. mansfield of the united states court of appeals for the second circuit. professor rotunda is the author of the most widely used core spoken legal ethics and the leading course book in constitutional law which makes him quite possibly the most applicable moderator for this

panel today. we're lucky to have him here at chapman. choefr rotunda has authored more than 300 articles in various law reviews, journals, and newspapers in both the united states and across europe, and as dean campbell mentioned earlier, that makes him as of a few years ago, the 11th most cited professor. in 2009 professor rotunda became a commissioner of the fair political practices commission, a state regulatory agency that acts as california's independent political watchdog. professor rotunda was also nominated by george w. bush to become a member of the privacy and civil liberties on homeland security and governmental affairs. without further ado, i would like to bring up professor rotunda to get our panel started. [ applause ] >> thank you very much. we four wonderful speakers here. they will be cited many the chapman law review, and today they will be giving a short summary of what they're going to talk about. each will talk about 10, 11 minutes, and then we would like

to open it up to you all for questions. our first speaker is professor richard brauton. from 2005 do 2008 he was in the division of the united states department of justice where he received both the service award and the special achievement award. his scholarship focuses on american politics and institutions and the intersection of politics, constitutionalism, and criminal justice. his articles have been cited in all courts and the supreme court on down and, of course, in many law reviews and journals throughout the country. our first speaker, professor brauton. thank you. there are no unique lessons to watergate. it's not as if political scandal or corruption was new to american politics. still, i would suggest that there is something about

watergate that if not different at least am fews our understanding about the institutional forces at work when government officials seek to extend their authority or engage in scandalous or even criminal behavior. it has been said that watergate ushered in an era of skepticism about the competence of government and about generally speaking particularly when combined with the vietnam war the uses of executive power in particular. that skepticism arose in the context of a country where we needed and where we have developed an energetic executive. >> that was the executive privilege. perhaps what watergate accomplished was not really to make the public merely skeptical of the president is he, but rather to affirmatively weaken the presidency. to diminish it. to demystify it.

>> they embraced a kind of pop lichl that is designed to show empathy with voters and assure voters that the candidate can be entrusted with power. an assurance that was made all the more necessary by watergate. a contradiction emerges, or as the modern presidency has become more popu list, the ability to persuade the american people has been emboldened. presidents now regularly go public, and in doing so, they have assumed an ever greater role in swallowing up legislative power and in dictating the content of national legislation. presidential campaigns rarely focus on the formal constitutional powers of the office, but are, instead, devoted to an explanation of a candidate's proposed public agenda.

moreover, public disapproval of congress has reached record lows. even unpopular presidents remain more popular than congress. in a strange sense then post-watergate presidencies in many ways bolder and more pervasive though often in ways that seem at odds with constitutional forms. the presidency is at once stronger and weaker. this is where i would like to focus briefly on these formal constitutional arrangements and i do so in the context of one particular aspect of executive power that arises from the shadows of watergate and the fears of executive power and the imperial presidency and that is the scope of federal prosecutorial power and discretion. the forms of the constitution actually embrace a kind of criminal justice presidency. these are formal powers of presidents and candidates for the presidency talk about very little these days. the presidential power has been recognized as executive power, but the scope of the federal prosecutorial regime is not the

product of presidential -- congress, particularly since watergate, has continued to expand the scope of the federal criminal law, including expanding it for political crimes, and in doing so, congress has created an ever growing menu of options for the federal prosecutor. that menu of options enables federal prosecutors more often to leverage guilty pleas now and the scholars have observed this has given prosecutors tremendous ability to control the scope of the substantive criminal law. well, there are a number of responses to this, but one key is to view the prosecutor as distinct from the executive. that is, the president. in fact, making the justice department independent free of political control has been a constant theme of post watergate

washington. this is in light of the saturday night massacre, of course, resulting many the ethics in government act, the independent council provisions of that law. we see this political independence theme come up from time to time. we saw it in 2007 with regard to the united states attorneys firing scandal and the justice department under president bush. we have seen it recently with the obama justice department. both of which drew the attention of political opposition in congress. now, the theme, i think, is sensible as far as it goes. of course, we don't want politically motivated criminal prosecutions. we don't want prosecutors to exercise their discretion based upon whether the suspect is a republican or a democrat or a political rival. we don't want prosecutors to decline prosecutions merely for political reasons, but beyond this, the vision of an apolitical federal

answered this in post watergate america, but it remains an open question vigorously debated by scholars, particularly after the supreme court's decision in morrison versus olson. i simply suggest that we don't necessarily have to choose between a strong president and a weak congress and a weak president and a strong congress. i think we can have a strong president and congress and i think the formal powers of the political branchs manufacture the role of the federal prosecutor. so in a post watergate world the suggestion of involving the president in the exercise of prosecutorial discretion was thought to roam too far and politicize the justice

department and the notion of impartial criminal justice, but the constitutional presidency leaves a lot of room for presidential influence over the enforcement of criminal law. the president, after all, has commanded to take care that the laws be faithfully executed. he does this, in part, through a system of lawyers through the justice department, including federal prosecutors. he has the sole power to grant pardons and repreviouses, which can be a political act. although some scholars disagree about constitutional history on this, other scholars have offered very compelling reasons. in constitutional history for presidential controls over prosecutors. we see it with regard to the selection priorities. we saw an example of this during president obama's recent state of the union address. okay? moreover, it's something additional to remember that presidential discretion is as much a check as it is something to be checked. the power to decide whether and what charges to bring can function as a way of checking

congress. there are strong arguments for presidential controls over the federal prosecutorial regime, but it would be unwise to overlook the controls that congress can exercise using its own institutional powers, and that can be deeply political. after all, the very creation of criminal law by legislation is a political act. the creation for defining crimes may not be distinctly partisan. any other kind of legislation is motivated by preferences, about good social order and moral deserve, preferences that are subject to dispute among reasonable people. and the story of federal criminal law is a story of expansion. more crimes means more prosecutions, which means more federal resources devoted to the federal prosecutorial power. it means greater overlap with state crimes, so federal prosecutors have this challenge

of having to decide whether to go forward with a federal prosecution. as the menu expands, as more prosecutions are being pursued, historical practice demonstrates that an overwhelming number of cases are going to be resolved by guilty pleas and the finish mom nonis buttressed even more by ever increasing sentencing ranges. okay? prosecutorial discretion is very seldom limited by the courts. now, courts will occasionally step in to police procedural misconduct by the prosecutor or to narrow the scope of substantive laws or strux down laws, but generally speaking, they do not reach prosecutorial discretion. this exeither pressure on political actors. the problem is that congress rarely does so. now, of course, the conventional explanation for this, and i think it's an accurate one, is a political one. that is legislators don't see any political upside in reducing the scope of the federal criminal law or in reducing

punishments. just as congress has institutional tools to empower the prosecutor's office, congress also has institutional powers to constrain it. we see a little built of this occurring right now. congress has shown some interest recently in limiting the scope of federal criminal law. we'll see how that plays out. in a few instances congress has used its substantive law making power to try to restrain the discretion of federal prosecutors moreover, as i have argued elsewhere, i think congress could use its investigative and oversight powers more aggressively in this area. and, finally, congress retains the power of impeachment. one of the important lessons of watergate was that the existing constitutional scheme actually provided a mechanism for dealing with abuses by the nixon white house. so if congress determines that the president is politicizing criminal prosecution in ways that would rise to the level of high crimes and misdemeanors, it

always has the mechanism of impeachment, which is as much a political act as it is a legal one. one response haub to seek to make the justice department completely independent. we have seen numerous proposals from this kind from make it an elected official to giving u.s. attorneys extended terms that would survive the tenure of the president who appoints them. then all these proposals have been consistently rejected and for a good reason. existing constitutional arrangements are adequate to combat prosecutorial decision making if the political branches take seriously the own prerogatives and perhaps not of party but of institution. none of this is to say that criminal law enforcement should be politicized many the party affiliation or private mrekt gain it's the functioning of the

criminal law, and that, if anything, is the real legacy of watergate. institutions robustly asserting their respective prerogatives to prevent encroachments and insure accountability, and that i suggest is a legacy worth preserving as it embodies the american rule of law. thank you. [ applause ] >> associate dean for academic affairs, and the professor of law and political science at case western university. before joining the faculty in 1984 he clerked for justice ruth banter beginsberg and practiced in wash washington d.c., recipient of several teaching awards, former co-editor of the journal of legal education, but most significantly, he helped a man who came within hours of being executed set free.

>> thank you, professor. i should say in that connection that my father was a family doctor who making house calls when he was 80 years old, and that is the one time many my career as a lawyer that i ever felt as though i had anything useful to compare my work to his. let me begin more formally by thanking you, professor rotunda, and everyone here at chapman for putting on this program and also for inviting me to be a small part of it. i want to dovetail with some of the professor's comments. i want to focus on what are the right lessons to learn from watergate with respect to prosecuting a political wrong

doing. the saturday nice massacre, about which we've heard so much, led to efforts to prevent a recurrence, and we've heard some of those efforts cataloged today and last night. ultimately they led to the passage of the independent council provisions of the ethics many government act of 1978. that was amend and renewed periodically until it expired in 1992 because of republican opposition to the work of independent council lawrence walsh in the iran-contra affair. it was reenacted in 1994 in the wake of the white water episode that led to the appointment of kenneth starr as the independent

counsel and the controversy over star's work as independent counsel and it meant that the democrats who were perfectly fine with the walsh investigations suddenly shared the outrage of the republicans. so if there is now my element of bipartisan breemt in washington, it is that independent counsels are a bad thing. n now. >> justice scalia wrote one of his most empassioned disenting opinions in that case and an opinion that a fair mof people seemed to think has been vindicated. i want to suggest that the two lesson that is seem to have been taken from the saturday night

massacre and the ethics act are -- with those that thought that the saturday night massacre demonstrated the need for some sort of standing snugsal mechanism to investigate executive branch wrong doing. this argument focuses on what happened to archibald cox. he got fired. before we feel too sorry for poor archie, let's just remember that the poor man had to go back to the harvard university faculty where he not only was one of the most prominent members of the law school faculty, but he held one of the -- one of harvard's most prestigious university professorships, which is, in fact, the highest honor that my member of the harvard faculty can have. so maybe we should