“Normally you have separation of powers, and you have supervision, but with special prosecutors you don’t have very much supervision. That’s the great danger.”
On March 22nd, author and former Nixon attorney Geoff Shepard joined Merion West‘s Erich Prince to discuss what it’s like to serve in an administration under fire. Mr. Shepard has written two books about the aftermath of President Richard Nixon’s resignation and how the case was mishandled by the prosecution. He works on organizing forums of former Nixon staffers. Mr. Shepard spoke with Merion West to break down the similarities between the Watergate Scandal and Special Counsel Robert Mueller’s investigation involving President Donald Trump.
Mr. Shepard, thank you for joining us this afternoon. To begin, could you talk a bit about having attended Whittier College, the alma mater of then-former Vice President Nixon, receiving the scholarship that bore his name, and how that would later lead to your position in the Nixon White House a decade later?
I went to Whittier after high school in 1962 and graduated in 1966, so Nixon at that point had been vice president under Dwight Eisenhower and then had lost the 1960 [presidential] campaign to Jack Kennedy and then the 1962 gubernatorial campaign to Jerry Brown’s father, Edmond Brown. He’d left politics. He had that famous press conference where he says,“You don’t have Nixon to kick around anymore, because, gentlemen, this is my last press conference.”
He leaves, and he goes to New York to practice law. He was nonetheless Whittier’s most famous alumnus, but he’d only been vice president [at the time I was a student]. But he was very proud to have come from Whittier; it’s a small Quaker school. It’s the equivalent of having been born and raised in a log cabin, and he was very loyal to the school.
He was [the college’s] youngest trustee, even though he had decamped to New York. They had a scholarship at the time that was awarded in his name in honor of the fact that a Whittier alumnus had been a vice president, and it was awarded by the Republican women of Whittier. The scholarship dean called me up and said I was to go to this lunch and that these ladies would give me a check for $250. I asked why I was receiving this check, and the dean told me it was because I had won the Nixon scholarship. To everybody’s surprise, Nixon shows up at the lunch.
Of course he didn’t fly all the way west to come to the lunch, but it was graduation week from the class before mine and Nixon had arranged for Bob Hope to be the graduation speaker. We sat next to each other at lunch and had a fine time. I didn’t have a chance to get nervous; I didn’t know he was going to be there. He was a nice guy. We talked about Whittier, and how he was out of politics. Then the scholarship dean called me up about two weeks later and said, “You must have made a heck of an impression on the former vice president.” I asked, “What do you mean?” He said when Nixon returned to New York he doubled your scholarship. He signed another check for you.
250 bucks was big stuff in those days, especially when it wasn’t a credit against your tuition, it came in cash. I graduated from college having this scholarship. It wasn’t that big of a thing, but then I went off to law school. And he went off and got himself elected president.
Having gone to his school and personally being presented a scholarship from him mattered a whole lot more, so I decided I that when I graduated from law school I’d go to Washington to help. I mean, he was my friend.
I applied for a White House fellowship right out of law school. Normally the people who are chosen for that program are older but nobody in the selection process had what I had. I came from his alma matter. I was kind of a sop to the newly elected president.
“If you are younger, you really can’t get a feel for the visceral hatred of Richard Nixon that existed throughout his political career.”
That kind of leads into what I was hoping to ask you about next. Which of the president’s legislative achievements or efforts do you think were particularly noteworthy at the time or aged particularly well? I know that he is warmly regarded for things like the “War on Cancer” or the Endangered Species Act. It was a lot of this sort of environmental legislation that maybe even had some people on the more ideological “right” saying, “Why is a Republican president getting involved in that?” Are there certain legislative achievements during the Nixon years that you felt particularly proud of?
I think you have to divide it into three parts. On foreign affairs, he simply has no equal in the modern era. He was a student of foreign affairs; he was hugely experienced. He’d been a congressman, a senator, served as vice president for eight years and was hugely knowledgeable. His opening to China, the time with the Soviet Union, the Vietnam War, and him being involved in the geopolitics of the Middle East are all considered to be huge victories, and deservedly so. His domestic record is every bit as creative but not as appreciated. I think it will become more so over time.
This happens to be the area I work in. I work in domestic affairs because for five years, I served on the Domestic Council, which is the counterpart of the National Security Council. It’s not just what you mentioned. It’s the peaceful integration of the southern schools, and it’s certainly the environment: the creation of the Environmental Protection Agency, the passage of the Clean Water Act and Clean Air Act. They’ve been abused since, but at the time they were quite creative. His restoration of rights to the American Indians. His initiatives with regard to integrating the labor unions, and his reorganization of the federal government.
It’s not fully appreciated, but under Nixon we evolved from what was called cabinet government, which is where the president appointed cabinet secretaries and they pretty much ran domestic affairs. He created a situation where the president and the Executive Office of the President create the policy. Cabinet departments had input, but all policy decisions are now made within the White House itself and their staff by the National Security Council, the Domestic Council, the Office of Management and Budget, and that consolidation formed the foundation for the modern presidency. Every president since Nixon has run the policy apparatus out of the White House. I think that’s crucial and necessary in today’s fast-moving world.
You alluded to how some of these domestic achievements will be seen over time. There was that 1978 speech at Oxford where he said “You’ll be here in the year 2000, see how I am regarded then.” I remember Senator Bob Dole and his eulogy for President Nixon in which Sen. Dole said, “I believe the second half of the twentieth century will be known as the age of Nixon.” Do you think he’s getting his fair shake by historians now? Is it still too soon?
I think it’s still evolving. This year, 2018, is the 50th anniversary of Nixon’s election as president. There are people who will tell you that you don’t really get a first cut of history until fifty years have passed. What we have to wait for Nixon to be appreciated is to wait for the people to die who just hate him and everything that he stood for, as much as some people hate President Trump today. If you’re younger, you really can’t get a feel for the visceral hatred of Richard Nixon that existed throughout his political career.
He was an outsider very much like Trump, except he was from California. Being an outsider, he did not graduate from an Ivy League school. He wasn’t wealthy and he didn’t come from a prominent family.
I remember his saying that his father was the poorest lemon farmer in California.
Yes, he was a citrus farmer in Yorba Linda. There were 300 people in Yorba Linda when Nixon was born there in 1912, and then they moved to Whittier when he was a young man and they had a family grocery store. Nixon would get up before dawn and drive to downtown Los Angeles and pick up the fresh produce that they were going to sell at the store.
What’s so peculiar about Nixon is as a bright guy, having graduated I think second in his high school class, won a scholarship to Harvard. The Orange County Republicans awarded him a full scholarship, but he couldn’t be spared from the grocery store where he worked basically for free. So all his life he’s been dumped on by the eastern elite, it was the liberal eastern establishment that hated him so much. Nixon knew that if it weren’t for his family’s poverty, he could have gone to an Ivy League school, too. They never accepted him, though. They just loathed the man and danced on his grave. I read articles in columns today by people from that era, and the idea of giving Nixon credit for any of his accomplishments is an anathema to them.
“Normally you have separation of powers and you have supervision, but with special prosecutors you don’t have very much supervision. That’s the great danger.”
Moving on to more of the special prosecutor sort of topics, can you talk about your argument about special prosecutors and their inherent difficulties in objectivity?
Our Constitution divides power, but what it is most fearful of is concentrations of power. The difficulty with special prosecutors is they represent an incredible concentration of power. This investigatory and prosecutorial powers are put in the hands of very few people who are specially selected to go get someone. Usually, there are rumors and reason for upset, but we take that investigation out of the normal course and we hand it to this specially recruited group of people.
Special prosecutors know their reputations and the evaluation of their performance are going to be based on whether they get somebody, and of course the more senior person they get, the better off they are and the better their reputation. They don’t have a time allocation. They don’t have a money problem. So they can keep after somebody until they finally find an offense, and they can bring pressures to bear on lesser people to get them to flip and reach a plea bargain maybe to change their story just to get out of the way. I think that happens a lot. I think that in most special prosecutions there are very bitter people from the other side who became the object, lesser people who became the object of these prosecutions. It starts with Watergate back in 1973. They thought that it was such a good idea for the Watergate special prosecution force, which numbered 100 people and sent 25 members of Mr. Nixon’s administration to jail. They drove Mr. Nixon out of office and imprisoned his staff.
I’m familiar with the story of Egil Krogh and “the Plumbers” for example.
Well, Bud [Egil “Bud” Krogh] was my immediate superior. He was a co-plumber, and he pled guilty. He couldn’t afford to mount a defense against the onslaught that they had planned for him, and there were lots of others who, maybe in the ordinary course of business, wouldn’t have been prosecuted at all. The top 17 lawyers, there were 60 of them, but the top 17 in the Watergate special prosecution force all came from the Kennedy-Johnson Department of Justice. This was a constitutional inversion. The very people who had been voted out of office when Mr. Nixon was elected somehow got hold of the new prosecutorial power, and they were prosecuting the duly elected president. They went after their enemies. They didn’t prosecute their friends, and they cut corners.
Lots of documents have come out since the Watergate cases over the past 50 years that show that they hid exculpatory evidence of witnesses changing their minds. They passed over clear violations of law that wouldn’t have occurred under other Democrats and they indicted Republicans for the same thing, and then the theory that special prosecutors are a great idea became enacted into law. It became the “Ethics in Government Act.” They had an independent counsel provision and for the next 20 years we were appointing special prosecutors, they were called independent prosecutors, all the time. From 1978 to 1999, there were 19 separate special prosecutors appointed.
Can you talk a little bit about what some of their cases were?
They will be names that you won’t recognize because they tended to be cabinet officers. The first one was against Hamilton Jordan, who was President Jimmy Carter’s top aide. There was one against Ray Donovan, who was a Secretary of Labor; and one against Ed Meese, who was Ronald Reagan’s Attorney General. Michael Deaver was Reagan’s head of public affairs. And there’s Ted Olson, who is in the news a lot. Ted was Solicitor General under Reagan.
He said to the special prosecutor, “You’re unconstitutional, you can’t make me do what you want.” And that went all the way to the Supreme Court. The case is called Morrison v. Olson, which unfortunately upheld the constitutionality of this prosecutor from President Bush’s administration, but lots of us think the case was wrongly decided. The Iran Contra affair. Then Ed Meese had a separate special prosecutor. Mike Espy was under Clinton, Ron Brown was under Bill Clinton. There were others. Then, of course, we got to the Whitewater and Monica Lewinsky prosecutions by Ken Starr, and at that point, the law was allowed to expire.
So now what you’ve had more recently since 1999 are again special prosecutors who operate under the Department of Justice. We had Patrick Fitzgerald, you may remember that during the prosecution of the Valerie Plame Affair. And now we have Robert Mueller supposedly investigating Russian interference. People who have been on the receiving end of all this are very bitter about how these prosecutions were run. You have no way to protect yourself because it seems like the prosecution is never going end.
“Nixon didn’t stand a chance. The drumbeat just kept on playing. At least today with Mr. Trump, you get pushback. You get the other side of the story if you care to look.”
You often hear, for example, about district attorneys being potentially overly zealous and securing convictions above all else to make names for themselves to run for higher office. Do you see the parallels between that and what’s going on here in special prosecutors potentially trying to build names for themselves? To what degree is that potentially influencing the overly zealous nature of certain special prosecutors?
Oh you put your finger right on it. Prosecutors at whatever level, district attorneys are local and state, U.S. attorneys are federal. They are politicians. They’re looking to enhance their reputation, they’re dealing with public issues and they’re in front of the press with great frequency and lots of them see big time prosecutions as a stepping stone to higher office. You have something in the law called prosecutorial discretion.
For example, before Justice Jackson was a justice on the Supreme Court, he was Attorney General and he gave a speech in 1940 to the second annual meeting of the United States’ attorneys. He said:
“You folks have the ability to affect people’s lives more than anybody else because you choose the laws you’re going to enforce at the local level. There are more laws you can possibly enforce, that means you choose amongst the laws you’re going to enforce and that means you choose the defendants you’re going to bring cases against. The temptation is to bring cases against people you don’t like and you must resist that. You must prosecute crimes and not people.”
The difficulty you have with investigations and prosecutions is when the prosecutor decides he doesn’t like you, and is going to single you out for persecution instead of just prosecuting. It’s a very delicate balance; we’ve empowered these people but the Constitution says they have to play fair, people have to get a fair trial, and what is so worrisome is that in each of the levels you talk about — whether it’s district attorneys or U.S. attorneys or special prosecutors — is when you get abusive people in those offices. Normally you have separation of powers, and you have supervision, but with special prosecutors you don’t have very much supervision. That’s the great danger.
Last question, which you’ve alluded to throughout. Could you talk about generally what parallels you see in the current administration compared to your experience in the Nixon White House during Watergate? Obviously you aren’t in the Trump White House now, but how did your experiences inform your processing of the current media coverage about the current investigation?
First of all, there are surprising similarities between President Trump and Mr. Nixon. Both are classic outsiders. Each was elected in a surprise election where the other side could say, “Well, we would have won but for own mistakes. This shouldn’t have happened, if we had to do it over again we wouldn’t have lost and this person will certainly not survive more than four years.” There is also this deep visceral hatred of the individual as president.
When each came into into Washington, they were opposed by every single institution in town: Congress, congressional staff, the federal bureaucracy, the media, the law firms, everybody. Their support came from people outside of the city. These people are not elitists and are taking on the establishment. Each of course is faced with a special prosecutor dedicated, apparently, to their absolute ruination. The difference is that Mr. Nixon was a lifelong politician, and he didn’t control either house of Congress. Trump is a lifelong businessman and he doesn’t control either house of Congress, in the sense that he’s not really a tried and true Republican, and Republicans barely have majorities in both houses.
The major difference is when Nixon was president, there was a monolithic media. There was no Fox News, no talk radio, and no Internet. You didn’t get other points of view. Mr. Nixon didn’t stand a chance. The drumbeat just kept on playing. At least today with Mr. Trump, you get pushback. You get the other side of the story if you care to look, and that’s what’s making it so dramatically different from from what happened to Nixon, because under him it was so one-sided.
I heard Andrew Breitbart saying something very similar at the Nixon Library about the media and its relation with Mr. Nixon, I suppose that’s a common theme.
It is a common theme; it’s hard to believe but there were only seven sources of news under Nixon. There were three TV networks: ABC, NBC and CBS. There was The Washington Post, The New York Times, and there was Newsweek and Time magazine, and that was it. And they all basically touted the same line, so you never got another side of the story. That’s what is different today. Frankly, I think that’s why no one is going to stop Mr. Trump from tweeting, because his tweets are raw information that doesn’t get filtered by other people. You can object and say that it’s not presidential and I wish he would behave that way, but he certainly gets his point of view across.
Well, that’s about all I have to say, Mr. Shepard. Thank you for joining us.
I’m happy to be here, thank you.
This interview has been lightly edited for length and clarity.