unbelievable nixon and his aides planned to dig up information on ellsberg and the johnson administration by committing illegal break-insurance. i don't believe we've had a quote from the tapes at this point in the symposium. i was going to give you a quote from "abusive power," san cutler's book. nixon is talking about how the young lawyers on his team don't have the proper attitude toward discrediting ellsberg. quote, these kids don't understand. they have no understanding of politics. john mitchell is that way. john is always worried about, is it technically correct? did you think, for christ sake, that the "new york times" is worried about all the legal niceties? those sons of bitches are killing me. thank god i leak to the press -- referring to the hiss controversy in the 1950s. this is what we've got to get. i want you to shake these -- it's unintelligible up in here. now you do that. get them off their goddamn dead asses. say this isn't what you should be talking about. we're up against an enemy,

a conspiracy. they're using any means. we are going to use any means. is that clear? i hope it's clear to all of you. because that's the end quote. the special investigative unit, commonly known as the plumbers were elected to carry out these break-ins. one was carried out in 1971. once this happened, nixon and his men were ensnared in a criminal conspiracy. everyone involved in the ellsberg break-in knew something which could be of mortal danger to nixon and his top aides at the white house, because nixon had literally talked about the ellsberg raid with other people and while the tapes were running. when the burglary at the watergate complex was discovered in june 1972, nixon arguably had to lead a cover-up of this operation, which he did not necessarily directly order. in part, to ensure that the links between the ellsberg and watergate burglaries would not be discovered. how am i doing on time? okay. i'll make one more point.

these operations, as you've heard -- and jill is really good on this last night. carried out by e. howard hunt, who retired from the cia. nixon and his aides believed that hunt could be relied on, but he needed other people to help him. where did he get them? hunt turned to cubans, who had been trained by the cia to commit acts of sabotage against castro. many of these same people were involved in the 1972 break-in, that had been involved in the 1971. after the watergate burglars were arrested, the leading idea among nixon's men was to quash the fbi investigation, claiming that watergate was a cia operation, having to do with the bay of pigs. nixon was later convicted in the court of public opinion by the disclosure of a june 23rd, 1972 tape in which he ordered his chief of staff, haldeman, to order the cia to carry out this plan. cia director helms and his deputy were kind of puzzled and confident that watergate had nothing to do with the bay of pigs and resisted these overtures.

there's an important sense, however, in which watergate did relate to the bay of pigs and the cold war in general, which is one of my big themes. the break-ins might have been kind of amateurist, but nonetheless required certain discipline, training and equipment. they would not be ordinary criminals. that would leave the administration too vulnerable to involvement with unpredictable characters. the eisenhower and kennedy administrations invested in significant resources in training a convert army of operatives against castro. after the bay of pigs failed these operatives were based in the miami area. now, in this respect, the cold war efforts against castro, efforts led by the kennedy administration became braided together with nixon's efforts to destroy domestic opposition to his war policies. in a very dangerous way. it's likely the break-ins could not have occurred had these operatives, accustomed to living above the law, had not been available to the administration. i don't want to make a case, you

know, that watergate is a joint kennedy/nixon enterprise. that would get too many people upset at me. but what i want to tell you is that the forces that were set in motion by the cold war put the united states government in some very dangerous situations, and one of them, arguably, was watergate. thanks very much. [ applause ] >> thank you very much. we're going to continue until a few minutes before 3:00, then we'll have two more panels after this one. we don't want to impinge on their time. we'll open it up to questions, if anyone on the panel wants to ask a question of another or anyone in the audience. please feel free. they really just scratched the surface of what they're writing about. >> have the mic. well, we want to get it on the record.

everything is being taped. but you know about it. >> for mr. griffin, your remarks regarding the cold war, the taxes from the cold war being turned internally, obviously ring very pertinent, given the war on terror today. drone strikes on american citizens abroad, extraditions to foreign countries, the patriot act and all of this. do you feel that we are headed towards the same kind of another watergate within the next decade or so, given all of this -- all of these extreme measures being used that had been used against al qaeda seemingly being turned inward against american citizens now, drones being used by police officers, some of the heavy-handed tactics against the occupy protesters perhaps. do you feel that the same collusion of forces are coming to a head to bring the same results as they did after the cold war in vietnam? >> wow, what a question.

i don't feel very comfortable predicting the future. some people, after all, think a kind of watergate did occur in the bush two administration and wasn't prosecuted. but the political elements that were part of watergate, domestic political elements, nixon taking on his political enemies in a very harmful way, those have really not recurred. i think nixon set such a terrible example that that's one of the reasons that no one has ever thought of that. your argument is talking about something that is actually much more serious, targeting american citizens and suggesting it might be done domestically. on the whole, the bush two administration and the obama administration have been pretty careful to try to not introduce too much into our domestic environment that they're doing abroad. they're doing stuff abroad that we might have questions about, might even be directed against u.s. citizens, but it is abroad. or it's going on in guantanamo. it makes it hard for the

american people to think that, you know, they're being affected or oppressed by it in some way. so, i think they've still tried to obey -- although the line is shifting and under attack between -- that there's a clear line between foreign and domestic. nonetheless, the administrations have been very aware, at some level, that they don't want to cross that line. but now whether we'll see the use of drones domestically, you know, like on -- i don't know, drug raids, i just wouldn't know. >> well, actually, they are using drones. but to be optimistic, it's not to kill people. it's to get information. and particularly of the war against -- the never-ending war against drugs. so, that's a note of optimism. they're not using drones like we are in afghanistan. i suppose a note of pessimism is we really don't know, do we, if some of the nixon-type tactics are happening today. nixon would target people for audits.

that came out because of the watergate subpoenas. nixon had an enemies list. the watergate committee discovered that as well because of the subpoenas. we don't know if that's going on now. we know people are audited. we don't know if it's audited for bad reasons. we always have to be diligent. i'm not saying that somebody is doing this. i'm just saying that if there are tax audits for political reasons, we don't know. and we get lucky once in a while and discover, i think -- we always have to be vigilant. jill? >> sir, following up on something you just said, professor rotunda, for professor brautman. when you were talking about the appropriate line between using a political point of view in prosecutions, i would like you to carry that on. it seems to me that in certain areas, like anti-trust or civil

rights, there is, when you elect a president, you elect his political point of view of those kinds of prosecutions. and that that would be a legitimate use of politics in prosecutions. >> yeah, absolutely. i mean, this is what i meant when i referred briefly to, you know, enforcement priorities. because, you know, there are offices in the doj whose specific job it is to carry out the enforcement priorities set by the white house or by the president. and i mentioned president obama's state of the union address earlier this week. recall that he said that he was going to ask attorney general holder to create this new unit of prosecutors to prosecute or to investigate the mortgage lending practices. because one of the major criticisms was that nobody associated with the mortgage lending scandal has been prosecuted up to this point. so, i guess one thing that i

would ask is now that the president has made that enforcement priority and actually stated it in the state of the union address, anybody want to take any bets on whether any indictments are going to come down over the course of the next, you know, year or so? i don't know. i think that's where we see it. we see it in, you know, offices at doj like what's called the office of legal policy, which works, you know, with folks on the hill in terms of getting legislation. usually that legislation is a product of enforcement priorities that have funneled down from the white house. and even something like the principles of federal prosecution in the united states attorney's manual contemplates situations that are going to be affected by enforcement priorities set by the president. so, i think those are all examples of how the political viewpoint of the president and political considerations that the president brings to the office with him can affect prosecutorial decision making.

>> i'm fascinated by this notion of whether there's a political motivation or whether it's just a kind of institutional prosecutorial creep that occurs. we see now much more aggressive pursuits in the wake of ponzi scheme activity. real abusive activities by prosecutors who are using forfeiture tactics, using -- basically taking over receivership of organizations and then pleading them guilty to bring in the -- put pressure on the co-conspirators, so-called. i'm not saying that they're badly motivated, but there's clearly a different trend, on one hand. on the other hand, at the other end of the spectrum, contemporary concerns of what would be political dissent in the watergate period are now about homeland security.

and as differently as the administrations of the latter bush and obama would appear to be, in fact, obama is the most secretive president we've had in my lifetime. there is more going on that fewer people in congress know about than there was under nixon or under the reagan, bush, anything since then, including the last bush. but i'm concerned about the extent to which these institutional prerogatives become independent of any political control. in an effort to combat cyber side of terrorism, president obama has authorized a series of secret activities that go far beyond what bush did in the last administration. and they are designed to defeat the chinese penetrations in cyber space as well as other homeland security things.

but because they're very closely held, there's no monitoring. one of the senators recent vote over libya said when we now vote in the senate on these national security issues, there are only four people in the senate that know what the domestic implications are, the head of the intelligence committee, the deputy, the other party's head of the intelligence committee, the majority leader and the minority leader of the senate. no one else -- the other 96 senators do not know -- this is in the obama administration -- the implications domestically for policy. and this is a new era. this isn't a nixon authorizing things that are off the books, that are nongovernmental. this is a government that's no longer accountable, because it's not -- there's no balance of powers. i'm just -- i'll ask any of you about whether those themes resonate and whether you can give me a sense of whether this is the personality of the presidents, last two being in

considerable contrast or whether it is institutional drift. over half the positions in the department of homeland security are held by contractors, competitively bid on. they bid more and more aggressively on doing things that i think are more and more constitutional challenges. same thing is true in the cia. most of the analysts working there are private contractors. so, there's a kind of institutional twist and then there's the presidential overlay. i'm curious as to whether or not you -- what your thoughts are. >> i'm happy to respond but i don't want to go first necessarily. >> i'll go last and say you all have stolen my thunder. >> i'll make a couple of brief observations on that. i would note, it's interesting that you raise president obama in this context. i would note that when he was in the united states senate, a big opponent of broad executive

powers, defender of congressional government particularly in war and foreign affairs. this isn't unique to president obama but it's i wanting how that view changes once you become president of the united states. now, look, there's something to be said for defending the prerogatives of your institution, but i also would say this. conflict between the political branches is good. we should encourage it. partisan gridlock or gridlock between the president and congress. i think those kinds of political conflicts are good. i'm not saying that this would be a solution to the problem that you identify. but maybe a more aggressive congress that is more interested in asserting its institutional prerogatives would address some of the problems that you identify.

>> the notion that where you stand depends on where you sit goes back a long way. we are not sitting in the louisiana purchase, which is kind of too bad because you might remember that thomas jefferson did something with the louisiana purchase that he had previously thought was simply beyond the pale. i think that watergate and the reaction to watergate -- a lot of the reaction was against what was known as the imperial presidency. lots of things happened. it wasn't like nixon uniquely aggrandized executive power. a number of his predecessors had done the same thing. this was a -- watergate broke that cycle for a time, but it seems to me that a lot of the

factors that led toward the institutionalization of greater presidential power are still out there. and one thing that i agree with that, at some level, institutions asserting their own prerogatives are good. if you go back to the federalist papers, ambition must be made to counteract ambition. one problem that we are seeing at this point is that with some of the institutional prerogatives or arguments for institutional prerogatives have kind of broken down in some respects and when you have a system that isn't working very well generally, it seems to me hard to be optimistic about the ability of each branch to stand up for itself. although i think, as i said,

that, in principle, it's a good thing. >> it is interesting, that this president is called or this administration has called for changing foia, the freedom of information act. now when you apply for information, they can reject it, give a reason. you go to court and litigate it. the administration wanted to -- for example, they could say we don't have anything instead of we have something but we're applying privilege. there's been a series of cases the last several years of abuse of prosecutorial discretion. i don't think it's democrat or republican. just prosecutors have been abusive. there's a judge in boston that threw out a case and said he investigated about once every year or two, abuse of discretion requiring overturning of a

conviction, another one in miami. the ted stevens conviction, all kinds of things came to light afterwards that didn't hem him all that much. but it was shocking to me that it happened at all. the answer is we always have to be vigilant. i don't think there is -- you talk about government being -- dictatorships have sufficient governments. last thing we want is an efficient government. we can have an efficient post office. that's okay. we don't want an efficient government. when jimmy carter was president, people complained that the presidency was too weak. it turned out that it wasn't. the presidency just happened to be that particular president. and what we need is basically the three independent branches. framers wanted them to fight each other. they thought the legislature was the most dangerous branch.

they divided the legislative branch in two and gave them different terms and thought we'll have the states as well. think of states rights, we think of segregation in the '40s, '50s, '60s and '70s. the purpose of states rights is not to protect states, it's to protect us. i think these battles are never over with. we really shouldn't think that watergate solves something. watergate was a problem. it will come up again. and probably will have the same escape but it will come up again. stephen? did you want to take that? >> sure. >> when you mentioned contractors, it made me think about the disclosure problems we have. contractors are supposed to be barred from politics under the hatch act. but if you can't see where the money is coming from or how it got into politics, it's very

hard to guard against breaking the hatch act, even the laws that still persist after citizens united are very vulnerable given the disclosure loopholes. >> this is a great comment. you're pushing me in a pro-executive position here with these comments. i was in high school during watergate and observed a lot of the same lessons that i thought everybody else was learning about the imperial presidency in the 1970s. i decided one of the ways i had to make progress in understanding war power was to think myself into an executive perspective. the purpose of my projects. some of the things i'm going to say aren't necessarily my own views, but efforts to try to get a better understanding of what life is like in the executive branch as far as why they might be making some of these decisions and whether they're secret or not. under our system, you know, the executive branch is expected by the people to protect them.

if you're worried about civil liberties, secret activities, drone strikes, whatever, what you want to do is -- one of the most efficacious things you can do is make sure they get the message that the next time there's an attack on the united states that results in a lot of casualties, the american people are not going to blame anybody in the executive branch because that concern that they will be blamed is part of the motivation that drives them. not just a motivation which is sort of an implausible notion that we take over from the 18th century that they're trying to always usurp power. they know they will be held responsible. or they think they know that. if you want to take them off the hook and make them more relaxed, you can tell them they won't be. one thing is for sure. the opposite party will try to hold them responsible, right? it's a two-party system. so, if you think that scenario

is implausible, then you know the reason why the executive branch will keep going in the direction it is until someone says, hey, slow down. we're not as worried anymore. some people are saying, in effect, we're not really at war now. that's a metaphor. some people have been saying that since 9/11. the executive branch empirically does not hear that that's the dominant message they're getting from the public. the dominant message is elsewhere. one of the things i learned in the course of my project is that the attitude i got that watergate was a point of consensus -- consensus sort of against the imperial presidency, cut it back. that consensus was only apparent. it was not, in fact, shared by anyone. it was certainly not shared by most of the people working in the ford administration. and the ford administration was an office directly after watergate. it certainly was not shared by ronald reagan. that showed me that producing a

kind of consensus that lawyers often assume exist is far harder to create that political consensus than when i would have first assumed, when i was growing up and learning all the lessons that i guess "the new york times" and those other notorious liberals wanted us to learn. i learned them, too. i still believed them to an extent. but i now better appreciate -- at least i think better appreciate that that -- those lessons were not learned and absorbed by everyone. that's one reason why we still have these challenges today. >> have we been too clear? >> to professor anton, an observation about what happened from the transition from president bush to president obama, with the united states attorney in the northern district of illinois.

ongoing investigation eventually led to the conviction of governor blagojevich, possibly implicating the president. at least some of his aides may have been talking to blagojevich. the president kept on the united states attorney appointed by president bush. i put this forward to you as a possible piece of evidence supporting your thesis, that there are constraints which will cause the president to respond to the need for an apparently independent neutral -- in this case, possibly even chosen by the other side, prosecutor without any statutory independent prosecutor to do so. one other related point, whereas the assurances that the president -- president nixon gave on the special prosecutor might now be challenged under delegation or -- another way of doing it would simply have been if you wish the same way president obama did. look, i'm going to appoint somebody who no one will have any doubts about. and i'll give you my personal

word that i won't fire her or him without checking with the judiciary committee. so, it's personal assurance. your political capital is invested in it. my thought would be those are mechanisms that seem to me might make your point that they be as every bit as effective. and that's a rather recent example. >> well, thank you dean campbell. i think that's right, but at the time that president nixon was faced with the problem of what to do in the wake of what alexander hague called the firestorm that erupted in response to the firing of special prosecutor cox, the president simply didn't have any credibility with a large segment, not only of the opposing party, but even within some segments of his own. and i think that president obama, at least, one, had just been elected.

so he had a fair amount of credibility. two, the u.s. attorney in the northern district of illinois it it seeps to me there are political costs to firing people or threatening to firing people. that's one of the reasons why j. edgar hoover was director of the fbi for as long as he was. and one of the reasons why i have been so skeptical about the reliance of the executive types on arguments about removal power. i do want to raise one point related to this that goes back to professor rotunda's comment about the gramm-rudman case.

i won't if nixon made the argument about removal how receptive the press would have been even as a matter of technical legal doctrine it's a powerful argument. it seems to me that if the court had faced that argument, it might well have found some way to reject it. and depending on how that argument was rejected, perhaps the graham rudman case would have come out somewhat differently, because that was a situation where no one was threatening to go after the controller general and, indeed, no president had ever wanted to go after a controller general in the entire history of the office, as far as i know. >> it does help, though, when you have the political support. peter fitzgerald -- it's peter, right? >> patrick. >> peter was the former senator. patrick fitzgerald had prosecuted scooter libby, republican.

you could not really think of fitzgerald as anti-democrat after the scooter libby thing. and he's really about the most non -- apartisan person. just this prosecutor that just goes forward. and would have been politically costly for the president, you know, first impressions are lasting ones, to start off by saying let's get rid of this prosecutor. so, that would have been a cost. he might have gotten away with it. and we probably haven't heard the last of this. and i'm sure that the -- there are a lot of people in chicago that are happy that they didn't tape their own conversations and just left with what blagojevich was doing. so, it's mind boggling, by the way. what people would say so openly. he didn't know he was being taped but they're talking quite freely on telephones. now, i'm going to -- if we take