think about what happened to richard nixon as a result of the saturday night massacre, which is to say and we've heard this account during the conference, but within days president nixon was forced abbing wee eswho litigated all the way to the supreme court entors the subpoena for white house tapes, which led to the release of the june 23rd tape. the so-called smoking gun tape that led to nixon's departure. it's not clear what the saturday night massacre dlaeted to the system. indeed, as the professor and others have suggested, perhaps the lesson of the saturday night massacre is that the political process many really serious circumstances is at least up to

the task of dealing with these problems. now, admittedly, there is some question about, as mr. armstrong indicated this morning, there's some question as to exactly how much of the story we got, but it's not clear that we would have gotten any more of the story if we had an independent counsel to do the work. let's go to the other side of the situation. i don't mean to single justice scalia out, but he wrote a really sustained attack on the independent counsel law, and the basic argument is that this law was unconstitutional because it allowed judges rather than the president to appoint the independent counsel and not only barred the president from removing the independent

counsel, but also grounds in which any independent counsel could use for removing an independent counsel. this is the essence of justice scalia's disent, so let's focus on one interesting aspect of that dissent. in the course of lamenting the demise of what justice scalia called our former constitutional system, he cited watergate as an example of a more acceptable arrangement. hoos that the political branches could deal with wrong doing, but if you look carefully at that example, there might be questions about whether justice scalia or the other critics might be entirely satisfied.

but the independent counsel was subject to remooul for cause, to remove for cause by the attorney general. an executive branch official who is directly accountable to the attorney general. or to the president. look at the regulation that reon jawarski's office. it says that the special prosecutor would be removed -- could be removed only for extraordinary improprieties and then only if the president consulted with and received consensus agreement from the majority and minority leaders in both houses of congress and the chair and ranking minority

member of the judiciary committee of both houses of congress. now, if you do, no law whatsoever and semplly compare those provisions. you might think what's so bad about the independent counsel law? if you do know some law, you might think, wait a minute, this sounds suspiciously like the postmaster statute that was declared unconstitutional in 1926 in buyers against the united states. >> it was even more problematic in myers' term, because the president had to persuade the senate as a body to go along with removal of postmasters.

those of you will understand that this looks suspiciously like the legislative veto that the court found problematic. now, let me make one more point about this. president nixon made a lot of arguments about executive power in the watergate tapes case. he did not make this argument. if you read nixon's brief, you see that they cite myers. many of the, they even quote myers. immediately following the quotation the brief says, well, of course, we're citing this for some general principle because the specific holding of myers has absolutely nothing to do

with this case. nixon was no slouch as a lawyer. his lawyers were no slouches. i think there is some good legal and intellectual history here. the other thing that is worth noting is that there is a much more powerful argument in favor of the constitutionality of the ethics act than chief justice rehnquist made in morrison against olson. the editors will have to read that when i submit the manu script. the bottom line that we should take away from this is that if we think that there are problems with the way the ethics act unfolded, we ought to have those

arguments on the basis of pragmatic policy considerations. there was monthing perfect about the special prosecutor in watergate. nothing that was so fatally flawed or so much worse under the ethics act. if we think that the ethics act was misconceived we should make that argument on policy grounds. the ultimate lesson, i think, is that it's really hard to design institutions. we ought to take these less -- the constitutional terms that were in the pragmatic approach that i think we have perhaps lost many our public discourse more recently. thank you. [ applause smchlt [. >> thank you very much. there is another case that came after that in the grand -- the

supreme court said it was unconstitutional for congress to have a role in the removal of executive branch -- of -- >> that's right. there's plenty of doctrine here. >> and there's -- i think that provision of the law -- of the regulation was unconstitutional, but nobody argued it at the time. our next speaker is professor torres spellacy from -- she teaches courses in election law and constitutional law. prior to joining the faculty she was counsel for the democracy program of the brendan center for justice. i get their emails about once a week keeping me up with judicial ethics issues. shfrs a former staffer for richard durbin. illinois is my home state, and jim rubenov is related. i guess his mother is a durbin. it's a small, small world.

>> i teach constitutional law at stetson. i work on the intersection between campaign finance law and corporate law. >> we are in the midst since citizens united, and that raises for me the risk of a second watergate. in 2012 an individual can't write a $200,000 check directly to an individual candidate, which would -- they could have done in the 1972 election. on the other hand, corporate money in this election is -- has a freer hand than it did in the

1972 election. back in 1972, corporate expenditures were illegal. that didn't stop them from happening, but now they are perfectly legal, and they could have a huge impact on this election and future elections. one of the links i see between watergate and the present day is that the scope of the reforms has to match the scope of the problem. what dow mean when i say watergate? the word watergate itself is

like a test. for some it's the building. for some it's the burglary. for some it's the senate investigation. for some it's nixon's resignation. what watergate means to me is the risk of money and politics. some really stunning examples of quid pro quo corruption. now, in modern campaign finance debates it was treated that it's mythical. it's like a union corn or a mermaid. it doesn't really actually exist. it is exceedingly rare to catch a politician's hand in the cookie jar. the blagojevich tapes where you actually hear a governor shaking down contributeors is exceedingly rare, but the watergate experience and the

nixon tapes are similarly revealing, and they actually show real quid pro quo corruption, including the selling of ambassadorships as well as illegal campaign contributions. so i just -- as someone who was not alive during watergate, i was born after watergate, whenever i research this, you know, my hair starts to curl, and can you see the result now. some of the iceberg tips showing what was wrong in the nixon administration was actually known before the 1972 election. if you look he side here, this is an ad from mcgovern's campaign. >> this is about the government. this is about credibility. this is about elections.

this is about bugging. this is about spying. this is about they'very. this is about espionage. this is about lying. this is about payoffs. this is about contradictions. this is about special deals. this is about false fiction. this is about testimony. this is about wheat fields. this is about hiding. this is about dishonesty. this is about sabotage. this is about secrecy. this is about hidden funds. this is about stealing. this is about deception. this is about the white house. this is how you spell it. with your vote. >> and then can you go to the next tab? this is the map of the election. it was a landslide for nixon. it wasn't going to be the voters

who got nixon out of office. we needed checks and balances. we needed a congress investigating. we needed a judiciary who would say even the president is not above the law. one of the details that came out of the watergate investigation was the selling of ambassadorships. president nixon asked contributeors. he said if you want an ambassadorship, i want a quarter of a million dollars. one that you find is the following. in the 1974 statement by nixon,

he says ambassadorships have not been for sale. but the very same day mr. comebeck is convicted for selling ambassadorships. if you look at the donations of some of the nixon appointes, the ambassador to great britain had given a quarter of a million dollars. the ambassador to looks emberg had given 300,000 dollars. one of our ambassadors to france had given $300,000 to the nixon campaign. all told, $1.8 million was attributable to 31 of his ambassadors, and then another $3 million was attributable to six people who were apspiring to be ambassadors. the selling of manships was also mentioned in oral arguments the supreme court in the buckley case. hopefully this will work.

>> campaign contributions, the gifts for people and the ambassadors, the campaigns, specific contributions and connections, but participate in favorable actions and large number of corporate officials who were convicted and many of them pleaded guilty to illegal campaign contributions. and it's the vast increase in the course. >> so that's from the buckley oral argument, and that's one of the government's lawyers talking to the justices as if we all know the problem of watergate and money and politics. what's interesting is once you get the actual buckley opinion,

there's no mention of selling the ambassadorships and for younger lawyers whose entry into learning about this is often reading the buckley case. it's a fact of history that just has fallen away, so the people in the room knew it was going on, but as generations have gone by, you have to rediscover the ambassadorships that were sold. >> they solicited corporate contributions at a time when corporate contributions were illegal. they were illegal then as they are now under the tillman act of 1907. some of the corporate executives who testified during watergate indicated they did that to avoid retaliation from the nixon

administration. it was seen as a calling card so he could get his calls returned in -- from washington. george spader of american airlines said he feared being at a competitive disadvantage if he didn't give. in the end wild ended up giving $100,000 of corporate money and then later pled guilty for violating the campaign finance laws. the milk producers pledged in exchange for supports, and the way one person has put this is the milk producers paid $2 million medical record to cost the american consumer $100

million. on the nixon tapes you can hear ehrlichman say we better go out and buy some milk before the price goes up, and then there's laughter on the tapes. the head of milk producers ended up going to jail and so did one of their lobbyists. because of nixon's pardon, we will never know how deeply involved he was actually involved in all of these things. the special prosecutor had ten separate matters open. you don't know exactly how involved nixon was. i mean, for shareholders of the public companies involved, it was deeply disturbing that they were breaking the law and giving this money to the presidential campaign. one of the things that strikes me when you look at the

companies that were embroiled in watergate, it's that they were marquee names. it was good year, gulf phillips, greyhound, names. it wasn't money given by a rogue employee. it was a governmental relations person or head of the corporation that gave the money. so, i think post citizens united, we need, in the same way post watergate, we needed reforms of both the campaign finance laws, but also the securities laws. thank you. [ applause ] >> thank you very much. when we read about all this corruption, which goes on probably right now, economists have done studies and surprising how much they get for -- they get a lot of bang for their buck.

cara said, what, $2 million for a $100 million payback. they're surprised campaigns aren't more expensive. how do we do so well? they say god protects fools, children and the united states of america. maybe that's why. the next speaker is professor steven griffin, junior professor of constitutional law of tulane. part of a larger project, tentatively titled "long wars and the constitution from t ruchtruman to obama." princeton university press published his book "american constitutionalism:from theory toy politics in 1996" and in 2002 he received the felix frankford distinguished teaching award from the graduating class. steven, welcome. >> thank you very much. and i certainly echo, jonathan, the other speakers by saying

professor rotunda and the law review have put on a great symposium. this is a great idea and i'm glad it's been so professionally executed. watergate is often thought of as a domestic crisis, essentially involving president nixon's efforts to undermine his political opponents. legal scholars have not been as familiar with the substantial evidence that the origins of much of what we call watergate line lye in the conduct of foreign policy by both the johnson and nixon administrations. so, my talk today is going to be what you might call understanding warunderstand ing watergate as foreign policy and looking at watergate after the disclosures happened. historians of the vietnam war, there was a link between the domestic operations used to counter the war's critics in watergate. in this respect there's a case to be made that this symposium should have been held in 2011, which is the 40th anniversary of the white house ordered break-in

of the office of psychiatrist. but i won't be particular. 2012 is good, too. i discussed watergate in the article i'm going to submit to the journal in the crisis of what i have called the cold war constitutional order. the premises of this order gave them the responsibility to respond if necessary to communistic expansion and president johnson was an heir to that legacy. when the war didn't go as expected, the presidency became a cockpit of frustration. the strains of war led johnson and his successor, richard nixon, to a fixation of internal security. agencies built up during the post-war period. post world war ii, that is. and used it inward against americans. this was certainly one of the key origins of watergate. that, i think, would not be disagreed with by any of the historians that have looked at watergate in detail. under the strains of the war,

the johnson's administrations attitude toward critics took a hard set. by early 1966, only months after the johnson administration had made the key decisions to escalate the war, lbj thought that senate critics, such as senator fullbright, were under communistic influence. the downside of the cold war had returned with a vengeance. fbi director j. edgar hoover encouraged lbj in his belief that critics of the war were subversives. the fbi, the cia, the nsa as well as the army -- the army developed covert domestic programs to monitor disrupting to the war. the anti-war movement, they believed, was inspired by agents of international communism. when careful investigation by the intelligence agency showed this to be false they, in effect, ordered the agencies to

prove the relationship. how did these strains of war affect nixon in particular? when he took office, there were still well over 500,000 u.s. troops in vietnam with combat action continuing at a high tempo, particularly in 1969. nixon rejected the option of a quick withdrawal in favor of a strategy that had several elements in pursuit of his overall goal of peace with honor, basically negotiated a settlement with north vietnam. sooner than nixon anticipated, his strategy involved him in new responses, as north vietnam continued to exert significant pressure, especially using its sanctuaries in cambodia, nonetheless a neutral company. the reaction of the anti-war movement in the public was generally always a concern. so when nixon decided to bomb cambodia early in 1969, his first year in office, let's keep in mind, he determined it would have to be conducted in secret. something that was difficult to do with a major military operation. when news of the operation leaked, nixon was upset and

ordered hoover to wiretap the phones of administration aides and journalists. major protests were scheduled for fall 1969. at roughly the same moment, he was considering duck hook, a major strike to force north vietnam to settle the war on u.s. terms. nixon knew that this expansion would require unusual mental resolve on his part, hardline attitude. this was dropped but the idea of decisive intervention to solve the war militarily remained in nixon's mind. at the siem time, he appreciated that the war was now his responsibility, taking control of the war amid hostile domestic opposition would mean going on the offensive both abroad and at home. now we're 1970. nixon plans to order u.s. troops to invade border regions in cambodia to eliminate the sanctuaries. as was characteristic of all his strategies, this was all planned in secret. he shared his plans with very few people, except kissinger, his national security adviser. he could not see how much crisis

management the invasion would impose on his administration. universities shut down in protest and several of kissinger's aides resigned. under considerable pressure, there's a lot of evidence that nixon began to act erratically. the invasion of cambodia was perceived, not without cause, as a major expansion of war. backlash and protests as a result of the invasion was the turning point that gave significant credibility and impotus to efforts. it was at this moment, amid the super heated atmosphere that nixon called the chiefs to chastise them for not acting more exquisitely against the nation's domestic enemies. it would be appropriate to raise this issue against foreign enemies, as the relationship between fbi and cia has caused

some strain. something we heard again after 9/11, didn't we? the solution to the lack of cooperation that nixon saw among the intelligence agencies was later known as the hosten plan. after the white house aide who wrote it at nixon's direction. the plan called for the centralization of domestic intelligence activities inside the white house and involved aggressive illegal measures, such as break-ins, to combat domestic protests. when hoover objected -- that's fbi j. edgar hoover objecting. don't know if that made it into the clint eastwood movie. he objected to this, disclosure of illegal activities and discrediting of the fbi, the plan was formally abandoned. imformally, however, these options continued to percolate at the white house. if the intelligence agencies would not take suitable action, the white house itself would go operational and conduct illegal break-ins and wire taps in

pursuit of information that would discredit its political enemies. so this was, therefore, clearly a principle origin of what later became to be called watergate. the diplomatic efforts that were ongoing in vietnam meant that nixon and kissinger prefer aid wall of secrecy around their efforts. it was all the worse if a breach occurred and could be traced to someone that was part of the anti-war movement, a movement that was inspired by communists and terrorists. now we're up to 1971, june. to daniel elsburg's leaking of the pentagon papers to major newspapers, including "the new york times." ordered by robert mcnamara during the johnson administration. nixon ordered his aides to destroy elsburg's credibility and, by extension, the credibility the anti-war movement in the eyes of the public. they ped