Forty years after Watergate, many legal reforms rolled back

[Douglas Caddy]

Forty years after Watergate, many legal reforms rolled back

Post-Sept. 11 executive orders claimed back power for the Oval Office, and the Supreme Court struck down campaign contribution limits.

By Carol J. Williams,

Los Angeles Times

5:00 AM PDT, June 17, 2012

latimes.com/news/nationworld/nation/la-na-watergate-legal-20120617,0,430130.story

On June 17, 1972, a bungled break-in at Democratic National Committee headquarters exposed one of the most notorious abuses of presidential power and led to a wave of reforms of U.S. laws and institutions.

Now, on the 40th anniversary of the Watergate scandal, many of those changes have been rolled back or eliminated. Court rulings scrapped limits on campaign contributions. Congress has returned the function of special prosecutors to the Justice Department. Executive orders issued by PresidentGeorge W. Bush in the aftermath of Sept. 11 claimed power for the Oval Office to ignore U.S. laws and international treaties.

President Obama has retained some of those extraordinary wartime powers, and his use of drones to attack terrorist suspects has drawn accusations of international law violations.

"I don't think Richard Nixon, in his darkest hour, would have authorized torture," said John Dean, the White House lawyer whose testimony at the Watergate hearings linked the break-in to the attorney general and the White House.

Dean, a longtime Beverly Hills resident, was disbarred after Watergate and became an investment banker. Today, he makes his living teaching lawyers how to navigate the professional and ethical pitfalls that can end a legal career. He has also been raising the alarm about rollbacks on the political reforms spurred by the Watergate crisis.

Within a year of Nixon's 1974 resignation, Congress made it a crime to destroy presidential materials. It also amended federal election campaign laws to make contributions and spending transparent, and to better expose government behavior to public scrutiny through amendments to the Freedom of Information Act. In 1978, the Independent Counsel Act created a special prosecutor independent of the attorney general.

Campaign finance reform is largely regarded as having been reversed by theU.S. Supreme Court's decision two years ago in the Citizens United case, which threw out the decades-old ban on corporate contributions to political campaigns.

In 1999, the Office of Independent Counsel was abolished and the job restored to the Justice Department.

The 1978 Foreign Intelligence Surveillance Act was among the legislative reforms that followed Watergate, setting up a special court to consider government requests to bug foreign spies or suspected terrorists on U.S. soil. The act was amended during the Bush administration, but even its more lenient standards for clandestine surveillance were often ignored in the quest to thwart terrorism, said Elizabeth Holtzman, a New York Democrat who served on the House Judiciary Committee during the Watergate hearings.

Some legal analysts of the Watergate legacy argue that the surviving reform, the American Bar Assn.'s self-policing on ethics, has done little to spare the country from crimes in high places.

Bar rules now make clear that the client is the organization rather than the individual, said Cleveland attorney James D. Robenalt, a prominent business litigator. Had that distinction been clear 40 years ago, it might have pushed Nixon's lawyers to protect the nation's highest office, not the politically motivated deeds of the man in it, he said.

But Laurel Rigertas, a Northern Illinois University law professor specializing in legal ethics, says broad divergence remains among state and local bar associations on when or whether members are obliged to reveal information about criminal acts disclosed by their clients.

"We really shouldn't think Watergate solved anything. Watergate was a problem and it could come up again," said Ronald Rotunda, a Chapman University law professor who served on the investigation team for Watergate prosecutions as well as assisting Special Prosecutor Ken Starr in his case against President Clinton. "We always have to be vigilant."

As Chapman law dean and former five-term GOP congressman Tom Campbell recalls, Nixon's resignation was prompted when the U.S. Supreme Court ruled unanimously to uphold a grand jury's subpoena of incriminating tapes Nixon made of his conversations with Watergate conspirators.

The high court refused to yield to Nixon's claim of immunity from the subpoena. "It has been very, very rare, very unusual, for the judicial branch to come down so strongly against the executive branch," Campbell said.

That was a show of apolitical unity among the justices that many students of the Watergate era say would be hard to imagine coming from the high court today.