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  • Writer's pictureJim Bessman

A timely conversation with associate special Watergate prosecutor Frank Tuerkheimer

Frank Tuerkheimer

Frank Tuerkheimer (University of Wisconsin Law School)

With comparisons to Watergate proliferating in both the political and news media worlds—especially after the firing of FBI director James Comey in a move reminiscent of Watergate's infamous Saturday Night Massacre, spoke with former University of Wisconsin law professor Frank Tuerkheimer, who served as an associate special Watergate prosecutor and whose other career accomplishments include co-authoring the book Forgotten Trials of the Holocaust, about 10 lesser known Holocaust trials.

As the current scandals surrounding President Trump multiply and expand, are the Watergate comparisons fair?

I think they're only peripherally comparable in that Watergate had the Saturday Night Massacre firing of the independent special prosecutor, the resignations of the attorney general and the deputy attorney general, and the abolition of the Watergate special prosecution force—all in response to the president's failure to go through the judicial system: He played by the rules—and then tried to change them.

How so?

Nixon moved to quash the subpoena for his taped conversations, which [Watergate Judge John] Sirica denied. This is what litigants ordinarily do, but instead of then petitioning the Supreme Court, he essentially said, 'Screw this' and offered the 'Stennis Compromise': having [the elderly Democratic Mississippi Senator] John Stennis listen to them, rather than go to court. [Watergate special prosecutor] Archibald Cox refused. He'd already won in court, so why agree to the compromise? The Saturday Night Massacre followed.

How, then, does Watergate differ?

The Watergate comparisons are rooted in the recent past, and in that setting—the firing of three high-level people and the disbandment of the Watergate task force—it's a little different than the capricious firing of the FBI director. But you might have had an underlying comparable motive: Nixon didn't want the Watergate investigation to continue, and I'm sure Trump doesn't want the investigation into the Russian intercession in his campaign to continue. But structurally they're very different.

How could all this happen now?

We got here because of a man who ostensibly was successful in playing the game and making money in the corporate field, who convinced enough voters to take a totally different approach in Washington—and got the necessary votes in the right states to pull it off. He's unquestionably continuing to apply the same standards to the presidency as he did as CEO of all his companies.

What stands out about the current situation?

To me, one of the most distressing things is to hear [U.S. ambassador to the U.N.] Nikki Haley, who is obviously an intelligent woman, when asked about Trump firing Comey, said if the president's a CEO, he can fire anyone he wants. This captures the fundamental misunderstanding of what the presidency is like: If you're CEO of a company, your interests personally and the interests of the company tend to blend—there's not much distinction. You are the company. But when you're president, you are not the United States—you're not CEO of the government but the president, and your obligations to the country have nothing to do with you. When someone as intelligent as Nikki Haley blends the two, it's really discouraging.

It might be in Trump's personal interest that the investigation against Flynn not go ahead, but not the national interest. These are obligations to the country—not him.

Is any one, or any thing, at fault?

He got billions of dollars of free publicity during the primaries and afterward. In that sense you can blame the media, but long after it mattered I noticed CNN started pulling back and not showing every last syllable he uttered. On the other hand, the media, I think, are under pressure to show what sells.

In Watergate, the whole reason Congress turned around and made impeachment a serious issue is that the media extensively covered the Watergate hearings. The media created an informed public who knew there was [White House Counsel] John Dean implicating higher-ups, as well as the opposite [side]. So the public was riveted seeing the two versions—and then the tapes came out.

When Nixon backed off of turning over the tapes, the media covered it extensively and millions of telegrams—that people had to go to Western Union and pay for--descended on Washington.

Things seem to be happening very fast now, with new revelations and "breaking news" every day, if not every minute.

The bottom line is that the Republican leadership at this point has been very happy with what they can get—Supreme Court appointments, and appointments to the judiciary. [Senate Majority Leader Mitch] McConnell held up a lot of Obama appointments—which is not unprecedented—and slowed down the confirmation process. It paid off and they're very happy with Trump's appointments and with his tax plan including getting rid of estate taxes. He gives them a lot of what they want, and if they take him on they risk alienating a significant percentage of his base and getting in a lot of trouble—notwithstanding the gerrymandering of electoral districts.

Have Trump and the Republican leadership caused irreparable damage?

Somebody could say that the appointment of Neil Gorsuch to the Supreme Court instead of Merrick Garland is irreparable because he'll be there for the next 30 years, but that's a judgment call.

I'd like to think that the damage is not irreparable. Elections can change things, and if Trump continues the way he has, enough Republicans can shake loose in the Senate to exercise control over him. Everybody talks about John McCain, Lindsey Graham, Susan Collins, Bob Corker—there are these names they always switch around, and the more stunts he pulls the more likely it is to happen, and McConnell won't be able to control it. But it's different in the House, where the leadership has far more control over the members.

You've also done a lot of research relating to the Holocaust. Even that has become somewhat of an issue with the Trump administration, thanks to Sean Spicer's reference to concentration camps as "Holocaust Centers" and his denial that Hitler used chemical weapons—not to mention the administration's failure to acknowledge that Jews were specifically targeted by the Nazis.

It's kind of shocking that someone who represents the president in speaking to the public does not know that gas was used to kill millions of Jews in gas chambers in concentration camps, but he apologized and I think it was genuine.

There was a sense after Nixon resigned that Watergate proved that the American political system worked, that "our long national nightmare," as President Ford said, was over.

The hidden fact in that is that you had a Republican president and the Democrats controlled the Senate and House. The real test of the system is what we have now, when it's all the same party in control. So the jury is out as to whether the system works as intended.

Look. How many hearings did they have on Benghazi, because the Republicans controlled the House and the president was a Democrat? How many hearings did they have during the Bush administration when the Republicans controlled the Senate and House? Virtually none. There was one for 9-11 and that was it. We'll have to wait and see what happens when everybody in the same party controls every arm of the government.

Anybody who ventured any prediction when Trump entered the field turned out to be a fool. The truest words he's spoken is that he could shoot somebody on Fifth Avenue and not lose any votes. But I'm not going to make a list of people who made predictions—it's a loser list.



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