Nixon Returns

History repeats itself. In fact, the same characters pop up again and again – stock characters – iconic symbols of this or that sort of historical folly. In the first decade of this century, America said “never again” – that was the word. Six million died, simply because they were Jewish, and because no one stopped Hitler when they had the chance, before the whole thing started. Neville Chamberlain negotiated a treaty with Hitler in 1938, returning from Munich saying there would be “peace in our times” – Hitler could have the Sudetenland and that would be that. Chamberlain should have known better. Negotiations are foolish. Hitler was who he was, and such people have to be stopped by force. Force is the only thing that will stop them. Talk won’t stop them. Bombs will. That’s the lesson of history – and back them, Saddam Hussein was Hitler.

Arthur Schlesinger, Jr. once said this – “I trust that a graduate student someday will write a doctoral essay on the influence of the Munich analogy on the subsequent history of the twentieth century. Perhaps in the end he will conclude that the multitude of errors committed in the name of ‘Munich’ may exceed the original error of 1938.”

Schlesinger was an historian wary of history, but animosity became policy in the Bush-Cheney years. Schlesinger, had he lived, would have been saddened by how the Munich analogy was used to justify the Iraq War. Colin Powell faced the cowardly and immoral and useless French at the United Nations, who were saying that it might be wise to wait for Hans Blix and his inspectors to finish their hunt for those weapons of mass destruction, and also saying that if Blix found any nasty weapons of mass destruction, which seemed unlikely, all-out war wasn’t the only way to deal with that problem, if it turned out there was actually was a problem – and there might not be a problem. Wait. Think this through.

We would have none of that. The inspectors had to leave – immediately. We’d soon have our war, and the Bush surrogates hit the talk shows and gave their speeches all over the country, subtly invoking Neville Chamberlain, or naming him explicitly, as an example of the pointlessness of diplomacy in what they called the real world. The Bush crew pummeled the skeptics with that name, Neville Chamberlain, until almost every Democrat, and Hillary Clinton most famously, gave in. There was also that one word – Munich. We had our war.

After eight long years we left Iraq with nothing much to show for it, other than the scorn of the rest of the world, and ISIS, and an Iraqi government aligned with Iran. That should have ended the argument about whether Neville Chamberlain had been a special case, and Hitler too – they both must have been – but it didn’t. Diplomacy is still considered stupid and cowardly, at least by many, and certainly by Donald Trump. He let Rex Tillerson dismantle the state department. He’s told Tillerson that negotiations with North Korea are pointless. He’s parked three carrier groups off the North Korean coast. He’s not invoked the holy trilogy – Munich – 1938 – Neville Chamberlain – but he gets the general idea. There will be no negotiations.

History repeats itself. Gary Oldman will probably get the Oscar this year for his over-the-top portrayal of Winston Churchill – the “real man” who replaced that wimp Neville Chamberlain and saved England and the world. That’s a movie for Donald Trump. Neville Chamberlain will always be the fool. Neville Chamberlain will always be that iconic symbol of historical folly.

There are, however, other iconic symbols of historical folly. Forget about Neville Chamberlain. Think about Richard Nixon. His wild attempts to cover up the cover-up of Watergate ended with articles of impeachment, and his resignation. He resigned rather than face a trial in the Senate. He blew it. He ruined his own presidency. That one question kept coming up – “What did the president know and when did he know it?”

There was no good answer to that, and now Donald Trump faces the same question:

The shifting explanations for why President Donald Trump fired national security adviser Michael Flynn have revived questions about whether the president may have obstructed an ongoing investigation of potential contacts between his campaign and Russia.

Pressure on the administration has mounted since Flynn last week pleaded guilty to lying to the FBI about his conversations with the Russian ambassador, with prosecutors revealing that he is now cooperating with special counsel Robert Mueller’s investigation. And a muddled White House response, including a problematic presidential tweet, has left some Trump confidants worried that the president is not being well-served by his legal team and believing his lawyers have painted a too-rosy picture of the president’s potential plight.

Here we go again:

The president’s aides and legal advisers have scrambled for 48 hours to explain a presidential tweet that raised the specter of obstruction. It read: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pleaded guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

That was the wrong thing to say:

That tweet appeared to indicate a change in the White House explanation for Flynn’s firing, suggesting Trump was aware when the White House dismissed Flynn on Feb. 13 that the national security adviser had lied to the FBI, whose agents had interviewed him weeks earlier. Former FBI Director James Comey has said Trump the following day brought up the Flynn investigation in private at the White House and told him he hoped he could “let this go,” raising the possibility he knew Flynn had lied and was looking to cover up the offense.

What did the president know and when did he know it? When did he know that Flynn has committed a felony? He seems to admit he knew that all along, and wanted that felony to be ignored, or he didn’t admit that:

With questions raised by the tweet, Trump associates tried to put distance between the president and the potentially incriminating message. One of Trump’s attorneys, John Dowd, told CNN on Sunday that he was responsible for crafting the tweet.

Dowd said that Trump knew nothing about any felony, and that he himself had just been sloppy – this was just serene ignorance and momentary incompetence. There was nothing to see here. Move on.

That may be impossible:

In the wake of the controversial tweet, Trump launched a fresh denial that he had pressured the former FBI director, tweeting Sunday that “I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!”

Trump fired Comey in May, leading to Mueller’s appointment.

This was a mess. Trump was sounding like Nixon, saying that he never did this or that or that other thing, in spite of overwhelming evidence that Nixon did all those things, and that’s the problem:

Any proof that Trump knew before he spoke with Comey in February that Flynn had lied to the FBI could bolster obstruction of justice allegations against the president and raise the prospect that he was trying to protect a key member of his inner circle from probable prosecution, said Jimmy Gurule, a Notre Dame criminal law professor and former federal prosecutor.

Though the president has previously said he was thinking of “this Russia thing” when he fired Comey, Gurule said it was reasonable to infer from the weekend tweet that the dismissal of Comey was done in the hope of terminating the FBI investigation.

“If you have knowledge of a crime, a reasonable person would disclose that information to law enforcement. The president did not,” Gurule said.

Nixon, in the end, wasn’t a reasonable person with knowledge of a crime willing to disclose that information to law enforcement. He paid the price for that. Donald Trump doesn’t even try to be a reasonable person. He sold himself to America as a man who would never be a reasonable person. He’d be angry and vengeful and whip the nation and the world into shape, being the awesome and unpredictable wild man. He may soon pay the price for that.

There is, however, Nixon’s famous defense of unreasonable actions:

The Nixon Interviews were a series of interviews of former President Richard Nixon conducted by British journalist David Frost, and produced by John Birt. They were recorded and broadcast on television in four programs in 1977. The interviews became the central subject of Peter Morgan’s play “Frost/Nixon” in 2006…

In part 3, Frost asked Nixon about the legality of the president’s actions. In the context of American national security, Nixon replied: “Well, when the president does it that means that it is not illegal.”

It was a bit too late for Nixon to argue that, even if that sort of thing might have made him feel better about himself, but as the Washington Post’s Sari Horwitz and Philip Rucker report, history repeats itself and that argument is has been dusted off and presented again:

Trump tweeted over the weekend that he knew then-national security adviser Michael Flynn lied to the FBI about his contacts with the Russian ambassador before firing him in February – and before FBI Director James B. Comey said Trump asked him to be lenient while investigating Flynn. Experts said the president’s admission increased his legal exposure to obstruction-of-justice charges, one of the core crimes under investigation by special counsel Robert S. Mueller III.

But Trump’s personal lawyer John Dowd sought to excuse the president’s tweet in part by telling Axios and NBC News on Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”

That was Nixon’s argument, advanced far too late to do Nixon any good, but here it is being used preemptively, and that caught everyone off guard:

Inside the White House, some senior officials were baffled that Dowd publicly offered this interpretation of the law, which has been advanced since the summer by constitutional scholar Alan Dershowitz in defense of Trump but flatly dismissed by many other legal scholars.

Ty Cobb, a White House lawyer overseeing its handling of the Russia investigation, said Monday that the Dershowitz-Dowd theory was not the president’s official legal strategy.

“It’s interesting as a technical legal issue, but the president’s lawyers intend to present a fact-based defense, not a mere legal defense,” Cobb said in an interview with the Post. “That should resolve things, but we all shall see.”

Asked whether Trump agrees that a president cannot obstruct justice, Cobb replied, “I never talk about what the president’s beliefs are or discuss communications between the president and his lawyers.”

Cobb sees nonsense here. His crew will present their fact-based defense, for good reason:

Many Washington lawyers and legal scholars disputed Dowd’s interpretation, citing several court cases and articles of impeachment – as well as, in the words of one expert, “common sense.”

“We have a president, not a king,” said Sam Berger, senior policy adviser at the Center for American Progress, a liberal think tank. “No one is above the law, whether it be Trump or any of his close associates. It’s the sort of desperate claim that makes you wonder, ‘What exactly are they hiding?'”

Berger argued that Dowd’s reasoning amounts to a “Hail Mary pass” for the president to escape responsibility. “This response, ‘If it’s the president, it’s not a crime,’ has never flown with the American people or our legal system in any context,” he said. “Claiming that the president can’t obstruct justice flies in the face of both common sense and past precedent.”

But on the other side there was this:

Dershowitz, a Harvard Law School professor, said Monday on Fox News Channel that Trump was within his rights when he fired Comey.

“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz said. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”

Trump loved it:

Dershowitz was appearing on “Fox & Friends,” a pro-Trump morning show that the president regularly watches. After his appearance, Trump tweeted, “A must watch: Legal Scholar Alan Dershowitz was just on @foxandfriends talking of what is going on with respect to the greatest Witch Hunt in U.S. political history.”

Trump sounds more and more like Nixon every day, and he may pay the same price for that:

The Brookings Institution in October published a 108-page study titled “Presidential Obstruction of Justice: The Case of Donald J. Trump.” The authors reviewed the articles of impeachment against presidents Richard Nixon and Bill Clinton, and those drafted against Judges Harry Claiborne in 1986 and Samuel Kent in 2009. They concluded that “obstruction, conspiracy, and conviction of a federal crime have previously been considered by Congress to be valid reasons to remove a duly elected president from office.”

Co-author Norm Eisen, former special assistant for ethics and government reform in the Obama administration and a senior fellow in governance studies at Brookings, said, “There’s a long line of cases holding that when a government official exercises an otherwise legal authority with corrupt intent, they can be prosecuted for obstruction. It flows from the notion that no person is above the law.”

And there was this:

In 1999, Attorney General Jeff Sessions, then a senator from Alabama, argued that President Clinton should be removed from office for obstructing justice in the investigation into his relationship with White House intern Monica Lewinsky.

“The facts are disturbing and compelling on the president’s intent to obstruct justice,” Sessions said at the time.

In short, the issue here is intent, corrupt intent, not the exercise of an otherwise legal authority. And Politico rounds up some legal opinions on all this – including this from the guys at Bookings, Norm Eisen, the chief White House ethics lawyer from 2009 to 2011, and Noah Bookbinder, a former federal corruption officer, and Barry Berke, a lawyer specializing in white-collar criminal defense:

Dowd’s statement is apparently premised in part on a spurious “unitary executive” theory, which understands the president’s Article II powers to give him completely unchecked authority to direct, control and supervise inferior officers and agencies that exercise discretionary executive power. This view has been widely rejected, including by the Supreme Court. In Morrison v. Olson, the court upheld the constitutionality of a statute authorizing the appointment of an independent counsel who was appointed by a three-judge panel and removable by the attorney general, not the president, and only for good cause. That is a far cry from the absolute right to direct and control all executive branch personnel that Dowd’s argument posits.

It is also critical to distinguish the argument Dowd is making from another – that the president cannot be indicted for any crime, much less obstruction of justice. Whether a sitting president may face a criminal indictment is an open question; however, there are good reasons to be skeptical of broad invocations of presidential immunity. Previous investigations of presidents – including Watergate, Iran Contra and Whitewater – have proceeded under the assumption that the president could be indicted. And in past cases that have involved subjecting the president to judicial process, the Supreme Court has consistently ruled that due deference to the constitutional responsibilities of the president requires only special accommodation, not absolute immunity.

And there’s this:

It is important to remember, too, that twice in our nation’s history, presidents have faced the prospect of removal from office for obstructing justice. President Nixon chose to resign after the House Judiciary Committee reported impeachment charges against him including the allegation that Nixon “prevented, obstructed, and impeded the administration of justice” by, among other things, “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” President Clinton was impeached by the full House (but not convicted) on a count of obstruction of justice for engaging “in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.”

It is clear from both of these precedents that a president may be held to account for obstructing justice, at least by Congress.

In short, this is bullshit, and there’s Bruce Ackerman, a professor at Yale Law School:

The first article of impeachment against Richard Nixon charged him with the high crime of “obstruction of justice,” on the ground that he used “the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation” of the Watergate break-in. Nixon would have undoubtedly been convicted on his charge if he had not resigned.

This should serve as the key precedent for Congress in assessing President Trump’s conduct, as Mueller’s inquiry unfolds.

There’s agreement here. Dowd and Dershowitz are wrong, because Nixon was wrong. When the president does it that doesn’t mean that it is not illegal. That only means he did “it” – whatever that might be. Trying to make a felony committed by the national security advisor go away, by firing the FBI director or whatever, because looking into that crime might uncover some other crime, perhaps but not necessarily a crime by the president himself, is obstruction of justice. Nixon didn’t want to accept that notion, but he did resign. He knew better. He was rationalizing the biggest mistake of his life. He was comforting himself.

Trump shouldn’t comfort himself, listening to Dershowitz. Trump can be impeached, rather easily, and Ezra Klein adds this:

“We’ve talked ourselves into believing impeachment is some kind of constitutional doomsday device: ‘Break glass in case of existential emergency,'” says Gene Healy, a vice president at the libertarian Cato Institute. “The result is we almost never break the glass.”

Forget that:

We have grown too afraid of the consequences of impeachment and too complacent about the consequences of leaving an unfit president in office. If the worst happens, and Trump’s presidency results in calamity, we will have no excuse to make, no answer to give. This is an emergency. We should break the glass.

But even if we muddle through Trump’s presidency, it should be a reminder that the presidential elections are as fallible a method of selecting an executive as any other. American government is built so that a president can be removed and a duly elected co-partisan is always present to step in and take his place. Impeachment is not a power we should take lightly; nor is it one we should treat as too explosive to use. There will be presidents who are neither criminals nor mental incompetents but who are wrong for the role, who pose a danger to the country and the world.

It is a principle that sounds radical until you say it, at which point it sounds obvious: Being extremely bad at the job of president of the United States should be enough to get you fired.

That’s a novel idea, but a sound idea. Trump and Dowd and Dershowitz should forget what Nixon said. History repeats itself. Maybe these guys should go back to talking about Neville Chamberlain. That would be safer.