On June 14, 2016, The Atlantic declared Russian hacking of the Democratic National Committee’s computer system was “A Watergate Break-In for the 21st Century.” On August 13, 2016, House Minority Leader Nancy Pelosi warned America that the Democratic Party was the target of “an electronic Watergate break-in.” After Donald Trump’s election, FBI lawyer Lisa Page wrote Peter Strzok that she had purchased the movie “All the President’s Men” so she could “brush up on Watergate.”
At first, the parallels seemed irresistible. The Watergate scandal began with a June 17, 1972 break-in of the Democratic National Committee offices. The 2016 Russia scandal began with the April 18, 2016 break-in of the DNC servers. In both cases, the DNC was the apparent victim of spying for the benefit of the opposition Republican campaign.
President Richard Nixon gave his famous last wave as he boarded the helicopter on August 9, 1974, 783 days after the Watergate break-in. On June 10, 2018, we crossed that same 783-day milestone in the DNC server break-in. Now is a perfect time take the measure of Robert Mueller’s investigation using Watergate as a historical reference.
The 2016 Russia scandal is, in many ways, the mirror image of the Watergate scandal. Like a mirror image, what might appear to be a reflection is actually an inverted and opposite image.
Contrast 1: The Apprehension of the Burglars
In the Watergate scandal, the burglars were discovered by a hotel security guard and arrested by local police on the very first day of the scandal. On day 90 of the Watergate scandal, a grand jury indicted the Watergate burglars plus G. Gordon Liddy and E. Howard Hunt, two of the break-in organizers.
In contrast, the 2016 DNC cyber burglars, whoever they are, have never been arrested or indicted. In fact, the DNC has refused to allow law enforcement to inspect the crime scene—i.e., the server itself. The conclusion that Russians hacked the DNC server relies solely upon the opinion of DNC-funded Crowdstrike, a firm hired by Perkins Coie, which also hired Hillary Clinton- and DNC-funded Fusion GPS to conduct opposition research on Trump.
Perkins Coie and their contractors were hired to help Clinton “achieve [her] electoral and strategic objectives.” They were not in the business of investigating crimes. There is no public report of the DNC paying the key investigators in the Watergate scandal.
In July 2016, WikiLeaks published the first batch of emails hacked from the DNC server. One logical point of investigation might be to interview WikiLeaks to see what, if anything, it has to say about the source of the stolen DNC emails. As of December 13, 2017 (day 604 since the DNC server break-in) Mother Jones reported the special counsel had made no contact to ask where WikiLeaks founder Julian Assange got the emails.
Assange denies receiving the emails from a Russian source. A nonpartisan group of former intelligence officials has published a report disputing that the DNC servers were hacked over the Internet. Based on the download speed of the stolen emails, the group concluded that an insider likely caused the breach.
Contrast 2: The Appointment of the Special Counsel
In the Watergate scandal, Attorney General Elliot Richardson appointed Special Counsel Archibald Cox to investigate “all offenses arising out of the 1972 election … involving the president, the White House staff or presidential appointments.” In the Russia investigation, Deputy Attorney General Rod Rosenstein appointed Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
At first blush, the appointments seem similar. But the 2016 appointment has the important difference of not including the word “offenses,” as Cox’s appointment did. This has caused some to question whether a special counsel can legitimately be appointed without a predicate crime.
It is perhaps lost in the minutia of history, but Richardson submitted Cox to the Senate for confirmation. The same did not happen with Mueller. Some have challenged the failure to confirm Mueller as a constitutional defect.
Bizarrely, and in stark contrast to the manner in which Watergate was investigated, Rosenstein issued Mueller a secret memo modifying the special counsel’s instructions. This led to one federal judge asking more questions about the legitimacy of the entire Mueller probe.
Contrast 3: The Special Counsel’s Impartiality
Cox was teaching at Harvard when the Watergate scandal erupted. He had no apparent connection to the politics of the moment in 1973. In contrast, Mueller and his supervising attorney, Rosenstein, were already involved in the underlying facts.
When appointed, Mueller had only just applied for the vacancy created by President Trump firing FBI Director James Comey. Rosenstein’s appointment order clearly references Comey’s investigation into the Trump campaign that may have been obstructed by Comey’s firing.
Rosenstein justified Comey’s firing in this memo just eight days before making himself the supervising attorney over Mueller’s investigation into that same firing. It is unlikely that Rosenstein would approve Mueller looking into whether Rosenstein might have been a co-conspirator in the Comey firing so long as Rosenstein supervises the investigation.
Indeed, Mueller has even taken a statement from Rosenstein, which shouldn’t have happened if Rosenstein is going to supervise the investigation. Mueller is also known to have a personal friendship and longtime acquaintance with Comey, so it seems unlikely that he’s neutral on whether Comey should have been fired.
Mueller even helped Comey with his testimony before Congress in June 2017. It’s difficult to understand why that would have fallen in the scope of his special counsel duties. It was in this testimony that Comey admitted to engineering Mueller’s appointment as special counsel by leaking memos.
While Cox staffed his team with fresh faces separated from the events of Watergate—two fellow professors from Harvard, a retired U.S. attorney, for example—Mueller recycled existing investigators and attorneys who were already after Trump (Strzok and Page, for example). There are whole chapters of the recent Department of Justice (DoJ) inspector general report detailing the wildly inappropriate communication among agents and attorneys Mueller later selected for the special counsel team.
Most troubling is Strzok’s apparent intention to use his position in the FBI and later within the Mueller team to influence or reverse the outcome of the 2016 election. While some of these bad actors have been weeded out of the Mueller team, it remains an embarrassing unforced error for the investigation.
These facts have significantly undermined public confidence in the Mueller investigation and provided a target-rich environment for the president to take Twitter shots at the investigation. During the Watergate scandal, in contrast, polling showed widespread confidence that Cox was engaged in a legitimate pursuit of the truth.
Contrast 4: The President’s Efforts and Information
In October 1973, day 490 of the Watergate scandal, President Richard Nixon famously ordered Cox to stand down from an attempt to obtain tapes of the president’s Oval Office conversations. When Cox defied the order in a televised news conference, Nixon fired Cox and abolished the entire special counsel office. Separately, Nixon agreed to pay “hush money” to the break-in conspirators to prevent them from providing truthful testimony to the grand jury.
Mueller, on the other hand, posesses all of the emails among and within the Trump transition team. The special counsel has access to wiretaps of Trump campaign and transition figures Paul Manafort, Carter Page, and Michael Flynn. The Trump administration has voluntarily turned over 1.4 million pages of documents and furnished 20 staffers for interviews. To date, there is no public report of the Trump administration defying any request from the special counsel.
In stark contrast to President Nixon, President Trump has actually demanded greater transparency into the investigation of his campaign. For example, he urged the release of information Congress requested concerning the investigation here, here, and here. According to Comey, when confronted with the “salacious” allegations from the famous Fusion GPS dossier (involving Russian hookers), President Trump considered asking the FBI to investigate to prove his innocence. President Nixon did exactly the opposite when he attempted to pressure the FBI to not investigate the burglary.
Some might point to President Trump’s effort to back Comey off from investigating Flynn. But Flynn is only accused to contacting Russia regarding diplomatic matters arising after the election. Similarly, some might compare Nixon’s hush money to contemporary reports accusing candidate Trump of paying Stormy Daniels hush money. But the comparison breaks down immediately. There’s no disputing that Trump or his lawyer were trying to hide a sexual affair, not Russian collusion.
DoJ has vigorously fought public release of many key facts about the investigation. One recent example is its delay in producing its communication with Crowdstrike. As mentioned above, the proposition that the Russians hacked the DNC servers is totally dependent on Crowdstrike, so the exchanges with the investigators are absolutely critical to the original premise of the whole scandal.
Contrast 5: The Watergate Investigation Made Progress
We have crossed 800 days into the Russia scandal. It’s worth noting some milestones in the Watergate investigation for comparison.
For example, as noted earlier, the actual burglars and two of the organizers were indicted on day 90 of the Watergate scandal. Cox was appointed on day 336 and fired on day 490. Surprisingly, this former Harvard professor served only 154 days as independent counsel. Yet he managed to bring the successful United States v. Nixon case, which ultimately forced the president to turn over his tapes exposing his complicity in the Watergate cover-up.
By day 728, Bob Woodward and Carl Bernstein published “All the President’s Men,” which consolidated their reporting into a near-complete profile of the entire scandal. On Day 773, the House Judiciary Committee passed articles of impeachment of President Nixon.
The contrast with the DNC server break-in could not be starker. At day 773 of the Russia scandal, the House threatened to hold Rosenstein in contempt for concealing documents from Congress regarding the dubious origins of the investigation. At day 782 of the Watergate scandal, Nixon resigned from office. We’re nowhere near that point in the Russia scandal.
After 800 days of the Russia scandal, we still don’t appear to be any closer to answering the question, “What did Trump supposedly do to collude with the Russians?” Mueller has repeatedly sought and received delays (here and here) in his court cases because of the alleged “complexity.” After all this time and money, America deserves less “complexity” and more clarity.