“No group of prosecutors and supporting personnel ever have labored under greater public scrutiny,” the special counsel report declares on its opening page. “Every decision seemed to be a delicate one and previously uncharted courses frequently had to be faced. Each action occurred in the midst of a national turmoil.”
It was 1975, and the Watergate Special Prosecution Force had just issued a lengthy report after 28 months investigating Richard Nixon’s administration and his campaign. Let it not be said we’ve never been here before.
They form an odd American literary genre: reports by special counsels and select congressional committees on presidential wrongdoing. They carry the weight of official history yet are contested on arrival, even before. Their authors are prosecutors and lawmakers, so the texts can veer from dense to prosaic to dramatic. The documents identify possible crimes and other misdeeds at the highest level, yet their political implications tend to overpower all else.
Robert S. Mueller’s report on Russian interference in the 2016 election – which he delivered to Attorney General William P. Barr on Friday – does not just complete two years of investigation, indictment, prosecution, and, of course, nonstop speculation and anticipation. It will also take its place alongside works on presidential scandals past. And Mueller will join the ranks of Sam Ervin, Archibald Cox, Leon Jaworski, Lawrence Walsh and Kenneth Starr.
The Watergate, Iran-contra and Clinton-Lewinsky special investigations reflect the struggles of our government to hold itself accountable; they exist because normal checks and balances failed. Yet, beyond their marshaling of facts and revelations of malfeasance, particularly striking are these reports’ warnings to future generations on how to avert the kinds of scandals they examined and, more prophetically, why they recur. Embedded in all of these reports are strident calls for reform, urgent pleas for citizens to defend their democracy, grudging conclusions that new laws or old guardrails alone will not protect us, and, above all, the simple exhortation to elect leaders of integrity.
These documents speak to our moment. If they feel at times like they were written for us, that’s because they were. Mueller’s inquest exists not just because we have failed to police ourselves. It exists because we have failed to listen.
Sam Ervin, the North Carolina Democrat and chairman-turned-hero of the Senate Select Committee on Presidential Campaign Activities, wanted readers to know that Watergate wasn’t fake news. “Watergate was not invented by enemies of the Nixon Administration or even by the news media,” he wrote in his opening statement to the committee’s massive 1974 report. “On the contrary, Watergate was perpetrated upon America by White House and political aides, whom President Nixon himself had entrusted with the management of his campaign for re-election.” Such aides, Ervin noted in a dry aside, often lacked the credentials or experience befitting their posts, save for their loyalty to the president – a malady that has struck the current White House in concentrated form.
The report of the Ervin committee, appearing just weeks before Nixon’s resignation, detailed the offenses of the Watergate era: the broad effort to destroy the integrity of the electoral process, the hush-money payments and assurances of clemency for some of the original break-in defendants, the use of federal agencies as instruments of political revenge and electoral machination, and so much more.
In his lengthy and eloquent coda to the report, Sen. Lowell P. Weicker (R-Conn.) lamented the way Nixon’s allies tolerated such abuses. “A Constitutional stillness was over the land,” he wrote. The Nixon-era misdeeds matter not only “because they contain sensational crimes, but because they confirm a misuse of the intended functions of important institutions.” Watergate, he explained, “reflects a departure from legitimate government that if allowed to persist would be of far greater significance, over time, than any short-term criminal event.” Similarly, today, the popular fixation on “collusion” as the burden of proof for the Mueller report – a view President Trump has done much to encourage – could lead the public to overlook the insidious erosion of standards of official behavior, inadvertently legitimizing what was once considered illegitimate or inappropriate, even if not illegal.
The report on the Iran-contra scandal by special counsel Lawrence E. Walsh is instructive here. Though Walsh concluded that President Ronald Reagan’s personal conduct “fell well short of criminality which could be successfully prosecuted,” the president nonetheless “created the conditions which made possible the crimes committed by others.” Reagan made clear to his subordinates that he wanted the contras sustained “body and soul,” as he put it, despite a congressional ban on U.S. aid to the Nicaraguan rebels. Reagan officials who were convicted or pleaded guilty later saw their verdicts overturned on what Walsh considered technicalities, while others received pre-emptive presidential pardons. “The failure to punish governmental lawbreakers feeds the perception that public officials are not wholly accountable for their actions,” Walsh complained. “It also may lead the public to believe that no real wrongdoing took place.” The general haziness with which the Iran-contra scandal is often recalled – unlike the historical consensus around Watergate and the partisan divide enveloping the Clinton impeachment – suggests that Walsh was right.
It is precisely the actions of such subordinates, at all levels, that determine the impact of a president’s worst impulses. During Watergate, the Nixon White House pressured executive agencies to fund projects, promote initiatives and fill jobs with an eye toward the president’s reelection needs; the effort was known internally as the Responsiveness Program. But the White House encountered “considerable resistance in the Federal establishment to bending the system to fit reelection purposes,” the Senate Watergate report explained approvingly. (Behold the “deep state,” slow-walking the 1970s!) Two decades later, Walsh would encourage that reaction. “When a President, even with good motive and intent, chooses to skirt the laws or to circumvent them, it is incumbent upon his subordinates to resist, not join in,” Walsh wrote. Their oath is to the Constitution, “not to the man temporarily occupying the Oval Office.”
The main instruments of special counsels are indictments and prosecutions, but their reports also call for bold, innovative reforms of government. After wrestling with whether it could indict a sitting president, the Watergate Special Prosecution Force – yes, that was the stone-cold name of the special prosecutor’s team – suggested a constitutional amendment to resolve the matter. Its report also recommended that presidents not nominate, and the Senate not confirm, any candidates for attorney general who had held senior roles in the president’s campaign. The memory of John Mitchell, who had served as Nixon’s campaign manager in 1968 and who later as attorney general was implicated in the Watergate scandal, loomed large, no doubt, but the dueling imperatives of an attorney general – as both a key Cabinet member serving the president and as the nation’s top law enforcement officer – would trouble other special counsels, too.
Walsh, for instance, noted the “irreconcilable conflict” an attorney general faced in the case of high-level wrongdoing in the executive branch. He complained that Attorney General Edwin Meese, who appointed the Iran-contra special counsel in 1986, “had already become, in effect, the President’s defense lawyer,” whereas Meese’s successor, Richard Thornburgh, engaged in “unprecedented and unwarranted intrusion” into Walsh’s prosecution efforts. Trump, for his part, has at times expressed his desire for loyalty from law enforcement officials, and he never seemed to forgive his first attorney general, Jeff Sessions, who had also been a high-profile Trump campaign surrogate and adviser, for recusing himself from the Russia investigation.
The Senate report on Watergate also called for a number of reforms, or “remedial legislation,” as its mandate required, including the creation of a Public Attorney’s Office, a sort of permanent special prosecutor appointed by the judiciary and confirmed by the Senate, with the mandate to prosecute criminal cases involving a conflict of interest in the executive branch. (Other authorities, including the Watergate Special Prosecution Force, were less than enthused about the proposal, and it eventually died.) And the committee’s vice chairman, Sen. Howard Baker (R-Tenn.) – who uttered the immortal “What did the president know, and when did he know it?” query during the Watergate hearings – suggested the abolition of the electoral college as well as the repeal of the 22nd Amendment, so that second-term presidents could stand for re-election and thus face accountability from voters.
Whatever their merits, the proliferating reform proposals flowed from a conclusion common to many of these reports: that the normal checks and balances of the American system were no longer sufficient. In the Senate Watergate report, Sen. Weicker hailed the separation of powers as “one of our foremost Constitutional doctrines” but acknowledged that the system’s success is not automatic, since it “depends to a large degree on self-adherence and restraint by those in a position to upset the balance.” Such restraint was in short supply in the Watergate era – and in others, too. Walsh was particularly blunt at the conclusion of his Iran-contra report. In finding that the president, various aides and major Cabinet officers had skirted or broken the law and attempted to hide that fact, Walsh asked: “What protection do the people of the United States have against such a concerted action by such powerful officers?” When the executive branch provides false, incomplete or misleading information to Congress, “the rightly celebrated constitutional checks and balances are inadequate, alone, to preserve the rule of law.”
How then, to prevent such actions? “Law is not self-executing,” Ervin admitted. “Unfortunately, at times its execution rests in the hands of those who are faithless to it.” To deserve public office, then, individuals must “understand and be dedicated to the true purpose of government, which is to promote the good of the people, and entertain the abiding conviction that a public office is a public trust, which must never be abused to secure private advantage,” Ervin wrote. They must also possess intellectual and moral rectitude. “The only sure antidote for future Watergates is understanding of fundamental principles and intellectual and moral integrity in the men and women who achieve or are entrusted with governmental or political power.”
In periods of intense partisan and cultural division, traditional safeguards break down because traditional representation is lacking. Political parties, for instance, usually serve as a mediating force between constituencies and those who govern, but “when the parties do not function well, individual citizens feel a loss of control over politics and Government,” Weicker wrote. “They find themselves powerless to influence events. Voting seems futile; politics seems pointless. The political process crosses the line … and things go badly for America.” That seems as true in the late 2010s as it did in the early 1970s.
The Starr report on the Clinton-Lewinsky saga of the late 1990s reads like the most overtly partisan of these tomes, even making the case for impeaching Clinton in its first sentence. Yet it unexpectedly offers one of the most optimistic passages. In an otherwise gross conversation it recounts between the president and political adviser Dick Morris, Clinton fesses up to his relationship with Monica Lewinsky – “I’ve tried to shut my body down, sexually, I mean … with this girl I just slipped up” – and worries about independent counsel Ken Starr and the whole “legal thing.” Morris, hardly an exemplar of virtue, nonetheless assures him that there is “a great capacity for forgiveness in this country and you should consider tapping into it.”
Such belief in the virtue of the people emerges throughout these reports – an unexpected epilogue to their relentless documenting of the seamy side of American public life. But maybe there really is no one else left to depend upon. “This won’t be the Watergate to end all Watergates,” Weicker concluded. “Other men will tape the doors of America in other times. Whether they succeed will be a matter of spirit.” Ervin, for one, believed that spirit had been roused by the horrors of the presidential abuse he helped expose. “The American people have been re-awakened to the task democracy imposes upon them – steadfast vigilance of the conduct of the public officials they choose to lead them.” And the Watergate Special Prosecution Force recalled how, when Nixon ordered the firing of the original special prosecutor, Archibald Cox, “Americans rose in anger … When vigilance erupted, institutions responded.”
Has vigilance – or should we call it “resistance” – erupted today as well? Ervin described how critics of Nixon were branded as “enemies” by the president’s circle, while administration-friendly journalists argued that the Senate committee members were “biased and irresponsible” and that allegations of White House wrongdoing were merely the “venomous machinations of a hostile and unreliable press.” The playbook is familiar. Perhaps such public-spiritedness is harder to harness, or simply less effective, with today’s relentless assault on investigators and opponents.
So we look to Mueller’s report, expecting so much from it – even when the lesson from Mueller’s predecessors is that, in truth, they demand far more from us.