Monday, December 18, 2017
Revisiting the massacre
I wrote about special prosecutors and Watergate for Salon this morning:
For some reason I had a yearning to curl up on the couch and binge-watch Watergate documentaries this weekend. I can't imagine why. Just because every TV talking head was breathlessly talking about the right-wing crusade against special counsel Robert Mueller's office, and rumors were flying that Jared Kushner is shopping around for a crisis management firm, that's no reason to think that the scandal may be headed for a new phase. But when news broke on Saturday that a Trump transition lawyer had sent a letter to Congress complaining that Mueller had allegedly obtained transition officials' emails illegally, it sure felt as if something was going to break.
Trump returned from Camp David on Sunday night and told the press that he isn't considering firing Mueller. Since he cannot tell a lie, that's obviously the end of that. The Kushner business, on the other hand, may be true, in light of the news about the emails that the Trump team didn't know were in the hands of prosecutors until after they had all testified, opening up the possibility that someone may have lied. As Michael Flynn and George Papadopoulos can attest, that's a big no-no.
Trump's transition lawyer, who doesn't seem to have any experience in these matters, said that the way the prosecutors obtained the emails is illegal -- but also said that Congress should make it illegal. So the nature of Team Trump's specific complaints is a bit confusing. Evidently they had placed their own man in the General Services Administration, who assured them that emails they sent on government devices with the .gov address would be secured and wouldn't be turned over without their knowledge.
Unfortunately, their man got sick and died, and the people beneath him were not told about this promise, and when the prosecutors came looking for the emails they were handed over, as would happen in any criminal investigation. Since all such emails are government property and everyone is informed before they are issued the email addresses that they have no expectation of privacy, there's nothing unusual in any of it. But as we've seen before, the Trump team doesn't really listen or pay attention to the normal rules and regulations. They apparently thought they had this all dialed in. As usual, they didn't.
Mueller's office made a rare public comment right after midnight on Sunday morning: "When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process." Apparently, they had reason to believe something criminal was going on in the Trump transition.
Lawyers from both parties weighed in on Sunday and explained that there's nothing illegal about a government investigation obtaining emails from a government agency. The Trump attorney referred to "possible" executive privilege and attorney-client privilege, but didn't really make the claim, mainly because executive privilege doesn't exist for a president until he takes office, and if there were attorney communications that might be privileged, all it means is that prosecutors couldn't use those to build their case. Needless to say, if the Trump team wants to argue this, the appropriate venue is a courtroom -- which is exactly what the House Oversight Committee chair Trey Gowdy told them.
As I mentioned, Trump says he isn't considering firing Mueller, but then, he isn't literally the one who would fire him, is he? That job would fall to Rod Rosenstein, the deputy attorney general overseeing the special counsel investigation since Jeff Sessions recused himself from the case. Trump could direct Rosenstein to fire Mueller; if Rosenstein refuses, the president can fire him and demand that the next person in line do the deed. It's not as if it hasn't happened before.
Looking back at the Saturday Night Massacre in the fall of 1973, at the height of the Watergate scandal, Richard Nixon was furious that special prosecutor Archibald Cox had gone beyond what Nixon thought should be his mandate. When the president found out that Cox was looking into the financing of his West Coast White House in San Clemente, California, he went ballistic. Nixon probably had a lot less to hide in this regard than Donald Trump does.
But what finally precipitated Cox's firing was the battle over the tapes of Nixon's conversations in the White House, which had been described in detail by former White House counsel John Dean when testifying about the cover-up of the Watergate break-in. After the existence of the tapes had been exposed, Nixon refused to turn them over. Cox took him to court, and the court had ruled against the president. Nixon refused. His lawyers came up with a cockamamie plan to have one elderly conservative senator listen to the tapes and attest to the accuracy of White House-prepared transcripts of certain conversations under subpoena. Cox said no -- that was in defiance of the court. He planned to take the case back before a judge and would abide by his ruling.
That's when Nixon called up the Attorney General Elliot Richardson and told him to fire Cox. The president said to Richardson when he refused, "I'm sorry you choose to put your purely personal commitments ahead of the public interest." To which Richardson replied, "Mr. President, it would appear that you and I have a different perception of the public interest." Deputy Attorney General William Ruckelshaus also resigned, and then Solicitor General Robert Bork finally did the deed.
What happened next was interesting. Nixon wanted to shut down the office altogether and sent the FBI to lock the place down. But prosecutors wouldn't leave and were giving press conferences. The public was all up in arms, and the media backlash was furious.
Nixon ended up having to appoint another special prosecutor and picked a conservative Republican, Leon Jaworski, who was predisposed to give the president the benefit of the doubt. But after refusing to appeal the case to the Supreme Court, Nixon finally gave up the tapes. When Jaworski heard him talking to John Dean, he said, "can you believe the president of the United States coaching a witness on how to evade the truth?"
That's when the prosecutors got their indictments of the presidents' men and delivered their case to the House committee considering impeachment.
Watching Trump and knowing how often he lies, it seems inevitable that there have been more than a few such moments for Mueller in reading some of those emails and listening to testimony from people around the president. The difference is that Nixon had an understanding of the necessity of maintaining stability in the system, even as he abused it terribly. Trump doesn't even know what the system is and his lawyers don't seem to have much of a grasp of it either. So far, Republicans in Congress are completely unwilling to do their duty.
Trump might follow the Nixon playbook and fire Mueller, but after that, the whole thing could go off the rails. As strange as this is to say, Nixon knew there were limits to his power. Trump doesn't. Who knows what he might do?
digby 12/18/2017 09:00:00 AM