The right lesson of Watergate

Forget facile Trump-Nixon parallels — and get the damn evidence

In May of 1974, his presidency spiraling toward its final denouement, Richard Nixon tried a desperate gambit.

The previous July, the world was shocked to learn that Nixon recorded all conversations in his various offices. Watergate special prosecutor Archibald Cox immediately subpoenaed the tapes; the President refused to honor the subpoena.

Three months later, under excruciating political pressure, he proposed a “compromise”: John Stennis, the distinguished 72-year-old senator from Mississippi, could receive access to the tapes and summarize their contents for investigators. Not least since Stennis was hard of hearing, and a Nixon loyalist, Cox refused the deal. Nixon fired Cox — and 84 Congressmen introduced bills for impeachment or an investigation toward a possible impeachment within the week.

All that autumn and winter, Nixon kept fighting to keep out of investigators’ hands the crucial evidence that he knew would destroy him. Until, on April 30, 1974, with subpoena after subpoena flying his way from both the House Judiciary Committee and a new special prosecutor, he released a phone-book-sized volume of transcripts of several key Oval Office conversations.

But investigators who had heard some of the excerpts soon pointed out that they were grossly inaccurate. The Judiciary Committee ruled that the transcripts did not fulfill their subpoena. The desperate gambit had failed, pressure to release the tapes themselves kept compounding — and with impeachment rallies drawing tens of thousands of citizens at a pop nationwide, and so many motorists honoring the “HONK FOR IMPEACHMENT” protest signs in front of the White House that it was hard for the President’s men to do any work, Richard Nixon was plainly losing his mind. On May 4, he traveled to Spokane for the ceremonial ribbon cutting for “Expo ’74,” and tried to acknowledge his host, the governor of Washington State, whose name was Daniel J. Evans.

Only, in a Freudian slip, Nixon referred to him instead as “Governor Evidence.”

Evidence, evidence, evidence. Forty-three years later, the same subject sees President Trump spiraling toward madness in much the same way — though it has to be said that Trump has had much less further to travel to get there. Now, with the appointment of a skilled, shrewd and principled special prosecutor, former FBI director Robert Mueller, to investigate Trump’s connections to Russia, the constitutionally sensitive question of how to pry possible recorded documentation from an extremely reluctant White House once more returns to the fore.

It was Trump, ironically, who helped to place it at the center of our political consciousness. His bizarrely stupid and self-destructive May 12 tweet — “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” — immediately brought forth a roar of speculation: Are there tapes of the infamous White House dinner where Trump allegedly demanded FBI director James Comey pledge personal loyalty to him, and where, according to a memorandum setting down the conversation Comey is said to have written for the files, Trump also requested regarding the FBI investigation of former National Security Advisor Michael Flynn, “I hope you can let this go”?

Has Donald Trump carried over his decades-long practice of secretly surveilling those he does business with into the executive mansion? Is Trump really so dumb as to have not learned Richard Nixon’s lesson never to record yourself obstructing justice?

Rep. Elijah Cummings, ranking minority member of the House Oversight Committee, and his veteran colleague John Conyers, wrote to White House counsel Donald McGahn, “Under normal circumstances, we would not consider credible any claims that the White House may have taped conversations of meetings with the President. However, because of the many false statements made by White House this week, we are compelled to ask whether any such recordings do in fact exist. If so, we request copies of all recordings in possession of the White House regarding this matter.”

These questions, however, and the requests, are a little bit bizarre in themselves. They’re anachronistic — as if commentators have joined the President in a time machine, hopping off in an era when giant reel-to-reel dinosaurs stalked the Earth.

Of course there are “tapes” of Trump White House conversations — as anyone who works in a big corporation has reason to know.

As the Chicago Tribune recently pointed out, since 2011, the White House, like any stateof-the-art office, uses a Voice over Internet Protocol (VoIP) phone system, “an Internet technology that sends voice messages as packets of digitized data. The technology allows for retrieval of a text record of presidential conversations.”

Trump may or may not have “taped” the Comey dinner or other non-telephonic conversations relevant to the inquiry. And yet, imagine how many telephone conversations there must have been — whether with Comey or with White House aides or outside advisers — relevant not just to the Comey firing, but to Mueller’s broader brief to investigate connections between the White House and Russia.

Muller also enjoys another advantage in getting to the bottom of presidential malfeasance that Watergate-era investigators did not. After Nixon resigned the White House in disgrace in August of 1974, fears that he would destroy incriminating records in advance of his and his advisers’ criminal trials led to the passage

in 1978 of the Presidential Records Act.

It requires Presidents, vice presidents and their staffs to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented…and maintained as Presidential records.” They are then sealed for a specified interval of years — unless they are subpoenaed.

In 2014, President Obama signed legislation modernizing the PRA to specifically include electronic records. The digital clarification was necessary after it was revealed the George W. Bush White House “lost” some 22 million emails sent via a private service set up by the Republican National Committee — and recently became an issue in February of 2017 when Trump aides were reported to have been using communications apps that erase messages as soon as they’re read. The White House then explicitly banned the practice.

Whether digital files of presidential phone calls would be classified as records the administration is required to preserve, which could be subpoenaed by the special prosecutor, is the decision of the archivist of United States. If he so decides, as it seems to me he should, destroying them would be a crime.

There is an exception, however. During his political trial by evidentiary discovery, Nixon and his lawyers devised a novel constitutional theory that the President could hold back documents relating to private consultations with aides, with the argument that the White House could not efficiently function unless officials felt confident they could speak candidly with one another.

The Supreme Court, in the 1974 decision that finally compelled Nixon to turn over his tapes, affirmed the existence of executive privilege, as did the Presidential Records Act — but conversations involving the commission of crimes are not protected.

What’s more, the Harvard constitutional lawyer Laurence Tribe, a Democrat, has argued that Trump waived his executive privilege when he claimed publicly that the FBI wasn’t investigating his campaign’s links to Russia — thus removing discussions of the question from the realm of private White House deliberation.

Committee chairmen can also subpoena presidential records. Retiring House Oversight Committee chairman Jason Chaffetz (R-Utah) has expressed his willingness to compel Comey’s memo alleging presidential obstruction of justice into the record: “I have my subpoena pen ready.”

He should be asked if he’s also willing to use it craft a subpoena covering digital files of phone calls involving potential presidential obstruction of justice.

House Speaker Paul Ryan (RWis.) has claimed his intention, “before rushing to judgment,” to “get all the pertinent information.” If that’s a bluff, it should be called: If digital phone files are presidential records, aren’t they likely to include “pertinent information”? But if he will not — if the Republicans remain adamantly unserious about the investigation — there is an exception to the general rule that only the majority party can subpoena: the Senate Intelligence Committee’s vice chairman, who by law is a member of the minority party, can issue subpoenas as well.

Finally, there may be a tantalizing way to get at the question of whether non-telephonic White House conversations might have been recorded. The White House Communications Agency, the body in charge of securing communications in the executive mansion, is a unit of the military. As such, it would appear to fall under the jurisdiction of the House and Senate Armed Services Committee.

The Senate chairman is John McCain (D-Ariz.) — who is on the record with his belief that the scandal has reached the level of Watergate. That’s another bluff that might be called. For surely the military personnel responsible for sweeping the Oval Office for bugs set by a hostile foreign power would be in a position to confirm or deny whether there were any bugs there placed by, well — anyone else.

Last Sunday Sen. Mark Warner (D.-Va.) told ABC News he didn’t “have the foggiest idea whether there are tapes or not.” And when it comes to Trump’s specific dinner conversation with Comey, he’s correct. But on the broader question, he need not feel so befogged.

If the government’s investigators, whether in Congress or the special prosecutor, are serious about getting to the bottom of Russiagate, it’s time to test whether this White House intends to venture a Nixonian level of obstruction. The evidence is out there. It’s in the phones, or to be more precise whatever servers store the transcripts of their conversations. To grasp it, all they need to do is summon the will — and their subpoena pens.

Perlstein is author of “Nixonland: The Rise of a President and the Fracturing of America” and “The Invisible Bridge: The Fall of Nixon and the Rise of Reagan.”