Post-Watergate reforms may frame DOJ decision over prosecuting Trump

The break-in at the Watergate complex 50 years ago today led to a sweeping government ethics overhaul that included a push to insulate the Department of Justice (DOJ) from politics.

In a historical twist, this nearly half-century-old corrective may help frame the DOJ’s fraught decision over whether to criminally charge former President Trump for his effort to overturn the 2020 election results.

For Attorney General Merrick Garland, the dilemma involves weighing competing interests: His mission to repair the DOJ’s reputation as a nonpolitical agency directly clashes with the imperative to deter a future coup attempt, where a failure to hold Trump and his allies personally accountable risks leaving American democracy vulnerable to another attack.

“For the Department of Justice there’s a bit of a tricky situation, where restoring a sense of nonpartisanship and the nonpolitical nature of the Department of Justice dictates against charging the last president with crimes,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington.

“Except that if the last president actually committed the crimes and did things in ways that are themselves a serious threat to democracy, and you don’t do anything about that, that’s itself a political decision. So they’re in a tough place.”

Both former President Nixon and Trump showed a tendency to treat the rule of law as subordinate to their power, experts say, but the two presidencies so far have yielded sharply contrasting national responses.

The Watergate break-in during June 1972 set in motion Nixon’s ignominious resignation two years later and prompted a flurry of government ethics and transparency measures. Most relevant to the Jan. 6 probe, the Watergate scandal led to the reassertion of the norm against using the DOJ as a political instrument, in a direct response to interference by the Nixon White House.

Six months after Nixon resigned in disgrace, former President Ford’s attorney general, Edward Levi, at his February 1975 swearing-in ceremony made reference to how the DOJ’s independence had been eroded under Nixon.

“We have lived in a time of change and corrosive skepticism and cynicism concerning the administration of justice,” he said. “Our law is not an instrument of partisan purpose, and it is not an instrument to be used in ways which are careless of the higher values which are within all of us.”

Garland has received praise for restoring this ethos after the DOJ under his predecessor, Attorney General William Barr, was widely seen as having an inappropriately close relationship with the White House that advanced Trump’s political interests. But Garland may soon face what will be by far the most difficult test of his tenure as attorney general.

The House select committee investigating the Jan. 6, 2021, Capitol riot appears to be building the case that Trump’s effort to overturn his 2020 electoral loss was illegal, and their findings may culminate in the panel making a criminal referral to the DOJ, which would put Garland under enormous pressure.

Donald Ayer, who served as deputy attorney general under former President George H.W. Bush, lauded Garland for handling the case quietly, avoiding the political fray and revealing little to the public.

“The fact that every indication is the department will handle this in the totally appropriate, even-handed way that the department is supposed to do its job when it comes to filing charges is very reassuring,” he said. “There are not that many people I know who would actually come out and say, ‘Gee, I think Merrick Garland is out to get Donald Trump.’ And that’s because he’s not. He’s there to do his job. And I think it’s a wonderful thing that most people, I think, believe that’s true.”

Still, the prospect of indicting a former president for the first time in U.S. history would unavoidably plunge the DOJ into the political realm, experts say.

“Charging a former president would be incredibly divisive, could even spark a civil war, and I think that’s something that has to be considered before filing charges,” said Barbara McQuade, who spent seven years as a federal prosecutor during Barack Obama’s presidency.

“I would at least come down on the side that you have to charge this if the evidence is there, because despite the risk of civil war, the only thing worse than that would be to not charge them, to allow this crime to go unaccounted for,” she said. “One of the purposes of criminal prosecution is not just to punish people for past misconduct, but to deter them and others from doing the same thing in the future.”

Some experts say that holding Trump to account personally is the only realistic way to safeguard democracy, since the kind of national consensus and good-government reforms brought about by the Watergate hearings are difficult to imagine in today’s America.

In the summer of 1973, the Watergate hearings held the country spellbound. The turning point came with the testimony of former White House counsel John Dean, whose weeklong account of Nixon’s wrongdoing played out before a packed Senate hearing room that at one point included John Lennon and Yoko Ono, as well as a television audience of an estimated 90 million viewers.

Laying out the details of Nixon White House perjury, obstruction of justice and other corruption, Dean famously spoke of “a cancer on the presidency.” Prosecutions and convictions of the guilty parties, as well as Nixon’s resignation, would eventually follow.

“In the Watergate era, there was a definitive historical judgment made in real time about the grievous wrongs and grievous abuses of power that occurred. Once that happened, and Nixon resigned, the country really was in a situation where one could turn the page,” said Donald Verilli, a partner at the law firm Munger, Tolles & Olson and a former solicitor general in the Obama administration.

“We haven’t had that historical resolution that we had in the 1970s, and that’s a huge part of the problem. You’ve still got a significant percentage of the public still in thrall in believing these lies and ready to act on them in the future,” said Verilli, adding that Jan. 6 and the national response is more important than Watergate by “orders of magnitude.”

For a brief moment after the Capitol riot, it looked like the country’s political leaders would come together to stand united in defense of democracy.

But Trump, aided by close associates, conservative lawmakers and media allies, has continued to falsely insist that the 2020 election was tainted by widespread fraud, claims that many of his supporters embrace.

And, aside from a few notable exceptions, Republicans have declined to forcefully confront Trump’s election claims.

“In this environment, with Fox News and Tucker Carlson, would Nixon survive?” said James Robenalt, an attorney at Thompson Hine and creator of a continuing legal education class on Watergate. “My answer is, I think he would.”

In contrast to the reckoning Nixon faced, Trump has largely sidestepped personal accountability.

Trump previously secured acquittals in two Senate impeachment trials and avoided an indictment after he was accused of obstructing the special counsel investigation into his campaign’s links with Russia amid Moscow’s 2016 election meddling.

Kristy Parker, who spent 15 years as a DOJ prosecutor, said there is an “extremely high” likelihood that Trump broke laws in his effort to throw out the results of his electoral defeat.

Although prosecuting a former president would be an extraordinary and historic step, it could ultimately help to restore faith in the rule of law, she said.

“One of the things that’s really happened over the last many years, but certainly the last five or six, is the loss of faith in our institutions,” she said. “And I think this is actually a real opportunity for a couple of our most important institutions — the Department of Justice and the courts — to show that they really can enforce the rule of law and they can do it in a fair and orderly way.”

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