Inherent Power | Crooked Media
February 19, 2021
Positively Dreadful
Inherent Power

In This Episode

Brian Beutler talks to John Dean, former White House counsel for Richard Nixon, who got swept up in the Watergate conspiracy before turning on his boss and helping end the Nixon presidency. They discuss the fallout from the impeachment trial, whether Democrats have the stomach to truly hold the Trump Administration accountable, and how they can wield commissions, select committees, and subpoena power without Republican votes.





[clip of Rep. Jamie Raskin] Senators, America, we need to exercise our common sense about what happened. Let’s not get caught up in a lot of outlandish lawyer’s theories here. Exercise your common sense about what just took place in our country.


Brian Beutler: There was a moment last Saturday, the final day of the second impeachment trial of Donald Trump, when it seemed like the reckoning Republicans plainly fear was coming.


[clip of Rep. Jamie Raskin] We would like the opportunity to subpoena Congresswoman Herrera regarding her communications with House Minority Leader Kevin McCarthy. We would be prepared to proceed by Zoom deposition of an hour or less.


Brian Beutler: That’s Jamie Raskin, Maryland Congressman and the House Democrat serving as chief manager, or prosecutor, for the impeachment trial. After the main presentation phase had ended, Raskin shocked the Senate by requesting the power to subpoena witnesses and documents and make Republicans pay an even greater political price for voting to acquit the man responsible for the January 6th insurrection. We know Republicans were scared because, well, they absolutely lost their shit.


[voice clip of Michael van der Veen] None of these depositions should be done by Zoom. These depositions should be done in person, in my office, in Philadelphia. That’s where they should be done. [people laughing] That’s civil process! I don’t know why you’re laughing. It is civil process.


When a bipartisan majority of senators agreed to Raskin’s request, I thought back to something Ruth Ben-Ghiat told me on last week’s show.


[voice clip of Ruth Ben-Ghiat] Transparency is about showing respect and, for the people you are governing. It’s a form of humility. It’s showing respect for accountability, because if you don’t have an accounting of past practices, history shows that people will do the same thing and more.


Brian Beutler: But then seemingly for no reason at all, Democrats balked.


[voice clip] They wanted to call Republican Congresswoman Jaime Herrera Beutler to testify. Fifty five senators voted to hear witnesses. Then, after all that, the Senate decided not to call witnesses.


Brian Beutler: What happened? Why vote yourself the power to expose Trump more thoroughly than ever before on the biggest stage imaginable and then not use it? It was a low moment. And a decision the Biden White House at some level must have supported. So now we’re left to wonder, can there be a do-over? And would a party that’s rendered a golden opportunity to tighten the vise of accountability on Trump even want one. After voting to acquit Trump, Senate Minority Leader Mitch McConnell suggested that Trump might still face civil or criminal liability for things he did as president. Would Biden’s Justice Department go for it? On Monday, House Speaker Nancy Pelosi announced that Congress will establish a 9/11-style commission to investigate the insurrection. Will it have the power it needs to fully expose Trump’s role? Can legislation creating such a commission even pass the Senate? My guest this week is John Dean. He’s a fellow at the USC Annenberg Center on Communication, Leadership and Policy, but he’s most famous for being Richard Nixon’s White House counsel, who got swept up in the Watergate conspiracy before turning on his boss and helping to end a presidency. We’ll discuss where the push for accountability goes from here after the second Trump impeachment ended the way it did. I’m Brian Beutler. Welcome to Rubicon.


Brian Beutler: Mr. Dean, great to have you on.


John Dean: Thank you.


Brian Beutler: So did you follow along with the impeachment trial pretty closely over the last week or so?


John Dean: Very closely.


Brian Beutler: OK, so what went through your mind when you, when you heard that House impeachment managers had requested and been given permission to subpoena witnesses and testimony? And then what went through your head an hour later when Democrats balked and decided to proceed without any further evidence?


Brian Beutler: I was dumbfounded that they had actually carried the vote with no less than Lindsey Graham joining in the vote. It was a surprise. The resolution was less than satisfactory, particularly when the president’s lawyers raised it as hearsay and not accepting the truth of the stipulation they’d agreed to, which was kind of a back door renege on the whole deal that they had gotten. But anyway, I, I did, I think that they should have had witnesses. I would have, in fact, put the whole thing in what’s called a Rule 11 committee. This is a separate impeachment body that has been used for impeaching judges. It can’t be used for impeaching presidents. However, there’s no reason that a former president couldn’t be treated like a judge. And a separate Rule 11 committee, which holds hearings, gathers evidence and reports back to the Senate. And I think they could have taken the television cameras in there and marched in witness after witness and done it all summer long until the public got what was going on. And it was a missed opportunity because it would not have slowed down the Senate. I think that if the Republicans had balked and said, no, we don’t want to do that, we don’t want all that bad publicity about what this Republican president has been doing, they could have very simply said, we’ll take, let’s go to a vote on it. And they had the votes. They might have had the votes to put it in a rule 11 committee all along and not known it. But they decided not to do that because they feared it would detract from the Biden agenda. And so they obviously did not do anything that was really fact-finding or an in-depth look. I think it could have changed the entire proceedings because people still don’t get how serious that was.


Brian Beutler: I want to zoom out for a second from the specifics of the tactical decisions that Democrats made in drawing the trial to a close, to your sort of broad view of this term ‘accountability’ that sort of suffused the whole trial. I, my presumption is that your view on this subjective thing, accountability, is shaped in large part by your back story and your familiarity with this kind of style of dirty tricks, authoritarian politics that has so much purchase in the GOP today.


Brian Beutler: If you’re new to the Watergate scandal, you may not appreciate how central Dean was to the whole thing. Dean was Nixon’s White House counsel, the same position Don McGahn and Pat Cipollone held under Donald Trump. The White House counsel is supposed to protect the interests of the Office of the Presidency rather than the personal interests of the president himself. But when the president is a crook, that line can blur very quickly. In an enterprise like the Nixon or Trump presidency, the White House counsel isn’t supposed to be a frontline troop who pulls dirty tricks, someone like Roger Stone, who actually committed political crimes for both presidents. But that person is in a position to obstruct investigators and cover up wrongdoing. Before the Watergate scandal fully engulfed Nixon’s presidency, the cover up was on and it seemed like it might work, in part because Nixon’s allies pulled the same authoritarian tactics that marked the Trump era: lying, scheming, buck passing, fake outrage.


[voice clip] Mr. Haldeman, I think that in light of the facts that are coming out, both you and I would agree that this went far beyond just a few men breaking into the Watergate, but rather it’s revealed a situation where upon everything that was touched was corroded.


[voice clip] No, sir, I will not in any way, shape or form ever accept that allegation or contention. And I think that does a grave disservice to this country, even to state it.


[voice clip] I don’t believe that anybody has one shred of evidence that he was knowledgeable of the break-in.


[voice clip] Well, where’s the check on the chief executive’s inherent power as to where that power begins and ends?


[voice clip] Well, I’m certainly not a constitutional lawyer, Senator.


[voice clip] I don’t know where the line is.


Brian Beutler: One big difference between Dean and the rest of them: Dean ultimately knew where the line was and that they had crossed it and decided to come clean. Here’s a piece of his testimony from the Watergate hearings.


[clip of Dean] I began by telling the president that there was a cancer growing on the presidency. I also told him that it was important that this cancer be removed immediately because it was growing more deadly every day.


John Dean: The authoritarian personality is not inclined to accept responsibility. They want to do their will and impose their will without accountability. Add a little narcissism in there, and they want to do it in the spotlight, which is what we’ve been through for the last four years. So Republicans have become the party that tries to make everybody accountable for everything excepting what Republicans do. Look at Benghazi. It’s something they try to impose on others, but not themselves.


Brian Beutler: Have you developed a sense over, over the years about why, at least in today’s incarnation of the two parties, Republicans, as you say, will drag out and sort of manufacture a scandal around something like Benghazi and sort of beat it to death for months, if not years, but you have a Democratic Party that doesn’t have the same sort of taste for the jugular. And, and given this once in a lifetime opportunity to sort of expose Trump on the biggest possible stage, balks. Why, what accounts for that difference?


John Dean: As you know, I have written and studied at some depth the authoritarian personality. That was prompted first by being surrounded by it in the Nixon White House and actually those surrounding Nixon were probably more authoritarian than he was. Most of them have very little shame. So to, to let this stuff just roll off their back doesn’t trouble them in the slightest. And that’s the, that’s the big underlying issue we’re dealing with. But that doesn’t mean Democrats don’t have an incredible opening right now to show this party for what it is and what it has done in the last four years. And it will be a travesty if they don’t. And I think that Democrats can mount an effective investigation—or investigations, plural—and get to the bottom of a lot of this. You know, I’m thinking back to Watergate and it was so slow in the process before impeachment really became a serious undertaking. It was preceded by a lot of negative press. It was preceded by the Senate Watergate hearings, which went on for months in a very public venue.


[voice clip] We are beginning these hearings today in an atmosphere of utmost gravity. The questions that have been raised in the wake of the June 17 break-in strike at the very undergirding of our democracy. We wil inquire into every fact and follow every lead, unrestrained by any fear of where that lead might ultimately take us.


John Dean: The special prosecutor’s investigation—by firing him when he was trying to get Nixon’s tapes, that was the straw that broke the camel’s back and started the drive towards impeachment, when Archibald Cox was fired at the so-called Saturday Night Massacre.


[news clip] Good evening. The country tonight is in the midst of what may be the most serious constitutional crisis in its history. The President has fired the special Watergate prosecutor, Archibald Cox, because of the President’s action . . .


John Dean: That happened over a weekend in October. And the next Monday, there were something like 20 resolutions of impeachment introduced in the House. They didn’t get a formal resolution of impeachment or an authorization until February of the next year. So they didn’t rush into it even then. They just began quietly probing it.


Brian Beutler: That’s actually an interesting analogy, because I was going to ask you about after Nixon left office, my sense from the reading is the Democrats were fairly emboldened and there was a raft of reforms that Congress passed to try to prevent the next Nixon, and that the party didn’t shy away from the concept of accountability. And I was going to ask you what’s different, like what has changed about the party since then? But maybe the analogy is actually really kind of similar insofar as it took a few years from the emergence of the Watergate scandal for the Democratic Party to really get its accountability Juju, right? And maybe something similar is happening today.


John Dean: It could be. The parties are very different today than they were 40+ years ago when all that unfolded. The Republican Party was a big-tent party, they had a conservative element, they had a moderate element and they had a very progressive element, so the people who were the holdouts for Nixon during Watergate are now the, you know, they’re the core, they’re the entire rank and file of the Republican Party as well as the leadership. So they’re just constituted differently. Now, have the Democrats changed? Not as much. Not as much. They just play by the rules. They’re more interested in policy. They want to get things done. And they don’t like these endless process investigations, which the Republicans thrive on because they—if you haven’t noticed or your listeners haven’t noticed—Republicans can’t govern very well. They don’t have any policies, you know, tax cuts, tax cuts, more tax cuts, and then opposing anything Democrats want, is basically their policy. That has gotten worse rather than better through the Trump presidency. But it sort of, we now, we’re seeing the Republican Party for what it really is. So that’s the difference. The Democrats want to get on with governing and doing things that affect every American. The Republicans don’t want to go there.


Brian Beutler: So before we zoom back to today, can you talk a little bit about the role that social censure played in changing behavior after Watergate? Like what was it, uh, was it generally understood that people who are implicated in Watergate were going to be persona non grata in their professional communities, in their home communities? And did that have any lasting effect on how politicians or operatives conducted themselves in the years afterwards?


John Dean: I think the best example I can use is what happened with lawyers, which is a clear profession. And it really stemmed directly from my Senate testimony, which rang a bell with the American Bar Association in Chicago. I’d prepared a list of who was implicated and I just noticed at the time there sure are a lot of lawyers that got involved in this. I think there were like 11 on my sheet where I had put asterisk beside a list of names. And one of the members of the Senate Watergate committee, Herman Talmadge of Georgia, he asked what those were, and I said, I said: my God, how could so many lawyers have gotten in this mess? And that rang a bell with the American Bar Association. The American Bar Association created a study group to get a, develop a new model code for lawyers. So Watergate did have a lasting impact. But what’s interesting is, in the last four or five years, it has disintegrated in the practice of law.


[clip of Rudy Giuliani] Joe Biden is in the lead because of the fraudulent ballots, the illegal ballots that were produced and that were allowed to be used—


[clip of Sidney Powell] —all over the country to take a certain percentage of votes from President Trump and flip them to President Biden.


John Dean: It’s most, and its worst in a sense, has been watching Trump’s lawyers. They’ve led the way on how to get around the law. You’ve seen it in the Department of Justice and Bill Barr, Pat Cipollone, have made terrible examples for lawyers. And that’s one of the reasons I’m hopeful that post Trump we’ll have similar reforms, because there were—reforms not only in the legal profession—the whole standard and norms, for example, in the relationship of the White House to the Department of Justice were established post-Watergate. I understand roughly in a week they’re going to have the Merrick Garland hearings and this will, some of this stuff may come up in those confirmation hearings about the lasting impact of Watergate and getting back to the post-Watergate level, where those norms are now going to have to be codified. Because it shows that they don’t, they won’t last as norms.


Brian Beutler: Right. I was going to say if the lawyers who are involved in the Trump years go back to practicing law, just like nothing happened and these norms aren’t codified, then it just seems like Democrats can respect the, the old norms for four or eight years and then we’ll just be right back where we started.


John Dean: That’s right. And some states now where Rudy Giuliani and Sidney Powell went around with their outrageous cases to perpetuate Trump’s big lie that he’d won by a landslide, the question is, will the bar associations do anything? And that’s going to be a test right now. If they don’t, the legal profession has taken a dive. If they do start actually enforcing the codes of ethics, they’re going to be some lawyers in a lot of trouble.


Brian Beutler: Coming up, the other tools of accountability: commissions, committees, censures and subpoenas. Which of these have teeth? And which don’t require Republican votes? We’ll get into that when we return.


[ad break]


Brian Beutler: Welcome back to Rubicon. My guest this week is John Dean. You probably know him best as Richard Nixon’s White House counsel, who turned on Nixon and became a star witness in the Watergate hearings. But he’s since become a vocal critic of the Republican Party. We’re talking about how Democrats can and must hold the Trump administration accountable, even if they don’t seem to have the stomach for it.


Brian Beutler: So after disposing of the trial, Democrats announced that they will create or at least try to create an independent 9/11-style commission to investigate the Capitol insurrection. Is that the proper next step in your mind?


John Dean: It is an important step, and what this really means to me is, not getting revenge against Trump, it’s educating the American people about what the hell he was doing, how dangerous he and his followers are, how corrosive it is to democracy, and if we don’t deal with it, what it’s going to do to the country. And the first thing that sort of established Watergate was the name. As Bob Haldeman, Nixon’s Chief of Staff, told me during Watergate, he said: you know, John, Watergate kind of like Teapot Dome, it’s a catchy name. So the first thing to get through to the public is for that name to to attach.


Brian Beutler: And this is why, and this is why the post-Watergate reforms weren’t just about “well Nixon resigned, so we don’t have to worry about another crooked president and we can just move on” they had reforms, the Church Committee and various laws that they passed that reformed a bunch of, how intelligence was shared with Congress, us is because Watergate wasn’t about just the break in at the Watergate Hotel. It was about a whole strata of malfeasance underneath that that most people don’t remember today. But that’s why those reforms were passed.


John Dean: Absolutely. That’s exactly right. I know right now I noticed they’re talking about the January 6 riot commission. You know, some are calling it the Trump insurrection, the seditious insurrection. We don’t have a label yet. And that’s something that Democrats and the media should do and think about. That it’s inclusive enough and has the same kind of catchiness that Teapot Dome and Watergate have. Those, those are effective labels and we need something like that.


Brian Beutler: So my concern with the commission, taking your point that it should be well-branded, is that you need a law to create a commission. And Republicans through the filibuster have the power in the Senate to block it unless they can make sure that the commission is toothless or unless they can assure that its remit includes investigating antifa or allowing Kevin McCarthy to appoint Jim Jordan to the commission. And so I’m wondering if you have any thoughts on whether there are any sticks Democrats can use to assure that this thing comes into existence without being set up to fail?


John Dean: Well, first of all, commissions typically are fairly toothless. They don’t do much. They, they do studies. Rarely do they conduct public hearings that educate the public. It’s clear that Nancy Pelosi has sort of stepped forward to fill the vacuum and she’s not going to let these issues just simply be put placed under the rug and forgotten. She is trying to have it kind of both ways by creating a commission that can take it out of the Congress and proceed with this, is one solution. I, I, I’m more inclined to think that one of the reasons a Senate select committee would be effective is that Schumer is much more inclined to probably have an aggressive investigation in the Senate. The Senate select committee that investigated Watergate really was a very effective educational investigative tool and that, that they can do and not be blocked by the Republicans. And while there would be equal membership—that’s the way it was on the Senate Watergate committee—the chair is controlled by the Democrats. And they, these are things aren’t mutually exclusive, is what I’m trying to say. You could probably have some House committees where they have jurisdiction to look at it. But you’re right. I think that the Republicans on a committee, on a commission will try to neuter it sufficiently that it really won’t have much of an impact as far as educating the public and getting down to the nitty gritty. And they need to start soon. We’re still, for example, Don McGahn was subpoenaed to testify before the original impeachment inquiry. That’s still in the courts. [laughs] That hasn’t come out yet. And, you know, somebody who decides to do what I did and blow it all up might be sitting around now and say “you know, it’s, I remained quiet too long” and come forward and be a witness around which they can build an understanding of what happened.


Brian Beutler: It might seem far-fetched to think Trump allies like McGhan would suddenly come out of the woodwork and testify like Dean did during Watergate. But Congress and the Justice Department may be able to compel them to in a couple of ways. First, if prosecutors open or reopen investigations of any Trump-era crimes, uncooperative witnesses can be jailed and those who lie to investigators can face criminal charges of their own. But Congress also has its own subpoena power. And in concert with a cooperative Justice Department, it can make life very uncomfortable for reluctant witnesses. Witnesses who defy congressional subpoenas can be held in contempt of Congress, which is a tool Congress uses to enforce its own compulsory powers. The problem? Congress isn’t a law enforcement agency, and getting someone to give teeth to those subpoenas is complicated. Contempt of Congress comes in three flavors: inherent civil and criminal. Inherent contempt is when Congress sends the sergeant at arms to haul a witness in by force. Congress hasn’t used its inherent contempt power in many decades, though after the Trump years, there’s a strong argument we should revive it.


Brian Beutler: Civil contempt is when Congress asks a judge to order a witness to testify. But as we saw during the Trump era, that process can wind its way through the courts for years. What about criminal contempt, though? That’s when Congress asks the Justice Department to prosecute defiant witnesses. When Congress is investigating the sitting president, this power tends to wane. Is the Justice Department really going to train its own powers inward, seek fines or jail time for its own within the executive branch? Just to give a competing branch of government a hand? Would Bill Barr ever really prosecute himself? But there’s a new Justice Department in town, and if it takes an interest in prosecuting witnesses to Trump-era crimes when they defy congressional subpoenas, those witnesses might suddenly decide to stop resisting. It’s something for Rudy to think about anyhow.


John Dean: You’re right. That’s absolutely right on. In fact, if I had a magic wand, the first thing I would have happen in Washington is for Congress to get its subpoena power in order. It has inherent contempt powers. No one knows how far those reach. They should be enacting into law, they’ve got the control of both houses and the White House, they can, so that they actually can effectively hold investigations. And that’s, that’s something that should have happened yesterday. And they should be devoting every bit of attention they have, all the committees, to being able to actually get witnesses and force them to testify.


Brian Beutler: So Joe Biden did a town hall on Tuesday and he said:.


[clip of President Biden] I don’t, I’m tired of talking about Donald Trump. Don’t want to talk about him anymore but . . .


Brian Beutler: But what do you make of that? And can Biden play an appropriate and necessary role as an agent of accountability if he’s simultaneously sort of operating with the goal of trying to push Trump out of the spotlight.


John Dean: Well, if you recall what he did after making that statement at his news conference, he turned around and started talking about Trump. If we, if we try to sweep Trump under the rug and try to ignore him, it will only compound the circumstances and situations he’s left us in. These things need to be addressed. I can appreciate why Biden doesn’t want them addressed, but if they don’t address them, they will haunt us. There was some of that post Watergate where Gerry Ford, one of the reasons he pardoned Nixon was to make it disappear because he was getting lots of questions about this document, that document, what should be revealed, what shouldn’t be revealed. And he said: God, I’m just sick of this and it’s just messing up my ability to govern. Well, that’s true. And part of the reasons that we have a Trump, is not everything was cleaned up during Nixon. Many of the issues that came up when you had another president who didn’t want to play by the rules, was the rules hadn’t all been established and set up. Some of it was left as norms—what seemed appropriate, what was inappropriate. But some of those could have well—if they’d have continued pursuing them—have ended up as laws and made it much more difficult for Trump to undertake the activities he did. I’m one who thinks it’ll be a disastrous mistake if we don’t look hard at what Trump did because he is a threat to democracy.


Brian Beutler: If you’re advising Biden, what would you tell him about how he should balance his positive vision, his desire to govern, with these more Trump-centric questions of truth and disclosure and, and protecting democracy?


John Dean: I’d advise him to just keep governing, as he is doing right now, and let the media and the public deal with these other issues and Trump. It’s not going to go away. If Trump is indicted in Georgia, do you think that the news media is going to ignore it that day? Of course not. They can’t. People are interested. It’s why, why they exist, to report this kind of thing. And I think that Biden has, what he’s got to do is explain to people that we need to get this kind of behavior out of our system and we need to take people who think this is acceptable behavior and get them back under rocks where they lived for so long. And that’s about as far as they should be advanced in a modern democracy.


Brian Beutler: Final question, have you ever thought about what the world would look like if 45 years ago you had not gone public, the Republican Party had decided to protect Nixon at all costs. He had not resigned. He survived his impeachment and Congress had not passed post-Watergate reforms. Where would that have led?


John Dean: To a very unhealthy place. Democracy, as we know it would probably be long gone. Democracy is something that has to constantly be attended to. It just doesn’t work automatically. If you have a dominant interest that is cheating to control the system, that doesn’t work so well for those who play by the rules. Nixon was somebody who didn’t play by the rules. He was not anywhere near as bad as Donald Trump, however. So it’s gotten worse. And by ignoring it, we will again live to regret it.


Brian Beutler: I’ll leave it there then. John Dean, thank you for your time and your insight.


John Dean: My pleasure.


Brian Beutler: Keep sending us your questions. Our email is Listener Michael writes in: What is the responsible way for the Dems to exploit fractures in the GOP without inadvertently raising the profiles of extreme right wing primary challengers?  This is always a tough balance to strike, and it doesn’t always work out well. The theory is that more extreme candidates have a harder time winning statewide or national elections. So if you can coax your opposition into nominating someone from the fringes, you stand a better chance of winning in the end. And more often than not, that theory is true. It worked out great for Dems in the 2012 Missouri Senate race when incumbent Democrat Claire McCaskill helped elevate the profile of the most right-wing Republican Senate candidate running in the GOP primary, a guy named Todd Akin, who once claimed that women will miscarry pregnancies stemming from rape, but only if the rape is “legitimate.”  Republicans nominated him and he lost. Years later, Democrats even won a special Senate election in the deep red, deep south state of Alabama after Republicans nominated a nasty racist and accused sexual predator named Roy Moore to their ticket. But they tried the same thing in the 2016 cycle on a much larger stage when a seemingly unelectable guy named Donald Trump entered the Republican presidential primary. And well . . . Ultimately though, the fact that Republicans have become so extreme isn’t Democrats fault. And the responsibility for the consequences of that extremism lies with the people and institutions in and around the GOP who intentionally radicalize their supporters with lies and propaganda, for power and profit.


Brian Beutler: Rubicon is written and hosted by me: Brian Beutler. It’s produced by Andrea Gardner-Bernstein. Veronica Simonetti is our audio engineer. Production support from Brian Semel. Thanks for listening. We’ll be back next week.