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43 St. Louis U. L.J. 725 (1999)
The Legalization of the Presidency: A Twenty-Five Year Watergate Retrospective

handle is hein.journals/stlulj43 and id is 735 raw text is: THE LEGALIZATION OF THE PRESIDENCY: A TWENTY-FIVE
YEAR WATERGATE RETROSPECTIVE
MICHAEL A. FITTS
Is history destiny? Are those who ignore it, as has often been prophesized,
condemned to repeat it?
As Americans we benefit enormously from our exploration, even obses-
sion, with the past. The rewards flowing from such retrospective searches are
partly instrumental. Historical inquiry helps us better appreciate the potential
upsides as well as pitfalls of our current choices. But even if the past is neither
a replica of, nor a moral precedent for, the future, American history necessarily
shapes our personal and collective understanding of the present. Our current
debates are deeply effected by our retrospective understanding of the meaning
of what preceded us.
The events surrounding Watergate poignantly serve both roles for separa-
tion of powers enthusiasts. Indeed, few, if any, episodes in our separation of
powers history capture the public and academic imagination to the same de-
gree. Watergate has also framed much of the subsequent debate over the
proper role of the presidency, especially for longitudinally challenged baby
boomers, who make up much of the current crop of legal academics. For us,
this period was a defining moment in our understanding of the proper exercise
and potential abuse of presidential authority. It also underscored the necessity
for the rule of law in controlling that most individual, and personal, of institu-
tions-the presidency.1
With this picture of executive abuse frozen in our collective mind, the
Watergate lessons have since resulted in, or at least provide a theoretical ra-
tionalization for, much legislation subjecting the presidency to greater legal
*Robert G. Fuller, Jr., Professor of Law, University of Pennsylvania School of Law. The author
would like to thank Chaim Stem for his excellent research assistance in the preparation of this
article.
1. Indeed, the author spent an unsettling evening in a Harvard dorm during the so-called
Saturday Night Massacre. The reason: the dorm Master, the Deputy Watergate Prosecutor, as-
sumed the position of Acting Special Prosecutor that evening by virtue of Archibald Cox's invol-
untary departure. As the FBI surrounded the Special Prosecutor's offices in Washington, we all
imagined, by virtue of the succession, that our dorm was next. In this sense, Watergate may have
been the one time in our generational history when we actually imagined the possibility of armed
conflict over the control of the United States government.

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