so maybe we should come back and think about what happened to richard mixon as a result of the saturday night massacre, which is to say -- we've heard this account during the conference. within days, president nixon was forced to acquiesce in the appointment of yet another special prosecutor, leon jaworski, who successfully litigated all the way to the supreme court to enforce the subpoena for the white house tapes which led to the release of the june 23rd tape, the so-called smoking gun tape that led intellectably to nixon's departure from office. so it's not clear that the saturday night massacre demonstrated the failings of the system. indeed, as professor broughton and others have suggested, perhaps the lesson of the saturday night massacre is that the political process in 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 had an independent counsel to do the work. now, let's look on the other side of the situation. people like justice scalia, and i don't mean to single him out for special emphasis here, you because he has plenty of company, but he wrote a really sustained attack on the constitutionality of 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 limited the grounds on which any executive branch official, in this instance the attorney general, could use for removing an independent counsel. as i said, this is the essence of justice scalia's dissent. so let's focus on one interesting aspect of that dissent. in the course of lamenting the demise of what justice scalia called our formal constitutional system, he -- could deal with wrongdoing. but if you look carefully at that example, there might be questions about whether justice scalia or the other critics might be entirely satisfied. it's true that the special prosecutor was not barred for

all practical purposes from dealing with the attorney general, as the independent counsel was under the ethics act. but -- but -- the independent counsel was subject to removal for cause, removal for cause by the attorney general. an executive branch official who is directly accountable to the attorney general, to the president. look at the regulation that set up leon jaworski's office which 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 know law whatsoever, and simply compared those provisions, you might think, what's so bad about the independent counsel law? but 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 myers against the united states. if anything, this regulation is even more problematic in myers' terms because in myers, the president had to persuade the senate as a body to go along with removal of postmasters. whereas under this regulation, the president has to get eight

members of congress. now, they're eight important members, but those of you who have looked at ins against chada will understand that this looks suspiciously like the sort of 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. what's remarkable about this fact is that if you read nixon's brief, you will see that they cite myers. in fact, 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. now, if i had more time, i would run the argument out a little further. i'd like -- i think we might ask why is it that nixon didn't make this argument. nixon was no slouch as a lawyer. his lawyers were no slouches. there, i think, is some good legal and intellectual history here. the other thing 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 manuscript. 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 nothing 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. that we ought to take these less doctrinal constitutional terms and more in the kind of pragmatic approach that i think we have perhaps lost in our public discourse more recently. thank you. >> thank you very much. actually, there's another case

that came after that. in the graham rundman act where the supreme court said it was unconstitutional for congress to have a role in the removal of executive branch. >> that's right. there's plenty of doctrine here. >> and the others -- i think that provision of the law of the regulation was unconstitutional. but nobody argued it at the time. our next speaker is professor kiari torres from stetson university college of law. she teaches courses in election law and constitutional law. prior to joining the fact up, he was counsel for the democracy center. she was an associate porter and former staffer for senator richard durbin. in fact, from illinois, my home state, and jim robinoff is related -- i guess his mother is a durbin. so it's a small world.

>> good afternoon. my name is ciara torres-spelliscy. i work on finance law and corporate law. and i wanted to thank chapman for having me back. the last time i was here, i was talking about citizens united. and i'll touch on a few of those same themes today. we are in the midst of the first presidential election since citizens united. and that raises, for me, the risk of a second watergate. now, in 2012, an individual can't write $100,000 check directly to a presidential candidate which they could have done in the '72 election. on the other hand, corporate money in this election has a

freer hand than it did in the 1972 election. back in '72, corporate political 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 that i see between watergate and the present day is that the scope of the reforms has to match the scope of the problem. after watergate, we got the federal election campaign act of 1974 as well as the foreign corrupt practices act. today, i think post citizens united similarly, we need both strong campaign finance reforms as well as security laws reforms. so what do i mean when i say

watergate? the word watergate itself i think is like a rorschach 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. but as a campaign finance advocate, what watergate means to me is the risk of money in politics. and some really stunning examples of quid pro quo corruption. now, in modern campaign finance debates, quid pro quo corruption is treated as if it were as rare as a blue moon or even worse. that it is somehow mythical that it's like a unicorn or a mermaid. it doesn't actually exist. and it is exceedingly rare to catch a politician's hand in the cookie jar. the blagojevich tapes where you actually hear a sitting governor shaking down contributors 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 as someone who was not alive during watergate, i was born after watergate, whenever i research this, my hair starts to curl. and you can see the result now. and one of the things that i find really remarkable is that some of the iceberg tips showing what was wrong in the nixon administration was actually known before the 1972 election. and so if you'll look at the side here, this is an ad from mcgovern's campaign. >> this is about the government.

this is about credibility. this is about electronics. this is about bugging. this is about spying. this is about thievery, espionage, bribing, contradiction, this is about special deals. this is about falsification. this is about testimony. this is about deals. this is about hiding. this is about dishonesty. this is about sabotage. this is about secrecy. this is about stealing. this is about hidden funds. this is about deception. this is about the white house. and this is going to stop it with your vote. >> and then can you go to the next tab? and this is the electoral map of the '72 election. it was a landslide for richard

nixon. so 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. so one of the sordid details that came out of the watergate investigation was the selling of ambassadorships. and president nixon asked contributors -- he said, if you want an ambassadorship, i want a quarter of a million dollars. and one of the juxtapositions that you find in the final senate select committee is the following. so in a 1974 statement by nixon,

he says, ambassadorships have not been for sale. but the very same day, mr. comback is convicted for selling ambassadorships. and when you look at the donations of some of the nixon appointees, the ambassador to great britain had given a quarter of a million dollars. the ambassador to luxembourg had given $300,000. 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 aspiring to be ambassadors. and the selling of ambassadorships was also mentioned in -- at oral argument before the supreme court in the

buckley case. and hopefully this will work. >> 1972 campaign. there's no need to go into any detail of that sorry and sordid story. it's set out in the record. it's a matter of public knowledge. the huge campaign contributions, the gifts from people who wanted to be ambassadors, the campaigns, specific large contributions in connection with anticipated favorable government actions such as the milk producers, a large number of corporate officials who were convicted and pleaded guilty to illegal campaign contributions and the evidence that developed of the vast increase -- >> 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.

but what's interesting is once you get the actual buckley opinion, there's no mention of selling the ambassadorships. 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 that ambassadorships were sold. the other thing that creeped in, the committee to impeach the president, it was at a time when corporate contributions were illegal. they were illegal then as they are now under the tillman act of 1907. and some of the corporate executives who testified during watergate indicated that they

did that to avoid retaliation from the nixon administration. gulf oil's claude wild said he gave in order to avoid being on a blacklist. ashland oil's orrin atkins said it was seen as a calling card so that he could get his calls returned 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 famously pledged $2 million in exchange for price supports. and the way one person has put this is the milk producers paid $2 million in order to cost the

american consumer $100 million. on the nixon tapes, you can hear ehrlichman say, we'd better go out and buy some milk before the price goes up. and then there's laughter on the tapes. and so the head of the milk producers ended up going to jail, and so did one of their lobbyists. and 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 when he was let go. and so we 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 is that they were companies that were embroiled in watergate, it's that they were marking names. it was goodyear, gulf phillips, greyhound, 3m, carnation, and it wasn't money given by a rogue employee. it was the governmental 01:02:37 relations person that gave the money or the head of the corporation that gave the money. 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 truman to obama." he's published over 30 articles. princeton university press published his book "american constitutionalism: from theory to politics in 1996" and in 2002 he received the felix frankford distinguished teaching award from the graduating class. steven, welcome. [ applause ] >> 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 lie 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 watergate as foreign policy and looking at watergate after the disclosures happened. it's long been appreciated by 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 the psychiatrist in los angeles. but i won't be particular. 2012 is good, too. i discussed watergate in the article i'm going to submit to the journal as a 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 fulbright, were under communistic influence. the ideological and domestic 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. and operated from the worst motives. all the major intelligence agencies, the fbi, the cia, the nsa as well as the army developed covert domestic intelligence programs aimed to monitor at disrupting the opposition to the war. president johnson and nixon believed the anti-war movement was inspired by agents of

international communism. 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 military responses as north vietnam continued to exert significant pressure, especially by using its sanctuaries in cambodia, which nonetheless was 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 nixon 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, hard-line attitude. this operation was dropped but the idea of decisive intervention to solve the war militarily remained in nixon's mind. at the same 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 foresee 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. by members of congress and the anti-war movement. the backlash and protest as a result of the invasion was the turning point that gave significant credibility and impetus to efforts already under way to curb the war making power of the executive branch. in many respects we owe the war resolution to cambodia. 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? it's been going on for decades. like johnson nixon was convinced that the anti-war movement was led and inspired by communist agents. 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 -- fbi that's 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. informally, 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. the administration had a severe reaction. now we're up to 1971, june. to daniel ellsberg's leaking of the pentagon papers to major newspapers, including "the new york times." the papers were a secret dod study ordered by robert mcnamara during the johnson administration. nixon ordered his aides to destroy ellsberg's credibility and, by extension, the credibility the anti-war movement in the eyes of the public.