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When the history of Donald Trump's presidency is written, and the historians ask, “Where were the lawyers?” the answer must not be, “silent.” They were not silent during Watergate and they must not be silent now.
As during Watergate, we once again have a president who issues self-serving professions of innocence, while, like President Nixon, he seeks simultaneously to frustrate and undermine the governmental entities charged with investigating his wrongdoing and that of his cohorts. In so doing Trump has unabashedly employed the power and influence of his office to attempt to discredit his own Justice Department and the FBI to his own advantage.
In his first 15 months as president, Trump has convincingly demonstrated his contempt, abhorrence and lack of respect for the Constitution and the rule of law, as well as for the office of president. That's clear from his sacking of FBI Director James Comey; his repeated lying to the public and press; his continuing to receive profits and benefits from foreign governments in violation of the Constitution's Emoluments Clause; his attacking the integrity of federal judges and encouraging police misconduct; his disparaging the First Amendment's protections of a free press; his falsely claiming that President Obama tapped his telephone—the list goes on and on. In addition, he has ridiculed and insulted numerous members of Congress, and has publicly and repeatedly made racist and sexist remarks. All of these crude, reckless and irresponsible actions deserve the opprobrium and condemnation of America's legal profession.
A defining moment in the Watergate scandal was the Saturday Night Massacre, in which Nixon, who'd been asked by Special Prosecutor Archibald Cox to produce tapes of White House conversations related to the break-in, refused. Nixon then ordered Attorney General Elliot Richardson to discharge Cox. Under applicable law, Cox could only be discharged for cause. Instead of firing Cox, Richardson resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox, but he too resigned. Nixon then appointed Solicitor General Robert Bork as Deputy Attorney General and ordered him to fire Cox. Bork complied.
The day after the Saturday Night Massacre, Chesterfield Smith, the Florida attorney recently elected president of the American Bar Association and who had twice voted for Nixon, issued a statement on the ABA's behalf. Declaring that, “No man is above the law,” he urged the appointment of a new special prosecutor to investigate Nixon. Bork appointed Leon Jaworski, a former ABA President as Special Prosecutor. Jaworski was promised no interference by Nixon in the Special Prosecutor's continued investigation.
During Watergate, lawyers played both heroic and sinister roles.
While Richardson and Ruckelshaus upheld both the law and their principles, at least four high level lawyers close to Nixon went to jail in connection with the scandal: Attorney General John Mitchell, White House Counsel John Dean, and White House staffers Charles Colson and Egil Krogh.
How does non-lawyer Trump compare with lawyer Nixon as a client? A place to begin might be with Trump's recent exclamation, “Where's my Roy Cohn?” By this he meant that in his frustration at being pursued, he was looking for a lawyer with the cunning and ruthlessness of Cohn, who was both counsel and mentor to Trump for many years, and earlier had worked for the infamous Senator Joseph McCarthy. Cohn was disbarred in 1986 for perjury and massive stealing from clients. In Cohn's disbarment proceeding, Donald Trump testified under oath that Cohn was “a man of the highest integrity.”
Cohn's advice to Trump in connection with his many business and legal battles was “attack, counterattack and never apologize.” Trump learned his lessons well and they now animate his presidency. Recently, John Dowd, one of Trump's gaggle of legal defenders, asserted that Trump could not be indicted by a grand jury since he is the country's highest law enforcement officer. According to Dowd, Trump enjoys legal immunity from prosecution, and the only remedy for any derelictions by him is impeachment. But the fundamental proposition of our democracy—that “no one is above the law”—and mere common sense, speak otherwise.
As it did with Watergate, the time has come for the American legal profession to forcefully express its opposition and rejection of Trump's cynical and destructive anti-democratic modus operandi. The Bar did so unequivocally when faced with Nixon's extensive misdeeds, and it must do so again if it is to maintain its place as an essential upholder of the rule of law and our democratic way of life. Its failure to do so would be an omission of grave proportions.
Regrettably, during the four decades since Watergate much of the bar has sacrificed its standing as a public institution dedicated to upholding and advancing the highest values of our democracy, as it has become a less principled, money-oriented big business. The present moment challenges bar associations across our land to return to their best traditions by forcefully condemning the menace that is Donald Trump.
