By James P. PINKERTON
The Nixon Conspiracy: Watergate and the Plot to Remove the President, by Geoff Shepard (Bombardier Books, 2021), 384 pages.
There's an old saying in legal circles: "A prosecutor can indict a ham sandwich." That is, a determined prosecutor can allege a crime, somewhere, thereby securing an indictment against a hapless defendant. And if that's true, then what can 150 prosecutors do?
That's the question posed by veteran lawyer Geoff Shepard in his new book, The Nixon Conspiracy: Watergate and the Plot to Remove the President. The conspiracy Shepard limns isn't by Richard Nixon, it's against Nixon. A conspiracy waged by some 150 Democratic prosecutors and investigators, scattered across the executive, legislative, and judicial branches of the federal government, all aiming to bring down the 37th president-who was, of course, a Republican.
To be sure, Nixon wasn't just any Republican. During his political career, many Democrats regarded him the way they regard, today, Donald Trump. Yes, they hated Nixon that much. As a result, for all their differences, Nixon and Trump shared a common fate-they were the objects of a remarkable, and very much targeted, legal assault. Democrats switched their prosecutorial phasers to kill in their effort to zap both presidents, the 37th and the 45th.
Shepard is fully mindful of the parallels. As he writes, "If Donald Trump hoped to understand what he would face upon moving into the White House in 2017, he would have done well to study what happened to Richard Nixon nearly fifty years prior." In fact, all the parallels fall into place: zealous prosecutors, a leaky bureaucracy, an avidly supportive media, and pre-primed Democrats in Congress, eager to impeach the miscreant chief executive. (In fact, there's a third Republican president who found himself in these same crosshairs, and we'll get to him later.)
During the Watergate investigation, beginning in 1972, Democrats succeeded in doing something seemingly impossible: They overturned one of the most decisive electoral mandates in U.S. presidential history. First elected in 1968, Nixon had been reelected four years later with a massive 60.7 percent of the vote, winning 49 of the 50 states. And yet less than two years later, in August 1974, he was forced to resign.
So how did Democrats accomplish that feat? That's the subject of Shepard's book. Let him set the stage: "By the time Nixon took power in 1969, the 'Deep State' had held the reins of power for 40 years and wasn't about to give it up. President Eisenhower had famously warned against the 'military-industrial complex,' but the Deep State's tentacles reached much deeper than just the military and allied industries."
As for Shepard himself, he worked in the Nixon White House for more than five years, first on domestic policy, and then as part of the Nixon legal defense team. The author doesn't dispute that crimes were committed in Nixon's name-most notoriously, the break-in at the headquarters of the Democratic National Committee (DNC) on June 17, 1972. And so he makes no attempt to dismiss or minimize the guilt of such figures as E. Howard Hunt and G. Gordon Liddy. Indeed, Shepard paints Liddy, who worked for a time at the White House, as a nut, even a psychopath.
We can immediately observe that someone such as Liddy slipping into the White House is not a good sign. And yet the overall Executive Office of the President is a big place, employing thousands of people, and so it's inevitable that a crazy or two can get past the gatekeepers.
In any case, as Shepard records, Liddy soon moved to Nixon's campaign operation, the Committee to Re-Elect the President (CRP, or, of course, "CREEP"). And that's where, Shepard argues, the real criminality was hatched. Campaigns, after all, are much scruffier, since they are focused on, well, defeating the other side. And to defeat the other side, campaigns engage in "opposition research," which has, at one or time or another, included just about every possible means, fair or foul. Thus campaigns can attract netherworld types, who sometimes feel free to pursue their dark arts by any means they deem necessary. Keeping his eye on the present, as well as the past, Shepard adds, "As the Hillary Clinton campaign and the DNC showed in the creation of the infamous Steele Dossier, aggressive oppo research can get out of hand."
There's little doubt that the 2016 Clinton campaign was up to its eyeballs in the financing and disseminating of the fake-news Steele Dossier, which seems to have been an effort to defraud not only the FBI, but also the American people. In other words, it sure looks like a conspiracy so immense. Yet only now, five years later, have just two figures on the edge of the campaign, lawyer Michael Sussmann and researcher/fabricator Igor Danchenko, been formally charged. Yet it seems at least plausible that important Clinton campaign officials-and perhaps the candidate herself-were at least aware of these duplicities. Will any of them ever be charged? We don't know.
All we do know is that in the case of Nixon a half-century ago, the legal piranhas were swarming, each set of jaws eager to chomp on the Republican president. And how could they not be ready to take a bite? As Shepard notes, the waters had been chummed by Sen. Edward Kennedy and his chief aide, James Flug, who were preparing what they hoped would be a triumphant Kennedy presidential campaign in 1976.
As Shepard demonstrates, a key weapon in this proto-campaign was the "independent" (sic) legal investigation of the incumbent president, launched in May 1973, under the leadership of Archibald Cox, a former campaign adviser to John F. Kennedy and then solicitor general in his Department of Justice. In fact, the very name of Cox's investigative body, the Watergate Special Prosecution Force (WSPF)-signaled its intended teleology. (In later decades, subsequent iterations of the same investigative approach were softened to "independent counsel" and "special counsel.")
Cox's WSPF was a murderer's row of partisan Democrats. As Shepard writes,
Some seventeen DOJ Democrat appointees, who had been removed from power as a result of Nixon's 1968 election, regained full investigative and prosecutorial authority over a subsequent Republican administration a special prosecutor and his team represented a handpicked, specially recruited cadre of highly partisan prosecutors brought together to focus on but a single target. This team also asserted jurisdiction over any possible investigations into possible Democrat wrongdoing-never actually investigating, but effectively precluding any such inquiry by others. This partisan targeting flies in the face of any concept of equal justice under law.
This is the heart of Shepard's argument: From the get-go, WSPF was out to get Nixon. Not just the obvious Watergate criminals, such as Hunt and Liddy, but Nixon himself.
Those who might wish to discount Shepard as a Nixon dead-ender might be more persuaded by George V. Higgins, a Massachusetts-born prosecutor-turned-novelist who in 1975 published a non-fiction book about Watergate, portraying Nixon as a white-collar gangster. With no little bit of admiration, Higgins noted the purpose-driven life of the WSPF; the entire staff, he wrote, was "conditioned... by the Kennedy Justice methodology." That methodology came from onetime attorney general Robert F. Kennedy, who saw the Justice Department as a tool to accomplish pre-determined ends. Hence the DOJ's "Get Hoffa" team, dedicated to the conviction and and imprisonment of Teamster chief Jimmy Hoffa.
Higgins added that out of RFK's instrumentalist ruthlessness "came targeted law enforcement: upon identification of the bad guy, the suspect may resign himself to merciless investigation, reinvestigation, indictment, and re-indictment, trial and retrial, until at last the Government secures a verdict which ratifies the prosector's assessment of the defendant as the bad guy."
And Shepard adduces another close observer, The Boston Globe's John Aloysius Farrell:
Cox and his zealous staff had gone to work with an obvious aim-to get Richard Nixon-and with an array of prosecutorial tactics that would become so familiar to Americans as a series of "independent" counsels, in collusion with Congress and the media, hounded presidents of both parties over the next twenty-five years.... [Cox] chose a suspect first and then used a nigh-unlimited budget, his team of 150 investigators, lawyers, and support personnel and his broad subpoena power to find a crime.
Farrell also took note of WSPF's extra-legal efforts to unsweeten the Nixon pot: "To generate public support for the process, Cox's office deftly leaked to the press: over the summer of 1973, the media reported that Cox's team was examining Nixon campaign fund-raising; corporate favors; the President's tax returns, and government-financed improvements to Nixon's homes in Florida and California."
The result, Shepard says, was a "legal pogrom," staged by "highly partisan Nixon-haters." To put that another way, it was the Deep State rising against the Republican president.
In fact, the hating went beyond Nixon and his administration. Shepard documents that WSPF chose to investigate "every single potential GOP presidential candidate going into the upcoming 1976 election." Quoth the author:
Internal WSPF documents that I uncovered at our National Archives show investigations of John Connally, whom they ultimately indicted in the Milk Producers case; President Gerald Ford; Vice President Nelson Rockefeller; Ford's vice presidential running mate, Kansas Senator Bob Dole; and even California Governor Ronald Reagan.
And once again, it all leaked: "Somehow, news of each of these investigations leaked to an interested media, requiring each to defend himself against rumored allegations of financial wrongdoing. The initiatives of this task force required the work of eight prosecutors."
Yet it wasn't just WSPF pushing the needle past the ethical red line. There was also WSPF's partner-that's the right word, according to Shepard-Judge John Sirica. Sirica is typically remembered as a hero of Watergate; he was Time magazine's "Man of the Year" in 1973. And yet Shepard begs to differ with this lionization. He documents (in this book, as well as in two previous books on Watergate) that Sirica was in league closely with the persecutors, er, prosecutors all along. Regarding one of Sirica's many improper ex parte meetings with prosecutors, Shepard writes:
If disclosed at any time during the scandal's unfolding, [it] would have been sufficient to remove each of the participants-judges and prosecutors alike-from anything further to do with the Watergate prosecutions. Their presence at the meeting might have been sufficient to have them removed from office entirely.
Interestingly, none of these unethical sessions were disclosed at the time. And why not? Because those were the days of a monolithic liberal media, which was devoted to passionate cheerleading for the prosecutors, as opposed to dispassionate reporting on events. Shepard writes of the one-sided media environment, "There was simply no means for the Nixon administration to get its views on various issues before the American people at all."
And oh yes: WSPF and Sirica had a third partner, in the U.S. Senate. That would be the Select Committee on Presidential Campaign Activities-generally known as the Ervin Committee. Launched in February 1973, it was led by Sen. Sam Ervin (D-NC), a courtly old fellow who looked all of his 76 years. Shepard writes, "In essence, the Ervin Committee was run by its majority counsel, Samuel Dash." Who, Shepard adds, "conveniently hired many of Senator Kennedy's staff members from his earlier investigation."
So Nixon was up against this federal-government-wide legal trifecta: the Ervin Committee representing the legislative branch, Sirica (and, according to Shepard, other judges colluding with him), covering the judicial branch, and WSPF, which was fully in tune with the Deep State elements of the executive branch.
Shepard argues that this combined-arms onslaught swept up the innocent, as well as the guilty. And among the innocent, Shepard maintains, was White House chief of staff H.R. Haldeman, domestic policy adviser John Ehrlichman, and...Richard Nixon. The Judas figure, in Shepard's telling, was White House counsel John Dean, described as "a very accomplished liar." And so, in Shepard's account, the top Nixon men, wrongly accused, went to their legal Calvary.
Ah, but what about that famous "smoking gun" conversation of June 23, 1972-less than a week after the break-in-featuring that same put-upon trio: Haldeman, Ehrlichman, and Nixon? Doesn't that tape-recorded session prove that they were guilty, guilty, and guilty?
Shepard says "no," arguing that the conversation has been badly-and deliberately-misinterpreted all these years: It was really about concealing the names of Democratic donors to Nixon's re-election campaign whose money was being used for the legal defense of the Watergate breaker-inners. Understandably, these donors wished to keep quiet their connection to the dreaded Nixon.
Perhaps the June 23 conversation was improper, Shepard allows, but it was not the crime of the Watergate cover-up: "The only goal was to prevent several major Democrat donors from being embarrassed, and this was in no sense a criminal act." Indeed, Shepard quotes John Dean, no fan of any of the people involved, writing in 2014: "In short, the smoking gun was shooting blanks."
We can each listen to the tape or read the transcript and judge for ourselves, and yet for Shepard, the lesson is clear: the "smoking gun" was just the final kill-shot fired into the unfairly vilified president. The real story of Watergate, Shepard concludes, is "how President Nixon, along with a handful of well-meaning staff and supporters, ended up taking the fall for the misdeeds of their underlings."
So we can see: before Trump was the target of the Democrats' legal-industrial complex, Nixon was the target.
Indeed, we can now add a third Republican presidential target, Ronald Reagan. It's less remembered now, but the 40th president faced a similar legal-investigative barrage, beginning in 1986, in the form of the Iran-Contra investigation. Indeed, Democrats winched up all their legal siege machinery: a Congressional select committee, an "independent" investigation filled with Democratic hit-men, and, of course, a collusionist media; in the exultant words of Washington Post executive editor Ben Bradlee, a leading enemy of Nixon, "I haven't had so much fun since Watergate."
The Iran-Contra investigation was certainly damaging to Reagan, and yet it fell far short of the Nixonian benchmark; in fact, by the end of his presidency, the Gipper was once again flying high.
One fine day, some careful chronicler will outline all the parallels of these three cases across five decades, tallying the score as one clear political kill (Nixon) one partial kill (Trump), and one mere damage to the target (Reagan).
Yet for now, Shepard has written a persuasively contrarian history of the first of these legal assaults on a Republican president. And who knows: By the time someone gets around to connecting the dots on the first three, there will be a fourth.