This Is Not Watergate Redux

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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.

What Was Gained From the Saturday Night Massacre?

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"Whether ours shall be a government of laws and not of men is now for Congress and ultimately the American people to decide."

Archibald Cox

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Of all the remarkable events that led Richard Nixon and the American people through the labyrinth of the Watergate scandal and coverup to Nixon's eventual resignation, the Saturday Night Massacre may have been the most astonishing.

The Saturday Night Massacre — in which the independent special prosecutor in the Watergate investigation was dismissed by presidential order and the attorney general and deputy attorney general resigned rather than carry it out — occurred 40 years ago today.

And it ignited a constitutional crisis — the very thing Nixon said he wanted to avoid. Of course, Nixon said a lot of things.

See, the special prosecutor was appointed by and operated under the auspices of the attorney general, Elliot Richardson, and could only be removed "for cause," which meant for improper conduct of some kind. In fact, when he was confirmed by the Senate in May 1973, Richardson specifically pledged that he would not dismiss the Watergate special prosecutor except for cause.

Nearly five months later, the special prosecutor, Archibald Cox, issued a subpoena to the White House. The existence of the White House's taping system had been revealed in public hearings in July, and Cox wanted copies of certain tapes for investigators to examine. Nixon refused.

Instead, Nixon offered, on Oct. 19, 1973, to permit Sen. John Stennis (D–Miss.), who was in his 70s and hard of hearing, to listen to the tapes and sign off on summaries of them for the Watergate investigators. Nixon claimed that Stennis would be sensitive to national security issues raised in the conversations.

(I recall that TIME magazine, in one of its reports, ran a file photo of Stennis in some committee hearing cupping his hand to one ear. Stennis clearly had been signaling for whoever had been speaking to speak louder or repeat himself, but, given Stennis' known hearing issues, it was a clever illustration for the part of the story that dealt with what had been dubbed the "Stennis Compromise."

(To emphasize the point, TIME's caption read: "Technical assistance needed.")

Sens. Sam Ervin and Howard Baker of the Senate Watergate Committee agreed to the Stennis Compromise. But it was unacceptable to Cox, and he turned it down that evening. (I've always liked historian Theodore White's description of Cox's demeanor when he faced the press the next afternoon — "[g]angling, gentle and firm, combining the qualities of old Mr. Chips and Joan of Arc" — and tried to explain why he could not accept the president's offer.)

That Saturday, Ervin said a summary of the tapes would not be acceptable, that he had understood that he would receive verbatim language from the tapes (presumably a transcript).

Government offices were closed for the weekend, and my memory is that no one really expected any further developments until the next week.

Wrong.

Forty years ago today, after Cox's appearance before reporters, Nixon ordered Richardson to fire Cox. Richardson refused and resigned in protest. Thus, the order fell to Richardson's deputy, William Ruckelshaus. He, too, refused and resigned.

Third in line was Robert Bork, the solicitor general and, now, acting head of the Justice Department. His predecessors had promised during their confirmations that they would not interfere in the Watergate investigation, but Bork had made no such pledge so he carried out Nixon's order.

Shortly before 8:30 p.m. Washington time, White House press secretary Ron Ziegler told reporters that Cox had been fired and the special prosecutor's office had been abolished. He also announced that Richardson had resigned and Ruckelshaus had been fired (Ruckelshaus' side of the story was that he resigned before he could be fired).

Cox's office had been sealed off by the FBI, Ziegler said, to prevent any files from being removed. In what was almost an afterthought, Ziegler announced that Bork, as acting attorney general, had fired Cox.

"Nixon's move to block the special prosecutor was for most Americans their first up–close look at what the Watergate fuss, by then more than a year old, was all about: naked presidential power," wrote Susan Brenneman this week in the Los Angeles Times.

Fourteen years later, when Ronald Reagan nominated Bork for a Supreme Court vacancy, Kenneth Noble reported in the New York Times that Bork said of his role in the Saturday Night Massacre that "I get a little tired of it being portrayed as the only thing I ever did."

I'm sure there were those who knew that — among them Bill and Hillary Clinton, who were Bork's students. For most people, though, I would say that Bork first came to their attention as a result of the Saturday Night Massacre. He was in his mid–40s at the time. He had been a practicing lawyer for nearly 20 years and a Yale law professor for more than 10. Clearly, he had accomplished things before being thrust into the national spotlight.

Supposedly, he was torn. He said that he believed Nixon's order was appropriate; nevertheless, he considered resigning as Richardson and Ruckelshaus had so he would not be "perceived as a man who did the president's bidding to save my job."

That was, in fact, a popular conclusion.

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Roughly 3½ weeks after Cox's dismissal, a federal judge ruled that it was illegal because there was no evidence of "extraordinary impropriety," as was specifically required when the position was created.

Nixon's lawyers were not eager for a repeat of the Cox episode with Jaworski. When Cox was fired, it produced an avalanche of letters and telegrams to Congress calling for Nixon's impeachment, and the president's approval rating slipped below 30%.

Only a few days after the Saturday Night Massacre, 44 Watergate–related bills had been introduced in the House, and nearly two dozen resolutions called for Nixon's impeachment. A dozen called for the appointment of a new special prosecutor.

Nixon did precisely what most people probably didn't expect. He decided not to abolish the office of special prosecutor after all and agreed to release the subpoenaed tapes. Leon Jaworski was chosen to replace Cox. Speculation at the time centered on whether Jaworski would confine his investigation to the Watergate burglary or try to expand it, as Cox had, to include other White House activities. As it turned out, Jaworski followed Cox's lead.

So it is fair to ask: What did Nixon achieve with the Saturday Night Massacre?

The special prosecutor still existed. The only real change was that a different person held the title.

(Upon reflection, I am inclined to wonder if perhaps that was the point. Nixon always felt snubbed by the Eastern establishment, and "intellectuals" from Harvard definitely were on that list. Maybe all he really wanted to do was replace the Harvard law professor with the Baylor law graduate.)

Nixon still had to give up the tapes — eventually. He tried numerous tactics to avoid handing them over, all of which failed, and the Supreme Court ruled unanimously against him. When members of Congress heard what was on those tapes, even Nixon's most ardent supporters on the Hill were persuaded to support his removal.

Less than a year later, Nixon resigned and went into virtual exile in California — and spent the rest of his life rewriting history.