Of course we need to see the Mueller Report before drawing any firm conclusions, but one thing about Attorney General Barr’s letter is unsettling and reminds us of Watergate history.
Mr. Barr’s letter poses the question of how there can be obstruction with the requisite intent if there was no underlying crime. This, to me, seems to be an upside down question. The more important question is: how can we be sure there was no collusion if there has been obstruction?
Isn’t the whole purpose of obstruction to keep investigators from knowing the truth?
What if Paul Manafort or Roger Stone could provide key evidence of collusion but they sit in silence with the anticipation that they will receive a presidential pardon?
Again, no conclusions can be reached until we see the entire Mueller Report; nor can we attack the Attorney General yet on his conclusions. All depends on what the report shows.
But think for a minute about Watergate history.
Five burglars were arrested in June 1972 in the Democratic National Committee headquarters at the Watergate. Howard Hunt and Gordon Liddy escaped from the connected Watergate hotel, but left enough clues so the DOJ investigators focused on their role in the break-in.
The federal prosecutors called in people from the Committee to Re-elect the President and the White House to testify. The FBI interview scores of people from both entities.
On September 15, 1972, the grand jury, being run by federal prosecutors who presumably wanted to get to the truth of whether there was involvement of “higher ups” at CRP or the White House, found that only the five burglars, Hunt and Liddy could be criminally indicted based on the evidence.
Yet, we now know from the Nixon tapes, this was a false positive for Nixon. The reason the grand jury did not find enough evidence to indict “higher ups” is because the investigation was being obstructed.
John Mitchell, the CRP chairman who did approve the operation, and Jeb Magruder, his deputy who also was in on approving Liddy and Hunt’s plan, were systematically lying to the FBI and the grand jury.
Moreover, the burglars, Hunt and Liddy were being paid hush money by CRP and the White House to keep their mouths shut about higher ups being involved.
On the day the grand jury issued its indictments, President Richard Nixon met with his chief of staff, H. R. “Bob” Haldeman, and his White House Counsel, John W. Dean, III, and congratulated them for effectively containing the investigation. The tape shows that Nixon also chortled about getting even with his enemies.
As events played out, the conspiracy to obstruct justice began to unravel in 1973. The Watergate burglars’ trial resulted in guilty pleas and guilty verdicts. The prospect that Judge John Sirica would sentence the defendants to long prison terms loomed large as a threat to the conspiracy.
In fact, President Nixon, through his advisor Charles Colson, dangled a pardon to Howard Hunt to encourage him to plead guilty and remain silent. Hunt pled guilty and the Cuban-American burglars took the hint and also pled guilty.
Colson met with Hunt’s lawyer, a former federal prosecutor named Bill Bittman. Bittman had put Jimmy Hoffa behind bars, but Nixon pardoned Hoffa on Christmas Eve in 1971. Colson, speaking in code, told Bittman that “Christmas comes once a year,” signaling to Hunt that he could expect a pardon (or in this case, clemency) at the end of 1973 after spending about a year in jail.
In February 1973, further pressure on the obstruction conspiracy came in the form of a Senate Select Committee, to be chaired by Democrat Sam Ervin, that was voted into existence by a unanimous Senate.
Then in March, John Dean began to see that the conspiracy could not hold. Howard Hunt began demanding money directly through Dean. It was extortion—if he was not paid, Hunt said, he would have seamy things to say about John Ehrlichman, Nixon’s top domestic advisor, who had approved Hunt and Liddy’s operation to break into Daniel Ellsberg’s psychiatrist office.
Dean warned Nixon of the “cancer on the presidency” on March 21, 1973. Two days later, one of the burglars told Judge Sirica that “others” had been involved in the break-in and that there was perjury in the trial.
By April 14-15, 1973, Dean and Magruder were cooperating with investigators. Mitchell continued to stonewall but he had told both Dean and Haldeman that he approved the operation (see Haldeman’s diary entry of March 28, 1973).
When John Dean testified in June 1973, he suggested that the president may have taped some of their conversations. This led to Alex Butterfield’s bombshell revelation that in fact Nixon taped all his conversations.
The race was on for the tapes. Archibald Cox, the Special Prosecutor, was fired in October in the “Saturday Night Massacre,” but calls for impeachment resulted in a new Special Prosecutor being appointed, a former American Bar Association president and Texas lawyer named Leon Jaworski.
Jaworski continued the fight for the tapes. When the Supreme Court agreed the tapes needed to be turned over, Nixon resigned.
Nixon’s aides were all charged with obstructing justice or lying to investigators. The very people the grand jury did not indict in September 1972 were all found guilty after a trial at the end of 1974.
So, the conclusion that there can be no obstruction because there is no proof of an underlying crime is a false argument. Let’s see what the report says about the obstruction evidence.
James D. Robenalt is the author of January 1973, Watergate, Roe v Wade, Vietnam, and the Month That Changed America Forever, and he lectures nationally with John Dean on legal ethics.