The story is told of the 19th-century Massachusetts Senator Daniel Webster, who was also a noted trial lawyer, that he once represented a plaintiff in a patent infringement suit. His client, an inventor, was suing a would-be inventor who’d come up with a small machine that was indistinguishable from the plaintiff’s own invention. As the trial ended, Webster’s opposing attorney delivered a long summation enumerating the ostensible differences between the two devices. When he finished, Webster arose, looked at the two machines, turned to the jury and said, “Well, if you can see any difference between them, that is more than I can see”—and sat down. The jury quickly ruled for Webster’s client.
This story (which, like many good stories, may be apocryphal) comes to mind when comparing Richard Nixon’s obstruction of justice—which, had he not resigned, would have resulted in his impeachment and conviction—with Donald Trump’s. And, as Webster supposedly said, if you can see any difference between them, that’s more than I can see.
What’s different today, however, is the Republican Party. In 1974, when the House Judiciary Committee voted for articles of impeachment, a number of committee Republicans joined their Democratic colleagues to recommend impeachment to the full House. The most conservative Republicans on the committee, however, voted No on those motions. But a couple of weeks later, the Supreme Court unanimously ruled that Nixon had to release tapes including discussions of Watergate to the committee. On one of those tapes, Nixon said he’d order the CIA to tell the FBI to stop investigating the break-in because it would compromise national security (which, of course, it wouldn’t). When the tape reached the committee, all the Republicans who’d strenuously defended Nixon during its deliberations—including Mississippi’s Trent Lott—announced they were switching their vote to recommend impeachment. All 38 committee members—not just all the Democrats but all the Republicans, too—said Nixon had to go. And Nixon went.
Comes now the case of Donald Trump. Like Nixon, Trump repeatedly sought to stop the investigation of Russian involvement in his election and related matters. He fired the FBI director, who’d refused to pledge that he’d stop investigating possible ties and actual contacts Trump associates had with Russian officials. He ordered White House Counsel Donald McGahn to fire special prosecutor Robert Mueller. He told Corey Lewandowski, his former campaign manager, to tell Attorney General Jeff Sessions to order Mueller to drop the investigation and focus solely on measures to prevent future Russian interference in elections. That Trump’s underlings often refused to do what he’d ordered them to do doesn’t mean that Trump didn’t commit obstructions of justice. It just means that his underlings declined to do what McGahn told Reince Priebus, then White House chief of staff, was “crazy shit.”
So how does Trump’s obstruction differ from Nixon’s? That Nixon’s aides took their boss’s commands more seriously than Trump’s took his is a difference, but not a defense. The Judiciary Committee, like its 1974 predecessor, would have to have figures like McGahn and Priebus testify before it to elicit the same sworn testimony that they gave Mueller, just as the various congressional committees of 1973–1974 heard testimony from such figures as Nixon’s former Attorney General John Mitchell and former Chief of Staff Bob Haldeman. That’s why Trump is insisting that no present or former administration officials be allowed to testify—an issue sure to be decided by the courts.
Say, though, that they do end up testifying and confirming what they told Mueller’s investigators. Would today’s Republicans, confronted with a clear case of obstruction of justice, do what their predecessors unanimously did, and recommend impeachment?
Of course not. Today’s Republican Party—both its elected officials and its rank-and-file members—is a cult, cordoned off from reality by the walls it has erected against any information that doesn’t come from far-right media, which provides it not with information at all, but with propaganda as fictitious (though not as overtly murderous) as anything that the Josef Goebbels machine once churned out. No such media, save on the fringes, were around in 1974, but they’re certainly around now, bolstering the Republicans by creating an alternative universe where reality seldom impinges. Which is why today’s GOP is not a jury that Daniel Webster, with all the evidence in the world, could sway.