06/20/2012 04:42 pm ET Updated Aug 20, 2012

Why We've Learned Nothing From Watergate

It's been forty years since security guard Frank Wills discovered a burglary in progress at the sixth floor offices of the Democratic National Committee, then located in the Watergate office complex. Leaving aside the illegalities arising from this third-rate burglary -- the payoffs, the cover-up, the forty administration members who went to jail and the first resignation of a sitting president in history -- Watergate became synonymous with the abuse of executive power. Never again, vowed reformers who pushed through Congress a parade of measures to re-establish meaningful checks on executive power, including the War Powers Resolution, the Budget and Impoundment Control Act, an expanded Freedom of Information Act, the Presidential Records Act, campaign finance reform, the Foreign Intelligence Surveillance Act, and the independent counsel law, among others.

Yet to a few die-hard defenders, Richard Nixon's resignation from office was a partisan political witch hunt by Nixon's opponents, not a necessary result arising from impeachable offenses. Worse, Nixon's detractors were gutting the office of the presidency, they said, and in the process endangering the republic. As journalist Charlie Savage detailed in his book Takeover, then-vice president Dick Cheney opined that Watergate "weaken[ed] the presidency," producing "an erosion of the ability of the president of the United States to do his job." Cheney felt this keenly when he became Gerald Ford's chief of staff (a job in which he was preceded by Donald Rumsfeld), a period of time he considered the "low point" of presidential power.

The election of Ronald Reagan marked the end of any semblance of post-Watergate restraint. In fact, it brought together Republican conservative lawyers in the Justice Department and the newly-formed Federalist Society who set to work to construct a constitutional edifice around the grandiose power claims that shrouded many of Nixon's excesses at home and abroad - to, in effect, codify Nixon's justification for his actions, uttered in 1977, that "When the president does it, that means that it is not illegal." The result was the tendentious Unitary theory of presidential power: a doctrine that claims constitutional provenance for nearly unlimited executive power, and which saw its fullest expression during the second Bush presidency thanks in large part to Cheney and his single-minded assistant, David Addington.

Sure, the Unitary theory was widely (and properly) criticized by politicians and discredited by academics, but that condemnation concealed three larger truths about the modern presidency. First, presidents need not embrace the Unitary theory to continue the march of executive power. Barack Obama rejected the breathtakingly broad Unitary assertions of power, but certainly not the comparatively incrementalist modern strong presidency.

Second, the history of the presidency is replete with examples of presidential actions considered controversial in their day, but which ultimately became accepted precedent for future presidential adventurism. Thus, the real threat of the Unitary view is that it will be taken up by a future president as a lost-and-found talisman worthy of revival. Third, we need to sidestep the false choice between Unitarian extremism on the one hand, and a Calvin Coolidge-style weak presidency on the other. Stated plainly, modern America needs, and indisputably desires, a strong presidency - which, by the way, is not the presidency of 1789 -- but it needs one where checks and balances still function.

Two examples underscore why we have failed to learn the lessons of Watergate. First, in December 2005, the New York Times revealed that the George W. Bush administration had engaged in widespread warrantless surveillance, in plain violation of the Foreign Intelligence Surveillance Act. Far from either denying or decrying these plainly unlawful actions, Bush and Cheney extolled them, claiming inherent power to bypass such laws if the president thought it best to do so. Among the rising cascade of criticisms that dogged Bush's second term, this one was rapidly lost in the mix.

Second, in the spring of 2011, Obama ordered military strikes against Libyan dictator Muammar Qaddafi's forces to stave off a massacre of Libyan rebels. Most applauded the action, which also hastened the demise of the hated Qaddafi regime. But Obama committed two plain violations of law: he acted without any valid prior authorization from Congress, and he failed to adhere to the 60 day withdrawal-of-troops deadline imposed by the War Powers Resolution. Despite this, even the hyper-partisan, Republican-controlled House of Representatives couldn't manage a majority vote to condemn this plain violation of the law.

In both cases, presidents failed to "take Care that the Laws be faithfully executed" as the Constitution requires. Yet neither president paid a price for constitutional abnegation -- all the more remarkable given the hyper-political environment faced by both. The country needs and wants strong presidents, but the Constitution and law exist to limit abuse of power -- a standard that must continue to apply to our chief executives.