Nearly 45 years ago, the House Judiciary Committee concluded that President Richard Nixon’s contact with high-level Justice Department officials overseeing the Watergate investigation, detailed in a 62-page “road map” of evidence collected by prosecutors in 1972–73, amounted to an impeachable misuse of executive power.
A half century later, the FBI’s former top lawyer, Jim Baker—a close friend and associate of fired FBI Director James Comey—is laying out parallels, albeit subtly, to President Donald Trump’s interactions with the law-enforcement officials who have been investigating him and his campaign team since July 2016.
In a piece for Lawfare published on Monday, Baker and co-author Sarah Grant, a student at Harvard Law School, used the newly unsealed Watergate road map to show how one president’s attempts to control an investigation targeting him and his associates were quickly exposed and, ultimately, used against him. As the road map laid out, Nixon interacted regularly with the man supervising the Watergate investigation—Henry Petersen, then the assistant attorney general for the Justice Department’s Criminal Division—and pumped him for information.
“The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated,” Baker and Grant wrote, pointing out that Nixon repeatedly asked Petersen whether he himself was being investigated. Their interactions, moreover, “must be understood within the larger context of the president’s knowledge of the facts regarding Watergate at the time.” In other words, what did the president know, and when did he know it?
Trump is never mentioned in the piece. But it seems safe to say that Baker’s interest in the road map is not purely historical, and that he perceived some eerie parallels between 1973 and 2017. Baker was one of three top FBI officials who knew about Trump’s conversations with Comey between January and May of last year, in which Trump requested Comey’s loyalty, attempted to shield his then–National-Security Adviser Michael Flynn from FBI scrutiny, and asked Comey to reassure him, and even state publicly, that he was not a subject of the ongoing Russia investigation.
One episode cited by the author, which Petersen described in 1973 grand-jury testimony that was later included in the road map, is particularly striking in its similarities to the events of last year. On May 19, 1973, Petersen testified that he had visited the White House a few months earlier to alert Nixon to the fact that his chief of staff and assistant for domestic affairs were both under federal investigation. Petersen suggested that Nixon fire them to protect the presidency from any legal exposure. But Nixon demurred. “He said he couldn’t believe it,” Petersen testified to Special Prosecutor Archibald Cox, referring to Nixon. The president called his staffers “fine, upstanding guys,” according to Petersen, and said he didn’t think he should fire them. (Nixon, of course, knew at the time that both staffers were key figures in the events leading up to the Watergate break-in, which Nixon had orchestrated.)
Fast-forward to January and February 2017, when the White House was alerted to Flynn’s legal exposure stemming from conversations he had during the presidential transition period with former Russian ambassador Sergey Kislyak.
In late January, White House counsel Don McGahn was warned by Sally Yates, then acting attorney general, that Flynn had lied to the FBI about those conversations. “We told him we were concerned that the American people had been misled about what General Flynn had done, and that we weren’t the only ones who knew about this,” Yates testified last year, a few months after she was fired by Trump. “We told them we were giving them this information so they could take action.” Despite Yates’s warnings, the White House waited nearly three weeks to ask Flynn to resign. And the day after Flynn was ousted, Trump asked Comey to consider letting Flynn “go” because “he is a good guy,” according to a contemporaneous memo Comey wrote, documenting the meeting.
Whether Trump ordered Flynn, who has been cooperating with Special Counsel Robert Mueller, to discuss the issue of sanctions with Kislyak and then lie to federal investigators about it is still an open question. But in 1974, Nixon’s interactions with Petersen, which involved misleading Petersen about what he and his staffers knew and when they knew it, were considered an impeachable offense. As Baker noted, Article II, paragraph 5, of the House Judiciary Committee’s Articles of Impeachment for Nixon stated that he “knowingly misused the executive power by interfering” with the FBI and the DOJ Criminal Division throughout the investigation.
It is still not totally clear what Trump knew about his campaign team’s interactions with Russian and Russian-linked foreign nationals in 2016, such as his son’s meeting with Russians at Trump Tower to obtain dirt on Hillary Clinton, or his foreign-policy adviser George Papadopoulos’s repeated efforts to set up a Trump-Putin meeting after being told that the Russians had “thousands” of Clinton’s emails. As such, it is hard to gauge whether the president’s perceived interference in the Russia investigation—i.e., firing the FBI director and attorney general and appointing an ally, Matt Whitaker, to oversee the Mueller probe—is analogous to Nixon’s conscious attempts to divert attention and resources away from his central role in Watergate. Trump has repeatedly said that there was no collusion between any members of his campaign and the Russians.
But Whitaker’s appointment is arguably the furthest Trump has gone in trying to exert direct control over an investigation that seems to be closing in on his inner circle. Whereas Trump tried and evidently failed to secure Comey’s loyalty, he has a safer bet in Whitaker—a White House ally who criticized the scope of Mueller’s investigation last year and has stated categorically that there “was no collusion” between Trump’s campaign and Russia.
Post-Watergate, presidents were encouraged to maintain a healthy separation from the Justice Department in order to protect the independence of prosecutorial decisions—and themselves. But Trump is not one for tradition. Since appointing Whitaker, Trump has claimed to know about the Mueller probe’s “inner workings” and suggested that he won’t sit for an interview with investigators despite the looming threat of a subpoena (which Whitaker could negate). At one point earlier this year, Trump was even receiving classified information about the Russia investigation from Republicans on the House Intelligence Committee. John Dean, who served as Nixon’s White House counsel from 1970 to 1973, told me that “following Nixon, it became a post-Watergate norm that the White House stayed out of DOJ business. Trump ignores all norms.” So, following his presidency, Dean said, those norms “will probably become law.”