Breaking Watergate's Hold on the Presidency

The Justice Department’s blockbuster decision to drop charges against New City Mayor Eric Adams—and the resignation and dismissal of high-profile federal prosecutors in New York who disagreed—has critics hoping (and supporters worried) that President Donald Trump is repeating Richard Nixon’s failed attempt to politicize federal law enforcement.  But the focus on the latest skirmish between Trump and progressives obscures his broader ambition: to free the presidency from its Watergate-era shackles.

The latest accusation that Trump is sparking a constitutional and legal crisis stems from the Adams case.  Rather than carry out an order from Acting Deputy Attorney General Emil Bove, the acting U.S. Attorney in New York City, Danielle Sassoon, resigned.  When Bove transferred the case to public corruption prosecutors at Main Justice, they resigned too.  Sassoon claimed that Bove and, by extension, Trump, were acting unethically by seeking to drop charges not because of weaknesses in the facts or law but because they want New York City’s cooperation to catch more illegal immigrants.

Sassoon wrote to Attorney General Pam Bondi that dropping the Adams case was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts.”  A resignation letter by another prosecutor, Hagan Scotten, was even more devastating. Any federal prosecutor “would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials.”  He added: “If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.”

Critics accuse the Trump administration of repeating one of the worst moments of the Nixon years: the Saturday Night Massacre.  On October 20, 1973, Nixon ordered the removal of special counsel Archibald Cox for attempting to subpoena Oval Office recordings.  The Attorney General and Deputy Attorney General resigned rather than carry out the order.  Solicitor General Robert Bork, who also wished to resign, remained in office and fired Cox.  Immediate and overwhelming outrage forced Nixon to appoint another special counsel, Leon Jaworski, who went to the Supreme Court to get his hands on the Watergate Tapes; Nixon would resign less than a year later.

We do not argue here over the difficult question whether the winning of New York City’s cooperation with federal immigration authorities outweighs the value in pursuing Adams.  But history and practice make clear that individual prosecutions – no matter their factual and legal merits – must give way to broader considerations of the public interest.  President George Washington ordered charges dropped against Whiskey Rebellion insurrectionists because of the greater national good of stabilizing Western Pennsylvania .  As Justice Scalia noted in his celebrated dissent in Morrison v. Olsen, the President may balance a variety of factors, including some that are political (in a nonpartisan sense), when exercising prosecutorial discretion:

one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions—including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted—involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country.

But put that question aside.  The facile comparison to Watergate obscures the true historical influence of the Nixon administration on Trump’s moves today.  Far from random attacks on the legal establishment, the Trump administration is challenging a body of Watergate-era “reforms” that have disrupted presidential control over the executive branch and, as a result, dissipated “energy in the executive,” which Alexander Hamilton called “the leading character in the definition of good government.”  Those “framework” laws came from the hands of Nixon’s political enemies, who took advantage of the Watergate scandals to impose anti-executive “reforms” upon the presidency.  Nixon’s campaign shenanigans accompanied more serious, damaging revelations of intelligence agency misconduct and Vietnam War frustration.  

The Watergate-era Congresses embarked on a successful campaign to limit presidential power.  Trump seeks to overthrow that régime.  In the process, he may usher in a new era that takes power away from a vast, unaccountable Administrative State and returns responsibility to the people’s elected representatives, the President and Congress.  Exercising White House and Main Justice control over prosecutorial decisions, especially those involving local and state political leaders is part of the larger project of restoring presidential power over the executive branch itself.

The Watergate Reforms

The large Democratic congressional majorities in Congress during and after Watergate sought to limit the power of Presidents and to detach the administrative state from their control.  They passed laws such as the Federal Advisory Committee Act (1972), the War Powers Resolution (WPR) (1973), the Budget Control and Impoundment Act (1974), the Federal Election Campaign Act, the National Emergencies Act (1976), the International Emergency Economic Powers Act (1977), the Inspector General Act (IG Act) (1978), the Civil Service Reform Act (1978) and the Ethics in Government Act (1978).  Congress also launched the years-long hearings of the “Church Committee,” a Senate investigation into wrongdoing by the FBI and the CIA, that led to executive concessions, such as President Gerald Ford’s ban on assassinations and agreement to report covert action to Congress.

Congress had several goals.  One was to claw back (as Congress saw it) its authority over war-making, which recent presidents had supposedly usurped.  Another was to prevent the President from what Congress considered the unconstitutional practice of “impounding” funds that Congress had appropriated.  Still another purpose was to expose the workings of the executive branch to closer and more continuous congressional oversight and public scrutiny.  Finally, the purpose was to create a more “professional” federal bureaucracy independent of presidential control.

Overall, the Watergate era statutes have weakened the institution of the presidency without appreciably increasing Congressional responsibility.  The intelligence agencies have not been chastened:  in the first Trump term, their leaders concocted the fantasy that Trump was under Russian influence and prompted a special counsel investigation that crippled his presidency.  Under Biden, the Justice Department pursued investigations and, ultimately, prosecution of a past President – and leading contender for the office again – to drive him off the ballot.

The big winner of the Watergate reforms was neither the President nor the Congress, but the bureaucracy.  Since 1978, the civil service has enjoyed entrenched job security and benefits that surpass those of the private sector.  Federal bureaucrats do the bulk of the federal government’s work, but their jobs (unlike those of the relatively few Presidential political appointees) do not depend on election outcomes.  Predictably, the bureaucracy now exercises governmental power without sufficient democratic accountability.  Rather than counter the bureaucracy, the Democratic Congresses of the Watergate era and after delegated greater and greater authority to the agencies to regulate an unlimited set of economic, health and safety, environmental, and cultural issues.  Federal civil servants have frequently worked to thwart the policies of Trump and other Republican Presidents – policies that it was their duty to implement, not subvert.

Presidential Counter-Attacks

Presidents after Watergate struggled against these changes with mixed success.  President Nixon vetoed the WPR on constitutional grounds, but Congress overrode his veto.  (Later Administrations usually ignored the law.)  President Carter’s Justice Department objected on constitutional grounds to the IG Act.  Notwithstanding the statutory protections against removing IGs, one of President Reagan’s first official acts was to remove all fifteen confirmed and acting IGs then working in the executive branch.  Presidents Obama and Biden also removed IGs.  The Reagan Administration lost its 1988 Supreme Court challenge in Morrison v. Olsen to the Ethics in Government Act’s creation of a special counsel, but liberals recognized the law’s flaws once it was used against President Bill Clinton.  Recent Supreme Court case law has eviscerated Morrison: in Seila Law LLC v. Consumer Financial Protection Bureau (2020), the Supreme Court distinguished Morrison as a narrow exception applying only to inferior officers.

But Trump’s challenges to the Watergate framework are bolder and more comprehensive than the piecemeal and sporadic challenges of past Presidents.  Trump removed 17 IGs at a stroke.  He has ordered a spending freeze while his Administration reviewed the appropriations and has set up a challenge to the constitutionality of the Impoundment Control Act.  He has virtually shuttered agencies, such as USAID.  He is reducing the size of the bureaucracy through a combination of buyouts, firings, and sending employees home.  Civil servants who disagree, such as the federal prosecutors in New York and Washington, are resigning.

Indeed, Trump’s campaign goes even further simply than trying to reverse the Watergate legal régime.  He is explicitly challenging the constitutionality of “independent” agencies such as the National Labor Relations Board and the Securities and Exchange Commission, which were first established during the New Deal.  These multi-member regulatory commissions are “independent” because Congress has shielded their members from presidential removal except for breaking or abusing the law. Trump’s February 18, 2025, Executive Order Ensuring Accountability for All Agencies makes clear his determination to bring the regulatory functions of all independent agencies in the executive branch under presidential control.  In a February 12, 2025, letter to Congress, moreover, the Trump Justice Department declared that it will ask the Supreme Court to overrule Humphrey’s Executor (1935), which upheld these congressional mechanisms despite the President’s constitutional authority to supervise and, ultimately, remove the principal officers of the Executive Branch.  Trump has on his side the Roberts Court itself, which allowed President Trump in 2020 to fire the head of the Consumer Finance Protection Bureau, who enjoyed similar protections from presidential removal. Restoring direct control over all executive officers will allow all future Presidents again to “take care that the Laws be faithfully executed” with a unified agenda through the executive branch.

Back to the Future?

Richard Nixon's presidency marked the height of, in Harvard historian Arthur Schlesinger’s words, the “Imperial Presidency.”  FDR’s  New Deal and LBJ’s Great Society created a massive federal bureaucracy to administer a wide range of domestic affairs once considered off-limits to the national government.  Postwar Presidents also constructed a huge, permanent standing military and supporting national security apparatus. But progressives began to recoil in the late 1960s from their own handiwork when they saw it fall into Nixon’s hands.  Practices that progressives had once considered perfectly normal, like wage and price controls, war-making without congressional authorization, or reorganizing/downsizing government agencies now became, under Nixon, dangerous abuses of executive power.

Progressives’ effort to curb Nixon failed to liquidate the "Imperial Presidency."  They failed largely because Congress has continued to make irresponsible and excessive delegations of its legislative power to agencies such as the Environmental Protection Agency and the Occupational Safety and Health Administration.  While Congress handicapped the President’s ability to control the executive branch, it empowered an unelected bureaucracy and let it slip the leash of the people’s elected representatives.  The bureaucracy has increasingly gone its own way, neither taking direction from the President nor subjecting itself to congressional oversight.  Recent revelations of misspending at USAID, even while that agency was stonewalling inquiries from Congress, illustrate this kind of indifference to political controls.

President Trump's flurry of executive orders represents the most aggressive phase of the campaign against the dysfunctional administrative state.  Trump does not mean solely to turn back the clock to the “halcyon,” pre-Watergate days of the Imperial Presidency.  A President who wants to shut down the Department of Education and hand its responsibilities off to the states is not seeking to concentrate more power within the Executive branch.  

If Trump succeeds, the federal government's elected branches will re-acquire lost powers. Trump aims not to eviscerate congressional power but to restore a lost sense of congressional responsibility. Unelected and unresponsive bureaucrats should not make the hard decisions in domestic policy but, again, should return to popularly elected representatives.  At the same time, the President, too, would no longer be saddled with a recalcitrant bureaucracy.  The civil service will understand that it exists to carry out the President’s and Congress’s policies, not to pursue an agenda of its own.  Trump wants the right-sizing of the Administrative state, and certainly not its expansion.  His aim, as we see it, is not to accrue power to the executive but to see that power flows through its proper channels.  That is a goal worth fighting for.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute.

Robert Delahunty is a Washington Fellow of the Claremont Institute Center for the American Way of Life.