What does your professional responsibility class and Mar-A-Lago have in common?

By Victoria Szymczak, Director of the Law Library

Well, both are outcomes of the Watergate Scandal.  Some of you might not know about Watergate because it happened long ago in the early 1970’s; however, it is still a hot topic rearing its head in modern docudramas like Viola Davis’ First Ladies Season 1 (starring the lady herself, Michelle Pfeiffer, and Gillian Anderson) and Gaslit starring Julia Roberts and an unrecognizable Sean Penn.  If you haven’t seen either series, you should!  The acting is fabulous, and both provide a female perspective on what was going on back in the 1970s.

Back to Watergate, your professional responsibilities class, and Mar-A-Lago.

Watergate

Briefly, on June 17, 1972, five men broke into the Washington DC headquarters of the Democratic National Committee headquarters located in the Watergate Office Building.  They called themselves the Plumbers.  No one really knows why even after all these years.  We can assume it was to obtain some advantage in the upcoming elections.  The Plumbers – were caught in the act, arrested, and tried.  The DOJ connected the cash found on them to the Committee for the Re-Election of the President (President Nixon).  During further Congressional investigations – even more riveting than the January 6th hearings – witnesses testified that Nixon had approved plans to cover up his administration’s involvement in the break-in and that there was a voice-activated tape system in the Oval Office.  (Back then, we used polystyrene tape to store recordings, not clouds.) The President resisted any attempts to release the tax records – I mean tapes – until the US Supreme Court ordered him to do so.  History indicates that he sought to destroy the tapes before SCOTUS ordered him to make them available and to destroy official records before leaving office.  As it is, there is an 18 1/2-minute gap in the tapes that remains a mystery.  The tapes that were not tampered with revealed that Nixon tried to cover up the bungled burglary of Democratic National Committee headquarters.

In the end, Nixon resigned, and 69 people – many of them lawyers – were found guilty of numerous crimes.  The public was outraged, as were many in the legal profession.

Your Professional Responsibility Class

In response, the American Bar Association first retired a failed 1968 Model Code of Professional Responsibility and replaced it with the Model Rules of Professional Conduct.  Second, as part of the accreditation standards for law schools, the ABA adopted Standard 303, requiring all law students to take a class on professional responsibility and study the Model Rules of Professional Conduct. 

Mar-A-Lago and the Presidential Records Act

Another effect of the Watergate scandal was the Presidential Records Act (44 USC §§ 2201-2209, effective January 20, 1981) – this is the law Donald Trump allegedly violated when he brought 15 boxes of official White House documents, and whatever the subject of the search warrant executed on August 8, 2022, at Mar-A-Lago.  It is also implicated in the former President’s habit of tearing up or flushing documents down the toilet.  Apparently, the search was part of an ongoing investigation launched by the National Archives and Records Administration.  That’s right – the librarians are going to bring down the former President!  Don’t mess with our documents!

In 1955, Congress passed the Presidential Libraries Act (amended in 1986, 44 USC 2112).  The PLA established a system of privately erected and federally maintained libraries and encouraged Presidents to donate their historical materials to the government, ensuring the preservation of Presidential papers and their availability to the American people.  This had been the norm since FDR created his presidential library.  But President Nixon tried to ignore that norm.

After Nixon resigned, he entered into an agreement with the General Services Administration that would have allowed him to destroy his records, including the Watergate tapes.  Congress acted quickly to head off the tapes’ destruction, enacting the Presidential Recordings and Materials Preservation Act.  Nixon was unsuccessful in his challenge that Act, Nixon v. Administrator of General Services, 433 US 425 (1977).

Following the SCOTUS decision, Congress enacted the Presidential Records Act to clarify ownership over official records. It requires the President, Vice President, and their immediate staff to turn over their official records to the National Archives and Records Administration when they leave office.

However, the PRA has no enforcement mechanisms, penalties, or jail sentences.  Instead, if the National Archivist and the DOJ decides to press criminal charges, they might use

1)  18 USC § 1361 – Government property or contracts (fine + imprisonment up to 10 years, or both), or

2)  18 USC § 2071 – Concealment, removal, or mutilation generally.  There are not specified penalties under this section; however, Sandy Berger, President Bill Clinton’s former national security adviser, removed classified documents from the National Archives in 2003 to help prepare testimony to the 9/11 Commission.  Berger pleaded guilty and paid a $50,000 fine instead of serving jail time.  More serious violations are likely to incur more serious penalties.

For more information on the PRA, see The Presidential Records Act: An Overview, CRS Report 46129, 2019.

Incidentally, the only President (so far) who has been arrested was Ulysses S. Grant, who was arrested for driving his buggy too fast.

Speeches of William S. Richardson: From the Territorial Government to Statehood

By Ellen-Rae Cachola

Mad speaking at podium under tree

The Law Library’s Archive produced a new digital exhibit, Speeches of William S. Richardson. It highlights some of William S. Richardsonʻs views during his leadership in the Democratic Party, the Judiciary, and the Law School. This post aims to contextualize some of Richardson’s speech during a time of political and economic change in Hawaiʻi–the Territorial to Statehood periods.   

William S. Richardson grew up during the Territorial period in a hapa Hawaiian (mixed with Chinese and European) family.  He remembered being restricted from accessing beaches fronting the expensive Waikīkī hotels because of the way he looked. It was not common for boys like him to go to college; but instead, to work. His father, however, paid for his graduate school tuition at the University of Cincinnati by renting out his bedroom (Wilcox 2018).

Richardson was not one to be confrontational about racial or class discrimination.  But, later in life, Richardson learned that he had ancestors who worked in Queen Liliʻuokalani’s court during the Hawaiian Kingdom, the Indigenous government before the overthrow in 1893 (William S. Richardson School of Law Library 2022).  These experiences shaped his values as he participated in government, the courts, and the education systems.

Richardson supported Hawaiʻi’s political transition from the Territorial government to Statehood, as the chairman of the Democratic Party, and as the 2nd Lieutenant Governor of the State of Hawaiʻi. He believed that the majority of the people of Hawai’i believed in Statehood because working class families who experienced the plantation economy, wanted to be heard by the U.S. as equals (Simmons et al 2012).

The history of Hawaiʻi’s transition to statehood has been controversial.  The Hawaiʻi State Public Library System created a Hawaiʻi Statehood Reading List that lists books and articles that document different historical perspectives about it.  Some main arguments for and against Statehood are that

  • Mainstream settler and native populations agreed with the pro-statehood messaging because it appealed to ideals of democracy and multiculturalism, which contrasted the racial and economic inequalities during the Territorial period. 
  • The mainstream messaging of statehood obscured the history of some Native Hawaiians who opposed Statehood because it continued to suppress their national sovereignty (Whitehead 1993). 
  • The 1959 Statehood plebiscite did not give Hawaiʻi its 3 options (free-association, independence, and not just statehood) to realize its self-development, as a non-self governing territory of the U.S. (from 1946-1959), according to Chapter XI of the United Nations Charter (Dudley, Siu and Laenui 2019; Lopez-Reyes 1996;  U.N. General Assembly 1947, 124-125; U.N. General Assembly 1959, 37).

As history unfolded, it became apparent that statehood increased the assimilation of Hawaiʻi into U.S. foreign policy agendas, during a time of destabilized domestic security, in the forms of racial inequality and social crises, and outside of the U.S., in the form of interventionist wars (Saranillio 2018, Miller-Davenport 2019).

But Richardson believed that Hawaiʻi’s Admission into the United States as the 50th State would provide a platform for the people of Hawai’i to take a step toward self-determination: to develop their own political, legal, and educational infrastructure, and to participate in and shape their local and state government. On a practical level, there was a need to promote new forms of economic development as the plantation industrial economy began to wane, and Hawaiʻi leaned toward tourism and international trade.   This speech reflects the first two years of Lieutenant Governor Richardson’s observation on how the Burns administration was meeting the Democratic Party goals during the early years of statehood.

When Richardson was appointed the 16th Chief Justice of the Supreme Court of Hawaiʻi, he sought to improve the judicial administration of the state. In his speeches, we can read about his vision of justice, not being just located within the judiciary, but also with law enforcement, attorneys, law clerks, educators, and youth development organizations, to be attentive to the root causes of poverty and disenfranchisement that led to crime.  

The Richardson Court is also well known for upholding the public trust doctrine in Hawaiʻi–water, coastlines, and newly created volcanic lands would not be commodified, but held in public trust by the State (MacKenzie 2010).  He drew from Hawaiian Kingdom law to decenter the privileges of corporations that enjoyed unfettered access to water resources during the Territorial period.  Richardson advocated for the preservation of historic sites and the memory of leaders in the Hawaiian Kingdom. These speeches reflect his passion to understand the experiences of Native Hawaiian leaders, for insight to address problems he faced in the modernizing Hawaiʻi. 

As his career unfolded, Richardson kept his ear to the ground. Throughout his career, he spoke to students and educational organizations.  He knew that Hawaiʻi was going through major political and economic change, and that the people of Hawaiʻi could weather and succeed these changes if the population, especially the younger generations, were educated to become the islands’ future leaders.  Richardson lived during the emergence of the Hawaiian Renaissance, a movement which questioned dependence on U.S. laws and frameworks to solve Native Hawaiian problems of land loss, displacement, poverty, and cultural marginalization. He wanted to create opportunities for the people of Hawaiʻi to learn what it means to lead these islands, in ways that would take into account all of the histories that have shaped them into the present moment.  His latter speeches revealed his desire to connect with the shifting consciousness of the people of Hawaiʻi that a part of achieving self-determination also meant participating in the levers of their current government, to ensure it cares for their islands, and to research how genuine change could be set into motion.

To learn more about William S. Richardson, who he was and the context he lived in, check out the finding aid of his archival collection.

Bibliography

Dudley, Kioni, Leon Siu, and Poka Laenui.  “Unsettling Truths about the 1959 Statehood Vote in Hawaiʻi.” Honolulu Star-Advertiser, 2019. 

Lopez-Reyes, Ramon. “The Re-inscription of Hawaii on the United Nation’s List of Non-Self Governing Territories,” in 28(3) Peace Research  1996, pp. 71-96.

MacKenzie, Melody. “Ka lama Ku O Ka Noʻeau: The Standing Torch of Wisdom.” 33 Hawaii Law Review 3, 2010. http://hdl.handle.net/10125/35207

Miller-Davenport, Sarah. Gateway State: Hawaiʻi and the Cultural Transformation of American Empire. Princeton University Press, 2019.

Saranillio, Dean Itsuji.  Unsustainable Empire: Alternative Histories of Hawaiʻi Statehood. Durham: Duke University Press, 2018.

Simmons, Charlotte. Dialogue: Statehood and Sovereignty. Directed/Featuring Simmons Charlotte; Boylan, Dan; Quinn, William Francis; Laenui, Pōkā.; Richardson, William S.; Kamauʻu, Mahealani. 1996; Honolulu: KHET-TV, 2012. Digitized VHS.

United Nations General Assembly. 1947. 66(I). Transmission of Information under Article 73e of the Charter. https://documents-dds-ny.un.org/doc/UNDOC/GEN/NR0/767/27/IMG/NR076727.pdf?OpenElement#page=86&zoom=90,-299,581

United Nations General Assembly. 1959. 1469 (XIV). Cessation of the transmission of information under Article 73e of the Charter in respect of Alaska and Hawaii.  https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/142/92/PDF/NR014292.pdf?OpenElement

Whitehead, John S. “The Anti-Statehood Movement and the Legacy of Alice Kamokila Campbell.” Hawaiian Journal of History, 27: 43-63, 1993.

Wilcox, Leslie. William S. Richardson: Long Story Short with Leslie Wilcox. Honolulu: PBS Hawaiʻi, 9 March 2018. https://www.youtube.com/watch?v=CoLPAQ5tl1I

William S. Richardson School of Law Library. Chief Justice William S. Richardson Archive Launch. Honolulu: YouTube, 9 May 2022. https://www.youtube.com/watch?v=Dhk5mX226uc