Balkinization: Who "Massacred" Whom on that Saturday Night?: The William Ruckelshaus Legacy (and Why it Has So Little Impact Today)

Who "Massacred" Whom on that Saturday Night?: The William Ruckelshaus Legacy (and Why it Has So Little Impact Today)

Marty Lederman

William Ruckelshaus died last Wednesday at age 87. Although he was twice a successful Administrator of the Environmental Protection Agency, he was best known for his role in the “Saturday Night Massacre” of October 20, 1973, when he was serving as Deputy Attorney General (and, for a fleetingly short period that night, empowered to exercise the authorities of the Attorney General).

The lede of the New York Times obituary recounts--correctly, as we'll see--that Ruckelshaus “resigned” from his office that evening. At the time, however, the Times, along with many other papers, reported that Nixon had fired Ruckelshaus—an account the Times repeated in stories for many decades thereafter.

So which was it—did Ruckelshaus jump or was he pushed? And why doesn't the example of the Saturday Night Massacre appear to have any lessons for, or impact on, our current situation?

Prelude

October 20 wasn’t the first day in 1973 that saw a dramatic turnover in the executive branch. On April 30, not even a half-year after Richard Nixon’s overwhelming re-election, the President fired his White House Counsel, John Dean, who had begun to cooperate with the Senate Select Committee investigating Watergate. That same day, White House Chief of Staff Bob Haldeman and Assistant for Domestic Affairs John Ehrlichman resigned in the wake of allegations of their roles in the cover-up. The Attorney General, Richard Kleindienst, also resigned that day because he had been close to some of those under DOJ investigation, including former Attorney General John Mitchell. Nixon announced that he was appointing the Secretary of Defense, Elliot Richardson, to be the next Attorney General. Nixon tasked Richardson with "uncovering the whole truth" about the Watergate scandal, and gave him "absolute authority" in that regard, including to appoint a special prosecutor to supervise the DOJ investigation.

At first, Richardson was reluctant to name a special prosecutor, but it soon became apparent the Senate Judiciary Committee wouldn’t approve his appointment until he agreed to do so. Accordingly, during his Senate confirmation hearings in May, Senators extracted a promise from Richardson that he would appoint such a prosecutor who’d have virtually complete independence to handle the investigation. Richardson even presented the Senate with a draft regulation that would guarantee such independence, and brought with him to testify before the Senate the man whom he promised to appoint: his former professor at Harvard Law School, Archibald Cox.

At the end of May, just after the Senate confirmed him as Attorney General, Richardson promulgated the promised regulation creating the Office of Watergate Special Prosecution Force, to be headed by a “Special Prosecutor.” The regulation specified, in particular, that:

That same day, Richardson appointed Cox to be Special Prosecutor.

After Alexander Butterfield revealed the existence of the Oval Office taping system on July 13, Nixon agreed to selectively turn over to Cox nine Watergate-related tapes, but that was only the (very selective) tip of the iceberg. Cox secured a grand jury subpoena requiring the President to produce even more of the tapes. Nixon refused to comply, explaining to Chief Judge John Sirica that “it would be inconsistent with the public interest and with the Constitutional position of the Presidency to make available recordings of meetings and telephone conversations in which [he] was a participant.” In late July, Sirica ordered Nixon to provide the tapes to the court so that he (Judge Sirica) could determine which, if any, of them Nixon could withhold from the grand jury on grounds of executive privilege. On Friday, October 12, the U.S. Court of Appeals for the D.C. Circuit affirmed Sirica’s ruling, thereby requiring Nixon to comply with it. A week of negotiations between Cox’s office and Nixon’s lawyers followed, but the parties failed to reach a compromise solution. In particular, Cox would not agree, as Nixon insisted, to promise that he wouldn’t again invoke the judicial process to compel further production of recordings, notes or memoranda regarding private presidential conversations. Nixon therefore decided that Cox had to be removed from office.

The “Massacre”

Richardson

On Saturday, October 20—the fateful day—Nixon directed Attorney General Richardson to remove Cox. Richardson understood, however, that such a removal wouldn’t be lawful, because Cox had not committed (and Nixon didn’t identify) any “extraordinary improprieties,” which was the regulatory standard for removal. Richardson wrote to Nixon that in light of the “firm and repeated commitments” he had made, in his confirmation hearings and in his regulation, he “could not … carry out your direction that this be done. In the circumstances, therefore, I feel that I have no choice but to resign.”

Nixon wrote back to Richardson, later that Saturday, that "[i]t is with the deepest regret and with an understanding of the circumstances which brought you to your decision that I accept your resignation."

Ruckelshaus

Once Richardson resigned, Ruckelshaus—the Deputy Attorney General—became statutorily empowered to “exercise all the duties” of the Office of Attorney General, including the possible removal of the Special Prosecutor. Alexander Haig, Nixon’s chief of staff, called Ruckelshaus that evening and told him that “your commander in chief has given you an order” to fire Cox.

Ruckelshaus was just 41 years old, had five young children, and was deeply honored to be serving as Deputy AG. Like Richardson, however, he had promised the Senate during his own recent confirmation hearings that he would protect Cox's independence, and he, too, knew that the regulatory standard for removal wasn’t met. Accordingly, Ruckelshaus also refused to carry out Nixon’s unlawful order, choosing instead to follow Richardson’s example and resign. “I am . . . sorry,” he wrote to Nixon in a letter “tender[ing]” his resignation, “that my conscience will not permit me to carry out your instruction to discharge Archibald Cox. My disagreement with that action at this time is too fundamental to permit me to act otherwise.”

A few days later Ruckelshaus explained that his refusal to obey the President was a “very easy” decision, “not an heroic act.” Anyone in public life, he said, has to keep before him “the option to resign,” even if he should only exercise it when confronted with “a fundamental disagreement” with a superior’s directive. “There has to be a line,” he said, “over which any public official refuses to step.” The decision to resign, said Ruckelshaus, is inevitable when you’re asked to do something “that your conscience simply will not permit you to do.”

In a speech many decades later, Ruckelshaus reflected further on what he considered to be his easy choice in 1973:

I don’t believe you resign from a presidential appointment without considerable cause. You owe a duty of loyalty to the President that transcends most other duties, save the paramount one owed to the American people themselves. Certainly you do not resign because you do not get your way or the President makes a decision contrary to what you might have done had you been elected president. That, of course, is precisely the point. He was elected and you were not. By the terms of your appointment, you serve at his pleasure.

However, when you accept a presidential appointment you must remind yourself there are lines over which you will not step — lines impossible to define in advance but nevertheless always present. The line for me was considerably behind where I would have been standing had I fired Cox. In this case, the line was bright and the decision was simple.

Cox (and the Office of Watergate Special Prosecution Force)

Next in the statutory line of “succession” to exercise the Attorney General’s functions was the Solicitor General, Robert Bork, on leave from teaching at Yale Law School. Nixon wrote to Bork that evening: “[I]n your capacity of Acting Attorney General, I direct you to discharge Mr. Cox immediately and to take all steps necessary to return to the Department of Justice the functions now being performed by the Watergate special prosecution force.”

After consulting with Richardson and Ruckelshaus, Bork complied with at least the first part of Nixon’s “direct[ive].” He wrote to Cox:

Dear Mr. Cox:

As provided by Title 28, Section 508(B) of the United States Code and Title 28, Section 0.132(A) of the Code of Federal Regulations, I have today assumed the duties of Acting Attorney General.

In that capacity I am, as instructed by the President, discharging you, effective at once, from your position as special prosecutor, Watergate special prosecution force.

Very truly yours,

ROBERT H. BORK

(As far as I know, this is the only historical example of a Yale Law professor purporting to fire a Harvard Law professor.)

It appears that Bork was (understandably) uncertain about the legality of this discharge, in light of the governing regulation stating that “[t]he Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part," and further stating that Cox would carry out his responsibilities "until such time as, in his judgment, he has completed them or until a date mutually agreed upon between the Attorney General and himself." 38 Fed. Reg. 14688. Presumably because the regulatory removal standard was manifestly not met in Cox’s case, Bork took another step, three days later—effectively complying with the second part of Nixon’s directive to him. On Tuesday, October 23, Bork issued a new Attorney General regulation "abolish[ing]" the office of Watergate Special Prosecution Force and "revok[ing]" the regulations that had established the office and conferred removal protection on the Special Prosecutor. Bork purported to make this revocation of the earlier regulation retroactive, "effective as of [Sunday], October 21, 1973." 38 Fed. Reg. 29466.

The Source of the Confusion About Ruckelshaus

As noted above, Ruckelshaus, like Richardson, resigned from office on October 20, as reflected in his letter to the President that evening (a letter that Ruckelshaus released to the press). Indeed, Nixon himself at least twice confirmed that Ruckelshaus had resigned. In his memo to Bork that Saturday evening, Nixon wrote that "I have today accepted the resignation of Attorney General Richardson and Deputy Attorney General Ruckelshaus." And in a press conference the following Friday, Nixon accurately stated that “I accepted with regret the resignations of two fine public servants.”

That’s not, however, how much of the world understood what happened to Ruckelshaus for many years thereafter. The morning after the “Massacre,” the New York Times and many other media sources reported that Nixon had removed Ruckelshaus from office. The Times repeated that account as late as 1987 . . . and 2000 . . . and again in 2004. In an opinion issued on November 14, 1973, just 25 days after the “Massacre,” in a case involving the firing of Cox, Judge Gerhard Gesell likewise wrote that Ruckelshaus had been "discharged for refusing to [remove Cox]." And in his memoir about the episode, Robert Bork himself wrote (without citation) that Ruckelshaus offered his resignation but that Nixon “refused his resignation, choosing to fire him instead.”

I’m fairly certain that the primary source of this widespread misinformation was a press release issued on that Saturday night by White House Press Secretary Ron Ziegler. Ziegler’s release stated that although Attorney General Richardson “felt obliged to resign,” “[t]he Deputy Attorney General, Mr. William Ruckelshaus, refused to carry out the President's explicit directive to discharge Mr. Cox, [and therefore] he, like Mr. Cox, has been discharged of further duties effective immediately.”

That wasn't the only mistake in Ziegler’s statement. He also asserted that President Nixon himself had “tonight discharged Archibald Cox”—something that never happened—and that the office of the Watergate Special Prosecution Force had “been abolished as of approximately 8 P.M. tonight”—something that Bork didn’t do until the following Tuesday.

Ziegler himself probably wasn’t the one responsible for these mistakes—presumably someone else probably wrote the false script for him to distribute. Perhaps it was Nixon himself—but he only met with Ziegler for one minute that evening, at 8:16 p.m., just before joining the “presidential party” in the White House Theater for a showing of the 1946 William Dieterle film “The Searching Wind.” (Nixon stepped out from the film to the White House Library for two minutes just before 9:00. It isn’t reported what the President did in the Library.) More likely, Chief of Staff Alexander Haig was the culprit. Haig wasn’t exactly a stickler for factual accuracy or legal precision. (Recall, for example, that he told Ruckelshaus that evening that “your commander in chief has given you an order” to fire Cox, despite the fact that Nixon wasn’t Ruckelshaus’s “commander in chief”—a status the President enjoys only with respect to the Armed Forces. More famously, eight years later Haig tried to reassure the public after President Reagan had been shot that “as of now, I am in control here, in the White House.”)

In any event, regardless of who was responsible for the false reports, they stuck. Because most press stories took Ziegler’s press release at face value, many people for decades believed that Nixon removed Ruckelshaus from office on October 20, 1973. Ruckelshaus himself, of course, knew otherwise. Nevertheless, he declined to make too much of the mistaken understandings. To the contrary, as he charmingly wrote many years later, because of the confusing statements on the evening of October 20, "I ... can lay claim to having resigned or been fired, and often do, depending on the audience."

The Legal Questions

The Saturday Night Massacre raised several interesting legal questions that continue to have resonance, and possible relevance, today.

1. Was Bork’s Removal of Cox Lawful?

No. It clearly violated the extant Department of Justice regulation that allowed removal only upon a finding by the Attorney General that the Special Prosecutor had engaged in “extraordinary improprieties.” Indeed, in a lawsuit Ralph Nader filed challenging the removal, the Department of Justice “freely admitted” that that standard had not been satisfied. Nader v. Bork, 366 F. Supp. at 107; cf. also United States v. Nixon, 418 U.S. at 696 n.10 (noting that there was “no contention here that the Special Prosecutor [who succeeded Cox, Leon Jaworski] [was] guilty of any such impropriety” under circumstances involving a similar refusal to abide by Nixon's directive not to subpoena tapes).

2. Was It Lawful for Bork to Rescind the Special Prosecutor Regulation on October 23, “retroactive” to Sunday, October 21?

That’s a harder question. Judge Gesell concluded that Bork’s effort to rescind the regulation and thereby eliminate the Office was not lawful, for two reasons (366 F. Supp. at 108-09):

Defendant suggests that, even if Mr. Cox's discharge had been unlawful on October 20, the subsequent abolition of the Office of Watergate Special Prosecutor was legal and effectively discharged Mr. Cox at that time. This contention is also without merit. It is true that an agency has wide discretion in amending or revoking its regulations. United States v. O'Brien, 391 U.S. 367, 380 (1968). However, we are once again confronted with a situation in which the Attorney General voluntarily limited his otherwise broad authority. The instant regulation contains within its own terms a provision that the Watergate Special Prosecutor (as opposed to any particular occupant of that office) will continue to carry out his responsibilities until he consents to the termination of that assignment. This clause can only be read as a bar to the total abolition of the Office of Watergate Special Prosecutor without the Special Prosecutor's consent, and the Court sees no reason why the Attorney General cannot by regulation impose such a limitation upon himself and his successors.

Even if the Court were to hold otherwise, however, it could not conclude that the defendant's Order of October 23 revoking the regulation was legal. An agency's power to revoke its regulations is not unlimited such action must be neither arbitrary nor unreasonable. Kelly v. United States Dept. of Interior, 339 F. Supp. 1095, 1100 (E.D.Cal.1972). Cf. Grain Elevator, Flour and Feed Mill Workers v. NLRB., 376 F.2d 774 (1967); Morrison Mill Co. v. Freeman, 365 F.2d 525 (1966. In the instant case, the defendant abolished the Office of Watergate Special Prosecutor on October 23, and reinstated it less than three weeks later under a virtually identical regulation. It is clear that this turnabout was simply a ruse to permit the discharge of Mr. Cox without otherwise affecting the Office of the Special Prosecutor—a result which could not legally have been accomplished while the regulation was in effect under the circumstances presented in this case. Defendant's Order revoking the original regulation was therefore arbitrary and unreasonable, and must be held to have been without force or effect.

On the other hand, in the subsequent tapes case the following year, the Supreme Court suggested that it would have been “theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority” in order to eliminate the Prosecutor’s independence. 418 U.S. at 696. Chief Justice Burger did not explain what was “theoretical[]” about that possibility.

3. Why Didn’t Nixon Himself Fire Cox?

Why didn't Nixon simply do what Ziegler's press release that Saturday night (mistakenly) alleged he had done—namely, remove Cox himself, thereby sparing himself the "massacre" of the resignation of his top two, loyal, Department of Justice officers? As I explain above, any removal of Cox would have been unlawful in light of the Department of Justice regulation, but Nixon himself apparently concluded otherwise. Assuming that was so, why didn’t he do the dirty work himself?

Because everyone at the time understood—correctly—that the President doesn’t have the power to remove inferior officers whom he didn’t appoint. As I explained in connection with President Trump’s mistaken assertion that he could have fired Robert Mueller, the statutory power to appoint a Special Counsel is vested in the Attorney General, and the longstanding general rule is that unless Congress specifies otherwise, “the power of removal [is] incident to the power of appointment.” Thus “the President has certainly no power to remove” officers appointed by a department head (absent statutory authorization for such presidential removal, which wasn’t present in Cox's case). Ex parte Hennen, 38 U.S. (13 Pet.) 230, 260 (1839). Such removal must be done, if at all, only by the department head who appointed the officer—in the case of the Watergate Special Prosecutor, by the Attorney General or a subordinate officer, such as Ruckelshaus or Bork, empowered to exercise an absent Attorney General’s authority. Id. at 259-60; accord PCAOB v. FEF, 561 U.S. 477, 493 (2010). (In my Mueller post, I also cite recent briefs to the same effect filed by Solicitors General Kagan and Francisco.)

4. Was it Lawful for Richardson and Ruckelshaus to Disregard Nixon’s Order—and Did They Have to Resign When They Refused to Fire Cox?

It’s an open question whether Nixon would have had the statutory authority to direct Richardson and Ruckelshaus to remove Cox under any circumstances. Compare, e.g., Elena Kagan with Kevin Stack. On October 20, 1973, however, that presidential directive was to perform a manifestly unlawful act, and therefore Richardson and Ruckelshaus almost certainly had no legal obligation to comply with the order. Indeed, I think the better view is that they could have refused to comply and refused to resign—thereby effectively requiring Nixon to remove them himself if he wished to get rid of Cox, with all the attendant political costs such a triple-removal would have entailed. (That is, in effect, the option that Acting Attorney General Sally Yates exercised when she refused to defend President Trump’s first “travel ban” in early 2017, knowing that the President had promulgated it for unconstitutional reasons. Yates understood, of course, that Trump would promptly remove her, which is indeed what happened. As I’ve explained elsewhere, however, I don’t think she was obliged to resign under the circumstances she confronted. But see Jack Goldsmith (arguing that Yates ought to have resigned).)

5. Who’s Responsible for the Moniker “The Saturday Night Massacre”?

OK, so this one's not a legal question. But I’ve included it anyway because it’s one of the great mysteries of modern political history. By Monday, October 22, just two days after the fact, David Broder was already reporting, in the passive voice, that the events of October 20 were “being called” the “Saturday Night Massacre” . . . but Broder didn’t say by whom. It might’ve been Art Buchwald, in a phone call with Ben Bradlee—and even if it wasn’t, it should have been.

Aftermath, and Contrast with Our Present Situation

As David Broder noted at the time, the prevailing view in the White House was that the “massacre” was necessary in order to preserve Nixon’s presidency and that his own party would stand behind him—that “time is on the side of the President, [and] that as the shock of what is being called the ‘Saturday night massacre’ wears off, the legality and propriety of Mr. Nixon’s actions will be broadly endorsed by Republicans.”

That was a serious miscalculation. The events of October 20 ignited a political firestorm that grievously weakened Nixon. Before that Saturday night, only a few of the most outspoken liberal Democrats in Congress advocated impeachment. But less than a week later, a plurality of voters supported impeachment for the first time, numerous members of Congress introduced resolutions of impeachment against Nixon, and the House Judiciary Committee had begun a formal preliminary impeachment investigation.

Perhaps more importantly, Nixon almost immediately was forced to accede to the appointment of a new Special Prosecutor with even greater independent authority than Cox had ever had. On November 1, 1973, Acting Attorney General Bork announced that he was going to revive the Special Prosecutor's office that he had abolished just eight days earlier, and would appoint Houston trial lawyer Leon Jaworski to be the new Watergate prosecutor. Nixon himself promised Jaworski full independence, with a guarantee he wouldn't be removed without approval from congressional leaders of both parties. Bork publicly pledged that Jaworski would have "the full cooperation of the executive branch in the pursuit of his investigation," and that it was "absolutely clear" Jaworski would be free to go to court to press for additional tapes and presidential papers if he deemed it necessary. As Jaworski himself said at the news conference, "There are no restraints. I am not prohibited from taking any action I might feel should be taken."

The soon-forthcoming DOJ regulation re-establishing the Special Prosecutor’s Office guaranteed this and more—almost certainly a greater degree of independence and tenure-protection than any federal prosecutor has ever had. See 38 Fed. Reg. 30739; id. at 32805. It read in pertinent part:

In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General's statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor’s decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, (1) the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and-House of Representatives and ascertaining that their consensus is in accord with his proposed action, and (2) the jurisdiction of the Special Prosecutor will not be limited without the President's first consulting with such Members of Congress and ascertaining that their consensus is in accord with his proposed action.

Just to drive the point home, a couple of weeks later, at the Senate confirmation hearing for Nixon’s proposed new Attorney General, William Saxbe, Senators insisted that Jaworski sit right beside Saxbe while they extracted from the AG-to-be dozens of commitments that he and the President would not interfere with Jaworski under every imaginable scenario.

These legal and political promises of extraordinary independence for Jaworski led inexorably to Nixon’s resignation less than a year later, after the Supreme Court ruled that the new DOJ regulation gave Jaworski the power to disregard Nixon’s decision not to turn over even more incriminating tapes to the grand jury, and to sue Nixon, on behalf of “the United States,” to enforce a subpoena requiring such disclosure. When the Court then also ruled against Nixon on his assertion of executive privilege, the jig was up.

It was thus no exaggeration when Tony Lewis wrote not long afterward that by insisting upon Cox’s removal in October 1973, Nixon “assured his own destruction.”

It’s sobering to recall that the Saturday Night Massacre occurred less than a year after Nixon had secured over 61% of the popular vote and had won by greater than an eight-percent margin in 47 states. Before the "Massacre," Nixon enjoyed far greater popularity than Donald Trump has ever had, and even after October 20, Nixon’s approval ratings “only” dropped to approximately where Trump’s have been for several years now. Yet Nixon was forced from office soon thereafter, whereas it’s unlikely that more than a handful of Republican Senators, if that, will vote to convict and remove Trump, whose wrongdoings are far more systematic and more uncontroverted than Nixon’s ever were.

To take only two of many examples--the ones that are perhaps most analogous to the Saturday Night Massacre)--to illustrate the dramatic difference that 45 years can make: Imagine if Nixon had tried to personally stymie a DOJ investigation into his own campaign’s involvements with a foreign power dedicated to interfering in the U.S. electoral process—going so far as to fire the FBI Director; attempt to pressure the Attorney General to remove the Special Counsel on baldly pretextual grounds; and encourage witnesses to cease cooperation with the investigation. Or if Nixon had directed the entire Executive branch not to cooperate with the House’s impeachment inquiry—and to refuse all requests or subpoenas for documents. He obviously would have been forced from office even earlier than August of 1974.

In an important Op-Ed yesterday, Bob Bauer draws an even starker contrast:

Richard Nixon despised his opposition, convinced of their bad faith and implacable hatred for him. But it is hard to imagine Mr. Trump choosing (and actually meaning) these words to conclude, as Nixon did, a letter to the chair of Judiciary Committee: “[If] the committee desires further information from me … I stand ready to answer, under oath, pertinent written interrogatories, and to be interviewed under oath by you and the ranking minority member at the White House.”

Mr. Trump has instead described Adam Schiff, the chairman of the Intelligence Committee, as a “corrupt” politician who shares with other “human scum” the objective of running the “most unfair hearings in American history.”

It’s fairly certain that Nixon would have left office even sooner had he done even a small percentage of what Trump has done to interfere, for purposes of his own aggrandizement and re-election, with law enforcement, prosecutorial decision-making, the intelligence community, foreign diplomacy, the military justice system, the pardon power, etc. And yet Trump will almost certainly not follow in Nixon's footsteps, despite having been elected with almost three million votes fewer than his opponent, and having never approached even a 50% approval rating.

What explains the fact that the far less popular president is immune from Nixon’s fate? The very different posture of congressional Republicans in the two eras, of course. When Nixon’s wrongdoing emerged, a significant chunk of Republicans in Congress abandoned their support for him—and very few, if any, insisted, as most or all House Republicans are now doing, that the President’s conduct was unobjectionable. Notably, the Republicans who did the right thing in 1973-1974 did so despite the fact that their states and districts were overwhelmingly Republican. Six of the seven Republican members of House Judiciary Committee who voted in favor of one or more Articles of Impeachment against Nixon, for instance—votes taken six days before Nixon released the “smoking gun” tape—hailed from states in which Nixon received over 58 percent of the vote less than two years earlier, and all six of them had won their own elections in landslides. And several weeks earlier—even before the Supreme Court rejected Nixon’s claim of executive privilege in the tapes case—all but one of the GOP members of that Committee unceremoniously rejected Nixon’s claim of privilege with respect to disclosure of the tapes to the Committee itself for purposes of the impeachment inquiry.

Why isn’t there now a similar cadre of Republicans likewise taking their constitutional oaths seriously, with respect to a far less popular president? That’s obviously a complicated topic, but a large part of the answer involves changes in electoral dynamics caused by our decidedly nonmajoritarian constitutional system of choosing national officers and the increasing geographic polarization of voters of each major party. The congressional Republicans in 1973 and 1974 recognized that in order for their party to retain hope of controlling any branch of the federal government, they needed the support, not necessarily of the 61% of the electorate who had voted for Nixon, but of at least a solid majority of voters—and Nixon’s support had fallen well beneath that mark, close to Trump-levels.

Today, by contrast, the Republican Party can retain control of the presidency and the Senate—and continue its domination of the Supreme Court for well into a second half-century—simply by securing the support of about 45% of the electorate, a figure that would have been catastrophic for the Republican Party in 1974.

Posted 7:16 AM by Marty Lederman [link]