President Donald Trump’s effort to force the Department of Justice and the FBI to disclose key elements of the Mueller probe (what he's called "Spygate") is neither a new affront to the department’s or the agency’s independence, nor a particularly effective one.
What President Trump has done in public via Twitter and now in a well-publicized meeting, President Richard Nixon had previously done in private by obtaining secret grand jury information from the Assistant Attorney General about the ongoing investigation of his White House aides and his presidential campaign.
Nixon’s efforts, however, could not save his White House and campaign aides from criminal convictions, nor would it have saved him from impeachment had he not chosen to resign. President Trump’s ham-handed efforts will fare no better.
Nixon’s efforts, however, could not save his White House and campaign aides from criminal convictions, nor would it have saved him from impeachment had he not chosen to resign.
That’s not to say that Trump’s public demand that the Department of Justice turn over information about the FBI’s confidential sources and methods in the Russia investigation hasn’t rightly alarmed law enforcement and intelligence officials. Allowing the president to exercise his authority to compel prosecutors to disclose information about the investigation of those close to him is not only a dangerous precedent but also a potential abuse of power.
But, Associate Attorney General Rod Rosenstein and FBI Director Christopher Wray will have realized that any classified information about Robert Mueller’s investigation that they shared with congressional Republicans or the White House would be almost instantaneously leaked to the public. Once leaked, the subjects of the investigation would gain an unprecedented advantage in planning their defense by discovering at least a little about what prosecutors have found so far.
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Knowing that key targets or subjects of the investigation will no doubt have learned whatever is disclosed to the White House, though, DOJ prosecutors will be vigilant to see if these individuals attempt to modify their previous public or private statements based on what they learned from the leaks. Taking it one step further, if, unexpectedly, the classified information is not publicly leaked, but the subjects of the investigation appear to be aware of the disclosures, that’s a huge problem: Possible obstruction of justice.
In Watergate, the Attorney General and the head of the Criminal Division at the Department of Justice were duped into sharing investigative reports with President Nixon.
In Watergate, the Attorney General and the head of the Criminal Division at the Department of Justice were duped into sharing investigative reports with President Nixon; the president lied that he would not tell anyone else what he learned about the grand jury’s findings and plans. Instead, President Nixon immediately told key aides what the prosecutors knew, allowing witnesses to mold their stories, and ultimately facilitating the on-going Watergate cover-up.
On April 15, 1973, Attorney General Richard Kleindienst and Assistant Attorney General Henry Petersen gave Nixon a detailed briefing for more than an hour based upon what the Watergate prosecutors had told Kleindienst about the status of the investigation, the witnesses being called and the prosecutors’ strategy.
The next day Petersen gave Nixon a memorandum requested by the president outlining the evidence that implicated key White House aides H. R. Haldeman and John Ehrlichman. Petersen continued to brief the president about the department’s investigation in person and over the telephone in the following days. Despite these compromising disclosures about the prosecutor’s plans, ultimately, both Haldeman and Ehrlichman were tried and convicted of conspiracy, obstruction of justice and making false statements.
Like President Nixon, Donald Trump seeks a return to the days when an FBI Director like J. Edgar Hoover was a ready and compliant participant in the White House’s political agenda.
The White House tapes of the conversations between Nixon and Petersen reveal two themes, which have been echoed by President Trump and his team in the last 18 months: A demand to wrap up the investigation; and an effort to force an investigation into the DOJ prosecutors involved in the case.
In recorded conversations President Nixon warned Petersen twice about “dragging” out the Watergate investigation and said that, if he were in Petersen’s spot, “I would try to accelerate this thing, if you know pretty well what’s going to happen.”
As recently as Sunday, Trump tweeted his unhappiness about the cost and duration of the Muller probe and Vice President Pence and Trump’s lawyers have joined his chorus in demanding an end to the investigation.
President Nixon also attacked the DOJ prosecutors personally.
President Nixon also attacked the DOJ prosecutors personally. Citing leaks about the investigation, the President urged Petersen to force the DOJ prosecutors to submit to lie detector tests. When Petersen balked, President Nixon responded: “…our mutual friend Edgar [Hoover] used to put his people to one...”
Like President Nixon, Donald Trump seeks a return to the days when an FBI Director like J. Edgar Hoover was a ready and compliant participant in the White House’s political agenda, reportedly wondering why Attorney General Jeff Sessions wasn’t acting as his “Roy Cohn” or protecting him the way that former Attorney General Robert F. Kennedy allegedly protecting John F. Kennedy. But the safeguards to the independence of the DOJ instituted after Watergate serve as a barrier to Trump’s desire to once again politicize federal law enforcement.
Our democracy survived Nixon’s attacks on the independence of the Department of Justice, and it will survive Trump’s as well.
Michael Conway served as counsel for the U.S. House Judiciary Committee in the impeachment inquiry of President Richard M. Nixon in 1974. In that role, he assisted in drafting the committee’s final report to the House of Representatives in support of the three Articles of Impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.