John Dean: From Nixon to Trump – A Unique Look at Executive Power 6/12/18 06/12/18 2:56:17 PM
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Omaha attorney Jerome Ortman (right) shares a funny story with John Dean at the Nebraska State Bar Association’s CLE last month.
John Dean: From Nixon to Trump –
A Unique Look at Executive Power
By Lorraine Boyd
The Daily Record
What could possibly be relevant about political events that happened more than 40 years ago in the Oval Office?
To hear John Dean and James David Robenalt tell it, everything.
Yes, that John Dean. The White House Counsel for President Richard Nixon from 1970 to 1973, beginning just five years after his graduation from Georgetown Law School, when he was barely in his 30s.
The John Dean that ended up being taken down along with his boss and many others, serving a lighter sentence (four months) since he was the whistle blower. He was also disbarred.
The impact of Watergate was the creation of the Kutak Commission (yes, Omaha’s Bob Kutak) which created the Model Rules.
John W. Dean III was White House counsel for 1,000 days. Long enough, certainly, to examine and understand the ethical considerations of not only his actions, but those of so many others. Before he became White House counsel, he was chief minority counsel to the Judiciary Committee of the United States House of Representatives, the associate director of a law reform commission, and associate deputy attorney general of the United States.
He worked to thwart investigators after the clumsy break-in at Democratic Party headquarters, then flipped and helped sink Nixon by revealing the president’s involvement in the cover-up.
Dean recounted his days in the Nixon White House and Watergate in two books, Blind Ambition (1976) and Lost Honor (1982). He recently published his 12th book, another New York Times bestseller, which returns to Watergate and is based on the new material now available. It was this material that prompted Dean and Robenalt to develop this program.
Robenalt is a partner and former chair of the business litigation group at Thompson Hine LLP’s Cleveland office. He has won big verdicts for clients, including Avery Dennison ($81 million jury verdict on international espionage case) and Solvay Pharmaceuticals ($68 million arbitration award on drug co-promotion agreement).
He is also the author of two non-fiction books dealing with the American presidency: Linking Rings, William W. Durbin and the Magic and Mystery of America (Kent State University Press 2004) and The Harding Affair, Love and Espionage During the Great War (Palgrave 2009). He is also a recognized leader in judicial reform in Ohio and teaches and instructs on the legal ethics and the representation of an organization under new Model Rules 1.13 and 1.6.
Together they are in demand on the lecture circuit. They first visited Omaha about four years ago to speak on this topic.
Range of CLE
This three-and-a-half-hour CLE ranged from Watergate’s impact on shaping the model rules of professional conduct; interpretation of the “smoking gun tape,” proving obstruction of justice; “reporting up;” and more.
But the elephant in the room was Dean’s assessment of President Trump versus President Nixon.
Neither Dean nor Robenalt held back. They said that both presidents were “clearly authoritarians,” one of the four styles of executive leadership. But that isn’t necessarily bad.
“Nixon was a closet authoritarian; Trump is much more conspicuous,” Robenalt said.
What do they share?
The duo’s assessment: They achieved power during turbulent times; there was “backlash politics” in 2016. They both relied on their “Silent Majority” supporters. The press was the enemy. They have/had an obsession with enemies or critics. And they hate to lose. Conversely, they believe in winning at any cost.
The speakers proffered a list complied from numerous psychological sources of characteristics and traits of an authoritarian: insecure, authoritarian/bully, dislikes elites, seeks revenge on enemies, fears losing, lies easily, covers up mistakes, blames others and is a dirty campaigner. They held that both presidents shared all the traits (something an impromptu poll of the audience underscored).
An important point to note, they said, was that “hating to lose has consequences – it’s a big take-away.”
They quoted Richard Painter: “Persons in a ‘loss frame’ often make risk-preferring decisions in order to avoid a loss, even if the risks they take are irrational.”
“Nixon was much better prepared for the job than Trump,” Dean added, citing the former president’s service in the House, the Senate and then eight years as vice president.
“Trump ‘just doesn’t know anything about the job, and it shows.’”
Using transcripts of the Nixon tapes (the President taped everything that took place in the Oval Office), which Dean had had a cadre of workers transcribe when they became available, Dean laid out a minute-to-minute, day-by-day unspooling of the events of Watergate.
While this might be considered just a history lesson, the lessons learned can and should be applied to current and future actions in government. The tapes clearly showed the misapplication of presidential powers, implemented at the urging of many high-level staffers. Nixon is seen, at first, as a reluctant and ill-advised player in the unfolding drama, then later, a willing participant in the cover-up that became his undoing. As his counsel, Dean tried to nip the problem of the Watergate break-in in the bud by telling his client to come clean and disavowing an involvement in the burglary scheme, intended to get dirt on the Democratic Presidential candidate in the upcoming elections. (Does any part of this sound familiar in 2018?)
Dean urged those involved to “report up” and clear the President. But the ethical legal rules of the time may have prevented him from being as forceful as he would have liked. If the new model rules, especially Model Rule 1.13, were in effect in 1973, which could provide Dean with leverage, history may have been significantly altered.
The presenters spent time on the “Smoking Gun Tape,” concerning obstruction of justice. The tapes reveal discussions in the Oval Office about perjury, bribery payments, jail time and possible clemencies.
The tapes reveal the extent of the conspiracy to cover-up the burglary in this quote of Dean telling the President about a meeting in January of ’72, when he was invited by Magruder to “come over to see Liddy’s plans.”
Dean: “So I came over and Liddy laid out a million dollar plan that was the most incredible thing I have ever laid my eyes on; all in codes, and involved black bag operations, kidnapping, providing prostitutes, ah, to weaken the opposition, bugging, ah, mugging teams. It was just an incredible thing.” Dean said “[Attorney General] Mitchell just virtually sat there puffing and laughing.” Dean said Mitchell told him to go back to the drawing board.
Dean warned Nixon time and again about the “growing cancer” on the Presidency. Small leaks made it inevitable that the details would come out. Dean urged Nixon to come clean and throw the burglars under the bus, instead of trying to cover everything up.
Dean first said that the President should call the Attorney General regarding the break-in and tell him, “We know who did it.” Instead a cover-up was begun.
Dean later urged Nixon to go to the Grand Jury and make complete disclosure. It turned out to be sound advice, but it didn’t look that attractive at the time. As Dean told Nixon, “There’ve been some bad judgments made. … It’s something that’s not gonna go away.”
He told Nixon that “some people are gonna have to go to jail [even Dean]. … I can see people pointing fingers, you know, to get it out of their own [fingers], put me in the impossible position of disproving too many negatives.” At that point they had the obstruction of justice discussion.
Perhaps most telling in today’s world of politics is the picture Dean is painting about the parallels between Richard M. Nixon and Donald J. Trump.
The most important trait the two men share is “hating to lose,” he said.
The Watergate Scandal took 900-plus days. Today, there is no time frame. Everything is moving faster. “It’s that drip, drip, drip that makes you lose credibility,” Dean said.
He pointed out that people put a lot more emphasis on losses than on gains.
He said he thought the Trump Administration was “sliding into obstruction.” He drew a parallel between the Watergate break-in and who knew about it – the White House did not know about it. After it happened, “Mitchell does not really tell the White House that he ordered the break-in.”
Dean thought that Mitchell would take full responsibility.
Nixon and Mitchell had been close; he served as campaign manager for Nixon. Dean said their bond was broken when Mitchell sent up bad Supreme Court nominations. After the break-in, Nixon sent Mitchell back to the re-election committee to investigate. “Nixon then could have let the re-election committee take the blame, with no White House involvement.”
But history shows that didn’t happen and the result was catastrophic. Could history repeat itself?