conclusion that we're going to, you know, this is the object. we're going to seek to impeach the president. we're going to take all necessary steps to achieve it. he just said no, we've got to gather the facts, collect the facts, and we've got to present them to the committee. and maybe we'll present some conclusions at that point. but that will be much later on. he didn't -- he wasn't a firebrand prosecutor. he wasn't a forceful figure. he was a strong figure. he was very strong. but -- and i think that's why from time to time, you know, i butted heads with him a little bit. i wanted to be more aggressive and to do more from time to time. but as i said earlier in this conversation, i think ultimately his approach was correct. he just wanted us to gather the facts and present them to the committee. and then we'll also present some conclusions. and then the committee will have to make a determination what it wants to do. i know when he heard the tapes

al also -- when do we start working. and then we met our ultimate presentations in july, i guess. you know, we had three months. >> i was just wondering if you could -- since i don't know whether we'll be talking with mr. doar, whether you saw an evolution in his thinking. i know his approach was always the same, but whether his thinking was. >> yeah. there was an evolution, i think, in this thinking as i remember back. i think like all of us, he was somewhat uncertain where we would come out in the end. but as time went on, and especially after the tapes came in, whenever they came in, in march when they came in, then it was clear where he thought we should head. it was a eureka thing. it was true for me also. i didn't know where we were in

december or january or february. let's get everything done. and we'll see what we have. we'll see what we have. i mean, yeah. we thought -- obviously, it was enough to start an impeachment proceeding, which was a lot. but the thinking, i think, fairly was evolutionary. partisans on the other side will say we always intended this from day one, but that's not the way i remember it, and i really don't. >> were there any surprises for you when you started collecting the evidence? >> not really. you know, i think by the time the tapes came, we sort of had put enough together to know what happened here. to take confirmation of that fact and a 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. >> 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 destroyed the tapes. >> and you later counseled president clinton. >> yes. president clinton, i don't think, ever intended to tape himself, but i told him there should be no taping. at least of conversations. president clinton ultimately did tape his memories of each day with an historian, taylor branch, who's written a book now called the clinton tapes, but there was no taping to my knowledge of conversations. i wish for history there was. you could hear all my arguments about the independent council. >> you didn't know about the taylor branch tape. >> no. he did that on his own. maybe other people knew. but he did that on his own. and you know, produced a book.

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. you know, it was interesting. i shouldn't say -- that's too strong a way of putting it. i wasn't upset by the pardon. that's a better way of putting it. i don't know if i was in favor of the pardon. 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 understood the pardon thing. the country had been through such a difficult -- as ford said, what really sticks. a national nightmare is now over. pursuing president nixon in criminal charges after the impeachment, after his resignation would have just kept this thing alive in a way i think would have been destructive for the country.

and i think president ford did the right thing in pardoning president nixon. it helped put the thing to rest. the fact that he accepted a pardon, and this is one of the president's problems -- was some sort of acknowledgment of improper conduct on his part. i don't think history has a pardon. you don't have to accept a pardon. do whatever you want to do but don't pardon me. i'm not accepting it. so i thought it was a wise thing to do. obviously, it dealt serious consequences for president ford, probably, and 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 spend all this time, you know. i said, you know, i'm not angry. i'm not angry. it worked. the house -- or the committee

voted to impeach. there was overwhelming support for that resolution, both in the committee and in the -- as this would have been in the house. there was overwhelming support in the senate because the senate is the -- the senators asked him to resign. i said we accomplished and he's no longer president. what's the point in 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 people, friends of mine, disagree with this issue. violated the law, committed crimes, but i didn't believe that. i was happy with the pardon. happy, that's too strong a term. i wasn't -- i understood the pardon. as time went on, more and more i thought it was the right thing for president ford to do. i don't know the other people think about the pardon. >> would hillary have helped you, had you tried the case? was she going to be one of those that you brought with you? >> yeah, sure. hillary was a star on the stand.

>> what did she do? >> she was a very -- she was very smart, very aggressive. she was a key researcher. doar looked to her, i looked to her. she was young. she was 26, 27 years old. she was just out of law school. she had a very powerful personality. and she was very able. >> do you remember her playing a role in any debate or any -- >> no. i remember i think she worked with laverwood on the grounds for impeachment memorandum. whatever she had to do, she was clearly one of the -- i understand she's famous now and obviously so important in our history itself, but even then, we knew her then, and i think the other staff members would say this, too. i don't remember any 26-year-old on the staff. but i remember hillary. i would have remembered hillary

whether he became president or not. she was very good. a very good, tough, smart lawyer. and whatever assignment she had, she would perform, and she would have been relied on. and she would have participated. doar looked to her, and doar was good about that. he was comfortable with younger people a little bit. good younger people. and she was one. and we had a very good staff. >> are there any stories i haven't elicited from you that you'd like to record? >> i don't think so. yo. no. you know, i haven't thought about it in a long time. i really didn't sit down and prepare for this or look back at documents. it's an event, and i'm really proud to be a part of. and i say history, i think, has looked upon it favorably, has looked upon it favorably because i think on balance, we acted the way we should have acted. doar did a great job. peter adino did a great job. we had a good staff.

the staff, senior people 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-span3. you're watching american history tv on c-span3. every weekend, we visit historic sites, museums and college classrooms as leading professors and historians reveal america's past and watch our series on the 150th anniversary of the civil war with debates and interviews about the people and events that shaped an era every saturday at 6:00 and 10:00 p.m. eastern and sunday mornings at 11:00 here on american history tv on c-span3. june 17th marked the 40th anniversary of the watergate

break-in that ultimately resulted in president nixon's resignation. to commemorate the anniversary, the chapman university school of law held a symposium about watergate's lasting impact. all this month we're airing highlights of the symposium. 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 luckily joined here today by four panelists. our first panelist, j. richard braughton, is a professor of law at university of detroit mercy school of law. professor jonathan l. enton also associate dean at case western reserve university. steven m. griffin is a professor at tulane law school. and sierra torres is professor at stetson university college of law. we are joined by professor

ronald rotunda from chapman law school. i know dean campbell has already introduced professor rotunda. so for the sake of brevity and for those who haven't heard his accolades and accomplishments, i will stick to the significant ones which still fit an entire page. ronald is the henley chair and distinguished professor of jurisprudence here at chapman law school. before teaching he servinged as assistant majority council for watergate committee. before that, he was professor of law at george mason university. and prior to that position, he was the albert e. jenner professor at illinois. he is a magna cum laude graduate of harvard college and harvard law school where he was a member of the harvard law review. the professor 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. and we're lucky to have him here. professor rotunda has also authored more than 00 articles and raers reviews, journals and newspapers in both the united states and europe. that makes him, as of a few years ago, the 11th most cited professor. and 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 committee on governmental affairs. without further ado, i'd like to bring up professor rotunda to get our panel started. >> thank you very much, kevin. we have four wonderful speakers here. each of them will be publishing an article in the chapman law review. and today they will only be giving a very short sermon of

what they're going to talk about, each about 10 or 11 minutes. after that we'd like to open it up to questions. our first speaker is professor richard braughton from the university of detroit-mercy from 2005 to 2008, he was in the criminal division of the united states department of justice where he received both ee meritorious service aword and special achievement award. his scholarship focuses on politics and institutions and the intersection of politics, constitutionalism and criminal justice. his articles have been cited in all courts from the supreme court on down and of course many law reviews and journals throughout the country. our first speaker, professor braughton. >> thank you, professor rotunda. perhaps as some have suggested, there are no real lessons that are unique to watergate. after all, 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 amplifies 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. and that skepticism about executive power arose in the context of a country where we needed and where we have developed an energetic executive. indeed from the ashes of watergate emerged an important tool for presidential energy, and that was the executive privilege. but perhaps what watergate accomplished was not merely to make the public merely skeptical of the presidency, but rather to

affirmatively weaken the presidency, to diminish it, to demystify it and then hence further weaken it. presidents and presidential candidates today since watergate have consistently eschewed distance from the governed, embraced a kind of pop yew lymph 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. but a contradiction emerges whereas the modern presidency has become more populist, more wilson i don't know. the president's ability has actually been emboldened. presidents regularly go public. in doing so, they've swallowed 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. popular leadership through

political rhetoric has displaced concerns about formal powers and institutional arrangements. moreover, public disapproval of congress has reached record lows. even unpopular presidents remain more popular than congress. in a strange sense, then, post-watergate presidency is 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. and 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 in the shadows of watergate and the fears of executive power in 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. but these are formal powers that presidents and candidates for the presidency talk about very little these days. generally speaking, prosecutorial power is and has been recognized as executive power. but the scope of the federal

prosecutorial regime is not the product of presidential ago ran diesment. 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. how can this happen? how have federal prosecutors become so powerful, particularly in a post-watergate world that was supposed to be so solicitous of limits on executive power? 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 in the ethics in government act, council provisions of that law. we see this political independence theme come up from time to time. we saw it it in 2007 with regard to the united states firing scandal in the justice department under president bush. we've seen it recently with regard to 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. that is 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 criminal enforcement regime is clouded for there are many ways in which

politics and political considerations affect the role, scope and function of the prosecutor. we often hear about the criminalization of politics. but i'm also interested in the politics of criminalization, or to be more precise, the politics of lawmaking and prosecution. so perhaps the ultimate question is about who really controls the exercise of prosecutorial power. one would have thought that we would have answered this question definitively 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 -- we could have a strong president and congress, and i think the formal powers of the political branches inform the role of the federal prosecutor. so in a post-watergate world, the suggestion of involving the president in the exercise of

prosecutorial discretion is thought to roam too far in politicizing 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 is commanded to take care of the laws to be faithfully executed. he does this through a system of lawyers at the justice department including federal prosecutors. he has the sole power to grant pardons and reprieves which can be a political act. and although some scholars disagree with constitutional history on this, other scholars offer very compelling reasons. inconstitutional history for presidential controls over prosecutors. we see it particularly in the the justice department with regard to the selection of enforcement priorities. in fact, we saw an example of this during president obama's recent state of the union address. moreover, it's something additional to remember that prosecutorial 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. a congress that may have drafted criminal legislation poorly or unconstitutionally or overzealously. so 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 also be deeply political. after all, the very creation of criminal law by legislation is a political act. now, the motivations for creating and defining crimes may not be distinctly partisan, but criminal legislation, as much as any other kind of legislation, is motivated by preferences about good social order and moral desert, preferences often 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. and 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 phenomenon is buttressed even more by ever-increasing sentencing ranges. okay. and prosecutorial discretion is very seldom limited by the courts. now, courts will occasionally step into police procedural misconduct by the prosecutor or to narrow the scope of substantive laws or strike down laws. but generally speaking, they do not reach prosecutorial discretion. so this arrangement exerts 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. but just as congress has institutional tools to empower the prosecutor's office, congress also has institutional powers to constrain it. we see a little bit 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 lawmaking power to try to restrain the discretion of federal prosecutors. congress has suggestionfully asserted its prerogatives in some instances. moreover as i've 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 impact as it is a legal one. now, of course, one response to this has been to give control neither to congress nor the president, but to seek to make the justice department completely politically independent. we've seen numerous proposals of this kind from making the attorney general an independent elected official, to giving u.s. attorneys extended terms that would survive the tenure of the president who appoints them, and yet all of these proposals have been consistently rejected. and for a good reason. existing constitutional arrangements are adequate to combat improprieties and decision-making if the political branches take seriously the assertion of their own prerogatives on behalf of not of party but of institution. now, none of this is to say that criminal law endorsement should be politicized in the sense of permitting party affiliation or private political gain to

animate the enforcement of the criminal law. but it does establish -- the constitution does establish a workable system where it affects the functions of the criminal law. and that is the real legacy of watergate, institutions preventing encroachments and assuring accountable and that is a legacy worth observing as it embodies the american rule of law. thank you. >> thank you very much. our speaker is jonathan enton who is also associate dean for academic affairs and professor of law and political science at case western university. before joining the faculty in 1994, he clerked for justice ruth bader ginsburg. he practiced in washington, d.c., recipient of several teaching awards, a former co-editor of the journal of legal education, but most significantly, he helped to man

who came within hours of executing set free. >> thank you, professor rotunda. i should say in that connection that my father was a family doctor who was making house calls when he was 80 years old. that is the one time in 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 professor broughton's comments. i want to focus on what are the right lessons to learn from

watergate with respect to prosecuting political wrongdoing? 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 those efforts led to the passage of the independent council provisions of the ethics and government act of 1978. that statute was amended 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 was reenacted in 1994 in the wake of the whitewater episode that led to

the appointment of kenneth starr as the independent counsel in the controversy over starr's work as independent counsel meant that the democrats who were perfectly fine with the walsh investigations suddenly shared the outrage over the republicans. and so if there's now any element of bipartisan agreement in washington, it is that independent counsels are a bad thing. now, we know that the supreme court upheld the independent counsel law in morris against olson. and we also know, i think, that justice scalia wrote one of his most impassioned dissenting opinions in that case, an opinion that a fair number of people seem to think has been vindicated by subsequent events. now, i guess i want to suggest that the two lessons that seem

to have been taken from the saturday night massacre and the ethics act are if not wrong, at least incomplete. let's begin with those who thought that the saturday night massacre demonstrated the need for so short of standing institutional mechanism to investigate executive branch wrongdoing. 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 any member of the harvard faculty ca