THE CONSTITUTION: Battle Over Presidential Power

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All week the subpoenas and presidential refusals arced across Washington like shellfire. Watergate, for so long a kind of inchoate guerrilla war, had developed clear and momentous battle lines. Richard Nixon took his stand behind a barricade of Executive privilege. Neither Sam Ervin's Senate committee nor Special Prosecutor Archibald Cox would get the key White House tapes and documents they were demanding for their investigations of Watergate. At issue, the President declared, is "the independence of the three branches of our Government ... the very heart of our constitutional system." Sam Ervin had a different definition of the question: "Whether the President is above the law." Thus, as Tennessee's Howard Baker observed, "the issue was joined."

Watergate thereby became not only an epic whodunit of daytime television but a political and constitutional struggle of historic dimensions. At stake was nothing less than the definition of presidential powers and the President's relationship to the two other, nominally coequal branches of Government. Nixon's refusal to divulge the White House records raised a constitutional question never before resolved in the republic's 197 years, a decision that might affect the conduct of Presidents yet unborn: To what extent can the Executive Branch maintain strict privacy in defiance of the other branches even if that privacy may cloak a crime?

Quite beyond the specific constitutional issue, Nixon's tenure has increasingly been marked by an extraordinary assertion of presidential powers. John Ehrlichman told the Ervin committee that the President can do almost anything in the name of national security, including committing burglaries. John Mitchell testified blandly that he would have done anything to get Nixon reelected. Such arrogations were piled upon Nixon's massive impoundment of funds appropriated by Congress and upon his claims to the right to make war by fiat, and concealment of how he was conducting that war. It was not perhaps one-man rule, though the atmospherics of Nixon's preWatergate White House often suggested it, at least as told by his subordinates. But it undeniably represented an abuse of presidential power, even given the exigencies of governing in a complex age.