Fifty years ago last week, Richard Nixon resigned from the presidency. His resignation was compelled by the impending release of the infamous White House tape recordings, which the Supreme Court, in a case that I argued, had just ordered disclosed.
The batch of subpoenaed tapes included the “smoking gun tape,” proving that Nixon himself had been a chief architect of the criminal coverup of responsibility for the break-in at the headquarters of the Democratic Party.
For a while, the public breathed a collective sigh of relief. The republic was safe. Nixon went off to California, soon spared prosecution by a pardon from his successor, President Gerald Ford, but never to seek public office again.
As the smug commentary went, Watergate showed that “the system works.” America would never again have to worry about a criminal occupying the White House or aspiring to do so.
Both that confidence in the system and the assurance that the presidency had become off limits to criminals proved misguided. The contrast with the current era could not be more stark or more disquieting.
Watergate proved that the system is not self-sustaining and autonomous. It only works if the right people are in place in the right institutions at the right time — and willing to commit themselves to playing their proper roles vigorously and courageously.
From my perspective as counsel to the Watergate Special Prosecutor, I tend to focus on the two special prosecutors with whom I served, Archibald Cox and Leon Jaworski. Cox was a man of exceptional probity and courage, who took seriously his commitment to pursue all available evidence and track it wherever it led, even at the risk of being fired, as he eventually was in the landscape-shifting “Saturday Night Massacre.” Jaworski was the tough and determined Texas trial lawyer who picked up the ball and pushed down the field relentlessly, authorizing the indictment of Nixon’s chief aides and naming Nixon himself as a criminal co-conspirator.
During the recent administration of President Donald Trump, however, the two key figures responsible for holding a miscreant president in check were Attorney General William Barr and Special Counsel Robert Mueller. Barr chose to play the role of chief defender of the president at the cost of his reputation for professional integrity. Mueller proved to be ineffectually fainthearted, content to imply possible wrongdoing by Trump but pronouncing himself incapable of doing anything about it.
In Congress during Watergate, the Senate Select Committee led by Sam Ervin diligently pursued public hearings to ensure that voters had full and unfiltered knowledge of the facts. Republicans participated in the process constructively. In the House, Judiciary Committee Chair Peter Rodino led such a careful and honorable impeachment inquiry that even several Republicans were willing to vote to impeach Nixon. And eventually it was GOP leaders from the Senate and House who told Nixon, the leader of their party, that he had to resign.
The House of Representatives twice impeached Donald Trump, but both times almost every Republican in the Senate chose to acquit him as a matter of party loyalty, despite acknowledging his culpability, especially in connection with the Jan. 6 uprising.
The Supreme Court lived up to its responsibility during Watergate, ruling unanimously that Nixon had to surrender the controversial tapes, explaining that no person is above the law, even the president. Thanks to Trump’s ability to refashion the high court to follow his concept of presidential supremacy, Chief Justice John Roberts recently created a doctrine of unique presidential immunity to commit federal crimes.
That notion would never have been taken seriously as recently as 10 years ago. I am confident that, prior to the current court, no justice who served over the last two centuries, including the unanimous justices in the Watergate tapes case, would have considered this proposition arguable or remotely responsible.
Outside the formal institutions of government, the media and the public played key roles in assuring that the system would hold Nixon to account. In addition to the legendary Bob Woodward-Carl Bernstein combo from the Washington Post, all the major newspapers and the handful of television networks that existed at the time kept the spotlight on facts that emerged during government investigations and their own inquiries.
It was the public outrage after the Saturday Night Massacre that helped energize the impeachment inquiry and, crucially, helped erode Nixon’s political support in Congress and beyond. The hostile public reaction was widely regarded as a “firestorm.” That civic outrage set the stage for holding Nixon accountable.
The world of Donald Trump today is very different. His base supporters remain fiercely loyal, despite his involvement in provoking the Jan. 6 storming of the Capitol. Trump’s actual indictment for complicity in those events (and other efforts to overturn the results of the 2020 election) has merely intensified his followers’ devotion.
Trump relishes referring to the “mainstream media” as a taunt and a slur. His supporters have access to unfiltered sources of social media that did not exist 50 years ago. Those outlets have the capacity to create and circulate “alternative facts” to advance a revisionist view of both the past and the present.
Without an informed and responsive public electorate overseeing the performance of the institutions of government, the American system will not work. Indeed, it cannot work.
While I am optimistic that, over time, the system will correct itself, this can happen only if the vast majority of reasonable citizens are willing to demand it. Meanwhile, I can merely rue how far we have come since the heady days following Nixon’s resignation.
Philip Allen Lacovara was formerly counsel to the Watergate Special Prosecutor, deputy solicitor general of the United Sates, and president of the District of Columbia Bar.
