Who will question Trump’s power?
Richard Nixon’s firing of the Watergate special prosecutor Archibald Cox during the “Saturday Night Massacre” in October 1973 doesn’t just provide a clear parallel to Donald Trump’s frightening decision to dismiss FBI director James Comey. It also establishes the clear moral and political standard against which to measure the response of America’s leaders to Tuesday’s action.
After he was ousted, Cox framed the stakes of his dismissal with searing clarity: “Whether we shall continue to be a government of laws and not of men is for Congress and ultimately the American people” to decide. In answering that question, some of the nation’s leaders fell into predictable partisanship. But mostly the country’s public- and privatesector leadership — including key Nixon supporters — united to defend the rule of law and demand the Watergate investigation resume unhindered.
The question today is whether a deeply polarized nation can respond with equal determination to what Benjamin Wittes and Susan Hennessey, the legal scholars who run the Lawfare blog, accurately describe as “a horrifying breach of every expectation we have of the relationship between the White House and federal law enforcement.”
Cox’s dismissal was triggered by his demand for access to White House recordings that ultimately revealed Nixon’s complicity in the cover-up of the Watergate breakin. Nixon wanted to provide just limited summaries of the tapes and allow only conservative Democratic Sen. John Stennis of Mississippi to listen to the recordings to verify the summaries’ accuracy. When Cox rejected those terms, Nixon ordered Atty. Gen. Elliot Richardson to fire him. Richardson famously resigned instead, as did his deputy William Ruckelshaus. Finally, Solicitor General Robert Bork — later Ronald Reagan’s rejected Supreme Court nominee —dropped the axe.
The shock over Nixon’s coup from above hardly dispelled all partisanship. Reagan, then the governor of California, and George H.W. Bush, then chairman of the Republican National Committee, both defended Cox’s firing: “We cannot have a man in [the] executive branch who does not answer to the head of the executive branch,” Bush said. When Cox testified before the Senate Judiciary Committee shortly after his dismissal, GOP Sens. Strom Thurmond of South Carolina and Edward Gurney of Florida tried to paint him as a Democratic sympathizer biased against Nixon.
But many other voices rose in bipartisan outrage over Nixon’s assault on the investigation, including Richardson’s: “At stake in the final analysis is the very integrity of the governmental processes I came to the Department of Justice to help restore,” he said.
Powerful institutions outside of government swelled the chorus. In the 1972 presidential campaign, the AFL-CIO had tilted toward Nixon by conspicuously remaining neutral between him and Democratic nominee George McGovern. But after the Cox dismissal, its national convention unanimously called for Nixon’s impeachment. The American Bar Assn. convened an emergency meeting to condemn the firing and “the attacks which are presently being made on the … rule of law as we have known it.” The public deluged the White House and Congress with telegrams and phone calls in what one historian called “the greatest outpouring of electronic protest ever seen.”
Critically, several congressional Republicans added their voices. Moderate Maryland GOP Sen. Charles Mathias declared that “it is not right for any institution to investigate or prosecute itself.” Arizona Sen. Barry Goldwater, the former GOP presidential nominee, said Nixon’s credibility “had reached an alltime low” and he “may not be able to recover.” The backlash was so fierce that Nixon relented within days and released the tapes Cox had sought.
It was too late. Three days after Nixon fired Cox, the House of Representatives began the formal impeachment process that led to the president’s resignation 10 months later. Trump today does not face comparable legal or political jeopardy. But the Comey firing escalates Trump’s disturbing pattern of seeking to undermine and delegitimize any institution capable of challenging him. That instinct is apparent in his attacks on the news media; his disparaging of judges who rule against him; and his earlier dismissals of acting Atty. Gen. Sally Yates and federal prosecutor Preet Bharara, who were both investigating figures in his orbit. At best, this represents disdain from Trump for the checks and balances that underpin American democracy; at worst, it constitutes active subversion of them.
A few Republicans frequently critical of Trump — among them Sens. Jeff Flake of Arizona and Ben Sasse of Nebraska, and Ohio Gov. John Kasich — joined virtually all Democrats in raising alarms about Comey’s dismissal. But most GOP leaders issued tepid responses that minimized or obscured the core issue: Trump fired the law-enforcement official leading the investigation into his campaign for possible collusion with a hostile foreign government.
With that decision, Trump made clear his willingness to trample the formal and informal limits that have checked the arbitrary exercise of presidential power through American history. If Trump can decapitate the FBI inquiry into his campaign without real consequence — such as an irresistible bipartisan demand for an independent counsel to take over the investigation—his appetite for shattering democratic constraints is only likely to grow.