Mark Levison, The Levison Group
Here comes the lawyers. Some of us remember Special Prosecutor John Danforth’s inquiry into the government’s armed response to the Branch Davidians in Waco, Texas. Many more remember Ken Starr’s prosecution of President Bill Clinton, which started as the Whitewater Investigation and morphed into a Lewinski blue dress dust up. But those of us who are older still, recall the granddaddy of them all – Senator Sam Ervin’s Watergate Committee, whose formal title was the Senate Select Committee to Investigate Campaign Practices. Sound familiar?
In one of the first columns I wrote about lawyers, I lamented that the actions of attorney Richard Nixon and his group of lawyer/spy characters had reflected poorly upon the Legal Profession. For those who weren’t there – I actually was there on the U.S. Senate Staff and heard Nixon’s Chief of Staff H.R. Haldeman testify before Senator Sam Ervin’s Committee, and while on a plane to Los Angeles, I later sat next to, and spoke at length with White House Counsel John Ehrlichman after he was released from jail – Nixon’s lawyers seemed to think they could do (and get away with) anything they wanted. In fact, E. Howard Hunt, the lawyer/CIA operative said, “I had always assumed … that anything the White House wanted done was the law of the land.” That sounds discomfortingly like President Trump’s interpretation of the power of the Presidency. Then there was a true “nut job,” G. Gordon Liddy, another lawyer/CIA operative who, along with Hunt, co-chaired Nixon’s Special Investigative Unit established for the purpose of stopping leaks. Sound like a familiar problem? When a member of the White House Special Investigative Unit told his grandmother his job was to stop leaks, she asked if he had become a plumber; thereby spawning the nickname of Nixon’s infamous group – whose members all went to jail. The Plumbers joined other Nixon lawyers, White House Counsels Charles Colson, John Dean and Attorney General John Mitchell who went to jail due to their roles in the Watergate cover-up. To date, Mitchell has the distinction of being the only U.S. Attorney General to ever serve jail time.
A successor to Mitchell, Attorney General Elliot Richardson, was fired by Nixon as part of the “Saturday Night Massacre.” The Justice Department’s Special Watergate Prosecutor Archibald Cox had subpoenaed the secretly recorded Nixon White House tapes. Rather than produce the tapes, Nixon ordered Attorney General Richardson to fire Special Prosecutor Cox. Richardson refused so Nixon fired him. When Deputy Attorney General (the position now held by Rod Rosenstein) William Ruckelshaus also refused to fire Cox, Nixon fired Ruckelshaus as well.
The constant drip of information – not quite waterboarding but painful still – regarding the Russia-related activities of campaign aide and National Security Adviser Flynn, and other Trump campaign progeny, has pooled into a pond. It’s hard to know if it will turn into the President’s own personal swamp, or to anything at all. Watergate, of course, began with an actual crime – an inept burglary. Whether any crime has been committed by this President or his men remains to be proved. President Trump vehemently denies any improper Russian connection himself, and has denied them in respect to his campaign and White House staffs, although he may be hedging a little on that. When somebody repeatedly makes an assertion (in this case, that there was no collusion with Russia) I tend to believe them, if for no other reason than logic tells me they wouldn’t be insisting something were true if it wasn’t, since the truth almost always comes out. The President deserves the benefit of the doubt in this instance, although his past inconsistent statements make granting him that benefit more difficult. He has recently called the Trump/Russia investigation “the single greatest witch hunt in American history.” That might not have been the best choice of words since that’s what Nixon called the Watergate investigation.
President Trump has rightly claimed this investigation threatens to tear the country apart, but then there’s the question of blame. It’s interesting in that President Trump has about a third of the American public steadfastly on his side. Even after the “Saturday Night Massacre” about half of the country still supported President Nixon. When he threw in the towel, nine months later, just before it was anticipated the House was going to vote in favor of articles of impeachment, Nixon still had the support of roughly a third of the country! Maybe that’s the nature of a democracy, and maybe it’s the nature of the opposition to be skeptical. Nevertheless, it does seem at times a significant portion of the press is all too eager to play up the “scandal” and is all too ready to ridicule and/or bring down the President. Of course, oversight is the role of the press, and its current zeal is not surprising in this case. After all, the President has accused the press of being dishonest, which makes things personal for them, in a battle where they should be neutral.
With Watergate now 45 years in the rearview mirror, it is easy to condemn what was done by those men at that time. Today’s “scandal” may turn out to be nothing more than a blip of “Whitewater” rapids roiling on the Trump Presidency. It may be determined that people are unfairly going after the President, as some believe was the case with President Clinton. Still there are interesting Watergate parallels. President Trump set his sights on the FBI’s Jim Comey. That may prove dangerous. Although it was not generally known at the time, it was later learned that Washington Post reporters Woodward and Bernstein’s “Deep Throat” informant was none other than Richard Felt, the number two person at the FBI.
As in Watergate, there are lawyers in the Trump Administration, reaching as high as Attorney General Jeff Sessions, whose role may be questioned. After the press has done its digging, it will be attorneys that will take the reins, determine the facts and guide the process. Joe Lieberman, who may be the new head of the FBI, was Attorney General in Connecticut. Deputy Attorney General Rod Rosenstein has just appointed Robert Mueller, a former prosecuting attorney as well as FBI head, to lead the inquiry. We’ll see what happens. Both FBI agents Comey and Felt were lawyers. Sometimes history repeats itself, sometimes it heads in a different direction.
In Nixon’s time, the free speech movement started on a college campus. That speech, and the actions of American youth resulted in the peace movement, the environmental movement and in some regards the various equal rights movements which changed America. Today on college campuses there is evidence of an anti-free speech movement when it comes to conservative views. That is not excusable. The country was in crisis in the Sixties. It may be headed in the same direction. After the Special Watergate Prosecutor was finally fired by Robert Bork, Archibald Cox’s deputy said: “Whether we shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.”
Free speech, a free press and the separation of powers will remain the pillars of our American Democracy. In the days to come, the American people will determine the road we travel. They will walk down that road hand-in-hand with America’s lawyers, those inside the Trump Administration and those on the outside.
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Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
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