Thursday, May 25, 2017

This Is Not Watergate Redux

People who compare Donald Trump's firing of FBI Director James Comey to the Saturday Night Massacre show a stunning lack of knowledge of history. Recent history, at that. This isn't ancient history.

If you want to talk about ancient history, let's go back a couple of centuries to the time when the Founding Fathers were designing the system of government for this new country. Chief among their concerns was due process for people who were accused of crimes. They realized that, no matter how utopian they believed their new land to be, people are still people, and some of them will commit crimes. They wanted a government that would treat all who were accused of crimes to be treated fairly.

There had to be an actual crime, not speculation about what may or may not have been done; there had to be evidence showing that a crime had been committed (if, for example, a person disappears under suspicious circumstances, that disappearance cannot be treated as a homicide unless a body has been found). Witnesses were probably considered the best evidence at first, and they're still valuable, but as forensic evidence gained credibility, its stock in criminal cases rose considerably. When I was in high school, DNA was still in a limbo state, legally speaking. Today it is the coin of the realm.

Fast forward to Watergate.

Where shall I begin? Well, let's start with the fact that the Watergate investigation really began when Bob Woodward was covering the arraignment of the Watergate burglars in June 1972 for the Washington Post — more than a year before the Saturday Night Massacre. Burglary is definitely a crime. Everyone knew a crime had been committed when five men were arrested in the Democrats' national headquarters in the wee hours of a Saturday morning. That was certainly a suspicious thing, but curiosity was really aroused when a paper trail revealed that some of the burglars were linked to Richard Nixon's White House.

That was the root of the investigation. A crime. Not speculation that a crime may have been committed but evidence of an actual crime. Just as the Founding Fathers intended. Facts were deciding the case. Not emotion. Not rumor. Not innuendo. Not hearsay.

And it was the question of how potential evidence in the investigation of that crime was to be handled that ultimately led to the Saturday Night Massacre.

Let's back up just a little here.

In July 1973, it was revealed during the Senate Watergate hearings that there had been a taping system in the Oval Office, a system that was activated by sound. Only four people, I think, knew of the existence of this taping system, and one of them was Richard Nixon.

Anyway, this system had been secretly recording conversations Nixon had with his top aides for a few years. Special prosecutor Archibald Cox issued a subpoena for tapes of conversations believed to be relevant to the Watergate investigation, mostly based on testimony from former White House counsel John Dean; fewer than 6% of the tapes related to Watergate — many of the recorded conversations, for example, dealt with plans for Nixon's trips to China and Russia — and thus were irrelevant to the investigation, but the tapes Cox sought were expected to prove or disprove Dean's testimony, which had been remarkably specific as to the dates of conversations and what was said in those conversations.

Until the existence of the tapes became known, there seemed to be no way to break the impasse, but the tapes could establish who was telling the truth, Nixon or Dean.

Nixon refused to comply and offered a compromise. Mississippi Sen. John Stennis — who was notoriously hard of hearing — would listen to the tapes and provide a summary for Cox. Cox rejected the compromise.

Nixon's attorney general, Elliot Richardson, had appointed Cox earlier in the year and was the only one who could dismiss him. At the time of Cox's confirmation Richardson had promised the Senate that he wouldn't use his authority to interfere; some five months later, Nixon asked Richardson to fire Cox, and Richardson resigned. Next in line was Deputy Attorney General William Ruckelshaus, who also resigned rather than fire Cox.

Then it fell to Solicitor General Robert Bork, who carried out the order.

One thing that is not mentioned today — but was mentioned in Theodore H. White's book on Watergate, "Breach of Faith" — was the concern about Secretary of State Henry Kissinger, who was meeting with Soviet Premier Leonid Brezhnev in Moscow. In the Cold War atmosphere of that time, perceptions were critical on both sides, and a presidential order had been defied. Many in the federal government worried about what the Soviets would think.

That does not justify anything, but it helps to put the decision process into context.

That was the Saturday Night Massacre. If there is a comparison to be made between the Saturday Night Massacre and the firing of James Comey, certain facts must be addressed.

In October 1973 everyone knew a crime had been committed. What was the crime in this case? I'm not talking about speculation. I'm talking about anything that would stand up in court.

That is due process, and every American citizen is entitled to due process.

Even the president, whether you like him or not.

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