THE PRESIDENCY HOW THE INSTITUTION HAS BEEN ENDANGERED

Press, Volume CXIII, Issue 33381, 13 November 1973, Page 16

THE PRESIDENCY HOW THE INSTITUTION HAS BEEN ENDANGERED

(By

STEWART ALSOP)

(Reprinted from "Newsweek" by arrangement.)

WASHINGTON.—May not the process that is destroying President Nixon also damage irreparably the institution of the Presidency? This may be the wrong time to ask the question, with the President’s last vestiges of support melting away like the morning mist, and with his credibility even further eroded by the mystery of the missing tapes. Yet the fact remains that the Presidency itself will be deeply damaged if it becomes established doctrine that an opposition Congress has the power to undercut an unpopular President’s authority within his own executive branch.

This doctrine seems well 1 on the way to being generally accepted without any serious examination at all. i It is already accepted by < most liberal Democrats and most of the media. It has, of course, received a big and essential assist from the President himself. i The President, throughout i his current crisis, has been < behaving remarkably like i France’s Louis XVI, who i always at first bitterly re- I sisted the demands of the populace and the Parliament, i and then gave in too late, in such a way as to generate more extreme demands. In i the end, poor Louis was; shortened by a head, and the i French monarchy, although ■ it was fitfully revived in the ; nineteenth century, was < effectively destroyed. i Richard Nixon has fol- ] lowed an oddly similar i course. He has made, too i late, two enormous concessions, and neither has , done anything whatever to ] deflect the determination of his enemies to destroy him. Democratic agent His first great concession came when he agreed to the appointment of an independent special prosecutor, Archibald Cox, in order to get the Senate to confirm Elliot Richardson as AttorneyGeneral. Although Cox was an employee of the executive branch, the President was ostensibly to exercise no control over him whatever. Because his appointment had been forced by the Senate, Cox, himself a Democrat, was in effect an agent of the Democratic Congress. By agreeing to Cox’s appointment under such conditions, Nixon became the first President in American history to abandon—or to promise to abandon—the President’s basic right to hire or fire any policy-making official in his own branch of government, for whatever reason, however capricious. This enormous concession led directly to another. Cox, an able and energetic prosecutor, demanded what no President in history had ever conceded. He demanded the right of access, not simply of the famous nine tapes, but to all tapes, records or private papers that were, or might be, relevant to the job he had to do. Like Louis XVI, the President at first bitterly resisted. He had reason to resist. The right to retain control over any records of private discussions between a President and his subordinates is as basic a Presidential right as the right to hire and fire. At first, the President intended to fight the issue up to the Supreme Court, where he confidently expected to win. But a day or two before the “Saturday Night Massacre,” he was informed by his chief constitutional expert, Charles Alan Wright, that he might not win after all. The odds, Wright told him, were no better than

50-50. Sensitive Court Just what shortened the odds is not known. But the Supreme Court is sensitive to the political atmosphere ("Th’ Supreme Coort follows th’ iliction returns,” Mr Dooley said), and the political atmosphere had become fiercely anti-Nixon. In any case, Wright’s warning helped to set in motion the President’s search for another way out. When Senator Stennis agreed to review the tapes, the President thought he had the sort of compromise that has been made many times before in American politics. Instead, the "compromise” led directly to the Saturday Night Massacre, and the reaction was so furious that the President made his second enormous — and belated — concession. Suddenly, on October 23, to the astonishment of his own aides, and according to them without any careful

previous review of what tapes there were or what they contained, the President ordered the tapes turned over to Judge Sirica. He undoubtedly believed that this ultimate concession would remove the threat of impeachment, but it no more did so than Louis XVl’s sudden retreats removed the threat of the guillotine. On the contrary, impeachment, unthinkable until recently, has now become eminently thinkable, the more so since the mystery of the missing tapes. So we are left now with the likely prospect of a long, agonising and perhaps inconclusive impeachment process, with the only practical alternative to Nixon an amiable, notably unbrilliant member of the House Republican hierarchy, with no serious experience at all in foreign affairs. This is not a pretty prospect. For the long run, it is made even less pretty by the fact that this President has been forced to abandon two basic Presidential rights — the right to exercise undisputed control over his own branch of the government and the right to absolute confidentiality in discussion with subordinates in that branch. Widely suspected These are rights which not one of Richard Nixon’s 35 predecessors would have abandoned without a bitter struggle. Mr Nixon has abandoned them because he had to. Or thought he had to. The reason he had to is that he is in a quite different situation from any of his 35 predecessors. Seven of his

chief aides may be imprisoned for criminal offences, others may be indicted, and he is himself widely suspected of such offences. This explains why the President has abandoned the two basic Presidential rights, but it does not make the abandonment any less serious a matter for the institution of the Presidency. If he cannot be fully master in his own house, a President—any President —may be fatally enfeebled. That is especially true today, when Presidentdestruction seems to be becoming as popular a pastime in this country as regicide was in England, in the days when most kings died a violent death. Since the earliest days, the three branches of the American Government have always trespassed on each other’s turf. But at least since the Civil War, the genius of the system has lain in an instinctive, collective knowledge of when not to trespass too far, when to avoid the kind of ultimate struggle that could tear the system apart. Push has often come to shove, but it has always stopped short of bloodshed. There is, by contrast, a fever abroad in this city today, uncomfortably like the ferocious fever that sometimes seizes a fight crowd when the knees of a punchdrunk fighter begin to wobble. The danger is that, when the punch-drunk President is brought down, the Presidency itself will be brought down, its authority eroded, its defences damaged beyond repair. [Copyright 1973, Newsweek Inc.]