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Post-Watergate Legislation in Retrospect

NCJ Number
B R Civiletti
Date Published
In a 1980 speech, the Attorney General of the United States discusses problems caused by the Freedom of Information Act, the 1976 Tax Reform Act, the special prosecutor provisions of the Ethics in Government Act, the Right to Financial Privacy Act, and the Hughes-Ryan Amendment.
The reversals suffered by the United States in the years between the Kennedy administration and the resignation of Richard Nixon produced a great body of reform legislation that should be studied by any serious student of American law and government. The Freedom of Information Act passed in 1966 was on the leading edge of this reform movement and in theory is simply an open records law with specific exemptions. The Department of Justice (DOJ), however, has encountered many difficulties in administering this law, particularly in withholding vital information on criminal investigation techniques from public disclosure and protecting the confidentiality of sources. Remedies for these problems include additional exemptions and a three year moratorium on requests for investigatory records. The Tax Reform Act of 1976 was enacted to prevent irregular disclosures of tax return information by Government officials, but it has also limited the DOJ's access to financial information vital to organized crime, white collar crime, and narcotics trafficking investigations and the assistance of the Internal Revenue Service experts. Proposals are now before Congress that will remove impediments to law enforcement posed by this law, but still protect individual tax returns. The special prosecutor provisions of the Ethics in Government Act made mandatory for specific positions the extraordinary procedures that had been devised in the Watergate case under the Attorney General's existing discretionary authority. This legislation should be changed to limit its application and to ensure equal and impartial justice. The 1978 Right to Financial Privacy Act created a series of procedures that must be followed by the Government and by financial institutions when the Government seeks to obtain personal financial information from the institutions. After the Watergate investigation, Congress enacted the Hughes Ryan Amendment requiring that the President report to Congressional committees on the covert activities of the Central Intelligence Agency. An analysis of the Watergate reforms shows that new legislation can be expected to generate unforeseen consequences, and that in limiting the Government's power, it can also curtail its effectiveness.