Comeygate Is Not Watergate

Before Wednesday’s termination, effectuated in the same shoddy, slapdash style that marked his putative boss’s casino constructions, James Comey was destined to be a historical footnote, a bar trivia answer on a I-love-the-20-teens night. Reviled as the man whose intercession cost Hillary Clinton the Presidency, Comey had no friends on the left; as an Obama appointee, he was immediately suspect to an emboldened right utilizing personal loyalty as a stand-in for competence. Comey was a man without a home, and his tenure at the head of the FBI was likely to be both short and forgettable, whatever the positive boost he had given President Trump last October.

Yet the method in which he was terminated suddenly recast Comey from showboating electoral interloper to modern-day Archibold Cox, a sacrificial lamb on the alter of self-preservation for an embattled President. The left seized on the unlikely martyrdom of Comey as a blatant attempt at impeding an investigation into Trump’s ties with Russian puppetmaster Vladimir Putin, made even more transparent by the explanation that his firing was due to the very acts which gave then-candidate Trump the boost needed to gain the White House. Clearly, Trump has not lost his uncanny ability to wrong-foot his opponents with the classic troll of misdirection: blaming Comey’s termination on his actions to investigate Clinton’s e-mails paints the unlikely veneer of fair-minded justice over a transparently selfish and despotic act; following his termination with a meeting with the Russian foreign minister the very next day flaunts his imperviousness to supposed shame or concern.

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politico.com

The press, and many Democrats, have seized on the historical reverberation of Comey’s termination, seeing the dark brow of Nixon in the orange visage of Trump. Google searches for “Saturday Night Massacre,” Nixon’s October, 1973 termination of special prosecutor Cox in order to protect himself as the walls of Watergate grew heavy around him, skyrocketed on Tuesday and Wednesday. The parallels are obvious, so much so that the Nixon Library tweeted “Fun Fact: President Nixon never fired the Director of the FBI”, a clear sign that Nixon partisans, such that remain, were concerned that comparing Nixon to Trump was unfair…to Nixon. Sites from Slate to Vox, from Salon to the Boston Globe, the Washington Post to the New York Times, all made the comparison, and it has become a marker of truth- Comeygate is Watergate, and the assumption below the surface, just as Nixon fell, so too shall Trump.

We seek solace from the patterns of the past to make sense of the world today, not least because in the maelstrom of uncertainty we want for the certainty that the waves swamping the ship of state can abate. Watergate was resolved; a corrupt President fell, the Republic lived on. It is natural that we make the comparisons to what we know, what occurred in our parents’ day, to reassure ourselves that the past is prologue, and the lessons we learned can provide the way forward. In this self-reassurance, we see the calls for a special prosecutor, loudly demanded now by Democrats in Congress, as the only method to seek justice. Surely, they recall the outrage of public opinion forced Nixon to appoint a second special prosecutor just two weeks after firing Cox. Nor does their memory need reach even that far back: they could ask Comey himself, who as Deputy Attorney General in the Bush Administration appointed a special counsel to investigate the unmasking of CIA agent Valerie Plame in 2003.

Yet this is not Trump’s Watergate. There will be no special Senate Committee, no special independent prosecutor, and likely, no fair and full investigation, now, or ever. The circumstances of Presidential overreach, of abuse of power to cover corruption, have not changed. But the United States itself has, and in ways that make a new-age Watergate almost impossible to fathom. Corruption could be unmasked and fought in 1973. It no longer can be under the circumstances so existing. For all his historical illiteracy, it is Trump, and not his opponents, who seems to grasp this clearest of all.

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The Journal

The Watergate break-in and subsequent investigation occurred at a time when the opposition party, the Democrats, controlled both the Senate and the House of Representatives, marking a major change from today’s purely Republican control. That alone would have been sufficient to empower Senate Democrats of that era to at least launch an investigation. But its eventual success and the resulting downfall of the President relied on something else little-remarked and dramatically different from today. Critically, 1973 was a far less partisan era in American history. Ideologically, both Senate and House Republicans and Democrats overlapped substantially between right and left. The overlap reflected the public, as well: the parties had not sorted themselves into always hostile rival camps, and the decline of the New Deal coalition and the recent switch of Southern Democrats to the Republican party was still inchoate, leaving substantial diffusion between parties. Accordingly, partisan polarization was muted. In the space where partisanship had yet to fill, functional cooperation flowered. Bipartisanship among legislators did not necessarily reflect the love of comity. Rather, where partisanship was light, individual voters were not beholden emotionally to back party, and instead, left substantial space to assessment of facts, circumstances, and actions. Legislators needed to acknowledge public opinion and focus on facts because the presence of an R or D after their names was insufficient in most cases to drive popularity and hence, re-election.

The era therefore drove the Congressional action. On February 7, 1973, the Senate’s vote to create a select committee to investigate Nixon’s re-election campaign was not along party lines — rather, it was unanimous. The Committee established was bipartisan and broad-based: it had subpoena power, a substantial budget, and full authority of the United States Senate to not only investigate the break-in at the Watergate, but “all other illegal, improper, or unethical conduct occurring during the Presidential campaign of 1972, including political espionage and campaign finance practices.” When Nixon refused to turn over the tapes, it was a Republican member of the Committee, Howard Baker, who suggested suing the President in Federal Court. Imagine Mitch McConnell suing Donald Trump in federal court, and you will see just how far from 1973 we have come.

Bipartisanship of investigation drew substantial public support: Nixon could not simply disregard the investigation because public opinion of his Presidency was dramatically affected by the ongoing investigation. The public was confident in its opinion of Nixon because it was informed. An astounding 85% of Americans watched at least some portion of the Congressional hearings investigating Watergate in the late spring and early summer of 1973; over one in five watched more than ten hours. Just as importantly, the public’s opinion of Nixon was not based on prior vote but on rational assessment of the facts as they developed. Nixon had won over 60% of the vote in November, 1972, sweeping 49 states in the biggest electoral win in American history to that time. Yet the American people, informed directly by watching the nonpartisan hearings, retained a firm capacity to change their minds.

No matter his flailing, failing, and demonstrated breaks with decency and law, Trump’s approval and disapproval ratings have remained fairly consistent since election day, each moving only around 5% at most. Nixon’s, however, moved substantially downward as the Watergate investigations proceeded: from a height of 68% in January, 1973, his support plummeted to 31% by August — before the Saturday Night Massacre. The Saturday Night Massacre itself did not dramatically alter support for Nixon, low as it was, but it did move another measure of public opinion: the percentage of Americans who believed Nixon should be impeached remained below that which supported him before the Saturday Night Massacre; after, it climbed consistently above Nixon’s rate of approval until he finally resigned some 9 months later. When Nixon made a last ditch effort to save himself in the summer of 1974, the United States Supreme Court, staffed by 5 Republican nominees, including 3 nominated by Nixon himself, ruled 9–0 that he was not above the law and must turn the tapes over the Senate Committee. He resigned shortly thereafter.

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Los Angeles Times

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Nixon’s fall was the result of his own criminality, yes, but it could not have been discovered or brought to a lawful conclusion without an informed and open-minded citizenry willing to first demand and then support an independent, bi-partisan Congressional investigation, itself a product of cooperation and respect for the weighty judgment of the long-term health of the American Republic. Nor would it have necessarily resolved itself as it did without the intercession of a fair United States Supreme Court placing country and law above party affiliation.

Suffice it to say that for those clamoring for Comeygate to be the Waterloo of Trump’s nascent presidency, none of the conditions existing in 1973 exist today. Republicans today are not the Republicans of 1973; while a few raised eyebrows about Trump’s termination of Comey in the heat of the FBI’s investigation of Russian ties, none called for a bipartisan commission, and Senate Majority Leader McConnell expressly rejected it. Nor is the public of today the public of 1973. When Neil Gorsuch was confirmed as a Supreme Court justice just two months ago, a majority of Americans in a public poll could not name a single Supreme Court justice. The idea of some 60 million Americans today watching over ten hours of a Congressional investigation into what the President knew and when he knew it, in Sen. Sam Ervin’s famous phrase, is farcical. Nor would even watching any investigation sway many minds: Americans are more sorted by partisan affiliation that at any time in living memory, perhaps since the Civil War. Around half of Republicans and Democrats say the opposition party makes them “afraid,” numbers that rise even higher when confined to the most politically active. In December polling, approval ratings for Vladimir Putin were substantially higher than those for Hillary Clinton among Republican voters. To put it plainly, if Republican voters fear Hillary Clinton more than they fear Vladimir Putin, why would they seek or place any weight on the results of any investigation in any event?

Much was made of a late-February poll which concluded that over half of Americans wanted Congress to probe Trump’s ties to Russia. But a closer look reveals the permanent schism: 80 percent of Democrats responded yes, but only 25% of Republicans agreed. Coupled with the fact that over 90% of Trump voters would, as of this time, vote for him again, the fall in Nixon’s ratings from January to May in 1973 is not a historical precursor, but a remnant of a lost era that cannot be repeated today. Even in the unlikely event that a bipartisan investigation could occur under these circumstances, Americans today would simply filter the results through a prism of their own choosing. Americans today choose their news sources, and can block out that which is unpleasant, challenges assumptions, or undermines their emotional needs. Suffice it to say that MSNBC and Fox are covering the Comey termination very differently- Sean Hannity, Fox’s new late-night host du jour, spoke of the Comey termination not as retribution for defying an angry President but as an opportunity to correct Comey’s most egregious misconduct—not prosecuting Hillary Clinton.

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Hollywood Reporter

Donald Trump, unlettered in history but an autodidact in creating alternative realities in which to bask, may not have expected the backlash against the Comey termination, but he grasps the concept of power all too well. In brazenly terminating an FBI Director tasked with investigating his own team’s electoral misconduct, creating a transparent rationale for doing so, and then meeting with both Russian officials and Henry Kissinger, of all people — what, was G. Gordon Liddy not available? — Trump is essentially pushing against the boundaries of the American people and their representatives in Congress, seeking just how far he can go without prompting official sanction. The further he pushes without response from the elected representatives of the people, the more he expands the boundaries of tacitly accepted governance, and the more he consolidates his own potency. Once certain powers or actions have accreted to the Executive and been approved by silence, they piece by piece reduce the power of the American citizenry and the legislature and if history is any guide, they will not be recovered. Trump’s tactics recall not Nixon but the salami theory of the Cold War: the Soviets were said to have sliced up their opposition, piece by piece, until the opponents realized all too late that their power had been reduced too much to resist further encroachments. So too, Trump: the separation of powers, the respect for the rule of law, all require the use of those powers by men and women seeking the survival of liberty over the prosperity of party faction.

AP Photo/Evan Vucci

It should be stated here that the issue is not Russia. Team Trump may well not have colluded with Russia to throw the 2017 election, or such contacts may have been incidental. The issue is that the one man who may well be at the core of such criminal activities is making an obvious determination to impede the investigation of such actions without retribution or recourse. A successor FBI Director will take office knowing conclusively that if he pursues the investigation, he runs the risk of being humiliated and terminated without any response from Congress or the American people, and presumably, will act accordingly. No one will mourn James Comey, the man. But those who prize the Republic and remember the importance of the rule of law and the balance of power between Executive and Legislature may have great cause to regret the meek impotence today of sunshine patriots who should know better.

The issue, in broad strokes, has been anticipated since the beginning. James Madison, the architect of Constitutional government, did not create the concept of separating powers out among diffuse branches and localities in a vacuum. He recognized fully the potential for despotism in the human soul and that power unchecked by other power was the realization of the failure of republics past. As he wrote in Federalist 10, a great benefit of a republic would be to control the passions of factions and make it “more difficult for unworthy candidates to practice the vicious arts by which elections are too often carried.” If we intend to discover just what vicious arts, if any, marred the 2016 election, we will need those who maintain some levers of power to use them, while they still remain.

Lawyer by day. Star Wars aficionado by night. Hug a wookie and fight the dark side.

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