Fifty years ago today, Richard Nixon, then president of the United States, met in his office with his chief of staff, Bob Haldeman, and they discussed what Haldeman referred to as “the Democratic break-in thing” – the burglary six days earlier at the headquarters of the Democrat national committee at the Watergate office building in Washington.
Haldeman outlined a plan to have the head of the CIA contact the FBI to tell them to “Stay the hell out of” the burglary investigation, under the pretence that it involved national security matters. Nixon approved: “You call them in. Good. Good deal! Play it tough.”
We know exactly what was said because the conversation, like many others in the Nixon White House, was taped. You can even listen to it yourself, or read the transcript here. But it was two years before it became public, and when it did, it cost Nixon his job. (And incidentally put Haldeman and several others behind bars.)
During those two years of the Watergate investigation there was much discussion of a “smoking gun” – a piece of evidence that would definitively show the president to have ordered the obstruction of justice. But there was no guarantee that it would be found; as William Simon, Nixon’s treasury secretary, later commented, “I simply could not believe that a man would make and keep tape-recorded evidence of his own guilt.”
But a Senate enquiry eventually uncovered the existence of the taping system, and a unanimous supreme court upheld subpoenas of the tapes. After the release of the 23 June “smoking gun” tape, Nixon’s impeachment and conviction became a certainty, averted only by his resignation. Simon left a vivid portrait of the last meeting of his cabinet:
None of us looked at one another. We all looked down at our laps or off into space as Nixon disclaimed any intention to resign, a step we all knew he would have to take. I will never forget his eyes as they seemed to beseech us for support, almost begging us to say that he had done no wrong. But no one said a word.
A lot has changed in American politics in 50 years. There have been many dishonest or incompetent presidents, but none have been forced from office the way Nixon was. The nature of partisanship has changed: party identification has become more rigid, and parties defend their own through thick and thin. The sort of relatively impartial investigation that brought down Nixon – six Republicans on the judiciary committee voted for impeachment even before the release of the smoking gun tape – has become almost unthinkable.
Which brings us to Donald Trump, who survived two impeachments during his corrupt and chaotic tenure and is now the focus of a House of Representatives investigation of the insurrection of 6 January 2021. Garrett Graff, a Watergate historian, explained the shift earlier this month:
Watergate is ultimately a story of the American system working — the delicate ballet of constitutional checks-and-balances working to bring a corrupt and criminal president to justice. But the story was only possible because Republicans, both leadership and rank-and-file, acted as members of Congress first and partisans second.
Today, of course, there’s a very different political dynamic on Capitol Hill.
With only a narrow congressional majority, which may not survive this year’s midterm election, the Democrats are trying to conduct a factual enquiry that their opponents (aided by tame media) are framing as a partisan witch-hunt. It remains an open question as to whether America is still a country where the presentation of facts can sway public opinion.
But behind the possible political effects of the investigation lurks a profound legal question (although it too is political): can Trump be prosecuted for his attempt to overturn the 2020 election result, or would such a move risk tearing the country apart? At some point, attorney-general Merrick Garland will have to decide what to do with the information that the House committee produces.
President Joe Biden could take that decision out of his hands by pardoning Trump, as Gerald Ford did for Nixon, but he has so far ruled out that option. Certainly Ford paid a political price for it. But liability for politically-motivated crimes – some of them much more serious than Trump’s – is often fraught; the laudable aims of forgiveness and reconciliation clash with the need to deter future wrongdoing and to ensure that no-one is seen to be above the law.
John Sirica, who presided over the trial of the other Watergate conspirators, put it well:
I think people still wonder whether the concept of equal justice under law really applies if one climbs high enough in terms of wealth, power, or influence. All of my life as a lawyer and judge, I have tried to make the idea of equal justice mean something. … It still bothers me that Richard Nixon escaped that equal treatment. I feel that if he had been convicted in my court, I would have sent him to jail.
Prosecuting Nixon would have been traumatic enough. But in today’s more polarised world, and with a defendant who still harbors political ambitions, to the extent that he could well be a candidate in two years time,* a Trump prosecution could potentially be the stuff of nightmares. Yet perhaps the alternatives are even worse.
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* Even though by his own lights he is ineligible, since the 22nd amendment prevents anyone being elected president more than twice, and Trump maintains that he won the last two elections.
The World is Not Enough 