Philip Allen Lacovara, a former U.S. deputy solicitor general in the Justice Department, served as counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski.
As the senior surviving member of the Watergate special prosecutor’s office from the time of the “Saturday Night Massacre,” it is impossible to consider the firing of FBI Director James B. Comey without recalling that fateful night. One comparison — the behavior of senior Justice Department officials in the face of presidential pressure — is disappointing. Another — the insistent focus of the president and his allies on stopping damaging leaks rather than getting to the bottom of the underlying conduct — is chilling.
First, it is important to recognize how different were the acts of the two top officials of the Justice Department in these two gravely important events. President Richard Nixon demanded the firing of Watergate special prosecutor Archibald Cox for refusing to obey the president’s order to abandon his quest for the “White House tapes.” Attorney General Elliot Richardson resigned rather than dismiss Cox. When Nixon then turned to Deputy Attorney General William Ruckelshaus to do the deed, Ruckelshaus chose principle over pragmatism and resigned in turn. It was left to the next ranking official, Solicitor General Robert Bork, to carry out the president’s will.
This time, however, the senior leaders of the Justice Department — Attorney General Jeff Sessions and Deputy Attorney General Rod J. Rosenstein — displayed no such courage or independence. Instead, as President Trump confirmed in an interview with NBC’s Lester Holt on Thursday, Sessions and Rosenstein were summoned to the White House and tasked to write memorandums supporting a decision the president had already reached: to get rid of the man leading the investigation into Russian meddling with the presidential election and possible collusion between the Trump campaign and Russian agents. Unlike Richardson and Ruckelshaus, they complied.
Henry II is said to have used the arguably ambiguous lament, “Will no one rid me of this meddlesome priest?” to induce four lackeys to ride off to Canterbury to assassinate the archbishop. Lacking Henry’s subtlety, Trump merely summoned his subordinates a few blocks up Pennsylvania Avenue and demanded action.
Unlike their predecessors four decades earlier, Sessions and Rosenstein failed to recognize that they have a higher public duty than merely to implement the president’s will, even if Trump’s action was technically within his constitutional power.
In pre-revolutionary days in England, pleadings by counsel for the government were signed “who comes to plead on behalf of our lord, the king.” What Sessions and Rosenstein have ignored is that the official seal of the Justice Department modifies this ancient notion of fealty and declares that the officers of the Justice Department “prosecute on behalf of justice.”
Most distressing to those of us who served in the department is that in his first significant act as deputy attorney general, Rosenstein apparently was willing to place his generally applauded credibility into a blind trust and deliver the sharpened dagger to the president in the form of a critique of Comey’s handling of the Hillary Clinton email investigation. Reports that Rosenstein threatened to resign when the White House sought to cast him as a prime mover in the firing, with Trump acting only on the recommendation of the Justice Department, provide little reassurance. Whether those reports are accurate (he denied them on Thursday), Rosenstein owes it to himself and his colleagues at the Justice Department to explain why he was so malleable in crafting the president’s pretext for firing Comey.
Reports about why the president was so set on ousting Comey are equally resonant of those long-ago Watergate days. Trump, according to The Post, grew increasingly infuriated with Comey for not pursuing leaks about the probe. In Capitol Hill hearings, the president’s defense team among Republicans in Congress has adopted a similar diversionary strategy, focusing on the leaks rather than the far more serious underlying abuses.
Like Trump and his allies, Nixon and his compatriots were furious about leaks emerging during the early stages of the Watergate investigation. Then, key information that put The Post’s Bob Woodward and Carl Bernstein on the trail of the coverup and kept up the pressure for thorough official investigations came from a source they referred to as Deep Throat, later identified as FBI Assistant Director Mark Felt. Felt chose the difficult course of leaking important information because he feared that the Nixon administration might be successful in suppressing the FBI investigation and maintaining the coverup.
The highest duty of those in public service is to make sure that the truth about serious misconduct emerges. It would be a tragedy if threats to lock up leakers were to cow honorable FBI agents and career prosecutors into silence, even if they smell a coverup at the top. Leaks may be manipulative or mischievous, but — as in Watergate — they may be essential to the transparency and accountability that the American public has the right to expect.
After Nixon resigned, there were congratulatory comments that “the system worked.” But this assessment was overly simplistic. Now, as then, the system works only if the right people in the system do the right thing when deciding whether to roll over or to stand up.
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