“History doesn’t repeat itself, but it sometimes rhymes,” Mark Twain is supposed to have said.
My first job after law school was as an attorney at the Department of Justice (DoJ). I reported for work September 1974, weeks after Richard Nixon resigned.
In the years leading up to his resignation, Nixon turned the justice department and FBI into his personal fiefdom, enlisting his appointees to reward his friends and penalize his enemies. He brought conspiracy charges against critics of the Vietnam war, for example, and ordered the department to drop an antitrust case against ITT after the conglomerate donated money for the 1972 Republican convention.
During the Senate Watergate investigation, Nixon’s stooges kept him informed. Reports about how compromised the justice department had become generated enough public outrage to force the appointment of the first Watergate special prosecutor, Archibald Cox.
Before Nixon’s mayhem was over, his first two attorneys general were deep in legal trouble – John Mitchell eventually served 19 months in prison – and his third resigned rather than carry out the demand to fire Cox.
Trump seems determined to finish Nixon’s agenda, making the justice department a cesspool of partisanship
Watergate also ushered into politics a young man named Roger Stone – who, as it happens, also graduated from my small rural high school in Lewisboro, New York, although I didn’t know him. Stone’s first job was on Nixon’s 1972 campaign, working for the Committee to Re-elect the President, known then, and forevermore, as Creep. Stone joined some two dozen dirty tricksters hired to lie about, harass and dig up dirt on Democrats.
After Nixon resigned, the entire slimy mess of Watergate spawned a series of reforms designed to insulate the administration of justice from politics.
During the years I worked at the justice department, officials teamed up with a bipartisan group of congressional leaders with the goal of making justice the most independent part of the executive branch.
“Our law is not an instrument of partisan purpose,” said Edward Levi, Gerald Ford’s attorney general.
Griffin Bell, appointed by Jimmy Carter, described the department as “a neutral zone in the government, because the law has to be neutral”.
Regulations were put into place to insulate the FBI and DoJ from political interference. The FBI director was given a 10-year term. A protocol allowed for the appointment of outside prosecutors. US attorneys were to be independent.
White House officials and justice department lawyers weren’t supposed to exchange information about ongoing criminal investigations or civil enforcement actions. A 2007 memorandum allowed the department to advise the White House of criminal or civil enforcement matters “only where it is important for the performance of the president’s duties and where appropriate from a law enforcement perspective”.
Now we’re back to where we were 50 years ago. Trump seems determined to finish Nixon’s agenda of rigging elections and making the justice department a cesspool of partisanship. In Trump’s 2016 campaign, even Stone was back to his old dirty tricks of issuing lies and conspiracy theories, and seeking dirt on a Democratic opponent.
Trump has out-Nixoned Nixon: firing FBI director James Comey after asking him to “let go” of an inquiry into former national security adviser Michael Flynn’s interactions with Russian officials; repeatedly calling the Russian inquiry a politically motivated “witch-hunt”; urging the firing of the FBI’s No 2 official because of alleged Democratic allegiances; launching an assault on special counsel Robert Mueller’s own investigation; and appointing a lapdog attorney general, William Barr, to do whatever the president wishes.
Barr has out-Nixoned Nixon’s attorney general, John Mitchell: whitewashing Mueller’s conclusions; defending Trump’s phone call to the president of Ukraine seeking dirt on Joe Biden; defending Trump during the House impeachment; refusing to enforce congressional subpoenas; opening an “intake process” for dirt Rudy Giuliani dredges up on Trump’s political opponents; and continuing to respond to Trump’s every whim including, this week, suggesting Stone should get a milder sentence than the one career prosecutors recommended.
In November, Stone was convicted of obstructing Congress and seeking to intimidate witnesses. This week, prosecutors recommended Stone be sentenced to between seven and nine years in prison. Applying federal sentencing guidelines, they reasoned that Stone deserved it because he had threatened to harm a witness – to whom he sent the message “prepare to die” – and his conduct had resulted in “substantial interference in the administration of justice”.
“This is a horrible and very unfair situation,” Trump tweeted, early the next morning. “The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”
Hours later, Barr decided to seek a more lenient sentence.
“The department finds the recommendation extreme and excessive and disproportionate to Stone’s offenses,” a spokesman said.
In response, the career prosecutors filed notices in court of their intention to leave the case. One wrote that he was resigning as an assistant US attorney and leaving government altogether.
The incident caused such an uproar that on Thursday Barr was forced to declare in a TV interview that he wouldn’t be “bullied” and that Trump’s tweets “make it impossible for me to do my job”.
But anyone who has watched Barr repeatedly roll over for Trump saw this as a minimal face-saving gesture. As if to underscore Barr’s subordinate role, on Friday Trump tweeted that he has the “legal right” to meddle in cases handled by the DoJ.
Trump’s view is that he has ultimate power – an “absolute right” – to control the justice department.
That’s as wrongheaded now as it was when Nixon held the same view. If a president can punish enemies and reward friends through the administration of justice, there can be no justice. Justice requires impartial and equal treatment under the law. Partiality or inequality in deciding whom to prosecute and how to punish invites tyranny.
A half-century ago, I witnessed the near dissolution of justice under Nixon and the enablers then drawn to him, such as Roger Stone. I served in the justice department when it and Congress resolved that what had occurred would never happen again.
But what occurred under Nixon is happening again. Trump neither understands nor cares about justice. He cares about nothing but himself. Like Nixon, he has usurped the independence of the Department of Justice for his own ends.
Unlike Nixon, Trump won’t resign. He has too many enablers – not just a shameful attorney general but also shameless congressional Republicans – who place a lower priority on justice than on satisfying the most vindictive and paranoid occupant of the White House since Richard Milhous Nixon.
Robert Reich, a former US secretary of labor, is professor of public policy at the University of California at Berkeley and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His next book, The System: Who Rigged It, How We Fix It, will be out in March. He is a columnist for Guardian US