As John Dean sat down in the witness chair before the House Judiciary Committee this week, the historical comparison was inescapable. It was almost exactly 46 years after his famous appearance as White House counsel to President Nixon in what was a pivotal moment during those impeachment hearings. It was a made for television moment by House Democrats, except for the clear absence of actual television coverage.
Afterward, House Democrats expressed outrage that neither the major networks nor the cable channels covered the hearing. As Representative Steve Cohen of Tennessee lamented to the press, “It is just how many people saw it, I do not know. It should have been on MSNBC, it should have been on CNN, it should have been on Fox, not just on CSPAN 3.”
Dean has long ranked presidents on a type of Nixon scale. He wrote a book, “Worse Than Watergate,” giving George W. Bush effectively five Nixons. As someone who was asked to testify at the hearing, I cannot say that I regret taking an extra day of hiking in the southwest instead. (As Dean himself might have observed, the La Luz Trail of New Mexico was very captivating, deceiving, and ultimately punishing just like Nixon.)
While the Washington Post reported that the hearing “failed to produce a blockbuster moment” or even “gain traction” against President Trump, it was not due to the lack of media cameras or the efforts of Dean. The failure to create a solid connection between 1973 and 2019 was due to overstating the analogy between them. Dean did his best, testifying, “It is quite striking and startling that history is repeating itself, and with a vengeance, so that is why I have spoken out.” However, he gave several overlapping examples that undermine the case for his Nixon analogy.
Comey firing and Nixon ‘massacre’
Dean insisted that Trump firing FBI Director James Comey “echoes” Nixon firing special prosecutor Archibald Cox in the infamous “Saturday Night Massacre” in 1973. The problem is that, as detailed in the memo by Deputy Attorney General Rod Rosenstein, an array of current and former Justice Department officials felt Comey should be fired. Cox was not accused, as was Comey, of violating “long standing Justice Department policies and tradition” or disregarding “his obligation to preserve, protect, and defend the traditions of the department and the FBI.” The investigation continued under special counsel Robert Mueller, and Trump did not terminate it.
Lawyers John Dean and Don McGahn
Dean compared his own record with that of former White House counsel Don McGahn, who allegedly refused an order by Trump to fire Mueller. Like himself, Dean said McGahn refused to commit criminal acts. There are, however, problems with this analogy. First, Dean did not really refuse to commit criminal acts. He pleaded guilty to an array of criminal acts.
Second, while ordering McGahn to fire Mueller could be viewed as an obstructive act, Trump insists he told McGahn to raise alleged conflicts of interest of Mueller, conflicts that were discussed in the media. While McGahn appears to have viewed that as an order to fire Mueller, there is no alleged crime in Trump demanding to know what Rosenstein was going to do about such alleged conflicts.
The creation of false accounts
Dean cites both the effort by Nixon to create false accounts and the denial by Trump of facts related to the Trump Tower meeting and the McGahn order. Again, the analogy is understandable but ultimately unsustainable. First, Trump pressured McGahn to say that he did not expressly order the firing of Mueller, but McGahn did not take it that way, and he should be commended for refusing to make a statement he believed was misleading or false. This is likely to come down to an interpretative difference in what Trump was demanding. Mueller did not cite evidence of an express order to fire him and only generally described the exchange with McGahn.
Second, Mueller destroyed the long standing claims of the Trump Tower meeting as part of any crimes related to collusion. Indeed, he found no evidence that Trump was aware of the meeting beforehand. Nevertheless, the infamous statement drafted by Trump was misleading, even if it was not hiding a criminal conspiracy. Still, Trump is not the first president to knowingly issue false or misleading statements, from “weapons of mass destruction” in Iraq to “keeping your own doctor” under ObamaCare.
Presidential pardon abuses
Dean insisted that Trump has dangled pardons before possible witnesses, much like Nixon, who “knew that offering such pardons or giving pardons to try to control witnesses in legal proceedings was wrong.” Again, the analogy collides with the record. Nixon discussed pardons to help silence key figures like Watergate burglar Howard Hunt. Trump has not pardoned anyone, and all witnesses gave testimony to Congress or the special counsel. Congress has a legitimate interest to investigate the matter, but this would not be unprecedented. Think of situations like when George H.W. Bush pardoned Iran Contra figures.
Trying to end an investigation
Dean insists Trump tried to shut down the investigation just as Nixon did. He cites such examples as Trump telling Comey, “I hope you can see your way clear to letting” Michael Flynn go. Yet, Comey said Trump did not ask for the investigation to be shut down, and Mueller did not find evidence that Trump demanded such action. Even regarding McGahn, Mueller found that Trump objected to his involvement, but did not find that Trump sought to end the investigation by sending McGahn to see Rosenstein.
As with many noncriminal motives cited by Mueller, this ultimately could be a pitch for leniency for an aide who was fired and his career ruined. Flynn did not implicate Trump in any crime related to collusion, and Flynn was charged with a single count of a false statement that is likely to result in little jail time. Nixon, on the other hand, directly ordered agencies not to investigate crimes. While Dean declared that the words of Nixon were “strikingly like those uttered” by Trump, he did not offer any compelling comparison beyond the public attacks by Trump on the basis for the collusion investigation. That is different from direct orders by Nixon.
Finally, the greatest difference is that, while the special prosecutor found ample criminal acts linked to the campaign and the White House in Nixon, the special counsel found no basis for a criminal charge of collusion, and both the attorney general and deputy attorney general found no basis for an obstruction charge. Nixon was therefore acting to cover up extensive criminal violations while Trump is now being accused of obstructing an investigation that has found no underlying crime related to collusion.
None of this means the Nixon analogy is baseless. As I have previously written, Congress has ample reason and jurisdiction to investigate these matters. Moreover, Trump is doing his best to fulfill such comparisons, including his attacks this week against Dean as a “sleazebag” attorney. Coming from a man who had attorneys and associates like Roy Cohn, Michael Cohen, and Paul Manafort, that attack is strikingly misplaced.
Indeed, this is where the analogy by Dean is the weakest. Nixon would never have engaged in such reckless attacks in public. In the end, Trump sought to make a curious distinction from his predecessor, insisting that he is not Nixon because Nixon “left” office. But that is the one distinction Trump should reconsider. Nixon “left” before he was removed through impeachment. Just as Trump almost “counterpunched” himself into an obstruction case, he can still do the same thing with an impeachment case. That should be a distinction he should not relish or welcome.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.