Déjà Vu All Over Again

June 12, 2017

This Saturday, June 17th is the 45th anniversary of the Watergate break-in, which triggered events culminating in President Nixon’s resignation and imprisonment of two dozen of his aides just over two years later.

For those who lived through those challenging times, and I was a member of Nixon’s White House staff throughout, President Trump’s travails of today are surprisingly parallel – but in ways the pubic many not fully appreciate.

Oh sure, a real crime got the Watergate ball rolling, but those people were caught red-handed and convicted in the break-in trial. In the intervening years, it’s never been shown that Nixon or his top aides – John Ehrlichman and Bob Haldeman – had any advance knowledge of the planned break-in: they were convicted, in a subsequent trial, of participating in the cover-up that followed. The actual charges were Obstruction of Justice and Conspiracy to Obstruct Justice.

It appears to be roughly the same thing with Trump: No one to date has produced a scintilla of evidence of his collusion with the Russians – even after a full year’s investigation. Hence, the charges have evolved into Obstruction of Justice. There’s no current discussion of a parallel conspiracy charge, but one is sure to surface soon. You see, if anyone on his campaign can be shown to have had contact with Russians, even if Trump had no knowledge, that could still be seen as participating in a conspiracy.

It’s clear that Nixon’s people took steps to protect themselves from the political onslaught that Watergate had become: day after day of leaks, innuendos and false charges. Those reactions were later characterized by highly politicized prosecutors as being “overt acts in the continuing cover-up.”

Perhaps worse, for Nixon as well as for Trump, the special prosecutors hired to do the investigations were ardent Democrats. In fact, the top seventeen attorneys in the Watergate Special Prosecution Force had all worked together in the Kennedy/Johnson Department of Justice. It’s not that they weren’t capable lawyers, it’s that they were part of an administration (and mind-set) that was voted out of office by Nixon’s 1968 election victory. The same thing appears to be happening today: Robert Mueller’s appointments to date are the polar opposite of Trump supporters.

Even more troubling are Muller’s close connections with James Comey, which also find a Watergate counterpart: the head of the Watergate Task Force and lead counsel in the cover-up prosecution, James Neal, was extraordinarily close to Charles Shaffer, John Dean’s criminal defense lawyer. They had not only served together on the “Get Hoffa” squad within Justice’s criminal division, they were co-prosecutors in two of the government’s cases brought against Teamster President Jimmy Hoffa. Needless to say, Dean, whom many believe to have masterminded the Watergate cover-up, fared quite well during the government’s prosecution: he served the least time of any major Watergate defendant, just four months, never actually spending a single night in a jail cell, let alone being sent to an actual prison. One wonders if Mueller’s friend, James Comey will be seen as the lead government witness and never face an actual investigation of his own misdeeds.

The difficulty all of this presents has to do with a concept termed “prosecutorial discretion.” The issue is not whether you could construct a theory of possible culpability in a perfect world. It is whether, when faced with competing demands on time and resources, this particular set of facts would ordinarily be deemed worthy of prosecution. Alleged crimes like Obstruction of Justice and Conspiracy are frequently characterized as “thought crimes”, since what matters most is not necessarily what you did, but what prosecutors or jurors now believe might have been in your mind when you did it. The key is that you had to have had evil intent, mens rea is the Latin term.

It’s quite easy for your political opponents to read evil intent into your actions. This is, in essence the core of the Fourth and Ninth Circuit opinions upholding the delay of Trump’s travel ban: The Executive Order doesn’t actually say it, but we know what he was thinking when he signed it. This is particularly true when – as special prosecutors – there is a tendency to see the success of your mission as one of finding something, anything, that you can then prosecute.

As with Watergate, claims, counter-claims and denials are being cast about with hardly any real interest in the actual truth. The media is in full pursuit: Every day a new story, a new rumor. It matters now whether they turn out to be even partially correct, because the story moves to the next accusation without concern for accuracy.

What’s so fascinating is that some forty years later, I’ve uncovered documented evidence of judicial and prosecutorial misconduct – at least a dozen secret meetings between trial judges and Watergate prosecutors or other interested parties, false sentencing of key government witnesses, and suppression of clearly exculpatory evidence – that totally undermines any concept of due process for the Watergate defendants. One can only wonder if the same get Trump and his top people “at all cost” (to quote an actual observation from one of the Watergate special prosecutors) will become the order of the day for these new Democratically-oriented prosecutors.

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