America, The Trust Fall
Deep down, we all know that decorum, not the Rule of Law, secures our democracy.
This is the back story to Watergate that few people know about.
It is a prelude to the fix we’re in today. I believe it can help us understand why the Supreme Court’s decision in Trump v. United States is devastating, but in perhaps a different way than some legal experts are explaining it to be devastating.
I still have a vivid memory of the time I first heard this Watergate back story from one of its key players.
It was at a small table for two in the dark and dingy non-smoking section of the commuter tavern inside the Bloomfield, NJ train station in December 1986 when I heard this – because that’s when I first understood there’s nothing that keeps our Constitution working – and our Bill of Rights rightsing – besides trust (a misplaced trust at that) and a certain honor among thieves.
Even that take, as I’ve learned, was naïve.
I found my way to the tavern by way of a law school class on Civil Rights that fall that ended at 9 pm twice weekly. My professor was too old to drive at night so I drove him home after class and sometimes, to thank me for the lift home, we'd stop for a drink at the train station near his house and he’d regale me with “war stories.” And boy did he have war stories!
This war story, however, is the wildest one of all.
All lawyers have their war stories, but few had the war stories that Professor Arthur Kinoy stockpiled. He was Ethel and Julius Rosenberg’s last lawyer. He argued and won a Supreme Court case that helped set the stage for Roe v. Wade. He was Bobby Seale's appellate lawyer. He set up a law office in Mississippi in the early ‘60s defending civil rights workers. Kinoy had serious credibility in courtrooms across the country. The Supreme Court was no exception.
Professor Kinoy was asked to help defend a case in Detroit against a militant activist charged with planning on bombing a federal building. It was going to be an open-and-shut case for the Feds except there was a warrantless wiretap. The defense made a routine motion to exclude the wiretap. And then things got weird. Not super weird – that comes later, I promise – but weird enough for the defense team to get Kinoy involved.
As it turned out, the U.S. Attorney in Detroit - the top federal prosecutor for that part of Michigan - submitted an affidavit that was personally signed by U.S. Attorney General John Mitchell claiming the wiretap was valid because it was issued to protect the national security of the nation. The affidavit went on to declare that no court can restrain the Executive when acting to protect the national security.
This affidavit was based on a legal memorandum researched and written by a Department of Justice lawyer named Bill Rehnquist, which I’ll come back to.
It was an odd turn because the case was going to be open-and-shut for the government. Why bother blowing it all up over this wild assertion of a sweeping surveillance authority? The Department of Justice was clearly trying to pick a fight - one that it should lose yet they seemed confident they’d win it.
The case went to the Supreme Court quickly. Oral arguments were heard on February 24, 1972. You can look it up if you want to read more about it: United States v. U.S. District Court for Eastern District of Michigan, 407 U.S. 297 (1972). You probably haven’t heard of it before, but you’re about to see how it inadvertently and indirectly may be one of the most monumental cases of our times.
Kinoy argued that the wiretap was illegal. The U.S. Solicitor General – the official who normally is the lawyer who argues cases on behalf of the United States that come before the Supreme Court – sat out this oral argument. Sort of. He did sit in the first row of the gallery as if to let the Justices know he was available to argue the government’s case if he wanted. Perhaps he was signaling to the Justices that he had benched himself – and that he did not want to be personally associated with the President’s arguments before the Court.
The government's brief was argued by Edward Mardian who was later convicted as part of the Watergate break-in and for a long time suspected to be “Deep Throat.” Mardian had distinguished himself at the Department of Justice for slowing down school integration, a key to the “Southern Strategy.” At the time of the hearing he was entrusted with legal operations to round up “draft dodgers” and crack down on the “radical left.”
The Court had just eight justices sitting that day. The ninth justice, the newest one on the court, happened to be William Rehnquist, the guy who wrote the national security memo at issue in the case. He recused himself from the deliberations and the decision.
They played by different rules back then. Even Rehnquist.
The idea of a recusal on the Court today is laughable. But – to the point of this entire argument I’m making – it really wasn’t that the rules have changed so much as the perception of what they could get away with, and not be socially or politically exiled for breaches of decorum. That’s what regulated officials differently back then. The power of the law, by itself, was a veneer. It certainly influenced how public perceptions played out, so the law was far from impotent, yet it was much farther from being the controlling factor among the powerful, both then and now.
During the oral arguments, Kinoy made a very risky tactical decision to claim that the national security exception was vague and could erase the entire Fourth Amendment. Kinoy made a decision on the spot to press his luck and skirt the normal decorum by lobbing a stinging accusation that was daring then – although I think it would count as unremarkable by comparison to the shrill partisan invective we’re now bombarded with daily.
I tracked down the transcript of his oral argument and here's exactly what he argued to the Justices that, by Professor Kinoy’s reckoning, strained the unwritten rules of decorum:
“The teaching of this Court…is that the Bill of Rights itself, the Fourth Amendment, was fashioned against the background of knowledge that unrestricted power of search and seizure was an instrument for stifling liberty of expression.
“Now, the power which the Attorney General states here would legitimize a widespread dragnet of a secret surveillance of domestic political opposition, of which the present record…is but a tiny preview.
“Already the subjects of the Attorney General’s suspicion — and I use that word advisedly — fall on leaders of the Antiwar movement, Black militants, Catholic activist pacifists, advocates of youth culture.
“But what is the deep danger to the country that this claim represents?
“As formulated here this morning and in the briefs submitted to this Court, that claim of power can include anyone who speaks out. I put it bluntly to the Court, that this is not an exaggeration. I put to the Court the example of the recent suggestion from high quarters in the Executive Department that critics of proposals made by the President of the United States in respect to the Vietnam War – and I use their own words – ‘are aiding and abetting the enemy of the United States.’
“That was the Chief of Staff of the White House, two weeks ago.
“Now I suggest to the Court: would these critics be included within the scope of this domestic surveillance? They’re aiding and abetting an enemy of the United States.
“You mean their phones can be tapped?”
At the commuter tavern, Kinoy told me he had instantly regretted his gambit, thinking he may have pushed his point too far and offended the Justices. Still, if it offended the sensibilities of any of the Justices, their answer to his question on June 19, 1972 was an emphatic “no” – by an 8-0 decision of the U.S. Supreme Court.
The Court rejected a theory of non-reviewable Executive actions when they’re conducted in the name of national security, for both domestic and international reasons, with all discretion and scrutiny left to the President as to what legitimately falls within those spheres of non-reviewable power. Had the Nixon Administration prevailed, there would be no warrants sought for matters where the President determined that no warrants were needed, as long as the President determined it was necessary to safeguard national security.
The concern about spying on political opponents is no longer theoretical now as it was at the time of the 8-0 decision in 1972. Professor Kinoy was speculating that the President might conduct electronic surveillance of the Democratic Party – not knowing that the decision had already been made to do so weeks before the oral arguments.
The legal basis for this asserted power was articulated in a memorandum written by William Rehnquist, while he was at the Department of Justice. The reason this case was decided 8-0 is because he had just been sworn onto the Supreme Court and he recused himself from ruling on the memorandum he authored.
It cannot be stated strongly enough that the 8-0 decision of the Supreme Court was a rebuke of the legal scholarship of their newest colleague, a decision they surely did not undertake lightly, yet they arrived at unanimously.
The wild turn this story takes occurred mostly between his February 24 oral argument and the release of the Supreme Court’s decision on June 19.
In that span of time, two Watergate break-ins intervened.
The first break-in was on May 28-29 to install the wiretaps – or “bugs” (so named because the electronics were as small and intrusive as insects). There was a second break-in on June 17-18, when history books tell us the full break-in team returned to repair two faulty "bugs." As it turns out, the decision to plant the bugs had been made in January, weeks before the oral arguments and, even by Kinoy’s later assessment, without Mardian’s knowledge during the oral arguments.
The more peculiar thing, if the history is accurate, is that the Watergate “plumbers” were caught with a lot of equipment, almost all of it, not just a couple of replacement bugs.
On Monday following the second break-in, when the break-in was a minor news item, the Clerk of the Supreme Court called Kinoy’s office to tell him that the decision was 8-0. Kinoy, still fearing he’d overplayed his hand by implying Nixon might bug the DNC, told the clerk he was astonished and dismayed it was 8-0.
Kinoy said he told the clerk that he was shocked Justices Brennan and Douglas had sided with the Department of Justice. "No!" the clerk explained. "You don't understand. You WON the case 8-0." That was a big surprise for Kinoy because he never expected every justice would rebuke the memo written by their newest colleague on the bench.
Kinoy explained this next part to me over his second gimlet at the commuter lounge inside the Bloomfield NJ train station: "As Watergate became big news, I realized they weren't there to repair bugs that night. They came back to remove all the bugs they'd planted in May.”
He added, “They had to get all the bugs out before the Court's ruling made them undeniably illegal.
"Hold on a second," I said. "They had no way of knowing what the decision was going to be."
"Not unless it was a matter of national security," Kinoy replied with a smirk.
It slowly dawned on me that Kinoy was saying that the Democrats were probably not the only enemies of the state being spied on by the Nixon Administration. Sure, the Court decision could have been leaked by a law clerk or a secretary with loose lips. Or Rehnquist himself may have been the leak. Kinoy believed Nixon had bugs planted at the Supreme Court, too.
Even if the Nixon Administration wasn't wiretapping the U.S. Supreme Court as Kinoy proposed, I buy into Professor Kinoy's theory that the second break-in was to remove all the wiretaps ahead of the release of the Court decision on Monday morning.
If Kinoy is correct in believing that the second Watergate break-in was a reaction to the imminent court decision, then the Nixon Administration had calculated – correctly, they soon learned – that the legal and practical risks of asserting immunity and acting with impunity were too high.
It's notable that Nixon was run out of office by his untenable popular position – the political calculation – before the law itself had to figure out how to carry out a task that I submit it can only do with the consent of powerful actors who cos-play as law-abiding statesmen only as long as doing so suits their interests.
Still, the fact that the law wasn’t necessary to evict Nixon isn’t quite correct. Plus, that narrative offers false hope today now that the Supreme Court has severed the constraints of the law – even though they’re just a facade – from essentially all White House decision making.
The change I think we’re going to see in the wake of Trump v. United States - https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf - is not that our current and future Presidents will claim immunity for patently illegal enterprises. They were doing that before Nixon and and they’ve been doing it since, Democrats and Republicans alike, with varying degrees of success. Presidential acts performed in the shadows are rarely checked by the threat of legal consequence.
Reagan had the Iran-Contra arms trafficking – a criminal arms-for-hostages enterprise that operated on nothing more than the confidence that the President’s assertion of national security will protect all who moved forward with the plan. Obama created the “Disposition Matrix” a program for extra-judicial assassinations of American civilians who were acting against our national security interests. The judiciary was not called in. It all operates from a “trust me, bro” ethos that Presidents feel sure the public will allow them.
Trump compiled a secret list of journalists who reported on immigration at U.S. borders, sharing the personal information of these journalists with Customs and Border Patrol agents who used the lists to decide who they would “randomly” detain and how to interrogate them.
Even the venerated Abraham Lincoln suspended habeas corpus - giving himself the power to indefinitely imprison suspected enemies of the state. Lincoln brushed off the edicts of the Supreme Court’s Chief Justice ordering Lincoln to comply, as if those edicts never reached his desk.
This idea that the Rule of Law or the Supreme Court has kept Presidents in check and law abiding until now is overblown.
Indeed, notwithstanding the 8-0 decision that Kinoy won, America, the surveillance state, is alive and well and as warrantless as Rehnquist believed it should be, under the direct stewardship of every President since Nixon without exception.
What changes going forward is the emphasis that will be placed on the political or popular calculation Presidents will consider when concocting their future illicit schemes.
With a clear assurance that a sweeping legal immunity operates in their favor, the current and future Administrations must only navigate and manage their political risk of breaking the law – which, of course, is fully manageable now without any judicial process in place to compel the production of witnesses and records that would bring their illegal enterprises to light. It was the looming legal process, as ineffectual as it is without the consent of the powerful, that informed the popular resistance to Nixon. The law is not nothing in all of this.
Of course, now that the Rule of Law has been benched - giving certainty to Presidents as to how that factor will play out - the narratives that will be pushed out by every Administration are going to be supported by cherry-picked records that can be curated and edited by White House image managers to satisfy the whims and interests of their boss. The firing of independent prosecutors – which are themselves likely a thing of the past – will not be greeted as scandalous in a world where those firing decisions have been ruled beforehand to be perfectly lawful (even if they’re unlawful).
But has the legal calculus really changed so dramatically?
American democracy and the freedoms established in our Bill of Rights have always been subject to the whims and caprice of those in power. Just like Lincoln’s silence in the face of Chief Justice Taney’s calls to respect habeas corpus, the law matters to Presidents only when they freely choose to go along with the law.
Our system of checks and balances has always been a trust fall, with the spoils going to the first President who can get away with grabbing all of the power by refusing to play along with the charade that they’re subject to the law.
This is not new. The first President to stick their wet thumb in the air and decide that they can claim all the power for themselves – and correctly gauge the direction of those favorable winds – is going to get their way, regardless of what laws are on the books.
The threat I think we all understand is at hand is that we know we are witnessing the end days for the decorum – not the end days of law – that has constrained the powerful and instructed them to pretend to go along with laws they’ve always been able to ignore.
It’s telling that the public is not so much concerned with how the current President will abuse this immunity he now wields – because Biden has established he will play by the rules of decorum, even while he may be breaking laws. It’s this “gentlemen’s agreement” or “honor among thieves” that preserves our democracy. Biden is the kind of genteel politician who can be “trusted” to commit his illegal government schemes in ways that are not too grotesque or not too wanton to spoil the trust fall for everyone.
The visceral concern with this new prospective guarantee of legal immunity is pointed at Trump, a man who has already attempted the power grab, utterly indifferent to the legal consequences. With Trump being assured of no legal consequence should he be elected, knowing there’s no mechanism to uncover the paper trail of his next crimes, Americans are coming to understand just how quickly this trust fall of a constitution will collapse if the immunity extends power to a narcissistic madman whose minions are too fearful to defy him.
We all seem to understand that it’s not really the law that secures our democracy. Nor has the public exhibited a revulsion for Presidents who act illegally with impunity - if not de facto immunity - as long as they’re not too crass about it.
The contrast between Biden and Trump reveals how the guardrail for our democracy - and our freedoms - is little more than the expectation of good manners and a desire or need for our highly-empowered officials to maintain respect or admiration among the political class. It’s the fact that he will be free from these traditions of civility that has Donald Trump primed to (once again) make the ultimate gamble no President before has dared.
A fascinating historical explantion at how we got to this terrifying point. And a great backstory with a jaw-dropping cast of characters.