This is an address given at the 97th Annual Convention of the American Bar Association in Honolulu, Hawaii, on August 15, 1974

Richardson, Elliot L.

English

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Buffalo Law Review Volume 24 Number 2 Article 2 1-1-1975 The Watergate Morality Elliot L. Richardson Ambassador to the Court of St. James Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation Elliot L. Richardson, The Watergate Morality, 24 Buff. L. Rev. 267 (1975). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol24/iss2/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE WATERGATE MORALITY*ELLIOT L. RiCHARDSON**t was, as President Ford so aptly said, a long nightmare. We haveawakened with a sense not only of vast relief but also of consider-able pride both in our institutions and in ourselves. The pride is justi-fiable. As a people, we have been patient and fair-minded. Our con-stitutional processes-our courts, our Congress, our system of checksand balances, and the impeachment process itself-have been tested asnever before. And they have been found not wanting. In accordancewith constitutional procedures, an orderly transfer of power has beenaccomplished under extraordinary conditions of strain. We do indeedhave: "A Constitution for All Seasons."We are entitled to a brief binge of euphoria-but only brief.These are not times to lapse into smugness. To dose the Watergatechapter on a note of self-congratulation would be a serious mistake.The reason to be wary of smugness is simply this: smugness wouldfeed the impulse to wall off Watergate-as if one could encapsulatethe whole tragic mess and put it aside as an unfortunate aberrationhaving no antecedents in the American past and no continuing rela-tionship to American society as a whole. This might be a harmlessdelusion but for one very real concern: if we do not treat the under-lying disease which erupted in Watergate, we condemn ourselves notonly to some recurrence of its symptoms but also to a continued de-cline in the general health of our society.A fallacy that must be purged at the outset is the notion that thechief actors in Watergate were uniquely evil men. Among their per-sonal characteristics, in fact, are some that are highly esteemed by oursociety: for instance, the determination to succeed, to prevail, to win.That great sage, Leo Durocher, is venerated for the maxim: "Niceguys finish last." Another, George Allen, is famous for telling us thatit's not how you play the game, but whether you win or lose-anopinion presumably to be read in conjunction with the dictum ofVince Lombardi: "Winning isn't everything: it's the only thing." In*This is an address given at the 97th Annual Convention of the American BarAssociation in Honolulu, Hawaii, on August 15, 1974.** Ambassador to the Court of St. James.BUFFALO LAW REVIEWan organization dedicated to winning, the willingness to subordinateone's concern for self to the collective good is much admired. To sayof a colleague that he is a "good team player" is ordinarily high praise.When an obsession with winning is joined with an uncritical be-lief in. the complete rightness of one's own patriotic motives-the ad-vancement and protection of national security, the promotion of fiscalresponsibility and the reduction of excessive reliance on the centralgovernment-it is hardly surprising that a by-product is the gut feelingthat anyone who questions or obstructs the chosen path toward theseenlightened aims is "the enemy." One has, then, all the ingredientsneeded to rationalize the conviction that the end is all-important.But even this supercharged combination of organizational zealand patriotic fervor would probably not have been enough to bringabout Watergate but for the history of two generations in which thenotion of a "strong", Presidency had been highly touted, in which anobsession with "national security" was the legacy of three hot wars andone cold one, and in which the Congress had persisted in making thepower ofthe central government more pervasive and ubiquitous.To a staff associate, even a highly placed one, the prestige of thePresidential. office can be awe-inspiring. In this context, it takes heroiceffort for the subordinate to recognize that a President's whims are notnecessarily made of cast iron. And when, finally, you mix in a limitedsense of humor and adjust for a lack of imagination, the sum totalgoes a long way toward explaining, though it can not excuse, thewrongs that were done.The explanation does not-and should not-dispel our sense ofshock and outrage. But it does force to the surface the painful aware-ness that where our reaction does not smack of self-righteousness it istinged with self-doubt: how many of us can be sure we would havebeen able to resist this kind of pressure? We want to believe, of course,that our moral sensitivity is too acute, and that the inner voice whichtells us where to draw the line between right and wrong is too strongand compelling to have permitted us to be guilty of such unconscion-able acts. In my own case, though I have been given much credit forwhat seemed to me a relatively simple, clear-cut decision, I can onlyhope that it would have been so.The danger is that we convince ourselves that the attitudes andattributes of the "Watergate morality" are rare-that it was sheerbad luck which brought together a President and a group of close as-WATERGATE MORALITYsocifates! of peculiar and similar stripe Not that the particular. com-bination of abuses that occurred in Watergate is likely to be repeated:that is'not the problem. The problem is that the forces underlyingWatergate morality persist. And very importantly among these forces,although not sufficiently appreciated as .such, is the decline of a senseof community. A community is a transmitter and sustainer of values.The weakening of a sense of community must inevitably lead to aweakening of values. Those who lack a sense of community becomeprone to a rootless kind of amorality that makes them easily influencedby the institutional value systems to which they happen for the timebeing to belong. Watergate was a tragedy not so much of immoralmen as of amoral men-not so much ofiruthless men as of rootlessmen..When a person's primary allegiance is only to his temporary em-ployer, and not to any larger community, it takes strength of charac-ter to buck the system. For those who do not have any such fortitude,the only common denominator among successive assignments 'is thesustained pursuit of self-:interest.Excessive absorption in self-interest leads, in turn, to individu-alism unconstrained by respect for other individuals. In the absenceof a sense of community-the essence of which requires an apprecia-ion of one's fundamental dependence upon others-there emerges atendency to regard the just claims of others as unreal and unimpor-tant. The impulse to cheat is easily indulged: the falsification of in-surance claims, the padding of expense accounts, the nonreporting oftaxable income, or the overstatement of deductible expenses has sodiffuse an impact on so large a group-a faceless mass of policyholders,shareholders, or taxpayers-that it's tempting to overlook or 'ignorethe harm that is done to them. The facile assertion that "everybodydoes it" slips imperceptibly from rationalization to reality. 'The ,even-tual outcome is demoralization in the most literal sense of the word.America is still, fortunately, at the early stages of this process. Weare still, basically, a decent and moral people-but the more- so whenwe see and know those who would be hurt by our selfishness. To checkthe' mindless slide toward amorality and self-indulgence, only two pos-sible, remedies seem realistic. One is properly a subject of public policy.The other can only be a matter of personal practice. The first is: torebuild a sense of community. The second is to give a higher place toBUFFALO LAW REVIEWobligations in their inseparable relationship to the recognition ofrights.As to a sense of community, this is not the time or place for adetailed exposition. The desirable directions of public policy, how-ever, can be quickly sketched: maximum feasible decentralization ofgovernment functions and the creation of effective means of citizenparticipation; a national growth policy which encourages the buildingof new towns and the dispersion of industrial centers; urban planningwhich builds around the natural neighborhood centers like schools;and the development of technological means of enabling localities totake advantage of area-wide administrative services while keepingpolicy control in their own hands. These are all measures that wouldhelp to offset, if not turn around, the trends tending to destroy com-munities; to submerge the sense of individual significance; and toweaken, thereby, the sense of responsibility.The matter of obligations has more direct relevance for an audi-ence of lawyers. It is generally taken for granted, though it is not quitetrue, that obligations are the reciprocal of rights. So insistent, how-ever, has been the drumbeat accompanying the steady forward marchof rights during the past decade, that the voice of obligations hasscarcely been heard. Certainly not since adoption of the Bill of Rightshas this nation seen anything like it. In education, voting, housing,health, privacy, and other areas, the courts will now grant affirmativeremedies in countless situations where, only ten years ago, no recoursewas open. And the evolutionary process still goes forward. An exam-ple is the "right to treatment." First recognized by Judge Johnson ofthe Federal District Court for the Northern District of Alabama in1971, the right of the mentally ill and the mentally retarded to a courtorder requiring a state to increase its expenditures for professionalstaffing is bound to have enormous ramifications.The recognition of obligations, meanwhile, has suffered. How,one might ask, can that possibly be? If obligations were the necessaryreciprocal of rights, the recognition of a right would automaticallycarry with it the enforcement of an obligation, either affirmative ornegative. If I have a right to speak my mind, you have an obligationto refrain from any attempt to keep me quiet. And if I have a rightto adequate medical care, someone must have an obligation to provideit. But as I said a moment ago, the general assumption that obliga-WATERGATE MORALITYtions are the automatic reciprocal of rights is not wholly true. Rightsmay be declared, but not observed; they are not self-fulfilling.Obligations, in any case, transcend rights: the full extent of myobligation to respect my neighbor's right to worship as he pleases can-not be spelled out in any court decree. Obligations embody a moral,and not merely a legal, command. And yet, it seems to me, we in-creasingly tend to behave as if the minimum required by the law werethe maximum required of us.Take, for instance, the sanctions against misconduct enforced bythe criminal law. They punish stealing but not a lack of generosity.They punish the man who uses his hand as a weapon, not the manwho fails to extend it in help. In the case of civil rights, the law canenforce their observance but not their respect. Indeed, where there istrue respect for other people-the awareness that each is a unique,sacrosanct individual equal in dignity to every other human being-there is an awareness of obligation which is higher and more sensitivethan any requirement of the law.But to say that a stronger dose of obligations is a key remedy forfor the Watergate mentality, but one which the law cannot adminis-ter, is not to say that lawyers have no role. On the contrary, wherethe implications of individual or corporate actions are concerned,lawyers have a critical role and a unique opportunity. On the nega-tive side, that has all too amply been demonstrated by recent events.But on the affirmative side the role and the opportunity are no lessreal. We are not the keepers of our clients' consciences, but neitherare we mere technicians whose sole function is to assure that legallimitations are narrowly observed. The attribute of our calling whichmost entitles it to be regarded as a profession springs from the factthat our highest allegiance is to the law and to our own consciences-and of the two our consciences are the more inclusive, though notnecessarily the higher, authority. We fulfill the finest standards of ourprofession when our informed legal opinion is supplemented by judi-cious counsel. Without undertaking to preach to our clients, we canencourage them to ask us not just "is it legal?" but "is it right?"The claim of what is right over what is merely legal, of unen-forceable obligations over enforceable rights, is not exclusively ad-dressed, of course, to our profession. But it is an appeal, essentially,for moral leadership, and we cannot, though some would disagree,plead a lack either of competence or of jurisdiction.BUFFALO LAW REVIEW*What, then, can we do about the problem? It's very definitionprecludes its solution by the enactment of laws or the adoption ofrules and regulations. Nor is exhortation ever enough: if it were, wewould long since have attained an earthly paradise. Nor will it suf-fice to do any of the things that bar associations commonly do: passa resolution, set up a committee, sponsor a study, and/or give awards.There remains only one means of imparting leadership, and thatis by example. For George Washington, our first and greatest leader,it was means enough. Gerald Ford, our newest President, is alreadybeginning to exercise it admirably-though with acknowledged recog-nition that moral regeneration does not fundamentally derive fromWashington's city. The opportunity and obligation for leadership isours, too, as individual lawyers. Our impact cannot, of course, be aswide as a President's. It can, however, be even more direct, for we areknown and involved personally in our communities. And it is in ourcommunities that our most fundamental values are exhibited and nur-tured. Many lawyers are, of course, already setting fine examples. Andall of us can set our own better examples by following them. In sodoing, we shall not only strengthen the esteem in which our profes-sion is held: we shall also help to rebuild the fundamental character-and the justifiable sense of self-esteem-that is at the heart of ourcountry's greatness.

The Watergate Morality

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