The Ethics in Government Act of 1978: Executive Accountability Revisited

• In Event: Revisiting Watergate: Crisis, Renewal, and the Presidency

Abstract

The Watergate scandal exposed the difficulty of holding executive branch officials accountable for unethical and criminal conduct when the Department of Justice is beholden to the president and the president is inclined to interfere with its decision making about how to proceed with allegations of misconduct in the executive branch. The Ethics in Government Act of 1978, and particularly the special prosecutor provisions of that Act, were designed to address the perceived, and in some cases, actual, conflict of interest when the executive investigates itself. It took four years from the resignation of Richard Nixon to find agreement on a statutory solution to this dilemma, and a change in party control of the White House. Since then, the issues raised in the debate about the constitutionality and practicality of the legislation have continued to plague efforts at executive accountability, and those challenges have been made ever more difficult by the current extreme partisan polarization in U.S. politics and the norm challenging behavior of Donald Trump and his supporters. This paper will begin with identification of the key concerns driving creation of the Ethics in Government Act. It then traces the debates that continued during its implementation and led to significant changes in the law, including the elimination of the special prosecutor provisions and the return to DOJ control of the special investigations process. Finally, it will analyze the current challenges in holding former President Trump accountable for misdeeds, including the clear communications advantages that the executive (even out of office) has over the special prosecutor, the fractured media environment, partisan polarization, and public cynicism about ethics and politics in general. Ironically, the Ethics in Government Act was designed to restore public confidence in government after Watergate. The history of its implementation suggests that larger trends in executive/congressional relations and the long unresolved question of how the impeachment process intersects with investigations of the president, have left the problems exposed by Watergate unresolved.

Author

• Katy J. Harriger, Wake Forest University