Haunting History

Calls for a special prosecutor over a White House leak mean Watergate's legacy lives on amid partisan distrust.

October 05, 2003|By Michael Hill | Michael Hill,SUN STAFF

IF RICHARD NIXON had just gone quietly, there would probably be no call for a special prosecutor to investigate the Bush White House for leaking the identity of a CIA agent.

Chalk up another one to the legacy of Watergate. More than a quarter-century later, its legacy still informs the issue over administration officials allegedly telling reporters that the wife of an administration critic was in the CIA. Consider that in the two centuries of U.S. history before Watergate, there were only a handful of special prosecutors. In the three decades since, there have been a couple of dozen. Now, there is a demand for one more.

"When you have high levels of distrust and bitter partisanship, the willingness to trust the executive branch to investigate itself just isn't there," says Katy Harriger, a political science professor at Wake Forest University.

If one had to pick a phrase to sum up the past 30 years of American politics, "high levels of distrust and bitter partisanship" would probably be near the top of the list.

Still, if Nixon had just realized that the game was over as special prosecutor Archibald Cox pressed to get the tapes of conversations inside the Oval Office, much of this might have been avoided. Instead, in a desperate act, on Saturday, Oct. 20, 1973, Nixon ordered his attorney general, Elliott Richardson, to fire Cox.

Richardson refused and resigned. His deputy, William D. Ruckelshaus, did the same. The third in line, solicitor general Robert Bork, agreed, and Cox was ousted.

Known in Watergate history as the Saturday Night Massacre, it made a Cox a martyr and his successor, Leon Jaworski, almost untouchable.

Harriger, who wrote the 2000 book The Special Prosecutor in American Politics, noted that previous special prosecutors - in the Teapot Dome scandal of President Warren G. Harding's administration, in a tax scandal during the term of President Harry S. Truman, for example - were never seen as the protectors of the nation's moral standing.

"What Watergate did was turn special prosecutors into heroes, as opposed to just being lawyers doing their jobs," she says.

The result is that, since Watergate, whenever a hint of scandal comes out of the executive branch, an immediate cry is made for a special prosecutor.

From 1978 to 1999, such an appointment was virtually required by law. After Watergate, Democrats pushed for the law that would set up the procedure for a three-judge panel to name a special prosecutor.

Republicans resisted - noting constitutional provisions on the separation of powers - but President Jimmy Carter backed it and signed the Public Officials Integrity Act in 1978. Though created amid the heady issues raised by Watergate, the measure was first invoked to investigate whether two of Carter's aides - Hamilton Jordan and Timothy Kraft - used cocaine, allegations so minor that if committed by anyone else, would probably not have garnered the attention of a federal prosecutor.

The act needed to be reauthorized every five years. In 1983, President Ronald Reagan's Republican administration was hostile to the measure, but Watergate was still too fresh a memory to allow anything other than a reauthorization. Five years later, with his administration under investigation by special prosecutor Lawrence Walsh for the Iran-contra scandal, Reagan had no choice but to sign the reauthorization.

One of those under investigation during that time was Reagan official Ted Olsen, who was accused of misleading Congress when testifying on environmental matters. Olsen challenged the law as violating the constitution's separation of powers articles. In 1988, the Supreme Court ruled in Olsen vs. Morrison that the act was constitutional, though the only dissent, by Justice Antonin Scalia, proved prescient. Olsen, now solicitor general, was cleared.

In 1993, the pressure was on the Democrats as the Whitewater allegations emerged. Republicans now backed a special prosecutor to go after President Bill Clinton. The measure lapsed for a few months, but as Democrats had always approved of the idea, it was reauthorized in 1994. While it was lapsed, Attorney General Janet Reno appointed the first Whitewater special prosecutor - Robert Fiske. When the reauthorization went through, it was assumed that the three-judge panel would continue Fiske's appointment. But it chose Kenneth Starr.

By 1999, both parties had seen their presidents pursued by relentless special prosecutors - Walsh and Starr. That year, the law was allowed to die an unlamented death.

"Clearly, what happened at the end of 1999, there were all these bodies lying on the battlefield, and both parties were exhausted by the whole thing," Harriger says.

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