The Magazine

From U.S. v. Nixon to Bush v. Gore

Political problems deserve political solutions

Dec 25, 2000, Vol. 6, No. 15 • By ROBERT F. NAGEL
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More generally, by insisting that the prosecutorial needs of the grand jury were more important than presidential confidentiality, the Court in United States v. Nixon planted a new and deeply destabilizing idea -- namely, that it is constitutionally unacceptable to rely on the president and the attorney general to make decisions about prosecuting high executive officials. By the same token, it legitimated the idea that impeachment and other political sanctions for executive wrongdoing are untrustworthy and insufficient. These ideas were then institutionalized in the law establishing the office of independent counsel, a law that the Court eventually and amazingly found not to be an unconstitutional intrusion into presidential control over the executive branch.

The Court's effort in Nixon to restore order to the political system and to enshrine the rule of law led, then, to the displacement of politics and the bureaucratization of the prosecutorial function. Political judgement was replaced by professionalized norms and a kind of legalistic perfectionism. Presidents ever since have been beset by accusations and investigations.

Possibly the worst of all worlds was achieved when these trends came to fruition in the earnest and conscientious person of Kenneth Starr. Precisely because he was entirely true to his statutory duties, his investigation derailed a presidency and his report triggered an impeachment. But precisely because Starr's statutory role was at its root predicated on distrust of both politics and impeachment, neither the country nor the Senate could summon the will to provide a full trial or to exercise high political judgment. The "trial" was a staged drama, and the debate on both sides was dominated by legalized arguments designed to permit senators to evade personal responsibility for their decisions.

In attempting to enforce the rule of law and to circumvent the uncertainties of political struggle, therefore, United States v. Nixon eventually resulted in an astonishing combination of distortions in our constitutional system: simultaneously, the depletion of the constitutional office of the presidency and the depletion of the process constitutionally mandated for keeping the president in line.

All this should be caution enough for those who today believe the Supreme Court has rescued us from the intellectual chaos unleashed by the Florida court. But there is a further possibility to consider as well. The abrupt and constitutionally innovative method used to remove President Nixon probably fueled resentments that eventually found their outlet in the sustained attacks on Clinton's presidency. In turn, the professionalization of the prosecutorial function that characterized the anti-Clinton investigations and the self-doubt that characterized his Senate trial almost certainly added to the resentments that keep Democrats struggling to undermine a Bush presidency even before it starts. In short, the recent chaos in Florida may itself be in part traceable to the rush to resolve the Nixon crisis through judicial action.

It is not, of course, inevitable that Bush v. Gore will put in motion a chain of destabilization in the way that United States v. Nixon did. But the imposition of equal protection standards on state ballot counting procedures has dizzying potential for generating lawsuits. If the Court had not ruled decisively against the recount, the legal mess in Florida would have been ended by the Florida legislature and Congress, just as the Nixon controversy would have been ended through the impeachment process.

In either case, in the long run a non-judicial solution might have led to both constitutional stability and political self-confidence. Now, we will never know.

Robert F. Nagel is a professor of law at the University of Colorado and the author of The Collapse of American Federalism, forthcoming from Oxford.