If you don’t think that President Trump meant to send a signal to those being investigated by Special Counsel Robert Mueller in connection with the Russia scandal, then you’ve got to start reading more of your American history.
In January 1973, President Richard Nixon met with his adviser Chuck Colson in the Executive Office Building to talk about a clandestine promise of executive clemency for Watergate mastermind Howard Hunt to ensure that he would keep his mouth shut. Hunt was about to go to trial before a notoriously stiff-sentencing federal judge, John J. Sirica.
Hunt had been extorting the White House since being arrested in the summer of 1972 and the White House had been paying him, and his lawyers, and his family what became known as “hush money.”
Now, Hunt faced up to forty years in prison should a jury convict him in Sirica’s courtroom. Hunt’s wife had just been killed tragically in a plane crash flying to Chicago (carrying with her $10,000 in brand new hundred dollar bills), and Hunt did not want his children to be effectively orphaned as he spent the rest of his life in jail.
Hunt asked his lawyer, Bill Bittman, to meet with Chuck Colson to discuss clemency. Bittman did so and Colson then spoke with Nixon. On January 8, 1973, Nixon agreed. It’s on tape.
“Hunt’s is a simple case,” Nixon observed. “I mean, after all, the man’s wife is dead, was killed, he’s got one child [that has brain damage]. . . . We’ll build that son of a bitch up like nobody’s business.”
This was not the proper use of the pardon power; this was an obstruction of justice—using the legitimate power vested in the president by Article II of the Constitution for an illegitimate purpose—to keep a federal court from hearing all the evidence, to silence a witness. Obstruction, in its many forms, became one of the first articles of impeachment for President Nixon.
The message was received by the Cuban burglars who in turn all plead guilty. Only Gordon Liddy and wire-man James McCord went to trial.
History also tells us that Nixon, a practicing lawyer, knew that using pardons to further a cover-up would be wrong. That’s also on tape.
On March 21, 1973, Nixon met with his White House Counsel, John W. Dean. The Senate was about to start up hearings and prosecutors were bearing down on the burglars who were found guilty. The convicted burglars, Hunt and the Cubans were all about to be sentenced by Judge Sirica on March 23.
John Dean made an appointment to see Nixon to tell him there was a “cancer growing on the presidency.”
Dean’s purpose in meeting with the president was to lay out the facts behind the break-in and the cover-up and try to convince Nixon that it was time to come clean. Some folks, Dean said, would have to go to jail, including Dean himself.
After discussing the idea of continuing to pay hush money to the burglars (Nixon, to Dean’s surprise, said he could get a million dollars in cash), the conversation turned to the idea of presidential clemency.
“Let me put it this way,” Nixon began. “Let us suppose that you could get the million bucks, and you get the proper way to handle it, and you could hold that side [meaning the silence of the burglars], it would seem to be worthwhile.” Dean can be heard audibly sighing and clearing his throat at this point in the tape.
“Well, that’s, that’s the problem,” Dean interjected.
Nixon anticipated what his White House Counsel would say next. “That’s a problem. You have the problem of clemency for Hunt.”
Dean, who didn’t know of the Colson/Nixon discussion in January , said: “That’s right. And you’re gonna have the clemency problem with the others. They would all have expected to be out and that may put you in a position that’s just . . .”
The President: “Right.”
Dean [continuing]: “untenable at some point. You know, the Watergate hearings just over, Hunt now demanding clemency or he’s gonna blow. And politically, it would be impossible for you, you know, you to do it. Because, you know, after everybody . . .”
The President: “That’s right.”
Dean [continuing]: “I’m not sure that you’ll ever be able to deliver on clemency. It may be just too hot.”
The President: “You can’t do it until after the ’74 elections, that’s for sure. But even then . . . your point is that, even then, you couldn’t do it.”
Dean: “That’s right. It may further involve you in a way you shouldn’t be involved in this.”
The President: “No, it’s wrong. That’s for sure.”
Now think of what President Trump is doing with his abusive use of the presidential pardon for Sheriff Joe Arpaio. Arpaio hadn’t even exhausted his appeals (which he said he would win). Trump skirted all of the regulations governing the process of pardons set down by the Department of Justice for the Office of the Pardon Attorney.
Trump is exercising raw executive power for political points with his base, and he doesn’t care about the rule of law, or precedent, or the appearance of impropriety.
He can do it and he will.
So those being investigated by Special Counsel Mueller can breathe a sigh of relief. Trump is showing them they have nothing to fear as long as the pardon power is in his hands.
And it would behoove them to keep their mouths shut.
James Robenalt is the author of January 1973, Roe v. Wade, Watergate and the Month That Changed America Forever and contributor to The Presidents and the Constitution, A Living History (Gormley, ed.). Robenalt lectures with John Dean on Watergate and legal ethics. www.watergatecle.com.