I was frightened during Watergate, but I wasn’t this frightened. I saw Watergate as a constitutional crisis, more serious than the widespread notion that Nixon had behaved like a common crook. This narrow view of Watergate was dispelled by the House Judiciary Committee in 1974, which found Nixon guilty of having committed three kinds of offenses against the Constitution, in three Articles of Impeachment. Nixon, of course, resigned from the presidency to escape being driven from it by the Congress. What scared so many of us during Watergate was that the president seemed out of control and that we knew he was using federal agencies to spy upon or harass people he considered his “enemies.” (Nixon confused opponents with enemies.) We nervously joked about whether we were being wiretapped; and we laughed a lot about so many absurdities, including mistakes made by his ham-handed goon squad of “plumbers” and Nixon’s awkward moves to justify his behavior (“I am not a crook”). The most serious act he took to inhibit the congressional investigation was to refuse to deliver papers the Congress had said it needed (this was the subject of one of the Articles of Impeachment). Nixon was a combination of the threatening and the weird. But he observed most of the boundaries.
We’re someplace quite different now. The threat is less personal but more global in its implications. The president is claiming powers that are clearly extra-constitutional. Though Nixon resisted turning over the famous tapes to the special prosecutor, in the end he obeyed a Supreme Court order to do so. The strange and alarming letters from President Trump’s legal team to special counsel Robert Mueller, which The New York Times revealed last weekend, claiming extra-constitutional powers for the president suggests that we’re in for more and possibly rougher legal and political fights ahead. But the real worry is that the goalposts have already been moved; that heretofore unthinkable presidential powers are being claimed by the president and his attorneys; that previously off-limits actions that have already been taken might just be the warm-up. That until this thing is over, one way or another, a lot of damage will have been done to people and to precedents.
More careers could be wrecked along the way; others will simply have been put through hell on a president’s whim. As for precedents, Trump has already bullied the Justice Department, in particular Deputy Attorney General Rod Rosenstein, into sharing certain highly sensitive information in an ongoing prosecution with the president’s political allies on Capitol Hill. No one should have questioned for a nanosecond that this sensitive information would go straight to the White House, anyway. (In fact, White House Chief of Staff John Kelly and a White House lawyer even showed up at the supposedly highly sensitive meeting on Capitol Hill where the information was to be divulged to the president’s partisans; they made opening comments expressing the president’s interest in “openness” and then departed, but Democrats and some other legal experts were furious at what they said was White House interference in a meeting they had no business being involved with at all.)
There’s little reason to doubt that someday the House Republicans or the president will push for more information from Rosenstein, trying once more to corner him or perhaps even forcing his ouster. And, should Trump decide he’s trapped and has no choice but to go that far, this would clear the way for the president to cause the firing of Mueller. A lot of people are looking for the equivalent of the “Saturday night massacre,” when Nixon caused the firing of special prosecutor Archibald Cox. It was widely seen as the turning point in the Watergate episode. In Trump’s case, I would posit that a slow-rolling massacre has already begun.
In the case of Nixon those who were alarmed by his actions could find some solace in the fact that his party didn’t control the Congress and that several Republicans were possibly open to the arguments that he should be impeached and forced to leave office. We have no such safeguards now. In what’s supposed to be a separate but equal branch of the government, nearly all of the president’s party are at the least loath to criticize his more outrageous comments and actions. One important question that’s barely been raised, except by Democratic Senator Sheldon Whitehouse, is this: to what extent might the group of highly conservative Trump supporters in the House who’ve been acting in Trump’s defense have (pardon the term) colluded with the White House in sharing information and attempting (with real success) to block a genuine inquiry on that side of the Congress.
If this could be proven it would add to charges of obstruction that could be brought against Trump, but also it might penalize some members of Congress and their staff. Such cooperation between the White House and a committee supposedly investigating it—and it’s not very difficult to imagine that this happened, given the number of supposedly coincidental arguments that both bodies have made—mocks the very concept of congressional “oversight.” How can there be real oversight if the overseen is abetting and advising and perhaps directing the supposed overseers? It’s naïve to think that no one involved in an investigation of, say, the White House, doesn’t talk to anyone there: The sainted Howard Baker, the late Republican senator from Tennessee, still widely lauded for a question he asked during the Ervin Committee investigation of Watergate (“What did the president know…”) that was in fact intended to help the president by narrowing the scope, was known to be consulting with the White House. So perhaps it’s time to blow a whistle on this kind of behavior, to draw some lines.
The president is clearly worried about how Mueller’s report will come out on the two subjects he is known to be investigating: whether Trump tried to obstruct the investigation, on which the evidence seems clear enough; and whether he or his campaign team “colluded”—the legal word is “conspired”—with the Russians to help him defeat Hillary Clinton in the 2016 election. The administration’s intelligence agencies have long reported that the Russians were interfering in the election, a point the president is yet to concede (he grows angry when the subject even arises, which makes it difficult for his aides to brief him on the matter or prepare him for possible testimony before a grand jury). Trump’s anxiety is echoed in his frequent and often extraneous comment, “There was no collusion.” Trump and his allies are saying this before the investigation has concluded. His Republican allies on the House Intelligence Committee wrote a report—which the Democrats couldn’t possibly sign onto—saying that they had found no collusion, though they didn’t look very hard.
Numerous legal experts and various pols (and not only Democrats) have dismissed Trump’s legal team’s sweeping claims of presidential immunity as so much nonsense, as well as a sign of their desperation and the weakness of the president’s position. It’s been suggested that they didn’t even mean it but were throwing more mud in the water. A major goal was apparently to prevent the president from having to testify before a grand jury. A new attorney to join the White House legal team, Emmet Flood, who comes from a distinguished Washington law firm and is experienced in dealing with government scandals, is reportedly trying to inject some realism into the president’s team; that, for example, if they challenged Mueller’s right to demand that the president appear before a grand jury, they could lose and the consequences would be unpleasant.
Lest one forget the breadth of their claims, the supposed legal experts who wrote the letters to Mueller asserted: that the special counsel cannot subpoena the president to appear before a grand jury (his lawyers clearly fear that Trump will commit perjury); that the president has total authority over the investigation into himself and can order the Justice Department at any time to halt it; that the president may even be able to halt the investigation into his former National Security Advisor Michael Flynn, who has pled guilty to lying to the FBI and is now cooperating with the investigators; that because the president is the chief law enforcement officer and has authority over the investigation, he can’t be charged with obstructing it because that would mean that he’s obstructing himself; that his pardon power is absolute; that the president can’t be prosecuted for any criminal act committed while he’s in office (presumably this is supposed to mean that crimes possibly committed during the election and the transition period wouldn’t count—a very debatable question).
The lawyers’ letters to Mueller also claimed that his investigation is “unconstitutional,” a theory that wasn’t explained. The Times report was followed up by the ebullient Rudy Giuliani, who told George Stephanopoulos on Sunday that the president “probably” could pardon himself. Still, even Giuliani expressed concerns that “the political ramifications of that would be tough,” and moments later, in a tweet, Trump claimed the absolute right to pardon himself but said he wouldn’t because he wasn’t guilty of anything. (But then, why was he even bringing this up?)
These claims also fit another part of the White House strategy: to discredit the investigation itself. In a weekend tweet, Trump called it an “expensive Witch Hunt Hoax” that seems endless. But other investigations of presidents have taken much longer and Mueller has racked up some real successes in a little over a year. (The Watergate investigation took two years.) According to The Washington Post, in its first year, “Mueller’s team has charged 19 people [thirteen of them Russians], as well as three companies, and secured five guilty pleas.” One person has already gone to jail. And the recidivist Paul Manafort may be headed there, the Mueller team having charged that he’s violated the terms of his bail by witness-tampering.
The problem with the very raising of these supposedly legal points is that the preposterous has become the discussable. Some of the lawyers’ outlandish claims are now the subject of serious debate. Once the president tosses out a charge or claim, no matter how ridiculous (i.e. that President Obama had wiretapped him), it becomes a Subject. It’s studied, it’s argued over, papers are ordered up, it’s a Topic on the Sunday talk shows and the cable news programs during the week. The borderlines on the absurd are pushed back: Early this week, Giuliani actually claimed to HuffPost that if the president shot James Comey in the Oval Office that wouldn’t be a prosecutable crime.
Here’s the thing: A large percentage of Trump’s following is credulous toward just about everything he says, or they at least get his gist. Trump’s gist is clear: An unlawful investigation is wasting his and the country’s time (and, he’s recently added, money). This support may not be enough to spare him big legal challenges but it’s probably enough to keep the president, if he’s impeached by a Democratic-controlled House—a possibility that Trump’s people take seriously—from being convicted in the Senate. It would take just 34 votes to block a conviction if every senator votes. A lot of what’s going on now is about Trump and his aides trying to ensure that those 34 Senate votes to protect the president in office will be there. So, there’s a fight for a certain segment of public opinion, and a fight to keep the Senate in Republican hands after this November’s midterm elections. Undoubtedly, many of the president’s strong followers, at least in some free-floating way, believe the president’s assertions, as well as the essence of the protective arguments made by his lawyers on his behalf.
Thus, it’s now out in the bloodstream of America that, in effect, the president is indeed above the law. This is an argument, no matter how this struggle over Trump’s powers and actions comes out, that won’t go away any time soon.