American Experiment

by James Macgregor Burns

  The nature of the public-opinion battle, moreover, changed during the two-year struggle. People tended to react to the early revelations as Democrats and Republicans, or as Nixon admirers and haters. The press, too, tended to divide along lines of party or presidential preference in 1972, when about seven of every ten newspapers endorsed Nixon and about one out of every twenty McGovern. At first the pro-Nixon newspapers tended to play down or ignore the Watergate burglary; then they faltered and shifted in the face of the avalanche of evidence of wrongdoing. All in all, two close students of Watergate public opinion concluded, grass-roots political attitudes had less an active than a reactive role in Watergate; they were not so much a powerful, cohesive force pressing for a certain action as simply a melting away of Nixon’s old constituency, especially after the smoking-gun revelation, and he was left without his “base.”

  In the end it was not in the “tribunal” of public opinion that the issue was settled but in the more formal tribunals of the American political and constitutional system. If Nixon hoped he could save himself eventually as he had done with his “Checkers” appeal in 1952, he was underestimating the legislative branch. A Congress that for months had been stupefied and almost immobilized by shocking revelations roused itself to concerted action, voting in committee to impeach. Even so, the system might well not have worked except for investigative reporters who refused to quit, a remarkable series of blunders by Nixon, stretching from his original taping of the White House to his failure to destroy the tapes, and other “chance” or aberrant developments. In some respects the constitutional system thwarted rather than impeded action. The separation of powers and checks and balances, political scientist Larry Berman concluded, had not stopped “the espionage, the plumbers, the dirty tricks, the cover-up, the secret bombing of Cambodia, all the culmination of presidential imperialism.” It was the capacity of key persons—journalists, legislators, judges, even men in the White House circle—to rise in the face of doubt and suspicion and to defy the royal court itself that made all the difference by 1974.

  Ultimately, Watergate became a test of moral leadership—a test that the White House dramatically failed to meet. There was no sense of embarrassment or shame, Magruder said later, “as we planned the cover-up. If anything, there was a certain self-righteousness to our deliberations. We had persuaded ourselves that what we had done, although technically illegal, was not wrong or even unusual.” Their foes were making a mountain out of a molehill. “We were not covering up a burglary, we were safeguarding world peace.” Besides, hadn’t previous presidencies—especially the JFK White House—prepared the way for “hardball politics”? Kennedy men had stolen the election of 1960 from their boss, some in the White House still believed. They recalled the old story that members of Kennedy’s White House loved to tell about the JFK staff man who was complaining of the misdeeds of the “rascals” in the enemy camp. When another staff man remarked mildly that there were rascals in their own camp as well, the first man said, “Ah, but they are our rascals!”

  It fell to men like Archibald Cox and Elliot Richardson to exercise moral leadership in the crucible, but a desperate President could always find a complaisant man to carry out his orders. It was hard to accept the truth that the President was a liar, Elizabeth Drew reflected as she read through the smoking-gun tapes. It seemed impossible that a President was “capable of looking at us in utter sincerity from the other side of the television camera and telling us multiple, explicit, barefaced lies.” She felt torn between the “idea that people must be able to have some confidence in their leaders and the idea that in this day of image manipulation a certain skepticism may serve them well.” Here was a fundamental question about moral leadership in the American democracy. Perhaps a New Yorker cartoon of the time hinted at the nature of the problem, if not the answer. It showed one man telling another man in a bar: “Look, Nixon’s no dope; if the people really wanted moral leadership, he’d give them moral leadership.”

  Crime and Punishment

  After Judge Sirica sentenced Jeb Magruder to a term of ten months to four years in prison, the former White House aide had ample time to analyze “why Watergate.” He blamed excessive power in the White House, Nixon’s “instinct to overreact in political combat,” and the lawbreaking by White House staff “out of a combination of ambition, loyalty, and partisan passion.” Analyzing his own wrongdoing, he ascribed it in some degree to the failure of his college professors to teach morality. Thus at Williams, political scientist Frederick L. Schuman had advocated a “tough power-politics approach to international diplomacy,” chaplain William Sloane Coffin was too rigid and confrontational a moralist, and James MacGregor Burns, while ideological, did not teach enough morality in his politics courses. He reflected with some bitterness that Coffin had defended draft-card burning and other illegal activities, in turn provoking illegality in the White House, even though “two wrongs do not make a right.”

  Other Watergate wrongdoers also could reflect on the fortunes of political war. More than a score went to jail. Convicted of conspiracy, perjury, and obstruction of justice, Haldeman served eighteen months in prison; later he became vice president of a real estate development firm in Los Angeles. Ehrlichman, convicted of the same three crimes, emerged from eighteen months in jail fifty-seven, bearded, affable, and ready to embark on a career of writing about his Washington days. John Mitchell, convicted of conspiracy, obstruction of justice, and lying under oath, served nineteen months before being paroled, only to go through more years of ill health, disbarment, and separation from his wife, Martha, who later died of cancer. Charles Colson and Jeb Magruder, after serving seven months, turned successfully to Christian ministerial activities. G. Gordon Liddy, convicted both of the break-in and of conspiring to raid the office of Daniel Ellsberg’s psychiatrist, served the longest Watergate prison sentence—fifty-two months—because he refused to talk, even under subpoena; he later became a celebrity lecturer and security consultant. A dozen other Watergaters served brief sentences, then turned to business, law, writing, and lecturing. All the key Watergate participants save Mitchell wrote works of fiction or fact about the episode; many of these were best-sellers.

  And the chief co-conspirator? Ten years after the break-in, Richard Nixon had published his own best-selling memoir, moved from California to Manhattan to the New Jersey hinterland, continued to receive federal pensions and free office space and clerical help like all former Presidents, and earned over $3 million from his writings. He was lionized at home and abroad, defended his actions in television interviews, wrote on foreign policy and foreign leaders, advised President Reagan, and was attacked by Haldeman and others for further distorting the record. Nixon told a CBS interviewer that he “never” thought about Watergate. “I’m not going to spend my time just looking back and wringing my hands about something I can’t do anything about.”

  Nixon’s slow and careful reentry into public life only intensified the anger of those who believed he had deserved a conviction rather than a pardon. Here was the old-boy network in spades, now deciding the leadership of the nation. Here was the pinnacle of pardons, the Everest of exculpation, something for the book. It was the same old story—the big guys take care of themselves while the little guys get it in the neck.

  Nixon’s white-collar crimes happened to coincide with a dramatic rise in public consciousness of lawbreaking by persons in corporations, government, and other organizations. The FBI in the 1970s found that the frequency of such crimes as bribery, kickbacks, payoffs, and embezzlement was growing at an alarming rate. The costs of white-collar crime in goods and services, the Bureau estimated, eventually caused about a 15 percent markup for consumers. The FBI was now assigning over a fifth of its agents to the investigation of such crimes.

  The moral ambiguity of the Nixon pardon was matched by confusion over the very nature of white-collar crime. Some Americans believed that, however heinous Nixon’s misdeeds were, the pardon was justified because no other
punishment could compare with the humiliation and mortification an American President must endure in quitting office in the face of looming impeachment. And so with white-collar people. A bank teller, an insurance clerk, a postal employee, a politician living in a tight-knit community and known to everyone, some Americans believed, faced far more embarrassment on conviction than thieves working some distance from their communities.

  Many investigators of white-collar crime had little patience with such popular distinctions. In a social economy undergoing rapid organizational and technological changes during the 1960s and 1970s, they faced trying problems in even defining, measuring, and understanding white-collar crime before tackling the questions of deterrence and punishment. Two seasoned investigators virtually threw up their hands over the task of definition, finally settling for “an intuitively satisfying understanding” encompassing a broad range of offenses. A widely accepted working definition was “illegal acts committed by nonphysical means and by concealment or guile, to obtain money” and other personal or business advantages. Even so, differences over definition were so wide that estimates of the incidence of white-collar crime also varied widely. If the FBI was finding an alarming growth, was this because the Bureau was broadening its definition of white-collar crime, or because its expanded white-collar unit was uncovering more offenses, or because there really was an increase in white-collar crime?

  Even more daunting was the assignment of responsibility, which in turn involved the imposing of penalties for crimes committed. Since the vast majority of these misdeeds occurred in organizations, who should be held responsible—the leaders, the subleaders, the rank and file, the whole organization? The President, all or part of the presidential staff, the whole presidency, indeed the whole executive branch? A corporation’s top executives, its middle managers, the local managers perhaps “just following orders,” the whole corporation, the capitalist system?

  Responsibility might, on the other hand, be so widely diffused in a corporation that individual liability would be impossible to determine, or it might be hidden in its interstices. Or it might be both expedited by electronic technology and cloaked within it. With business operations increasingly computerized and computers serving as “vaults” for corporate assets, computer-related crime—difficult to detect when perpetrated skillfully, with higher per-incident losses than other white-collar crimes—became a “universal and uniform threat.”

  Most of the problems centered in large corporations. This was not new; two hundred years ago the Lord Chancellor of England had asked, “Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?” and he was rumored to have added in a stage whisper, “By God, it ought to have both.” Corporations also posed some of the most dramatic issues of responsibility. Thus in the 1970s the Ford Motor Company built Pintos with the metal fuel tank located behind the rear axle. Although a safety device would have cost only eleven dollars per car, Ford did not remedy the situation, despite a rash of rear-end collisions causing fiery deaths and injuries. After three young women were burned to death, an Indiana jury in 1980 acquitted Ford of reckless homicide charges. The Firestone Tire and Rubber Company, the first American firm to supply steel-belted radial tires in large quantities to automakers, acknowledged a large number of accidents associated with the tires. In 1978, pressed by the “feds,” Firestone agreed to recall over seven million radial tires. Although many asbestos manufacturers knew of the danger of asbestosis and pneumoconiosis among their workers, few companies moved to rectify the situation.

  Given the murky distribution of power in large corporations, to whom should punishment be meted out for misdeeds? And how large should the penalties be? Judges and juries faced dilemmas. If they levied moderate fines on executives—who in any event were usually protected against such liability so long as they had acted in “good faith”—these costs could be absorbed by the corporation and community in various ways and hence could not serve as much of a deterrent. If the court whacked the corporation with a huge fine, perhaps in the millions, the burden might fall on the innocent—the great majority of stockholders, the white-collar employees who might be denied a pay raise, and even the workers who might lose jobs if the fine was large enough to force the firm to scale down its operations or even submit to bankruptcy. An individual misdeed thus might be converted into a community crisis.

  Most Americans were far more concerned about “street crime” than about white-collar crime, except when the latter had a physical impact, such as corporations leaving former employees gasping for breath on a hospital bed or customers incinerated in gasoline explosions. The estimated number of all offenses—street and white-collar—known to police almost quadrupled between 1960 and 1983, from 3.4 million to 12.1 million. Even when adjusted for a population increase from 179.3 million in 1960 to 234 million in 1983, the rise was still startling—from 1,887 per 100,000 persons to 5,159. Violent crimes such as murder, forcible rape, robbery, and aggravated assault quadrupled, while property crimes such as burglary, larceny-theft, and motor vehicle theft tripled. Thus there was a marked increase in crimes of an especially ugly and devastating nature.

  An alarmed public watched the rising crime rate—and experienced it. In the early 1980s Americans, regardless of race, sex, education, income, size of city, or party membership, responded “more” to the Gallup poll question “Is there more crime in this area than there was a year ago, or less?” People felt less safe at home at night, more fearful of walking alone at night within a mile of their homes, widely concerned that their property might be vandalized, their home burglarized, that they might be robbed in the street and injured in the process.

  The polling returns showed some anomalies. The fear was disproportionate to the actual numbers of victims. In 1982 fewer than one half of 1 percent of the national sample had been injured by a burglar at home, but nearly a third allowed that they worried at least a “good amount” about its happening. At the same time, 51 percent of the sample answered “too much” to the question “Do you think television news gives too much attention to stories about crime, not enough attention, or what?” while 29 percent answered “about right” and 18 percent “not enough.”

  The intensity of the national debate over the “cause and cure of crime” rose even faster than the crime rate. The centerpiece of the debate was the issue of poverty and crime. Since some supporters of LBJ’s “War on Poverty” had touted it as a fundamental solution to the problem of crime arising from material poverty, it was easy for critics of that war, including anti-Great Society Republicans and the ideological right as well as skeptical scholars, to point out that crime had risen along with affluence. “Liberals first denied that crime was rising,” James Q. Wilson wrote. “Then, when the facts became undeniable, they blamed it on social programs that, through lack of funds and will, had not yet produced enough gains and on police departments that, out of prejudice or ignorance, were brutal and unresponsive. It was not made clear, of course, just why more affluence would reduce crime when some affluence had seemingly increased it, or why criminals would be more fearful of gentle cops than of tough ones.”

  Others preferred to probe the “root causes” of crime. As a result of the “baby boom” following World War II, it was noted, the segment of the population from fifteen to twenty-four years old grew by over a million persons a year during the 1960s. This was said to be a highly crime-prone group that may have caused roughly half of the crime rise. Still others found the source of crime, especially white-collar crime, in the structure of economic and political power within American corporate capitalism. Still others contended that a growing underclass of the poor and alienated had been left in the slums; that the superabundance of expensive consumer goods for the middle classes, including costly cameras, color televisions, and the like, had boosted both the opportunity and the temptation of crime; that drugs in the 1960s and thereafter, like alcohol in the 1920s, had created an addictive subcu
lture dependent on crime; that the root of the problem was not poverty in the measurable monetary sense but a culture of ignorance, apathy, degradation, mental and physical illness, low motivation, and damaged self-esteem that had little connection with rising affluence. Most likely the “root cause” lay in the reinforcing interaction of all or most of these factors.

  There was little debate over the impact of rising crime on the criminal justice system. The number of criminal cases filed in all federal district courts rose from 28,000 in 1960 to almost 36,000 in 1983, in federal appeals courts from 623 to 4,790. Criminal trials completed soared from 3,500 to over 6,600 between the same years. These criminal cases in the federal courts had to compete for personnel and funds with an almost fivefold jump in federal civil filings, and all these with an explosion of criminal and civil cases in state and local courts. This enormously stepped-up caseload fell on a system of criminal justice with often ancient features—sheriffs and police, bailiffs and bail vendors, parole and probation officers, arraignments, charges, hearings, trials, postponements, continuances, depositions, grand and petit juries, sentences, appeals, revocations, clemency and pardons—a system that had hardly changed in essential form from the days of Dickens’s Bleak House. It was as if a great mass of cars, buses, and trucks had suddenly overwhelmed an ancient network of roads, ferries, canals, horse trails, and tollhouses.

  Months and years of delay was only the first of a series of stinging indictments brought against the whole criminal justice system. Plea bargaining had become so extensive, it was charged, that the court proceeding had often become but a charade in which pleas were recorded before a judge, satisfying the demands of justice while mocking them. Drawn disproportionately from the lower-middle and middle classes, juries often were not competent to rule on street crime. The failings of the system, wrote a Harvard law professor and former prosecutor, were not “isolable, incidental features of a generally sound process” but characteristic and intrinsic features. The “revolution in criminal procedure” that people liked to talk about, he said, was more a matter of just spinning wheels.