Cleaning Up the Legal Debris Left in the Wake of Whitewater

Abstract

We have learned a lot in the twenty-five years since Watergate. During the scandal itself, we confirmed that the President is not above the law. We learned that executive privilege is constitutionally protected, but that it is not absolute. And, we learned that a need exists for an independent counsel, but that we don't necessarily need a statute to establish such an office. Watergate and the Nixon era spawned several so-called "reforms": the establishment of the independent counsel statute, presidential immunity from civil damage suits for official action, and public ownership of the President's official papers. It is interesting and appropriate, on the silver anniversary of these events, to evaluate these reforms: are they shining sterling or tarnished mistakes? What have we learned in the twenty-five years since Watergate? I submit we have learned several important lessons. First, it is dangerous to sue a sitting President as if he were an ordinary citizen. Second, it is dangerous to have an independent counsel statute, at least as it is presently constructed. Finally, the evidentiary privileges related to the Office of the President are extremely complex and in need of clarification.