The term ‘cover-up’ still roils Washington, 45 years after Watergate

Speaker Nancy Pelosi recently accused President Donald Trump of a “cover-up,” a touchy subject. Trump reacted quickly by terminating discussions about infrastructure spending and declaring a halt to his participation in legislative business as long as Congress persists in investigating his administration. “I don’t do cover-ups,” he declared — reminiscent of President Nixon’s famous declaration, “I am not a crook.” The term “cover-up” continues to be highly charged, 45 years after Watergate, in part because the lessons of that cover-up remain as relevant as ever.

Pelosi spoke in the context of the president’s refusal to comply, or allow others to comply, with House investigative subpoenas. Notably, non-compliance with subpoenas was part of the concept of cover-up included in the House’s 1974 Nixon impeachment inquiry, in which I participated as leader of the Watergate and Cover-up Task Force.

In Nixon’s case, cover-up included his failure to produce evidence relevant to obstruction of justice and other potential impeachable offenses called for in subpoenas issued by the House Judiciary Committee on multiple occasions. The most notorious was Nixon’s failure to produce the “smoking gun tape” until ordered to do so by the U.S. Supreme Court. Nixon’s failure to honor these House Judiciary Committee subpoenas was the subject of the third Article of Impeachment voted by the committee in July 1974.  

The House Judiciary Committee’s Nixon impeachment inquiry provides other lessons about the meaning of cover-up by a president that apply to today’s situation. Especially notable is that guilt in a cover-up does not require knowledge of, or participation in, the underlying crime.

The Nixon cover-up was not about obscuring the Watergate break-in. The arrest of the five Watergate burglars on June 17, 1972, was promptly featured in national news. Nor was the cover-up to conceal any involvement of the president in the planning, approval or execution of the Watergate break-in. Despite extensive investigation, no evidence ever established that Nixon conspired (or “colluded”) with respect to the break-in.

Rather, the Nixon cover-up had a political motive: to conceal — or at least delay until after the November 1972 presidential election — disclosure of the fact that the break-in was planned and executed by personnel of the president’s campaign committee. The June 23, 1972, “smoking gun tape” proved that the president agreed with Chief of Staff H. R. Haldeman’s strategy to portray the break-in as a CIA operation. White House aides G. Gordon Liddy and E. Howard Hunt were indicted on Sept. 15, 1972, and the ongoing saga of Hunt’s demand for “hush money” was to prevent his disclosing what he knew about the source of the funding and authorization for the break-in. Over time, the cover-up focused on hiding the acts of Nixon and his top aides to obstruct justice.

Today, with cover-up charges leveled against President Trump, the underlying crime of the Watergate break-in is replaced by Russian government cyber espionage conducted by officers of the Main Intelligence Directorate (GRU) of Russian military intelligence, 12 of whom special counsel Robert Mueller indicted for having conducted “large-scale cyber operations to interfere with the 2016 presidential election.” The detailed indictment describes how the GRU used its X-Tunnel malware to remove voluminous email data from the Democratic National Committee’s computer system and then to disseminate these emails to the public through WikiLeaks.

While there is no evidence establishing that Trump colluded with the Russians, even though he called publicly during the 2016 campaign for Russia to release hacked Clinton emails, there is much evidence in the Mueller report that President Trump sought to end the investigation of Russian interference in the 2016 presidential election. Trump has said, for example, that he fired former FBI Director James Comey because he knew there was no collusion and the FBI investigation was, therefore, pursuing a witch hunt. Yet investigating Russian interference was by no means a witch hunt, as the indictments demonstrate.

Just as in Watergate, where the Nixon campaign’s involvement was a political problem for Nixon, Russian government interference in the 2016 election is a political problem for Trump, because it calls into question the legitimacy of his election. In both cases, in political terms, the cover-up is more damaging to the president than the underlying crime.

Nixon could have promptly cleaned house at his campaign headquarters and put an end to the Watergate matter. For Trump, it is harder to concede that Russian intelligence played a role in his victory, because that would create the impression that he is beholden to a hostile foreign power. Even harder would it be for him to concede the evidence in the Mueller report that he and his campaign repeatedly welcomed and encouraged this Russian assistance, even if those acts may have fallen short of proof of actual agreement and conspiracy.  

As Watergate showed, the cover-up is politically worse for the president than the underlying crime. That may be why Trump reacted so viscerally to Pelosi’s accusation. Watergate gave “cover-up” a bad name that still roils Washington to this day.

Evan A. Davis, senior counsel with Cleary Gottlieb, was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).