Constitutional Issues: Watergate and the Constitution

When Richard Nixon resigned in 1974 in the wake of the Watergate scandal, it was only the second time in our history that impeachment of a president had been considered. Nearly every action taken with regard to the case had some constitutional significance. The document shown here deals with a specific question: Should the Watergate Special Prosecutor seek an indictment of the former president?

It is two pages of a three-page memorandum written for the Watergate Special Prosecutor in August 1974, after Richard Nixon resigned the presidency and before President Ford pardoned him. (The third page adds one more item to the pro-indictment list and adds another category, "delay decision.")

The Office of the Special Prosecutor was created by Executive Order in May 1973 and twice faced the question of whether to seek an indictment of Richard Nixon. The first time was in March 1974, when the grand jury handed down indictments of seven White House aides for perjury and obstruction of justice.

President Nixon was named an "unindicted coconspirator" at that time because Watergate Special Prosecutor Leon Jaworski advised the grand jury that in his opinion a sitting president could not be indicted. In his view, the House Judiciary Committee was the appropriate body under the Constitution for examining evidence relating to the president.

The House Judiciary Committee pursued its constitutional mandate and drew up five articles of impeachment, three of which they approved in the summer of 1974. When the president was forced by the Supreme Court in August 1974 to surrender tape recordings that revealed his knowledge of the cover-up, even his staunchest supporters in the House admitted that they would have to vote in favor of impeachment. On August 9, 1974, President Richard Nixon resigned the presidency and became citizen Richard Nixon.

Thus, for the second time the Watergate Special Prosecutor’s Office faced the question of whether or not to seek an indictment. Article I, section 3, clause 7 of the Constitution provides that a person removed from office by impeachment and conviction "shall nevertheless be liable to indictment, trial, judgement and punishment according to the law." But there are no guidelines in the Constitution about a president who has resigned. The memorandum shown here is typical of others in this file. It outlines reasons for and against pursuing an indictment against Richard Nixon. It is taken from Records Relating to Richard M. Nixon, Records of the Watergate Special Prosecution Force, Record Group 460.

Teaching Suggestions

The activities below assume that students are familiar with the Watergate scandal. Textbooks may vary in the extent oftheir coverage, so you may want to supplement the textbook with a chronology of events. (See Social Education, "Document of the Month," May 1982, for suggested readings and a timeline of events.)

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1. Before distributing the document, ask students whether or not they would have been in favor of prosecuting the former president in August 1974 and why. List their reasons on the board. Duplicate and distribute copies of the document and ask them to choose the argument on each side that seems most persuasive to them. Ask for volunteers to stage a class debate on the question: Should the Watergate Special Prosecutor seek an indictment of Richard Nixon?

2. The framers of the Constitution purposely created a system of government in which the three branches would be in a state of tension when in disagreement. This tension has often been criticized for paralyzing the processes of government. However, it is generally agreed that these very tensions, together with the vigorous efforts of a free press, worked to reveal the full extent of the Watergate scandal. In order to illustrate this, ask students to match the unit of each branch of government with the event for which it was responsible.

The Legislative Branch
__ 1. Senate Select Committee on Presidential Campaign Activities
__ 2. House Judiciary Committee

The Executive Branch
__ 3. President
__ 4. Office of the Watergate Special Prosecutor

The Judicial Branch
__ 5. U.S. Supreme Court

__ 6. U.S. District Court of the District of Columbia

a. imposed heavy sentences on the Watergate burglars, hoping they would talk

b. claimed executive privilege

c. investigations here revealed existence of White House taping system

d. requested a trial subpoena for 64 White House tapes for evidence in the Watergate cover-up trial

e. adopted three articles of impeachment

f. ruled that executive privilege does not extend to criminal proceedings and that the president must turn over the tapes

KEY: 1. c, 2. e, 3. b, 4. d, 5. f, 6. a.

3. Ask students to look up each of the following sections of the Constitution and explain how it relates to the story of Watergate. Also ask them to indicate which of these constitutional references are referred to in the document shown here.