19 MAY 1973, Page 6

The American Scene

Nixon must goand how

Louis Claiborne

As the Senate hearings on the Watergate affair and its aftermath open, the Constitutional problems and possibilities of removing President Nixon are here discussed by a former Deputy Solicitor General of the United States.

President Nixon ought to resign. The case for it is overwhelming. The Watergate affair, the affilliated activities, and the subsequent wirer-up, touch him too closely. Nothing conceivable — no denials, no disclaimers, no recantations, no testimonials — can repair the broken image. He must go.

Whatever his personal criminal guilt, Nixon cannot escape responsibility for encouraging an end-justifies-the-means philosophy that corrupted the entire domestic side of the executive government in the service of the single goal of re-electing Richard Nixon — something less than the quest for the Holy Grail. It is simply not possible to abuse the State Department, pervert the Justice Department, corrupt the FBI, misuse the CIA, pressure the Securities and Exchange Commission, and flout the criminal law, unless those involved, all at the top level and no fools, have good reason to think they have at least the tacit backing of the President. What is more, Nixon's personal credibility is no longer salvageable. No imaginable development will erase the suspicion that someone told the President something about the involvement of some of his staff with Watergate sometime before ten months had elapsed. All the rest aside, what about John Mitchell, Attorney General and head of the re-election campaign, former law partner and confidant, who admits he debated the matter on three occasions before the event, claims he was overruled, and resigned two weeks later? There must be few who believe he said nothing at all.

Rightly or wrongly, the consequence is a tarnished President and nothing that emerges hereafter can restore the confidence of the 'American people,necessary even if Utopian, in the rectitude of their leader. He must remain crippled at home, and also, in some degree, abroad. The sacrifice of all his loyal friends will not cleanse the White House and the Executive Branch, The President is, after all, the main occupant. He, too, must go. No need for him to confess criminal guilt. But he must accept not only responsibility but its consequence — resignation. At best, if Nixon has been a fool and not a knave, it would be a noble act, done for the good of the presidency. And for the larger good of the country, because the boast of Americans — to themselves and to others — that we openly bare our faults, and do something about them, must ring hollow so long as the President, inevitably implicated, is seen to hold on.

But a president cannot resign, it is said. Why not? Many reasons are given: because he is a kind of god-figure whose fall would shatter the self-confidence of the nation; because he is chief of state as well as head of government; because he is the directly elected choice of the people, not answerable to the legislature; because he was elected for a specific term which in this case has 1,300odd days to run; because no president has ever resigned; because the strait-jacket of the American Constitution prevents holding an election to choose a successor; because Agnew would then become president.

The first objections are quickly disposed of. If a king of England can abdicate and a General de Gaulle can resign, so can a president of the United States. Nor is it constitutionally 'unthinkable.' From the beginning, the American Constitution has explicitly assumed that a president can be guilty of "Treason, Bribery or other high Crimes and Misdemeanors" and has provided for his impeachment and removal from office in that event (Art. I, sec. 2, cl. 5; Art. I, sec. 3, cls 6 & 7; Art. II, sec. 4). And, quite independently of impeachment, the Constitution envisages the voluntary " Resignation " of the President (Art.11,sec.1c1.5; Amend XXV, sec.1). The American Constitution accords large powers to the president and assures him a limited

tenure independent of shifting political mak)" rities. But it does not enthrone him.

Of course, the American president is in, a different posture than a British prime minister. Neither law nor constitutional convention requires the president to abandon his office because the legislature defeats his programme. There ought to be little or no difference, however, when it comes to his obligation to quit where his administration is contaminated by political fraud and criminalitY. That no previous president has resigned is.n° argument to the contrary. Putting to one side the scandals of Grant's administration a hundred years ago, no modern president has been so compromised, except arguably Harding, who was spared by death. The duty of a British prime minister to resign in like circumstances is perfectly clear although no occasion to invoke the rule has arisen in recent history. Even in the United States there must be unwritten constitutional conventions that ought to prevail. It would be best if President Nixon resigned without goading. But, should he fail to 8° willingly, pressures are available, as the, Y would be against a recalcitrant prime minis' ter in a comparable situation. There is alwaYs the threat of impeachment. But, assuming grounds for impeachment are lacking, the Congress is not without means of pushing a president to do his duty. Normally, to be sure. the American system of separation of powers ought to restrain the Legislature from holding the Executive to ransom and would justify him in resisting any such effort to the end. Yet, when the president abuses h,is, office, exceptional rules apply, as they wool(' in Britain (presumably, the Queen would he expected, extraordinarily, to dismiss a corrisiPtf prime minister who had lost the confidence o the House of Commons and declined to re' sign). The weapons are not lacking. The power of the purse is the ultimate sanction. Well short .of that, however, would be an overwhelming vote of censure calling on the president to resign. It is difficult t° imagine even Richard Nixon defying such an expression of popular displeasure. All very well, you may say, but it Nix011 resigns, the unavoidable consequence is president Agnew. Were there no alternative..' would remain undeterred. Although no adn'O' rer of the Vice-President, I believe the repul3„lic would now gain from the removal °' Nixon, even at the cost of inheriting Agnew,' At least, so far as we know, the Vice-Pres'. dent is an entirely honest man, personally unsullied by Watergate. As it happens, fortunately, there are other possibilities. Undeniably, the constitution ordains that the vice-president succeeds, for the full remaining term, when the president dies, is removed, or resigns (Art. II, sec. 1, cl. 5; Attlen4• XXV, sec. 1). Modern practice has turned this Into an anachronism. The provision Made more sense in the beginning when the vice; president was the electors' second choice in contest that customarily involved more than two serious presidential candidates. Ther,e., was no obvious flaw in a procedure that ma°.,` John Adams vice-president to Washingtt and Jefferson vice-president to Adams. Tn`„ Twelth Amendment (1804) altered the schet somewhat by requiring separate ballots f°', the two offices; henceforth, the vice-preside', could be a political ally and running-mate 0,} the president, not a rival. But, arguablY..'e party mattered more than personality, successful vice-president still could be pr% sumed the people's chosen alternative to. ti';' president and a proper successor. Long sinc„' however, the principle has been defeated the custom of allowing the presidential noiri nee personally to select the vice-president0A

candidate and to pick a man for political ariv,

geographical balance, not for his qualities 00) presidential timber. Occasionally, the tvie things coincide (e.g., Lyndon Johnson). M°.ro often (and certainly in the case of SPI!,. Agnew), the vice-president today cannot 0'

ceive even himself that he is the alternate Popular choice for president and therefore a natural successor.

This is not reason enough to ask, or expect, every vice-president who inherits the White House promptly to vacate it. But the per version of the constitutional objective does fortify the argument that, in exceptional cir cumstances, the vice-president ought to forego his legal right to the presidency. The case Is all the stronger when the vacancy occurs at the beginning of a presidential term and there Is ample time to consult the national will. In the present predicament, there is a specially forceful added consideration: like it or not, Vice-President Agnew is a prominent member Of the Government, the whole of which is compromised and the whole of which ought to stand down. It is not inconceivable that Spiro Agnew would see the point — especially if he were eligible to compete in a new contest for the office. At all events, he too could be prompted.

What then? Assuming a vice-president followed a president's excample and also resigned, is there a designated successor or an election? Here the solution depends upon timing. If Agnew were to delay acting for some time after Nixon resigned (or were removed by imPeachment), he would automatically become President and, under the recently-adopted Twenty-Fifth Amendment (1967), would be constitutionally obligated to appoint a new vice-president — who would in turn succeed to the presidency upon his resignation. This is not an unencumbered choice, however: the nominee must be approved by both Houses of Congress. In the present situation, that might be tantamount to a congressional election of a new president. Indeed, if everyone is acquiescent, it is not impossible to obtain some form of popular consultation. Agnew could be asked to put forward several names, from both political Parties, with at least some prompting as to the Democratic nominees. The Congress would in turn submit the list to a national vote, agreeing to confirm the popular choice. Whereupon Agnew resigns and the new vicepresident becomes president. All this is feasible and constitutional. Yet, there are large objections: the deviation from customary procedure is too stark; too much depends on ' gentlemen's agreements '; the precedent in plebiscitary democracy is too dangerous. In the end, we must reject the scheme as too unAmerican to be likely and too original to be wise.

A somewhat different scenario follows if Agnew were to resign simultaneously with Nixon. In that event, the new Amendment has no bite and we are governed by the original Constitution. Here is the relevant provision (Art. II, sec. 1, cl. 5):

. . . the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice-President, declaring

what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. •

Congress has in fact legislated for this eventuality (which has not so far occurred). The law (3 U.S.C. 19) stipulates that the _ Speaker of the House of Representatives shall then act as President; in default of him (" if ... there is no Speaker, or the Speaker fails to

qualify as Acting President "), it is the Presi dent pro tempore of the Senate; and, in default of him also, the office goes to the Secretary of State, and thence to the next senior Cabinet officer, through the whole list. Presumably, the official eligible to succeed can refuse the privilege (see 3 U.S.C.20) and that justifies such a long catalogue of potential heirs. The present law expressly says that, except when the successor is merely substituting during a temporary disability, he serves out the remainder of the presidential term.

It is this last stipulation that creates the problem. No doubt, there ought to be an act ing president at all times, and, for the neces sary interim, the Speaker of the House is as good a choice as any. But neither the Speaker, nor any of the other designated po tential successors to the presidency, is, by virtue of his office, a logical choice. It would be far preferable to select a permanent successor ad hoc when occasion requires. The Congress might itself make the choice — perhaps from its own members, so as to assure that the president is a popularly elected official. Today, however, there is no practical obstacle to holding new presidential elections, at least if substantial time remains in the term.

Congress is of course free to rewrite the law of presidential succession for the case where both president and vice-president are gone. Plainly, it could substitute different officials for_ those specified in the present law. What is less clear is whether the constitutional provision just quoted allows Congress to legislate as I have suggested — to

provide that the pre-designated heir is only tem

porary, the final choice to be determined uY a special election. For my part, I think an affirmative answer is justified.

Construing the constitutional text literally, the result I have urged seems permissible. T. he designated " Officer " is to act only until . .. a President is elected." That is not necessarily a reference to the next regularly schNuled election. On the contrary, since it would be wholly superfluous to say that the stand-in will not serve beyond the end of the current term (unless then elected in his own right), the implication would seem to be that a special election will be held to fill the vacancy. It is noteworthy that the same constitutional clause, when dealing with the vice-president's succession to the office, says nothing about his serving "until a President IS elected "; clearly, he carries out the remainder of the term. And another difference in constitutional language points in the same direction. When there is a full-fledged inheritance (by reason of the death, removal or resignation of the president), the form is unMistakable; the presidential office "shall devolve " upon the vice-president (Art. II, sec. 1, el. 5), or he "shall become" president (Amend. XX, sec. 3; Amend. XXV, sec. I), The Present language, "act as President," is apparently reserved to a temporary stand-in (see Amend. XX, sec. 3; Amend. XXV, secs. 3 Gt 4), The inference is that our contingency contemplates a kind of regency, not a total succession.

On this reading of the Constitution, Congress would be authorised to alter the present s,uccession law to provide for a special pre^sioential election to fill out the unexpired term uf a president who resigns (or dies or is reinlloved) without a vice-president to replace lin. I would urge that course, reasonably c,onfident that it is sufficiently faithful to the letter, and to the spirit. But for those who think my suggestion puts an intolerable train on the words " until a President is elected," there is yet another way of contruing the constitutional text which allows law.ubstantially more scope than the present

We now loot( only to the language which authorises the Congress to enact a law " declaring what dfficer shall act as President" When both president and vice-president have vacated their offices. I will assume that the 'arm " Officer " limits the choice to an official Of the federal government, executive, legislative, or judicial, 'already holding offiCe when the contingency arises. But no further constraint need be admitted. While, no doubt, the exPectation of the framers was that Congress would (as they have in present law) pre-de